A.W. Farrell & Son, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 13, 2013

28-CA-085434 (N.L.R.B. May. 13, 2013)

JD(ATL)–12–13
Las Vegas, NV

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

A.W. FARRELL & SON, INC.

and CASE 28-CA-085434

UNITED UNION OF ROOFERS,
WATERPROOFERS, AND ALLIED
WORKERS, LOCAL 162

and

SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION,
AFL-CIO, LOCAL UNION NO. 881
Party-in-Interest

UNITED UNION OF ROOFERS,
WATERPROOFERS, AND ALLIED
WORKERS, LOCAL 162

and CASES 28-CB-080496
28-CB-085690
A.W. FARRELL & SON, INC.

Gregory M. Gleine, Nathan A. Higley and
Larry A. Smith, Esqs.,2
for the Acting General Counsel.
Heidi Nunn-Gilman and Julie A. Pace, Esqs.
(The Cavanaugh Law Firm, PA),
for A.W. Farrell & Son, Inc.
David A. Rosenfeld, Esq. (Weinberg, Roger &
Rosenfeld, P.C.),
for the United Union of Roofers, Waterproofers and
Allied Workers, Local 162.

1 Although the complaint identified the Sheet Metal Workers International Association, AFL-CIO, Local Union
No. 88 (SMW Local 88) as a party-in-interest, they did not participate in the hearing.
2 Smith and Higley litigated the CB cases, while Gleine litigated the CA case.
JD(ATL)–12–13

2

DECISION

Statement of the Case
5
ROBERT A. RINGLER, Administrative Law Judge. On November 29 and 30, 2012,
these consolidated cases were tried in Las Vegas, Nevada. The complaint in Case
28–CA–085434 alleged that A.W. Farrell & Son, Inc. (Farrell) violated Sec. 8(a)(1) and (5) of
the National Labor Relations Act (the Act) by: maintaining unlawful personnel policies; and
unilaterally assigning all bargaining unit work outside of the unit represented by United Union of 10
Roofers, Waterproofers and Allied Workers, Local 162 (Roofers Local 162). The complaint in
Cases 28–CB–080496 and 28–CB–085690 alleged that Roofers Local 162 violated Sec. 8(b)(3)
by failing to provide relevant requested information to, and bargaining in bad faith with, Farrell.

On the entire record, including my observation of the demeanor of the witnesses, and 15
after thoroughly considering the parties’ briefs, I make the following

Findings of Fact

I. Jurisdiction 20

At all material times, Farrell, a corporation, with offices throughout the United States,
including its office and place of business in Las Vegas, Nevada (the facility), has operated a
commercial roofing business. Annually, it performs services valued in excess of $50,000 outside
of Nevada. Based upon the foregoing, the parties admit, and I find, that Farrell is an employer 25
engaged in commerce, within the meaning of Sec. 2(2), (6), and (7). The parties also admit, and
I find, that Roofers Local 162 is a labor organization, within the meaning of Sec. 2(5).

II. Alleged Unfair Labor Practices
30
The majority of the controlling facts are undisputed.3 Farrell, a national operation, has
collective-bargaining relationships with several unions. This dispute arose, when two of its
unions, Roofers Local 162 and SMW Local 88, raised competing claims over its Las Vegas area
roofing work.
35
A. Genesis of Roofers Local 162’s Relationship with Farrell

On June 27, 2007, Farrell entered into a collective-bargaining agreement with Roofers
Local 162, which ran from August 1, 2005 to July 31, 2007 (the Roofers Local 162: 05-07
CBA), and covered the following unit (the Roofers unit): 40

All regular full-time and part-time skilled roofer and damp and waterproof workers,
including apprentices, pre-apprentices, allied workers, other classifications of workers
and any person performing the duties of all safety monitoring of work, excluding

3 Unless otherwise explained, factual findings arise from admissions, joint exhibits, stipulations and
uncontroverted testimony.
JD(ATL)–12–13

3

managers, guards and supervisors . . . .

(JT Exhs. 96, 105, 119). Farrell subsequently entered into a successor agreement with Roofers
Local 162, which ran through July 31, 2010 (the Roofers Local 162: 07-10 CBA). (JT Exh. 89).
These agreements covered Las Vegas and the surrounding vicinity. (Id.). 5

B. Origin of the Sheet Metal Workers’ Relationship with Farrell

Farrell similarly maintained a bargaining relationship with the Sheet Metal Workers
International Association, AFL–CIO–CLC, Local Union No. 112 (SMW Local 112), which is 10
located in upstate New York. Since 1979, it has been a party to consecutive contracts with SMW
Local 112, including a May 1, 2007 to April 30, 2010 contract (the SMW Local 112: 07-10
CBA), which covered this unit (the SMW Local 112 unit):

All employees . . . engaged in . . . metal roofing; and . . . all other work included in the 15
jurisdiction claims of Sheet Metal Workers’ International Association.

(JT Exhs. 111-13).

In a somewhat unique provision, the SMW Local 112: 07-10 CBA obligated Farrell to 20
use SMW Local 112’s workers, or workers from affiliated locals, for roofing jobs outside of
upstate New York. This odd clause (the Travelers Clause) triggered the instant dispute over who
held the right to perform Farrell’s Las Vegas projects. Specifically, the Travelers Clause stated:

When the Employer has any [SMW Local 112 unit work] . . . to be performed outside the 25
area covered by this Agreement and within the area covered by another agreement
with another union affiliated with the Sheet Metal Worker's International
Association [i.e. SMW Local 88], and qualified sheet metal workers are available in
such area, the Employer may send no more than two (2) sheet metal workers per job into
such area to perform any work which the Employer deems necessary, both of whom shall 30
be from the Employer's home jurisdiction. All additional sheet metal workers shall
come from the area in which the work is to be performed . . . .

(JT Exh. 111 at Art. VIII, Sec. 6) (emphasis added). After discovering that Roofers Local 162
was performing roofing work in Las Vegas for Farrell, SMW Local 88, the Las Vegas local 35
affiliated with SMW Local 112, claimed the right to perform this work.

C. SMW’s Local 88 Discovers Farrell’s Las Vegas Operations:
ULP Litigation, Grievance and Settlement
40
In June 2009, SMW Local 88 learned that Roofers Local 162 was performing roofing
work for Farrell in Las Vegas, which they considered theirs under the Travelers Clause. SMW
Local 88 responded to this dilemma with a two-pronged attack: it filed an information request
about Farrell’s Las Vegas jobs; as well as a grievance alleging a breach of the Travelers Clause.
(JT Exhs. 111–113). Farrell denied the grievance, which resulted in its elevation under the 45
grievance procedure, and rejected the information request, which resulted in litigation. (Id.).

JD(ATL)–12–13

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1. Unfair Labor Practice Litigation

Farrell lost this litigation. On November 18, 2010, Administrative Law Judge (ALJ)
Parke issued a Decision holding that Farrell must provide the requested information to SMW 5
Local 88, in order to permit it to pursue its Travelers Clause grievance (Decision I).
(JT Exh. 113).

2. Grievance
10
Farrell was equally unsuccessful in defending the Travelers Clause grievance, which was
sustained by the Local Joint Adjustment Board, which awarded damages of $514,933.46.4
(JT Exh. 115). Farrell appealed this award to the National Joint Adjustment Board. (Id.).

3. Global Settlement 15

In February 2011, before filing Exceptions to Decision I, Farrell and SMW Local 88
settled the Decision I litigation and Travelers Clause grievance. (JT Exh. 115). The settlement
provided, inter alia, that:
20
• Farrell would recognize SMW Local 88 as the exclusive collective bargaining
representative of its Las Vegas workers performing roofing work and enter into a labor
agreement; and
• SMW Local 88 would withdraw its unfair labor practice charge and grievance.
25
(JT Exh. 115). On March 16, 2011, the Board remanded the case to the Regional Director, in
order to effectuate compliance with the settlement.5 (JT. Exh. 114).

4. SMW Local 88’s New Collective-Bargaining Agreement
30
In April 2011, Farrell and SMW Local 88 signed a new labor contract (the SMW Local
88 CBA), which wholly eviscerated the Roofers unit. (JT Exh. 90). This new unit (the SMW
Local 88 unit) covered:

[A]ll skilled roofers and damp and waterproof workers, including apprentices, pre-35
apprentices, allied workers, other classifications of workers and any person performing
the duties of all safety monitoring of work performed within the jurisdiction of this
Article [in the State of Nevada]. The work jurisdiction of the Union shall be all roofing
and waterproofing systems . . . .
40
(Id.; JT Exh. 61).

4 Although the exact date of the award cannot be gleaned from the record, it occurred prior to February 2011.
5 On May 3, 2011, SMW Local 88 withdrew the underlying charge. (JT Exh. 116). On June 3, 2011, Region 28
issued an Order Approving Withdrawal of Charge and Closing Case. (Id.).
JD(ATL)–12–13

5

D. Expiration of Roofers Local 162: 07-10 CBA and Succeeding Events

1. Failed Negotiations

Prior to the July 31, 2010 expiration of the Roofers Local 162: 07-10 CBA (i.e. before 5
Farrell’s settlement with SMW Local 88), Roofers Local 162 met with Farrell to negotiate a
successor agreement.6 (JT Exhs. 96, 101, 119). On August 17, 2010, bargaining yielded an
agreement, which ran from September 1, 2010 to July 31, 2012 (the Roofers Local 162:10-12
CBA). (Id.). Farrell, however, subsequently refused to sign the contract. (Id.). Farrell’s
recalcitrance concerning the execution of the contract occurred after SMW Local 88 began its 10
campaign to seize Farrell’s Las Vegas area work under the Travelers Clause.

2. Termination of Relationship

On April 28, 2011 (i.e. shortly after Farrell’s execution of the SMW Local 88 CBA 15
covering its Las Vegas roofing work), Farrell brusquely divorced Roofers Local 162, and
announced that it was ending their relationship pursuant to Sec. 8(f), effective April 30, 2011.
(JT Exh. 1). In vain, Roofers Local 162 filed several unanswered information requests.
(JT Exhs. 96, 119). On the same date, SMW Local 88 delivered the coup de grâce in its battle to
seize Farrell’s Las Vegas area work, and faxed six member resignation letters to Roofers Local 20
162, which were signed by the same employees who previously comprised the Roofers unit.7
(JT Exh. 100). Farrell simultaneously ceased paying dues to the Southern Nevada Roofers
J.A.T.C. Apprenticeship Committee, which were required under the expired Roofers Local 162:
07-10 CBA. (JT Exhs. 124-25).
25
3. Litigation

Farrell’s ongoing refusal to sign the Roofers Local 162: 10-12 CBA, withdrawal of
recognition, and unwillingness to supply information prompted another round of litigation.
(JT Exhs. 4–5, 96, 119). In a Decision dated December 28, 2011 (Decision II), ALJ Parke held, 30
inter alia, that: Roofers Local 162 has been the 9(a) representative of the Roofers unit since
2007;8 and Farrell unlawfully withdrew recognition from Roofers Local 162.9 (JT. Exh. 96).
Roofers Local 162 filed Exceptions to Decision II,10 which are pending before the Board.11
Ironically, Decision II, particularly its conclusion that Roofers Local 162 was the 9(a)
representative, followed Farrell locking into the SMW Local 88 CBA, which placed it in the 35

6 Roofers Local 162 simultaneously bargained with Farrell and several other Las Vegas roofing contractors.
7 The letters stated, “I hereby resign my membership in Roofers Local 162 effective immediately.”
8 ALJ Parke held that the recognition clause in the Roofers Local 162: 07-10 CBA created a 9(a) bargaining
relationship. See (JT Exhs. 89 at 1 (Article I, Recognition), 96 at 6 (relying upon Saylor’s, Inc.,
338 NLRB 330, 334 (2002) (holding that a 9(a) relationship may be established by a contractual provision
stating that the employer recognized the union as the 9(a) representative of bargaining unit employees, by virtue
of its demonstration of majority support)).
9 ALJ Parke also held that Farrell legitimately refused to sign the Roofers Local 162: 10-12 CBA.
10 In its Exceptions, Roofers Local 162 primarily asserted that Farrell and Roofers Local 162 reached an
agreement in July 2010, and that ALJ Parke erred when she held that Farrell lawfully refused to sign the
Roofers Local 162: 10-12 CBA.
11 Notably, neither Farrell nor the Acting General Counsel filed any Exceptions to Decision II.
JD(ATL)–12–13

6

unenviable position of being contractually obligated to two distinct labor organizations.12

4. Bargaining

On January 4, 2012, Roofers Local 162 sent the following letter to Farrell: 5

Roofers Local 162 demands that the company comply with the decision of the
Administrative Law Judge. This includes providing the information and signing the
document which was proffered to Farrell.
10
The Union demands negotiations and requests that you provide dates when your client
will be available for such negotiations.

(JT Exh. 13). On January 13, 2012, Farrell responded:
15
Farrell is prepared to accept Judge Parke's recommended order in its totality and,
therefore, will not file exceptions, but would proceed to commence bargaining with
Roofers Local 162. Does Local 162 also accept the Judge’s decision? Will Local 162
file exceptions? Whether bargaining makes any sense depends on Local 162's answer to
these questions . . . . 20

(JT Exh. 14). On January 27, 2012, Roofers Local 162 clarified its position and confirmed that it
still believed that Farrell was obligated to sign the Roofers Local 162: 10-12 CBA. (JT Exh. 15).

On February 1 and 20, 2012, Farrell advised Roofers Local 162 that it desired to bargain 25
and proposed various dates. (JT Exhs. 16–17). Although Roofers Local 162 initially committed
to meet on February 22, it later cancelled. (JT Exhs. 18–23). The parties, thereafter, haggled
over scheduling issues for the next several months, with Roofers Local 162 insisting that Farrell
sign the Roofers Local 162: 10-12 CBA, before it would begin bargaining. See (JT. Exhs. 27,
33–34, 38–40, 46–47). 30

On July 14, 2012, Farrell and Roofers Local 162 finally met. (JT Exh. 62). President
Thomas Nielson, Business Manager Modesto Gaxiola and Attorney David Rosenfeld represented
Roofers Local 162, while Attorney Julie Pace and her legal assistant represented Farrell. This
session produced little, if any, progress, and was marred by profanity, accusations and ad 35
hominem attacks. The parties subsequently failed to schedule additional sessions, with each
blaming the other for the logjam. (JT Exhs. 65–67, 69, 79, 80–84, 87).

5. Farrell’s Ongoing Failure to Recognize Roofers Local 162
40
Since Farrell’s initial termination of its bargaining relationship with Roofers Local 162 in
April 2011, it has continuously failed to apply the terms of the expired Roofers Local 162: 07-10
CBA to the Roofers unit, or otherwise recognize Roofers Local 162 as a 9(a) representative.

12 Although hindsight is 20-20, it remains unclear why Farrell never filed an unfair labor practice charge alleging
that SMW Local 88’s attempt to enforce the Travelers Clause in Las Vegas was unlawful, given that this action
was clearly designed to circumnavigate Roofers Local 162’s superior Sec. 9(a) status.
JD(ATL)–12–13

7

Farrell has, instead, continuously applied the SMW Local 88 CBA to its roofing employees.13
See (JT Exh. 61). By way of example, the following chart describes Farrell’s roofing employees,
who were previously represented by Roofers Local 162, and have, since May 2011, been
represented by SMW Local 88:
5
Employee
Name
Hire
Date
Term.
Date
Resignation from
Roofers Local 162
First Appearance on Sheet Metal
Workers Local 88 Fringe Benefit
Remittance Report
Camacho 9/9/10 8/20/12 May 2011 June 2011
Cruz-Garcia 9/13/10 N/A May 2011 June 2011
Madrid-Pinon 9/11/10 N/A May 2011 June 2011
Rodriguez 9/9/10 N/A May 2011 June 2011
Ruiz 6/25/07 N/A May 2011 June 2011
Sida 6/25/07 N/A May 2011 June 2011
Bass 6/11/12 N/A N/A No record
Guitierrez-Quinones 6/11/12 N/A N/A No record

(JT Exh. 94–95, 100, 117, 120, 126).

E. Farrell’s Information Requests
10
On August 10, 2011, Farrell’s Attorney Pace, sent this request to Roofers Local 162:

With respect to each plan [i.e. National Roofers Union Health and Welfare Fund (the
Health Fund), National Roofing Industry Pension Fund (the Pension Fund), Roofers &
Waterproofers Research & Education Joint Trust Fund (the Research Fund), and the 15
Southern Nevada Roofers Joint Apprenticeship Training Committee (the Apprentice
Fund)] to which contributions are required under the expired Local 162 agreement, please
provide copies of the following documents:

1) the latest updated summary plan description; 20
2) the full plan document, with all amendments;
3) the latest annual report (Form 5500), together with all schedules, attachments and
exhibits;
4) any and all trust agreement(s);
5) any and all administration contract(s); 25
6) any and all actuary, accountant, attorney or consultant contract(s), letter(s) of
engagement, retainer agreement(s) or other forms of contracts to provide such
professional services to the plan;
7) any and all agreements with providers of professional medical or other health
care services, or with representatives or organizations of such providers, or with 30
arrangers for the provision of health care services; and
8) any and all other contracts or instruments under which the plan is established or
operated.

35

13 Julie Pace, Farrell’s attorney, testified that Roofers Local 162 has not represented Farrell’s workers since SMW
Local obtained representational rights in May 2011. Gaxiola and Rosenfeld corroborated this point.
JD(ATL)–12–13

8

(JT Exh. 6). The following chart summarizes the parties’ resulting communications:

Date From To Description Exhibits
Aug. 25, 2011 Farrell Roofers
Local 162
2nd request for information (JT Exh. 7)
Aug. 31, 2011 Roofers
Local 162
Farrell Commitment to ask “Trust Funds” for information (JT Exh. 8)
Sep. 14, 2011 Farrell Roofers
Local 162
3rd request for information (JT Exh. 9)
Sep. 29, 2011 Roofers
Local 162
Farrell 2nd commitment to ask “Trust Funds” for information (JT Exh. 10)
Jan. 13, 2012 Farrell Roofers
Local 162
4th request for information (JT Exh. 14)
Jan. 27, 2012 Roofers
Local 162
Farrell Enclosed summary plan description for the Health Fund (JT Exh. 15)
Feb. 21, 2012 Farrell Roofers
Local 162
5th request for information, which pointed out that
Roofers Local 162 provided items 1 and 2, but omitted
items 3 to 8 for the Health Fund, and neglected to supply
everything else
(JT Exh. 22)

Feb. 24, 2012 Roofers
Local 162
Farrell 3rd commitment to ask “Trust Funds” for remaining
information
(JT Exh. 25)
Feb. 28, 2012 Farrell Roofers
Local 162
6th request for unsupplied information (JT Exh. 26)
Jun. 15, 2012 Roofers
Local 162
Farrell 4th commitment to ask “Trust Funds” for remaining
information, and suggestion to obtain Form 5500's online
(JT Exh. 48)

June 17, 2012 Roofers
Local 162
Farrell E-mail enclosing Pension Fund Trust Agreement, i.e.
Items 1 and 2
(JT Exh. 49)
June 19, 2012 Roofers
Local 162
Farrell E-mail enclosing Health Fund Trust Agreement, i.e.
Items 1 and 2
(JT Exh. 51)
June 25, 2012 Farrell Roofers
Local 162
7th request for information, which stated that it needed 6
of 8 items for Health and Pension Funds, and lacked all
Research and Apprentice Fund documents
(JT Exh. 52)
July 10, 2012 Roofers
Local 162
Farrell 5th commitment to ask “Trust Funds” for missing
information
(JT Exhs.
58-59)
July 27, 2012 Roofers
Local 162
Farrell Stating that Pension Fund would not provide additional
information
(JT Exh. 63)
Aug. 8, 2012 Roofers
Local 162
Farrell Enclosing Form 5500 for Health Fund, i.e. item 3 (JT Exh. 71)

Aug. 22, 2012 Roofers
Local 162
Farrell Stating that Health Fund would only release the Trust
document, Form 5500, and Summary Plan
(JT Exh. 74)
Various dates Farrell Roofers
Local 162
Ongoing objections to responses (JT Exhs.
77, 88)
Sep. 24, 2012 Roofers
Local 162
Farrell Enclosing Agreement and Declaration of Trust for
Apprentice Fund
(JT Exh. 86)

F. Employee Code of Conduct
5
Farrell maintains an Employee Code of Conduct (the Employee Code). (JT Exh. 93).
Since January 16, 2012, it has applied the Employee Code in these offices: Dunkirk and Elmira,
New York; Erie, Pennsylvania; and Cleveland and Cincinnati, Ohio. (JT Exhs. 73, 105).14

14 Although Farrell initially denied that it maintained the policies at these locations, it amended its Answer at the
hearing and admitted that the policies were maintained at these sites in violation of Sec. 8(a)(1). (Tr. 146–49).
JD(ATL)–12–13

9

1. Disciplinary Procedures

Under Disciplinary Procedures, the Employee Code provides:
5
Types of behavior and conduct that . . . would lead to disciplinary action up to and
including termination of employment without prior warning at the sole discretion of the
Company include, but are not limited to the following:

• . . . Solicitation/Distribution 10
• . . . Conduct deemed inappropriate by the Company . . . .

(JT Exh. 93) (emphasis added).

2. Electronic Communication 15

Under Electronic Communication, the Employee Code states:

Acceptable Use Guideline
20
This guideline is designed to assist employees in the effective, appropriate use of
electronic communications in conducting company business . . . .

Communications tools provided by the Company include, but are not limited to:
telephone, voice mail, E-mail, internet, intranet and fax . . . . 25

Failure to follow this guideline can lead to disciplinary actions up to and including
dismissal.

Inappropriate Uses of Electronic Communication 30

1. Inappropriate use includes, but is not limited to: . . .
• Revealing company private, confidential, copyrighted or employee
information in external communication without the required approval . . . .
35
(JT Exh. 93) (emphasis added).

III. Analysis

A. Sec. 8(a)(1) Allegations15 40

The contested Employee Code policies were unlawful. The Board has found that:

[T]he appropriate inquiry is whether the rule would reasonably tend to chill employees in
the exercise of their Section 7 rights. If the rule explicitly restricts Section 7 rights, it is 45
unlawful. If it does not, “the violation is dependent upon a showing of one of the

15 These allegations are listed under pars. 5 and 7 of the complaint in Case 28–-CA–085434. Farrell, as noted,
admitted that these policies were unlawful. (Tr. 146–48.)
JD(ATL)–12–13

10

following: (1) employees would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to union activity; or (3) the rule has
been applied to restrict the exercise of Section 7 rights.”

Costco Wholesale Corp., 358 NLRB No. 106, slip op. at 2 (2012) (citations omitted). 5

1. Disciplinary Procedures

The Disciplinary Procedures policy is unlawful in two ways. First, it illegally banned
employees from engaging in “conduct deemed inappropriate by the Company.” See Costco 10
Wholesale Corp., supra, slip op. at 2 (“statements posted electronically . . . that damage the
Company.”); Knauz BMW, 358 NLRB No. 164 (2012) (“courtesy rule,” which prohibited
“disrespectful” conduct and “language which injures the image or reputation of the
Dealership.”).16 Second, it improperly prohibited “solicitation/distribution.” See
TeleTech Holdings, Inc., 333 NLRB 402, 403 ( 2001) (citations omitted) (“[A] no-distribution 15
rule which is not restricted to working time and to work areas is overly broad and presumptively
unlawful [because such a rule] . . . . tends to restrain and interfere with employees' rights under
the Act, even if the rule is not enforced.” ).17

2. Electronic Communication 20

The Electronic Communication policy was illegitimate because it bars employees from
“[r]evealing company private, confidential, copyrighted or employee information in external
communication without the required approval.” See Trump Marina Associates, 355 NLRB 585
(2010). The Board has held that preauthorization requirements unduly interfere with employees’ 25
Sec. 7 rights to “improve terms and conditions of employment” by seeking assistance “outside
the immediate employee-employer relationship.” See Eastex, Inc., v. NLRB, 437 U.S. 556, 565–
566, 569–570 (1978); Valley Hospital Medical Center, 351 NLRB 1250, 1252 (2007);
Handicabs, Inc., 318 NLRB 890, 896 (1995), enfd., 95 F.3d 681 (8th Cir. 1996).
30
B. Sec. 8(a)(5) Allegations18

The Sec. 8(a)(5) allegation cannot be sustained on the basis of collateral estoppel. The
Acting General Counsel has alleged that Farrell has wholly repudiated its collective-bargaining
relationship with Roofers Local 162, in violation of Sec. 8(a)(5) by: assigning all Roofers unit 35
work to employees working under the SMW Local 88 CBA; and continuously failing to adhere
to the Roofers Local 162: 07-10 CBA.

16 See also Southern Maryland Hospital, 293 NLRB 1209, 1222 (1989), enfd. in relevant part 916 F.2d 932, 940
(4th Cir. 1990) (“derogatory attacks on . . . hospital representative[s]”); Claremont Resort & Spa, 344 NLRB
832 (2005) (“negative conversations about associates and/or managers”).
17 See also Laidlaw Transit, Inc., 315 NLRB 79, 82 (1994) (rule banning union activities during “Company time”
are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and
other non-working hours at the enterprise); Hyundai America Shipping Agency, 357 NLRB No. 80 (2011) (rule
threatening discipline for “[p]erforming activities other than Company work during working hours.”).
18 These allegations are listed under pars. 6 and 8 of the complaint in Case 28–-CA–085434.
JD(ATL)–12–13

11

In her opening, Farrell’s attorney raised collateral estoppel and contended that:19

[Roofers Local 162] . . . is trying to get a second bite at the apple . . . . [They had a]
hearing with Judge Parke on the second . . . case [i.e. Decision II]. It’s the same Judge
who heard everything and we need to read all that consistently. . . . [They’re ] trying to 5
have the court . . . revisit some of the decisions she made.

(Tr. 128-29).

Under the collateral estoppel doctrine, “once an issue is actually and necessarily 10
determined by a court of competent jurisdiction, that determination is conclusive in subsequent
suits based on a different cause of action involving a party to the prior litigation.” Big D Service
Co., 293 NLRB 322, 323 (1989) citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 fn. 5
(1979) and Marlene Industries Corp. v. NLRB, 712 F.2d 1011, 1015-1016 (6th Cir. 1983).20 An
issue is “necessarily determined,” if its adjudication was necessary to support the judgment 15
entered in the prior proceeding. Marlene Industries, supra, 712 F.2d at 1015.

Collateral estoppel is appropriate herein for several reasons.21 First, the identical parties
litigated Decision II. Second, they collectively placed the entire record connected to Decision II
in the instant record. Finally, ALJ Parke made a conclusive and final determination in Decision 20
II on the very same issue, which is present herein.22 Specifically, in Decision II, ALJ Parke held,
inter alia, that: since 2007, Roofers Local 162 has been the 9(a) collective bargaining
representative of the Roofers unit; and Farrell has been under a continuing obligation, which
survived the expiration of the Roofers Local 162: 07-10 CBA to apply the terms of this contract.
In conferring 9(a) status upon Roofers Local 162,23 ALJ Parke very clearly precluded Farrell 25
from: executing Sec. 8(f) agreements with other unions (i.e., SMW Local 88), which duplicated
the work performed by the Roofers unit; or wholly repudiating the Roofers Local 162: 07-10
CBA, under the guise that it had the retained right to sign a Sec. 8(f) agreement with another
union (i.e. SMW Local 88) covering the same work.24 Simply put, the instant complaint

19 Collateral estoppel concerning Decision II was also raised by the other litigants. First, Roofers Local 162
asserted that Farrell was collaterally estopped from taking any actions contrary to Decision II because, “they
didn’t take any exception to what the Judge did . . . . [t]hey’re stuck with . . . an ALJ’s Decision, which will
become a Board Order.” (Tr. 44–45). Second, the parties collectively supported collateral estoppel by
submitting Decision II, the underlying administrative record and Exceptions as joint exhibits herein.
20 See also Sabine Towing & Transportation Co., 263 NLRB 114, 120 (1982) (collateral estoppel bars relitigation
of issues previously decided against the General Counsel).
21 Counsel for the Acting General Counsel’s request for an adverse inference under Bannon Mills, 146 NLRB 611
(1964) is, consequently, denied.
22 Farrell, as noted, did not file Exceptions to Decision II.
23 Sec. 9(a) of the Act provides, that “[r]epresentatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, or other conditions of employment.” (emphasis added).
24 See VFL Technology Corp., 329 NLRB 458, 459 (1999) (once a union obtains 9(a) status during the term of an
8(f) agreement, the relationship becomes a 9(a) relationship and the employer is bound by 9(a)’s post-expiration
bargaining obligations); Freeman Decorating Co., 336 NLRB 1 ( 2001), enf. denied on other grounds 334 F.3d
27 (D.C. Cir. 2003) (employer violates Sec. 8(a)(5) by recognizing another union under Sec. 8(f), when it was
still obligated to bargain with its existing 9(a) bargaining representative); see also Gem Management Co., 339
NLRB 489, 500–501 (2003), enfd.107 Fed.Appx. 576 (6th Cir. 2004) (employer violates Sec. 8(a)(5) by failing
JD(ATL)–12–13

12

allegation covers the same all-inclusive, uninterrupted refusal by Farrell to recognize Roofers
Local 162 as the Sec. 9(a) representative,25 and ongoing wholesale repudiation of the Roofers
Local 162: 07-10 CBA that was litigated in Decision II.26 This conduct commenced with
Farrell’s unlawful withdrawal of recognition on April 28, 2001, and has, to date, remained
unchanged. This continuous pattern was adjudicated in Decision II and will be fully remedied by 5
the Board, once it considers Roofers Local 162’s Exceptions and issues an Order.27 The Board’s
remedy will necessarily encompass the remedies sought herein. I find, as a result, that the
Acting General Counsel cannot raise the same total contract repudiation allegations that were
litigated before ALJ Parke in Decision II in this case under the cloak of analogously-worded
pleadings,28 and that judicial economy favors collateral estoppel.29 10

C. Sec. 8(b)(3) Allegations30

1. Information Requests
15
Roofers Local 162 violated Sec. 8(b)(3) of the Act, when it failed to furnish certain
information to Farrell, and unreasonably delayed its provision of other responsive documents. A
labor organization's statutory duty to furnish information is “commensurate with and parallel to
an employer's obligation to furnish it to a union pursuant to Sec. 8(a)(1) and (5) of the Act.”
20

to apply the terms and conditions of an existing 8(f) agreement to a jobsite that fell within the agreement's
jurisdiction, giving another union the opportunity to sign up members at that jobsite, and paying benefits into
that union's benefit funds); Bell Energy Management Corp., 291 NLRB 168, 169 fn.8 (1988); Ana Colon, Inc.,
266 NLRB 611, 612–613 (1983).
25 See also A & L Underground, 302 NLRB 467, 469 (1991) (holding that, where, “the Respondent sent a letter
that severed the bargaining relationship in one stroke, . . . its failure to apply the contract thereafter is little more
than the effect or result of that action.”). I conclude, as a result, that the April 28, 2011 withdrawal of
recognition allegation that was adjudicated in Decision II necessarily encompassed the unlawful subcontracting
allegation at issue herein.
26 This case would present a novel issue unsuitable for collateral estoppel, if there had been a temporal lapse in,
and subsequent resumption of, Farrell’s unlawful conduct (e.g. it recognized Roofers Local 162 as the 9(a)
representative, restored their work, complied with the expired Roofers Local 162: 07-10 CBA, and, thereafter,
unilaterally signed the SMW Local 88 CBA). This case might similarly present a novel issue unsuitable for
collateral estoppel, if Roofers Local 162 filed a timely charge alleging that Farrell’s conduct regarding SMW
Local 88 violated Sec. 8(a)(2).
27 Roofers Local 162 is collaterally estopped from raising that Farrell reached an agreement with it in July 2010
(i.e. Roofers Local 162: 10-12 CBA). This matter is squarely before the Board in its Exceptions to Decision II.
28 In is also noteworthy that, even in the absence of the parties raising collateral estoppel as an affirmative defense,
it would remain appropriate to apply this doctrine sua sponte under the current circumstances. See U.S. v. Sioux
Nation of Indians, 448 U.S. 371, 432 (1980)(“While res judicata is a defense which can be waived, . . . if a
court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte,
even though the defense has not been raised.”); In re Medomak, 922 F.2d 895, 904 (1st Cir. 1990) (“Even if
appellees waived res judicata as an affirmative defense, a court on notice that it has previously decided an issue
may dismiss the action sua sponte, consistent with the res judicata policy of avoiding judicial waste.”);
Sahlahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) (“The failure of a defendant to raise res judicata in
answer does not deprive a court of the power to dismiss a claim on that ground.”).
29 Collateral estoppel saves the Board from the unnecessary exercise of synthesizing potentially conflicting ALJ
decisions on identical matters. Moreover, although there might be a few more facts available in this case due to
the passage of time, such facts are not controlling.
30 These allegations are listed under pars. 6 and 7 of the complaint in Cases 28–CB-080496 and 28–CB–085690.
JD(ATL)–12–13

13

Teamsters Local 500 (Acme Markets), 340 NLRB 251, 252 (2003). Unions must, therefore,
provide information, which is relevant to the administration of a collective-bargaining
agreement. See Washington Beef, Inc., 328 NLRB 612, 617–618 (1999). Relevance is gauged
under a liberal “discovery-type standard.” NLRB v. Acme Industrial Co., 385 U.S. 432, 437
(1967). Information about the terms and conditions of employment of the bargaining unit is 5
presumptively relevant and must be provided upon request. Bridge, Structural and Ornamental
Iron Workers Local 207 (Steel Erecting Contractors), 310 NLRB 87, 91 (1993) (and cases cited
therein at fn. 8). In addition, the unreasonable delay in supplying information “is as much of a
violation of . . . the Act as a refusal to furnish the information at all.” Woodland Clinic, 331
NLRB 735, 736 (2000) citing Valley Inventory Service, 295 NLRB 1163, 1166 (1989). Month-10
plus delays, which are unaccompanied by legitimate excuse, are generally unlawful.31

Roofers Local 162 violated Sec. 8(b)(3), when it failed to provide information requested
by Farrell concerning its Health Fund, Pension Fund, Research Fund and Apprentice Fund
(collectively called the Funds), and unreasonably delayed providing other connected documents. 15
On August 10, 2011, Farrell requested several categories of information connected to the Funds.
Roofers Local 162, without explanation, delayed by 5 to 13 months in fulfilling certain portions
of the request, and has, to date, neglected to fulfill the remaining portions. The requested
information was clearly relevant, inasmuch as it relates to the Roofers unit’s terms and
conditions of employment. Although Roofers Local 162 has averred that the Funds would not 20
provide certain information, it failed to: establish what efforts, if any, it made to secure such
information beyond submitting a letter; show that it had no way to compel the Funds to produce
the information; or demonstrate that it was unable to obtain the documents in an alternative
manner. I find, as a result, that Roofers Local 162 violated Sec. 8(b)(3) in its handling of the
information request. 25

2. Failure to Bargain

Roofers Local 162’s bargaining conduct did not, however, violate Sec. 8(b)(3). Sec. 8(d)
defines bargaining collectively as: 30

[T]he performance of the mutual obligation of the employer and the representative of the
employees to meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment or the negotiation of an agreement
. . . . 35

A union, consequently, violates Sec. 8(b)(3) by failing and refusing to meet with
reasonable promptness and frequency with a company’s bargaining representative. See People
Care, Inc., 327 NLRB 814, 825 (1999); AAA Motor Lines, Inc., 215 NLRB 789, 791 (1974). In
assessing whether a party has failed to bargain in good faith, the Board examines the totality of 40
their conduct, both at, and away from, the bargaining table. Public Service Co. of Oklahoma
(PSO), 334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003); Overnite Transportation

31 See, e.g., Pan American Grain, 343 NLRB 318 (2004), enfd. in relevant part, 432 F. 3d 69 (1st Cir. 2005) (3-
month delay); Bundy Corp., 292 NLRB 671, 672 (1989) (2-month delay); Woodland Clinic, supra at 737 (7-
week delay); Quality Engineered Products, 267 NLRB 593, 598 (1983) (6-week delay); International Credit
Service, 240 NLRB 715, 718 (1979) (6-week delay); Pennco Inc., 212 NLRB 677, 678 (1974) (1-month delay).
JD(ATL)–12–13

14

Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d 815 (7th Cir. 1991).32

Under certain circumstances, however, one bargaining partner’s misconduct during
negotiations might suspend the other’s bargaining obligations, or excuse what otherwise might
be an unfair labor practice. See, e.g., Times Publishing Co., 72 NLRB 676, 683 (1947) (union's 5
bad faith precludes testing employer's good faith); Continental Nut, 195 NLRB 841 (1972)
(same); Phelps Dodge Copper Products, 101 NLRB 360 (1952) (union's unprotected slowdown
suspends bargaining obligation until unprotected conduct ends); Arundel Corp., 210 NLRB 525
(1974) (union's strike contrary to no-strike extension of contract privileges company’s refusal to
bargain); Young & Hay Transportation. Co., 214 NLRB 252 (1974), affd. 522 F.2d 562 (8th Cir. 10
1975) (union's intractable insistence on changing recognized bargaining unit privileged unilateral
changes); Louisiana Dock Co., 293 NLRB 233, 235 (1989), affd. in pertinent part, 909 F.2d 281
(7th Cir. 1990) (same); New Brunswick General Sheet Metal Works, 326 NLRB 915 ( 1998)
(union's improper exclusion of employer's attorney from negotiations privileged unilateral
changes proposed during bargaining). 15

Although Roofers Local 162 would have generally violated the Act, when it
unreasonably delayed scheduling bargaining sessions with Farrell, cancelled scheduled meetings,
insisted that Farrell sign the Roofers Local 162: 10-12 CBA before it might bargain, verbally
abused Farrell’s representative at a bargaining session, and failed to arrange a follow-up session, 20
this misconduct was excused by Farrell’s ongoing derogation of its threshold duty to recognize
Roofers Local 162 as the 9(a) representative of the Roofers unit. Farrell’s commitment to follow
Decision II and bargain in good faith with Roofers Local 162 was a sham, which has yielded the
same pattern of unlawful conduct at issue in Decision II. Farrell remains unwilling to concede
that Sec. 9(a) status forbids its ongoing application of the SMW Local 88 CBA to the Roofers 25
unit. Thus, until such time as Farrell actually recognizes Roofer Local 162 as the 9(a)
representative, ceases its wholesale evisceration of the Roofers unit and applies the Roofers
Local 162: 07-10 CBA to the Roofers unit, Roofers Local 162’s failure to meet in good faith at
the bargaining table is highly rational, efficient and excusable. Simply put, what should Roofers
Local 162 negotiate over, while SMW Local 88 continues to perform their work? 30

CONCLUSIONS OF LAW

1. Farrell is an employer engaged in commerce within the meaning of Sec. 2(2), (6),
and (7) of the Act. 35

2. Roofers Local 162 is a labor organization within the meaning of Sec. 2(5) of the
Act.

3. Roofers Local 162 is, and, at all material times, was the exclusive Sec. 9(a) 40

32 See, e.g., Mid-Continent Concrete, supra, at 260–261 (refusal to provide explanations for proposals and
orchestrated delay tactics were evidence of bad-faith bargaining); People Care, Inc., 327 NLRB 814, 825
(1999) (respondent's unreasonable refusal to accede to union's requests for more frequent meetings was
evidence of bad-faith bargaining) (citing Calex Corp., 322 NLRB 977 (1997), enfd. 144 F.3d 904 (6th
Cir.1998)); see also Lower Bucks Cooling & Heating, 316 NLRB 16, 22 (1995) (finding, inter alia, respondent's
canceling of bargaining sessions, limiting the duration of meetings, and delaying the scheduling of future
meetings indicative of bad-faith bargaining).
JD(ATL)–12–13

15

bargaining representative of the following appropriate unit at Farrell’s Las Vegas, Nevada
facility:

All regular full-time and part-time skilled roofer and damp and waterproof workers,
including apprentices, pre-apprentices, allied workers, other classifications of workers 5
and any person performing the duties of all safety monitoring of work, excluding
managers, guards and supervisors as defined in the Act.

4. Farrell violated Sec. 8(a)(1) of the Act by maintaining a Disciplinary Procedure
policy in its Employee Code at its Dunkirk, Elmira, Erie, Cleveland and Cincinnati facilities, 10
which banned employees from engaging in “conduct deemed inappropriate by the Company” or
“solicitation/distribution.”

5. Farrell violated Sec. 8(a)(1) of the Act by maintaining a Electronic
Communication policy in its Employee Code at its Dunkirk, Elmira, Erie, Cleveland and 15
Cincinnati facilities, which prohibited employees from “[r]evealing company private,
confidential, copyrighted or employee information in external communication without the
required approval.”

6. Roofers Local 162 violated Sec. 8(b)(3) of the Act by failing and refusing to 20
provide relevant information, and unreasonably delaying its provision of other relevant
information, which was requested in Farrell’s August 10, 2011 letter.

7. The unfair labor practices set forth above affect commerce within the meaning of
Sec. 2(6) and (7) of the Act. 25

REMEDY

Having found that Farrell committed unfair labor practices, it is ordered to cease and
desist and to take certain affirmative action designed to effectuate the policies of the Act. As a 30
result, it shall be ordered to post notices at its Dunkirk, Elmira, Erie, Cleveland and Cincinnati
facilities, where the unlawful policies have been, or remain, in effect. See Longs Drug Stores
California, 347 NLRB 500, 501 (2006); Guardsmark, LLC, 344 NLRB 809, 812 (2005). Its duty
to rescind or modify the unlawful policies is governed by Guardsmark LLC, supra.33 It shall
also distribute remedial notices electronically via email, intranet, internet, or other appropriate 35
electronic means to its employees at the affected facilities, in addition to the traditional physical
posting of paper notices, if it customarily communicates with those workers in this manner.34
See J Picini Flooring, 356 NLRB No. 9 (2010).

33 “The Respondent may comply with our Order by rescinding the unlawful provisions and republishing its
employee handbook without them. We recognize, however, that republishing the handbook could entail
significant costs. Accordingly, the Respondent may supply the employees either with handbook inserts stating
that the unlawful rules have been rescinded, or with new and lawfully worded rules on adhesive backing which
will cover the old and unlawfully broad rules, until it republishes the handbook without the unlawful provisions.
Thereafter, any copies of the handbook that are printed with the unlawful rules must include the new inserts
before being distributed to employees.” Guardsmark, supra at 812 fn. 8.
34 Farrell must post the Notice to Employees, which is found at Appendix A.
JD(ATL)–12–13

16

Having found that Roofers Local 162 committed an unfair labor practice, it is ordered to
cease and desist and to take certain affirmative action designed to effectuate the policies of the
Act. To the extent that it has not already done so, Roofers Local 162 shall provide Farrell with
the information requested in its August 10, 2011 letter. Lastly, under J. Picini Flooring, supra,
in addition to the traditional physical posting of paper notices, Roofers Local 162 must distribute 5
the attached notice to members and employees electronically, if it customarily communicates
with such individuals in this manner.35

On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended36 10

ORDER

A.W. Farrell & Son, Inc., Dunkirk, New York, its officers, agents, successors, and
assigns, shall 15

1. Cease and desist from

a. Maintaining a Disciplinary Procedure policy in its Employee Code at its
Dunkirk, Elmira, Erie, Cleveland and Cincinnati facilities, which bans employees from engaging 20
in “conduct deemed inappropriate by the Company” or “solicitation/distribution.”

b. Maintaining an Electronic Communication policy in its Employee Code at
its Dunkirk, Elmira, Erie, Cleveland and Cincinnati facilities, which prohibits employees from
“[r]evealing company private, confidential, copyrighted or employee information in external 25
communication without the required approval”

c. In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Sec. 7 of the Act.37
30
2. Take the following affirmative action necessary to effectuate the policies of the
Act

a. Rescind or modify the language in the following provisions of its
Employee Code at its Dunkirk, Elmira, Erie, Cleveland and Cincinnati facilities 35

1) The Disciplinary Procedure policy to the extent that it banned
employees from engaging in “conduct deemed inappropriate by the Company” or
“solicitation/distribution.”
40

35 Roofers Local 162 must post the Notice to Members and Employees, which is found at Appendix B.
36 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.
37 Given Farrell’s ongoing pattern of unlawful conduct, a broad cease-and-desist order is appropriate herein. See,
e.g., Regency Grande Nursing & Rehabilitation Center, 354 NLRN 530, 531 fn. 10 (2009).
JD(ATL)–12–13

17

2) The Electronic Communication policy to the extent that it
prohibited employees from “[r]evealing company private, confidential, copyrighted or employee
information in external communication without the required approval.”

b. Furnish all current employees at the Dunkirk, Elmira, Erie, Cleveland and 5
Cincinnati facilities with inserts for the Employee Code that

1) Advise that the unlawful rules have been rescinded, or

2) Provide the language of lawful rules or publish and distribute a 10
revised Employee Code that

i. Does not contain the unlawful rules, or
ii. Provides the language of lawful rules.
15
c. Within 14 days after service by the Region, post at its at its Dunkirk,
Elmira, Erie, Cleveland and Cincinnati facilities, where its Employee Code is in effect, copies of
the attached Notice to Employees, which is found at “Appendix A.”38 Copies of the Notice to
Employees, on forms provided by the Regional Director for Region 28, after being signed by
Farrell’s authorized representative, shall be posted by Farrell and maintained for 60 consecutive 20
days in conspicuous places, including all places where notices to employees are customarily
posted. In addition to physically posting 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
Farrell customarily communicates with its employees at the affected facilities by such means.
Reasonable steps shall be taken by Farrell to ensure that the notices are not altered, defaced, or 25
covered by any other material. If Farrell has gone out of business or closed the facilities
involved in these proceedings, it shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by it at the affected facilities at any
time since March 24, 2012.
30
d. Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that it has taken to comply.

United Union of Roofers, Waterproofers and Allied Workers, Local 162, Las Vegas, 35
Nevada its officers, agents, successors, and assigns, shall

1. Cease and desist from

a. Failing and refusing to provide relevant information, and unreasonably 40
delaying its provision of other relevant information, requested in Farrell’s August 10, 2011 letter.

b. In any like or related manner interfering with, restraining, or coercing

38 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 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.”
JD(ATL)–12–13

18

employees in the exercise of the rights guaranteed them by Sec. 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the
Act.
a. Unless it has already done so, furnish Farrell with the requested 5
information.

b. Within 14 days after service by the Region, post at its Las Vegas, Nevada
hall and offices copies of the attached Notice to Members and Employees found at “Appendix
B.”39 Copies of the Notice to Members and Employees, on forms provided by the Regional 10
Director for Region 28, after being signed by Roofers Local 162’s authorized representative,
shall be posted by Roofers Local 162 and maintained for 60 consecutive days in conspicuous
places, including all places where notices to members and employees are customarily posted. In
addition to physically posting 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 Roofers Local 15
162 customarily communicates with members and employees by such means. Reasonable steps
shall be taken by Roofers Local 162 to ensure that the notices are not altered, defaced, or covered
by any other material. If Roofers Local 162 has gone out of business or ceased operating the
office involved herein, it shall duplicate and mail, at its own expense, a copy of the notice to all
of its current and former members and employees at any time since August 10, 2011. 20

c. Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that it has taken to comply.
25
Dated Washington, D.C. May 13, 2013

30

_________________________________
Robert A. Ringler
Administrative Law Judge
35

39 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 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.”
JD(ATL)–12–13

APPENDIX A

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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT maintain a Disciplinary Procedure policy provision in our Employee Code of
Conduct at our Dunkirk, Elmira, Erie, Cleveland and Cincinnati facilities, which bans employees
from engaging in “conduct deemed inappropriate by the Company” or “solicitation/distribution.”

WE WILL NOT maintain an Electronic Communication policy provision in our Employee
Code of Conduct, which bans employees from “[r]evealing company private, confidential,
copyrighted or employee information in external communication without the required approval.”

WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the
exercise of the rights set forth above.

WE WILL rescind or modify the language in the following provisions of our Employee Code of
Conduct at our Dunkirk, Elmira, Erie, Cleveland and Cincinnati facilities:

1. The Disciplinary Procedure policy to the extent that it prohibits you from
engaging in “conduct deemed inappropriate by the Company” or
“solicitation/distribution.”

2. The Electronic Communication policy to the extent that it prohibits you from
“[r]evealing company private, confidential, copyrighted or employee information
in external communication without the required approval.”

WE WILL furnish all of you with inserts for the current Employee Code of Conduct that:

1. Advise that the unlawful provisions above have been rescinded, or

2. Provide the language of lawful provisions, or publish and distribute revised
Employee Codes of Conduct that:
JD(ATL)–12–13

a. Do not contain the unlawful provisions, or
b. Provide the language of lawful provisions.

A.W. FARRELL & SON, INC.
(Employer)

Dated: ________________ By: ________________________________________________
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.

2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (602) 640-2146.

JD(ATL)–12–13

APPENDIX B

NOTICE TO MEMBERS AND 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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to provide, or unreasonably delay providing, A.W. Farrell & Son, Inc.
with relevant requested information.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in
the exercise of the rights set forth above.

WE WILL, to the extent that we have not already done so, furnish A.W. Farrell & Son, Inc. with
the information requested in its letter dated August 10, 2011.

UNITED UNION OF ROOFERS,
WATERPROOFERS, AND
ALLIED WORKERS, LOCAL 162
(Labor Organization)

Dated: ________________ By: ________________________________________________
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.

2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (602) 640-2146.