CAB Associates

National Labor Relations Board - Board Decisions

Dec 31, 2003

340 N.L.R.B. 1391 (N.L.R.B. 2003)

CAB ASSOCIATES 1391
CAB Associates and Building Material Teamsters,
Local 282, International Brotherhood of Team-
sters, AFL–CIO. Case 29–CA–24331
December 31, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND
WALSH
On July 2, 2002, Administrative Law Judge Jesse
Kleiman issued the attached decision. The Respondent
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 the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below and to adopt the recommended Order as
modified and set forth in full below.2
The judge found that the Respondent, CAB Associates
(CAB), violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from Building Material Team-
sters, Local 282, International Brotherhood of Teamsters,
AFL–CIO (the Union) and by refusing to adhere to the
terms of a collective-bargaining agreement, effective July
1, 1999, through June 30, 2002, between the Union and
the General Contractors’ Association of New York, Inc.
(GCA), which CAB adopted by its conduct. We affirm
the judge’s violation finding, and we adopt his analysis
except as stated below.
I. THE 10(B) ISSUE
CAB contends, inter alia, that the complaint was un-
timely under Section 10(b) of the Act. For the reasons
explained below, we agree with the judge’s finding that
the complaint was not time barred.
A. Facts
At all material times, CAB, whose principals are
Charles and Brian Warshaw, was a member of the GCA,
a multiemployer association. The GCA and the Union
have been parties to several collective-bargaining agree-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all of the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 As explained in part II below, we shall amend the judge’s remedy
to conform to our findings and to the Board’s standard remedial lan-
guage, and to provide for the appropriate method of calculating back-
pay. We shall also modify the judge’s recommended Order to conform
to the amended remedy, and in accordance with Excel Container, Inc.,
325 NLRB 17 (1997), and Ferguson Electric Co., 335 NLRB 142
(2001); and we shall substitute a new notice.
ments under Section 8(f) of the Act, including agree-
ments effective July 1, 1996, through June 30, 1999 (the
1996–1999 agreement), and July 1, 1999, through June
30, 2002 (the 1999–2002 agreement). Effective June 30,
1996, CAB withdrew authority from the GCA to bargain
with the Union on its behalf. Nevertheless, CAB ad-
hered to the terms and conditions of the 1996–1999
agreement and also, for a time, the terms and conditions
of the 1999–2002 agreement.
The 1999–2002 agreement required signatory employ-
ers, inter alia, to employ onsite union stewards on jobs
costing at least $14 million, to pay onsite stewards an
extra dollar an hour, and to deduct and remit union dues.
During the latter half of 1999—i.e., the first 6 months of
the 1999–2002 agreement—CAB employed John
Wichrowski and Richard Wozlonis at its Herricks Road
and World Trade Center jobs, respectively, where they
served as onsite union stewards. CAB paid them an ex-
tra dollar an hour, and deducted and remitted union dues.
During the same timeframe, however, CAB did not em-
ploy an onsite union steward on its 14th Street job, which
also cost more than $14 million. Indeed, CAB had never
employed an onsite steward on its 14th Street job, which
began in 1995. Near the end of December 1999,
Wichrowski and Wozlonis were laid off. According to
the credited testimony, Brian Warshaw told them that the
layoffs were due to lack of work, but that CAB hoped to
get more work, and when it did, they would be recalled.
On July 8, 1999, the GCA sent the Union a list of em-
ployers that had authorized the GCA to represent them in
the negotiation, execution, and administration of the
1999–2002 agreement. CAB was not on that list. On
January 19, 2000, the Union sent CAB a letter demand-
ing that it sign an independent agreement, copies of
which were enclosed. CAB did not respond to this de-
mand.
From late December 1999 until January 2001, the Un-
ion was unaware of work being performed by CAB re-
quiring bargaining unit employees, and it was also un-
aware of any contracts being awarded CAB that would
require it to hire unit employees. In January 2001, Union
Secretary-Treasurer Thomas Gesualdi learned that CAB
had won a $25 million contract. Gesualdi phoned
Charles Warshaw and asked him to recall Wozlonis from
layoff so that the Union could appoint Wozlonis as its
onsite steward for this new job. Warshaw refused, say-
ing that he did not have a contract with the Union. The
judge’s unexcepted-to finding was that CAB has not
complied with the 1999–2002 agreement since January
21, 2001. The Union’s charge alleging a violation of
Section 8(a)(5) was filed on July 9, 2001, and served on
CAB July 11, 2001.
340 NLRB No. 171
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1392
B. Discussion
The 6-month limitations period prescribed by Section
10(b) begins to run only when a party has clear and un-
equivocal notice of a violation of the Act. See, e.g.,
Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54 F.3d
802 (D.C. Cir. 1995). The requisite notice may be actual
or constructive. In determining whether a party was on
constructive notice, the inquiry is whether that party
should have become aware of a violation in the exercise
of reasonable diligence. See, e.g., Moeller Bros. Body
Shop, 306 NLRB 191, 192–193 (1992). Constructive
notice will not be found where a “delay in filing is a con-
sequence of conflicting signals or otherwise ambiguous
conduct.” A & L Underground, 302 NLRB 467, 469
(1991).
CAB contends that the 10(b) period began to run when
it failed to respond to the Union’s January 19, 2000 letter
demanding that CAB sign an independent agreement.
The judge rejected this contention, relying in part on
Christopher Street Corp., 286 NLRB 253 (1987),3 and
reasoning that the Union could have reasonably believed
that CAB needed time to consider whether or not to sign
a contract directly with the Union. In this respect only,
we disagree with the judge’s rationale. In Christopher
Street, supra, the union sent the respondent a letter that
presented alternatives: sign an industrywide contract, or
negotiate a separate agreement. The respondent failed to
reply. Under those circumstances, the Board found that
the respondent’s silence did not put the union on notice
of an 8(a)(5) violation because “the [u]nion could rea-
sonably believe that the [r]espondent needed time to con-
sider whether to sign the industrywide contract.” Id. at
253. Here, by contrast, the Union knew that CAB had
withdrawn the GCA’s authority to bind it to the 1999–
2002 agreement. Thus, the Union offered the Respon-
dent no alternatives, but simply demanded that it sign an
independent agreement.
Nevertheless, we agree with the judge that prior to
Charles Warshaw’s express repudiation of the 1999–
2002 agreement, CAB’s conduct was ambiguous and,
thus, failed to give the Union the requisite constructive
notice. See A & L Underground, supra. CAB failed to
reply to the Union’s January 19, 2000 demand that it sign
an independent agreement. On the other hand, it com-
plied with the 1999–2002 agreement by employing
Wichrowski and Wozlonis as onsite union stewards on
two of its jobs, by paying them an extra dollar an hour,
and by deducting and remitting union dues. In addition,
when it laid off Wichrowski and Wozlonis at the end of
1999, it gave no indication that it meant to repudiate the

3 Enfd. mem. 847 F.2d 835 (2d Cir. 1988).
1999–2002 agreement or withdraw recognition from the
Union. On the contrary, it stated that the layoffs were
due to lack of work, and that Wichrowski and Wozlonis
would be recalled when new work was obtained. The
Union might have considered following up on its January
19, 2000 letter. However, in light of CAB’s conflicting
signals, CAB’s failure to respond to that letter did not
suffice to put the Union on constructive notice of an
8(a)(5) violation.
CAB contends that additional events also started the
10(b) period running more than 6 months before the fil-
ing and service of the charge, namely, (1) its refusal to
maintain Wichrowski as onsite steward at the Herricks
Road job in 2000, and (2) its refusal to submit contribu-
tions to the Local 282 benefit funds or dues checkoffs to
the Union after December 1999.4 These contentions are
without merit. As to (1), when Wichrowski was laid off
from the Herricks Road job in December 1999, he was
told that there was no more work; and CAB did not ex-
cept to the judge’s finding that from December 1999 to
January 2001, the Union was unaware of work being
performed by CAB requiring unit employees. As to
event (2), under the 1999–2002 agreement, CAB would
owe no fund contributions or dues checkoffs if it had no
work requiring unit employees; and again, from Decem-
ber 1999 to January 2001, the Union was unaware of
work being performed by CAB requiring unit employees.
Under these circumstances, the mere fact that the Her-
ricks Road job lasted into 2000, or that CAB paid no
fund contributions or dues checkoffs after December
1999, could not put the Union on constructive notice of
an 8(a)(5) violation.
II. THE JUDGE’S REMEDY
Paragraph 1 of the judge’s remedy states, inter alia,
that the Respondent “shall be ordered to revoke its with-
drawal of recognition of the Union and instead recognize
and bargain with the Union.” Paragraph 2(a) of the
judge’s recommended Order provides accordingly. CAB
excepts. As the judge found, the bargaining relationship
between CAB and the Union was governed by Section
8(f). Thus, when the 1999–2002 agreement expired on
June 30, 2002, either party was free to repudiate the rela-
tionship. See John Deklewa & Sons, 282 NLRB 1375,
4 Two other events cited by CAB as triggering the 10(b) period—its
refusal, in 2000, to employ Wozlonis as an onsite steward at the 14th
Street project, and its withdrawal of bargaining authority from the
GCA—are fully dealt with by the judge, whose analysis we have
adopted (except as otherwise provided herein). With regard to the 14th
Street project, however, it is worth emphasizing that CAB had never
employed an onsite steward there since the job began in 1995. Thus, its
continuing refusal to do so would not have alerted the Union that CAB
was repudiating the contract.
CAB ASSOCIATES 1393
1377–1378 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488
U.S. 889 (1988). Under these circumstances, we find
merit in CAB’s exception, and we will amend the rem-
edy and modify the recommended Order accordingly to
omit any requirement of recognition or bargaining. We
will, however, require CAB to fulfill its outstanding ob-
ligations under the 1999–2002 agreement.
The judge’s remedy also provides that individuals who
should have been but were not assigned work on CAB’s
projects under the terms of the 1999–2002 agreement are
to be made whole in the manner prescribed in Ogle Pro-
tection Service, 183 NLRB 682 (1970).5 The Ogle Pro-
tection formula applies only to remedy a violation of the
Act that does not involve cessation or denial of employ-
ment. To the extent that CAB’s unlawful repudiation of
the 1999–2002 agreement resulted in denial of employ-
ment—including but not limited to CAB’s refusal to re-
call Wozlonis from layoff in January 2001—that is ap-
propriately remedied under the quarterly backpay for-
mula prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950). See Raven Government Services, 336 NLRB
991, 992 (2001), enfd. 315 F.3d 499 (5th Cir. 2002). To
the extent, if any, that CAB’s unlawful conduct resulted
in employees receiving less than they would have been
entitled to for their work had the Act not been violated,
those losses are properly remedied under the Ogle Pro-
tection formula. We are unsure whether there are any
employees in this case who are entitled to backpay under
the latter formula. However, we shall amend the remedy
to provide for both backpay formulas and leave this issue
to compliance.
AMENDED REMEDY
Substitute the following for the first three paragraphs
of the remedy section of the judge’s decision.
“Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act. With respect to the
latter, the Respondent shall be ordered to fulfill its obli-
gations under the 1999–2002 collective-bargaining
agreement between the General Contractors’ Association
and Local 282, which the Respondent adopted by its
conduct.
“The Respondent shall also be ordered to make whole
all individuals represented by the Union who were de-
nied employment on the Respondent’s projects as a result

5 Enfd. 444 F.2d 502 (6th Cir. 1971). There are no exceptions to this
part of the remedy section of the judge’s decision. However, the Board
may address remedial matters in the absence of exceptions. See, e.g.,
Indian Hills Care Center, 321 NLRB 144 fn. 3 (1996).
of its unlawful failure to comply with the terms of the
1999–2002 agreement, in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). To the extent, if any, that the Respondent’s
unlawful conduct resulted in employees receiving less
than they would have been entitled to for their work had
the Act not been violated, the Respondent shall be or-
dered to make those employees whole in the manner set
forth in Ogle Protection Service, supra, with interest as
prescribed in New Horizons for the Retarded, supra.
“Furthermore, the Respondent shall be ordered to
make whole the appropriate union benefit funds for
losses suffered as a result of the Respondent’s delinquen-
cies in failing to make contractually required contribu-
tions to those funds under the 1999–2002 agreement,
including paying any additional amounts applicable to
such delinquent payments in accordance with Merry-
weather Optical Co., 240 NLRB 1213, 1216 (1979). In
addition, the Respondent shall reimburse unit employees
and/or other individuals for any expenses ensuing from
its failure to make such required contributions as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, CAB Associates, College Point, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully withdrawing recognition from Building
Material Teamsters, Local 282, International Brother-
hood of Teamsters, AFL–CIO.
(b) Unlawfully refusing to adhere to the terms of the
1999–2002 collective-bargaining agreement between the
General Contractors’ Association of New York, Inc. and
Local 282, which the Respondent adopted by its conduct,
covering the following unit:
All automobile chauffeurs and euclid and turnapull op-
erators employed by the Respondent at its College
Point facility, excluding office clerical employees,
guards and supervisors as defined by Section 2(11) of
the Act.
(c) 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) Fulfill its obligations under the aforesaid agree-
ment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1394
(b) Make whole the unit employees and/or other indi-
viduals for any losses suffered as a result of its failure to
adhere to the terms of the aforesaid agreement, in the
manner set forth in the remedy section of this decision.
(c) Make whole the union benefit funds for any losses
suffered as a result of its failure to adhere to the terms of
the aforesaid agreement, and reimburse the unit employ-
ees and/or other individuals for any expenses resulting
from its failure to make the required fund contributions,
in the manner set forth in the remedy section of this deci-
sion.
(d) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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 College Point, New York place of business copies of
the attached notice marked “Appendix.”6 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, 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 Re-
spondent 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 January 21, 2001.
(f) Within 14 days after service by the Region, return
to the Regional Director sufficient copies of the notice,
after being signed by the Respondent’s authorized repre-
sentative, for posting by the Union, if it is willing, at all
locations where notices to its members are customarily
posted.
(g) 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-

6 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.”
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT unlawfully withdraw recognition
from Building Material Teamsters, Local 282, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
WE WILL NOT unlawfully refuse to adhere to the
terms of the 1999–2002 collective-bargaining agreement
between the General Contractors’ Association of New
York, Inc. and Local 282, which we adopted by our con-
duct, covering the following unit:

All automobile chauffeurs and euclid and turnapull op-
erators employed by us at our College Point facility,
excluding office clerical employees, guards and super-
visors as defined by Section 2(11) of the Act.

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 fulfill our obligations under the aforesaid
agreement.
WE WILL make whole our employees and/or other in-
dividuals, with interest, for any losses suffered as a result
of our failure to adhere to the terms of the aforesaid
agreement.
WE WILL make whole the union benefit funds for any
losses suffered as a result of our failure to adhere to the
terms of the aforesaid agreement, and WE WILL reim-
burse our employees and/or other individuals, with inter-
est, for any expenses resulting from our failure to make
the required fund contributions.

CAB ASSOCIATES

CAB ASSOCIATES 1395
Amy J. Gladstone, Esq. and Lorraine Hoffman, Esq., for the
General Counsel.
Richard B. Ziskin, Esq. and Robert M. Ziskin, Esq. (Law Office
of Robert M. Ziskin), for the Respondent.
Bruce L. Levine, Esq. (Cohen, Weiss & Simon, LLP), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. Upon the
basis of a charge filed by Building Material Teamsters, Local
282, International Brotherhood of Teamsters, AFL–CIO (the
Union) on July 9, 2001, against Cab Associates (the Respon-
dent), a complaint and notice of hearing was issued on October
30, 2001, alleging that the Respondent, by withdrawing its
recognition of the Union and by failing and refusing to bargain
collectively with the exclusive collective-bargaining representa-
tive of its employees within the meaning of Section 8(d) of the
National Labor Relations Act (the Act), thereby violated Sec-
tion 8(a)(1) and (5) of the Act. By answer timely filed the Re-
spondent denied the material allegations in the complaint and
raised several affirmative defenses.
A hearing in this matter was held before me in Brooklyn,
New York, between January 16 and March 5, 2002. Subse-
quent to the close of the case, the General Counsel, the Union
and the Respondent filed briefs.
On the entire record1 and the briefs of the parties, and upon
my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a domestic corporation, with its principal
office and place of business located at 18–21 126th Street, Col-
lege Point, New York (College Point facility), has been en-
gaged in the business of general contracting in the construction
business. During the past year, the Respondent, in the course
and conduct of its business operations, purchased and received
goods and materials at the College Point facility valued in ex-
cess of $50,000 directly from points located outside the State of
New York. The complaint alleges, the Respondent admits and
I find that the Respondent is now, and has been at all times
material, an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. I also find that
Charles Warshaw and Brian Warshaw “administrators” of the
Respondent, at all times material, have been agents of the Re-
spondent, acting on its behalf.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find that
the Union at all material times, has been a labor organization
within the meaning of Section 2(5) of the Act. The amended
complaint alleges that the unit of the Respondent’s employees

1 By motion dated May 6, 2002, counsel for the General Counsel
moved to amend the transcript. There being no opposition thereto, the
proposed corrections being mainly of a spelling or grammatical nature
without affecting any substantive changes, I hereby grant the motion to
amend the transcript. See attachment 1 [omitted from publication].
(the unit) appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act is:

All automobile chauffeurs and euclid and turnapull operators
employed by the Respondent at the College Point facility, ex-
cluding office clerical employees, guards and supervisors as
defined by Section 2(11) of the Act.

The amended complaint also alleges that during the 1996–
1999 and 1999–2002 Agreements, the Union has been the “lim-
ited exclusive collective-bargaining representative” of the unit
based on Section 9(a) of the Act.
The Motion to Amend the Complaint
By letters dated January 22 and January 28, 2002, counsel
for the General Counsel moved to amend the complaint stating:

Based upon evidence that Counsel for the General
Counsel has recently uncovered, the General Counsel is
hereby withdrawing its theory that Respondent’s violation
of Section 8(5) of the Act is based on Respondent’s failure
to comply with the requirements of Retail Associates,2 that
is, Respondent’s failure to provide the Union with written
notification of its withdrawal from the General Contrac-
tor’s Association prior to the commencement of negotia-
tions for the 1999–2002 collective-bargaining agreement
with the General Contractor’s Association. Henceforth,
the General Counsel will proceed solely on its alternative
theory that Respondent, by its Conduct, adopted both the
1996 and 1999 collective-bargaining Agreements between
the Union and the General Contractor’s Association. See
E.S.P. Concrete Pumping, Inc., 327 NLRB 711 (1999).3

The amended complaint alleges in substance that the Re-
spondent, by its acts and conduct, adopted the terms of the
1996–1999 and 1999–2002 collective-bargaining agreements
between the General Contractor’s Association (GCA) and the
Union; since January 21, 2001 has refused to adhere to the
1999–2002 collective-bargaining agreement; has unlawfully
withdrawn recognition from the Union in January 2001, and by
2 Retail Associates, Inc., 120 NLRB 388 (1958). The amended com-
plaint deleted and withdrew the allegation that the Respondent is bound
by the 1999–2002 Association Agreement by virtue of its membership
in and/or authorization to the General Contractor’s Association.
3 In E.S.P. Concrete Pumping, Inc., supra, the Board held that the
principles of “adoption by conduct” of a collective-bargaining agree-
ment, properly understood, are applicable to agreements covered by
Sec. 8(f) as well as Sec. 9(a), and that once an employer had voluntarily
adopted a contract, it is foreclosed under John Deklewa & Sons [282
NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843
F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988)] from repu-
diating it during its term.
Arco Electric v. NLRB, 618 F.2d 698 (10th Cir. 1980) (whether par-
ticular conduct in a given case demonstrates the existence or adoption
of a contract is a question of fact); enfg. 237 NLRB 708 (1978).
Lozano Enterprises v. NLRB, 327 F.2d 814 (9th Cir. 1964) (in deciding
whether an employer and a union have agreed upon a contract the
Board is not bound by the technical rules of contract law); NLRB v.
Truckdrivers Local 100, 532 F.2d 569, 571 (6th Cir. 1976), cert. denied
429 U.S. 859 (1976) (same).
See also, Pergament United Sales, Inc., 296 NLRB 333, 334 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1396
these acts has failed and refused to bargain collectively with the
Union in violation of Section 8(a)(1) and (5) of the Act.4
The motion to amend the complaint was made by counsel for
the General Counsel after the General Counsel had rested her
case but reserved the right to call rebuttal witnesses, and both
the Union and the Respondent had also rested their cases. This
matter was then adjourned on January 17 to February 4, 2002,
for the testimony of any rebuttal witnesses.
By letters dated January 23 and 29, 2002, the Respondent
stated that it “supported General Counsel’s position to with-
draw its theory that Respondent’s alleged violation of Section
8(a)(5) was based on the Respondent’s alleged failure to com-
ply with the requirements of Retail Associates, specifically, the
Respondent failed to provide Local 282 with written notifica-
tion of its withdrawal from the General Contractor’s Associa-
tion (‘GCA’) prior to the commencement of the 1999–2002
negotiations for the collective–bargaining agreement between
Local 282 and the GCA.”
However, the Respondent objected to the granting of the
General Counsel’s motion to amend the “entire substantive
portion of the complaint with an alternative and inconsistent
theory from the original,” pursuant to Section 102.17 of the
Board’s Rules and Regulations which allows amendments to
complaints, “upon such terms as may be deemed just,” since
General Counsel was seeking to amend the complaint at the
conclusion of the Respondent’s defense to the General Coun-
sel’s case in-chief and the Respondent would be “severely
prejudiced by General Counsel’s attempted amendments,” cit-
ing New York Post Corp., 283 NLRB 430 (1987).
The Respondent maintains that the delay by General Counsel
in making its motion to amend the complaint until the entire
trial record was completed except for rebuttal witnesses, and
without any attempt to explain or justify the delay between the
time it first learned or should have known of the alternative
theory and when the motion to amend the complaint was made,
is of consequence, because during the trial the Respondent
cross-examined the General Counsel’s witnesses and presented
its defense in its entirety without any knowledge that the Gen-
eral Counsel was going to amend the complaint after the Re-
spondent rested.
The Respondent also alleges that any argument by General
Counsel that the matter was fully litigated or that the amend-
ment is in essence a motion to conform the pleadings to the
evidence and that the amendment involves only a legal conclu-
sion based on facts already in evidence is without merit, since
the Respondent’s case would have been changed, for example,
its cross-examination of General Counsel’s witnesses, might
have been different had it been aware of the new allegations.
The Respondent asserts that counsel for the General Counsel
has not justified the delay occurring between the time she knew
or should have known of the alternative theory and the time

4 The Union raised no objection to the proposed amendments to the
complaint but “does not agree . . . with the General Counsel’s decision
to withdraw one of the two theories, that is the Respondent was bound
as a member of the Association to the multi employer agreement. Its
Local 282’s position that this still is the case. However, we are defer-
ring to the General Counsel’s decision to withdraw that without sub-
scribing to the conclusions they apparently have reached.”
notice was given to the Respondent of the intention to amend
the complaint. For such an amendment to be just pursuant to
Section 102.17 of the Board’s Rules and Regulations, the Gen-
eral Counsel must justify last minute amendments. “Where no
or insufficient explanation is given for a prosecutorial delay in
preparing an amendment to the complaint or informing the
Respondent that such an amendment will be prepared, there can
be no doubt that delay on the part of the government in prepar-
ing its amendment to the complaint was used to gain an advan-
tage over Respondent.” Citing, Consolidated Printers, Inc.,
305 NLRB 1061 (1992).
The Respondent also states that the General Counsel’s alter-
native theory that the Respondent adopted both the 1996–1999
and 1999–2002 collective-bargaining agreements between Lo-
cal 282 and the GCA is “time-barred under Section 10(b) of the
Act.”
Counsel for the General Counsel explains in her brief that
the motion to amend the complaint to delete the General Coun-
sel’s allegations in the complaint that the Respondent untimely
withdrew from the GCA without providing the Union with
adequate notice under Retail Associates, Inc., 120 NLRB 388
(1958), was based on evidence counsel for the General Counsel
did not discover until after the trial began.
Asserting that after the close of the second day of trial, Janu-
ary 17, 2002, counsel for the General Counsel had the opportu-
nity for the first time to examine the four collective-bargaining
agreements between the Union and the GCA. Previously, dur-
ing the Board’s investigation, in this matter, the Union was able
to provide only the most recent collective-bargaining agree-
ment, the 1999–2002 agreement, since the earlier agreements
had been filed away in storage. Since the 1999–2002 Agree-
ment states that the Respondent recognizes the Union under
Section 9(a) of the Act, the Union was under the assumption
that it maintained 9(a) status throughout its collective-
bargaining relationship with the Respondent and the General
Counsel proceeded based upon that representation. However,
after the second day of trial, upon reviewing the GCA collec-
tive-bargaining agreements for 1990–1993, 1993–1996, and
1996–1999, counsel for the General Counsel found that during
the period of the first three agreements, the Union’s status as a
bargaining representative was covered by Section 8(f) of the
Act not Section 9(a).
Moreover, counsel for the General Counsel citing the
Board’s holding in Central Illinois Construction, 335 NLRB
717 (2001), alleges that the language in the 1999–2002 Agree-
ment5 failed to adequately convert the Union’s relationship
with the Respondent from one governed by Section 8(f) of the
Act, to one under Section 9(a) of the Act. In Central Illinois
Construction, the Board adopted the standards articulated by
the United States Court of Appeals in NLRB v. Triple C Main-
5 The recognition clause in the 1999–2002 collective-bargaining
agreement reads as follows:
The Union claims, and the Employer acknowledge and agrees, that a
majority of the Employees have authorized the Union to represent
them in collective bargaining. The Employer hereby recognizes the
Union as the exclusive collective-bargaining representative under Sec-
tion 9(a) of the National Labor Relations Act of all automobile chauf-
feurs and euclid and turnapull operators employed by the Employer.
CAB ASSOCIATES 1397
tenance, Inc., 219 F.3d 1147 (10th Cir. 2000), and Oklahoma
Installation Co., 219 F.3d 1160 (10th Cir. 2000), which provide
that a parties’ recognition agreement or contract will independ-
ently establish a union’s 9(a) status were the language in the
contract unequivocally indicates that: (1) the union requested
recognition as majority or as the 9(a) representative of the unit
employees; (2) the employer recognizes the union as the major-
ity or as the 9(a) representative, and (3) the employer’s recogni-
tion was based on the union’s having shown, or having offered
to show, an evidentiary basis of its majority support. Central
Illinois Construction, supra at 4. The provision in the 1999–
2002 Agreement fails to establish an intent to create a 9(a) rela-
tionship.6
Continuing her explanation, counsel for the General Counsel
then moved, by letters dated January 22 and 28, 2002 to amend
the complaint to delete its theory, based on the mistaken as-
sumption that the parties maintained a 9(a) relationship, and
that the Respondent untimely withdrew from the GCA without
providing the Union with adequate notice under Retail Associ-
ates, Inc., supra,7 counsel for the General Counsel therein
moved to further amend the complaint to assert that the Union
has had limited 9(a) status for the periods July 1, 1996 to June
31, 1999, and July 1, 1999 to June 30, 2002, and to state the
General Counsel’s remaining basis for finding the Respon-
dent’s withdrawal of recognition of the Union unlawful, by
virtue of the fact that the Respondent had adopted the 1999–
2001 collective-bargaining agreement.
By conference call with the parties on January 31, 2002, I
granted the General Counsel’s motion to amend the complaint
over the objection of the Respondent, as set forth above. At the
opening of the hearing on March 4, 2002, I again granted the
General Counsel’s motions to amend the complaint. I then
granted the Respondent an adjournment to “prepare its case
with regard to any defense to the amended complaint. While
maintaining its objections to the amended complaint, CAB
presented its defense to the amended complaint on March 5,
2002, the final day of the hearing.”
As set forth above, the Respondent relies primarily on Sec-
tion 102.17 of the Board’s Rules and Regulations and two
cases, Consolidated Printers, Inc., 305 NLRB 1061 (1992), and
New York Post Corp., 283 NLRB 430 (1987), to support its
position that the administrative law judge should not have
granted the General Counsel’s motion to amend the complaint
as untimely.
Section 102.17 permits the amendment of a complaint, be-
fore, during or after a hearing “upon such terms as may be
deemed just.” In Consolidated Printers, Inc. 305 NLRB 1064,
the Administrative Law Judge with Board approval stated:

The Board in New York Post reversed an administra-
tive law Judge who had allowed a last-minute amendment

6 This provision neither states that the Union requested recognition
as a majority or as the 9(a) representative of the unit employees nor
does it state that recognition was based on the Union’s having shown,
or having offered to show, evidence of majority support.
7 An employer is not required to give the Union timely notice of its
withdrawal from an association when the parties maintain a 8(f) rela-
tionship.
to the complaint over the objection of the respondent . . . .
The Board particularly noted that the General Counsel had
without explanation waited until the last minute to add the
allegation. 283 NLRB at 431.
In the instant case Counsel for the General Counsel
contends that he learned of Respondent’s defense only at
the trial. Counsel for the General Counsel does not ex-
plain however the delay between the time he learned of the
nature and theory of Respondent’s defense and the time he
first made his motion after the entire trial record had been
made and the hearing was to be closed. That delay is of
consequences because during that interim period counsel
for Respondent cross-examined the General Counsel’s
witnesses and presented his defense in its entirety without
any knowledge that the General Counsel was intending to
move to amend the complaint to allege that portions of
Respondent’s defense were independently violative of the
Act.

The instant case is distinguishable from the above cases in
several aspects and this constitutes the basis for my granting the
General Counsel’s motion to amend the complaint as indicated
herein. In this case, counsel for the General Counsel’s motion
to amend the complaint to delete the Retail Associates, supra,
allegations of lack of notice of the Respondent’s withdrawal
from the GCA was based on evidence counsel for the General
Counsel did not discover until after the trial began. Moreover,
the General Counsel’s motion to amend the complaint to allege
the “adoption of conduct” theory was based on evidence ad-
duced in substantial part from the Respondent’s own witness,
Charles Warshaw’s testimonial admissions after the second day
of the trial.
Whether it is just to grant a motion to amend a complaint
when the motion is made during or after a hearing depends on
factors such as surprise or lack of notice Nestle Co., 248 NLRB
732 fn. 3 (1980); Douglas & Lomason Co., 253 NLRB 277,
279 fn. 6 (1980); whether the General Counsel offered a valid
excuse for failing to make the motion earlier (Douglas & Lo-
mason Co., supra); Trans-States Lines, 256 NLRB 648 fn. 3
(1981); and whether the matter was fully litigated La Famosa
Foods, 282 NLRB 316, 330 (1986); Douglas & Lomason Co.,
supra; Nestle Co., supra; Ace Drop Cloth Co., 178 NLRB 664
fn. 1 (1969).
In the present case, the General Counsel’s motion to amend
the complaint to allege an “adoption by conduct” theory was
based in strong part on the evidence of the testimonial admis-
sions adduced from the Respondent’s own major witness dur-
ing the trial. Under these circumstances, there is no basis for a
finding of surprise, lack of notice, or prejudice to the Respon-
dent. See Wilson & Sons Heating & Plumbing, Inc., 302
NLRB 802, 804 (1991), enfd. sub nom. NLRB v. Amateyus,
Ltd., 817 F.2d 996 (2d Cir. 1987), cert. denied 484 U.S. 925
(1987).
Also, at the commencement of the trial, in her opening
statement, counsel for the General Counsel “made it very clear
that adoption by conduct was one of the theories on which
General Counsel was proceeding.” The General Counsel not
only presented evidence with regard to the “Retail Associates”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1398
theory as originally alleged in the complaint, but also as con-
cerns the “adoption by conduct” theory, as subsequently alleged
in the amended complaint, even before the complaint was
amended. The record evidence shows that the Respondent’s
case and defense focused in substantial part on the General
Counsel’s “adoption by conduct” argument. Additionally, the
matters at issue appeared to be fully litigated since all parties
had the opportunity at the trial to present any available evi-
dence relative to the alleged violation, the Respondent had the
opportunity to cross-examine the General Counsel’s witnesses
on the “adoption by conduct” testimony, even before the mo-
tion to amend the complaint was addressed, and the Respon-
dent’s main witness, Charles Warshaw, testified considerably
on this issue.
Additionally, it is well settled that the Board may find and
remedy a violation even in the absence of a specified allegation
in the complaint if the issue is closely connected to the subject
matter of the complaint and has been fully litigated. This rule
has been applied with particular force where the finding of a
violation is established by the testimonial admissions of the
Respondent’s own witnesses. Pergament United Sales, Inc.,
296 NLRB 333, 334 (1989); Timken Co., 236 NLRB 757
(1978), enf. denied on other grounds 652 F.2d 610 (6th Cir.
1981); Crown Zellerbach Corp., 225 NLRB 911, 912 (1976).
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Evidence
The General Contractors Association of New York, Inc.
(GCA) is an organization representing contractors in the City of
New York in the heavy construction industry in negotiating and
administering collective-bargaining agreements with unions,
covering construction work on roads, bridges, tunnels, building
foundations and excavations. The GCA has 110 active mem-
bers. An additional 450 companies designate the GCA to rep-
resent them through collective-bargaining designation forms,
but are not active or associate members. According to the GCA
Constitution and bylaws, mere membership in the GCA does
not grant the employer association authority to act on an em-
ployer-member’s behalf in collective-bargaining negotiations.
The only grant of that authority is the GCA designation form by
which a member-employer authorizes the GSA to bargain on its
behalf with the unions listed on the authorization form except
for those unions that the employer-member may cross out and
have initialed. Anthony Saparito, GCA assistant director of
labor relations 8 for the past three years, testified that unions
frequently ask the GCA for a current list of authorized contrac-
tors, who have designated the GCA to bargain for them where-
upon the GCA sends the unions such an updated listing. The
GSA sends updated lists to the various unions when it negoti-
ates a new contract. The GSA also send out a letter when a

8 Saparito’s duties include the administration of the GCA’s labor
contracts, safety issues, grievances and arbitration. With respect to
union negotiations, the GCA generally puts together a committee of
contractors who negotiate with various unions for new contracts. Sa-
parito and Theodore King, the GCA director of labor relations, act as
spokesmen and prepare proposals to present to the unions.
new company wants to be added or deleted from the authoriza-
tion list.
The Respondent first authorized the GCA to act as its collec-
tive bargaining representative on August 2, 1990. At all mate-
rial times herein, the Respondent has been a member of the
GCA. On March 22, 1991, the Respondent voluntarily recog-
nized the Union as the collective-bargaining representative of a
unit of employees consisting of automobile chauffeurs and
euclid and turnapull operators employed by the Respondent
(the Unit). These employees drive materials to and from the
Respondent’s jobsites. Since the date of recognition, the GCA
and the Union have been parties to four collective-bargaining
agreements, the first being effective from March 22, 1991 to
June 30, 1993. This contract was similar to the contract negoti-
ated by the Union and the GCA on behalf of the GCA’s mem-
bers at that time. By letter dated October 22, 1991, sent to
Theresa Cody, a Union Trust Fund employee in charge of
maintaining the Union’s contracts, the GCA notified the Union
that it was authorized to bargain with the Union on behalf of
the Respondent.
In October 1991, the Respondent hired John Wichrowski as
a Unit driver at its Queens Plaza project. From the com-
mencement of his employment with the Respondent until his
layoff on December 28, 1999, Wichrowski also worked as an
onsite-steward for the Union, checking all trucks that came
onto the jobsite to ensure that they were union affiliated and
that deliveries were safely made. Wichrowski received an ad-
ditional $1 per hour from the Respondent for this work pursu-
ant to the collective-bargaining agreement.
The Respondent and the Union were parties to a second col-
lective-bargaining agreement, effective from July 1, 1993 to
June 30, 1996, negotiated by the GCA on behalf of the Respon-
dent. In May 1993, the Respondent hired Richard Wozlonis to
work for it as a unit driver for its subway rehabilitation project
at the World Trade Center.
By letter dated February 22, 1994, the Respondent’s admin-
istrator, Charles Warshaw, requested that the GCA remove the
Respondent from the list of authorized contractors with the
Union. On March 1, 1994, A. E. Gattler, then assistant director
of labor relations for the GCA, by letter to Warshaw, acknowl-
edged receipt by the GCA of the Respondent’s withdrawal of
its bargaining authorization with the Union, and informed War-
shaw that the Respondent’s withdrawal would be effective June
30, 1996, the date of the expiration of the 1993–1996 collec-
tive-bargaining agreement. It is undisputed that, at that time,
neither the Respondent nor the GCA informed the Union of this
withdrawal of bargaining authority effective at the expiration of
the GCA 1993–1996 Agreement.
The GCA and the Union negotiated a third collective-
bargaining agreement effective from July 1, 1996, to June 30,
1999. On August 8, 1996, the GCA sent Theresa Cody, a Un-
ion Trust Fund employee, the GCA’s contractor employer au-
thorization list. The Respondent was not listed as a contractor
on this list. The evidence indicates that the records of the GCA
do not reflect any documents or designation forms, which
CAB ASSOCIATES 1399
would have granted the GCA authority to bargain on behalf of
the Respondent with the Union after March 1, 1994.9
While Charles Warshaw testified that after 1996, the Re-
spondent no longer had any contractual obligation with the
Union, the evidence shows that from July 1, 1996, to June 30,
1999, the Respondent continued to adhere to all the terms and
conditions of the 1996 collective-bargaining agreement. In this
regard, throughout the entire term of the 1996 Agreement, the
Respondent paid employees Wichrowski and Richard Wozlonis
the wage rates required by this Agreement, which included an
additional $1 per hour to Wichrowski for acting as the Union’s
onsite steward at the Respondent’s Herrick’s Road jobsite.
Additionally, the Union’s Fund’s records reflect that through-
out the 1996–1999 contract period, the Respondent submitted
the requisite forms to the union building fund and benefit con-
tributions to the Union required by the 1996 collective-
bargaining agreement.10 The Respondent also deducted dues
from Wichrowski and Wozlonis’ paychecks and remitted them
to the Union. At no time throughout the term of the 1996
Agreement did the Respondent advise the Union, in any man-
ner, that it had withdrawn recognition from the Union.
In 1997, Richard Wozlonis began working for the Respon-
dent on the Respondent’s subway rehabilitation at the World
Trade Center and while also the Union’s onsite steward re-
ceived an extra $1 per hour pursuant to the 1996–1999 collec-
tive-bargaining agreement. The Respondent was the general
contractor at the World Trade Center subway renovation and
construction project and had a contract with the Metropolitan
Transit Authority (MTA) to do the work. Charles Warshaw
testified that the MTA is a public agency and the Respondent
was obligated to pay its employees including Wozlonis the
prevailing wage rates and benefits as set forth in the job bid
book.
The Respondent also received a 14th Street subway con-
struction project in Manhattan contract with the MTA
($21,000,000) from 1995 to 1999. Warshaw testified that prior
to 2000, the Union requested that the Respondent employ an
onsite steward at the 14th Street and World Trade Center pro-
jects. The Respondent never employed a union onsite-steward
at the 14th Street project. Brian Warshaw testified that both
Wichrowski and Wozlonis inquired about work on the 14th
Street site and Warshaw informed them individually that there
was no need for a truckdriver at the 14th Street job. Charles
Warshaw testified that on two or three occasions, in early 2000,
Thomas Geswualdi a union official asked that Warshaw em-
ploy Wozlonis as an onsite steward at the 14th Street project,
but Warshaw refused Gesualdi’s request. The evidence shows
that from July 6, 1999, to April 3, 2001, the Respondent did not
employ a union onsite steward or a Local 282 truckdriver on
the 14th Street project in Manhattan.

9 By letter dated January 26, 2001, the GCA informed the Respon-
dent that its records did not indicate the Respondent having a current,
collective-bargaining agreement with the Union.
10 The Respondent maintains that those payments were required un-
der the New York State Department of Transportation and Metropolitan
Transit Authority bid requirements and the union dues deductions and
remittance was made by the employees own requests.
On April 1, 1999, 90 days prior to the expiration of the
1996–1999 Agreement, the Union by letter notified the Re-
spondent that it was prepared to meet to negotiate a new
agreement. The Respondent did not reply to the Union’s letter
nor inform the Union that it had withdrawn its recognition from
the Union.
Subsequent to negotiations for a new collective-bargaining
agreement between the GCA and the Union, these parties en-
tered into the 1999–2002 agreement. To be attached to this
agreement was to be a list of employers who have authorized
the GCA to bargain for them and therefore would be bound by
the 1999–2002 collective-bargaining agreement. The GCA
sent such an authorization list to the Union on July 8, 1999.
The Respondent’s name did not appear thereon. After the
1999–2002 agreement was executed, the Union sent a letter to
all employers it felt bound by the new GCA agreement, both
members and nonmembers, informing them of any new wage,
pension, welfare, and annuity rates. While such a letter was
sent to the Respondent by the Union, the Respondent did not
respond to it nor inform the Union that it had withdrawn recog-
nition from the Union. Union Secretary/Treasurer Thomas
Gesualdi testified that the Union was not concerned at this
point about it, since the Respondent was fully complying with
all the changes contained in the 1999–2002 agreement and the
Respondent had done nothing to alert the Union that it had
withdrawn recognition from the Union.
Both Wichrowski and Wozlonis continued in the Respon-
dent’s employ after July 1, 1999, the date on which the 1999–
2002 collective-bargaining agreement became effective. In
compliance with the new contract changes the Respondent
began to pay the new wage amounts and when due the agree-
ments new pension and welfare rates.11
Pursuant to a contract with the New York State Department
of Transportation (NYSDOT) beginning in 1994 to construct a
railroad bridge above Herricks Road in Nassau County, New
York, the Respondent a general contractor employed various
trades on the construction site including truckdrivers, engineers,
laborers, carpenters, latherers, ironworkers, and painters.12
John Wichrowski testified he had been employed by the Re-
spondent on the Herrick’s Road job since 1994 as a truckdriver
and on December 28 or 29, 1999, the Respondent’s administra-
tor, Brian Warshaw, approached him and told Wichrowski that
11 Contributions to the Union’s pension plan increased from $3.10
per hour to $4 per hour; the hourly rate for the Union’s welfare fund
decreased from $7.85 to $6.90; contributions to the Union’s job training
fund increased from $.05 to $.10 per hour; a vacation/sick leave contri-
butions was established, for the first time, at the rate of $2.30 per hour.
The wage rate of Wichrowski and Wozlonis was increased to $28.28
per hour plus $1 per hour for acting as onsite stewards as required by
the 1999–2002 agreement.
Charles Warshaw testified that both Wichrowski and Wozlonis re-
quested that the Respondent make their fringe benefit contributions to
the union funds rather than to them as pay and this continued from July
to December 1999. The Respondent also withheld union dues and
remitted these to the Union at the employees requests.
12 The NYSDOT bid book (agreement) required the Respondent to
pay its truckdriver employees the prevailing wage and fringe benefits
which on the Herricks Road project corresponded to the Union’s cur-
rent rates under the 1999–2002 GCA Agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1400
there was no more work and he was sorry to have to let
Wichrowski go. Wichrowski stated that Warshaw said that he
hoped to get some new jobs and contracts and assured
Wichrowski that when this happened, Wichrowski and some
other laid off employees on that job would be recalled to
work.13 Wichrowski added that he was not surprised at this
because the Herrick’s Road job was approaching completion at
the “punch list” stage of construction, ending stage of the work,
and the Respondent was having financial problems because of
an accident on one of the Respondent’s jobs. It is undisputed
that Brian Warshaw said nothing to Wichrowski about the Re-
spondent having withdrawn its recognition of the Union at that
time. Wichrowski related that he has not spoken to anyone at
the Respondent since his layoff nor called to ask the Respon-
dent to be placed on another job and to date, no one from the
Respondent has contacted Wichrowski to return to work.
By letter dated January 14, 2000, the Respondent requested
an extension of time at the Herricks Road project to complete
additional work until April 30, 2000. Work on the Herricks
Road job was completed in June 2000. During 2000 the Re-
spondent did not employ any Local 282 truckdrivers or onsite
stewards at the Herricks Road project.
Richard Wozlonis testified that during the last week in De-
cember 1999, Brian Warshaw approached him at the Respon-
dent’s College Point office and asked him if he had spoken to
Wichrowski and then told him that, “Well, it looks like we are
going to have to lay you off due to lack of work.” Wozlonis
related that Warshaw told him that when more work was se-
cured, the Respondent would recall him to work. Wozlonis
stated that he believed that the Respondent would call him back
to work at some future time and was not surprised by his being
laid off since the job he was working on at the World Trade
Center was in the “clean up” stage at the end of the job. Ac-
cording to Wozlonis, Warshaw said nothing to him about the
Respondent withdrawing recognition from the Union.
Wozlonis testified that he has not spoken to anyone at the
Respondent since December 31, 1999 to ask to be put back to
work on any job nor has the Respondent called him back to
work. Brian Warshaw testified that aside from telling Wozlo-
nis that he was being laid off for lack of work, he said nothing
further to him about being recalled to work in the future.
On January 19, 2000, Cassel sent a letter to the Respondent
stating that the Union was aware that the Respondent was no
longer a member of the GCA and therefore requested that the
Respondent must sign an enclosed Memorandum of Agreement
between the Respondent and the Union. Cassel testified that
she only sent letters to employers who were contractually
bound to the Union. The Respondent neither signed the memo-
randum of agreement nor responded to the letter in any manner.
Cassel never sent any further such letters to the Respondent.
Gesualdi testified that, at that point in time, the Respondent’s
compliance with the terms of the 1999–2002 collective-
bargaining agreement failed to alert the Union that the Respon-
dent had withdrawn its recognition of the Union.

13 Brian Warshaw denied telling Wichrowski that he would be re-
called when the Respondent received some new jobs.
The GCA’s most recent authorization form from the Re-
spondent is dated April 24, 2000, and specifically excludes
Local 282. On April 24, 2000, the GCA sent the Union a “Des-
ignation of the General Contractors Association of New York,
Inc. as Bargaining Agents-Authorization.” According to Gesu-
aldi, the significance to the Union of the fact that the Respon-
dent had excluded the Union, when it signed the authorization
form, was that from April 24, 2000, on, the Respondent did not
want the GCA to serve as its collective-bargaining representa-
tive with the Union. Instead, the Respondent desired that the
union contact it directly regarding negotiations or grievances.
Gesualdi explained that this situation often arises in the con-
struction industry.
Gesualdi testified that in early 2001 he learned from a Dodge
Report, which lists contracts awarded to contractors, that the
Respondent had won a bid from the MTA for the renovation of
the Essex and Delancy Street subway station in Manhattan
worth $25 million. Gesualdi stated that under the terms of the
1999–2002 GCA-union collective-bargaining agreement the
Respondent was required to employ an onsite steward on the
Essex and Delancy Street job.14 Gesualdi related that he then
called Charles Warshaw and asked him to recall Wozlonis from
layoff and the Union would appoint Wozlonis the onsite stew-
ard at the Essex and Delancy Street project. Gesualdi re-
counted that Warshaw’s response was that he “wasn’t recalling
nobody” and he “don’t have a contract with Local 282.” Gesu-
aldi testified that he was taken aback by Warshaw’s comment
because it was the first time Warshaw had said this to him and
Gesualdi told Warshaw that he was mistaken, that the Respon-
dent did have a contract with the Union.
By letter dated January 23, 2001, Gesualdi informed War-
shaw that he believed that the Respondent was bound by the
1999–2002 collective-bargaining agreement with the GCA.
Charles Warshaw responded to Gesualdis’ letter by letter dated
January 31, 2001, in which Warshaw stated that the Respondent
was not bound by the 1999–2002 agreement and enclosed a
letter from the GCA to the Respondent confirming receipt of
the Respondent’s February 22, 1994 letter which withdrew the
GCA bargaining authorization for the Union, effective June 30,
1996; and a letter dated January 26, 2001, to Charles Warshaw,
from the GSA stating that, according to its records, the Re-
spondent does not have an agreement with the Union.
By letter dated February 5, 2001, Gesualdi advised Charles
Warshaw that since the Union had never received any of the
letters enclosed with Warshaw’s letter of January 31, 2001, and
since the Respondent has honored both the 1996–1999 and thus
far, the 1999–2002 collective-bargaining agreements, the Re-
spondent is bound by the 1999–2002 agreement. On March 29,
2001, Warshaw wrote to Gesualdi again stating that the Re-
14 Pursuant to the 1999–2002 GCA collective-bargaining agreement,
any construction job worth more than $14 million requires the presence
of a union onsite-steward on that job. Moreover, the 1999–2002 GCA
agreement requires the Respondent to send notice of new jobs it obtains
that requires the hire of unit employees. During the year 2000, the
Union received no such notice. From December 1999 until January
2001, the Union was unaware of any work being performed by the
Respondent requiring unit employees, nor was it aware of any contracts
being awarded the Respondent for any major jobs during that period.
CAB ASSOCIATES 1401
spondent does not have a collective-bargaining agreement with
the Union, nor intends to have one now or in the future. It is
undisputed that since January 21, 2001, the Respondent has not
complied with the 1999–2002 GCA-Union collective-
bargaining agreement.
On March 12, 2001, the Union filed a grievance against the
Respondent for its failure to hire an onsite steward on the Essex
and Delancy Street job. The nature of the grievance was that
pursuant to the GCA agreement, the Respondent was to employ
a Local 282 onsite steward on the project because it was a con-
struction project in excess of $14 million and the Respondent
had refused to do so. By letter dated March 29, 2001, Brian
Warshaw informed Gesualdi that no agreement existed between
the Respondent and the Union. After the Union’s Labor Man-
agement Disputes panel met on April 10, 2001 regarding the
grievance, at which the Respondent did not appear, it confirmed
that if the Respondent has a collective-bargaining agreement
with the Union, the Respondent would be required to employ a
union onsite steward on the Essex and Delancy Street job since
it was in excess of $14 million. However, the panel elected to
defer from making a decision pending the Board’s determina-
tion in this case. By letter dated April 24, 2001, Gesualdi re-
quested that the Respondent employ an onsite steward on the
Essex and Delancy Street project pursuant to the panel award
which the Respondent refused to do. The Union began picket-
ing at the Essex and Delancy Street project but to date, the Re-
spondent has continued to refuse to employ a union onsite
steward at this jobsite nor has it offered employment to
Wichrowski and Wozlonis since January 2001.
Charles Warshaw testified that the Respondent’s contracts
with the New York State Department of Transportation and the
Metropolitan Transit Authority required it to pay its employees
wages and benefits in accordance with the contract bid book.
The bid books and prevailing wage rate law required the Re-
spondent to pay its truckdrivers the equivalent rate as set forth
in the 1999–2002 GCA agreement. Warshaw stated that the
Respondent paid the prevailing wage rate and had to pay its
truckdrivers as if they were working pursuant to the GCA
agreement. However, neither the NYSDOT nor the MTA re-
quired the Respondent to become a signatory to the GCA
agreement. Pursuant to the prevailing wage law, an employer
may pay fringe benefits to the employee or to the union funds
directly. Warshaw related that while the Respondent deducted
union dues from its employees and forwarded them directly to
the Union, and paid into the union funds directly for the em-
ployees, the Respondent’s truckdrivers had requested the Re-
spondent to do so rather than include this in their paychecks.
Credibility
As the credibility of the respective parties’ witnesses, after
carefully considering the record evidence, I have based my
findings on my observation of the demeanor of the witnesses,
the weight of the respective evidence, established and admitted
facts, inherent probabilities and reasonable inferences which
may be drawn from the record as a whole. American Tissue
Corporation, 336 NLRB 1 (2002); New York University Medi-
cal Center, 324 NLRB 887 (1997); Gold Standard Enterprises,
234 NLRB 618 (1978); V & W Castings, 231 NLRB 912
(1977); Northridge Knitting Mills, 223 NLRB 230 (1976). I
credit the testimony of the General Counsel’s witnesses. Their
testimony was given in a forthright manner, generally consis-
tent and corroborative of each other, and consistent with other
believable evidence in the record. Moreover, some of their
testimony of consequence was actually corroborated by that of
the Respondent’s witnesses. Further, based upon their de-
meanor and other facts in the record I found them to be believ-
able and trustworthy as witnesses.
This is not to say that I discredit all of the testimony of the
Respondent’s witnesses, especially that of Charles Warshaw,15
where it does not conflict with that of the General Counsel’s
witnesses. However, I found the Respondent’s other witness,
Brian Warshaw to be a less than reliable witness, being evasive,
belligerent, and hostile in answering questions by counsel for
the General Counsel on cross-examination, and based upon his
demeanor, at times he was less than believable.
Analysis and Conclusions
The amended complaint alleges that the Respondent by its
acts and conduct adopted the 1996–1999 and 1999–2002 Gen-
eral Contractors Association of New York, Inc., collective bar-
gaining agreements with the Union, unlawfully withdrew its
recognition from the Union, and has refused to adhere to the
terms of the 1999–2002 agreement, thereby failing and refusing
to bargain collectively with the exclusive collective-bargaining
representative of its employees within the meaning of Section
8(d) of the Act, in violation of Section 8(a)(1) and (5) of the
Act. The Respondent denies these allegations.
In E.S.P. Concrete Pumping, Inc., 327 NLRB at 712 the
Board held that:

[W]e find that the principles of “adoption by conduct” of a
collective-bargaining agreement, properly understood, are ap-
plicable to agreements covered by Section 8(f) as well as Sec-
tion 9(a), and that once an employer has voluntarily adopted a
contract, it is foreclosed under John Deklewa & Sons 3 from
repudiating it during its term.
_____________________
3 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889
(1988).

It is well settled that a union and employer’s adoption of either
an 8(f) or 9(a) labor contract “is not dependent on the reduction
to writing of the intention to be bound,” but instead,” what is
required is conduct manifesting an intention to abide by the
terms of the agreement.” E.S.P Concrete Pumping, supra;
NLRB v. Haberman Construction Co., 641 F.2d 351, 353–356
(5th Cir. 1981), enfg. 236 NLRB 79 (1978).16 Moreover, for-
mation of a binding contract on the theory of adoption or notifi-

15 It is not unusual that based upon the evidence in the record, the
testimony of a witness may be credited in part, while other segments
thereof are discounted or disbelieved. Jefferson National Bank, 240
NLRB 1057 (1979), and cases cited therein.
16 Accord: Arco Electric v. NLRB, 618 F.2d 698 (10th Cir. 1980)
(whether particular conduct in a given case demonstrates the existence
or adoption of a contract is a question of fact), enfg. 237 NLRB 708
(1980).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1402
cation must be based on some element of mutual consent and
obligation. Haberman Construction Co., 236 NLRB at 86.
Under Section 8(f) of the Act, employers and unions in the
construction industry are free to repudiate the collective-
bargaining relationship once an 8(f) agreement expires by its
terms. James Luterbach Construction Co., 315 NLRB 976, 978
(1994); John Deklewa & Sons, supra. However, the Board has
held that when a Section 8(f) employer manifests an intention
to abide by the terms of a successor collective-bargaining
agreement, that employer will be bound to the successor
agreement until its expiration. E.S.P. Concrete Pumping, Inc.,
327 NLRB 711 (1999).
In E.S.P. Concrete Pumping, Inc., supra, the Board found
that the employer had voluntarily adopted the collective-
bargaining agreement by its conduct in applying the collective-
bargaining agreement to the work for a year, held itself out as a
union contractor and acquiesced in a judgment against it for
unpaid contributions to the Union’s pension fund.17 In Haber-
man Construction Co., supra, the Board affirmed an administra-
tive law judge, concluding that the employer’s consistent con-
tributions to the Union’s benefit funds over a period of 4 years,
the exclusive employment of union members, the observation
of contractual holidays, the payment of union wage scale, the
appointment of a union job steward, and the use of the union
for referrals, all reflected an intention to adhere to the union’s
collective-bargaining agreement.18 In Vin James Plastering
Co., 226 NLRB 125 (1976), the Board affirmed the administra-
tive law judge, concluding that the employer’s payment of con-
tractual wages and benefits over a 16-month period, its check
off and remittance of union dues, its payment to union benefit
funds and the submission of reporting forms stating it was
complying with the terms of the collective-bargaining agree-
ment, reflected an intention to be bound by the agreement.
Also see, Marquis Elevator Co., 217 NLRB 461, 465–66
(1975), in which the employer remitted contributions to the
union’s trust funds during the first 2 years of the contract, ad-
hered to the wage provisions and all the other terms and condi-
tions of the agreement, admittedly “as close as possible” paying
a penalty imposed by the union and continuing to hire its per-
sonnel through the union, and discussing and settling griev-
ances with the union business agent, the Board found that the
employer adopted the collective-bargaining agreement by its
actions.

17 See Haberman Construction Co., supra, 236 NLRB at 85 (acqui-
escence in penalties imposed for breach of collective-bargaining
agreement an indication of adoption of contract). However, as the
Board stated in E.S.P. Concrete Pumping, Inc., 327 NLRB at 714:
We recognize that some nonunion employers may elect to
maintain the same wage rates and benefit levels as those pre-
scribed in a collective-bargaining agreement. Nothing in this de-
cision should be read to establish that the Board will find that an
employer is bound by an 8(f) agreement merely because it has
paid wages and benefits equivalent to those specified in such an
agreement.
18 However, an employer’s voluntary payment of union scale wages,
and voluntary contributions to union trust funds do not alone constitute
ratification of, or adoption of, a collective-bargaining agreement.
Haberman Construction Co. supra; Moglia v. Geoghegan, 403 F.2d
110 (C.A.Z. 1968), cert. denied 394 U.S. 919 (1969).
In the instant case, the evidence shows that until December
31, 1999, the Respondent had complied with virtually all of the
terms required by the 1996–1999 and 1999–2002 collective-
bargaining agreements. The Respondent employed unit em-
ployees Wichrowski and Wozlonis from 1994 and 1997 respec-
tively, both until the end of December 1999, as truckdrivers and
onsite stewards for the Union at the Respondent’s jobsites, thus
apparently holding the Respondent out as a union employer at
these projects. See Scandra Stucco Co., 319 NLRB 850 (1995).
Both Wichrowski and Wozlonis were paid the prevailing wage
rate, which corresponded to the union wage rates, under the
Respondent’s required bid agreements with the NYSDOT and
MTA respectively, but plus $1 per hour extra for acting as un-
ion onsite stewards. The Respondent also deducted union dues
from these employees pay and forwarded these amounts to the
Union, although requested to do so by the employees. The
Respondent throughout the period July 1, 1999 to December
31, 1999, while Wichrowski and Wozlonis were employed by
the Respondent, the Respondent continued to pay them not only
the new wage rates when they were due, but also for holidays
as set forth in the 1999–2002 collective-bargaining agreement.
Moreover, the Respondent submitted to the Union all necessary
forms and pension and welfare contributions, including con-
tributing to the Union’s job training fund and, for the first time
required as in the 1999–2002 collective-bargaining agreement,
a vacation and sick leave fund.19
From all of the above, I find that the Respondent adopted the
1999–2002 collective-bargaining agreement by its conduct until
the expiration of this agreement. E.S.P. supra; Haberman,
supra; Vin James, supra; Marquis Elevator Company, supra.20
Also see, Jeff McNeff, Inc. v. Todd, 461 U.S. 260, 270–271
(1983). Being bound by the 1999–2002 collective-bargaining
agreement by its acts, the Respondent’s withdrawal of its rec-
ognition of the Union prior to the expiration of this Agreement
and its failure and refusal to adhere to the 1999–2002 agree-
ment, the Respondent has failed and refused to bargain collec-
tively with the Union in violation of Section 8(a)(1) and (5) of
the Act. 21
19 While the Respondent alleges that the government bid books re-
quired it to pay its employees, including Wichrowski and Wozlonis as
truckdrivers, the prevailing wage rates and fringe benefits which were
equivalent to those in the 1999–2002 GCA Agreement, the Respondent
did more than this as set forth above.
20 Also see Fitzpatrick Electric, Inc., 242 NLRB 739, 742 (1979). In
addition to having adhered to successive collective-bargaining agree-
ments for many years without signing them, including, making the
appropriate changes in wages and benefits, submitting the appropriate
report forms, the Board found that the employer’s statement that “as
soon as business picks up again, we will be back with the union,” con-
stituted additional evidence that the employer considered itself bound
by the contract. In the current case the Respondent indicated that when
business picked up it would call Wichrowski and Wozlonis, Local 282
truckdrivers, back to work. Riley Electric, Inc., 290 NLRB 374 (1988);
Volk & Huxley, 280 NLRB 219, 227 (1986).
21 The Respondent may argue that assuming that it has not employed
members of the Union since December 31, 1999, nor contributed to the
Union’s trust funds after that date; informed the Union by letters dated
January 31 and March 29, 2001, that it was not a signatory to the 1999–
2002 collective-bargaining agreement; failed to appear at the Union’s
CAB ASSOCIATES 1403
The 10(b) period
Section 10(b) of the Act provides “That no complaint shall
issue based upon any unfair labor practice occurring more than
6 months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such
charge is made . . . .” Section 10(b) is a statute of limitation
and is not jurisdictional in nature. It is an affirmative defense
which must be pleaded and if not timely raised, is waived.
Federal Management Co., 264 NLRB 107 (1982). Also, the
burden of proving such an affirmative defense rests squarely
upon the party asserting it. Kellys’ Private Car Service, 289
NLRB 30 (1988); Chinese American Planning Council, Inc.,
307 NLRB 410 (1992). Moreover, It is firmly established that
the 10(b) period commences when a party has clear and un-
equivocal notice of the violation of the Act. Mine Workers
District 17, 315 NLRB 1052 (1994); Leach Corp., 312 NLRB
990, 991 (1993), enf. 54 F.3d 802 (D.C. Cir. 1995); A & L Un-
derground, 302 NLRB 467, 468 (1991), or where a party in the
exercise of reasonable diligence should have become aware that
the Act has been violated. Moeller Bros. Body Shop, 306
NLRB 191, 192–193 (1992); Oregon Steel Mills, 291 NLRB
185, 192 (1988), cert. denied sub nom. Gilmore Steel Corp. v.
NLRB, 496 U.S. 925 (1990).
In applying these principles to the instant case, it is the Re-
spondent who has the burden of demonstrating that the Union
obtained clear and unequivocal notice that the Respondent
withdrew recognition from the Union prior to January 11, 2001,
since the charge was filed and served on the Respondent on
July 11, 2001. C. Overaa & Co., 291 NLRB 589, 590 (1988).
The Board has held that “those whose delay in filing is a con-
sequence of conflicting signals or otherwise ambiguous conduct
by the other party” are not barred by the Board’s requirement
that a party promptly file a contract repudiation charge. A & L
Underground, supra at 469. Here, the Respondent’s own ac-
tions failed to put the Union on notice that it had withdrawn
recognition from the Union while the Respondent complied for
several months with all the substantive terms of the 1999–2002
collective-bargaining agreement.22
In reviewing the Respondent’s various defenses in which it
raises Section 10(b) of the Act, I find that the Respondent has
failed to sustain its burden of proof. The Respondent argues
that the Union’s letter to the Respondent dated January 19,
2000, acknowledged that the Union was aware that the Re-
spondent was no longer a member of the GCA and had not
executed the 1999–2002 collective-bargaining agreement.

grievance panel on April 10, 2001, regarding an onsite steward at the
Essex and Delancy Street project, or to accept the subsequent panels
award; refused to employ a Union onsite steward at its Essex and De-
lancy Street project and other jobsites and asserts that “Beyond CAB’s
submission of contributions to the Local 282’s Funds for a 6-month
period, General Counsel failed to elicit any additional evidence to sup-
port a finding that CAB adopted the 1999–2002 Association Agree-
ment.” From all of the above herein I disagree.
22 Also see Cross Island Telephone Services, Inc., 330 NLRB 19
(1999). (Board adopted the ALJ’s finding that the employer failed to
give clear and unequivocal notice of repudiation of a contract based, in
part, on the employer’s conduct in complying with most of the terms of
the contract).
Therefore, since the Union did not file a charge until July 9,
2001, approximately 18 months after January 19, 2000, the
charge is barred by Section 10(b) of the Act. However, the
Union’s acknowledgement of the Respondent’s withdrawal
from the GCA in and of itself, fails to establish that the Union
was also aware that the Respondent had allegedly withdrawn
recognition from the Union as well at that time. In fact, Cassel
credibly testified that she only sends letters such as the January
19, 2000 letter to employer’s whom she believes still have con-
tracts with the Union, and she therefore was unaware that the
Respondent had withdrawn recognition from the Union. Also,
Gesualdi testified that it is common practice in the construction
industry that employers, after withdrawing authority from the
GCA, to bargain with a particular union, maintain a direct rela-
tionship with that Union. Thus, the Respondent’s April 24,
2000 designation of the GCA as its bargaining agent specifi-
cally excluding the Union only indicated to the Union that the
Respondent no longer wanted the GCA to represent it with the
Union with direct contact between the Respondent and the Un-
ion thereafter to consider grievances and other matters. There-
fore, the Respondent’s conduct was ambiguous as to its inten-
tions at this point and these documents failed to establish that
the Union had clear and unequivocal notice that the Respondent
had withdrawn its recognition of the Union outside the 10(b)
period. See Stanford Realty Associates, 306 NLRB 1061, 1065
(1992); Christopher Street Owners Corp., 286 NLRB 253
(1987), enfd. 926 F.2d 1215 (D.C. Cir. 1991).
In Stanford Realty, supra, the union’s request that the em-
ployer sign a collective-bargaining agreement came more than
6 months prior to the Union’s filing of the charge in that matter.
However, the Board noted that while the employer did not sign
the contract or recognize the Union at that time, it clearly did
not unequivocally refuse to do so. Finding it noteworthy that
the employer continued to make payments into the Union’s
funds and checked off dues during a 1-year period following
the Union’s request for the employer to sign its contract, the
Board concluded that it was not until, within the 10(b) period,
the employer explicitly told the Union that it would not sign the
Union’s contract, that the 10(b) period began to run.
In Christopher Street, supra, as in the instant case, the em-
ployer simply ignored the Union’s written request to sign a
contract or alternatively to negotiate a new agreement. The
Board determined that it was not clear at the time that the em-
ployer ignored the Union’s first written request that the em-
ployer was refusing to bargain. The Board excused a 7-month
delay between the Union’s first and second demand and held
the 10(b) period began to run only after the Union’s second
written demand was refused.
Similarly, in the instant case, it is undisputed that the Un-
ion’s first and only request to the Respondent for it to sign a
contract with the Union came on January 19, 2000. It is also
undisputed that the Respondent never replied to this request
outside of the 10(b) period, either orally or in writing, clarify-
ing to the Union that the Respondent had withdrawn recogni-
tion from the Union and did not intend to have a contractual
relationship with the Union from that time forward. Therefore,
under the Board’s rationale in Stanford Realty and Christopher
Street, the Respondent’s failure to respond to the Union’s Janu-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1404
ary 19, 2000 request to sign a contract directly with the Union
failed to provide the Union with clear and unequivocal notice
that the Respondent had violated the Act.
Nor did the Respondent’s inaction put the Union on notice
that it should have inquired further and in the exercise of rea-
sonable diligence would have uncovered sufficient facts to
conclude that the Act had been violated. In this regard, the
Board in Christopher Street, supra, noted that the Union therein
might have been well advised to follow up sooner on its initial
request. However, it stated that it could not conclude that the
Union failed to exercise due diligence in not doing so, reason-
ing that the Union could reasonably have believed that the em-
ployer needed time to consider whether to sign the industry-
wide contract. In the instant case, the Union likewise could
have reasonably believed that Respondent needed time to con-
sider whether or not to sign a contract directly with the Union.
Additionally, it is undisputed that at the end of December
1999, Respondent “laid off” both Wichrowski and Wozlonis,
leaving both with the impression that they would be recalled
when the Respondent’s business picked up. In fact,
Wichrowski testified that Charles Warshaw had confided in
Wichrowski, just prior to his layoff, that he was having prob-
lems and “[f]inancially the job was not going well.” Since two
of Respondent’s three largest jobs, the World Trade Center job
and the Herricks Road job, were approaching completion and
the Respondent’s business had substantially decreased in the
beginning of the year 2000, the Union was neither surprised
that the Respondent laid off Wichrowski and Wozlonis, when it
did, nor was it alerted when the Respondent failed to recall
Wichrowski and Wozlonis after months had passed. Thus, the
Respondent’s layoff of and failure to rehire the unit employees
failed to give the Union clear and unequivocal notice of the
Respondent’s withdrawal of recognition.
The Respondent next contends that its actions outside the
10(b) period, in failing to employ unit members since Decem-
ber 1999, and by refusing to accede to the Union’s alleged re-
quests to rehire Wozlonis as an onsite steward at the Respon-
dent’s 14th Street subway station modernization job, put the
Union on notice that the Respondent had withdrawn recogni-
tion from the Union outside of the 10(b) period. I do not agree.
Even assuming the Union had notice that the Respondent had
breached the provision in the 1999–2002 collective-bargaining
agreement requiring it to put an onsite steward on all jobs in
excess of $14 million, this alleged unilateral change certainly
did not rise to the level of a total contract repudiation. In A & L
Underground, supra at 469, the Board explained that cases
where Section 10(b) would not be a bar include “cases in which
a respondent has not given clear notice of a total contract repu-
diation outside the 10(b) period, but has simply breached provi-
sions of the collective-bargaining agreement to a degree that
rises to the level of an unlawful unilateral change in the con-
tractual terms and conditions of employment.” Therefore, the
Union may have waived its right to file a charge over the Re-
spondent’s breach of a provision of the 1996–1999 and 1999–
2002 collective-bargaining agreements, by its failing to main-
tain onsite stewards on some of its jobs in excess of $14 mil-
lion, but, however, this breach did not rise to the level of a total
repudiation by the Respondent.
Moreover, Charles Warshaw testified that in early 2000, Ge-
sualdi called Warshaw “on several occasions” saying he wanted
Wozlonis on the 14th Street job. But even assuming War-
shaw’s account of these conversations, no evidence was ad-
duced establishing that during any one of these alleged conver-
sations, the Respondent informed Gesualdi that the Respondent
had withdrawn recognition from the Union.23 In fact, in Janu-
ary 2001, when the Respondent did finally inform Gesualdi that
it was withdrawing recognition from the Union, Charles War-
shaw was explicit and recalls notifying Gesualdi, for the first
time, that the Respondent “had no agreement with the Team-
sters.” Moreover, Warshaw put this withdrawal of recognition
in writing, by letters dated January 23, 2001 and March 29,
2001. However, Warshaw conceded that he wrote no letters
and maintained no phone logs or records confirming the Re-
spondent’s withdrawal of recognition from the Union in early
2000 and admitted that he possessed no evidence that he had
any conversation with Gesualdi at all during that time period.
From all of the above I find that the Respondent has failed to
meet its burden of proving its affirmative defenses that the
complaint allegations are time barred under Section 10(b) of the
Act.
STABLE ZERO EMPLOYEE UNIT
The Respondent alleges that it was free to repudiate the
terms of the 1999–2002 collective-bargaining agreement and
withdraw recognition of the Union because the Respondent had
a “stable-zero employee unit for a one year period.” An em-
ployers refusal to bargain with a representative on behalf of a
one-man unit does not constitute a refusal to bargain within the
meaning of Section 8(a)(5) of the Act. Kirkpatrick Electric
Co., 314 NLRB 1047 (1994); Foreign Car Center, Inc., 129
NLRB 319, 320 (1960). If an “employer employs one or fewer
unit employees on a permanent basis, the employer, without
violating Section 8(a)(5) of the Act, may withdraw recognition
from a union, repudiate its contract with the union, . . . without
affording a union an opportunity to bargain.” Donnie M. Parris,
275 NLRB 1403, 1468 (1985); Stack Electric, Inc., 290 NLRB
575, 577 (1988); Cardox Division, 268 NLRB 335, 336 (1983)
Laid-off employees, who do not have a reasonable expectation
of reemployment within a reasonable time in the future, are not
considered a part of an appropriate unit, Donnie M. Parris,
supra.
The Respondent in its brief asserts, “The evidence adduced
at trial clearly indicates that after December 28, 1999, CAB had
a stable zero employee unit through January 21, 2001, a period
of approximately 13 months. Assuming arguendo, that CAB
was bound to the 1999–2002 Association Agreement, Gesu-
aldi’s January 2001 request that CAB employ Wozlonis as an
onsite steward at Essex Street, would have caused CAB to have
only one unit employee in the bargaining unit. . . . Even assum-
ing arguenda that CAB was bound to the 1999–2002 Associa-

23 Compare Glover Bottled Gas Corp., 292 NLRB 873, 885 (1989),
enfd. 905 F.2d 681 (2d Cir. 1990), cert. denied 516 U.S. 816 (1995) (In
rejecting the employer’s testimony concerning the employer’s alleged
withdrawal of recognition from the Union, the ALJ reasoned that if the
employer wished to communicate a withdrawal of recognition, it un-
doubtedly would have done so in exactly those terms.)
CAB ASSOCIATES 1405
tion Agreement, it was free to repudiate the contract as it had a
stable zero employee unit for 13 months and was not required
to recognize or bargain with Local 282 concerning a one-man
unit in January 2001. Because CAB was free to unilaterally
terminate the 1999–2002 Association agreement, there can be
no finding that CAB violated Sections 8(a)(1) and (5) of the
Act by failing to bargain with Local 282.” I do not agree.
“In a unit of employees involving a normal fluctuating de-
mand for employees, as in building and construction work, the
employee work force is deemed to be that of employees who
are actively working and those who have a reasonable expecta-
tion of further employment even though on layoff status.” Fin-
ger Lakes Plumbing & Heating Co., 253 NLRB 406, 410
(1980). In determining whether employees had a reasonable
expectation of recall, the Board examines several factors, in-
cluding the employer’s past experience and future plans, the
circumstances surrounding the layoff and what the employees
were told about the likelihood of recall. Apex Paper Box Co.,
302 NLRB 67, 68 (1991).
Here, the Respondent is a general contractor in the construc-
tion industry, with a history of a normal fluctuating demand for
employees. Both Wichrowski and Wozlonis were employed by
the Respondent for several years on its different projects both
as truckdrivers and union onsite stewards transferred to another
jobsite when the one they were working on neared completion.
Wichrowski testified credibly that when he was laid off by
owner Brian Warshaw at the end of December 1999, while
working at the Respondent’s Old Country Road project, he was
told by Warshaw that there was no more work and he was sorry
that he had to let me go . . . . He said that he would hope to get
some new jobs, new contracts, and we would go back to work,”
“we” being other Teamsters who had also been laid off.
Wozlonis’ was also laid off at the end of December 1999. The
credited testimony of Wozlonis indicates that Brian Warshaw
told him that Warshaw was laying Wozlonis off for “lack of
work” and that Warshaw would call him back to work when
there was more work coming about. Wozlonis added that his
layoff occurred towards the end of the job and that he believed
that he would be called back to work for the Respondent at
some future time. It is significant that Brian Warshaw failed to
tell either man that they were being laid off because the Re-
spondent no longer recognized the Union.
Taking into account the Respondent’s past experience and
future job acquisition, past hiring practices and what the Re-
spondent told Wichrowski and Wozlonis when they were laid
off, leads to the inescapable conclusion that these employees
possessed a reasonable expectation of being recalled back to
work for the Respondent. Therefore, their layoffs resulted in a
temporary reduction of the Respondent’s workforce, and not, a
stable zero-employee unit. Apex Paper Box Co., supra; Finger
Lakes Plumbing & Heating Co., supra.
Moreover, in finding herein that the Respondent adopted the
1999–2002 collective-bargaining agreement by its conduct, that
agreement required that the Respondent employ a unit em-
ployee to act as a union onsite steward on the Respondent’s
projects worth more than $14 million. The Respondent, since it
laid off Wichrowski and Wozlonis at the end of December
1999, has continued to work on at least four projects worth
more than $14 million each but has refused to hire a union on-
site steward on any of them.24 Had the Respondent not com-
mitted unfair labor practices by unilaterally refusing to employ
Union onsite stewards after January 2000 under the provisions
of the 1999–2002 Agreement on at least four of its projects, it is
submitted that upwards of perhaps four unit employees would
have been employed by the Respondent in the appropriate unit.
Since the Respondent has unlawfully refused to hire these on-
site stewards, its claim of a “stable zero-employee unit” must
be rejected. “It is an elementary proposition of law that no one
may assert a defense predicated on his own unlawful conduct.”
Barwise Sheet Metal Co., 199 NLRB 372, 379 (1972). Also
see Glover Bottled Gas Corp., 292 NLRB 873 (1989), enfd.
905 F.2d 681 (2d Cir. 1990), cert. denied 516 U.S. 816 (1995).
Additionally, in John Deklewa & Sons, supra at 1389 fn. 62,
the Board stated, “An 8(f) contract is enforceable throughout its
term, although at a given time there may not be any employees
to which the contract would apply.” (The Board found that
even though the employer employed no unit employees for a
full 8 months prior to the date on which the parties submitted
their stipulated facts, the 8(f) agreement therein was enforce-
able nonetheless). Similarly, even though the Respondents’
unit work force has been temporarily reduced to zero, the
1999–2002 collective-bargaining agreement, adopted by the
Respondent by its conduct, is enforceable nonetheless and the
Respondent’s affirmative defense alleging that it maintained a
stable, zero-employee unit is denied.
From all of the above I find and conclude that by refusing to
adhere to the terms of the 1999–2002 collective-bargaining
agreement and withdrawing its recognition from the Union, the
Respondent has been failing and refusing to bargain collec-
tively with the exclusive collective-bargaining representative of
its employees within the meaning of Section 8(d) of the Act, in
violation of Section 8(a)(1) and (5) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operations of the Respondent described in
section I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several states
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act. With respect to the latter, the Re-
spondent shall be ordered to revoke its withdrawal of recogni-
tion of the Union and instead recognize and bargain with the
Union as the collective-bargaining representative of any of its
employees in the appropriate bargaining unit and abide by the
terms of the 1999–2002 collective-bargaining agreement be-
tween the GCA and Local 282.

24 Herricks Road project, 14th Street and 8th Avenue project, Essex
and Delancy Street project, and SUNY Old Westbury project.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1406
It shall also be ordered to make whole all employees repre-
sented by Local 282 in the unit who should have been assigned
work on the Respondent’s projects pursuant to the terms of the
1999–2002 collective-bargaining agreement, for any losses
suffered as a result of the Respondent’s unlawful failure to
comply with the terms of that Agreement, in the manner pre-
scribed in Ogle Protection Service, 183 NLRB 682 (1970), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Furthermore, the Respondent shall be ordered to make whole
the appropriate Union and fringe benefit funds for losses suf-
fered as a result of the Respondent’s delinquencies in failing to
make contractually required contributions to those funds during
the 1999–2002 collective-bargaining agreement. Diversified
Bank Installations, 324 NLRB 457 (1997).
Because of the nature of the unfair labor practices found
herein, and in order to make effective the interdependent guar-
antees of Section 7 of the Act. I recommend that the Respon-
dent be ordered to refrain from in any like or related manner
abridging any of the rights guaranteed employees by Section 7
of the Act. The Respondent should also be required to post the
customary notice.
CONCLUSIONS OF LAW
1. The Respondent, CAB Associates, is now and has been at
all times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Building Material Teamsters Local 282, In-
ternational Brotherhood of Teamsters, AFL–CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By unlawfully withdrawing recognition from the Union
and refusing to abide by the terms of the July 1, 1999 to June
30, 2002 collective-bargaining agreement between the GCA
and the Union, which the Respondent adopted by its acts and
conduct, the Respondent has been failing and refusing to bar-
gain collectively with the exclusive collective-bargaining repre-
sentative of its employees within the meaning of Section 8(d)
of the Act, in violation of Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]