D'Angelo & Khan, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1980

248 N.L.R.B. 396 (N.L.R.B. 1980)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D'Angelo & Khan, Inc. and Bricklayers, Masons &
Plasterers Local Union No. 43 of the Finger
Lakes Region. Cases 3-CA-8076 and 3-CA-
8162
March 12, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 5, 1979, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, Respondent, the Gen-
eral Counsel, and the Charging Party Union filed
exceptions, supporting briefs, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Contrary to the findings and conclusions of the
Administrative Law Judge, we find that Respon-
dent did not violate Section 8(a)(1) and (5) of the
Act by refusing to bargain collectively with Brick-
layers, Masons & Plasterers Local Union No. 43 of
the Finger Lakes Region, hereinafter called Local
43, or by refusing to apply the terms and condi-
tions of a collective-bargaining agreement previous-
ly executed at another construction site, with re-
spect to employees at a subsequent site in Romulus,
New York.
As explained in greater detail in the Administra-
tive Law Judge's Decision, D'Angelo & Khan,
Inc., hereinafter called Respondent, was formed in
September 1974. Subsequent to its formation, Re-
spondent engaged in construction in the geographi-
cal jurisdiction of both Local 43, as well as in the
jurisdiction of Respondent's sister Local 11, with
most of its work being done in Local I I's jurisdic-
tion.
During the first week of November 1974, Re-
spondent started construction at a site in Hopewell,
New York, its first project located in Local 43's ju-
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect t credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis fior reversing his findings
In his Decision the Administrative Law Judge has inadvertently mis-
spelled the name of one of Respondent's officers, correctly identified as
Pervaiz Khan
248 NLRB No. 62
risdiction. At this site, Respondent employed two
masons, who were both members of Local 11. One
of these masons worked for 2 days on November
18 and 19, and the other mason worked for several
weeks in November and December 1974. We adopt
the Administrative Law Judge's finding that on
November 19, 1974, Respondent, by Nicholas
D'Angelo in a conversation with Local 43's busi-
ness representative, orally agreed to enter into and
be bound by the terms of a collective-bargaining
agreement previously executed between Local 43
and the Geneva Builders & Trades Association, a
multiemployer group. Respondent, however, failed
to execute a copy of this contract until February
19, 1975, well after the Hopewell project had been
completed. Up until this time Respondent had been
remitting monthly contributions for employee bene-
fit funds and for union dues to Local 11 for the
two masons employed on the Hopewell project.
However, on February 19, 1975, Respondent
signed the collective-bargaining agreement, and on
the next day sent Local 43 amounts retroactively
due under this contract for Local 43's employee
benefit funds and for union dues for work done by
the masons at the Hopewell site. There is no evi-
dence that prior to or during these events, the two
masons employed on the Hopewell project became
members of Local 43, or otherwise selected it as
their bargaining representative.
The collective-bargaining agreement signed by
Respondent on February 19, 1975, contained a ter-
mination date of May 31, 1976. However, the
agreement stated that it would remain in effect
from year to year unless changed or terminated in
a manner specified in the agreement. We adopt the
Administrative Law Judge's finding that Respon-
dent did not terminate the agreement in the re-
quired manner and that the contract remained in
effect on a year-by-year basis.
After Respondent completed work on the Hope-
well site in December 1974, it engaged in no other
construction projects in Local 43's jurisdiction until
April 1977, when it was awarded the contract on a
federally funded project in Romulus, New York.
Actual work on this site commenced in mid-April
of that year. On May 12, Local 43's business agent
spoke to Respondent's vice president, Pervaiz
Khan, and claimed that Local 43 had a contract
with Respondent, evidently referring to the agree-
ment entered into above. Khan replied that if there
were a contract there would be no problem and
asked the business representative to send the fringe
benefit forms. The forms were sent to Respondent
but were returned on approximately May 26,
D'ANGELO & KHAN, INC 397
1977,2 with a letter from Khan stating that Respon-
dent was going to pay benefits directly to its men
in the form of additional wages. At the time of Re-
spondent's refusal to contribute to the benefits
funds, the bulk of the masonry work had not yet
begun on the Romulus project and there is no
showing that the employees who intermittently en-
gaged in masonry work were members of Local 43.
Khan testified at the hearing that the employees on
the Romulus project were paid at the prevailing
wage rate as posted by the Federal Government
and that no contributions were made to Local 43's
employee benefit funds.
In his Decision, the Administrative Law Judge
found that Respondent orally agreed to enter into a
bargaining agreement onNovember 19, 1974, at the
time when masons were employed on the Hope-
well jobsite and therefore the contract was not a
prehire agreement. The Administrative Law Judge
also found that the contract was not terminated
and was automatically effective on a year-to-year
basis when Respondent requested referrals from
Local 43 for the Romulus project in August 1977.
Accordingly he concluded that Respondent violat-
ed Section 8(a)(5) on and after May 26, 1977, by
repudiating and failing and refusing to apply the
terms and conditions of the previously executed
agreement to the Romulus project.
Upon an analysis of the record herein, we con-
clude that the Administrative Law Judge erred in
finding that Respondent violated Section 8(a)(5) of
the Act. When Respondent orally agreed to enter
into the collective-bargaining agreement with
Local 43, it did so at a time when the only masons
employed on the Hopewell job were members of
Local 11, and not Local 43. Prior to the termina-
tion of their work at the Hopewell site, there is no
indication that they ever became members of Local
43 or had selected it as their bargaining representa-
tive. The fact that Respondent sent amounts to
Local 43 after the job was completed for employee
benefit fund contributions and employee dues is in-
sufficient to show that the employees earlier en-
gaged on the jobsite had ever selected Local 43 as
their bargaining representative.3
2 Although the estrinon at the hearing did nt specificalls indicate
the date after May 12 that the fringe benefit frins %h ere returned, the
conplaint alleges Ma\ 26 a the date that the conract as repudiated
:' A the hearing. and in his brief to the Administratie Law Judge, the
General Counsel contended that tie employees on the Hlopessell site had.
in fact, indicated their rnaloill suppol for Local 4 The General Coun-
sel noted thal Ihese to ineploe ,cc s ,cre each memhers iof Local I I A
such, thex 'mere obligated undel the prokisions of the Internation;
Union's constiutlir t h 'sublecl to all the pros isionis of the coniti-
tion and by-la is, colleci c baligailng agreemeits, la ;lful rule, and
orders of the local hi ing jurisdictin oixer the area .there hie is eti
ploed (if he xsirks iitside rlf he jurisdiction of his locall) We reject
the General Counscl' s contentioln that this clnstiltU lnail prsxision tindl
cated that hese emproe .autiriracllall. supported ocal 43 as heti hall
In these circumstances, we disagree with the Ad-
ministrative Law Judge's conclusion that the agree-
ment signed by Respondent was not a prehire
agreement. 4 On the contrary, we find that the
agreement reached at the time of the Hopewell
construction project was an 8(f) bargaining agree-
ment and, as such, did not give rise to the pre-
sumption of majority status on the part of Local
43.5
Furthermore, regardless of Local 43's majority
status at the Hopewell site, it remains that, even
where such majority status is shown at the original
site covered by an 8(f) agreement, the provisions of
Section 8(a)(5) of the Act do not apply unless the
Union can demonstrate its majority status at the
succeeding jobsites. 6 At the time Respondent in-
formed Local 43 that it was repudiating the appli-
cability of the contract to employees at the Romu-
lus jobsite, the record shows that Local 43 did not
have the majority support of masonry employees
who worked at the site. Moreover, it appears that
very little of the masonry work was being done
during the time surrounding the repudiation of the
contract, and that the employees who were so en-
gaged performed nonbargaining unit work as well.
Consequently, we find that Respondent did not
violate Section 8(a)(5) when it refused to honor the
bargaining agreement at this site. The circumstance
that masons might have been referred from the
Local 43 hiring hall in August 1977, 2 months after
the repudiation, as found by the Administrative
Law Judge, does not affect our results reached
herein. Accordingly, we shall direct that the 8(a)(5)
and (I) allegations herein be dismissed.7
The complaint issued in this case alleged that
Respondent violated Section 8(a)(5) of the Act by
the acts described above, which, as stated by the
General Counsel, was derivative of the 8(a)(5) alle-
gation. At the hearing, Respondent filed a motion
galNing representallt at the Hope'.ell site, particularl 5 in the absence of
allx shro\
t
ng that hex Dkere aware that a bargaining agreemenlt had been
ir.dal agreed to hx Responldent and lIocal 43
So-called 8(f) prehire agreements ma 5 he etered into I hen a ern-
plher has :dread5 hired employees 'ho sirll be cuoseled under such a
cintliract See Fitrif & ISnro n1. . 207 NI.RB 752 759 (1973), Prgresi
(onrrriuctio Corp. 218 N.RB 1368 (1975)
R J Sih Cnstrucion Co.. Itnc. 191 NLRB 093. 695 l9'71). el-
fircetrnlelil denied 480 2d 1186 (D C Clr 1973) See also Rumltrianiri (,im-
trlicrtt (i lipuri' nd Rlatrtlin CSrporrirln Jom ri. f/plo ier, 19I
NI RB '1l (1971), and .L. R. B. Local Un o 103. Io ter r lnalromal -
ociatiro igo Bridg'. Slrurraf & Orlametlul eroi H 'rCIrs 4F O-(10
[Igdont C(orraciring Co., 434 L' S. 335 1978
e De 'c [oo Coirmg. n . aid ii .. rEgo nrd r Successor.
f)orgin-,Arab Foor Corirg. Inc - 232 NI RB 421 (19'') (.1 3f . senir
('o 245 NIRH No 54 (1979) see also DiwSd f' ri- ,t ai d,'h a 1u-w
Ir-vi, .cKelc Coml,,irpai. 194 NlRB 52 11971). lenfrcenict denied it) part
475 F 2d 1265 (3d Cir 1973)
: I \sc.i of tIhe result reached herein ie leed Illit coillder the Ch.lrg-
Ig Pr'l' iald he General Corilrll's cxcpl mr rel.tinig s,.lel. to the
trrls, of lhe recominmenlded reied fr rte ullfrllr l;lhor prictllies founld
h Ithe Adnlmnliltrlrxic I ., Judge
D'ANGEL0 &KHAN, INC
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to dismiss this allegation which the Administrative
Law Judge denied, and in its brief to the Adminis-
trative Law Judge, the General Counsel moved
that the allegation be struck from the complaint.
However, the Administrative Law Judge did not
make any findings with respect to this allegation
and the parties have not excepted to his failure to
do so. In view of these circumstances and the ab-
sence of any evidence with respect to discrimina-
tory motivation,8 we shall direct that the 8(a)(3) al-
legation be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board orders that the complaint be, and it
hereby is, dismissed in its entirety.
CHAIRMAN FANNING, concurring:
I have previously set forth my disagreement with
the construction of Section 8(f) and related sections
of the statute applied by the Board in this case."
However, in N.L.R.B. v. Iron Workers,'° the Su-
preme Court held that such a construction is a ten-
able one, and I do not think it appropriate to dis-
sent further on this issue. Accordingly, I will
follow the position which has been upheld by the
Court. In doing so, I note that the language of the
Iron Workers decision suggests that a different stat-
utory construction is also tenable and within the
Board's competence.
x C. Production Molded Plastics. Inc., and Detroit Plastic Molding Co.,
227 NLRB 776 (1977)
9 See m position et forth in dissenting or concurring opinions in R. J.
Smith Cotnstrautiotl Co. Inc. 191 NLRB 693 (1971); Ruttman Construction
Comnpaly, 191 NLRB 701 (1971): Dee Cee Floor Covering. Inc. 232 NLRB
421 (1977).
.L.R B. s. Local Unrion .o. 103. lnternatonal Association of Bridge.
Structural & Ornamental Iron Workerr. 4FL-C llHitgdon Contracting
Co.], 434 US 335 (1978)
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This
case was heard on June 5 and 6, 1978, in Geneva, New
York, upon charges filed by Bricklayers, Masons & Plas-
terers Local Union No. 43 of the Finger Lakes Region,
herein the Union, on August 17 and October 6, 1977, and
a consolidated complaint issued by the Regional Director
for Region 3 of the National Labor Relations Board on
January 24, 1978. The complaint alleged that D'Angelo
& Khan, Inc., herein Respondent, violated Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended, by refusing to bargain collectively with the
Union as the representative of its employees. Respondent
denied the substantive allegations of the complaint.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. Briefs were filed by
the General Counsel, Respondent, and the Charging
Party.
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS
Respondent is a New York corporation engaged in the
building and construction industry and has maintained
various construction jobsites in the Syracuse and Roches-
ter, New York, areas, including a construction jobsite in
Romulus, New York. Jurisdiction is not in issue. The
complaint alleges, Respondent admits, and I find that Re-
spondent is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
It. THE UNFAIR LABOR PRACTICES
A. Background
Respondent started business about September 1974 as a
general contractor in the construction industry. As in the
case of most general contractors, Respondent has only a
few permanent employees. Construction workers are
usually assembled for a particular job. When the job is
finished, unless the Employer has another similar job
lined up, the employee's employment is terminated. The
general contractor usually is directly responsible for only
a portion of the actual production work on a construc-
tion project; the remainder is handled by a subcontractor
specializing in specific aspects of construction work.
The Company was formed by its present officers, Per-
vaiz Khan and Nicholas D'Angelo, both of whom were
previously employed by LeChase Construction Compa-
ny. While at LeChase Mr. Khan had been an estimator
responsible for bidding and insuring that jobs were com-
pleted within the limits of the bid. D'Angelo was an ex-
perienced mason who had worked on the construction
sites and was also a longstanding member of Bricklayers,
Masons, Plasterers, Marble Masons, Tile Layers, and
Terrazzo Union No. 11 of Rochester, New York (herein
referred to as Local 11). Upon establishing their own
company, D'Angelo and Khan assumed duties in accor-
dance with their skill and experience. D'Angelo's time
was spent mostly supervising projects in the field while
Khan assumed the responsibility for obtaining jobs, pro-
viding technical expertise, and managing the Company.
D'Angelo did practically no office work, usually his
office duties were limited to providing his signature
when necessary, such as on checks. In Respondent's
employ was a clerical who handled the Company's pa-
perwork, including union fringe benefit reports to Local
11 and other unions.
During the first week of November 1974, Respondent
began work on a small garage project in Hopewell, New
D'ANGELO & KHAN, INC. 399
York. The project was within the geographical jurisdic-
tion of Local 43. Prior to performing that project, Re-
spondent had never performed work in Local 43's juris-
diction and was not a signatory to a contract with Local
43.
Respondent employed two masons in the Hopewell
project, Howard Beville and Daniel Panetta. Beville
worked at Hopewell every day, Panetta worked only 2
days, November 18 and 19, 1974. Both Beville and Pan-
etta were members of Local 11 and pursuant to the con-
tract between Respondent and Local 11, Respondent for-
warded contributions to the union fringe benefit funds on
their behalf to Local I 1.
James Walters is the sole business representative of
Local 43. When Walters became aware of the Hopewell
project he visited it on November 18 or 19 and saw that
Respondent was performing masonwork with two em-
ployees on the project. Walters learned that Nick D'An-
gelo was the person to talk to about obtaining a contract
from Respondent. On the same day, Walters telephoned
D'Angelo whom he knew when D'Angelo was em-
ployed at the Newark State School project. D'Angelo
knew Walters and had had several conversations with
him concerning the Local 43 contract, particularly hiring
procedures, layoff procedures, and general job condi-
tions. In addition, John VanDeMortel, job steward for
the Union at the Newark project, spoke with D'Angelo
in his capacity as job superintendent and discussed cer-
tain contract provisions with respect to rain days. Joseph
Marino, an employee at the Newark project, testified
that D'Angelo resolved a grievance he filed by referring
to the Union's contract with LeChase, the general con-
tractor on the Newark project. On that project D'An-
gelo took orders from LeChase himself. He called var-
ious union locals to obtain men for the job. He directed
masons on the job as to what work to do and discussed
layoffs with Walters. Both VanDeMortel and Marino
testified that D'Angelo hired them for the Newark job
and that D'Angelo never did any masonwork on that
job. Walters testified that he obtained an audit on the
Newark job and that D'Angelo was not listed as a mason
employee on that job.'
Walters testified that he spoke with D'Angelo about
the Hopewell job by telephone and reminded D'Angelo
that he should have given him 48-hour notice before be-
ginning the job and then he requested a contract. Wal-
ters testified that D'Angelo agreed to the cntract and
said that he would sign it when Walters sent it to him.
On that same day, Walters sent Respondent a copy of
the contract with instructions on how to execute it to-
gether with fringe benefit forms for Respondent's use in
complying with the contract. Respondent admitted re-
ceiving the contract and Walters' accompanying letter.
2
I the e ent no exceptilons are filed a provided
by Sec 102 46 of
the Rules and Regulations of he National Labor Relations Board, the
findings, conclusilns, and recommended Order hich follows, herein
shall, as proided in Sec 102 48 of those Rules and Regulatins, be
adopted h the Board alnd hecome its findings. conclusions,. and Order.
and all obeclirns thereto hall he deemed ived for all purposes
D'Angelo's entire teslimrny as easie. his memry as, had He
appeared to deliherately orbfuscate the factl (VanlDeMorilel Marino. and
Walters, on the other hand. Ilestfied redihlN) I credit them arid find that
Respondent issued checks to Local 43 for dues, pen-
sion, and welfare benefits for the entire period of the
Hopewell job which ran during the months of November
and December 1974. These payments to the Union of
dues, pension, and welfare benefits were made pursuant
to the provisions of the collective-bargaining agreement
signed by Respondent on February 19, 1975.
That agreement remained in effect until May 31, 1976.
Article III, section 1, thereof states that the agreement
will remain in effect from year to year unless changed or
terminated in a manner provided for in the agreement.
Article III, section 2, provides that any party desiring to
change or terminate the agreement must notify the other
party at least 90 days prior to the termination date.
Respondent contends that it terminated its contract
with the Union by letter dated April 19, 1976. Union
Representative Walters contends that he never received
the letter. Respondent offered no proof of a returned re-
ceipt. In any event, even if the letter had been sent it
was not timely inasmuch as the contract provides for a
least 90-day notice for termination. Respondent contends
that Pervaiz Khan sent the April 19 letter without in-
forming D'Angelo and without the advice of legal coun-
sel and that he apparently believed the terms of the
Local 43 agreement permitted him to take this action.
Respondent also contends that Khan did not send any
notices to Federal or state mediation agencies because he
was not aware of any requirement that he do so.
In April 1977 Respondent was granted the bid on a
federally funded project in Romulus, New York. This
project was within the geographical jurisdiction of Local
43 and work began in mid-April 1977.
3
At the start of the Romulus project the only employee
at the site was Lou Montante who, although a mason by
trade, was Respondent's superintendent on the job, and
although he had the power to hire and fire and did in
fact hire and lay off all those who worked for Respon-
dent at Romulus, he also performed some necessary
labor.
As the Romulus job progressed employees were hired
but Respondent contends that none of these employees
were masons. The employees came from the local area
and those who came to the site for work and were quali-
fied were hired. No request was made of Local 43 for
mason employees. Khan testified that a small amount of
masonry work, perhaps 5 percent of the total on the pro-
ject, was performed by Louie Montante, the superinten-
D'Angelo acted as a job superintendent at the Newark job.
that he kne.
Walters, and that he was familiar with the ocal 43 contract
2 Walters testified that his purpose in calling D'Angelo was
to get a
contract, that there was no doubt in his mind after the conersation
that
he had a conract. and that if he did not hase a cntrac
he vould have
pulled the masons off the job DAngelo. on the other hand,
denies agree
ing to a contract slrth Walters He states that some time
after Christmas
1974. Walters approached him at the Hopewell project and
requested
that he sign a contract and that D'Angelo refused because
Ihe had no
reason to sign the agreement inasmuch as the ob ,h as
completed He
said "1 lust don't hare not reason for it and I am olt glng
to sign it " In
spite of this, D'Angelo did sign the agreemen t n February
9. 197. s rth-
out explaining w.hy he felt it as linnecess.,r ' to enter into the agreemenl
in December because the sork was completed but thell
turned around
.and sIgnd iit 2 months later In that connection. D'Angelo
denied 1all
recoilllnclln of haling signed the illectlie-h i gl-gai nig ;lgreen
.ll il
iholiighl hc 3ilirIils his sigrlnltilrc appears
Ii It
espondent issued checks to Local
43 for dues. pen-
sion, and welfare benefits for the
entire period
of the
+
9
t
w
e
S
-
-
S
---
-
Hopewell job which ran during t
months of November
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, and Carmen Petrella, an employee, before July
when the bulk of the masonry work began and masons
were hired. 4
As previously indicated, Respondent did not do ma-
sonwork in Local 43's jurisdiction since the Hopewell
project until the Romulus School project. Upon discov-
ering that Respondent was on the Romulus School pro-
ject through the Dodge reports, Walters visited the job-
site and spoke with Lou Montante. The two discussed
the job and what amount of work was to be done on that
project, including the employment situation. Montante
told Walters at that time that Respondent would be using
all of Local 43's "people" on that project. Although Re-
spondent denied having called the hall for people, Wal-
ters stated that Montante did call Local 43 for masons
for the Romulus job.
On May 12, 1977, Walters spoke with Khan; intro-
duced himself as the business representative for the
Masons Local 43; and informed him that Local 43 had
had a contract with Respondent since the Hopewell job.
Khan replied that if there were a contract, there would
be no problem, and asked Walters to send the fringe
benefit forms which he would complete and return. Wal-
ters sent him the forms. However, the forms were sent
back to Walters with a letter from Khan stating that Re-
spondent was going to pay the benefits directly to their
men. In other words, Respondent intended to pay the
hourly wages plus benefits in the form of wages to the
men directly.5
During the remainder of 1975, following the Hopewell
job, Respondent performed no work in the Local 43 ju-
risdiction. In November 1975 Respondent received a
letter from Local 43 regarding some wage changes under
the contract but otherwise had no contact with Local 43.
Respondent contends that it "ceased having any inten-
tion to do work in Local 43's jurisdiction or anywhere
else because it was at its bonding limit." Respondent did
not, however, cease bidding projects within Local 43's
jurisdiction. It contends that to insure that future busi-
ness was not lost because of apparent inactivity, it con-
tinued to enter inflated bids on projects in Local 43's ju-
risdiction expecting to be turned down. Khan had testi-
fied that to bid a job he must (1) call the architect and
find out what the bid deposit is; (2) contact the bonding
company and presumably obtain a commitment from
such company to provide bonding services for the job;
4 The General Counsel adduced the testimony of Thomas Barnard
who was the supervising construction consultant for the Romulus central
school district Barnard testified that he prepared daily reports which in-
dicated what work was performed on the Romulus job Those reports
(G.C Exh 16(a)) established that between May 4. 1977, through July 28,
1977. a large amount of masonry work was performed on the Romulus
project I do not credit Khan's testimony
The renegotiated general contracts contained higher wages and
fringe benefits than the previous contracts amounting to a difference of
about $1.20 an hour which would not be reflected in the aultomatcall y
renewed contracts Inasmuch as 90 to 95 percent of the work performed
by employers who had contracts with Local 43 were public work con-
tracts. there was a posted wage rate or prevailing rate that all of the em-
ployers ere required to pay regardless of the wage rate contained in the
contract Therefore, Local 43. hich has a large number of employers
who are operating on contracts that have been renewed iutoatiically
rather than renegotiated upon expiration. was not too concernced that the
wages and fringe benefits contained in those contracts were lovvel than
those in the renegotiated or up-to-date contracts.
(3) make a cash deposit of between $50 and $100 of
which only about 50 percent will be returned; and (4)
prepare the bid which consists of "costing out" each and
every aspect of the work to be done, including ascertain-
ing prices from subcontractors.
In that connection, the General Counsel contends that
it is incredible that a contractor would perform all those
functions and forfeit its cash deposits to bid on a job that
it avowedly does not want, merely to be invited to bid
again when all it had to do was to explain to the archi-
tect that it did not want to bid that particular job but de-
sired to be considered for future work.
Since late 1977, Respondent has been engaged in a
project in Shortsville, New York, in Local 43's jurisdic-
tion. Respondent hired masons it required on that job
through Local 43 but contends that it has done so only
under protest because it had been informed by represen-
tatives of the Board that its monetary liability arising
from its alleged violation of the Local 43 contract con-
tinues to accrue if it continues to refuse to adhere to the
contract. 6
Analysis and Conclusions
Walters testified that he visited Respondent's Hope-
well jobsite on either November 18 or 19, 1974, and
spoke with Howard Beville and that Beville told him
that D'Angelo had the authority to sign an agreement.
After this conversation Walters returned to his office,
called, and spoke with D'Angelo. Walters inquired about
the Hopewell project and the Local 43 contract. D'An-
gelo replied that Hopewell was a small job and that Wal-
ters should not worry about it. D'Angelo said there
would be no problem with the contract and that Walters
should send it to him and he would sign it and send it
back. Walters on that same day then sent Respondent the
letter dated November 19, 1974, believing that he had
concluded a collective-bargaining agreement. The letter
contained the written agreement and requested that Re-
spondent sign the last page of the contract and return it.
Walters then saw D'Angelo again on the Hopewell
project site on December 16, and spoke with him about
the agreement, and about providing Local 43 men to
pour floors. D'Angelo said not to worry about the agree-
ment. Walters further testified that he initiated and had
two more telephone conversations with D'Angelo on
January 31 and February 17, 1975, about the contract
and fringe benefits due Local 43. D'Angelo told Walters
in the January 31 conversation that he would get the
contract out. The contract was indeed signed and re-
ceived by Local 43 on February 19, 1975. The Respon-
dent did, in fact, pursuant to the provisions of the con-
tract, send collected dues and contributions to Local 43
for all the masonry hours worked at Hopewell, including
the hours prior to November 19, the date D'Angelo
agreed for Respondent to a collective-bargaining agree-
ment with Local 43.
As previously indicated, I credit Walters and do not
credit D'Angelo. I find that a contract was indeed en-
; Al the hearing. ciounisel for the Gencerli Coulnsel nmoed to amenld the
complainl Io allege the existence of al ciollectie-hbirgll nlilg greemen ef-
fetiCe Con r aiboul November 19, 1974. instcad of Februtarr 19, 1975
rThe mlotion .o gainted u, .r the oppisttilO of Rspolidenil's CiiOuise
D'ANGELO & KHAN, INC. 401
tered into effective on November 19, 1974, The testimo-
ny concerning the oral agreement is consistent with Wal-
ters' dispatching the letter of November 19, 1974, to
D'Angelo and Khan enclosing the written agreement for
signing. The retroactive payment consisted of fringe
benefit contributions, construction industry fund contri-
butions and dues to Local 43 for the times that bricklay-
ers were employed on the Hopewell job. Such payments
would only have been made pursuant to an agreement
between the Union and the Employer, and a binding
agreement is what the Employer believed existed when
he made those payments to Local 43. The only explana-
tion offered by Respondent for having made those pay-
ments was "reciprocity or something," between Locals
11 and 43. "And we had the union guys working with 11
and working in their jurisdiction and that actually forced
us to pay them." I find that the payments were made for
the Hopewell job because Respondent was living up to
the agreement effective November 19, 1974. Joseph
Strong d/b/a Strong Roofing and Insulating Co., 152
NLRB 9, 13 (1965), enfd. as modified 386 F.2d 929 (9th
Cir. 1967), reversed as to the modification 393 U.S 357
(1969).
It is well settled that a collective-bargaining contract
may be agreed to prior to the signing of it by one of the
parties. See H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514
(1941). Section 8(d) of the Act requires execution of an
agreement (signing) only if requested by either party.
The Respondent's failure to sign the agreement, for the
period for which it subsequently complied with the
agreement, cannot now be used to escape its obligations.
Conway's Express v N.L.R.B., 195 F.2d 906 (2d Cir.
1952). Furthermore, Walters' asking for a signed agree-
ment cannot be considered a concession that the agree-
ment had not already been in force. Kenai Salmon Pack-
ing Company d/b/a Kenai Packers, 144 NLRB 1122, 1126
(1963).
Agreement not a Prehire Agreement
Having entered into the agreement in November 1974
at a time when masons were working in the employ of
Respondent on the Hopewell job, and not in February
when it was actually signed and at a time when Respon-
dent had no masons in its employ within the jurisdiction
of Respondent, Respondent's contention that the agree-
ment is a prehire agreement is without merit.
Respondent did not Timely Terminate the
Collective-Bargaining Agreement Prior to the
Romulus Project
The 1974-76 collective-bargaining agreement signed
by Respondent provides in article III as follows:
1. This agreement shall take effect on June 1,
1974 and shall remain in effect until May 31, 1976
unless otherwise specifically provided for herein. It
shall continue in effect from year to year, unless
changed or terminated in a way later provided
herein.
2. Either party desiring to change or terminate
this agreement must notify the other in writing at
least 90 days prior to the termination date. Whenever
notice is given for changes, the nature of the
changes must be specified in the notice. [Emphasis
supplied.]
Respondent contends that it mailed what purports to
be a termination letter to the Union on April 19, 1976.
The Union denies receiving such a letter and Respondent
has failed to overcome that denial by any direct evidence
that it was received such as a return receipt. In any
event, under the terms of the agreement quoted above,
the alleged termination notice of April 1976 would have
clearly been untimely as it was not given at least 90 days
prior to the termination date contained in the agreement
of May 31, 1976. Even if Respondent proved that the
termination notice was received by the Union, such
proof would have been without any legal effect. Strong
Roofing, supra. Therefore, by its own terms the contract
renewed itself automatically. Respondent requested the
Union for referrals for the Romulus job and obtained re-
ferrals in August 1977. Those referrals were made pursu-
ant to an existing contract. Indeed, Union Representative
Walters testified uncontrovertedly that in no circum-
stances would the Union refer its members without an
existing collective-bargaining agreement between the
Union and the employer requesting such referral.
111. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with its operation de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act,7 I shall recommend that it be
ordered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that commencing on or about May 26,
1977, and at all times since such date, Respondent has re-
fused, and continues to refuse, to bargain collectively as
the exclusive collective-bargaining representative in the
unit found appropriate herein in that it has repudiated
and failed and refused to apply the terms and conditions
of the collective-bargaining agreement, the most recent
of which has been effective by its terms since February
19, 1975, in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that Respondent be directed to
cease and desist from engaging in such conduct and that
it be directed to bargain collectively in good faith, upon
request, with the Union as the bargaining agent of the
employees in the said unit. I shall also recommend that
Respondent be ordered to honor its contract with the
h Il It, brief the General Counsel stated that it reconlsidered its psitiolll
With resppcil to par 9 of he cormplailnt and rInooed to rike froml Ihe
complainlt That motion is granted Par 9 i, triken fromil the compinlpill
DANGELO &KHAN, INC. !
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union retroactive to the beginning of the Romulus pro-
ject in May 1977 when Respondent unlawfully repudiat-
ed its collective-bargaining agreement. I shall further
recommend that Respondent be ordered to make whole
all of its employees and former unit employees for any
losses they may have sustained by reason of Respon-
dent's failure to honor and apply the terms of the afore-
said collective-bargaining agreement and make contribu-
tions on behalf of those employees for all fringe benefits
such as health and welfare, pension, and other benefits
and dues deductions.
The Charging Party argues that the remedy in this
case should include the payment of attorney's fees to the
union pension and security funds. Inasmuch as the failure
to make contributions to the union pension and security
funds is a result of Respondent's refusal to honor the
whole agreement therefore violating Section 8(a)(1) and
(5) of the Act, I believe that an order such as I have al-
ready recommended, requiring Respondent to make con-
tributions retroactively to pension and security funds as
required by the terms of the collective-bargaining agree-
ment and not an order that includes the payment of at-
torney's fees to the union pension and security funds is
the appropriate remedy. To require that Respondent pay
attorney's fees to the union pension and security funds
because the Charging Party chose to obligate those funds
for the payment of attorney's fees to cover the expenses
of processing an unfair labor practice charge involving
the violation of the entire contract will establish a bad
precedent of including in the remedy in any unfair labor
practice case involving a refusal to honor an existing
agreement legal expenses whenever the charging party
chooses to obligate pension and security funds. I am not
convinced that such a remedy is either appropriate or
would effectuate the purposes of the Act. Therefore, I
do not recommend that the remedy in this case should
include the payment of attorney's fees to the union pen-
sion and security funds. Furthermore, I know of no
Board Decision that provides such a remedy. Upon the
foregoing findings of fact and the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees of Respondent engaged in brickma-
sonry, stonemasonry, artificial masonry, cement masonry,
marble masonry, plastering, marble mosaic and terrazzo
work, tile layers', and other related masonry work exclu-
sive of all other employees and all supervisors as defined
in the Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section
9(b).
4. The Union has been at all times material to this
case, and is now, the exclusive bargaining representative
of the employees in the above unit.
5. Respondent became bound by a collective-bargain-
ing agreement between the Union and the Geneva Build-
ers & Trades Association on November 19, 1974, which
agreement was later signed by Respondent on February
19, 1975, and continues to be bound by said agreement
by reason of automatic renewals thereof, the last of
which is effective June 1, 1976, to May 31, 1979.
6. Respondent violated Section 8(a)(l) and (5) of the
Act by, on or about May 26, 1977, and at all times since
such date, refusing and continuing to refuse to bargain
collectively with the Union as the exclusive bargaining
representative in the unit described above, in that it has
repudiated and failed and refused to apply the terms and
conditions of the collective-bargaining agreement also
described above.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.j