Service Roofing Co., 321 (1968)

SERVICE ROOFING CO

Service Roofing Company and Roofers Local No.

220, United Slate, Tile and Composition Roofers,

Damp and Waterproof Workers ' Association,

AFL-CIO. Case 21-CA-7924-2

October 25, 1968 DECISION AND ORDER

BY MEMBERS FANNING, JENKINS, AND ZAGORIA

On July 31, 1968, Trial Examiner Melvin Pollack issued his Decision in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel.

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Service Roofing Company,

Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.

1 Without relying , as did the Trial Examiner, upon the business enterprises of Coast Roof Company, we nonetheless assert jurisdiction herein , as the record clearly shows that the Association 's enterprises satisfy our jurisdictional standards The complaint herein alleges, and Respondent 's answer admits , that the Association annually receives goods and /or services valued in excess of $50 ,000 that originate outside the State of California.

2 We agree with the Trial Examiner that there were no 'unusual circumstances ' in this case to excuse Respondent 's untimely attempt to withdraw from the Association Cf. the Board 's Supplemental Decision in Spun -Jee Corp., 171 NLRB No. 64.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

321

MELVIN POLLACK, Trial Examiner- This case was heard before me at Los Angeles, California, on May 24, 1968, pursuant to a charge filed on January 26, 1968, an amended charge filed on April 8, 1968, and a complaint issued on March 14 and amended on April 10, 1968. The complaint alleges that Respondent, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, has refused to sign and abide by the terms of a collective-bargaining agreement entered into on October 18, 1967, by the Charging Party and Roofing Contractors' Association of Orange County, Inc., herein called the Association. The General Counsel and Respondent presented oral argument at the hearing and have also filed briefs.

Upon the entire record, and my observation of the witnesses, I make the following FINDINGS AND CONCLUSIONS

  1. THE BUSINESS OF RESPONDENT Respondent, a California corporation, is engaged at Fullerton, California, in the business of roofing residential, commercial, and industrial buildings The complaint is based on the view that Respondent at all material times has been and is a member of the Association for purposes of collective bargaining. Hence, for jurisdictional purposes, it is sufficient to establish that any member of the Association is engaged in commerce within the meaning of the Act. Plumbers & Pipe Fitters Local Union 214, 131 NLRB 942, 943, fn. 1, 950

    Coast Roof Company, a member of the Association, performed roofing services valued at over $400,000 for a General Dynamics plant at Pomona, California, during the period November 1967-May 1968.' The parties stipulated that the annual interstate purchases and sales of the General Dynamics plant each exceed $50,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Siemons Mailing Service, 122 NLRB 81, 85.

    II THE LABOR ORGANIZATION INVOLVED

    Roofers Local No. 220, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers' Association, AFLCIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act.

    1. THE UNFAIR LABOR PRACTICES A. Sequence of Events The Association executed a collective-bargaining agreement with Roofers Locals 36 and 72, effective August 15, 1963, to August 15, 1967. The Union was chartered by the Roofers I Although this commerce data for the 6 months preceding the hearing covers a penod subsequent to the commission of the alleged unfair labor practices, there is no contention that it is not representative of Coast Roof's operations ibis therefore properly considered for jurisdictional purposes . Cf Montex Drilling Company , 122 NLRB 139,

    Glenn Koennecke, d/b/a Sunset Lumber Products, 113 NLRB 1172, in 1, see also Aroostook Federation of Farmers, 114 NLRB 538, 539.

    173 NLRB No 44

    Union in November 1965 and established a hiring hall on January 2, 1966, which was thereafter used by Association members to get men. By letter dated February 27, 1967,2 the Union notified the Association that it wished to open negotiations on a new contract and listed the members of its negotiating committee. The Association replied on March 9 that it would be glad to start negotiations after April 1 and named the members of its bargaining committee On March 15, the Association submitted to the Union a list of the contractors it represented, including Respondent.

    The negotiators met on June 8 3 The next day, Respondent's president, Hugh Warden, sent the following letter to the Association Negotiations are presently being conducted between the Association and Local 220 of the Roofers Union As a member of the Association, we recognize the Association as a bargaining agent for this Company However, we reserve the rights to signing the proposed new contract upon its determination Hence, we do not empower the Roofers Association to act on our behalf for signing any new contract with the Labor Union The letter was not brought to the attention of the Union.

    Respondent at this time had been a member of the Association for at least 10 years. The Association's bylaws contain a provision that a labor contract negotiated by its Labor Committee 'shall be binding upon the Regular Members of this Association separately and collectively.' Negotiations between the Union and the Association broke down sometime after a meeting on June 15, but were resumed pursuant to an Association letter dated July 18 4 Respondent's president, Hugh Warden, testified that he attended a negotiating session in late July after bargaining was resumed and stated that he 'wasn't interested in signmg any union contract and ... definitely wouldn't sign one with the RIT [Roofing Industry Trust] in it.' On August 29, Marvin Wardens sent the following letter to the Association As we have decided to become a non-Union shop, we are notifying the Association that we are dropping from their membership effectively immediately.

    We would also appreciate refund of our $400 group bond deposit upon the expiration of the 60 or 90 day waiting period.

    Thank you for your help in past endeavors.

    This letter was not brought to the attention of the Union.

    In late September, William Nuttall, the Union' s Business Representative, requested Hugh Warden to sign a 90-day interim agreement which continued the terms of the expired 1963 contract, included economic changes agreed upon during the current negotiations, and provided that the employer would 'immediately execute' the collective-bargaining agreement 'finally negotiated' between the Union and 'the representatives of the various employers in the roofing industry.' Warden said he was going non-union and refused to sign the interim agreement.6

    2 All dates...

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