United Slate Workers, Local 36Download PDFNational Labor Relations Board - Board DecisionsSep 24, 1968172 N.L.R.B. 2248 (N.L.R.B. 1968) Copy Citation 2248 DECISIONS OF NATIONAL United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association , Local No. 36 (Roofing Contractors Association of Southern California, Inc., for and on behalf of each of its members ) and Jones and Jones , Inc. Case 21-CB-3044-2 September 24, 1968 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On June 17, 1968, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, United Slate, Tile & Composition Roofers, Damp & Waterproof Wor- kers Association, Local No. 36, Los Angeles, California, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order.' ' The attached notice is substituted for the Trial Examiner 's notice APPENDIX NOTICE TO ALL MEMBERS OF UNITED SLATE, TILE & COMPOSITION ROOFERS, DAMP & WATERPROOF LABOR RELATIONS BOARD WORKERS ASSOCIATION , LOCAL No. 36 Pursuant to the Decision and Order of the Na- tional Labor Relations Board and in order to effec- tuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain with Heet- land Roofing Company and Roofing Contrac- tors Association of Southern California, Inc., as Heetland's collective-bargaining representa- tive in the below appropriate unit by ( I ) insist- ing upon a contract without affording Heetland and its bargaining agent an opportunity to bar- gain thereon , ( 2) insisting that Heetland ex- ecute a contract requiring the posting of a per- formance bond without affording him or his agent an opportunity to bargain thereon, and (3) insisting on grievance and trust clauses which compel Heetland to rely on employer representatives not of his own choosing in mat- ters pertaining to those clauses. WE WILL NOT refuse to designate Roofing Contractors Association of Southern Califor- nia, Inc ., as Heetland's collective-bargaining representative in the preamble to the collec- tive-bargaining agreement nor will we insist on grievance and trust clauses which compel Heetland to rely on employer representatives not of his own choosing involving matters per- taining to such clauses. WE WILL continue in effect all of the provi- sions of the current master agreement other than the bond requirements and the grievance and trust clauses insofar as they compel Heet- land to agree to be represented by employer representatives not of his own choosing. WE WILL notify Heetland in writing that we will not insist upon a performance bond or on any other nonmandatory collective-bargaining provisions objected to by Heetland and that we will reimburse Heetland for any expenses in- curred in connection with such provisions con- tained in the current contract. WE WILL recognize Roofing Contractors As- sociation of Southern California, Inc., as Heet- land's collective-bargaining representative. WE WILL, upon request, bargain with Heet- land for a mutually acceptable grievance procedure and the administration of trust funds. UNITED SLATE, TILE & COMPOSITION ROOFERS, DAMP & WATERPROOF WORKERS ASSOCIATION, LOCAL No. 36 (Labor Organization) 172 NLRB No. 249 UNITED SLATE WORKERS , LOCAL 36 2249 Dated By (Representative ) (Title) Upon the entire record in the case and from my observation of the witnesses, [ make the following: FINDINGS OF FACT This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Eastern Columbia Bilding , 849 South Broadway, Los Angeles, California Telephone 688-5200. 90014, TRIAL EXAMINER'S DECISION Statement of the Case EUGENE E. DIXON, Trial Examiner: This proceed- ing, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Los Angeles, California, on May 2, 1968, pursuant to due notice. A complaint, issued by the Regional Director for Region 21 (Los Angeles, California) as the representative of the General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board), dated February 13, 1968, and based on charges filed and served on November 24, 1967, alleged that United Slate, Tile & Composition Roofers, Damp & Waterproof Wor- kers Association, Local No. 36, had engaged in and was engaging in unfair labor practices in violation of Section 8(b)(1)(B) and (3) of the Act by refus- ing to bargain collectively with Heetland Roofing Company as the duly designated collective-bargain- ing agent of all of Heetland's employees performing roofing work, exclusive of all other employees and all supervisors as defined in the Act, which em- ployees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. The substance of the un- fair labor practice allegations was that Respondent insisted (under the threat and use of a strike) that Heetland sign a collective-bargaining agreement without permitting Heetland to bargain as to its terms, which terms included certain provisions that involved nonmandatory subjects of collective bar- gaining as well as requiring Heetland to accept a representative for grievance, arbitration, and other purposes not of Heetland's own choice. In its duly filed answer Respondent denied the commission of any unfair labor practices and in ad- dition affirmatively alleged that Heetland signed the contract in question voluntarily and that at the time it was signed had indicated to the Union that "his previous personal indemnity bond was still effec- tive." 1. HEETLAND'S BUSINESS Heetland Roofing Company is engaged at Los Angeles, California, and vicinity as a roofing con- tractor in the building and construction industry. During the calendar year 1967, Heetland per- formed work and furnished supplies valued in ex- cess of $50,000 to employers who themselves each performed work and furnished products valued in excess of $50,000 directly to points outside the State of California. At all times material Heetland has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association, Local No. 36, Respondent herein, at all times material has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At the hearing a stipulation was entered into by and between the parties in part as follows: 1. After a period of some 20 years of collec- tive bargaining relationship upon a multi-em- ployer, multi-union basis there had been a Master Agreement covering the period August 15, 1963, to August 16, 1967, by and between the Roofers Union Locals 36 and 72, on the one hand, and Roofing Contractors Associa- tion of Southern Clifornia, Inc.,' and Roofing Contractors of Orange County, Inc., on the other hand.... 2. Prior to the expiration of this agreement, the local union gave timely notice to the two associations, to the members of each, and to individual signatory contractors (a) to ter- minate the agreement as of the termination date thereof, (b) their intention to negotiate subsequent agreements upon an individual contractor basis rather than upon a multi-em- ployer basis, and (c) their readiness to bargain for an agreement. 3. No agreement having been reached by Au- gust 15, 1967, the roofer employees of Heet- land ceased work until their employer signed a document, designated Interim Agreement....'' 4. Heetland Roofing Company was a signatory to the 90-day interim agreement, having signed the same on August 26, 1967. Herein sometimes referred to as RCA ' The effective period of this interim agreement was limited to 90 days from the date of execution 354-126 O-LT - 73 - pt. 2 - 70 2250 DECISIONS OF NATIONAL 5. During the course of the negotiations which ensued after the Union's notice with the as- sociations for and on behalf of its members in- dividually, and not as a multi-employer unit, another association of contractors entered the field and engaged in negotiations on behalf of its member contractors-Union Roofing Con- tractors Association.' 6. A master agreement was finally negotiated and executed on October 18, 1967, by and between the local unions, on the one hand, and Roofing Contractors of Orange County, Inc., and Union Roofing Contractors Association, on the other hand, for and on behalf of their individual contractor-members who likewise also executed the said master agreement. 7. No master agreement has been negotiated between Roofing Contractors Association of Southern California, Inc., and the Local Unions. The parties have not concluded the negotiation of contract terms. 8. Heetland Roofing Company is and at all times material herein has been, a member of Roofing Contractors Association of Southern California, Inc. The interim agreement expired on November 24, and neither Heetland nor Roofing Contractors As- sociation of Southern California, Inc., having en- tered into the new master agreement or any other agreements with the Union, Heetland was operating without a union contract as of November 27. About 6 a.m. on that day Albert Nelson, assistant business agent of the Union, went to Heetland's shop where, according to the General Counsel's witnesses, he told the four or five employees who were there in anticipation of going to work that they could not go to work because Heetland had no contract and that if they did go to work they would be given a max- imum fine by the Union.4 As a consequence none of the men went to work. According to the testimony of Heetland's pre- sident, C. U. Heetland, later that same morning, about 9:30 or 10, Nelson returned to the shop with copies of the master agreement and told Heetland "that this was the contract" and that if he wanted to go back to work he "would have to sign it."' Heetland told Nelson he "would be happy to sign it if they would eliminate several items in (it) that ' Heetland did not belong to this association and it was not authorized to act as Heetland's bargaining representative ' To this effect employee Arthur E Fashbaugh testified that Nelson told them that the "90-day interim contract was expired" and that they "should not go to work", that it was the same as if they were on strike and that "there would be a maximum fine " Employee Paul Rupple testified that Nelson told them that they "couldn't go to work" and that if they did go to work they would be fined "the maximum " Abel Perez, Heetland's superin- tendent, testified that Nelson told them that they "couldn't go back to work," that they "had no more contract," and that if they did go to work he would fine them as much as $250 if they "got caught " 5In the meantime Heetland's superintendent had told him about Nel- son's earlier visit LABOR RELATIONS BOARD were not mandatory for bargaining." In this con- nection he specifically objected to the bond provi- sion of the contract and also indicated that he could not accept the preamble in the contract because it did not recognize the RCA as his bar- gaining agent. Nelson's comment was, "Sign it as it is or forget it." Heetland refused to sign. The men stayed out for the rest of the week. On the following Friday when they came to get their checks Heetland told them that they could come back to work the following Monday because he was going to sign the contract. Accordingly, on Mon- day, December 4, according to Heetland's further testimony, he went to the union hall "voluntarily" where he signed the agreement. It further appears from Heetland's undenied and credited testimony that he had been a member of the negotiating com- mittee of the RCA and had participated in most of the bargaining sessions with the Union prior to November 27 and had seen Nelson at those ses- sions. In those negotiations the RCA was in dis- agreement with the Union over the fact, among other things, that other associations and parties were named in the agreement in connection with the grievance procedure and the trust provisions. In his testimony Nelson admitted an early morn- ing visit to Heetland's shop on November 27, but denied telling the men not to go to work or that they would be fined if they did. According to his version, he had gone there to discuss Paul Rupple's delinquency in initiation fee payments.' This he did and was at the shop only 3 or 4 minutes. Before he left, however, one of the employees, Mario Janco, asked "what about the contract." Nelson told him that "he had his telegram' and his letter and he knew his rules."" There were some other questions raised and Superintendent Perez assured Nelson that he "didn't have to worry as there would be no trucks leave until there was a contract..,." According to Nelson's further direct testimony, he drove back to the Heetland shop about 11 o'- clock that morning and as he was driving by em- ployee Tommy Alcarez, who was talking to part- owner Bill Billups, hailed him to come into the yard. He did so and Alcarez asked him in effect how long it would take to get a contract. Nelson replied that it was up to the contractor-that he did not know. On that note Nelson left. He specifically denied having seen Heetland that day or at any ' Rupple was in the process of paying $3 a day on the initiation fee and was behind in the payments Rupple testified that Nelson spoke to him about this matter before he told the employees not to go to work The following telegram was sent to Heetland's employees by the Union on November 25 HEETLAND ROOF VAN NUYS NOT SIGNATORY TO CON- TRACT WITH THIS LOCAL UNION CALL YOUR BUSINESS REPRESENTATIVE FOR FURTHER INFORMATION CHECK YOUR CONSTITUTION AND BYLAWS Article V I of the Union 's constitution makes it a chargeable offense for a member to remain working for an employer whose men are on strike or to remain working for an employer "who has not complied with the require- ments of the current master labor agreement " UNITED SLATE WORKERS , LOCAL 36 2251 other time until December 4 when Heetland came to the union hall and signed the contract. On cross-examination Nelson admitted that he drove to the Heetland shop the second time on November 27 to see if the men were working. He also testified that he knew that Heetland was a member of the RCA and a past president of it. He also admitted that in the resolved negotiations with that association the failure to name the RCA in the preamble, the bond requirement, the naming of other associations in connection with the grievance procedure, and the trust provisions were in dispute. He also admitted that when Heetland came to sign the contract on December 4 he told Nelson that "he didn't like it but he was going to sign it." In corroboration of what took place on Nelson's first visit to the Heetland shop on November 27, Rspondent called Mario Janco as a witness. For the most part Janco's recollection was so vague as to be detrimental rather than helpful in supporting Nel- son's version of what took place on that occasion.' About the only part of Nelson's testimony that Janco could be said to have corroborated was that Nelson did talk to Rupple "about dues or something" but even here he was uncertain, testify- ing that he was "almost sure" that that was what he heard Nelson talking to Rupple about. On the basis of the foregoing testimony and from my observa- tion of those who testified, I credit the General Counsel's witnesses. Conclusions I believe and find that the preponderance of the evidence here clearly establishes that, by means of strike pressure from the Union, Heetland was forced to sign a contract containing the following nonmandatory provisions to which it objected, thus violating Section 8(b)(3) of the Act: 'I 1. The bond requirement (art. III, F, 4, and 7 (A) M), Local 164, Brotherhood of Painters, etc. (Cheatham Painting Company), 126 NLRB 997, enfd. 293 F.2d 133 (C.A.D.C.), cert. denied 368 U.S. 824. 2. The grievance procedure (art. VIII ( B)) in- sofar as it compels Heetland to agree to be represented by employer representatives not of its own choosing on the joint labor relations board. Painters District Council No. 36, AFL-CIO (Com- mercial Drywall Constructors, Inc.), 155 NLRB 1013, 1016, 1017. 3. The trust agreements (art. XX) insofar as they compel Heetland to agree to be represented by em- ployer representatives not of its own choosing as trustees in the administration of the funds, cf. Com- mercial Drywall, supra. I also find that by the use of strike pressure Respondent violated Section 8(b)(1)(13) in preventing Heetland from exercising an uncoerced choice of bargaining representative by: 1. Dealing directly with Heetland and bypassing its designated representative, Roofing Contractors Association of Southern California, Inc.; Arnold M. Hansen, supra; General Teamsters Local No. 324, etc. (Cascade Employers Association, Inc.), 127 NLRB 488; Southern California Pipe Trades District Council No. 16 of the United Association (Aero Plumbing Co.), 167 NLRB 1004. 2. Refusing to agree to designate RCA as Heet- land's representative in the preamble to the agree- ment, Arnold M. Hansen, supra; Cascade Employers Association, Inc., supra. 3. Insisting on acceptance by Heetland of Respondent designated representatives not of Heet- land's choice as its representatives for the adjust- ment of grievances, Commercial Drywall Construc- tors, Inc., supra at 1017-18. 4. Insisting on Heetland's acceptance of Respon- dent designated representatives not of Heetland's choice as its representatives for the administration of the trust funds, cf. Commercial Drywall Construc- tors, Inc., supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, are found to constitute unfair labor prac- tices occurring in connection with the Company's operations described in section Is above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States tending to lead to labor disputes burdening and ob- structing commerce, and the free flow of com- merce. V. THE REMEDY Having found that Respondent violated Section 8(b)(3) by insisting on certain nonmandatory con- tract provisions to which Heetland objected and 8(b)(1)(B) by infringing on Heetland's choice of ° For instance, Janco claimed he asked Nelson about the contract When asked what he said to Nelson he testified, "Well, I don't quite remember, but if we should go to work, something like that " When asked if he had asked Nelson whether the men should go to work he replied, "I think I did " When asked what Nelson replied , he testified, "He (said ) something about (a) telegram I don't know " He later testified that he did not re- member Nelson saying anything about a telegram As for the telegram (which he claimed to have received on Sunday) he did not recall what it said His wife had read it to him (he did not read too well) but he had not paid much attention to what she read He could not recall if Nelson had told the men not to go to work Nor could he recall if Nelson had told them to "check (their) constitution and bylaws " He claimed to have brought up himself the question of fines to Nelson asking him if they would "get fined" if they went to work. According to him, Nelson did not answer-or if he did Janco did not hear him. When it was suggested that Janco meant that Nelson did not "answer yes or no" Janco testified, "Well he might have hinted is what I am not sure because there was so much noise amongst the men that I didn't hear anything " i" N L R B v Wooster Division of Borg-Warner corporation, 356 U S 342, operative P lasterers'. etc, Local #2 (Arnold M Hansen), 149 NLRB 1264,1267 2252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining representatives , it will be recommended that Respondent cease and desist from such con- duct and take certain affirmative action in order to effectuate the policies of the Act. It will be recommended that Respondent be or- dered to 1. Continue in effect all of the provisions of the current contract other than the bond requirement and the grievance procedure and the trust provi- sions" insofar as they compel Heetland to agree to be represented by employer representatives not of their own choosing. 2. Repay Heetland for any expenditures incurred in connection with the bond provisions of the con- tract plus 6 percent interest as provided for in Isis Plumbing & Heating Co., 138 NLRB 716. 3. Notify Heetland that it will not insist on non- mandatory collective- bargaining provisions ob- jected to by Heetland nor on the designation of Heetland's collective-bargaining representatives. 4. Recognize Roofing Contractors Association of Southern California, Inc., as Heetland's collective- bargaining representative. 5. Bargain for a mutually acceptable grievance procedure and the administration of trust funds. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Heetland Roofing Company, at all times material, has been an employer within the meaning of Section 2(2) of the Act. 2. United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association, Local No. 36, at all times material has been a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All of Heetland's employees performing roof- ing work, exclusive of all other employees and all supervisors as defined in the Act, at all times material has constituted an appropriate unit for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. At all times material the aforesaid Union has been the exclusive representative of the employees in the above appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. In refusing to bargain with Heetland and Roofing Contractors Association of Southern California, Inc., as Heetland's collective -bargaining representative in the appropriate unit herein by (1) insisting on a contract without affording Heetland and the RCA an opportunity to bargain thereon, (2) insisting that Heetland execute a contract requiring the posting of a performance bond without affording him and his agent an opportunity to bargain, and (3) insisting on grievance and trust clauses which compel Heetland to rely on employer representatives not of his own choosing in matters pertaining to those clauses, Respondent has refused to bargain in violation of Section 8(b)(3) of the Act. 6. By refusing to designate RCA as Heetland's representative in the preamble to the agreement and by insisting on grievance and trust clauses which compel Heetland to rely on employer representatives not of his own choosing in matters pertaining to those clauses, Respondent has coerced and restrained Heetland in the selection of his representatives for the purposes of collective bargaining in violation of Section 8(b)( I )(B) of the Act. 7. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the entire record in the case and the foregoing findings of fact and conclusions of law, I recommend that the Respondent, United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association, Local No. 36, their officers, representatives, and agents, shall: 1. Cease and desist from: (a) Refusing to bargain with Heetland and Roof- ing Contractors Association of Southern California, Inc., as Heetland's collective-bargaining representa- tive in an appropriate unit by ( 1) insisting on a con- tract without affording Heetland and the RCA an opportunity to bargain thereon, (2) insisting that Heetland execute a contract requiring the posting of a performance bond without affording Heetland or its agent an opportunity to bargain thereon, and (3) insisting on grievance and trust clauses which compel Heetland to rely on employer representa- tives not of its own choosing in matters pertaining to those clauses. (b) Refusing to designate Roofing Contractors Association of Southern California, Inc., as Heet- land's representative in the preamble to the agree- ment and by insisting on grievance and trust clauses which compel Heetland to rely on employer representatives not of its own choosing involving matters pertaining to those clauses. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Continue in effect all of the provisions of the current contract other than the bond requirement and the grievance and trust clauses insofar as they compel Heetland to agree to be represented by em- ployer representatives not of their own choosing. (b) Notify Heetland, in writing, that it will not insist upon a performance bond or any other non- mandatory collective-bargaining provisions ob- jected to by Heetland and that it will reimburse " Heetland has indicated it is willing to abide by the other terms of the contract UNITED SLATE WORKERS , LOCAL 36 Heetland for expenses incurred in connection therewith to date under the contract now in effect. (c) Recognize Roofing Contractors Association of Southern California, Inc., as Heetland's collec- tive-bargaining representative. (d) Upon request, bargain with Heetland for a mutually acceptable grievance procedure and the administration of trust funds. (e) Post at its principle office and usual mem- bership meeting place, copies of the attached notice marked "Appendix. "12 [Board's Appendix substituted.] Copies of said notice, on forms pro- vided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt '2 In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- 2253 thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the said Local to insure that said notices are not altered, defaced, or covered by any other material. (f) Forthwith, mail copies of said notices to the said Regional Director, after such copies have been signed as provided above, for posting by Heetland, if he so agrees, at places where he customarily posts notices to individuals in his employ. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.13 peals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " Copy with citationCopy as parenthetical citation