Taylor Roofing Solutions, Inc. and Capitol Roofing Solutions, L.L.C., a single employer

National Labor Relations Board - Board Decisions

Jun 28, 2019

368 NLRB No. 17 (N.L.R.B. 2019)

368 NLRB No. 17
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections
can be included in the bound volumes
Taylor Roofing Solutions, Inc. and Capitol Roofing
Solutions, LLC, a single employer and United
Union of Roofers, Waterproofers and Allied
Workers, Local Union No. 2. Case 14–CA–
211073
June 28, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that Taylor Roofing Solutions, Inc.
(Respondent Taylor) and Capitol Roofing Solutions,
L.L.C. (Respondent Capitol), a single employer (collec-
tively, the Respondent), has withdrawn its answer to the
complaint. Upon a charge, amended charge, and second
amended charge filed by United Union of Roofers, Wa-
terproofers and Allied Workers, Local Union No. 2 (the
Union) on December 5, 2017, January 11, 2018, and
May 21, 2018, respectively, the General Counsel issued a
complaint against the Respondent on May 30, 2018, al-
leging that it has violated Section 8(a)(5) and (1) of the
National Labor Relations Act. The Respondent filed an
answer on June 13, 2018. However, on October 23,
2018, the Respondent filed a motion to withdraw its an-
swer, and on November 1, 2018, the Regional Director
granted that motion.
On November 7, 2018, the General Counsel filed a
Motion for Default Judgment with the Board. On Febru-
ary 14, 2019, the Board issued an Order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively states
that an answer must be received on or before June 13,
2018, and that if no answer is filed, the Board may find,
pursuant to a motion for default judgment, that the alle-
gations in the complaint are true. Although the Re-
spondent timely filed an answer on June 13, 2018, it later
withdrew that answer. The withdrawal of an answer has
the same effect as a failure to file an answer, i.e., the al-
legations in the complaint must be considered to be true.1
Accordingly, based on the withdrawal of the Respond-
ent’s answer, we deem the allegations in the complaint to
be admitted as true, and we grant the General Counsel’s
Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Taylor has been an
Illinois corporation with an office and place of business
in Belleville, Illinois (Respondent’s facility) and an of-
fice in Clayton, Missouri, and has been a contractor in
the building and construction industry performing resi-
dential and commercial roofing. In conducting its opera-
tions during the 12-month period ending April 30, 2018,
Respondent Taylor performed services valued in excess
of $50,000 in states other than the State of Illinois.
At all material times, Respondent Capitol has been an
Illinois limited liability company with its place of busi-
ness at the Respondent’s facility and has been a contrac-
tor in the building and construction industry performing
residential and commercial roofing. In conducting its
operations during the 12-month period ending April 30,
2018, Respondent Capitol performed services valued in
excess of $50,000 in states other than the State of Illi-
nois.
At all material times, Respondent Taylor and Re-
spondent Capitol have been affiliated business enterpris-
es with common officers, ownership, directors, manage-
ment, and supervision; have administered a common
labor policy; have shared common premises, facilities,
and equipment; have provided services for and made
sales to each other; have interchanged personnel with
each other; have interrelated operations with common
business purposes, sales, purchasing, and insurance; and
have held themselves out to the public as a single inte-
grated business enterprise. Based on its operations de-
scribed above, Respondent Taylor and Respondent Capi-
tol constitute a single integrated business enterprise and a
single employer within the meaning of the Act.
We find that the Respondent is an employer 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.

1 See Maislin Transport, 274 NLRB 529 (1985). Indeed, when
withdrawing its answer, the Respondent expressly stated that it “prays
the NLRB order any and all such further relief as is appropriate, equita-
ble, and available.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act.
Gerrit Yank Owner/Chief Executive Of-
ficer/Director of Respondent
Taylor and Co-owner/Manager
of Business Development of
Respondent Capitol
Ellen Yank Co-owner/Chief Operating
Officer/Director of Respondent
Capitol and Director of Re-
spondent Taylor
Rodger Carpenter President of Respondent Taylor
(until March 2018)
Jesus Beltran Carranza - Foreman of Respondent Taylor
and Respondent Capitol
Juan Beltran Carranza Foreman of Respondent Taylor
and Respondent Capitol
About August 22, 2017, Respondent Taylor entered in-
to a collective-bargaining agreement effective by its
terms from March 1, 2017, through February 28, 2022,
whereby Respondent Taylor recognized the Union as the
exclusive collective-bargaining representative of the unit
without regard to whether the Union’s majority status
had ever been established under Section 9(a) of the Act.
The unit of the Respondent’s employees covered by
the collective-bargaining agreement described above
constitutes a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.2
From August 22, 2017, through February 28, 2022,
based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the
unit.3

2 There is no specific unit description set forth in the complaint.
However, in light of the Respondent’s failure to file an answer to the
complaint, there is no dispute that the unit described in the 2017–2022
collective-bargaining agreement is appropriate.
3 The complaint alleges that the Respondent is a construction-
industry employer and that it granted recognition to the Union without
regard to whether the Union had established majority status. Accord-
ingly, we find that the relationship was entered into pursuant to Sec.
8(f) of the Act and that the Union is therefore the limited Sec. 9(a)
representative of the unit employees for the period covered by the con-
tract. See, e.g., A.S.B. Cloture, Ltd., 313 NLRB 1012, 1012 fn. 2
(1994) (citing Electri-Tech, Inc., 306 NLRB 707, 707 fn. 2 (1992),
enfd. mem. 979 F.2d 851 (6th Cir. 1992), and John Deklewa & Sons,
Since about August 22, 2017, based on the acts and
conduct described above, Respondent Capitol has been
bound by the collective-bargaining agreement described
above.
Since about August 22, 2017, the Respondent has
failed and refused to apply the terms and conditions of
the collective-bargaining agreement described above to
all unit employees, including failing to pay all unit em-
ployees the wage rates specified in the collective-
bargaining agreement, failing to make all fringe benefit
contributions due on behalf of unit employees, and sub-
contracting unit work.
The terms and conditions of employment described
above are mandatory subjects for the purposes of collec-
tive bargaining.
The Respondent engaged in the conduct described
above without the Union’s consent.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the limited exclusive collective-
bargaining representative of its employees within the
meaning of Section 8(d) of the Act in violation of Sec-
tion 8(a)(5) and (1) of the Act. The Respondent’s unfair
labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by failing and refusing to apply the terms and
conditions of its collective-bargaining agreement with
the Union in effect August 22, 2017, through February
28, 2022 (2017–2022 Agreement) to all unit employees
by, among other things, failing to pay all unit employees
the wage rates specified in the 2017–2022 Agreement,
failing to make all fringe benefit contributions due on
behalf of unit employees, and subcontracting unit work,
we shall order the Respondent to adhere to and comply
with the terms and conditions of the 2017–2022 Agree-
ment and bargain in good faith and obtain the consent of
the Union before making any changes in the terms and
conditions of employment set forth in the 2017–2022
Agreement during its term. In addition, we shall order
the Respondent to make the unit employees whole for
any loss of earnings and other benefits they may have

282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB,
843 F.2d 770 (3d Cir. 1988)).
TAYLOR ROOFING SOLUTIONS, INC. 3
suffered as a result of the Respondent’s failure and re-
fusal to apply the terms and conditions of the 2017–2022
Agreement to them, including contractual wages in ac-
cordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). We shall also order the
Respondent to compensate unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards and file with the Regional Director for
Region 14, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee, in accordance with
AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016).
Moreover, we shall order the Respondent to make
whole its unit employees by making all contractually
required fringe benefit fund contributions that have not
been made since about August 22, 2017, including any
additional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). Further, the Respondent shall be required to re-
imburse the unit employees for any expenses ensuing
from its failure to make the required fund contributions
as set forth in Kraft Plumbing & Heating, 252 NLRB
891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981). Such amounts shall be computed in the manner
set forth in Ogle Protection Service, supra, with interest
as prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.4
Finally, we shall order the Respondent to restore the
status quo ante by transferring the work it subcontracted
back to unit employees, to make the unit employees
whole for any loss of earnings and other benefits suffered
as a result of its unlawful subcontracting, and to reinstate
any unit employees who were laid off as a result of the
unlawful subcontracting. Backpay shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), if employees are no longer employed by the Re-
spondent, and in accordance with Ogle Protection Ser-
vice, supra, if employees remain employed by the Re-
spondent, with interest as prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River

4 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
Medical Center, supra.5 In addition, we shall order the
Respondent to compensate the unit employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards and file with the Regional Director for
Region 14, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee, in accordance with
AdvoServ of New Jersey, Inc., supra. The Respondent
shall also be required to remove from its files any and all
references to any unlawful layoffs if employees were laid
off as a result of the unlawful subcontracting, and to noti-
fy each of the employees in writing that this has been
done and that the unlawful conduct will not be used
against them in any way.
If employees are no longer employed by the Respond-
ent as a result of the unlawful subcontracting, we shall
also order the Respondent to compensate unit employees
for their search-for-work and interim employment ex-
penses regardless of whether those expenses exceed in-
terim earnings in accordance with King Soopers, Inc.,
364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d
23 (D.C. Cir. 2017). Search-for-work and interim em-
ployment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Taylor Roofing Solutions, Inc. and Capitol
Roofing Solutions, L.L.C., a single employer, Belleville,
Illinois, and Clayton, Missouri, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with United Union of Roofers, Waterproofers
and Allied Workers, Local Union No. 2 (the Union) as
the limited exclusive collective-bargaining representative
of the employees in the bargaining unit set forth in the
collective-bargaining agreement in effect from August
22, 2017, through February 28, 2022 (the 2017–2022
Agreement), during the term of the agreement by failing
and refusing to apply the terms and conditions of the
agreement to the unit employees.

5 The effects of the subcontracting on unit employees, including
whether they remained employed in other positions with the Respond-
ent, are not clear from the language of the complaint. Accordingly, we
leave this remedial issue to be determined at the compliance stage of
the proceedings. See WF Coal Sales Inc., a Successor to Cobalt Coal
Ltd and its Subsidiaries, 367 NLRB No. 77, slip op. at 2 fn. 3 (2019).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Adhere to and comply with the terms and condi-
tions of the 2017–2022 Agreement during the term of the
agreement and bargain in good faith and obtain the con-
sent of the Union before making any changes in the
terms and conditions of employment set forth in the
2017–2022 Agreement during its term.
(b) Make whole the employees in the bargaining unit
set forth in the 2017–2022 Agreement for any loss of
earnings and other benefits suffered as a result of the
Respondent’s failure and refusal to apply the terms and
conditions of the 2017–2022 Agreement to them, with
interest, in the manner set forth in the remedy section of
this decision.
(c) Compensate the unit employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
14, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(d) Make all contractually required benefit contribu-
tions that have not been made since about August 22,
2017, and reimburse unit employees for any expenses
ensuing from its failure to make such payments, with
interest, in the manner set forth in the remedy section of
this decision.
(e) Restore the status quo ante by transferring the work
the Respondent subcontracted back to unit employees.6
(f) Within 14 days from the date of this Order, if unit
employees whose work was subcontracted no longer
work for the Respondent, offer those employees full re-
instatement to their former jobs or, if those jobs no long-
er exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(g) Make all unit employees whole for any loss of
earnings and other benefits they may have suffered as a
result of its unlawful subcontracting, in the manner set
forth in the remedy section of this decision.
(h) Within 14 days from the date of this Order, remove
from its records all references to layoffs caused by the
unlawful subcontracting of unit work, and within 3 days

6 At the compliance stage of the proceeding, the Respondent will be
permitted to argue and present supporting evidence that restoring the
status quo ante would be unduly burdensome. San Luis Trucking, Inc.,
352 NLRB 211, 211 fn. 5 (2008); Allied General Services, 329 NLRB
568, 569 (1999); Lear Siegler, Inc., 295 NLRB 857, 861–862 (1989).
thereafter, notify each of the unit employees laid off as a
result of subcontracting in writing that this has been done
and that the layoffs will not be used against them in any
way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its facilities in Belleville, Illinois, and Clayton, Missouri,
copies of the attached notice marked “Appendix.”7 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 14, after being signed by the Respond-
ent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 22, 2017.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 14 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.
Dated, Washington, D.C. June 28, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member

7 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.”
TAYLOR ROOFING SOLUTIONS, INC. 5
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
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 fail and refuse to bargain collectively
and in good faith with United Union of Roofers, Water-
proofers and Allied Workers, Local Union No. 2 (the
Union) as the limited exclusive collective-bargaining
representative of the employees in the bargaining unit set
forth in our collective-bargaining agreement with the
Union in effect from August 22, 2017, through February
28, 2022 (the 2017–2022 Agreement), during the term of
the agreement by failing and refusing to apply the terms
and conditions of the agreement to the unit employees.
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 adhere to and comply with the terms and
conditions of the 2017–2022 Agreement during the term
of the agreement and bargain in good faith and obtain the
consent of the Union before making any changes in the
terms and conditions of employment set forth in the
2017–2022 Agreement during its term.
WE WILL make whole the employees in the bargaining
unit set forth in the 2017–2022 Agreement for any loss of
earnings and other benefits suffered as a result of our
failure and refusal to apply the terms and conditions of
the 2017–2022 Agreement to the unit employees, with
interest.
WE WILL compensate the unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 14, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WE WILL make all contractually required benefit fund
contributions that we have failed to make since about
August 22, 2017, including any additional amounts due
the funds, and WE WILL reimburse unit employees for any
expenses ensuing from our failure to make the required
payments, with interest.
WE WILL restore the status quo ante by transferring the
work we subcontracted back to unit employees.
WE WILL, if you no longer work for us as a result of
our unlawful subcontracting of unit work, offer you full
reinstatement to your former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to your seniority or any other rights or priv-
ileges previously enjoyed, and WE WILL do so within 14
days from the date of the Board’s Order.
WE WILL make you whole for any loss of earnings and
other benefits you suffered as a result of our unlawful
subcontracting, plus interest (if you continued to work
for us but with fewer hours), and less any net interim
earnings, plus interest, plus reasonable search-for-work
and interim employment expenses (if you were laid off
as a result of our unlawful subcontracting).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our records all references to layoffs
caused by our unlawful subcontracting of unit work, and
WE WILL, within 3 days thereafter, notify you in writing
that this has been done and that the layoffs will not be
used against you in any way.
TAYLOR ROOFING SOLUTIONS, INC.
AND CAPITOL ROOFING SOLUTIONS,
L.L.C., A SINGLE EMPLOYER
The Board’s decision can be found at
www.nlrb.gov/case/14-CA-211073 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6