Young's Metal Fabricators & Roofing, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1979

241 N.L.R.B. 978 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Young's Metal Fabricators and Roofing, Inc. and
Young's Sheet Metal and Roofing Inc. and Sheet
Metal Workers International Association, Local
Union No. 66, AFL-CIO, affiliated with the Sheet
Metal Workers International Association, AFL-
CIO. Cases I -CA-7307 and I -CA-7391
April 18, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On October 26, 1978, Administrative Law Judge
Phil W. Saunders issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief in opposition to Respondents' ex-
ceptions and in support of the Administrative Law
Judge's 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge as modified be-
low and hereby orders that the Respondents, Young's
Metal Fabricators and Roofing, Inc., and Young's
Sheet Metal and Roofing, Inc., Asheville, North
Carolina, their officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order, as so modified:
I. Delete paragraph (b) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
I we do not adopt the Administrative Law Judge's finding that Respon-
dents bargained directly with employees in violation of Sec. 8(a)( 1) and (5),
as the record evidence is insufficient to support that finding.
APPENDIX
NOTIC(E TO EMPLOYEES
POSTED BY ORDER OF THE
NAIIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively in
good faith with Local 66, as the exclusive repre-
sentative of our employees in the appropriate
unit described below, by refusing to sign the con-
tract submitted to us and agreed to on May 26,
1977:
All journeymen roofers, kettle men, foremen,
assistant foremen and apprentices employed
by us at our Asheville, North Carolina, facili-
ties, excluding all other employees, guards and
supervisors as defined in the Act.
WE WILL NOT withdraw and withhold recogni-
tion from Local 66, as the bargaining representa-
tive of our employees in the unit described
above.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to self-organization, to form,
join, or assist the above-named Union or any
other labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or
all such activities.
WE WILL recognize and bargain with Local 66
as the exclusive representative of the employees
in the aforesaid unit with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment.
WE WILL, upon request, execute the contract
submitted to us on May 26, 1977, by Local 66 on
behalf of the employees in the unit described
above, and apply all the provisions of the con-
tract retroactive to May 15, 1977.
WE WIL.L. jointly and severally make whole all
unit employees for any loss of earnings they may
have suffered because of our failure to apply all
the provisions of the contract submitted to us by
Local 66, with interest.
YOUNG's METAL FABRICATORS AND ROOF-
ING, INC.
DECISION
STATEMENI OF IlE CASE
Ptill. W. SAUNI)ERS, Administrative Law Judge: Based
on charges and amended charges filed by the Sheet Metal
Workers International Association, Local Union 66, AFL
CIO, affiliated with the Sheet Metal Workers International
Association, AFL-CIO, herein called the Union or Local
66.1 a consolidated complaint was issued on February 22,
1978, against Young's Metal Fabricators and Roofing. Inc.,
IThe charge in Case I1-CA 7307 was filed on November 17. 1977. The
charge in Case I CA 7391 was filed on January 6, 1978, and amended on
January 30, 1978. A second amended charge in Case I I CA 7391 was filed
on February 13. 1978.
241 NLRB No. 152
978
YOUrNG'S METAL. FABRICATORS AND ROOFING, INC.
herein called Metal Fabricators, and Young's Sheet Metal
and Roofing. Inc.. herein called Sheet Metal and Roofing,
or collectively Respondents. alleging violations of Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended. The General Counsel and Respondents filed
briefs in this matter.
Upon the entire record in the case. and from my observa-
tion of the witnesses and their demeanor. I make the follow-
ing:
FINDINGS ()F F(cI
1. IlE BUSINISS ()F RSPONDI)NIS
Metal Fabricators is a North Carolina corporation with
facilities at Asheville, North Carolina, where it is engaged
in providing contractual services for sheet metal and roof-
ing projects. Sheet Metal and Roofing is also a North Caro-
lina corporation with facilities at Asheville, North Carolina,
where it is engaged in providing contractual services for
sheet metal and roofing projects. During the past 12
months, which period is representative of all times material
herein. Respondents received goods and raw materials from
points directly outside the State of North Carolina. valued
in excess of $50.000.
Respondents are now, and have been at all times material
herein, employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. HF I.ABOR OR(iANIZAH ()N INVOI VFl)
The Union is a labor organization within the meaning of
Section 2(6) and (7) of the Act.
11l. THFI UNFAIR lABOR PRA( Tl( S
It is alleged in the consolidated complaint, as amended,
that Respondents are affiliated businesses with ownership,
facilities, tools, equipment, and operators, and constitute a
single integrated business enterprise. It is further alleged
that commencing on May 15. 1977, the Union, as the exclu-
sive bargaining representative, requested Respondents to
bargain: and that since May 25, 1977, Respondents have
refused to bargain collectively; and that on or about Sep-
tember 22. 1977, Respondents refused to sign a written
agreement embodying rates of pay, wages, hours of employ-
ment, or other conditions of employment agreed upon be-
tween Respondents and the Union. It is further alleged that
on or about September 26, 1977, Respondents withdrew
and withheld recognition of the Union and continue to do
so.,
The hearing in this case was held before me on April 5.
1978. However, on or about July 21. 1978, Sheet Metal and
Roofing, through its recently hired counsel, Haynesworth,
Bladwin, and Miles, entered a motion for leave to file a
brief in these proceedings. The above-mentioned counsel
2 All journeymen roofers, kettlemen, foremen, assistant foremen, and ap-
prentices employed by Respondents at their Asheville. North Carolina. fa-
cilities, excluding all other employees, guards. and supervisors, as defined in
the Act. constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act
for Sheet Metal and Roofing points out that the complaint
in the instant case alleges that Sheet Metal and Roofing is
the "alter ego" of the primary Respondent herein, Metal
Fabricators, and that the General Counsel is seeking to en-
force contractual obligations of Metal Fabricators upon
Sheet Metal and Roofing. Therefore, as further indicated in
its motion, the above-mentioned law firm has now been
retained by Sheet Metal and Roofing fr the purpose of
representing it in these matters, and because of their sub-
stantial interest in the outcome of these proceedings, it is
requested that leave be granted for the filing of a brief on
behalf of Sheet Metal and Roofing. The General Counsel
opposes the said motion. At the hearing held before me on
April 5. 1978, attorney Paul J. Smith entered an appearance
on behalf of Sheet Metal and Roofing, and attorney John E.
Shackelford entered an appearance on behalf of Metal Fab-
ricators; both attorneys actively participated in the hearing
and in all the issues involved in this case. Moreover, the
brief filed by attorney Shackelford clearly and specifically
states that it is filed on behalf of both Metal Fabricators
and Sheet Metal and Roofing. As further pointed out, it is
now several months since the hearing in this case, and it has
also been quite some time since the briefs from the General
Counsel. Metal Fabricators, and Sheet Metal and Roofing.
were filed. It is also noted that all parties have the right to
file exceptions to this Decision and to present their argu-
ments in accordance therewith, and, of course, that right
may then be exercised by the newly retained counsel for
Sheet Metal and Roofing. Based on all of the above. I
hereby deny this motion now before me.
It appears that in 1972 the businesses here in question
were split into two enterprises--Emil Young, Sr., became
president of Sheet Metal and Roofing when it was orga-
nized and Emil Dennis Young, Jr., is president of Metal
Fabricators. Prior to the split. Sheet Metal and Roofing had
no union of any kind in its operations, but Metal Fabrica-
tors have two groups represented by Local 66-their sheet
metal workers and their rxoofers. During the periods mate-
rial hereto, the sheet metal people of Metal Fabricators
were under a contract with Local 66 and there is no issue as
to them; but the contract between Metal Fabricators and
Local 66, which covered the roofers in the unit mentioned,
expired on May 15. 1977, and negotiations then followed in
expectations of a new contract for the roofers. Dennis
Young testified and maintains that Metal Fabricators is on
the verge of bankruptcy; that in September 1977, or there-
abouts. he informed his roofing employees that they no
longer worked for Metal Fabricators and that they' were
then employed by Sheet Metal and Roofing: and he fur-
ther testified that he had never agreed with the Union on
signing a new contract for his roofers.
I turn first to the threshold question of whether Sheet
Metal and Roofing is the alter ego of Metal Fabricators,
and whether they constitute a single integrated business en-
terprise.
In the instant case, it is apparent that both corporations
are owned by the Young family-E.D. Young, Sr., and
E.D. Young, Jr., both being incorporators and initial direc-
tors of Metal Fabricators. One year or so ago, E.D. Young,
'The sheet metal section or department of Metal Fabncators continued in
its operations with seven or eight employees, but Dennis Young stated that
Ralph Ellis. the president of Local 66, supervised this operation.
979
DECISIONS OF NATIONAl. IABOR RELATIONS BOARD
Sr. (John), sold a prior business on Broadway Street in
Asheville, North Carolina. and moved his office to 20 Britt
Drive, where he and his son. E.D. Young, Jr. (Dennis). own
the building out of which the employees involved herein
work. Moreover, at the inception of Metal Fabricators.
John Young continued for some time in as>: tance to Metal
Fabricators in securing credit arrangements for them and
was a signatory on the loan granting credit to Metal Fabri-
cators. Sheet Metal and Roofing owns no property, no ma-
chinery, and no equipment. It should also he noted that
after Metal Fabricators declared that they were out of the
roofing business in the late summer or early fall of 1977.
Sheet Metal and Roofing then hired most or all of the roof-
ing employees that had been working for Metal Fabrica-
tors: they continued to do the same work and stayed on the
same jobs with the same equipment. It appears that at this
time Sheet Metal and Roofing was performing work on a
cost-plus-fee basis on jobs which had been formerly con-
tracted by Metal Fabricators, but at the same time Metal
Fabricators remained on these jobs as the designated sub-
contractor. Dennis Young admitted that he was now also a
part-time employee with Sheet Metal and Roofing. and on
occasion he sends or directs the men to their jobs. and that
this is the same type of responsibility he exercised when
these employees worked for Metal Fabricators.
Respondents argue that there is no common ownership
between the two enterprises-that there was only blood re-
lationship between the owners; and that the corporation
John Young, Sr., owned, Sheet Metal and Roofing. was
established I year or so ago in order to carry on the busi-
ness operations as Metal Fabricators was financially unable
to do so and had to close up. It is further argued that the
above aangcllcints made "good economic sense" in that
the work contracted for by Metal Fabricators could then be
carried on without interruption, as Sheet Metal and Roof-
ing agreed to do this work on a cost-plus-fee basis: that the
costs were held down by Metal Fabricators furnishing the
equipment and supervision; and that the work was more
efficiently done by using the same employees.
The existence of an alter ego status between two enter-
prises is determined by their having substantially identical
management, business purpose. operation, equipment, cus-
tomers, supervision, and ownership. Craw/ord Door Sales
Company, Inc.. and Cordes Door Compan . Inc.. 226 N LRB
1144 (1976). Among the principal factors relied upon in
determining whether two enterprises constitute a single em-
ployer are the interrelation of operations, centralized con-
trol of labor relations, common management, common
ownership, or financial control. Sakrete of Northern Califor..
nia, Inc., 137 NLRB 1220 (1962), enfd. 332 F.2d 902 (9th
Cir. 1964), cert. denied 379 U.S. 961 (1965).
As indicated, it is clear that John Young, Sr.. was an
incorporator and had a substantial financial interest in Met-
al Fabricators of which Dennis Young. Jr., is the president.
It is also noted that John Young, formerly in business as
Buncomb's Sheet Metal on Broadway Street in Asheville,
disposed of that business in 1976 or 1977 and then moved
his office to 20 Britt Drive in Asheville whicl- is the address
of Metal Fabricators and is now the address of Sheet Metal
and Roofing as well.
I am in agreement that the circumstances of the instant
case are similar to those of P.A. Hayes, Inc., and P.H. Me-
chanical Corp., 226 NLRB 230 (1976), wherein the Admin-
istrative Law Judge noted the common situs and the con-
tinuing operation by the alter ego using the same
employees, equipment and fulfilling the contracts of the
other. In that case, as in the instant case, there was a claim
of inability to meet financial obligations created by the
union contract. However, the Judge noted, with Board ap-
proval, that a "contractual obligation may not be unilater-
ally erased merely because performance has become un-
profitable or burdensome, or because it was improvidently
entered into." As further indicated, the absence of Dennis
Young. Jr.. from the corporate hierarchy of Sheet Metal
and Roofing is immaterial when viewed in the total context
of this case including his joint ownership of the building on
Britt Drive and his admitted supervision of his roofing em-
ployees now working fo)r Sheet Metal and Roofing, as
aforestated. The totality of the situation must be viewed in
"realistic terms" as in P.A. Haes., Inc., supra, at 236, where
the Administrative L.aw Judge noted the ongoing enterprise
with the same management. clientele, and manner of opera-
tions.
In the instant case, and by the admissions of Respon-
dents, this record reveals that insofar as these two enter-
prises are concerned the employees were the same, the
contracts were the same, the supervision was the same, and
the equipment used was the same. Indeed, Sheet Metal and
Roofing owns no equipment or property. In the final analy-
sis, there can be no question whatsoever that these are joint
and affiliated businesses, that each is the alter ego of the
other: they are, indeed, one single employer and are prop-
erly set forth in the complaint as affiliated businesses with
common ownership, facilities, tools, equipment, and opera-
tors, and they constitute a single integrated business enter-
prise.
I turn now to the issue of whether the failure of Respon-
dents to sign a contract and subsequent withdrawal of rec-
ognition from the Union violated Section 8(a)(5) of the Act.
William Fox, business agent fbr Local 66 during the ini-
tial time in question. credibly testified that sometime during
the week before the contract with the roofers expired on
May 15. 1977. he called President Dennis Young of Metal
Fabricators and made arrangement for negotiations on a
new contract: and on May 19, 1977. Fox presented Dennis
Young with the Union's initial proposals., Fox informed
Young that the roofers wanted a 50-cent-per-hour increase
in wages, and at this time they also discussed the appren-
tices. laborers. and others working for Metal Fabricators.
The Union's proposal was also seeking a 5-cent-an-hour
increase for their pension and welfare funds. Before the
meeting terminated. Fox informed Dennis Young that the
only change in the new proposal, as compared with their
old contract, was the requested increase in wages and the 5-
cent increase for the pension and welfare funds. Young then
told Fox that he would get back in touch with him.
On or about May 23. 1977, Fox and Dennis Young got in
touch with one another, and on this occasion Young pre-
sented a counterproposal. Dennis Young informed the
Union that he could not see giving a 5-cent-per-hour in-
crease on the roofers' pension funds but offered a 10-cent-
per-hour increase on wages effective on the expiration of
I See G.C. Exh. 7.
980
YOUNG'S METAL FABRICATORS AND ROOFING. INC.
the old contract and another 15-cent-per-hour increase in
August 1977 or thereabouts. At a membership meeting on
the evening of May 23 or 24, 1977. the roofers rejected this
first counterproposal by Metal Fabricators.
On the next morning (May 25. 1977). the parties met
again and on this occasion Dennis Young orally proposed
and offered the Union a 15-cent-per-hour increase as of
May 15 and also a 15-cent increase on August I, 1977. or a
30-cent increase over the period of I year. This record also
shows that by this time the roofers had agreed that they
would disregard or drop their original demand for 5-cent-
per-hour increase on pension and welfare funds.
The next day (May 26) business agent Fox presented to
the unit roofers of Metal Fabricators the 30-cent package
proposal made by Dennis Young on the preceding day: the
roofers immediately ratified it, and Fox then notified Den-
nis Young that the roofers had accepted his latest proposal.
Young replied, "I knew they would all the time." Fox then
gave Young the original copy of the contract and requested
that he sign it. Young stated that he wanted to review the
contract and that he would take it home, review it, sign it.
bring it back, and Fox could pick it up at the office the next
morning. There were no indications at this time that Young
would not sign the contract nor did he suggest any changes
in it.
On the following day Fox inquired of Young if he had
reviewed the contract and signed it. Young told Fox that he
had forgotten and left it at home but indicated no disagree-
ment with it. On the following day Fox inquired at the
office of Metal Fabricators whether the contract had been
brought in, but he was advised it had not been seen. It
appears that for weeks thereafter. Fox was constantly ask-
ing Young for the contract, but on about 10 different occa-
sions was told that it had either been forgotten or had been
misplaced.
Fox admitted that over the years he has had numerous
discussions with Dennis Young about financial problems of
Metal Fabricators, and also discussions in respect to monies
to be paid into the Union's pension, welfare, and health
funds which payments have been delinquent for several
years; but he testified that such matters were not brought
out or discussed during their negotiations in May for a new
contract, other than that Metal Fabricators could not af-
ford a 5-cent increase in the pension and welfare funds, as
aforestated.
William Fox left the employment of Local 66 in August
1977 for a new job. On September 9, 1977, William Lytle, a
sheet metal employee at Metal Fabricators, became the
business agent for Local 66 and on the next day asked
Young for the contract here in question and was advised it
was still at home but would be brought in. On a later date
in September, Lytle again asked for the contract, but
Young once more replied it had been left at home.
On September 22, 1977, the unit roofers approached
business agent Lytle and inquired if he had the contract.
When he replied in the negative, they then informed Lytle
that they would not go to work without a signed contract.
Lytle imparted this message to Dennis Young, but Young
then replied that he had not decided whether he would sign
the contract. This is the first time Young had specifically
stated his indecision with signing the contract. Lytle relayed
this message to the roofers, and the roofers then indicated
that without a contract they would put up a picket line.
When Lytle informed Young of this development, he asked
Lytle if all the roofers were in agreement as to their decision
to put up a picket line, and after Lytle had assured him that
they were-Young stated. "I don't believe you." Lytle then
polled the roofers individually about the picket line possi-
bilitv, and all but one were in agreement and in favor of it.
The picket line was then established.
On the afternoon of Friday, September 23, 1977. Lytle
talked with Dennis Young about paychecks for the roofers
and also informed Young that the roofers had indicated to
him that they would be going back to work on Monday
morning. Lytle testified that the roofers had told him that
"word had come from Mr. Young" to the effect that if the
roofers wanted to come back to work on Monday morning.
it would be fine with him, and they would not be fired nor
would they receive any cut in wages.
On Monday morning, September 26, there were no time-
cards in the rack for the sheet metal workers, and as a result
Lytle asked Dennis Young about it. Young informed Lytle
that Metal Fabricators was closed, that he was "through
with the Union," and that he did not want any more to do
with it. However, shortly thereafter Lytle had additional
conversations on the closing of Metal Fabricators and was
then informed by Dennis Young and Ralph Ellis, superin-
tendent for the sheet metal department of Metal Fabrica-
tors and president of Local 66, that there were plans for
keeping the sheet metal shop open.
This record shows that the sheet metal people did, in-
deed, continue to work for Metal Fabricators, but Dennis
Young then told Lytle that he had made "other arrange-
ments" to get his roofing work done.
At a later date, Lytle did get the contract here in question
back from Dennis Young through Ralph Ellis, but it still
was not signed. On December 27, 1977, the Union's re-
gional director sent a letter to John Young, president of
Sheet Metal and Roofing, requesting that as the successor
to Metal Fabricators, he sign the current contract here in
question covering the unit roofers who were now in his em-
ployment and also requesting that he pay back wages and
other benefits owing the roofers including payments to the
national pension, health and welfare, and training funds
(see G.C. Exh. 10). After receiving a copy of the above
letter, Business Agent Lytle contacted John Young and
asked that he sign the contract and assume the back funds
owed by Metal Fabricators.
Dennis Young testified that at the outset of his negotia-
tions with Fox for a new contract, as aforestated, he in-
formed the Union of the difficult financial position of Metal
Fabricators so that he was not financially able to sign a
contract; admitted that the wording of the new contract
was very similar to the prior one but that he never agreed to
sign the new contract; and stated that the discussions rela-
tive to pay increases were not on a "real firm basis" because
he had not agreed to sign the contract. Young further testi-
fied that on the afternoon of September 22, 1977. several of
the roofers or pickets assisted him in completing a job, and
in his opinion they were not on strike. He also stated that
on the next day, September 23, at the end of the day when
the roofers came off the picket line, they told him that they
did not "even know why" they were on strike, that they
were satisfied with working conditions, and then each one
981
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
asked for his job back as they were not represented by the
Union.
In their brief Respondents argue that over the past years
the business of Metal Fabricators had been such that they
could not pay the pension and welfare funds, and to agree
to continue an obligation they could not pay-would be an
agreement to go bankrupt; that in the past, Metal Fabrica-
tors had always signed contracts with the Union, and with
this sort of precedence if Dennis Young had agreed on the
contract he would have signed. It is further argued that
Metal Fabricators was the only employer in the area who
had an organized labor force, and such a situation was
making it difficult for Young to compete.
Final Conclusions
As pointed out, there can be little question that over the
past several years the bargaining on the contract for the
roofers with Metal Fabricators has been an informal proce-
dure in which Fox had talks with Dennis Young, and
thereby indicated the changes which the Union desired to
be incorporated into the new contract: and upon agreement
he would then take the contract to the roofers: and upon
their ratification or approval, Fox would present the con-
tract to Dennis Young for his signature. The credited testi-
mony of business agent Fox clearly established that this is
also what happened in 1977. The Union came with a new
wage proposal and also a 5-cent increase in the pension and
welfare plans. In his testimony Young even admitted that
these were the only changes which the Union desired to be
incorporated into the new contract. A few days later, in
further negotiations. Dennis Young informed Fox that he
was not willing to increase his contributions to the pension
and welfare plans; but no further comments were made
with regard to any inability to make such payments, nor
was there any unwillingness expressed to enter into a con-
tract which called for such payments. Young then gave Fox
his offers with regard to the wage rates which the Union
had requested, and the same were then presented to the
roofers: but they rejected this initial offer, as aforestated.
Fox went back into negotiations, indicating to Young that
the roofers had agreed that the 5-cent increase in the pen-
sion and welfare funds could be dropped, but that the wage
increase being offered by Metal Fabricators was insuffi-
cient. Young then raised his wage offers and the roofers
accepted this counterproposal, and Young was given a copy
of the contract. In accepting the contract, he told Fox that
he would take it home, review it, sign it, and bring it back
to the office. Throughout the entire summer, by Young's
own admission, he never presented another counterpro-
posal, never indicated that there was anything in the con-
tract with which he disagreed, nor did he otherwise advise
the Union that this was a contract he was unwilling to sign.
As pointed out, even if he had done so at this time, he still
would have been altering the terms of a contract to which
he had previously agreed, since no objections or counter-
proposals had been made at the time the Union accepted
the second counteroffer by Metal Fabricators on or about
May 26, 1977. In any event, as further indicated, no coun-
terproposal, alteration, or suggestion of change was made
whatsoever until William Lytle became business agent of
the Union in September 1977, and he then had to deal with
Dennis Young who had been procrastinating his return of
the contract for some 3 months.
On September 22, 1977, it became readily apparent that
Dennis Young was not going to sign the contract for Metal
Fabricators which had been previously agreed to, and the
roofers then decided to set up a picket line. However, later
this same day, Young contacted several of the roofers on
the picket line, and by doing so was able to get them to
work on a job that he termed "critical."' On September 23,
1977, Young again bargained directly with the roofers or
strikers by telling them that he would not take any action
against them because of their going on strike, that he would
not cut their wages or fire them, and that they could come
back to work on Monday morning without a union.
It is clear that the unfair labor practice of refusing to sign
the agreed contract precipitated the picket line and the
strike, and there was additional violative conduct by
Young's direct dealing with the roofers without giving a
representative of the Union an opportunity to be present, as
aforestated.
On Monday morning, September 26, Dennis Young indi-
cated that the shop was closed, and there were the ensuing
discussions regarding the sheet metal workers. Later Young
informed Lytle that he had made arrangements to get his
roofing work done, and from this record it is apparent as to
what those arrangements were. In the meantime, he had
directly solicited employees to break the strike and to re-
turn to work without a contract. The above situation ex-
isted through October 1977, or thereabouts, when the
Union learned that the roofing work was ostensibly being
done by Sheet Metal and Roofing rather than by Metal
Fabricators.
A reading of Young's testimony reveals that he does not
deny making the wage offer which was then accepted by the
Union. Rather, he persists in asserting that he never affir-
matively stated that he would physically sign the contract.
As pointed out, this misses the point-when an employer
and union have agreed on all the terms of a collective-bar-
gaining agreement, as in the case here, then it is a violation
of Section 8(a)(5) of the Act for the employer not to sign the
agreement. On May 26, 1977, Young made counterpropos-
als to the Union's demand, and the Union accepted and
ratified Young's final counterproposal. Moreover, Young
does not dispute that Fox repeatedly sought return of the
signed agreement, nor does he deny the last conversation he
had with Fox in which he acknowledged that he would get
the contract back to Fox.
Metal Fabricators appears to contend that it now has no
obligation to bargain with the Union, and that no obliga-
tion may be imposed upon it because of the roofers' alleged
disaffection with the Union. I am in agreement that such a
contention is contrary to established precedent. In the final
analysis, Metal Fabricators was obliged to sign the contract
on May 26, 1977, and at this time Young certainly was not
aware of any employee dissatisfaction with the Union. In-
deed, there is no objective or credited evidence in this rec-
ord that the Union did not enjoy the full support of its
membership as late as September 22, 1977, when the picket
Dennis Young testified that these employees had informed him that they
were not going to strike, and that they came back to work to finish this job
for him.
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YOUNG'S METAL FABRICATORS AND ROOFING, INC.
line and strike occurred for the purpose of forcing Young to
sign the contract he was obligated to execute on May 26. As
pointed out by the General Counsel-the question of
whether the Union represented a majority of the employees
in the appropriate unit after the date that the wage offer
from Metal Fabricators was accepted by the roofers is ir-
relevant, and especially so under the circumstances here
wherein Young solicited the roofers in order to break the
strike and to return to work without a contract. In fact, the
reliable evidence in this record reveals that the first hint of
dissatisfaction with the Union arose after Young was able
to persuade several employees to break the strike on the
same day the picket line was established. Moreover, one of
Respondents' own witnesses, Gary Mitchell, even agreed on
cross-examination that on Friday afternoon, September 23,
Young told the roofers that he would put them back to
work, not take any action against them because of the
strike, and that he was not going to be recognizing the
Union. This testimony was similar to that of Charlie Crain,
another witness for Respondents, who explained that he
also agreed to go back to work on Monday without a con-
tract and to forget the "union stuff' when Young threat-
ened the roofers with replacement if they did not show up.
Again, this was an adequate showing that Young bargained
directly with the roofers and conditioned their return em-
ployment upon disavowal of the Union.
As previously detailed herein, Metal Fabricators com-
pounded its misdeeds on Monday, September 26. Young
then informed business agent Lytle that he "did not want to
have anything to do with the Union, . . . wanted to be
relieved of the contract, . .. wanted the union to stop orga-
nizing the roofers ... ," and that he had made "other ar-
rangements" to get his roofing work done; but then he fi-
nally agreed to continue to recognize the Union as to the
sheet metal workers but not as to the roofers. By this time
Young had already withdrawn recognition from the Union
as the bargaining representative of the roofers.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondents, de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Metal Fabricators and Sheet Metal and Roofing are
each employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Sheet Metal and Roofing is the alter ego of Metal Fab-
ricators, and they are affiliated businesses that constitute a
single integrated business enterprise.
'The credibility resolutions herein have been derive. for the reasons
given, and from a review of the entire testimonial record and exhibits with
due regard for the logic of probability. the demeanor of the witnesses, se-
quence of events, and the teaching of N.L.R.B. v. Walton Manufacturing
Company, and Loganville Pants Company, 369 U.S. 404 (1962). All testimony
has been reviewed and weighed in the light of the entire record.
3. Local 66 is a labor organization within the meaning of
Section 2(5) of the Act.
4. The unit, as set forth herein, constitutes an appropri-
ate unit for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
5. The Union is now, and at all times material herein has
been, the exclusive bargaining representative of the employ-
ees of Respondents in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
6. In refusing since late May 1977 to bargain collectively
with the Union as the exclusive bargaining representative of
the employees in the aforesaid unit by refusing to sign a
written agreement embodying rates of pay, wages, hours of
employment, and other conditions of employment agreed
upon between Respondents and the Union; by bargaining
directly with employees;7 and by withdrawing and with-
holding recognition of the Union, Respondents have en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (5) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in an un-
fair labor practice in violation of Section 8(a)(1) and (5) of
the Act, I find it necessary to order Respondents to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
In particular, I find it necessary to order Respondents to
recognize the Union, to execute the contract submitted to
them on May 26, 1977, and to apply all the provisions of
the contract retroactively to May 15, 1977, and to further
make whole unit employees as appropriate for failure to do
so in the manner described by the Board in F W. Wool-
worth Company, 90 NLRB 289 (1950), and with interest
thereon computed in the manner and amount prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977),' making
available necessary records for computation purposes, and
posting the notice attached hereto.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in this case, I
hereby issue the following recommended:
ORDER9
The Respondents, Young's Sheet Metal and Roofing,
Inc., and Young's Metal Fabricators and Roofing Inc.,
Asheville, North Carolina, their officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain in good faith with Local 66 as
the representative of its employees in the unit described
This issue was fully litigated at the hearing, and there was even evidence
supporting the violation elicited from Respondents' own witnesses.
'See. generally. Isis Plumbing & Heating Co, 138 NLRB 716 (1962).
'In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein. by refusing to sign the contract submitted to them
and agreed to on May 26, 1977.
(b) Bargaining directly with employees.
(c) Withdrawing and withholding recognition from the
Union.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Recognize Local 66 as the exclusive representative of
the employees in the aforesaid unit with respect to rates of
pay, wages, hours of employment, and other terms and con-
ditions of employment.
(b) Upon request by the aforementioned Union, execute
the contract submitted to them on May 26, 1977, and give
retroactive effect to all the provisions to May 15, 1977.
(c) Jointly and severally make the unit employees of Re-
spondent Metal Fabricators (roofers) whole in the manner
and to the extent prescribed in "The Remedy" section of
this Decision.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and determine the amount of backpay due under
the terms of this Order, if any.
(e) Post at their place of business copies of the attached
notice marked "Appendix."' ° Copies of said notice, on
forms provided by the Regional Director for Region II1,
after being duly signed by Respondents' authorized repre-
sentative, shall be posted immediately upon receipt thereof
and be maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
Respondents have taken to comply herewith.
10 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
984