National Roof Systems

National Labor Relations Board - Board Decisions

Dec 30, 1991

305 N.L.R.B. 965 (N.L.R.B. 1991)

965
305 NLRB No. 147
NATIONAL ROOF SYSTEMS
1 The Charging Party’s request for attorney’s fees is denied on the
ground that the defenses raised by the Respondent are ‘‘debatable’’
rather than ‘‘frivolous.’’ See Heck’s, 215 NLRB 765 (1974); cf.
C. F. Eckert, Inc., 301 NLRB 868 (1991).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent additionally asserts that the judge’s findings of
fact and conclusions of law reflect bias. After a careful review of
the entire record, we are satisfied that this allegation is without
merit.
3 We shall modify the judge’s recommended Order to include a
general make-whole provision in accordance with the terms of the
remedy section of his decision.
National Roof Systems, Inc. and Local 70, United
Union of Roofers, Waterproofers & Allied
Workers, AFL–CIO. Cases 7–CA–29492 and 7–
CA–29611
December 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 7, 1991, Administrative Law Judge Irwin
Kaplan issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel and the Charging Party each filed an an-
swering brief.1
The National Labor Relations Board had delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Na-
tional Roof Systems, Inc., Homer, Michigan, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the remaining paragraphs accordingly.
‘‘(c) Make whole all employees in the bargaining
unit for any losses they may have suffered by reason
of the Respondent’s refusal to execute and abide by
the collective bargaining agreement in effect between
the Respondent and the Union, in the manner set forth
in the remedy section of the judge’s decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
have violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local 70,
United Union of Roofers, Waterproofers & Allied
Workers, AFL–CIO (the Union), by refusing to recog-
nize the Union as the exclusive bargaining representa-
tive for the following appropriate unit:
All full-time and regular part-time skilled roofers,
damp and waterproofers employed by National
Roof Systems, Inc., working at or out of its facil-
ity located at 28290 M-60 East, Homer, Michi-
gan; but excluding office clerical employees,
guards and supervisors as defined in the Act.
WE WILL NOT refuse to bargain with the Union, by
failing to execute and abide by the terms and condi-
tions of our collective-bargaining agreement with the
Union.
WE WILL NOT threaten to terminate or terminate or
otherwise discriminate against our employees for refus-
ing to sign an antiunion petition or for otherwise refus-
ing to withdraw support for the Union.
WE WILL NOT coercively interrogate our employees
about their union sentiments.
WE WILL NOT prepare or circulate an antiunion peti-
tion seeking the revocation of the Union’s representa-
tive status.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the rights
guaranteed them by Section 7 of the Act.
WE WILL sign and abide by the terms and conditions
of the collective-bargaining agreement found to be in
effect between our Company and the Union.
WE WILL make whole all employees in the bar-
gaining unit for any losses they may have suffered by
reason of our refusal to execute and abide by our col-
lective-bargaining agreement with the Union, with in-
terest.
WE WILL make whole all employees in the bar-
gaining unit set forth above and the Union for any
losses they may have suffered by our failure to make
the appropriate contributions to the funds established
under the above-noted collective-bargaining agreement,
with interest.
WE WILL offer Michael Silveus full and immediate
reinstatement to his former position or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earn-
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is alleged that the principal office is located in the city of
Homer. In the answer Respondent asserted that the location is actu-
ally in the Township of Albion and not in the city of Homer. It is
noted that the Respondent’s letterhead on an exhibit attached to the
initial charges in Case 7–CA–29492 reflects the city of ‘‘Homer’’
as the location. (G.C. Exh. 1(a), attachment Exh. 1.) This minor con-
flict was not resolved at the hearing. In all other respects, the com-
merce facts, as alleged, are admitted. As jurisdiction is not in issue,
this minor conflict may be resolved at the postdecision or compli-
ance stage.
2 Unless otherwise noted, the facts as set forth in this section are
either undisputed or credited.
3 All dates hereinafter refer to 1989, unless otherwise indicated.
ings suffered as a result of our discrimination against
him, with interest.
NATIONAL ROOF SYSTEMS, INC.
Ellen Rosenthal, Esq., for the General Counsel.
George T. Brannick, Esq., of Jackson, Michigan, for the Re-
spondent.
Neil J. Hirshberg, Esq., of Farmington Hills, Michigan, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case was
heard on January 22 and 23, 1990, in Ann Arbor, Michigan.
The underlying charges in Case 7–CA–29492 were filed by
Local 70, United Union of Roofers, Waterproofers & Allied
Workers, AFL–CIO (the Charging Party, Local 70, or the
Union), on July 21, 1989. The underlying charges in Case
7–CA–29611 were filed by the Charging Party on August 24,
1989, and amended on September 29, 1989. The charges and
amended charges gave rise to an order consolidating cases,
complaint and notice of hearing dated September 29, 1989,
alleging that National Roof Systems, Inc. (also Respondent
or National Roof) engaged in certain acts and conduct in vio-
lation of Section 8(a)(5), (3), and (1) of the National Labor
Relations Act (the Act).
More particularly, it is alleged that Respondent violated
Section 8(a)(5) of the Act, by refusing, since May 31, 1989,
to execute a collective-bargaining agreement embodying
terms and conditions agreed to with the Union on May 24,
1989, and that since on or about June 5, 1989, the Respond-
ent further violated that section of the Act by failing and re-
fusing to recognize the Union as the exclusive bargaining
agent for its unit employees.
It is alleged that since on or about June 5, 1989, the Re-
spondent violated Section 8(a)(3) of the Act, by terminating
its employee, Michael Silveus, because he refused to sign a
petition seeking the revocation of Union’s representative sta-
tus.
It is alleged that the Respondent independently violated
Section 8(a)(1) of the Act, by, inter alia, interrogating its em-
ployees regarding their sympathies and desires for continued
representation by the Union; circulating among its employees
a petition seeking the revocation of the Union’s representa-
tive status; and threatening employees with loss of employ-
ment if they failed or refused to sign the aforesaid antiunion
petition.
The Respondent filed an answer, admitting, inter alia, cer-
tain jurisdictional facts, the supervisory and agency status of
certain individuals, the Union’s status as a labor organiza-
tion, certain facts regarding its collective-bargaining history,
and that since on or about June 5, 1989, it has failed and
refused to recognize the Union as the exclusive bargaining
representative for the unit employees. It denied that it
reached an agreement with the Union on the terms and con-
ditions of the alleged collective-bargaining agreement and
denied that it violated the Act in any manner.
Based on the entire record, including my observations of
the demeanor of the witnesses as they testified, and after
careful consideration of the posttrial briefs, I make these
FINDINGS OF FACT
I. JURISDICTION
The Respondent, National Roof Systems, Inc., a Michigan
corporation, is engaged in the installation and repair of roofs,
primarily in the construction industry. It has maintained its
principal office and place of business at 28290 M-60 East,
in the Township of Albion,1 in the State of Michigan. In
connection with the aforenoted business operations, the Re-
spondent, during the calendar year 1988, a representative
time period, purchased and caused to be transported and de-
livered at its principal office and at various construction sites
within the State of Michigan, roofing materials and other
goods and materials valued in excess of $50,000 within the
State of Michigan, directly from points outside the State of
Michigan. It is alleged, Respondent admits, the record sup-
ports, and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events2
The Respondent, National Roof, has had a collective-bar-
gaining relationship with either the Charging Party (Local 70
of Ann Arbor, Michigan) and/or its sister Locals and Inter-
national Union since around 1986. (Volume, Vol I, Tran-
script, Tr. 12) At around that time, the Respondent had be-
come a signatory to a contract with Local 166 in the Lan-
sing, Michigan area. In 1988, Local 166 merged into Local
70, which Local continued to represent the Respondent’s em-
ployees in the Lansing area. (Vol. I, Tr. 21.) The Respondent
and Local 70 were also parties to a 2-year contact covering
Ann Arbor and the Lansing areas which contract expired on
May 31 or June 1, 1989. (Vol. I, Tr. 20; Vol. II, Tr. 143–
144.) On still another contract, the Respondent was a party
with Local 225 of Battle Creek-Kalamazoo, Michigan, cov-
ering Kalamazoo and four other adjoining counties. That
contract by its terms was effective June 1, 1987 to June 1,
1989. (G.C. Exh. 5, p. 12.) Local 225 merged into Local 70,
effective May 1, 1989. (Vol. I, Tr. 27; G.C. Exh. 1(a), Exh.
2.)
By letter dated May 12, 1989,3 Local 70 Business Man-
ager William Barber, notified the several companies under
contract with Local 225 in the Battle Creek-Kalamazoo area,
including Respondent, of the merger and that only he, Bar-
ber, ‘‘is authorized to set up meetings for contract negotia-
tions or sign a contract agreement.’’ (G.C. Exh. 6.) In a tele-
phone conversation in early May, between Barber and Dar-
967NATIONAL ROOF SYSTEMS
4 Chapman had been president of Local 225 and it appears that he
along with O’Sullivan and Miles composed part of the Local 225
bargaining committee. Barber testified that he had not invited the
aforenoted individuals to participate and did not know in advance
that they would attend the meeting. The contractors introduced these
former Local 225 members to Barber and Curry. Local 70 did not
have an employee bargaining committee at that time. (Vol. I, Tr. 34–
35, 39, 72–73.)
5 In a letter to the parent union dated April 3, Backinger noted
some of the more serious problems of competing with nonunion con-
tractors which were predominant in the Kalamazoo area. There,
Backinger listed, inter alia, the loss of union-represented shops and
the failure of the Union to take steps in protecting union contractors,
noting that there was ‘‘no picketing on any project under construc-
tion.’’ Backinger cautioned, that unless the Union provided assist-
ance, ‘‘this whole side of the state will be lost [to nonunion shops].’’
(G.C. Exh. 1(a), attachment Exh. 1.)
6 It is not clear whether all these items were merely mentioned or
discussed at the first meeting. In any event each item was clearly
discussed before the close of the second and last session on May 24.
7 The agreed-upon contractual provision reads as follows:
The Employer agrees that whenever three (3) [or] more men are
used in the application of roofing on a job covered by this
Agreement, a journeyman roofer shall be designated as a work-
ing foreman and shall be paid the foreman’s rate of pay. [G.C.
Exh. 1(a), attachment Exh. 6, art. XIII, p. 18.]
rell Backinger, Respondent’s vice president, they both indi-
cated a willingness to negotiate jointly with companies under
contract with Local 225. In addition to Respondent, the other
two contractors under contract with Local 225 in the area
were Smith-Graham Roofing and Sheriff Goslin Company
(Vol. I, Tr. 32–33). A few days later Backinger telephoned
Barber and informed him that Terry Cleland owner and
president of Smith-Graham was willing to negotiate a new
agreement jointly. The other contractor, Sheriff Goslin Com-
pany, refused to negotiate. (Vol. I, Tr. 33.) Barber,
Backinger, and Cleland agreed to conduct their first bar-
gaining session on May 19, at Cleland’s place of business in
Battle Creek.
At the May 19 session, Barber was assisted by Tom Curry,
president and business agent of Local 70, and employees and
former members of Local 225, George Chapman, Tom
O’Sullivan, and Kent Miles.4 For the contractors, Backinger
and Cleland represented their respective companies. After in-
troductions, Backinger and Cleland initiated a general discus-
sion over their concerns about competing with the great ma-
jority of nonunion contractors in the Kalamazoo area.5 Bar-
ber told the contractors that he understood the problems and
that the Union planned to step up their organizing activities
in the area. (Vol. I, Tr. 35, 108–110.)
The union representatives handed Cleland a copy of the
Local 70 Lansing area collective-bargaining agreement to use
as a frame of reference, particularly with regard to the lan-
guage for the new contract. (Vol. I, Tr. 35–36; Vol. II, Tr.
135.) Backinger already had copies and was familiar with the
wording and the terms and conditions in that contract. The
contractors merely agreed to look at the contract but did not
at that time agree to use the document as a basis for negotia-
tions. (Vol. I, Tr. 109.) Barber and Curry expressed a desire
to standardize benefits for all roofers within the jurisdiction
of Local 70 (Ann Arbor, Lansing, and Kalamazoo areas). To
accomplish this, the union officials indicated that they need-
ed about a $2 increase toward health and welfare and another
$2.10 would be deducted from employees’ checks for such
benefits as pension, apprenticeship, and vacation pay. (Vol.
I, Tr. 37–38.) Basically, the Union was looking for $2 the
first year to standardize benefits and for a long-term or 3-
year contact. The contractors, on the other hand, were look-
ing for $2 in wage concessions to be competitive and a
short-term contract. (Vol. I, Tr. 39, 109.)
Still other subjects explored or discussed at the May 19
meeting included travel pay, foreman’s pay, seniority, over-
time, and the importance of maintaining an apprenticeship
program.6 (Vol. I, Tr. 36.) At the close of the meeting the
union officials asked the contractors to review the Lansing
contract before the next session as a basis for further negotia-
tions and they agreed. (Vol. I, Tr. 40, 110–111, Vol. II, Tr.
99–100.) The meeting lasted about 2 hours. The parties made
arrangements to meet at the same place again on May 24.
Sometime between May 19 and 24 Cleland met with
Backinger over lunch to discuss the Union’s proposals.
Backinger acknowledged but Cleland denied that they also
looked at the Local 70 contract at that time. (Compare, Vol.
II, Tr. 123 with Tr. 145.) As scheduled, the parties met again
on May 24. This time, none of the former employee-mem-
bers of Local 225 attended. Thus, Barber and Curry rep-
resented the Union and Backinger and Cleland appeared for
their respective companies. Early on, the parties agreed to
use the wording as contained in the Lansing area contract.
Cleland highlighted special concerns which he wanted dis-
cussed and clarified. One such subject involved the fore-
man’s pay. Under the Local 70 contract, a second employee
on the job would require foreman’s wages; whereas, under
the old Local 225 agreement, three or more employees had
to be on the job for anyone to qualify for the foreman’s
wages. The Union agreed to satisfy Cleland’s proposal for
foreman’s pay to apply when there are three men on the
job.7 (Vol. I, Tr. 45, 111–112; Vol. II, Tr. 124.)
Another of Cleland’s concerns, as well as that of
Backinger, was over travel pay. Cleland proposed extending
the travel free zone from 20 miles to 25 miles to enable him
to bid more competively in the Kalamazoo area. The union
officials agreed to satisfy Cleland and Backinger on travel
pay. (Vol. I, Tr. 45–46, 112, 117–118; Vol. II, Tr. 123–124.)
Further, as an inducement for Cleland and Backinger to
agree on a contract package, the Union noted that Local 70’s
contract, unlike that of Local 225, does not contain a senior-
ity provision and it was willing to eliminate seniority from
the new agreement. As testified by Barber: ‘‘We thought it
would help [Backinger and Cleland compete by not having
the seniority clause and the men would be more production
oriented.’’ (Vol. I, Tr. 46–47.)
On the subject of wages, the parties finally reached an
agreement on $2 an hour the first year and an additional 80
cents for each of the next 2 years, as proposed by the Union,
and only after the Union made other concessions including
a wage reopener. (Vol. I, Tr. 48–51, 115–118.) For Cleland,
a major obstacle to the Union’s wage proposal was the fact
that he had already executed a number of construction con-
tracts under a bid which was based on the old labor contract
wage rates. (Vol. I, Tr. 51; Vol. II, Tr. 95–96.) To satisfy
Cleland, the union officials asked Cleland to submit a list of
such contracts to them and they would explain to the em-
ployees why, for those jobs, they had to be paid under the
old contract thereby obviating the need to penalize the em-
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Both Silveus and Drake testified on behalf of the General Coun-
sel. Their testimony was, at times, confusing and disjointed regard-
ing what transpired at the meeting. I believe the confusion comes
largely from difficulties in articulating generally and, more particu-
larly, in expressing themselves about an event which occurred nearly
8 months earlier, rather than reflective of a lack of candor on their
part. Luther Luke was a witness for the Respondent but was not
questioned about the substance of the meeting. Similarly, Darrell
Backinger did not testify about this meeting as part of the Respond-
ent’s case. However, when questioned by me and by counsel for the
General Counsel about the meeting, Backinger corroborated a num-
ber of the statements ascribed to him by Silveus and Drake. Under
all the circumstances, including factors noted, infra, reflecting ad-
versely on Backinger’s credibility and on the basis of demeanor con-
siderations, I credit Silveus and Drake over Backinger. Backinger
admitted telling the employees of the Union’s proposals as well his
reservations therewith. He also admitted, inter alia, asking the em-
ployees whether they wanted him to continue to negotiate—‘‘was it
worth it for me to keep talkimg to [the Union] or should I just tell
them to shove it.’’ (Vol. II, Tr. 148–49.)
ployer for the wage increase. (Vol. I, Tr. 51.) Near the end
of the meeting, the parties reviewed all the terms and condi-
tions to ensure they were in agreement.
According to Barber and Curry, at the end of this meeting,
which lasted from 2 to 2-1/2 hours, the parties had reached
a full agreement on a new 3-year contract subject to ratifica-
tion. (Vol. I, Tr. 50–56, 119.) Further, they testified that they
told Backinger and Cleland that they would have the agree-
ment typed and taken for a ratification vote at the union
meeting scheduled for the last Tuesday in the month (May
30) and then make arrangements with them to have the con-
tract executed. Backinger and Cleland denied that the parties
had reached agreement on a full contract at that meeting.
Backinger also denied that the Union indicated that it
planned to take the agreement to the membership for a ratifi-
cation vote. (Vol. II, Tr. 132–133.) Cleland testified that he
did not remember anything said about a vote but ‘‘at some
point in time, either on May 19th or May 24th, [ratification]
was brought out that it would have to be brought back out
to the entire union body.’’ (Vol. II, Tr. 97–98.)
On or about May 29, Barber received a telephone call
from Attorney George Brannick who informed Barber that he
represented National Roof and that he wanted to set up a
schedule for negotiations. Barber told Attorney Brannick that
the Union had already negotiated an agreement with Cleland
and Backinger and pointed out that a ratification meeting was
scheduled the following evening. Brannick told Barber that
he would have to discuss the matter with Backinger and get
back to him. (Vol. I, Tr. 59.) Barber then telephoned
Backinger and asked why he had his attorney contact him
about negotiations when they already had negotiated an
agreement which was about to be taken to the membership
for ratification. Backinger told Barber that his employees
were not satisfied and were going to vote to decertify the
Union. (Id. at 60.)
The membership ratified that agreement on May 30. (G.C.
Exh. 1(a), attachment Exh. 5; Vol. Tr. 61.) On or about June
1, Backinger assembled his employees and discussed matters
pertaining to the recently concluded contract negotiations and
the employees’ desires to have the Union continue to rep-
resent them. In addition to Darrell Backinger, there were two
brothers, Ron and Doug Backinger, and Foreman Charlie
Bowers at the meeting. The employees attending were Mi-
chael Silveus, Brian Drake, Alan Luke, Donnie Luke, and
Luther Luke.
As testified by former employee Michael Silveus, Darrell
Backinger told the employees at this meeting that he was in-
terested in knowing whether they wanted to remain with the
Union. Silveus told Backinger he was not then able to make
such a quick decision. At some point the three Lukes and
Drake left the office to discuss among themselves whether
they wanted the Union. Silveus, with corroboration from
former employee Brian Drake, testified that Drake told
Backinger that he wanted to stay in the Union.8 (Vol. II, Tr.
7–8, 68.) Backinger spoke of the negotiations recently com-
pleted and complained that the wages and other benefits were
too expensive and that they could do as well or better with-
out the Union. Silveus testified, without contradiction, that he
overheard Backinger tell his brothers that he thought he
could get out of the of the contract and placed a phone call
to Cleland in Silveus’ presence. (Vol. II. Tr. 9–10.)
By letter dated June 1, Respondent’s attorney, Brannick,
advised Neil Hirshberg, the union attorney, ‘‘that a serious
question arises concerning representation by Local 70’’ vis-
a-vis the Respondent’s employees and that of Cleland’s com-
pany. (G.C. Exh. 1(a), attachment Exh. 7.) There, Brannick
also indicated that Respondent needed documentation that
Local 70 is the successor to Local 225 before Respondent
would bargain and negotiate with the Union. (Ibid.)
The following day, June 2, shortly after lunch, Backinger
appeared at the National Guard Unit jobsite to hand out pay-
checks to Silveus and other employees working at that loca-
tion. After distributing the paychecks, Backinger approached
Silveus and handed him a union disaffection petition which
Backinger asked him to sign. Silveus testified that Backinger
cautioned him that if he failed to sign, he could no longer
work for him (Backinger). At the time no other name ap-
peared on the petition. Silveus told Backinger that he would
not make a snap decision and wanted to think about it over
the weekend. (Vol. II, Tr. 13–14.) Backinger admitted the
substance of Silveus’ testimony except for the threat to dis-
charge the latter. According to Backinger, when Silveus
asked for more time to think about adding his signature to
the petition, the former merely said fine and nothing else.
(Vol. II, Tr. 141.) Backinger’s testimony in this regard was
corroborated by employee Luther Luke, who was nearby
when Backinger asked Silveus to sign the petition. Backinger
also acknowledged that the petition was typed by an office
clerical under his direction. (Ibid.)
The next working day, Monday, June 5, Silveus drove one
of the company van’s to the Pack-A-Plaza parking lot where
the carpool usually met on the way to the jobsite. Silveus did
not wear his typical work clothes because he was not going
to sign the petition and did not expect Backinger to permit
him to work. He asserted that he would have worked in the
outfit he was wearing as he had done in the past if Backinger
indicated otherwise. Backinger met Silveus at Park-A-Plaza
with the antiunion petition in his hand and asked the latter
if he was going to sign and Silveus responded in the nega-
tive. Within minutes, Backinger asked Silveus if he would
drive the van back to Respondent’s facility. Silveus told
Backinger that he would do so but needed a ride back to his
house. Darrell Backinger was already at the shop at the time
Silveus arrived with the van. Silveus and Backinger spoke
969NATIONAL ROOF SYSTEMS
9 Still later, Cleland testified, ‘‘I don’t remember [the union offi-
cials] saying anything about taking a vote on it.’’ (Vol. II, Tr. 98.)
Also militating against the reliability of Cleland’s overall testimony
were some recent unspecified personal problems which made ‘‘dates
and a lot of things’’ difficult for him to remember. (Vol. II, Tr. 115.)
briefly while the former was waiting for his ride home.
Backinger asked Silveus what he would be doing and the lat-
ter indicated that he would be working on a new construction
job. (According to Silveus, after his exchange with
Backinger on Friday over the signing of the petition, the
former contacted Tom Curry, union president, because he
wanted another job lined up if he refused to sign the peti-
tion.) Darrell Backinger’s brother Ron drove Silveus home.
(As noted previously, it is alleged that Respondent termi-
nated Silveus in violation of Section 8(a)(3).)
In early June, Barber and Curry visited Backinger at Re-
spondent’s facility with the typed formal contract ready for
execution. Backinger told the union officials that while he
did not have any problems with the contract, he had to con-
sider the desires of his employees and they wanted to go
nonunion. Barber told Backinger to review the contract and
that he would get together with Backinger later for his signa-
ture. Backinger told Barber that the Union also faced a prob-
lem with Cleland over the contract. Barber informed
Backinger that he and Curry were on their way to visit
Cleland.
Cleland’s principal concern was over project bids under
the expired contract wage rate. While the new contract did
not provide the protection Cleland wanted, Barber and Curry
reiterated the assurances given to Cleland on May 24, to wit,
that he would not be required to pay the new wage rates for
jobs previously bid. The union officials left the contract with
Cleland to proofread, review, and confirm that the provisions
comported with the agreements reached during negotiations.
Approximately 1 week later, Cleland signed the contract.
(Vol. I, Tr. 64; G.C. Exh. 1(a), attachment Exh. 6.) Cleland
acknowledged that the contract he signed was consistent with
everything agreed to during negotiations except for a typo-
graphical error involving travel pay which was corrected.
(Vol. II, Tr. 109.) Backinger denied that he reached any
agreement with the Union and has refused to sign the same
contract.
B. Discussion and Conclusions
1. Whether the Respondent agreed to the terms and
conditions of a collective-bargaining agreement
It is alleged that the Respondent reached a full agreement
with Local 70 on a new 3-year contract on May 24, subject
only to ratification which occurred on May 30. The record
disclosed that Backinger, on behalf of Respondent, and that
Cleland, on behalf of his company, bargained jointly with
Local 70, as the successor to Local 225 for a new collective-
bargaining agreement. The parties met on May 19 and again
on May 24 at which later date, according to union nego-
tiators Barber and Curry, the parties had reached a full agree-
ment. Cleland and Backinger denied that the parties had
come to a full agreement on May 24, although Cleland ac-
knowledged that the contract he executed was entirely con-
sistent with all the terms and conditions agreed to on May
24, except for a typographical error involving travel pay
which was corrected. Backinger has refused to execute the
agreement. Whether Backinger was so justified turns almost
entirely on the credibility of Barber and Curry versus that of
Cleland and Backinger.
In crediting Barber and Curry over Respondent’s wit-
nesses, I rely on demeanor factors as well as noting that their
testimony, in the main, was mutually corroborative, and in-
ternally consistent with the record as a whole. Thus, the
union officials testified that they explained to Cleland and
Backinger, the steps to be taken to submit the agreement
reached on May 24 to the contractors in a form ready for
them to execute. In this regard, they told Cleland and
Backinger that the agreement had to be taken to the member-
ship to vote on ratification and then to be typed and pre-
sented to them (the contractors) for their signatures. (G.C.
Exh. 1(a), attachment Exh. 4; Vol. I, Tr. 55–56, 122.) The
record disclosed that the membership ratified the agreement
on May 31. (G.C. Exh. 1(a), attachment Exh. 5.)
I reject Backinger’s denial that he had any idea on May
24 that the Union indicated that it would present the pro-
posals which were negotiated to its membership for a ratifi-
cation vote. (Vol. II. Tr. 133–134.) In this connection, it is
noted that even Cleland acknowledged, when asked about
ratification, that the Union would have to go back to the
‘‘entire union body.’’ (Vol. II, Tr. 97–98.) While Cleland
gave conflicting accounts, he also testified that ‘‘the entire
union body would have to vote [emphasis added] on what-
ever was talked about.’’9 (Vol. II, Tr. 97.) Given, the con-
flicting testimony of one Respondent’s witness (Cleland), and
the total ignorance on this subject from Respondent’s other
chief witness (Backinger), I find that their testimony is not
only inconsistent with each other but, as such, it also tends
to cast doubt regarding the overall credibility of these wit-
nesses.
In discounting Backinger’s testimony, it is noted that on
direct examination, he was questioned only in broadest
terms, on whether he had come to any agreement affecting
wages, hours, and other terms and conditions of employment.
To this, Backinger responded, ‘‘No.’’ (Vol. II, Tr. 127.)
Thus, Backinger was not asked as part of Respondent’s case,
specifically, whether the parties had come to any agreement
on wages, seniority, foreman’s pay, travel pay, and other
items which even Cleland admitted had been agreed to at the
last session on May 24. In this connection, Cleland had ac-
knowledged to the NLRB Regional Office during the course
of the investigation of the charges in Case 7–CA–29492, that
the Union’s wage proposals at that second meeting was ac-
ceptable because of the number of concessions made by the
Union on other items. (G.C. Exh. 7.) Significantly, Backinger
did not specifically deny that agreement had been reached on
any of these items. Rather, he only denied a question posed
in boiler plate language dictating a legal conclusion as to
whether the parties had reached a full agreement on a con-
tract.
Backinger asserted belatedly, after completing his testi-
mony on direct examination, without corroboration from
Cleland, that issues still open after the May 24 meeting in-
volved floating overtime, qualification for insurance, and the
problems of competing with nonunion companies. (Vol. II,
Tr. 132–133.) Clearly, the last of these items is not a manda-
tory subject of bargaining. As for the issues of overtime and
insurance, the credited testimony disclosed that these matters
had been discussed and were no longer issues by the time
the parties reached a full agreement on a new contact at the
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The credited testimony disclosed that Cleland and Backinger
were told by Barber that the complete agreed-upon contract package
would be submitted to the union membership to vote on ratification.
Respondent does not contend, nor do I find, that it effectively repu-
diated its agreement before the contract was ratified. Cf. Loggins
Meat Co., 206 NLRB 303, 307–309 (1973); see also Tri-Products
Co., 300 NLRB 974 (1990).
11 The General Counsel’s brief points out that the alleged unit
‘‘mirrors that delineated in the Local 225 contract and the language
agreed upon by the parties and is presumptively appropriate.’’ Re-
spondent, in its answer, neither denies nor admits the the allegation
on the basis that Ronald Backinger and Douglas Backinger (admitted
supervisors) were unit members. As Respondent did not address this
allegation at the hearing or in its brief, it does not appear that the
unit allegation is contested. The record is devoid of any evidence
tending to show that supervisors are involved in the control or ad-
ministration of union business. In the absence of any demonstrated
conflict of interest, and none has been shown to exist herein, mere
membership in the unit by supervisors is not sufficient to invalidate
an otherwise appropriate unit. Highland Hospital, 288 NLRB 750
(1988). Given also Darrell Backinger’s active participation in the ne-
gotiations leading to a full collective-bargaining agreement covering
his employees with the traditional exclusions, I find the unit appro-
priate as alleged. See, e.g., Joseph Stern & Sons, 297 NLRB 1 fn.
2 (1989).
12 While the complaint alleged a 9(a) bargaining relationship, this
is not supported by the record, as acknowledged by counsel for the
General Counsel in her brief. It is contended, and I have previously
observed, the Respondent is a construction industry employer and
and its bargaining obligations are by virtue of Sec. 8(f).
end of the session on May 24. Curry credibly testified, with-
out contradiction, that to satisfy Backinger, the union offered
to have his employees to come in at a lower requalification
rate for insurance coverage ‘‘so that it wouldn’t [be] a bur-
den on his [Backinger’s] employees.’’ (Vol I, Tr. 138–139.)
On the issue of overtime, the union officials explained the
need to standardize certain terms including overtime and re-
jected Respondent’s proposal not to pay overtime after 8
hours of work in any given day. The matter was dropped
thereby leaving the contractual language on this subject un-
changed. (Vol. I, Tr. 58, 120.)
The credited testimony disclosed that Cleland and
Backinger bargained jointly with the Union for essentially
the same contract. Further, at the close of the May 24 ses-
sion, the parties summarized all the terms and conditions of
the new full collective-bargaining agreement which were
reached at that meeting subject only to ratification. At noted
previously, this was the same agreement signed by Cleland
and subsequently repudiated by Backinger. The old Local
225 agreement terminated on June 1, 1989, at 12:01 a.m.
(G.C. Exh. 5, p. 12.) The new contract, with Local 70 (the
successor to Local 225), by its terms is effective from June
1, 1989, through May 31, 1992. (See G.C. Exh. 1(a), attach-
ment Exh. 6.) That agreement was ratified on May 30, 1989,
before the old agreement terminated. Thus, there was no time
gap in which Backinger was at liberty to lawfully repudiate
either the old or new agreements, even if the new contract
had not yet been typed and formally presented to him for his
signature. See generally Cedar Valley Corp., 302 NLRB 802
(1991).
The record disclosed that Respondent is an employer en-
gaged in the construction industry and, as such, its collec-
tive-bargaining contracts are 8(f) agreements. It is undisputed
that in early June 1989, Barber and Curry presented
Backinger the new 8(f) agreement to execute. This Backinger
refused to do and, in effect, repudiated the agreement.10 In
Cedar Valley Corp., supra, the Board recently reaffirmed the
principle that a party may not lawfully repudiate an 8(f)
agreement during its term, citing, John Deklewa & Sons, 282
NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 109 S.Ct.
222 (1988). It is also well settled that a party is obligated,
on request, to sign a written contract embodying the terms
and conditions of the full and complete oral agreement.
Heinz v. NLRB, 311 U.S. 514 (1941). In view of the fore-
going and in the total circumstances of this case, I find the
Respondent’s refusal to execute the agreement it was pre-
sented in early June violated Section 8(a)(5) and (1) as al-
leged.
2. Whether the Respondent unlawfully withdrew
recognition from Local 70
The record disclosed that after Backinger learned that
Local 70 was the successor to Local 225, he met and nego-
tiated a full contract package with officials of the successor
organization, Local 70. By letter dated June 1, 1989, after the
new contract had been ratified, the Respondent, by its attor-
ney, raised the issue of Local 70’s status as a successor orga-
nization for the first time. It appears that after Backinger
agreed to the contract package, he changed his mind and en-
gaged in a course of conduct (discussed more fully, infra) to
rid himself of any collective-bargaining responsibilities. Nei-
ther at the hearing nor in its brief does the Respondent ques-
tion the standing of Local 70 as a successor. Thus, it appears
that Respondent has abandoned successorship as an issue.
In any event, the complaint alleged and Respondent’s an-
swer admitted that since on or about June 5, 1989, the Re-
spondent has failed and refused to recognize Local 70 as the
exclusive collective-bargaining representative of the appro-
priate unit.11 As the Respondent was already obligated to ad-
here to the terms and conditions of the new contract (for rea-
sons discussed in sec. 1, supra), it is thereby precluded from
repudiating a collective-bargaining agreement during its term
or challenging the Union’s representative status during the
term of that agreement without going through the Board’s
election processes.12 See John Deklewa & Sons, supra at
1383 fn. 31, 1385. In short, Respondent’s failure and refusal
to recognize the Union is violative of Section 8(a)(5) and (1)
as alleged.
3. Whether Respondent coercively interrogated
its employees
It is undisputed that on or about May 31, 1989, Backinger
conducted a meeting of his employees at his facility where,
inter alia, he informed them of the contract negotiations and
of the various reservations he had with the contract package.
He also solicited employee input as to which direction he,
Backinger, should take regarding future negotiations. As tes-
tified by Backinger, he asked his employees to leave the
meeting to consult among themselves and to let him know
whether to continue to negotiate ‘‘or should I just tell [the
Union] to shove it.’’ (Vol. II, Tr. 148–149.) Backinger also
testified that he told the employees that they could go non-
971NATIONAL ROOF SYSTEMS
13 See John Deklewa & Sons, supra at 1385, where the Board in-
structed: ‘‘Where parties enter into an 8(f) agreement, they will be
required, by virtue of Section 8(a)(5) and Section 8(b)(3), to comply
with that agreement unless the employees vote, in a Board conducted
election, to reject (decertify) or change their bargaining representa-
tive.’’ [Emphasis added, citation omitted.]
14 On the basis of my observation of Luke’s demeanor as well as
the limited nature of his testimony (Luke was asked nothing about
Backinger’s remarks at the employee meeting dealing with the con-
tract negotiations and the polling of employees), I find somewhat
suspect Luke’s certainty that he heard the entire conversation and re-
called everything that was said approximately 8 months ago on the
occasion in question. Additionally, it is noted that Luke was still em-
ployed by Respondent at the time he testified and admitted that he
did not want to be represented by the Union which factors tend to
militate against assessing his testimony as a disinterested witness. It
is also noted that Luke was present in the hearing room when
Backinger testified. These circumstances do not inspire confidence in
the independence or reliability of Luke’s testimony. Under all the
circumstances, including demeanor factors, I give no weight and re-
ject Luke’s account which was almost identical to that provided by
Backinger (a witness whose testimony in other critical areas has
been rejected).
union but he denied asking them their opinion on this sub-
ject. (Vol. II, Tr. 150.)
Silveus and Drake credibly testified that Backinger asked
each of the employees whether they wanted Respondent to
remain a union company. (For reasons stated previously, I re-
ject Backinger’s denials where in conflict with the testimony
of Silveus and Drake.) While it appears that Backinger may
have committed a number of independent unfair labor prac-
tices at this meeting, including direct dealing with employees
and bypassing and undermining the Union’s bargaining posi-
tion, the complaint only alleged coercive interrogation re-
garding the employees’ desires for continued membership in
and representation by the Union. As such, my findings as to
the occasion in question address only the allegation although,
I have considered the other factors in assessing the total cir-
cumstances. See generally Rossmore House, 269 NLRB 1176
(1984), and its progeny.
The record is devoid of any evidence to justify
Backinger’s questioning or polling his employees regarding
their union sentiments. Backinger had already obligated the
Respondent to a new 3-year agreement at the time of the
meeting so that, under Deklewa principles,13 he could not
then challenge, in the absence of a valid election petition, the
Union’s majority or 8(f) bargaining status. Moreover, assum-
ing arguendo, Respondent faced an open period to contest
the 8(f) bargaining relationship, Backinger clearly did not
comport with longtime Board safeguards, as set forth in
Strucknes Construction Co., 165 NLRB 1062, 1063 (1967),
which required, absent unusual circumstances (none shown
here), inter alia, polling by secret ballot and unambiguous as-
surances against reprisals. As noted by the Board, ‘‘Secrecy
of the ballot will give further assurance that reprisals cannot
be taken against employees because the views of each indi-
vidual will not be known.’’ (Ibid; cf. Boaz Carpet Yarns, 280
NLRB 40 (1986).)
In assessing the foregoing and the total context of
Backinger’s comments at the meeting, I am persuaded and
I find that his inquires of employees regarding their union
sentiments amounted to unlawful interrogation as alleged.
4. The antiunion petition, the threat of discharge, and
the alleged discharge
It is undisputed that on or about Friday, June 2, Darrell
Backinger circulated among the employees a petition seeking
the revocation of the Union’s representative status. The peti-
tion had been typed by an office clerical under the direction
and supervision of Backinger. (Vol. II, Tr. 140–41.) The
record is devoid of any corroborative or credible testimony
tending to show that Backinger’s efforts or assistance regard-
ing this petition had been requested by employees. Silveus
credibly testified that Backinger told him that if he did not
sign the petition, he could no longer work for Backinger.
Silveus, in turn, told Backinger, that he needed more time to
think about it and would let him know on Monday.
Backinger admitted asking Silveus to sign and that the latter
had requested additional time to ponder the request but de-
nied that he threatened Silveus. Employee Luther Luke, over-
heard the verbal exchange and he testified that Backinger did
not threaten Silveus. I have rejected Luke’s testimony on this
point.14
First, the record is abundantly clear that Backinger im-
properly and within the meaning of Section 8(a)(1) com-
posed an antiunion petition which he circulated among his
employees and exhorted them to sign. See Erickson’s Sentry
of Bend, 273 NLRB 63 (1984); cf. Birmingham Ornamental
Iron Co., 240 NLRB 898, 901–902 (1979) (no showing that
the supervisor urged any employee to sign the antiunion peti-
tion); Morse Electro Products Corp., 210 NLRB 1075, 1076
(1974) (no showing that Respondent ‘‘sponsored, encour-
aged, or participated in the circulation of the Decertification
Petition’’). As I have credited Silveus’ full account of this
encounter, I find that Backinger threatened him with the loss
of employment if he failed and refused to sign the petition,
thereby additionally violating Section 8(a)(1), as alleged. I
turn now to consider the alleged discharge of Silveus on June
5.
It is undisputed that Silveus asked Backinger for more
time to consider whether to sign the petition. Silveus credibly
testified, without contradiction, that he told Backinger that he
wanted the weekend to think about signing and that he would
let him know on Monday. On the morning of Monday, June
5, in a parking lot before the workday began, Backinger
again solicited Silveus’ signature. This time, Silveus told
Backinger that he would not sign the document. Within min-
utes, Backinger asked Silveus to drive the Company van
back to Respondent’s shop rather than to the jobsite which
confirmed for the latter that he was discharged. Shortly after
Silveus dropped the van off, Backinger’s brother drove
Silveus home, as the latter requested because he was no
longer working for the Company and was without transpor-
tation. Darrell Backinger denied that he discharged Silveus
but did not testify to the events of June 5 nor did anyone
else on behalf of Respondent.
According to Silveus, he may not have worn his usual
work clothes on June 5 because he had decided that he
would not sign the petition and understood from Darrell
Backinger’s threat on Friday, that if he failed to do so, he
was terminated. However, Silveus also asserted that had
Backinger permitted him to work, he would have done so
and without regard to the clothes he had on at the time. In
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Backinger had expressed his concerns to the Union and to his
employees about the amount of work going to nonunion companies
in the western part of Michigan. Yet, incredibly, Backinger also as-
serted during his testimony that he did not believe that it would be
easier for him to compete with nonunion companies if the Respond-
ent was also nonunion. (Vol. II. Tr. 151–152.) Backinger’s most ac-
tive role in preparing and circulating the antiunion petition, inter
alia, tend to belie such assertion.
this connection, he testified without contradiction, that he
had done so in the past. (Vol. II, Tr. 44.)
Backinger did nothing on the occasion in question, to dis-
abuse Silveus from any possible misconception, regarding the
import of his threat. The test is whether Backinger’s state-
ments and action reasonably led Silveus to believe that he
was terminated. See Pink Supply Corp., 249 NLRB 674
(1980); C. J. Krehbiel Co., 227 NLRB 383, 384 (1976);
Here, I find that Backinger’s words and action clearly sup-
ported Silveus’ perception of the consequences of his failure
to sign. Thus, Backinger had Silveus drive the company van
back to the office instead of to the jobsite where the latter
was scheduled to work. Further, as testified credibly by
Silveus, without contradiction, shortly after he returned the
van to Respondent’s facility, Backinger asked him ‘‘what
[he] was going to be doing.’’ In context, those words only
have meaning if it follows that Silveus’ employment, was al-
ready treated by Backinger to be at an end. Silveus had been
employed by Respondent for 6 years, and there is no record
testimony suggesting that Backinger made any effort to in-
duce Silveus to remain an employee for Respondent or to in-
quire why his longtime employee was leaving.
Respondent’s antiunion animus is amply demonstrated on
the record. As noted above, Backinger was deeply involved
in preparing and circulating the antiunion petition and threat-
ened to terminate Silveus for refusing to sign it.15 Counsel
for the General Counsel has also established the other ele-
ments necessary for a prima facie discriminatory discharge
finding: Silveus’ support for the Union, Respondent’s knowl-
edge thereof, and the timing of the discharge on the heels of
Silveus’ refusal to sign the antiunion petition. On the other
hand, the Respondent has failed to show that Silveus would
have been terminated for reasons other that his support for
the Union. See Wright Line, 251 NLRB 1083, 1089 (1980).
In short, I find that Respondent threatened to discharge
Silveus in violation of Section 8(a)(1) and subsequently ter-
minated him, in violation of Section 8(a)(3) and (1), as al-
leged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of Respondent (the unit) con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time skilled roofers, damp
and waterproofers employed by Respondent working at
or out of its facility located at 28290 M-60 East,
Homer, Michigan: but excluding office clerical employ-
ees guards and supervisors as defined in the Act.
4. By virtue of Respondent’s collective-bargaining history
and Section 8(f) of the Act, the Union is the limited exclu-
sive collective-bargaining representative of Respondent’s em-
ployees in the unit described above.
5. By refusing to execute a full and complete collective-
bargaining agreement it reached with the Union on May 24,
1989, effective by its terms from June 1, 1989, through May
31, 1992, covering the unit described above, despite subse-
quent timely requests to do so by the Union, the Respondent
has violated Section 8(a)(5) and (1) of the Act.
6. By failing and refusing since on or about June 5, 1989,
to recognize the Union as the exclusive collective-bargaining
representative for the unit described above, the Respondent
has additionally violated Section 8(a)(5) and (1) of the Act.
7. By discharging its employee, Michael Silveus, because
he refused to sign an antiunion petition, the Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
8. By coercively interrogating its employees; circulating a
petition seeking the revocation of the Union’s representative
status; and threatening its employees with the loss of em-
ployment for failing or refusing to sign the petition, the Re-
spondent has violated Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices within the meaning of the Act, I shall
recommend that it cease and desist therefrom, and to take
certain appropriate action to effectuate the purposes and poli-
cies of the Act.
Having found that the Respondent has refused to execute
and abide with the terms and conditions of the collective-bar-
gaining contract with which it was obligated to fulfill, I shall
recommend that it be ordered to make unit employees whole
in the manner set forth in Ogle Protection Service, 183
NLRB 682, 683 (1970), with interest prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987). In addition,
the Respondent shall pay any contractually agreed-on health
and welfare, pension, or other trust funds which said Re-
spondent was obligated to make to the Union on behalf of
unit employees in accordance with the Board’s decision in
Fox Painting Co., 263 NLRB 437 (1982); see also F. A.
Ford Electrical Contracting, 296 NLRB No. 84 (Sept. 20,
1989) (not reported in Board volumes). Any interest owed
thereon should be determined and paid as set forth in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
Having found that the Respondent terminated Michael
Silveus in violation of Section 8(a)(3), I shall recommend
that the Respondent be ordered to offer him immediate and
full reinstatement to his former position or, if such position
no longer exists, to a substantially equivalent job, without
prejudice to his seniority and other rights and privileges, and
to make him whole for any loss of earnings suffered as a re-
sult of the discrimination, with backpay computed in accord-
ance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in New Ho-
rizons for the Retarded, supra.
973NATIONAL ROOF SYSTEMS
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
17 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, National Roof Systems, Inc., Homer,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 70, United Union of
Roofers, Waterproofers & Allied Workers, AFL–CIO by re-
fusing to recognize the union as the exclusive bargaining rep-
resentative for the following appropriate unit:
All full-time and regular part-time skilled roofers, damp
and waterproofers employed by Respondent working at
or out of its facility located at 28290 M-60 East,
Homer, Michigan; but excluding office clerical employ-
ees guards and supervisors as defined in the Act.
(b) Refusing to bargain with the Union, by failing to exe-
cute and abide by the terms and conditions of the collective-
bargaining agreement in effect between the Respondent and
the Union.
(c) Threatening to terminate, terminating, or otherwise dis-
criminating against employees for refusing to sign an
antiunion petition or refusing to withdraw support for the
Union.
(d) Coercively interrogating and polling employees to as-
certain their union sentiments.
(e) Preparing and circulating an antiunion petition seeking
the revocation of the Union’s representative status.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain with the Union as
the exclusive representative of the employees in the appro-
priate unit set forth above with regard to terms and condi-
tions of employment.
(b) Sign and abide by the terms and conditions of the col-
lective-bargaining agreement in effect between Respondent
and the Union.
(c) Make whole all employees in the bargaining unit and
the Union, for any losses they may have suffered by reason
of Respondent’s failure to make the appropriate contributions
to the various funds established under the applicable collec-
tive-bargaining agreement, with interest, in the manner set
forth above in the remedy section of this decision.
(d) Offer Michael Silveus full and immediate reinstatement
to his former position or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and make him whole
for any loss of pay suffered as a result of the discrimination
against him in the manner set forth above in the remedy sec-
tion of this decision.
(e) Preserve and, on request, make available to the Board
or its agents for examining and copying, all payroll records,
and reports, and all other records necessary to analyze the
amount of backpay and other moneys due under the terms
of this Order.
(f) Post at its facility in Homer, Michigan, copies of the
attached notice marked ‘‘Appendix.’’17 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.