J. D. Candler Roofing Company

National Labor Relations Board - Board Decisions

Sep 28, 1981

258 N.L.R.B. 341 (N.L.R.B. 1981)

J. D. CANDLER ROOFING COMPANY
J. D. Candler Roofing Company, Inc. and Local 149,
United Slate, Tile and Composition Roofers,
Damp and Waterproof Workers Association,
AFL-CIO. Case 7-CA-17887
September 28, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 24, 1981, Administrative Law Judge
Wallace H. Nations issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, to
modify his remedy,' and to adopt his recommend-
ed Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, J. D. Candler
Roofing Company, Inc., Detroit, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The Administrative Law Judge inadvertently failed to include Iis
Plumbing & Heating Co.. 138 NLRB 716 (1962), as the rationale for inter-
est payments.
2 With regard to the make-whole remedy applicable to those employ-
ees who remained in Respondent's employ following Respondent's un-
lawful withdrawal of recognition of the Union, we note that the appro-
priate formula to be applied is that set forth in Ogle Protection Service.
Inc., and James L. Ogle. an Individual, 183 NLRB 682 (1970). See also
Merryweather Optical Co., 240 NLRB 1213 (1979).
In addition, Member Jenkins would award interest on the backpay due
the unlawfully discharged employees in accordance with the formula set
forth in his dissenting opinion in Olympic Medical Corporation, 250 NLRB
146 (1980).
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge:
Local 149, United Slate, Tile and Composition Roofers,
Damp and Waterproof Workers Association, AFL-CIO
(the Union), filed a charge against J. D. Candler Roofing
Company, Inc. (Respondent), on June 13, 1980, and
amended the charge on June 27, 1980. On July 18, 1980,
the Regional Director for Region 7 issued a complaint,
which, as amended, alleges that Respondent failed to ex-
258 NLRB No. 53
ecute a collective-bargaining agreement negotiated be-
tween the Union and the Southeastern Michigan Roofing
Contractors Association, Inc. (SMRCA), a multiem-
ployer bargaining agent acting on behalf of Respondent;
that Respondent thereafter bypassed negotiations with
the Union and dealt directly with its employees establish-
ing wage rates different from those contained in the bar-
gaining agreement mentioned above, withdrew its recog-
nition of the Union as exclusive collective-bargaining
representative of Respondent's employees, and construc-
tively discharged employees Jerry Brylewski and Walter
Rehand and discharged employee Kevin Banks because
they refused to work under the conditions of employ-
ment established by Respondent as a result of its acts set
out above; and that by its actions Respondent has violat-
ed Section 8(a)(1), (3), and (5) of the National Labor Re-
lations Act, as amended, herein called the Act. In its
answer, Respondent denied all allegations that it violated
the Act. A hearing was held before me in Detroit,
Michigan, on March 4 and 5, 1981. Briefs were received
from Respondent and the General Counsel on or about
May 4, 1981.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is a roofing contractor with its primary
place of business in Detroit, Michigan. During the year
preceding issuance of the complaint, Respondent re-
ceived gross revenues in excess of $500,000 and pur-
chased goods in commerce in excess of $50,000 of which
goods valued in excess of $15,000 were transported and
delivered to its place of business in Detroit, Michigan,
from points located outside the State of Michigan. I find
that Respondent is an employer within the meaning of
the Act and that it will effectuate the policies of the Act
to assert jurisdiction in this case.
II1. THE ABOR ORGANIZATION INVOLVED
Local 149, United Slate, Tile and Composition Roof-
ers, Damp and Waterproof Workers Association, AFL-
CIO (the Union), is a labor organization within the
meaning of the Act.
Ill. THE AI.ll-GED UNFAIR ABOR PRACTICES
A. Respondent's Membership in the Multiemployer
Bargaining Association and the Association's Authority
To Negotiate a Collective-Bargaining Agreement o::
Behalf of Respondent
Respondent is one of the oldest roofing contractors in
the Detroit metropolitan area and has been in business
for over 101 years. There are approximately 260 roofing
contractors in the Detroit metropolitan area, of whom 47
or 48 belong to an association known as Roofing Indus-
trial Promotion Firm (RIPF). SMRCA is a separate
entity utilized by most, if not all, of the members of
RIPF to negotiate collective-bargaining agreements with
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. Respondent, though not a member of the
SMRCA, had for many years prior to 1980 given
SMRCA power to negotiate collective-bargaining agree-
ments on its behalf with the Union. For at least the last
three bargaining sessions preceding the 1980 bargaining
session, SMRCA had sent to each of the companies for
which it was to bargain a power of attorney and letter of
assent authorizing representation by SMRCA. In each of
the years prior to the 1980 session, Respondent had
signed and returned this power of attorney and letter of
assent to SMRCA prior to the beginning of bargaining.
Because Respondent was an actual member only in
RIPF and not in the bargaining association, it asserts that
it was not individually bound by the agreement reached
between SMRCA and the Union in 1980. It asserts that it
had to give express consent through a new power of at-
torney and letter of assent to SMRCA to be bound by
the results of the 1980 SMRCA bargaining. A clear state-
ment of the test determining when an employer is bound
to group action is set forth in Joseph McDaniel, an Indi-
vidual Proprietorship d/b/a Custom Colors Contractors, 226
NLRB 851, 853 (1976), enfd. sub nom. V.L.R.B. v. Beck-
ham, Inc., 564 F.2d 190 (5th Cir. 1977):
It is well established that the test to be applied in
determining such obligation is whether the members
of the group have indicated from the outset an un-
equivocal intention to be bound in collective bar-
gaining by group rather than individual action.
The manifestation of an "unequivocal intention"
to be bound requires something less, however, than
a solemnly executed document signed and sealed
with hot wax. A commitment to bargaining on a
multiemployer basis will not be made to depend on
the presence of a formal associational structure
among the bargaining participants or on the formal
delegation of authority from the individual employ-
er to the multiemployer group. Nor will the Board,
faced with outward manifestations of intent to
engage in group bargaining, consider as controlling
an employer's private manifestations of dissent. An
employer who, through a course of conduct or oth-
erwise, signifies that it has authorized the group to
act in its behalf will be bound by that apparent cre-
ation of authority.
The 1978 power of attorney and letter of assent ex-
ecuted by Respondent in favor of SMRCA in the first
paragraph contains an authorization from Respondent to
SMRCA to act as Respondent's agent "for all matters
pertaining to the labor agreement now in effect between
said roofing contractors and the Union, all amendments
thereto, and to successor labor agreements until this au-
thorization is revoked." The first sentence of the third
paragraph states, "[t]his authorization shall remain in
force until revoked by written notice to SMRCA and the
Union, which notice, to be effective, must be given in
writing at least 60 days prior to the expiration of the
labor agreement then in effect between SMRCA and the
Union and must coincide with the expiration with such
labor agreement."
Additionally, before the start of negotiations in each of
the three previous bargaining sessions, the Union had
sent Respondent an inquiry to determine whether Re-
spondent intended to be part of the multiemployer bar-
gaining unit for that session. The inquiry offered the
right of individual bargaining in the event Respondent or
any other company to which the inquiry was sent
wished to withdraw from the multiemployer bargaining
unit.
For the 1980 bargaining session, the Union, as was its
practice, notified Respondent well prior to the com-
mencement of the negotiations that it must take the re-
quired steps to commence individual bargaining if it did
not wish SMRCA to continue representing it in the up-
coming negotiations. Respondent did not reply to this in-
quiry. Although the evidence is slightly conflicting on
this point, the weight of the evidence would indicate that
Respondent did not execute a power of attorney and
letter of assent in favor of SMRCA specifically for the
1980 bargaining session. Either SMRCA did not send to
Respondent a power of attorney for this session or, in
the event that it did, Respondent never returned it.
Other than its failure or silent refusal to give a new
power of attorney to SMRCA for the 1980 bargaining
session, Respondent did nothing to indicate either to
SMRCA or the Union that it did not intend to abide by
the results of the negotiations.
After the completion of negotiations in each of the
past bargaining sessions a collective-bargaining agree-
ment was reached between SMRCA and the Union.
Upon ratification of the agreement, and especially the
pay scale provisions of the agreement, a summary pay
scale was sent to each of the companies represented by
the multiemployer bargaining unit. Thereafter, the Union
sent to each company affected two copies of the collec-
tive-bargaining agreement. Each company signed both
copies and returned them to the Union where they were
signed and one copy returned to the employer. In years
past, Respondent had on each such occasion executed
the contract without change.
In May 1980, the negotiations ended with the result
being a new collective-bargaining agreement calling for,
inter alia, substantially increased wage levels. The con-
tract was ratified by the Union's membership on May 27.
The following week the local union representative had a
telephone conversation with the president of Respond-
ent, the call being prompted by inquiries made by union
employees of Respondent who had heard that Respond-
ent was not going to execute the contract. Respondent
informed the Union at that time that it was not going to
execute the contract and would not remain affiliated
with the Union. Thereafter, on June 3, Respondent sent a
letter to the Union stating that "due to changes in the
proposed contract the J. D. Candler Roofing Company,
Inc., withdraws forthwith from the Roofers Union Local
149." An affidavit given to the Board by Respondent's
president on the subject stated:
We had no reason to believe that the increase for
this year would be abnormally high. We did give
342
J. D. CANDLER ROOFING COMPANY
SMRCA authority to bargain with the Union for us
(I'm not sure exactly how we gave this authority)
but they were only to reach agreement and then
submit it to us for approval as indicated in para-
graph 2(b) of our "Answer to the Charge Against
Employer." That is the practice we have followed
in the past, i.e., signing our individual contract....
When we've signed agreements with the Union in
the past, we have always signed an agreement nego-
tiated on our behalf by the Employer Association,
we have never made changes from the agreement
negotiated on our behalf by the SMRCA, because
the prior agreements contained, relative to this year,
small wage increases.
From the facts, I can only conclude that Respondent's
attempted withdrawal from the multiemployer bargain-
ing group was ineffective. First, the power of attorney
and letter of assent given for the 1978 negotiations by its
very terms is effective for future negotiations unless re-
voked. The manner in which it must be revoked is
spelled out on its face. Respondent failed to comply with
these terms. It gave the Union no notice until after an
agreement had been reached that it did not intend to
abide by the negotiations between the Union and
SMRCA. It gave no express notice whatsoever to
SMRCA that it did not intend to abide by the negotia-
tions. Correct or otherwise, SMRCA clearly believed
that it had in its possession a power of attorney and
letter of assent from Respondent for the 1980 negotia-
tions. It included Respondent's name on a list of compa-
nies participating in the negotiations which was given to
the Union prior to the start of bargaining.
Although the evidence is unclear on this point, appar-
ently the Union in prior negotiating years had been given
copies of actual powers of attorney from the various em-
ployers participating. In the 1980 negotiations, only a list
of those companies submitting a power of attorney was
given to the Union. However, because this apparent
change in procedure involved all participating employ-
ers, the Union would not have been put on notice that
Respondent had not filed a 1980 power of attorney and
letter of assent.
Importantly, no indication was given by Respondent
to the involved Union prior to the reaching of a new
collective-bargaining agreement that it (Respondent) de-
sired to pursue bargaining with the Union on an individ-
ual basis. The only rational conclusion that can be drawn
from Respondent's action between the time bargaining
began on the 1980 agreement and the time an agreement
was reached is that it had covertly decided to adopt a
wait-and-see attitude with respect to the agreement.
Because of Respondent's long history of participating
in the multiemployer bargaining arrangement involved, I
find that Respondent was bound to give some positive
notice of its intention not to participate or be bound by
the negotiations. Its failure or covert decision not to ex-
ecute a 1980 power of attorney and letter of assent in my
opinion constitutes only, in the words of the Board in
Joseph McDaniel, supra, "an employer's private manifes-
tation of dissent." Thus, I find that Respondent is Es-
topped from asserting its purported withdrawal or non-
membership as a defense to its failure to abide by the
terms of the contract negotiated by SMRCA. Fitzpatrick
Electric, Inc., 242 NLRB 739 (1979): R. 0. Pyle Roofing.
Co., Inc., 222 NLRB 786 (1976), enfd. 560 F.2d 1370 (9th
Cir. 1977).
Under the arrangement followed in the past, wherein
each employer executed a separate copy of the agree-
ment, Respondent asserted that it had the right to reject
or make changes in the agreement with the Union,
wholly aside from the question of withdrawal.
Failure to execute or abide by the terms of a collec-
tive-bargaining agreement negotiated by a multiemployer
association of which one is a member is, of course, a vio-
lation of the Act and one for which a Board Order that
the contract be executed is appropriate. Burgess Mining
and Construction Corporation, 239 NLRB 92 (1978); Pres-
ton H. Haskel Co., 238 NLRB 943 (1978); Northern Petro-
leum Equipment Corporation, 244 NLRB 52 (1979). The
situation is not altered when the refusal is based solely
on the increased cost or the nature of the contract. McAx
Sign Company, Inc. v. N.L.R.B., 576 F.2d 62 (5th Cir.
1978), enfg. McAx Sign Company, Inc., 231 NLRB 957
(1961); Michael J. Bollinger Co., 252 NLRB 406 (1980).
As all parties have agreed that a collective-bargaining
agreement was negotiated between SMRCA and the
Charging Party Union to replace the 1978-80 agreement,
the only question is whether Respondent was obligated
to abide by its terms. As noted by Administrative Law
Judge Norman Zankel in his Decision in H. S. Brooks
Electric, Inc., et al., 233 NLRB 889, 894 (1977):
A collective-bargaining agreement is not an ordi-
nary contract for the purchase of goods and serv-
ices, nor is it governed by the same common law
concepts which control such private contracts. John
Wiley & Sons. Inc. v. Livingston, 376 U.S. 543, 550
(1964). The underlying origin of collective-bargain-
ing agreements is derived, in part, from the statu-
tory philosophy which seeks to protect employees'
rights by establishing and maintaining collective-
bargaining relationships. In deciding whether an
employer and a union have arrived at an agreement.
the Board is not bound by technical rules of con-
tract law. Lozano Enterprises v. N.L.R.B., 327 F.2d
814 (9th Cir. 1964). Among the relevant factors in
such determinations are the practice of the parties
and their dealings with one another.
The testimony of both parties is that the long-estab-
lished practice has been for the respective members of
SMRCA to separately execute the collective-bargaining
agreements negotiated between SMRCA and the Charg-
ing Party Union. It is undisputed that no member of
SMRCA, including Respondent, has ever, in the many
years of multiemployer bargaining with the Union, as-
serted any right to refuse to sign a contract negotiated
between SMRCA and the Union. Prior to the instant
case, no member has ever actually refused to execute
such a contract. Such evidence, let alone the documen-
tary evidence already discussed, more than establishes
that Respondent has manifested an "unequivical inten-
tion" to be bound by multiemployer bargaining.
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, it must be noted that the asserted right
of refusal to sign the contract was not voiced by Re-
spondent until after it became aware of the terms of the
agreement. Its notification to the Union that it would not
sign the collective-bargaining agreement was not
couched in terms of a right to refuse to execute it but
was predicated on the agreement's increased wage levels.
Thus, Respondent's claim at the hearing that it was privi-
leged not to sign differs from its stated reasons for refus-
ing to sign. Because Respondent's recently formed belief
that no SMRCA member was ever obligated to sign a
negotiated contract was never communicated to anyone
in the Union, it is insufficient as a defense to the obliga-
tion to sign. R. O. Pyle Roofing Company. et al., 222
NLRB 786 (1976), enfd. 560 F.2d 1370 (9th Cir. 1977).
The next question to be faced is whether Respondent's
attempt at withdrawal from the multiemployer bargain-
ing was privileged. The Board's rules governing the
withdrawal of an employer or union from multiemployer
bargaining was set forth in Retail Associates, Inc.. 120
NLRB 388 (1958), and has been reiterated many times
since. They provide that "an employer may withdraw
without the Union's consent prior to the start of bargain-
ing by giving unequivocal notice of the intent to aban-
don the multiemployer unit and to pursue negotiations
on an individual employer basis. However, once negotia-
tions have actually begun, withdrawal can only be effec-
tuated on the basis of 'mutual consent' or 'unusual cir-
cumstances."' The Carvel Company, 226 NLRB 1111,
1112 (1976). See also Acme Wire Works, Inc., 229 NLRB
333, 335 (1977).
There is no question that unequivocal notice of intent
to abandon the multiemployer unit was not given by Re-
spondent. Clearly no notice of intention to pursue negoti-
ations on an individual employer basis with the Union
was given. Thus, the questions remain whether there was
"mutual consent" or "unusual circumstances." No one in
the case contends that the Union has acquiesced any time
in the attempted withdrawal, so an inquiry must be made
into the question of unusual circumstances.
It must also be remembered when considering the facts
and the applicable law that Respondent was not merely
withdrawing from multiemployer bargaining. If that
were all it was doing, the establishment of "unusual cir-
cumstances" would permit the withdrawal without union
consent. However, here, Respondent sought to avoid its
union obligation entirely, to cease recognizing the Union,
and to continue in business as a nonunion contractor.
This it could do only if it secured the Union's consent.
The question of whether employees are to be represented
by a union is not a question which may be answered by
the employer or determined by his wishes. J. N. Tanaka
Construction Company, Inc., 249 NLRB 238 (1980).
Turning now to the question of whether there were
"unusual circumstances," the Board cases decided since
Retail Associates are instructive. In those cases, as stated
by the Board in Hi-Way Billboards. Inc., 206 NLRB 22,
23 (1973):
In cases after Retail Associates, the Board has lim-
ited application of the term "unusual circumstances"
to those cases in which the withdrawing employer
has been faced with dire economic circumstances,
i.e., circumstances in which the very existence of an
employer as a viable business entity has ceased or is
about to cease. Thus, the Board has held that an
employer may withdraw from a multiemployer bar-
gaining association after negotiations with the union
have begun where the employer is subject to ex-
treme economic difficulties which result in an ar-
rangement under the bankruptcy laws; 6 where the
employer is faced with the imminent prospect of
such adverse economic conditions as would require;
it to close its plant.7.
The Board has refused to permit an employer to
withdraw from a multiemployer bargaining associ-
ation when an employer states he has a good-faith
doubt as to the continued majority status of the
union where the claim is limited to his own employ-
ees;9 all of the employer's employees whom the
union represented were discharged;'° the union en-
tered into separate agreements with individual em-
ployer members of the association;1 . . . or the
employer suffered a sharp decline in its business.' 4
In the foregoing instances the Board has found that
there was no likelihood that the employer's contin-
ued existence as a viable business entity was jeop-
ardized and, therefore, the employer's withdrawal
could not be excused on the ground of "unusual cir-
cumstances."
6 U.S. Lingerie Corporation. 170 NLRB 750, 751
' Spun-Jee Corp.. and the James Textile Corp., 171 NLRB 557.
558.
9Sheridan Creations. Inc., 148 NLRB 1503, 1505-06.
'o The John J. Corbert Press, Inc., 163 NLRB 154, fn. 8.
" WE Painters, Inc., 176 NLRB 964, 965-966.
14 Serv-Al Company. Inc., 199 NLRB No. 159 (ALJD. pp. 19-
20).
Was Respondent in such "dire economic circum-
stances" as to threaten imminent bankruptcy or the ces-
sation of business operation? The record is very sparse
on this point. There was some testimony in the record
about the impact on Respondent from an economic
standpoint if forced to abide by the terms of the 1980-82
labor contract. Respondent noted that there are approxi-
mately 200 roofing contractors in the Detroit metropoli-
tan area which are nonunion. All of these contractors
can give much cheaper estimates than Respondent which
is bound by the terms of the union contract which has
rates of pay in excess of the nonunion rate. Respondent's
president provided a rough chart of the cost differential
between rates in the 1980-82 labor contract and the rates
being paid since June 1980 by Candler (on a nonunion
basis). She explained that had Respondent paid the 1980-
82 labor contract rate her payroll would have been
$451,202.40. The Company actually paid $300,564 in
wages. Virginia Candler, the owner of Respondent, who
had reviewed the figures above with the Company's
president, testified that Respondent could not stay in
344
J. D. CANDLER ROOFING COMPANY
business if it had to pay the 1980-82 rates. It was her po-
sition that Respondent would go out of business if it had
to pay the new rates. She further testified that she was
not going to put any more money in the Company and
that the Company's closing would result in not only the
laying off of the 7 or 8 union employees, but also would
result in the layoff of office personnel, estimaters, 15 or
20 shinglers, and gutter repairmen.
I find it impossible to determine whether the Company
is or would have been in dire economic circumstances
had it abided by the 1980-82 labor agreement from the
evidence adduced. The Company's financial condition is
not known in the record. The fate of similarly situated
competing companies which did abide by the terms of
the labor agreement is not shown in the record. The re-
lationship between its direct and indirect labor costs, and
its gross earnings and profits is not shown. Most of the
factors which would go into making a rational decision
on this point are not in the record. Therefore, on the
record, I cannot find that the Company is in dire eco-
nomic circumstances which would constitute "unusual
circumstances" and allow the otherwise untimely with-
drawal of Respondent from the results of the associ-
ation's bargaining. However, as such circumstances
might exist, I will fashion a remedy which will allow for
flexibility in the compliance stage.
B. The Alleged Violation of Section 8(a)(5) of the Act
by Withdrawing Recognition of the Union as Exclusive
Collective-Bargaining Representative of Certain of Its
Employees
Respondent's letter to the Union on June 3, 1980,
clearly establishes its purported withdrawal from the
Union due to changes in the 1980-82 labor contract.
Since at least 1943, the Union has represented, for pur-
poses of collective bargaining, Respondent's roofing em-
ployees as part of a multiemployer unit. Even if Re-
spondent had made a timely and proper withdrawal from
SMRCA and thus freed itself from any obligation to ex-
ecute the 1980 contract, it would not, thereby, have
freed itself from any obligation to continue recognizing
the Union as its employees' representative. The presump-
tion of continuing majority status afforded to unions is
not affected by employer's withdrawal from multiem-
ployer bargaining. Tahoe Nugget, Inc., d/b/a Jim Kelly's
Tahoe Nugget, 227 NLRB 357 (1976); Nevada Lodge, 227
NLRB 368 (1976), enfd. 584 F.2d 293 (9th Cir. 1978);
East Bay Chevrolet Company, d/b/a Time Chevrolet, 242
NLRB 625 (1979). The withdrawal of recognition was
not explained by Respondent as having been based on
any "objective considerations" or loss of majority by the
Union. Accordingly, the withdrawal was unlawful.
C. Allegations That Respondent Bypassed the
Charging Party Union and Dealt Directly With Its
Employees in Violation of Section 8(a)(5) of the Act
The record is clear that Respondent's president met
with its employees shortly after the June 3, 1980, pur-
ported withdrawal from the Union and offered those em-
ployees a wage package for the coming year. Respond-
ent's president allowed the employees to make a counter-
offer which was rejected. The employees then accepted
Respondent's original offer. Such individual bargaining
with unit members is a violation of the Act. Western Pa-
cific Roofing Corporation, 244 NLRB 501 (1979).
D. Allegations That Respondent Constructively
Discharged Employees Jerry Brylewski and Walter
Rehand and Discharged Kevin Banks Because of
Their Union Affiliation
Respondent's vice president admitted that the three in-
volved alleged discriminatees would have been unable to
maintain their union membership and union status had
they continued to work for Respondent once it became a
nonunion company and refused to pay the then prevail-
ing contractual rates. Rehand and Brylewski both termi-
nated their employment after it became clear the Compa-
ny was going nonunion. Banks continued to work for ap-
proximately I week after the rejection.
Banks testified that Respondent's president told him by
telephone that he was not wanted any longer and that
his check would be mailed to him. These telephone calls
occurred after Banks went home without a job assign-
ment after being told that his union membership meant
that he could not continue to work for Respondent. Fur-
thermore, Respondent's president, according to Banks,
complained that he notified the Union of Candler's job
locations just before telling him that he was not wanted
any more. These aspects of Banks' testimony were not
denied by Respondent. Banks denied vehemently the al-
legation made by Valade and I credit his denial.
There is no dispute that Rehand and Brylewski both
left the employ of Respondent because it was changing
its status to nonunion. Furthermore, it is clear that the
unit employees were not given job assignments during
the days it took Respondent to make up its mind about
continuing as a union company. The point that individual
agreement to Respondent's nonunion status was a re-
quirement for obtaining work from Respondent was,
thus, not one that could have been missed by the em-
ployees.
On these facts, it is apparent that the employees' union
views and activities lead to their respective discharges
and that a finding of a violation of Section 8(a)(1) and (3)
regarding their terminations is mandated. Western Pacific
Roofing Corporation, supra; Marquis Elevator Company,
Inc., 217 NLRB 461 (1975); Superior Sprinkler, Inc., 227
NLRB 2204 (1977); Johnson Electric Company, Inc., and
William A. Johnson and Albert M. Thompson d/b/a John
Electric Company, 196 NLRB 637, 644 (1972).
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set out above, I shall recommend that it
be required to cease and desist therefrom and to post ap-
propriate notices.
There remains for consideration the question of the
effect of the remedy in this case on the continuing viabil-
ity of Respondent as a going concern. The Board has re-
jected defenses based on the defunctness of a business en-
terprise or its inability to satisfy the monetary liabilities
imposed by an order. See, for example, Bagel Bakeries
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council of New York, 226 NLRB 622, 631 (1976). There
the Administrative Law Judge, with the Board's approv-
al, stated that the potential uncollectability of the judg-
ment was not a basis for absolving a respondent from lia-
bility. See also Barbara Clark and Benjamin L. Clark
d/b/a Star Grocery Company. and d/b/a Star Super
Duper, 245 NLRB 196 (1979). As the Board stated in In-
ternational Technical Products Corporation. et al.. 249
NLRB 1301, 1304 (1980), while pointing out that the
Board's Order enforces a public rather than a private
right:
To insure that the adverse effects of a wrongdoer's
unlawful conduct are eliminated and that the public
right is vindicated, it is essential that there be full
compliance with the Board's order requiring that
the employer comply with the order's remedial pro-
visions. It should be noted, however, that while on
certain occasions the remedial provision of a Board
order may or may not, depending on the violations
found, require financial reimbursement, that order
seeks only to remedy a wrongdoer's unlawful con-
duct and to this end it is fashioned without regard
to a wrongdoer's past, present, or future state of
assets.
If, indeed, compliance with a Board order, and par-
ticularly the financial obligation imposed, threatens Re-
spondent's continued viability, it would seem that the ap-
propriate avenue would not lie in dismissal of the com-
plaint, for that would deny the public generally and the
Charging Party specifically the benefit of the remainder
of the Board's negative and affirmative remedial provi-
sions. Rather, Respondent should seek alleviation of
those burdens in the compliance stage of the proceeding.
Finally, I note Respondent's contention that compli-
ance with the Board's order would cause it to cease busi-
ness, hurting all its employees and the community at
large. As this may be the case, in the remedy I have fa-
shioned, the Union is given the option of requiring com-
pliance by Respondent with the terms and conditions, in-
cluding wages, of the 1980-82 labor agreement negotiat-
ed between it and SMRCA, or individually negotiating a
separate agreement with Respondent. M & M Oldsmo-
bile, Inc., 156 NLRB 903 (1966).
As I have found that Respondent unlawfully refused
to place in effect the terms and conditions of employ-
ment called for by the June 1, 1980, agreement, I recom-
mend that Respondent be ordered, upon request of the
Union, to comply retroactively to June 1, 1980, with the
terms of said agreement, including but not limited to the
provisions relating to wages and economic benefits, and
to make whole its employees for any losses suffered by
reason of Respondent's refusal to give effect to the
agreement, with interest thereon, computed in accord-
ance with the Board's established standards set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977). Alterna-
tively, I recommend that Respondent be ordered to bar-
gain collectively, upon request, with the Union as the ex-
clusive representative of the employees in the appropri-
ate unit, and, if an understanding is reached, embody
such understanding in a signed agreement. If the Union
and Respondent reach such an agreement, and said
agreement calls for economic benefits in excess of those
paid by Respondent since June 1, 1980, I recommend
that Respondent make whole its employees for any losses
suffered by reason of the difference in benefits actually
paid the affected employees and those that would have
been paid under the agreement.
CONCI.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All journeymen roofers, registered apprentices, and
probationary apprentices employed by Respondent, but
excluding office clerical employees, guards, and supervi-
sors as defined in the Act, constitute a unit appropriate
for collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times since 1972, the Union has been and now
is the exclusive representative of the employees in the
said unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing, on and after June 3, 1980, to place in
effect the terms and conditions of employment agreed
upon between SMRCA and the Union on June 1, 1980,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
6. By withdrawing recognition of the Union as the col-
lective-bargaining representative of Respondent's em-
ployees in said unit, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of
the Act.
7. By constructively discharging employees Brylewski
and Rehand and discharging employee Banks because of
their union status, activities, and views, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the Act.
8. By bypassing the Charging Party Union and dealing
directly with its employees in said unit, offering to pay
its employees wage rates which differ from those con-
tained in the collective-bargaining agreement dated June
1, 1980, between the Union and SMRCA, establishing
new wages and benefits for its employees without first
affording the Union an opportunity to negotiate and bar-
gain with it concerning such changes, and without
having reached an agreement with the Union, Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(l) and Section 2(6) and (7) of
the Act.
9. By the foregoing conduct, Respondent has inter-
fered with, restrained, and coerced its employees in the
exercise of the rights guaranteed them in Section 7 of the
Act and is thereby engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices are all unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
346
J. D. CANDLER ROOFING COMPANY
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 9(c)
of the Act, I hereby issue the following recommended:
ORDER'
The Respondent, J. D. Candler Roofing Company,
Inc., Detroit, Michigan, its officers, agents, successors
and assigns, shall:
1. Cease and desist from:
(a) Bypassing the Charging Party Union and dealing
directly with its employees in the unit found appropriate
by offering to pay its employees wage rates which differ
from those contained in the collective-bargaining agree-
ment dated June 1, 1980. between the Union and the
Southeastern Michigan Roofing Contractors Association.
Inc. (SMRCA), establishing new wages and benefits for
its employees in the unit without having first afforded
the Union an opportunity to negotiate and bargain with
it concerning such changes and without having reached
an agreement with the Union, and withdrawing its rec-
ognition of the Union as the exclusive collective-bargain-
ing representative of Respondent's employees in the unit
or in any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
(b) Constructively discharging its employees Jerry
Brylewski and Walter Rehand and discharging its em-
ployee Kevin Banks or in any other manner discriminat-
ing against its employees in regard to hire or tenure of
employment or any term or condition of employment to
discourage support for, activities on behalf of, or mem-
bership in the Union or any other labor organization.
(c) Refusing to bargain in good faith with the Union as
the collective-bargaining agent for Respondent's employ-
ees in the unit found appropriate.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Upon request of the Union, rescind the changes in
wages and other terms and conditions of employment
made effective by Respondent on or after June 1, 1980,
and place in effect the terms and conditions of employ-
ment called for by the June 1, 1980, agreement reached
between the Union and SMRCA and to comply retroac-
tively to June 1, 1980, with the terms of said agreement,
including but not limited to provisions relating to wages
and economic benefits, and to make whole its employees
for any losses suffered by reason of Respondent's refusal
to give effect to the agreement, with interest.
(b) Alternatively, upon request of the Union, rescind
the changes in wages and other terms and conditions of
employment placed in effect on or after June 1, 1980. by
Respondent and bargain in good faith with the Union re-
garding any future changes and, if an understanding is
reached, to embody such understanding in a signed
agreement.
In the event no exceptions are filed as provided by Sec. 102.4h of he
Rules and Regulations of the National L abor Relations HBoard the find-
ings, conclusions, and recommended Order herein shall, as pro, ided in
Sec 102.48 of the Rules and Regulations, he adopted h) the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed ,aived for all purposes.
(c) Make whole any employees who have suffered a
loss in wages or other monetary benefits as a result of
the unilateral changes in wages and other benefits made
by Respondent on or after June 1, 1980.
(d) Offer immediate and full reinstatement to Jerry
Brylewski, Walter Rehand, and Kevin Banks. to their
former positions of employment or, if those positions no
longer exist. to substantially equivalent positions and
make them whole for any loss of earnings they may have
suffered as a result of the discrimination practiced against
them with interest.
(e) Preserve and, upon request, make available to the
Board or its agents all records necessary to analyze the
amount due in the effectuation of this remedial Order.
(f) Post at Respondent's place of business in Detroit,
Michigan. copies of the attached notice marked "Appen-
dix." 2 Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly signed
by Respondent's representatives, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that these notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 7, in writ-
ing, within 20 days of the date of this Order, what steps
Respondent has taken to comply herewith.
2 In the event this Order is enforced b a Judgment of a United States
Court of Appeals. the words in the notice reading "Postled b Order oif
the National l.abor Relations Board"' shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Fnforcing an Order of
the National l.abor Relations HBoard"
APPENDIX
NoTicEt To EMPLOYEES
Posilll) HB ORDER OF THE
NATIONAI. LABOR REI ATIONS BOARD
An Agency of the United States Government
Wi w.t. N discharge or otherwise discrimi-
nate against our employees in regard to their hire,
tenure, or any term or condition of employment to
discourage support for, activities on behalf of. or
membership in the Union or any other labor organi-
zation.
WE wit l. NOT- bypass the Union and deal directly
with our employees in the unit represented by the
Union by offering to pay wage rates which differ
from those contained in a collective-bargaining
agreement dated June 1, 1980, between the Union
and the Southeastern Michigan Roofing Contractors
Association, Inc., without first affording the Union
an opportunity to negotiate and bargain with us
concerning such changes and without having
reached an agreement with the Union.
WIt Wil NO withdraw reconition of the Union
as the exclusive collective-bargaining representative
of our employees int he unit or in any like or relat-
ed manner interfere with, restrain, or coerce our
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the exercise of rights guaranteed by
Section 7 of the National Labor Relations Act.
WE WILL NOT refuse to bargain in good faith
with the Union as the collective-bargaining agent
for our employees in the unit found appropriate.
WE WILl., upon request of the Union, rescind the
changes in wages and other terms and conditions of
employment made effective by us after June 1,
1980, and place in effect the terms andconditions of
employment called for in the June 1, 1980, agree-
ment reached between the Union and the Southeast-
ern Michigan Roofing Contractors Association,
Inc., and comply retroactively to June 1, 1980, with
the terms of said agreement, including but not limit-
ed to provisions relating to wages and economic
benefits, and WE WII. make whole our employees
for any losses suffered by reason of refusal to give
effect to the agreement, with interest; or alternative-
ly, upon request of the Union, bargain in good faith
with the Union regarding any future changes and, if
an understanding is reached, embdy such under-
standing in a signed agreement.
WE WILL offer immediate and full reinstatement
to Jerry Brylewski, Walter Rehand, and Kevin
Banks to their former positions of employment or, if
those positions no longer exist, to substantially
equivalent positions, and make them whole for any
losses they may have suffered as a result of our dis-
crimination against them, with interest.
J. D. CANDI.ER ROOFING COMPANY, INC.
348