America Piles, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 2001

333 N.L.R.B. 1118 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118
America Piles, Inc., Agostino Quality Carpentry Inc.,
Kenney Drapery Associates Inc., Stone Systems
Inc. d/b/a Century Wood Floors and Van Tag
Corporation and District Council of New York
City and Vicinity, United Brotherhood of Car-
penters and Joiners of America, AFL–CIO.
Cases 2–CA–31033, 2–CA–31097, 2–CA–31123,
2–CA–31152, and 2–CA–31154
April 25, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND WALSH
On July 26, 1999, Administrative Law Judge Steven
Fish issued the attached decision. The General Counsel
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
1. The consolidated complaint alleges that each of the
Respondents violated Section 8(a)(5) and (1) of the Act
by refusing to execute and abide by collective-bargaining
agreements reached by the Union and the Respondents.
No exceptions were filed to the judge’s findings and
conclusions that Respondents American Piles, Inc., Stone
Systems Inc. d/b/a Century Wood Floors, and Van Tag
Corporation violated Section 8(a)(5) and (1). We adopt
these findings.
2. The General Counsel has excepted to the judge’s
dismissal of similar 8(a)(5) and (1) allegations against
Respondents Agostino Quality Carpentry Inc. and
Kenney Drapery Associates Inc. For the following rea-
sons, we reverse the judge’s dismissals as to these Re-
spondents, and find that they violated the Act as alleged.
The Union and various employer bargaining associa-
tions were parties to the Independent Building Construc-
tion Agreement effective from July 1, 1993, through June
30, 1996,1 and bargained for a new agreement, which
was reached in July and August 1996 and effective from
July 1, 1996, through June 30, 2001. The Union and
Respondent Agostino arranged a meeting on April 11,
1996, when Agostino signed the 1993–1996 Independent
Building Construction Agreement and an Interim Com-
pliance Agreement. Similarly, on September 9, 1996,
Respondent Kenney met with the Union and signed the
1993–1996 Independent Building Construction Agree-
ment and a Compliance Agreement for Newly Organized
Employer. On October 28, 1996, the Union sent both
Agostino and Kenney copies of the new 1996–2001
agreement for execution. Neither Respondent signed the
1996–2001 agreement or abided by its terms.

1 This is the agreement relevant to Respondents Agostino and
Kenney, as well as Century Wood and Van Tag. Another agreement,
the Dockbuilding Agreement, is relevant only to Respondent America
Piles.
The signed 1993–1996 agreements introduced into
evidence by the General Counsel are merely truncated,
four-page versions of the complete agreements they rep-
resent—a cover sheet, what appears to be the first page, a
signature page, and an added page on an industry promo-
tion fund. The General Counsel also introduced into
evidence a full (but unsigned) copy of the 1993–1996
agreement. In addition, the General Counsel introduced
into evidence full and complete compliance agreements
signed by Agostino and Kenney on April 11, and on Sep-
tember 9, 1996, respectively.
As more fully discussed below, each of the compliance
agreements on its face bound the signatory to follow the
terms and conditions of employment of the new contract
reached by the Union and obligated the signatory to exe-
cute the contract on request. While the judge acknowl-
edged that the compliance agreements would bind the
signatories to follow any new bargaining agreement, the
judge concluded that, because the compliance agree-
ments did not set forth the scope of the unit or other re-
lated matters, reference must be made to the independent
construction agreements. The judge found that the trun-
cated (and signed) 1993–1996 construction agreements
the General Counsel submitted did not conform to the
complete (but unsigned) 1993–1996 agreement the Gen-
eral Counsel also submitted. The truncated versions of
the agreement began at page 3 and were signed at page
49; the complete agreement began at page 1 and had its
signature page at page 46. In addition, there were dis-
crepancies in the added pages (industry promotion fund).
The judge concluded that “it cannot be determined with
certainty precisely what these Respondents signed in
1996” and that the General Counsel therefore failed to
establish that either Respondent Agostino or Respondent
Kenney signed the complete construction agreement.
Accordingly, the judge found sufficient ambiguity that
resort to extrinsic evidence was warranted.
Agostino and Kenney each introduced testimony,
which the judge credited, that they did not intend to sign
anything more than one-job, project-only agreements and
believed that they had in fact signed such limited agree-
ments. Based on these findings, the judge concluded that
there was no meeting of the minds on the agreements
and, therefore, that the General Counsel failed to prove
that Respondents Agostino and Kenney violated the Act
as alleged.
333 NLRB No. 123
AMERICA PILES, INC. 1119
Contrary to the judge, we find that the compliance
agreements alone are sufficient to prove the General
Counsel’s case and that, by these agreements, Agostino
and Kenney are bound to the 1996–2001 agreement.
Accordingly, we find that the judge inappropriately fo-
cused on the ambiguities in the signed versions of the
1993–1996 agreement, and it is unnecessary for us to
consider them.2
The evidence shows and it is undisputed that on April
11, 1996, Respondent Agostino signed a full and com-
plete interim compliance agreement with the Union. The
three-page agreement states in relevant part at article II:

When the union concludes negotiations with the Asso-
ciation(s), whose members perform work similar to the
work performed by this firm, all terms and conditions
of the newly negotiated agreement [the “New Agree-
ment(s)”], including but not limited to, wages, fringe
benefits, all other terms and conditions of employment,
and the arbitration provisions, as agreed between the
Union and the Association(s), shall be binding on our
firm retroactive to July 1, 1996.

Article V states in relevant part:

Our firm, its successors and/or assignees, shall execute
successor agreement(s) within five (5) days of the re-
ceipt of the Union’s request. However, our firm shall
be bound to the terms contained in the New Agree-
ment(s) retroactive to July 1, 1996, by virtue of execut-
ing this agreement, regardless of whether it actually
executes a successor agreement.
Similarly, the evidence shows and it is undisputed that
on September 9, 1996, Respondent Kenney signed a full
and complete Compliance Agreement for Newly Organ-
ized Employer. The two-page agreement states in rele-
vant part at numbered paragraph 2:
Upon the conclusion of the negotiations with the
aforementioned Member Associations, the wages and
fringe benefits, as [well] as all other terms and condi-
tions of employment, agreed to by and between your
District Council and Member Associations, shall be
binding on this company, retroactive to July 1, 1996.

Numbered paragraph 3 states:

It is further agreed that [this] employer, its successors
or assigns, will within five (5) days of receipt of the
District Council’s request to execute the newly pre-

2 The relevance of the 1993–1996 agreement was, as the judge dis-
cusses, to bridge the gap. Thus, the compliance agreements bound the
signatories to the terms of the current 1993–1999 agreement while a
successor agreement was being negotiated with the Union.
pared contract, in the form described above, sign and
abide by the new agreement or agreements. However,
this employer will be bound by the terms of the new
agreement whether or not it is actually executed by this
employer.
Both agreements clearly and unequivocally bound
these two Respondents to the terms and conditions of the
new 1996–2001 collective-bargaining agreements and
obligated them to execute the agreements on request.
See City Electric, 288 NLRB 443, 444 (1988) (Em-
ployer’s execution of letter of assent bound it to a series
of collective-bargaining agreements negotiated by mul-
tiemployer association). Accord: Gary’s Electrical Ser-
vice Co., 326 NLRB 1136 (1998), enfd. sub nom. Local
58 Pension Trust Fund v. Gary’s Electric, 227 F.3d 646
(6th Cir. 2000). Although both Respondents introduced
testimony that they intended to agree only to project
agreements, the compliance agreements are clear that
they were not so limited, but rather obligated the Re-
spondents to abide by and execute successor collective-
bargaining agreements negotiated by the Union and the
multiemployer association.3 In these circumstances,
Board precedent prohibits the use of parol evidence to
vary the unambiguous terms of compliance agreements.
See NDK Corp., 278 NLRB 1035 (1986). (National labor
policy requires that evidence of oral agreements be un-
availing to vary the provisions of a written collective-
bargaining agreement valid on its face.) As the Ninth
Circuit has stated, “Where contractual provisions are
unambiguous, the NLRB need not consider extrinsic evi-
dence. Parol evidence is therefore not only unnecessary
but irrelevant.” NLRB v. Electric Workers Local 11, 772
F.2d 571, 575 (9th Cir. 1985).
For the foregoing reasons we find that Respondent
Agostino and Respondent Kenney, as alleged in the
complaints, unlawfully refused to abide by and execute
the 1996–2001 collective-bargaining agreements with the
Union. Accordingly, we shall order them to abide by and
execute the agreements, and make employees and fringe
benefit funds whole for any losses they may have suf-
fered.
AMENDED CONCLUSION OF LAW
Substitute the following for paragraph 8 of the judge’s
Conclusions of Law.
“8. By refusing to abide by and execute the agreed-to
collective-bargaining agreement despite union requests
3 Contrary to the judge, we find that the absence of a unit scope pro-
vision in the compliance agreements is immaterial because the compli-
ance agreements bound the Respondents to the successor collective-
bargaining agreement which contained such a provision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120
to do so, Respondents Agostino and Kenney have vio-
lated Section 8(a)(5) and (1) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, except
that the final paragraph is deleted, and orders that
A. The Respondents, America Piles, Inc., Brooklyn,
New York; Stone Systems, Inc. d/b/a Century Wood
Floors, Fairfield, New Jersey; and Van Tag Corporation,
Yonkers, New York; their officers, agents, successors,
and assigns, shall take the action set forth in the Order.
B. The Respondent, Agostino Quality Carpentry Inc.,
Brooklyn, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to execute and abide by the terms of the
Independent Building Construction Agreement (the
agreement) effective by its terms from July 1, 1996, to
June 30, 2001.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
bargaining representative of the employees in the unit set
forth in the agreement described above.
(b) Sign and abide by the agreement, effective from
July 1, 1996, to June 30, 2001.
(c) Make whole employees and benefit funds for any
losses suffered as a result of Agostino’s unlawful con-
duct, with interest, in the manner set forth in the remedy
section of the judge’s decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Brooklyn, New York, copies of the attached
notice marked “Appendix D.”4 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed a facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent since October 28, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
C. The Respondent, Kenney Drapery Associates Inc.,
Bronx, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to execute and abide by the terms of the
Independent Building Construction Agreement (the
agreement) effective by its terms from July 1, 1996, to
June 30, 2001.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
bargaining representative of the employees in the unit set
forth in the agreement described above.
(b) Sign and abide by the agreement, effective from
July 1, 1996, to June 30, 2001.
(c) Make whole employees and benefit funds for any
losses suffered as a result of Kenney’s unlawful conduct,
with interest, in the manner set forth in the remedy sec-
tion of the judge’s decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Bronx, New York, copies of the attached
notice marked “Appendix E.”5 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
5 See fn. 4, above.
AMERICA PILES, INC. 1121
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed a facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent since October 28, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX D
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to execute or abide by the
terms of the Independent Building Construction Agree-
ment (the Agreement) effective by its terms from July 1,
1996, to June 30, 2001.
WE WILL NOT in any like or related matter interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union as the exclusive bargaining representative of our
employees in the unit set forth in the Agreement de-
scribed above.
WE WILL sign and abide by the agreement, effective
from July 1, 1996, to June 30, 2001.
WE WILL make whole our employees and the Benefit
Funds for any losses suffered as a result of our unlawful
conduct, plus interest.

AGOSTINO QUALITY CARPENTRY INC.
APPENDIX E
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to execute or abide by the
terms of the Independent Building Construction Agree-
ment (the Agreement) effective by its terms from July 1,
1996, to June 30, 2001.
WE WILL NOT in any like or related matter interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union as the exclusive bargaining representative of our
employees in the unit set forth in the Agreement de-
scribed above.
WE WILL sign and abide by the Agreement, effective
from July 1, 1996, to June 30, 2001.
WE WILL make whole our employees and the Benefit
Funds for any losses suffered as a result of our unlawful
conduct, plus interest.

AMERICA PILES INC., AGOSTINO
QUALITY CARPENTRY INC., KENNEY
DRAPERY ASSOCIATES INC., STONE
SYSTEMS INC., AND VAN TAG
CORPORATION

Matthew T. Bodie, Esq. and Christene S. Mann, Esq., for the
General Counsel.
Thomas J. Bianco, Esq. and Christina Bennett, Esq. (Kaufman,
Schneider & Bianco, LLP) of Jericho, New York, for a Re-
spondents America Piles, Inc.1 and Kenney Drapery Asso-
ciates, Inc.
Michael Greber, Esq. of Brooklyn, New York, for the Respon-
dent.

1 The complaint was amended at trial to reflect the correct name of
this Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
Agostino Quality Carpentry, Inc., Scott Weiss, Esq. (Weiss &
Weiss, LLC) of Fairfield, Connecticut, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. On December
23, 1997, New York Vicinity United Brotherhood of Carpen-
ters and Joiners AFL–CIO, (the Union or Charging Party) filed
charges in Cases 2–CA–31033 through 2–CA–31157 alleging
similar violations of Section 8(a)(1) and (5) of the Act by vari-
ous named employers. Thereafter the Region issued a number
of complaints in some of these cases, with an identical hearing
date of November 16, 1998.
Subsequently, a number of these cases were disposed of by
either withdrawal or summary judgment. On November 6,
1998, an order was issued consolidating the 13 remaining cases.
Prior to the start of the trial, seven of these cases were with-
drawn. A trial was held before me concerning the six remain-
ing cases on November 16 and 17, 1998, in New York. During
the course of the trial, the Union requested and I granted a con-
ditional withdrawal of the charge and dismissed the complaint
against Manty Glass & Aluminum, Inc; Case 2–CA–31130.
The five remaining complaints, which are to be decided here,
allege identical violations of Section 8(a)(1) and (5) of the Act
by America Piles, Inc. (Respondent America), in Case 2–CA–
31033; Agostino Quality Carpentry Inc. (Respondent Agostino)
in Case 2–CA–31097; Kenney Drapery Associates, Inc. (Re-
spondent Kenney), in Case 2–CA–31123; Stone Systems, Inc.,
d/b/a Century Wood Floors (Respondent Stone), in Case 2–
CA–31152; and Van Tag Corporation (Respondent Van Tag);
in Case 2–CA–31154.
Briefs have been filed by the General Counsel and Respon-
dents America and Kenney and have been carefully considered.
Based on the entire record, including my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent America, a corporation with an office and place
of business in Brooklyn, New York, has been engaged in the
building and construction industry, including at jobsites located
in or around New York City, New York. Annually, Respon-
dent America purchases goods and services valued in excess of
$50,000 directly from entities outside the State of New York.
Respondent Agostino, a corporation with an office and place
of business in Brooklyn, New York, has been engaged in the
building and construction industry. Annually, Respondent
Agostino sells goods services in excess of $50,000 to various
entities which meet a direct standard for the assertion of Board
jurisdiction.
Respondent Kenney, a corporation with an office and place
of business in Bronx, New York, has been engaged in the build-
ing and construction industry. Annually, Respondent Kenney
sells goods and services valued in excess of $50,000 directly to
entities located outside the State of New York.
Respondent Stone, a corporation with an office and place of
business in Fairfield, New Jersey, has been engaged in the
building and construction industry, including at jobsites located
in or around New York, New York. Annually, Respondent
Stone sells goods and services valued in excess of $50,000
directly to entities located outside the State of New Jersey.
Respondent Van Tag, a corporation with an office and place
of business in Yonkers, New York, has been engaged as a con-
struction contractor in the building and construction industry,
including at jobsites located in or around New York, New
York. Annually, Respondent Van Tag sells goods and services
valued in excess of $50,000 to various entities which meet a
direct standard for the assertion of jurisdiction by the Board.
It is admitted, and I so find, that Respondent America, Re-
spondent Agostino, Respondent Kenney, Respondent Stone,
and Respondent Van Tag are now and have been at all times
material here, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
At all material times, the Union has been and is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. FACTS
The General Counsel’s sole witness in its proceeding was
Russ Shaw, manager of the agreement department for the
Charging Party. His testimony established that the Union has
collective-bargaining agreements with a number of employer
associations, as well as with approximately 1700 independent
contractors. The Union has over 24 types of agreements,
covering various specialties within the carpentry trade.
Normally, the Union bargains with the particular association
covering the type of work involved, and then when an
agreement is reached, that agreement is submitted to the
independent contractor for signature.
About 70 percent of the independent contractors signed up
with the Union have signed an Independent Building Construc-
tion Agreement (construction agreement). Another type of
agreement signed by some contractors is the Independent
Heavy Construction Dockbuilding Marine and Foundations
Agreement (dockbuilding agreement).
Shaw furnished testimony concerning various documents
that he brought from the Union’s files that he is in charge of
maintaining. Through Shaw, a number of these documents
were introduced into evidence, which essentially form the basis
for the General Counsel’s case. Shaw testified that the Union’s
practice with regard to its files was to keep a four-or-five page
document for each independent contractor that signed agree-
ments with it. These documents contained the cover page of
the particular agreement, the signature page, as well as one or
two other pages. According to Shaw, although the files only
contained these portions of the agreements, in fact in each case,
the particular employer involved actually signed a full copy of
the agreement, but because of space requirements, the files
contain only the shortened version. Shaw furnished no testi-
mony as to the circumstances of the signing of the agreements.
However, he asserted that the signed copies were either mailed
or brought into the Union by either the contractor or a union
agent.
The document introduced into evidence and signed by Re-
spondent America was entitled the “Dockbuilding Agreement,”
and consisted of the cover page of the agreement between Re-
AMERICA PILES, INC. 1123
spondent America at its address in Brooklyn, New York, and
the Union, for the period July 1, 1993, to June 30, 1996. The
document also contains a page one, which recites that this
agreement was made on August 5, 1994, and effective July 1,
1993, between Respondent America and the Union, and sets
forth article I, entitled Purposes-Declaration of Principles.
This document makes no reference to recognition or to the unit.
The next page to the document was page 48, which was a sig-
nature page, which included signatures from the Union and
from someone from Respondent America.2
According to Shaw, the full collective-bargaining agreement,
which he believes was included when Respondent America
signed the agreement, consisted of pages 1 through 48, a cover
page, a two-page table of contents, plus a one-page addendum.
This agreement provides that Respondent America recognizes
that Union as the exclusive collective-bargaining representative
of all employees covered by the jurisdiction of the Union, as
described here. The contract clause further defines the Union’s
territorial jurisdiction by listing various counties in New York
State and New Jersey, and also sets forth a detailed description
of various work functions and classifications covered by the
agreement.
With respect to Respondents Stone and Van Tag, five docu-
ments were received in evidence, based on Shaw’s testimony,
which included a title page of the construction agreement which
set forth the name and address of the Respondent, and the Un-
ion, and dates of the agreement as July 1 1993, to June 30,
1996. It also included page one, which recites that the agree-
ment was made and entered into on July 1, 1993, between the
Respondent and the Union, and includes article I entitled, “Ob-
jectives” and article II entitled “Jurisdiction.” This section
states that the various job titles listed, “are understood to in-
clude all employees performing jobs referred to in Section 2
below.” Then section 2 reads “The Employer is desirous of
employing carpenters,” and page one ends. The next page in
the document from the Union’s files is page 46, which is the
signature page, and contains signatures from all parties. Re-
spondent Stone signed the document on November 3, 1993, and
Respondent Van Tag on November 16, 1993. The document
also contains two additional unnumbered pages, entitled Dry-
wall Industry Promotional Fund of New York, which contained
additional signatures of representatives of the two Respondents
on the same dates.
Once again, Shaw testified that each of these Respondents as
per the Union’s practice, received and signed the full construc-
tion agreement, which was also introduced into the record,
through Shaw. This document consisted of a cover page, a one-
page index, and pages 1 through 46. Page one is the same page
of the previous document, and page two of which continues the
previous jurisdiction article to include a number of other job
titles or classifications, such as millwrights, cabinet makers, or
floor layers. The agreement then goes on to list detailed de-
scriptions of the types of work covered by the agreement.
Unlike the dockbuilders agreement, as described above,
which defines the Union’s territorial jurisdiction I the same

2 Respondent America conceded that its representative signed p. 48
on August 10, 1994.
article that referred to jurisdiction, the construction agreement
does not do so. On page 11 of the agreement, article III is enti-
tled union recognition section 2 provides that the “Employer
recognizes the Union as the exclusive bargaining representative
for all the employees referred to in article II above.” Again
there is no mention of territorial Jurisdiction in this Article.
However, on page 16, article VII is entitled geographical juris-
diction. This article provides that the “Agreement shall cover
work performed by Carpenter Employees within the territorial
jurisdiction” of the Union. It then defines the Territorial Juris-
diction of the Union. The document also includes page 46 as
the signature page.
As for Respondents Agostino and Kenney, Shaw testified
that the documents in the Union’s files for these Respondents,
included one of four pages, with a cover page setting forth an
independent construction agreement between the Respondents
at their respective addresses in Brooklyn, New York, and
Bronx, New York, and the Union, with dates of July 1, 1993—
June 30, 1996. The next page of the document is page three,
which is same as page one of the documents introduced with
respect to Respondents Van Tag and Stone. For Respondent
Agostino, page three states that the agreement was entered into
on July 1, 1993, and effective April 11, 1996, and for Respon-
dent Kenney it states effective September 9, 1996. The next
page in the document from the Union’s files is page 49, which
is the signature page. The document also contains an additional
page, without a number, entitled, “AJREIF FUND Additional
Contributions.” It is not the same additional language as in the
last two pages of the documents signed by Respondents Van
Tag and Respondent Stone. These documents contained signa-
tures from representatives of Respondents Agostino and
Kenney on both the signature page and the last page, dated
April 11, 1996, and September 9, 1996, respectively.
Shaw testified that the document previously described with
respect to Respondents Van Tag and Stone, entitled “Independ-
ent Building Construction Agreement,” pursuant to the Union’s
practice, was also part of the contract signed by Respondents
Agostino and Kenney as well. However, it is noted that this
document consisted of 46 pages, with page 46 being the signa-
ture page. Also this document did not contain any additional
pages after the signature page,3 as did the documents signed by
these Respondents which came from the Union’s files. Shaw
provided no testimony in explanation of these discrepancies.
As of June 30, 1996, the dockbuilding and construction
Agreements were due to expire. Since the Union was still in
the process of negotiating contracts with the various Associa-
tions it sought to “bridge the gap” until a new agreement was
executed, by sending out “Compliance Agreements” or “In-
terim Compliance Agreements,” to be signed by the contractor
employers. These agreements provided essentially that the
prior agreements between the parties remained in effect until a
new agreement was negotiated, and that the parties agreed to be
bound by a successor agreement negotiated between the Union
and the Association. Additionally, the Employer agreed to
execute the successor agreement within 5 days of receipt of the
Union’s request.
3 The page referring to the AJREIF FUND.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124
These compliance agreements were signed by all of the Re-
spondents here. Respondents America, Agostino, Stone and
Van Tag signed the document entitled “Interim Compliance
Agreement,” on April l5, 11, 8, and 7, 1996, respectively. Spe-
cifically, this agreement states that the prior agreement shall
remain in force until the Union “negotiates the successor
agreements with the Associations whose members perform
work similar to the work performed by this firm.” Further it
states that when the Union concludes “negotiations with the
Associations, all terms and conditions of the newly negotiated
Agreement “shall be binding on our firm retroactive to July 1,
1996.” Finally, the agreement states that the employer “shall
execute successor agreements within five days of the receipt of
the Union’s request.”
Respondent Kenney executed a document entitled “Compli-
ance Agreement for Newly Organized Employer” in September
1996. This document states that the Employer has agreed to
sign the most current independent contract, and that said
agreement shall remain in effect until a successor agreement is
negotiated with the associations. Further, the Employer agrees
that on the conclusion of negotiations with the associations, all
terms and conditions of employment agreed to by the Union
and the associations, “shall be binding on this company, retro-
active to July 1, 1996,” and the Employer shall within 5 days of
the Union’s respect, sign and abide by the agreement.
The Union reached agreements with the associations in-
volved for the construction agreement in July and August of
1996 and for the dockbuilders agreement in May and June of
1997.
The Union subsequently sent copies of the dockbuilding
agreement to Respondent America on August 15, 1997, and a
copy of the construction agreement to Respondents Agostino,
Kenney, Stone, and Van Tag on August 28, 1996. All of these
agreements, except for Agostino, contained cover letters, re-
questing that the various Respondents sign the attached agree-
ments. None of the Respondents executed or sent back the
signed agreements. The Union thereafter sent followup letters
to all Respondents, including Respondent Agostino, dated No-
vember 12, 1997, reflecting that each Respondent had previ-
ously received a copy of an association agreement to sign, and
the Union had not received signed copies as requested. The
letter again requests that the agreements be signed. None of the
Respondents sent back signed copies of the agreements sent to
them by the Union.4
Cosimo Agostino, president of Respondent Agostino, testi-
fied concerning the circumstances of his signing the above-
described documents. This testimony is unrefuted and believ-
able and is therefore credited. Sometime in 1989, Respondent
Agostino was working on a job at Wagner Community College.
At that time he was told by a representative of the Union, that
Respondent Agostino had to sign a one-job agreement with the
Union, or else it could not send in the benefits. Therefore he,
on behalf of Respondent Agostino, signed a “one job agree-
ment,” which was an agreement confined to union representa-

4 I agree with the General Counsel that Respondent Agostino is pre-
cluded by its answer from denying that it received a copy of the negoti-
ated construction agreement from the Union to be signed.
tion at that particular jobsite. In that connection, Shaw admit-
ted that the Union had in the past allowed one-job agreements
for certain employers but at some point, undisclosed by the
record, made a decision to no longer sign or permit such
agreements.
Respondent Agostino received a subcontract for work at the
Coney Island Water Treatment Plant for the City of New York.
Shortly after it began work on that job, in late 1995, Agostino
was approached by the shop steward5 for the Union. The shop
steward informed Agostino that the job was a union job and
that Respondent Agostino could not do any work there unless it
belonged to the Union. Agostino replied that Respondent
Agostino was approved by the City to work there, and it did not
have to be in the Union. Therefore Agostino continued to per-
form work on the job. However, on several subsequent occa-
sions, form work that Respondent Agostino had performed was
destroyed. Agostino reported these incidents to the project
manager, who in turn reported the problem to the City Inspec-
tor. The project manager reported to Agostino, that the City
Inspector had informed the project manager that if this hap-
pened again, he would throw everyone off the job. Agostino
admitted that he did not see who destroyed the form work, and
that he did not notify the police about the matter. Further in
another conversation, the shop steward for the Union told
Agostino that if he did not sign an agreement with the Union,
the Union would put up a picket line on the job.
Therefore based on the foregoing events, Agostino decided
to sign what he believed to be a one-job agreement with the
Union. He therefore notified the shop steward, who in turn
scheduled an appointment for Agostino to meet with Raj Moi-
tran an employee in the Union’s agreement department.
Agostino informed Motiran that he was there to sign an agree-
ment for that particular job, so he could proceed to work on that
job. Moitron handed Agostino a bunch of papers for him to
sign, and told him that these papers are the standard form that
everybody normally signed. Agostino informed Moitran that
Respondent Agostino could not afford a bond. Moitran replied
that he did not need a bond, because it was “only one short term
job.” On that day, which was April 11, 1996, Agostino, with-
out reading either document, signed the “Interim Compliance
Agreement,” that was introduced through Shaw. Agostino also
admitted signing the document entitled “Independent Construc-
tion Agreement,” introduced through Shaw on the same date.
Agostino indicated referring to the compliance agreement, that
there were more pages than shown in the document, but he did
not know how many pages there were. He did not testify
whether the “Building Construction Agreement” that he signed
contained any more pages than in the document that Shaw au-
thenticated.
However, Agostino testified unequivocally and credibly that
he believed that he was signing a one-job agreement only, as he
had signed previously in 1989 with the Union. After signing
these documents, Respondent Agostino had no further prob-
5 While the transcript on pp. 157, 158, and 160 uses the word “chap-
ter” to describe this individual, this is clearly a transcription error, and
the transcript is hereby corrected to substitute shop steward for chapter
on those pages.
AMERICA PILES, INC. 1125
lems at the jobsite. While working on the job, Respondent
Agostino sent in benefits to the Union. After the job ended
sometime in late 1997, Respondent Agostino ceased sending in
any benefits to the Union.
Respondent Agostino recalled receiving a letter from the Un-
ion sometime in late 1997, indicating that Respondent Agostino
had not signed a contract with the Union to continue the hours
for fringe benefit contributions.
The estimated job duration and men set forth in the agree-
ment was 2 days per week for 8 weeks, and one man, and a
total of $2500 to be paid in escrow. Other documents intro-
duced into the record indicate that Respondent Kenney depos-
ited the $2500 in escrow to the Union’s Benefit Funds.
However, the job lasted well past the 8 weeks set forth in the
agreement, as Respondent Kenney could only send in men to
work, when other trades finish their portion of the job. There-
fore in September 1996, the job was still going on. At that
time, one of Respondent Kenney’s employees informed Bel-
mont that the shop steward had told the employee that Respon-
dent Kenney could not put the men on unless Respondent
signed new agreements.
Belmont agreed, and signed the documents that were given
to him by this employee, believing that he was merely signing
an extension of the previous one-job agreement which was
signed in May 1995. The document that Belmont signed dated
September 9, 1996, entitled “Building Construction Agree-
ment,” was actually four pages in agreement.
Jim Belmont furnished similar unrefuted and credited testi-
mony, concerning his actions in signing agreements with the
Union on behalf of Respondent Kenney. Thus in May 1995,
Respondent Kenney began a job as subcontractor for a Cana-
dian Company, installing drapery pockets at an advertising
agency on a jobsite at 1 Dag Hammarskjold Plaza, New York,
New York, Respondent Kenney needed to employ carpenters to
perform this work. At that time Belmont spoke with the shop
steward for the carpenters, who informed Belmont that he
would supply carpenters to Respondent Kenney, and Respon-
dent Kenny would have to sign a one-job agreement with the
Union, and agree to pay stamps and union wages. Accordingly,
such a one-job agreement was executed by the comptroller of
Respondent Kenney, and by the union representatives on May
5, 1995. The agreement provides that Respondent Kenney need
not sign a formal collective-bargaining agreement with the
Union, but to use union labor and pay all fringe benefits for the
duration of the job which is referred to as of very short dura-
tion. The agreement also obligates Respondent Kenney to sign
a contract with the Union if it performs future work in this geo-
graphical area within the Union’s jurisdiction. Finally, it obli-
gates Respondent Kenney, in lieu of a surety bond, to send in a
certified check for the estimated amount of carpenter length, a
cover page, page 3, page 49, and a last page, without a number,
which reflected additional contributions to the industry promo-
tion fund.6 Belmont also signed the document entitled “Com-
pliance Agreement” on that date. According to Belmont he

6 This is the document authenticated by Shaw. Belmont credibly de-
nied that this document contained additional pages, and denies ever
seeing or signing a full copy of the Construction Agreement.
“perused” these documents before he signed them but believed
that he was signing a continuation of the previously signed one
job agreement.
After signing these documents, Respondent Kenney contin-
ued to use carpenters on this job, and to pay benefits to the
Union’s Funds, until the job was completed at the end of 1996.
Since that time, according to Belmont, Respondent Kenney
employed no carpenters, and performed no work, which in his
view fell under the coverage of the contract. In that regard,
Belmont asserts that in his opinion, the carpenter’s contract
covers only commercial work, and not residential jobs. Further
Respondent Kenney has not performed any commercial jobs
since the job at Dag Hammarskjold Plaza.
However, the full building construction agreement, specifi-
cally covers all employees performing various jobs, which in-
cludes “installation of hardware for draperies and blinds,”
which is work that Respondent Kenney performs, but only on
residential jobs. The contract makes no distinction between
residential or commercial jobs.
On March 26, 1998, Respondent Kenney sent a letter to the
Union, in response to one of the Union’s letters, which asserts
that Respondent Kenney has “not worked on any union con-
struction jobs nor have we hired any union carpenters, nor do
we intend to do so in the future.” The letter concludes, “it is
our firm belief that we have not renewed our contract with the
District Council of Carpenters.”
The Union’s benefit funds thereafter sent a letter to Respon-
dent Kenney, dated April 15, 1998. The letter indicated that
Respondent Kenney had failed to submit monthly remittance
reports for various months, from September 1995 through April
1998. The letter also asserts that according to the contract “to
which your firm is bound,” these reports must be submitted
each month whether or not carpentry work is performed. Fur-
ther the letter requests that such reports be submitted, or else an
audit will be scheduled.
Respondent Kenney replied to this letter, by letter dated May
26, 1998. It states “we are not sure that we owe you any re-
ports as there is a question of whether we have a collective
bargaining agreement.” Further the letter indicates, “we had no
Union employees during the period stated in your letter.”
On August 5, 1998, an arbitration hearing was held before
Arbitrator Roger Maher. Respondent Kenney, according to the
award, which was issued on August 14, 1998, did not appear at
the hearing, or request a postponement, although duly notified
of the proceeding.
The award further reflects that the arbitrator found Respon-
dent Kenney to be in default, and proceeded to hear testimony
and take evidence. The arbitrator concluded that “the uncon-
troverted testimony and evidence established that the Respon-
dent was bound to a Collective-Bargaining Agreement with the
New York City District Council of Carpenters and said Agree-
ment became effective July 1, 1996.” The decision also found
that an accountant employed by the Union performed an audit
of Respondent Kenney’s books and records, and discovered
delinquencies in fund contributions during the period July 16,
1996, to December 31, l997.
The arbitrator’s award provided for the payment by Respon-
dent Kenney of $3,875.78 plus interest, to the funds, which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
included the delinquencies plus court costs, attorney’s fee, and
arbitrator’s fee.
On October 26, 1998, the audit manager of the Union’s
benefit funds sent a letter to Respondent Kenney, referring to
and enclosing a copy of the arbitrator’s award detailed above.
The letter also demanded immediate payment of the amount
ordered, or in the alternative a proposed installment payment
schedule from Respondent Kenney. Respondent Kenney re-
plied by letter of November 6, 1998, stating that “our firm has
no current agreement with the carpenters and your default
award is inappropriate.”
The record does not reflect any further contacts or communi-
cations between the parties relative to this matter. The record
also does not indicate what efforts, if any, the Union or the
funds have made to enforce or confirm the arbitration award
issued on August 14, 1998.
III. ANALYSIS AND CONCLUSIONS
A. Respondents America, Stone, and Van Tag
It is well settled that an employer violates Section 8(a)(1)
and (5) of the Act by refusing to execute a written agreement
incorporating the terms that it had previously agreed to H. J.
Heinz Co. v NLRB, 311 U.S. 514 (1941). Such a refusal is
equally violative of the Act in the context of an 8(f) relation-
ship. National Roof Systems, 305 NLRB 965, 970 (1991).
It is also clear that where an employer signs an agreement to
be bound by the terms of an association agreement, which had
not yet been fully negotiated, said employer is bound by such
an agreement, even though it does not know the full terms of
the association agreement, when it agrees to be bound by such
agreement. Canyon Coals, 316 NLRB, 448, 452–453 (1995),
enfd. 108 F.3d 1377 (6th Cir. 1997); Adobe Walls, 306 NLRB
25, 27–28 (1991); Inland Cities, 241 NLRB 374, 378–379
(1979); Ted Hicks & Associates, 232 NLRB 712, 713 (1977).
Here the evidence adduced by the General Counsel estab-
lished that Respondents America, Van Tag, and Stone each
executed interim compliance agreements, which obligated them
to execute and abide by collective-bargaining agreements still
to be negotiated with Associations.7 Further the evidence es-
tablishes that the Union thereafter reached agreement with the
two associations involved, and subsequently sent copies of the
agreements to the various Respondents, along with requests that
these documents be executed, pursuant to the terms of the in-
terim agreements previously signed by each of these Respon-
dents.
In this regard, Respondent America argues that the General
Counsel had failed to establish a prima facie case against it,
because Shaw’s testimony was insufficient to establish that the
Union sent or Respondent America received a copy of the asso-
ciation agreement, that the General Counsel asserts that Re-
spondent America is obligated to sign. I do not agree. Shaw’s
credible and undisputed testimony established that based on the
Union’s practice in his office, it sent out copies of the full
agreement to each Respondent, and that by letter dated August

7 Respondents Van Tag and Stone agreed to sign the construction a-
greement, and Respondent America agreed to execute the dockbuilding
agreement.
15, 1997, it requested Respondent America to execute the
dockbuilding agreement, a copy of which was enclosed. I find
this testimony sufficient to establish that the full document was
sent,8 and based on the presumption of mailing, which has not
been rebutted, was also received by Respondent America. I
note also in this respect, that the Union sent a followup letter
dated November 12, 1997, to Respondent America, again re-
questing that the dockbuilding agreement, previously sent to
Respondent America be executed. I also find that this docu-
ment was received by Respondent America for the same rea-
sons.
I note that Respondent America made no response to either
of the Union’s letters. Thus even if it had not received a copy
of the agreement as Respondent America appears to contend, it
was obligated to respond to the letter and request a copy of the
agreement from the Union. Further, Respondent America pre-
sented no witnesses or any other evidence in support of its as-
sertion that it did not receive a copy of the dockbuilding agree-
ment to sign. It is therefore appropriate to draw an adverse
inference from the failure of Respondent America to call any
witnesses on this subject, and conclude, which I do, that had
such a witness been called by Respondent America, the witness
would have testified adversely to Respondent America on this
issue, and that Respondent America had received a copy of the
negotiated agreement. International Automated Machines, 285
NLRB 1122, 1128 (1987).9
I therefore conclude that all three Respondents have, as al-
leged in the complaints issued against them, failed and refused
to execute the association agreements, to which each of them
had previously agreed to be bound.
All three Respondents raised various affirmative defenses in
their answers, including fraudulent misrepresentation, duress,
coercion, and the assertions relative to the issue of alleged
statements made to officials of these Respondents when the
interim agreements were signed. However, none of these Re-
spondent’s presented any witnesses or any other evidence in
support of these affirmative defenses. Therefore, they are all
rejected. In that regard, Respondent America argues that since
it raised the affirmative defense in its answer of fraudulent
misrepresentation, that the General Counsel was required to
present evidence to disprove that assertion. Thus since the
General Counsel presented no evidence detailing the circum-
stances of the execution of the compliance agreement, it is ar-
gued that the General Counsel has not proved that Respondent
America entered into a legally binding contract. I disagree.
Respondent America is simply incorrect in its assertions as
to burdens of proof. It is well established, and needs no cita-
8 The testimony referred to in Respondent’s brief by Shaw which in-
dicated some confusion concerning whether the full agreement or only
three pages of the agreement were sent to various Respondents, related
not to the negotiated 1996 agreement, but to the prior agreements exe-
cuted by the Respondents in 1996. However, nothwithstanding this
confusion, I find the evidence sufficient to establish a prima facie case
that Respondent executed a full copy of the prior dockbuilders agree-
ment.
9 It is also appropriate to draw an adverse inference against Respon-
dent America for its failure to testify concerning signing a complete
copy of the dockbuilders agreement in 1994.
AMERICA PILES, INC. 1127
tions, that affirmative defenses must be established and proven
by the party asserting such defenses. The General Counsel has
established a prima facie case by proving that Respondent
America executed the compliance agreement, obligating it to
sign and be bound by the association agreement subsequently
agreed on and received by Respondent America. It is then
Respondent America’s burden to establish any affirmative de-
fenses to this prima facie case, such as fraudulent misrepresen-
tation. Respondent America cannot shift the burden to General
Counsel to disprove such a defense, by merely raising it in its
answer. It must present evidence to prove its defense, and its
failure to do so requires that such defense be rejected. I so find.
In that regard, I note that even if I were to find the General
Counsel’s evidence insufficient to establish that Respondent
America executed the full independent dockbuilders agreement
in 1994, my ultimate conclusion would not change. Thus in
that event Respondent America obligated itself to execute the
dockbuilder’s association agreement, and admittedly failed to
do so. Thus whether it ever signed or saw a complete prior
agreement in 1994, when it executed the prior document is not
significant. While Respondent America alleged in its answer
that it executed a document in 1996 believing it to be applicable
to a single job only, it presented no record evidence in support
of this assertion. Thus had such evidence been presented, as
will be described more fully below, the question of whether it
had seen the entire prior document that it purportedly signed in
1994, would have been relevant. However, in the absence of
such evidence, which would or might permit parole evidence to
help assess whether or not a meeting of minds existed when the
compliance agreement was executed, the signing of the compli-
ance agreement by Respondent America is sufficient to obligate
it to sign the agreement negotiated with the association.
Accordingly, based on the foregoing analysis and authorities,
I conclude that Respondents America, Van Tag, and Stone have
violated Section 8(a)(1) and (5) of the Act by refusing to exe-
cute and abide by the association agreements.
B. Respondents Agostino and Kenney
The analysis with respect to Respondents Agostino and
Kenney is similar. Once again, a prima facie case has been
established that each Respondent executed interim compliance
agreements, which on their face, obligated them to execute the
building construction agreements, which was subsequently
agreed to in bargaining between the Union and the association.
However, in the case of these Respondents, evidence was
presented detailing the circumstances of the execution of the
compliance agreement, as well as the prior collective-
bargaining agreement with the Union. This evidence, accord-
ing to Respondents is sufficient to establish several defenses,
including particularly that there was no meeting of the minds
between the parties with respect to the execution of the compli-
ance agreement, or the prior construction agreement.
The resolution of the latter contention, depends on the appli-
cation of the parole evidence rule to the instant case. In that
regard, the Board does not permit a party to use parole evidence
of oral agreements to vary the terms of a collective-bargaining
agreement. Don Lee Distributor, Inc., 322 NLRB 470, 484
(1996); Adobe Walls, supra at 27; NDK Corp., 278 NLRB 1035
(1986); Gaitliff Coal v. Cox, 152 F.2d 52, 55 (6th Cir. 1945).
However, where the agreement is ambiguous, it is appropri-
ate to resort to parole evidence or other extrinsic evidence to
determine its meaning. Sansla, Inc., 323 NLRB 107, 109
(1997); Operating Engineers Local 3 (Joy Engineering), 313
NLRB 25 (1993), Timberland Packing, 261 NLRB 174, 176
(1982). Here, both Respondents contend that there was no
meeting of minds, because they believed that they were signing
a “one job agreement,” similar to what they had signed in the
past. Thus, if sufficient ambiguity exists as to the scope of the
unit, parole evidence can be used to determine whether the
meeting of the minds existed when these Respondents executed
their agreements. Sansla, supra, and RPM Products, 217
NLRB 855 (1978); see also 30 Am.Jur.2d § 1069 (1967).

Whenever the terms of a written contract or other instrument
are susceptible of more than one interpretation, or anambigu-
ity arises, or the intent or object of the instrument cannot be
ascertained from the language employed therein, parole or ex-
trinsic evidence may be introduced to show what was in the
minds of the parties at the time of the making the contract or
executing the instrument, or to determine the object for or on
which it was designed to operate.

Thus, it must be determined whether the agreements signed
by the Respondents are sufficiently ambiguous as the scope of
the unit, to permit the consideration of the parole evidence in-
troduced by Respondents to establish that no meeting of the
minds existed at the times that these documents were signed. I
conclude that sufficient ambiguity exists concerning the docu-
ments executed by Respondents to allow parole evidence to be
evaluated.
Both Respondents’ admittedly executed “compliance agree-
ments” with similar wording. Both documents state that the
current collective-bargaining agreement with the Union shall be
extended, and remain in force until the Union negotiates a suc-
cessor agreement “with the Association whose members per-
form work similar to the work performed by this firm.” This
document makes no reference to the scope of the unit or to
whether it applies to any jobs performed by Respondents within
the Union’s territorial jurisdiction, or to the single jobs that the
Respondents were working on at the time that they each signed
their agreements. Therefore reference must be made to the
independent construction agreements, that each Respondent
signed simultaneously with their execution of the compliance
agreements. However, the evidence from Shaw, the General
Counsel’s witness, established only that these Respondents
signed the four-page document, which included a signature
page. While Shaw also testified that the Union’s practice nor-
mally required each Employer to sign the entire construction
agreement, such testimony cannot be relied on in the case of
Respondent Agostino and Kenney. While I did rely on such
testimony in the cases of Respondents America, Van Tag, and
Stone, I note that no contrary testimony was adduced from any
of these Respondents as to what they each had executed.
Moreover, the document subsequently introduced into the re-
cord as the complete construction agreement, conformed to the
documents executed by those Respondents.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128
However, with respect to Respondents Kenney and
Agostino, credible testimony, as related above from Belmont
and Agostino indicated that they did not sign the full construc-
tion agreement, but only the four-page document which Shaw
testified came from the Union’s files. More importantly, the
only complete construction agreement introduced into the re-
cord, does not conform page wise to the four-page documents
signed by Respondents Agostino and Kenny. Thus, this agree-
ment consisted of 46 pages with page 46 being the signature
page. In contrast the documents signed by Respondents
Kenney and Agostino were signed on page 49, and contained
an additional page, not included in and different from the com-
plete contract introduced by Shaw as the contract that these
Respondents should have signed. In these circumstances, it
cannot be determined with certainty precisely what these Re-
spondents signed in 1996. The General Counsel has clearly not
established that either Respondent signed the complete con-
struction agreement, which defines the recognition of the Un-
ion, and then goes on to describe that the agreement covers
work performed by carpenter employees within the territorial
jurisdiction of the Union.10 Therefore, the record contains a
substantial ambiguity as to what documents these Respondents
signed and whether such documents obligated them to recog-
nize the Union for all carpenter work within the territorial ju-
risdiction of the Union, as the full agreement states, or merely
for the one job that these Respondents were working on when
they signed their respective agreements. Thus it is permissible,
under the authorities cited above, to consider the parole evi-
dence adduced to determine the intent of the parties.
Consideration of such evidence leads to the unmistakable
conclusion that no meeting of the minds existed when these
documents were executed as to the scope of the unit. Thus in
both cases, each Respondent had previously signed one-job
agreement with the Union. In Respondent Kenney’s case, an
agreement had been signed for the same job that it was working
on, when it was asked to sign another agreement.11 It was there-
fore reasonable to believe that both Respondents were being
asked to sign another one-job agreement. I note that General
Counsel’s position represents a substantial change in the prior
bargaining unit, from one job to all employees employed in the
Union’s jurisdiction, and requires probative evidence to estab-
lish that the Respondents consented to such a change. No such
evidence was adduced by the General Counsel.
In Respondent Agostino’s situation, its president specifically
informed Moitran, the Union’s agent, that Respondent Agostino
intended to sign a one-job agreement so he could proceed to

10 I would note that an argument can be made that even this full
agreement is somewhat ambiguous as to unit scope, since the above
clause is not included in the recognition article, but appears several
pages and articles later. I note in that connection, that ambiguities in
contracts are to be construed against the drafter. Inta-Roto, Inc., 252
NLRB 764, 770 (1980); Taft v. NLRB, 441 F.2d 1302, 1384 (8th Cir.
1971). I need not and do not so find, however, since as I have found
above ambiguity has clearly been established based on what documents
both Respondents were shown at the time that they signed the compli-
ance agreements.
11 In that connection, the previous agreement by its terms was sup-
posed to last for only 8 weeks from its execution.
work on that job. Moitran handed Agostino papers to sign, and
told him that they were standard forms. After Agostino men-
tioned that he could not afford a bond, Moitran replied that he
did not need a bond because it was “only a short term job.”
The General Counsel argues that the above evidence does not
establish a “fraudulent misrepresentation” by Moitran, since
Moitran did not himself say anything that misrepresented what
was being signed, and his remark about the bond is at most a
temporary waiver of the Union’s bond requirement. Although I
am not in agreement with the General Counsel’s characteriza-
tion of Moitran’s conduct or comments,12 I need not make any
finding that he fraudulently misrepresented any facts to
Agostino. What I do find however, is that Moitran’s conduct
and statements were relevant to an assessment of Agostino’s
state of mind when he executed on behalf of Respondent
Agostino in April 1996 a “compliance agreement.” I conclude,
consistent with Agostino’s testimony, that he only signed the
agreement with the Union, in order to complete the work on
that particular jobsite, and that he believed, quite reasonably,
that it applied only to carpenters work performed only at that
jobsite, a one-job agreement, as he had signed with the Union
in the past. In such circumstances there has been no meeting of
the minds established, and the complaint must be dismissed in
Case 2–CA–31097. Sansla, supra (parole evidence considered
and established that Employer believed that he was signing a
one-job agreement).13
As for Respondent Kenney, the parole evidence adduced is
not as compelling, inasmuch as Belmont had no direct conver-
sations with any union officials prior to signing the agreements,
and at no time indicated to anyone from the Union (unlike
Agostino), that he was interested in signing a one-job agree-
ment. Nonetheless, I find the evidence sufficient to establish
that Belmont did not believe that he was agreeing to sign a
contract which obligated Respondent Kenney to recognize the
Union for any carpenters work within the Union’s territorial
jurisdiction, and that therefore no meeting of the minds existed.
In that regard, I again note that such an agreement would repre-
sent a significant change in the unit from the prior one job that
Respondent Kenney signed for the very same job. It is there-
fore reasonable for Belmont to conclude, which I find that he
did, that when he was informed through his employee (a union
carpenter) that the carpenter shop steward had said that Re-
spondent Kenney needed to sign another agreement in order to
continue working on that job, that another one job agreement
was being executed. Therefore, when Belmont signed a com-
pliance agreement, agreeing to be bound by the association
12 In that regard, in my view Moitran’s silence in the face of
Agostino’s statement, coupled with his remark concerning the bond at
the very least must be considered misleading and having contributed to
Agostino’s misunderstanding as to what he signed.
13 The General Counsels argues that Agostino’s failure to read a con-
tract prior to signing does not excuse the party from the contract’s
obligations. Morton Electric, 314 NLRB 466, 468 (1994). However,
that contention though true, is misplaced in the instant case. The evi-
dence here does not establish that either Respondent was ever given a
copy of the full construction agreement to read, which would have
defined the unit, at any time either before or after each Respondent
signed the compliance agreements.
AMERICA PILES, INC. 1129
agreement still to be negotiated, he believed that he was bind-
ing Respondent Kenney to that agreement only for work per-
formed at the one job that Respondent Kenney was working on
at the time.
Respondent Kenney’s actions subsequent to the signing of
the agreements was consistent with that position. It resisted the
Union’s subsequent attempts to bind it to a contract, by main-
taining the view that it had not agreed to a contract with the
Union for work other than that at the one job. Although the
Union was successful in an arbitration award, finding inter alia
that Respondent Kenney was a party to a contract with the Un-
ion, which it violated, this award has no significance on the
issues before me. This was a default judgment, and the issue of
whether there was a meeting of the minds was not raised, liti-
gated, or decided by the arbitrator. Indeed, if anything the fail-
ure of Respondent Kenney to appear or defend the arbitration is
not inconsistent with its position that it had no contract with the
Union at the time. Once again, as with Respondent Agostino,
the General Counsel’s argument that Respondent Kenney
should have read the agreements before it signed, is not persua-
sive. The General Counsel has not established, and in fact
Belmont credibly denied that he had ever been shown a full
copy of the association agreement, which might have alerted
him to the fact that by signing these agreements, he was obli-
gating Respondent Kenney to a substantial expansion of the
bargaining unit.
Accordingly, based on the foregoing, I conclude that no
meeting of the minds existed at the time that Respondent
Kenney signed the compliance agreement, because Belmont
believed that he was again signing a one job agreement. Sansla
supra. Therefore, I shall recommend dismissal of the complaint
in Case 2–CA–31123.14
THE REMEDY
Having found that Respondents American, Van Tag, and
Stone have engaged in unfair labor practices within the mean-
ing of the Act, I shall recommend that they cease and desist
therefrom, and take certain affirmative action to effectuate the
purposes and policies of the Act.
I shall recommend that Respondents be required to execute
and abide by the association agreements to which each of them
agreed to be bound. They shall also be ordered to make whole
all unit employees for any loss of wages or other benefits. Such
amounts shall be computed as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970),15 with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1983). Re-
imbursements to the benefit funds shall be made in accordance
with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).

14 In view of my findings above, I need not and do not consider the
other affirmative defenses raised by these two Respondents.
15 Employee reimbursement for expenses shall be made in accor-
dance with Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981).
CONCLUSIONS OF LAW
1. Respondents America, Agostino, Kenney, Van Tag, and
Stone and each of them are and have been employers within the
meaning of Section 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. On or about April 15, 1996, Respondent America and the
Union agreed to execute and be bound by the terms of a collec-
tive-bargaining agreement, to be negotiated between the Union
and the General Contractors Association of Dockbuilders.
4. On or about April 8 and 17, 1996, respectively, Respon-
dent Stone and Respondent Van Tag agreed to execute and be
bound by the terms of a collective-bargaining agreement to be
negotiated between the Union and the Building Contractors
Association, Inc.
5. By refusing since on or about August 15, 1997, to execute
and abide by the agreed-on collective-bargaining agreement,
despite subsequent requests by the Union to do so, Respondent
America has violated Section 8(a)(1) and (5) of the Act.
6. By refusing since on or about October 28, 1996, to exe-
cute and abide by the agreed on collective-bargaining agree-
ment, despite subsequent requests by the Union to do so, Re-
spondents Van Tag and Stone have violated Section 8(a)(1) and
(5) of the Act.
7. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
8. Respondents Agostino and Kenney have not violated Sec-
tion 8(a)(1) and (5) of the Act as alleged in the complaints in
Cases 2–CA–31097 and 2–CA–31123.
On the foregoing conclusions of law and on the entire record,
I issue the following recommended16
ORDER
The Respondent, America Piles, Inc., Brooklyn, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to execute or abide by the terms of the Inde-
pendent Heavy Construction Dockbuilding Marine and Founda-
tion Agreement (the agreement) effective by its terms from July
1, 1996, to June 30, 2002.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, recognize and bargain with the Union as the
exclusive bargaining representative of the employees in the unit
set forth in the agreement described above.
(b) Sign and abide by the agreement, effective from July 1,
1996, to June 30, 2002.
(c) Make whole employees and the benefit funds for any
losses suffered as a result of Respondent America’s unlawful
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130
conduct, with interest, in the manner set forth in the remedy
section of this decision.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copy, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its
Brooklyn, New York facility copies of the attached notice
marked “Appendix A.”17 Copies of the notice, on forms pro-
vided by the Regional Director for Region 2, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proeedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by the Respondent at any time since
August 15, 1997.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
The Respondent Stone Systems, Inc. d/b/a Century Wood
Floors, Fairfield, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to execute or abide by the terms of the Inde-
pendent Building Construction Agreement (the agreement)
effective by its terms from July 1, 1996, to June 30, 2001.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, recognize and bargain with the Union as the
exclusive bargaining representative of the employees in the unit
set forth in the agreement described above.
(b) Sign and abide by the agreement, effective from July 1,
1996, to June 30, 2001.
(c) Make whole employees and the Benefit Funds for any
losses suffered as a result of Respondent Stone’s unlawful con-
duct, with interest, in the manner set forth in the remedy section
of this decision.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
Fairfield, New Jersey facility copies of the attached notice
marked “Appendix B.”18 Copies of the notice, on forms pro-
vided by the Regional Director for Region 2, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 28, 1996.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
The Respondent Van Tag Corporation Yonkers, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to execute or abide by the terms of the Inde-
pendent Building Construction Agreement (the agreement)
effective by its terms from July 1, 1996, to June 30, 2001.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, recognize and bargain with the Union as the
exclusive bargaining representative of the employees in the
Unit set forth in the agreement described above.
(b) Sign and abide by the agreement, effective from July 1,
1996 to June 30, 2001.
(c) Make whole employees and the benefit funds for any
losses suffered as a result of Respondent Van Tag’s unlawful
conduct, with interest, in the manner set forth in the remedy
section of this decision.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payments records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form,
18 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

AMERICA PILES, INC. 1131
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
Yonkers, New York facility copies of the attached notice
marked “Appendix C.”19 Copies of the notice, on forms pro-
vided by the Regional Director for Region 2, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the tendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 28, 1996.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken comply.
IT IS FURTHER ORDERED that the complaints in Cases 2–
CA–31097 and 2–CA–31123 be dismissed.

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to execute or abide by the terms of
the Independent Heavy Construction Dockbuilding Marine and
Foundation Agreement (the agreement) effectively by its terms
from July 1, 1996, to June 30, 2002.

WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

19 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

WE WILL, on request, recognize and bargain with the Union
as the exclusive bargaining representative of our employees in
the unit set forth in the agreement described above.

WE WILL sign and abide by the agreement, effective from
July 1, 1996, to June 30, 2002.

WE WILL make whole our employees and the benefit funds
for any losses suffered as a result of our unlawful conduct, plus
interest.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to execute or abide by the terms of
the Independent Building Construction Agreement (the agree-
ment) effectively its terms from July 1, 1996, to June 30, 2001.

WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

WE WILL, on request, recognize and bargain with the Union
as the exclusive bargaining representative of our employees in
the unit set forth in the agreement described above.

WE WILL sign and abide by the agreement, effective from
July 1, 1996, to June 30, 2001.

WE WILL make whole our employees and the benefit funds
for any losses suffered as a result of our unlawful conduct, plus
interest.

APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to execute or abide by the terms of
the Independent Construction Agreement (the agreement)
effective by its terms from July 1, 1996, to June 30, 2001.

WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

WE WILL, on request, recognize and bargain with the Union
as the exclusive bargaining representative of our employees in
the unit set forth in the agreement described above.

WE WILL sign and abide by the agreement, effective from
July 1, 1996, to June 30, 2001.

WE WILL make whole our employees and the benefit funds
for any losses suffered as a result of our unlawful conduct, plus
interest.
AMERICA PILES INC., AGOSTINO QUALITY
CARPENTRY INC., KENNEY DRAPERY
ASSOCIATES INC., STONE SYSTEMS INC.,
AND VAN TAG CORPORATION