Reliable Roofing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1980

250 N.L.R.B. 456 (N.L.R.B. 1980)

DE4CISI()NS O()F NATI()NAI. LAB()R REILATI()NS H()ARD
Reliable Roofing Company, Inc. and Local Union
No. 183, United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers Asso-
ciation, AFL-CIO. Case 7-CA-14735
July 7. 1980
DECISION AND ORDER GRANTING
RECONSIDERATION AND
REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUGDE
BY CHAIRMAN FANNING ANI) MEMBERS
JENKINS AND PENFI.I.0
On February 23. 1979, Administrative Law
Judge Marion C. Ladwig issued a Decision in the
above-entitled proceeding recommending that the
complaint be dismissed in its entirety. Thereafter,
the General Counsel filed exceptions and a sup-
porting brief. On December 4, 1979, the National
Labor Relations Board issued its Decision and
Order,' in which it reversed the Administrative
Law Judge in pertinent part, and found that Reli-
able Roofing Company, Inc. (Respondent), had en-
gaged in certain unfair labor practices affecting
commerce within the meaning of Section 8(a)(l)
and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended.
Thereafter, Respondent filed a "Request for Re-
Evaluation" of the Board's Order, which the Board
treated as a motion for reconsideration. On January
24, 1980, Respondent filed additional material in
support of its motion. Copies of the aforesaid sub-
missions were served on the other parties to this
proceeding.
Respondent in its motion asserted in essence that
it did not commit an unfair labor practice by un-
timely withdrawal from multiemployer bargaining
because, in effect, there was no actual multiem-
ployer group; i.e., that, while several employers
concurrently met with the Union, there was no ex-
press consent to be bound by group action, but
rather each employer remained free to act individ-
ually. Respondent further contended in essence
that, even assuming, arguendo, it was part of a mul-
tiemployer group, its withdrawal was nevertheless
privileged. Thus, Respondent asserted that its with-
drawal was premised on dire economic circum-
stances which were in fact known to the Union's
officers and negotiators-particularly its president,
a former employee who had recently voluntarily
left Respondent-and consequently, in the circum-
stances of this case, the Union's acquiescence to
Respondent's withdrawal was both intentional and
specific, and was of such a nature as to constitute
246 NLRH Ni, 118
250 NLRB No. 69
actual consent.2 Respondent further asserted that,
by virtue of its extant financial indebtedness, impo-
sition of the Board's Order would force it into
bankruptcy to the detriment of its employees, the
community-at-large, and existing creditors, includ-
ing Federal and state governmental agencies, as
well as private institutions and individuals.
Having duly considered the matter, the Board,
on April 2, 1980, issued a Notice To Show Cause
why the Board should not accept Respondent's
submissions as accurate and, if accepted, should not
deem them a sufficient basis to grant Respondent's
motion and dismiss the complaint herein, or to
remand this proceeding to an administrative law
judge. On April 18, 1980, counsel for the General
Counsel filed a response to the Notice To Show
Cause and request that Respondent's motion for re-
consideration be denied.
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.
Counsel for the General Counsel in his response
argues that, contrary to the Notice To Show
Cause, the instant case does not present extraordi-
nary circumstances which would warrant the
Board's reconsideration of its Decision and Order.
Thus, counsel for the General Counsel contends
that none of the evidence which Respondent seeks
to present concerning membership in a multiem-
ployer unit, purported dire economic circum-
stances, Respondent's withdrawal, or the Union's
alleged acquiescence is either newly discovered or
was unavailable at the time of the original hearing.
Counsel for the General Counsel further contends
that Respondent's position that it cannot comply
with the Board's Decision and Order does not war-
rant the Board's reconsideration thereof, and is not
relevant in this context, but should more properly
be left for a compliance proceeding. We do not
agree with counsel for the General Counsel's argu-
ments for, as indicated in the Notice To Show
Cause, Respondent's submissions, if accepted as ac-
curate, might be deemed sufficient basis to dismiss
the complaint herein. Finally, counsel for the Gen-
eral Counsel submits that the facts alleged by Re-
spondent in its motion are "replete with hearsay
and unsupported conclusionary statements [and] are
inaccurate." Counsel for the General Counsel
therefore alternatively requests that, in the event
2 I lliminllsmg Ihc colllplainll the Adrmlll,,al li', .;lu, Jtudge Intiaill
Itlltld it ullllsCsLlr, It} rilllc 11 Ihhe %tf'lcicil. if RL.poI\ tk'1lll'\ L'tIolItlliC
irgumentl. Illili llllch il ' concludtili d hlut the Unllillil Ihid ill r;i. ilaqi-
c,c*d ill Rcplndcl'S uilA l dril'all allhtmgh hI t Ictlerilf'lfter aippeared Ito
tC11CitlIiC e ttii requiring R ~epondciii i atlld in tgll ir li ly rrli. :l applI the
tiex llliOll ton ) lr.al .1ould "iltIIdouihlCdl, til L[L.1. t Ci[riIpI l iniot) hjank-
rplpCy." ScC 24h Ni RH NoI IX
456
RELIABLE ROOFING COMPANY. INC
the Board decides to accept additional evidence
from Respondent, this matter be remanded to an
administrative law judge for an evidentiary hearing
in order to resolve material questions of fact.
Having duly considered Respondent's motion,
the Notice To Show Cause, and counsel for the
General Counsel's response thereto, we are of the
opinion that the matters asserted by Respondent
raise substantial and material issues of fact and law
which may impact on the Board's earlier Decision
and Order herein. Accordingly, we shall grant Re-
spondent's motion for reconsideration, and remand
this proceeding in order that an administrative law
judge may conduct a further hearing to take evi-
dence on the issues raised herein, as indicated in
the Notice To Show Cause,3 and issue a supple-
mental decision. We shall further order that our
Decision and Order in this proceeding, reported at
246 NLRB No. 118, be stayed pending the comple-
tion of our reconsideration. 4
3 Sec 102.48(d) of the National Labor Relations Board Rules and Reg-
ulations. Series 8. as amended. provides. inter alia. that evidence taken at
any further hearing may include that which is newly discovered or has
become available since the close of the hearing. or evidence which the
Board believes should have been taken at the hearing
4 Sec 102 49 of the Board's Rules and Regulations. Series 8. as amend-
ed. provides that the Board may, within the limitations (of Sec IO(c) of
the Act "modify or set aside. in whole or in part, any findings of fact,
conclusions of law, or order made or issued by it"
ORDER
It is hereby ordered that the hearing in this pro-
ceeding be reopened before an administrative law
judge for the purpose of recieving evidence con-
cerning the matters set forth in the Board's Notice
To Show Cause herein dated April 2, 1980.
Iir Is FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the
Regional Director for Region 7 for the purpose of
arranging such hearing; and that said Regional Di-
rector be, and he hereby is, authorized to issue
prompt notice thereof.
IT IS FURTHER ORDERED that, upon the conclu-
sion of such hearing, the administrative law judge
shall prepare and serve on the parties a supplemen-
tal decision containing findings of fact, conclusions
of law, and recommendations to the Board, and
that, following service of such supplemental deci-
sion on the parties, the provisions of Section 102.46
of the Board's Rules and Regulations, Series 8, as
amended, shall be applicable.
It is further ordered that the Board's Decision
and Order in this proceeding, reported at 246
NLRB No. 118, shall be stayed pending comple-
tion by the Board of its reconsideration in this pro-
ceeding.
457