Delta Sandblasting Company, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 2018

367 NLRB No. 17 (N.L.R.B. 2018)

367 NLRB No. 17
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Delta Sandblasting Company, Inc. and International
Union of Painters and Allied Trades, District
Council 16. Cases 20–CA–176434 and 32–CA–
180490
October 16, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On September 15, 2017, Administrative Law Judge
Mara-Louise Anzalone issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, which the
Charging Party Union joined, and the Respondent filed a
reply brief. The Union filed cross-exceptions and a sup-
porting brief, the Respondent filed an answering brief,
and the Union filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to adopt the judge’s rulings, findings,2
and conclusions as modified below, to amend the reme-
dy, and to adopt the judge’s recommended Order as mod-
ified and set forth in full below.3

1 Member Emanuel is recused and took no part in the consideration
of this case.
2 The Respondent and the Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all 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.
3 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language and the unit description alleged
in the Complaint. We shall also substitute a new notice to conform to
the Order as modified. We otherwise find that the Board’s standard
remedies are sufficient to effectuate the policies of the Act, and accord-
ingly we deny the Union’s request for additional remedies. We disa-
gree with our colleague that fluctuations in the size of the Respondent’s
workforce warrant a notice-mailing remedy. The result of such fluctua-
tions is that some individuals who worked for the Respondent when the
unfair labor practice was committed may no longer do so. But it is
always the case that employees who worked for an employer at the time
it committed an unfair labor practice may no longer be working for that
employer when the remedial notice is posted, and the Board rarely
orders notice mailing. Rather, notice mailing is generally made contin-
gent on the respondent’s having gone out of business or having closed
the facility involved in the proceeding. We adhere to the Board’s tradi-
tional practice.
Member McFerran joins her colleagues in finding that the Respond-
ent violated Sec. 8(a)(5) and (1) by unilaterally reducing its contribu-
This matter arises from the parties’ negotiations over a
successor contract after their collective-bargaining
agreement expired in August 2015. We affirm the
judge’s finding that the General Counsel failed to estab-
lish that a “meeting of the minds” over the terms of a
successor contract had been reached. The judge there-
fore correctly dismissed the allegation that the Respond-
ent violated the Act by refusing to execute a successor
contract.4 For the reasons stated below, we also affirm
the judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally reducing its
contributions to the employees’ pension fund in March
2016 without providing the Union notice and the oppor-
tunity to bargain.5

tions to the employees’ pension fund without providing the Union
notice and the opportunity to bargain. Unlike her colleagues, however,
she would grant the Charging Party Union’s request that the Respond-
ent also be required to mail copies of the notice, at its own expense, to
all employees since the first date the unfair labor practice occurred.
The Respondent performs marine sandblasting and painting services in
the San Francisco Bay area. As the judge found, the Respondent’s
workforce varies between six and fifty employees, based on the de-
mand for the Respondent’s services. In light of the fluctuating nature
of the work and workforce, and the fact that some employees who were
working when the violation occurred may not be called to work during
the 60-day notice posting period and may not otherwise learn of the
violation, Member McFerran would find that a notice-mailing remedy
is appropriate. See, e.g., Veritas Health Services, Inc., 363 NLRB No.
108, slip op. at 2 (2016), enfd. in relevant part, 895 F.3d 69 (D.C. Cir.
2018) (ordering respondent to mail copies of notice to per diem em-
ployees who do not regularly report to respondent’s facility); and
Teamsters Local 104 (Blue Rodeo), 325 NLRB No. 121, slip op. at 3
(1998) (ordering respondent to mail notice in view of the “itinerant and
sporadic working conditions” of the affected employees).
4 The General Counsel did not except to the judge’s dismissal of the
“Heinz” violation. See H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941)
(parties are obligated to execute a collective-bargaining agreement once
an agreement is reached). However, the Union did except, arguing that
the judge improperly relied on the hearsay testimony of witnesses
Floyd Farley and John Capovilla regarding a conversation they over-
heard between the Respondent’s former president, James Sanders, Sr.
(Sanders Sr.) and Union representative Jose Santana. We need not and
do not rely on this testimony, nor do we rely on the similar “state of
mind” testimony of Joyce Sanders (Ms. Sanders) and James Sanders,
Jr. regarding the same conversation. Even disregarding this testimony,
the record lacks sufficient evidence to support a finding that the Union
and the Respondent reached a meeting of the minds regarding the terms
of a successor contract. See Golden Cross Health Care of Fresno, 314
NLRB 1201, 1201 fn. 2 (1994) (not relying on evidence excepted to as
hearsay where substantial other evidence supported the judge’s conclu-
sion), ptn. for review dismissed 87 F.3d 1318 (9th Cir. 1996).
5 In her conclusions of law, the judge correctly concluded that the
Respondent ceased making required pension contributions in March
2016. At other places in the decision and recommended Order, the
judge stated that the Respondent unilaterally changed the pension con-
tribution rate in April 2016. We affirm the judge’s conclusion of law
that the Respondent unilaterally changed its pension contribution rate in
March 2016, as this date is supported by the record, and we amend the
judge’s decision and recommended Order to the extent it states other-
wise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Respondent performs marine sandblasting and
painting services in the San Francisco Bay area, and its
unit employees have been represented by the Union for
many years. By its terms, Section 18.1 of the parties’
2008-2015 collective-bargaining agreement (the 2008-
2015 CBA) required the Respondent to contribute to the
Pacific Coast Shipyards Pension Fund (pension fund) at
the rate specified in Wage Schedule A. The record
shows that in 2007 and 2008, the Respondent contributed
to the pension fund at a rate of $1.95 per hour worked
per employee. However, in 2008, the pension fund noti-
fied the Respondent that the fund had entered critical
status as defined by the Pension Protection Act of 2006
(PPA). The PPA requires that a critically underfunded
pension fund adopt and implement a rehabilitation plan
designed to resolve its underfunding. In accordance with
the PPA, the pension fund adopted and implemented a
rehabilitation plan that increased pension fund contribu-
tion rates. The pension fund then notified contributing
employers, including the Respondent, of these increased
rates. Section 18.4 of the 2008–2015 CBA states that the
Respondent and the Union have the “joint responsibility .
. . to instruct the Trustees of the applicable Pension Plans
to take appropriate action to eliminate any underfunded
liability that currently exists.”
The record does not indicate the rates paid by the Re-
spondent from 2009 to 2013. But the record does show
that the Respondent contributed to the pension fund at
the rate required under the rehabilitation plan from April
2014 forward, and at the time the 2008–2015 CBA ex-
pired on August 31, 2015, the Respondent was contrib-
uting to the pension fund at the rate of $9.78 per hour.
The Respondent continued to contribute at this rate until
January 2016, when it increased its contribution rate to
$11.38 per hour. In each case, these were the rates re-
quired by the pension fund under its PPA-mandated re-
habilitation plan. Moreover, Wage Schedule A for 2014-
2015 lists a pension contribution rate of $8.18 per hour,
with a planned increase to $9.78 per hour on January 1,
2015. In these circumstances, we affirm the judge’s
finding that those rates were incorporated into the 2008-
2015 CBA.6

6 Union representative Santana testified that he inserted Wage
Schedule A showing the increased pension contribution rates into the
expired contract, and Sanders Sr. then executed it. Ms. Sanders, the
Respondent’s secretary and treasurer, testified that she was familiar
with Wage Schedule A, and she identified it as a “rate sheet” that
showed the “different amounts” Respondent was required to pay and
did, in fact, pay. She also testified that, when she received the rate
sheet, it was not attached to a collective-bargaining agreement; Sanders
Sr. had simply handed it to her. Ms. Sanders’ testimony that Wage
Schedule A was stored as a stand-alone document is consistent with
Santana’s testimony that Wage Schedule A was a rate sheet that could
In March 2016, the Respondent, without providing the
Union with notice or an opportunity to bargain, reduced
its pension contribution rate to $1.95 per hour. The Re-
spondent informed the pension fund by letter that it did
not “have the money at this time to pay the mandatory
(critical status) amount due.” Notably, the Respondent
did not assert that it was ceasing making pension fund
contributions at the rehabilitation plan rate because it was
not required to make them. To the contrary, it admitted
in its letter to the pension fund that the “critical status”
rate—i.e., the rate required under the rehabilitation
plan—was “mandatory.”
The Respondent advances that argument now. It does
not dispute that it has an obligation to maintain the status
quo of its pension fund contributions while it bargains
for a successor contract with the Union. Instead, the Re-
spondent argues that its status quo obligation only re-
quires it to make pension fund contributions at a rate of
$1.95 per hour. We reject this contention. As noted
above, we have found that the $9.78 per hour rate was
incorporated into the parties’ agreement and was appli-
cable at the time the agreement expired. Moreover, it is
undisputed that the Respondent paid the escalating reha-
bilitation plan rates both before and after the 2008-2015
CBA expired in August 2015, which further bolsters our
conclusion that those rates were incorporated into the
parties’ agreement and thus were part of the status quo
the Respondent was obligated to maintain.7 See, e.g.,
Triple A Fire Protection, Inc., 315 NLRB 409, 414
(1994) (following the expiration of a collective-
bargaining agreement, an employer must maintain the
status quo of all terms and conditions of employment that
constitute mandatory subjects of bargaining until the
parties either agree on a new contract or reach an im-
passe in negotiations), enfd. 136 F.3d 727 (11th Cir.
1998), cert denied 525 U.S. 1067 (1999).8

be inserted into the contract. Ms. Sanders’ identification of Wage
Schedule A as the rate sheet containing the pension contribution
amounts paid by the Respondent bolsters the conclusion that, however
the Respondent stored Wage Schedule A, it was treated as part of its
collective-bargaining agreement with the Union.
7 Indeed, the Respondent increased its contribution rate to $11.38 per
hour on January 1, 2016, incorporating a $1.60-per-hour increase re-
quired by the rehabilitation plan. The Respondent paid the $11.38-per-
hour rate in January and February 2016. And it ceased paying that rate
in March 2016, noting an inability to pay, not that the rehabilitation
plan rates were not owed.
8 In its exceptions brief, the Respondent contends that the parties
reached an impasse in bargaining in May 2016. The Respondent did
not assert this defense in its answer or at the hearing. The Board finds a
contention untimely raised and waived when a party raises it for the
first time in exceptions to the Board. Wind-Chester Roofing Products,
302 NLRB 878, 878 fn. 1 (1991). Accordingly, we find that the Re-
spondent’s untimely raised impasse defense has been waived, and we
will not consider it.
DELTA SANDBLASTING CO. 3
We reject the Respondent’s contention that requiring
payment of the rehabilitation plan rates incorporated into
Wage Schedule A forces the Respondent to violate Sec-
tion 302(c)(5)(B) of the Labor Management Relations
Act (LMRA).9 LMRA Section 302(c)(5)(B) requires that
employer payments to an employee trust fund, such as
the pension fund here, be made pursuant to “a written
agreement” that specifies “the detailed basis on which
such payments are to be made.” Although it is not the
responsibility of the Board to enforce this provision of
the LMRA, neither does the LMRA “bar the Board, in
the course of determining whether an unfair labor prac-
tice has occurred, from considering arguments concern-
ing Section 302 to the extent they support, or raise a pos-
sible defense to, unfair labor practice allegations.” BASF
Wyandotte Corp., 274 NLRB 978, 978 (1985), enfd. 798
F.2d 849 (5th Cir. 1986).
We find that the requirements of Section 302 are satis-
fied on the facts of this case. An employer’s obligation
to make fringe benefit contributions has “been enforced
in a variety of circumstances, absent a signature to a cur-
rent collective bargaining agreement.” Bricklayers Local
21 of Illinois Apprenticeship and Training Program v.
Banner Restoration Inc., 385 F.3d 761, 770 (7th Cir.
2004), cert. denied 544 U.S. 999 (2005). Indeed, “the
Board has consistently held that an expired contract, un-
der which the obligation to make payments to the fringe
benefit funds arose, is sufficient to meet the ‘written
agreement’ requirement of Section 302(c)(5)(B).” Con-
cord Metal, Inc., 298 NLRB 1096, 1096 (1990). The
Board and courts have also noted that compliance with
Section 302(c)(5)(B) may derive from sources other than
a collective-bargaining agreement. See Hen House Mar-
ket No. 3 v. NLRB, 428 F.2d 133, 139 (8th Cir. 1970) (“A
trust fund agreement separate and apart from the collec-
tive bargaining agreement would surely satisfy the statu-

R.V. Cloud Co., Inc. v. Western Conference of Teamsters Pension
Trust Fund, 566 F. Supp. 1426 (N.D. Cal. 1983), cited by the Respond-
ent, is clearly distinguishable. There, the court held that an employer
had no contractual obligation to contribute to a pension fund after the
parties’ agreement expired because the employer and union had not
reached agreement on a new contract. The court did not address the
employer’s obligation to continue contributions at the level specified in
the expired agreement as part of its obligation under the Act to maintain
the status quo, and with good reason: the parties in that case did not
dispute the employer’s continuing obligation to make those contribu-
tions.
9 The judge declined to consider the Respondent’s LMRA defense.
Instead, she noted that even assuming the payment of the rehabilitation
plan rates to the pension fund violated the LMRA, “this would not
excuse [the Respondent’s] failure to provide the Union with notice and
opportunity to bargain,” and she deferred to compliance whether the
rehabilitation plan payments to the pension fund would violate the
LMRA. Because we have rejected the defense here, there is no need to
address it in compliance.
tory prerequisite.”). The LMRA requires “merely a writ-
ing detailing the bases on which the contributor’s pay-
ments are to be made on behalf of the employees.”
Richmond Homes, 245 NLRB 1205, 1213 (1979). Fur-
thermore, multiple documents may be read together to
meet the requirements of the LMRA. Id. Thus, a collec-
tive-bargaining agreement that references a trust agree-
ment setting forth the detailed basis on which payments
are to be made satisfies the requirements of the LMRA.
Carpenters St. Louis Council (Ficken Construction), 276
NLRB 682, 692 (1985).
Hen House Market No. 3 provides guidance for the
matter at hand. There, the Eighth Circuit found that the
requirements of Section 302(c)(5)(B) were satisfied by
references to the trust fund agreements within the expired
collective-bargaining agreement, where the employer had
made payments pursuant to the trust fund agreements.
Similarly here, the rehabilitation plan rates were incorpo-
rated into the expired agreement via Wage Schedule A
and Section 18.4, and the Respondent made contributions
for at least 2 years at those rates. Thus, as in Hen House
Market No. 3, the Respondent “certainly agreed” to the
rehabilitation plan rates “not only because they are in-
corporated by reference into the collective bargaining
contract itself, but also because [it] made contributions”
pursuant to the rehabilitation plan’s terms. Hen House
Market No. 3 v. NLRB, 428 F.2d at 139. The expired
2008-2015 CBA, by recognizing the parties’ obligation
to eliminate underfunding and by incorporating the
plan’s rates in Schedule A, satisfies Section
302(c)(5)(B)’s requirement for a “detailed basis . . . spec-
ified in a written agreement.”
Moreover, it is undisputed that the rehabilitation plan
rates were validly adopted and implemented by the pen-
sion fund pursuant to the PPA. The courts do not appear
to have considered the interplay between LMRA Section
302 and the PPA to date. However, the PPA specifically
authorizes pension plans to impose rehabilitation rates on
employers in circumstances when the parties have failed
to agree to those rates.10 This statutory authority would
be wholly illusory if, as the Respondent posits, the
LMRA nevertheless allows employers to avoid making
the required payments on the ground that they are not
authorized by a written agreement. We are reluctant to
ascribe to Congress the intent to both require and prohib-
it rehabilitation plan payments to a pension fund in cir-
cumstances like those presented here. See Morton v.
Mancari, 417 U.S. 535, 551 (1974) (“The courts are not
at liberty to pick and choose among congressional en-

10 See Employee Retirement Income Security Act §§ 305 (c)(7) and
(e)(3)(C), 29 U.S.C. §§ 1085(c)(7) and (e)(3)(C). Indeed, the PPA
requires covered pension funds to impose rehabilitation plans.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
actments, and when two statutes are capable of co-
existence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to re-
gard each as effective.”).
For the reasons stated above, we find that the Re-
spondent was contractually obligated to make pension
fund contributions at the rate of $9.78 per hour at the
time the parties’ collective-bargaining agreement expired
on August 31, 2015, and it violated Section 8(a)(5) and
(1) of the Act by unilaterally reducing its contribution
rate to $1.95 per hour after March 2016. The parties
dispute whether the Respondent was obligated to pay the
escalating rates imposed by the pension fund after the
parties’ agreement expired. We leave this issue to com-
pliance.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative actions designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) of the Act by unilaterally changing its contribu-
tions to the Pacific Coast Shipyards Pension Fund in
March 2016, we shall order the Respondent to make
whole its unit employees covered by the pension plan by
making all required contributions to the pension fund that
have not been made, including any additional amounts
due the pension fund in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Fur-
ther, the Respondent shall be required to reimburse its
unit employees for any expenses ensuing from its failure
to make the required contributions as set forth in Kraft
Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such amounts
shall be computed in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
ORDER
The National Labor Relations Board orders that the
Respondent, Delta Sandblasting Company, Inc., Petalu-
ma, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Interna-
tional Union of Painters and Allied Trades, District
Council 16 (Union) as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate bargaining unit by unilaterally changing
its contributions to the Pacific Coast Shipyards Pension
Fund:
All production, repair and maintenance Employees
employed by Respondent performing work in connec-
tion with the construction, conversion, repair or scrap-
ping of any vessel on the Pacific Coast, including but
not limited to, sandblasting of dredges, floating dry
docks, offshore drilling vessels, barges, Mobil drilling
platforms, platforms and all component parts, plant
equipment, and all auxiliary equipment used in con-
junction therewith and other new work as shall be mu-
tually agreed to by the Employer and the Union; ex-
cluding all employees represented by International As-
sociation of Machinists & Aerospace Workers in the
bargaining unit defined in Case 20-RC-1275, all em-
ployees represented by Northern California Carpenters
Regional Council and its affiliated Local Union No.
2236 of the United Brotherhood of Carpenters and
Joiners of America in the bargaining unit defined in
Case 20-RC-1327, and all employees represented by
International Brotherhood of Electrical Workers in the
bargaining unit defined in Case 20-RC-2157.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
its employees in the appropriate unit.
(b) Rescind the change in the terms and conditions of
employment for its unit employees that was unlawfully
implemented in March 2016.
(c) Make all required contributions to the Pacific
Coast Shipyards Pension Fund on behalf of the above
bargaining-unit employees that have not been made since
March 2016, including any additional amounts owed to
the fund, in the manner set forth in the amended remedy
section of this decision, and continue such payments un-
til an agreement has been reached with the Union or a
lawful impasse in negotiations occurs.
(d) Make unit employees whole for any expenses en-
suing from its failure to make the required pension con-
tributions, with interest, in the manner set forth in the
amended remedy section of this decision.
(e) 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 rec-
DELTA SANDBLASTING CO. 5
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to determine the amount of monetary benefits
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Petaluma, California, copies of the attached
notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 20,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
this proceeding, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since March 2016.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. October 16, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member

11 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.”
(SEAL) NATIONAL LABOR RELATIONS BOARD
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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a 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 change your terms and conditions of
employment without first notifying the International Un-
ion of Painters and Allied Trades, District Council 16
(the Union) and affording it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of our
employees in the following appropriate unit:
All production, repair and maintenance employees em-
ployed by Respondent performing work in connection
with the construction, conversion, repair or scrapping
of any vessel on the Pacific Coast, including but not
limited to, sandblasting of dredges, floating dry docks,
offshore drilling vessels, barges, Mobil drilling plat-
forms, platforms and all component parts, plant equip-
ment, and all auxiliary equipment used in conjunction
therewith and other new work as shall be mutually
agreed to by the Employer and the Union; excluding,
all employees represented by International Association
of Machinists & Aerospace Workers in the bargaining
unit defined in Case 20-RC-1275, all employees repre-
sented by Northern California Carpenters Regional
Council and its affiliated Local Union No. 2236 of the
United Brotherhood of Carpenters and Joiners of
America in the bargaining unit defined in Case 20-RC-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
1327, and all employees represented by International
Brotherhood of Electrical Workers in the bargaining
unit defined in Case 20-RC-2157.
WE WILL rescind the changes in the terms and condi-
tions of employment for our bargaining-unit employees
that were unilaterally implemented in March 2016.
WE WILL make all required contributions to the Pacific
Coast Shipyards Pension Fund on behalf of the bargain-
ing-unit employees that have not been made since March
2016, including any additional amounts owed to the
fund, and we will continue such payments until an
agreement has been reached with the Union or a lawful
impasse in negotiations occurs.
WE WILL make unit employees whole for any expenses
ensuing from our failure to make the required pension
contributions, with interest.
DELTA SANDBLASTING CO.
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-176434 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street SE, Washington, DC
20570, or by calling (202) 273-1940.
Cecily A. Vix, Esq., for the General Counsel.
Alan S. Levins and Paul E. Goatley, Esqs. (Littler Mendelson),
for the Respondent.
David A. Rosenfeld and Caroline N. Cohen, Esqs. (Weinberg,
Roger & Rosenfeld), for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law
Judge. I heard this case on March 30, 2017, in San Fran-
cisco, California. Charging Party International Union of
Painters and Allied Trades, District Council 16 (Charg-
ing Party or the District Council) filed a charge on May
16, 2016, and the Regional Director for Region 20 issued
an order consolidating cases, consolidated complaint and
notice of hearing on October 27, 2016 (the complaint).
The General Counsel alleges that Respondent Delta
Sandblasting Company, Inc. (Respondent or Delta) vio-
lated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act) by failing and refusing to execute a
complete written agreement reached with Auto, Marine
& Specialty Painters Local Union No. 1176 (Local 1176
or the Union), as well as by unilaterally decreasing the
amount of its pension fund contributions. As set forth in
detail below, I find that the General Counsel has proven
the second, but not the first, of these allegations.
At trial, all parties were afforded the right to call,
examine, and cross-examine witnesses, to present any
relevant documentary evidence, to argue their respective
legal positions orally, and to file post-hearing briefs. On
May 18, 2017, posthearing briefs were filed by the Gen-
eral Counsel (joined by Charging Party) and Respondent
and have been carefully considered.1 Accordingly, based
upon the entire record herein, including the posthearing
briefs and my observation of the credibility of the wit-
nesses, I make the following
FINDINGS OF FACT
A. Jurisdiction
At all times material herein, Respondent, a Califor-
nia corporation with a principal place of business located
in Petaluma, California, has been engaged in providing
painting and sandblasting services in the marine repair
industry. During the 12-month period immediately pre-
ceding the issuance of the instant complaint, Respondent,
in the normal course and conduct of its above-described
business operations, purchased and received at its Peta-
luma facility goods in excess of $50,000 directly from
points outside the State of California. It is alleged, Re-
spondent admits, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I additionally find,
based on the testimony of Charging Party’s Director of
Service José Santana (Santana), that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute af-
fects commerce and that the National Labor Relations
Board (the Board) has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
B. Factual Background
Delta is a family owned business that performs ma-
rine sandblasting and painting services in the San Fran-
cisco Bay area. Its number of employees varies between

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s Exhibit; “R. Exh.” for Re-
spondent’s Exhibit; “GC Br.” for the General Counsel’s post-hearing
brief and “R. Br.” for Respondent’s posthearing brief.
DELTA SANDBLASTING CO. 7
six and fifty workers, based on the demand for its ser-
vices. Delta was owned and operated by its president,
James “Bobby” Sanders, Sr. (Sanders) until his death on
May 4, 2016. Thereafter, Delta’s operations were taken
over by his son, Robert Sanders, Jr. (Sanders, Jr.). For
many years, Local 1176 has represented a unit of sand-
blasters employed by Delta (the unit). The Union has
delegated responsibility for bargaining over the unit to
the District Council. Santana is responsible for oversee-
ing Local 1176; since 2008, he has also served as the
business representative responsible for dealing with Del-
ta. (GC Exh. 1(g), 1(l); Tr. 18–22, 97, 219, 229, 246,
251.)
1. The parties’ bargaining history
Historically, collective-bargaining negotiations be-
tween the parties were extremely informal, consisting of
a series of brief phone calls and a few in-person discus-
sions. This was largely due to the fact that each such
negotiation occurred only after the District Council had
settled a contract with a general contractor in the industry
known as “BAE” (to which Delta acts as subcontractor).
The District Council would then ask Delta to agree to the
same terms (including wages and benefits), and Delta
would assent. Prior to 2014, Delta paid the unit employ-
ees over the BAE contractual wage rate, which made
agreeing to the BAE terms that much easier. Since at
least 2007, the parties also agreed to a “Supplemental
Agreement” that provided for certain departures from the
BAE contract tailored towards Respondent’s business.
(Tr. 20, 23–25, 239; GC Exh. 2.)
The last signed collective-bargaining agreement be-
tween the parties expired on August 31, 2015. This con-
tract was reached after a series of phone calls and a sin-
gle in-person meeting between Santana and Sanders.2
Consistent with past practice, these negotiations were
preceded by the Union reaching an agreement with BAE;
unlike in past years, however, the BAE-negotiated wage
rate surpassed that which Delta was paying the unit em-
ployees. According to Santana, he informed Sanders that
Delta would need to bring its wages up to match those
paid by BAE. Sanders agreed and signed a written col-
lective-bargaining agreement (the Expired Contract).
(GC Exh. 1(i) ¶ 6(b), 2, 3; Tr. 24–26, 35–36.)
2. Respondent’s pension contributions
Pursuant to the Expired Contract, Respondent was obligated
to contribute to the Pacific Coast Shipyards Pension Fund (the
Fund). Specifically, the agreement’s Article 18.1 provides for a
base contribution rate of $1.95 per hour. Moreover, pursuant to

2 Per the parties’ usual, informal practice, these negotiations did not
involve any exchange of written proposals, and neither Santana nor
Sanders took bargaining notes. (Tr. 24.)
its Article 18.4, Respondent agreed to “instruct the Trustees of
the applicable Pension Plans to take appropriate action to elim-
inate any unfunded liability that currently exists or unfunded
liability that develops during the term of this Agreement as
soon as practical.” (GC Exh. 2.)
The documentary evidence indicates that, in 2008, the Fund
was designated as underfunded, and therefore became subject
to a rehabilitation plan to address this status. Pursuant to that
plan, Respondent became required to pay a substantial sur-
charge on its base contribution rate, bringing its total per-hour
contribution rate up to $8.18, $9.78, and $11.28 in 2014, 2015,
and 2016, respectively. It is undisputed that Respondent paid
this surcharge until April 22, 2016. (GC Exhs. 17, 18, 20–22,
26; Tr. 142, 148–150, 159.)
3. The parties’ initial statements and conduct regarding a
successor contract
As noted above, Sanders passed away on May 4, 2016, be-
fore signing another collective-bargaining agreement. The
General Counsel alleges that, on about February 8, 2016, Sand-
ers and Santana agreed verbally on the terms of a successor
contract to which it should be bound. Because neither party
offered any bargaining notes, I have based my factual findings
regarding the circumstances surrounding this alleged verbal
agreement on the testimony of Santana, another representative
of the Union and certain statements by Sanders offered through
other witnesses.
On June 24, 2015 (approximately 2 months before the 2008
Agreement was set to expire), Sanders informed Santana in
writing that Delta was interested in negotiating a successor
contract. (GC Exh. 4.) Santana admitted that Sanders’ letter
concerned him, because it was more formal than the parties’
typical means of communication. (Tr. 89.) There is no reliable
evidence of Sanders’ motivation in sending the letter; while
Sanders, Jr. testified that his father had expressed a desire to
negotiate a simpler collective-bargaining agreement “tailored to
suit a small business,” rather than one based on the BAE con-
tract, this testimony on this subject was too vague and internal-
ly inconsistent to be reliable.3
Santana responded to the letter with a phone call 2 weeks
later. According to Santana, he told Sanders at that time, “my
thinking is that we would agree to whatever BAE got in wages
and benefits.” He initially testified that Sanders immediately
stated that he “had no problem with it,” but then revised his
testimony, stating that Sanders only made this comment after
confirming that Delta’s supplemental agreement would contin-
ue to be included in the parties’ contract. (Tr. 44–47.)
According to Santana, the two next spoke in October 2015,
when he called Sanders and informed him that the Union was
having trouble reaching an agreement on wages with BAE.

3 Sanders Jr. first testified that he discussed this issue with his father
“a couple of different times,” at which point he was interrupted by his
own counsel, who suggested that he focus on the year 2015. After this,
he testified that the first time he discussed this issue with his father was
in 2015, and the last time was in “January or February 2016.” Then, he
suddenly remembered that he had discussed this issue with his father
“quite often”—so often, in fact, that he couldn’t even estimate how
many times. (Tr. 240–241.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Sanders responded, “that’s fine,” and asked Santana to keep
him posted. At some point in January 2016,4 Santana called
Sanders and told him that the Union had reached an agreement
with BAE (not yet ratified by the membership) that provided
for an annual raise of $1.10 for 3 years. Santana testified that
Sanders simply responded “okay.” On February 2, Santana
called Sanders again, and informed him that the BAE agree-
ment had been ratified and that the two men should get together
and “go over it.” He also reminded Sanders of the three-year
wage increase contained in the BAE contract. As Santana testi-
fied, “I told him what the amounts were and he said, yeah,
that’s fine, José.” The two agreed to meet on February 8 at
Local 1176’s office. (Tr. 47–48, 52–56.)
4. The alleged February 8 “meeting of the minds”
On February 8, Sanders and Santana met as planned; also
present for the Union was business agent-in-training Richard
Morales, who observed but did not participate. According to
Santana, the discussion about the BAE contract took only a
couple of minutes at the beginning of the meeting and included
a discussion of the $1.10 annual raise and “the healthcare and
the pension.” Sanders, he testified, said he was “fine with it.”
Despite the fact that the meeting had been arranged, in Santa-
na’s words, to “go over” the ratified BAE contract, he failed to
show it—or any other documentation—to Sanders during this
meeting. (Tr. 56–58.)
Morales’ recollection of the meeting was different. The dis-
cussion, he testified, did not begin with Santana informing
Sanders about the BAE contract terms, but rather a discussion
about an ongoing arbitration. Then, he recalled, “they had
brought up [that] the contract with BAE was going to be final-
ized and that [Sanders] needed to come in and – and sign the
agreement.” According to Morales, instead of saying he was
“fine” with any particular contract terms, Sanders said that once
Santana had gotten the BAE contract signed, he (Sanders)
“would come in and sign – review and sign it.” Morales took
notes at the meeting, which made no mention of a deal being
struck, but simply characterized it as “a contract nego” with
Sanders. (Tr. 111–112, 114.)5
It is undisputed that the Union never presented Sanders with
a written Delta contract for his signature. According to Santa-
na, he and Sanders arranged in the beginning of March for a
meeting for Sanders “to come in” to the union hall. This never
occurred (Sanders cancelled for health reasons); in any event, it
does not appear that the Union had prepared a written contract
in anticipation of Sanders’ appearance at the hall. (Tr. 58, 64–
65, 92; GC Exh. 6.)
5. Conduct following February 8
a. Santana’s impromptu April visit
According to Santana, he did direct Local 1176’s administra-
tive assistant to prepare a 2015–2018 collective-bargaining

4 Unless otherwise noted, all dates hereafter refer to the year 2016.
5 While Morales admitted that he was not present during a portion
of the discussion, he was specific that his absence was at the end, not
the beginning of the meeting (when Santana claims Sanders expressed
that he was “fine” with the proposed terms). (See Tr. 132–133.)
agreement for Delta in late March. Santana further testified—
in a stilted, rehearsed manner—that he dropped in on Sanders
unannounced in April because he was nearby Respondent’s
office. He did not bring a copy of the contract, but instead told
Sanders it was “ready” for him to sign, and that he should come
by Local 1176’s office to do so. According to Santana, Sanders
responded that he was “fine” with that. (Tr. 59–60.) No other
witnesses were present for this exchange. Respondent offered
no evidence to rebut this testimony directly, but did present a
less sunny picture of Sanders’ relationship with the Union at
the time; according to Respondent’s witness Floyd Farley
(“Farley”), Sanders spoke with him multiple times about the
progress of negotiations with the Union. Sanders, he testified,
was concerned that the Union was demanding that he sign an
agreement, “but they wouldn’t produce it.” (Tr. 198–199.)6
b. The May 3 phone call
It is undisputed that, in April 2016, and without prior notifi-
cation to the Union, Delta ceased paying the surcharge portion
of its pension contributions, submitting only the $1.95 base
contribution amount, along with a note claiming an inability to
pay the surcharge amount. On May 3, a Fund administrator
informed Santana of this; he and Morales called Sanders the
same day. (Tr. 61–62, 142, 148–150, 159.) Testimony regard-
ing this telephone conversation was offered by several witness-
es:
 According to Santana, when confronted about the
pension contributions, Sanders said, “I’m not going to
pay it,” to which Santana responded, “we had an
agreement and you agreed to it that you were going to
pay it and you were supposed to have come to my of-
fice to sign the agreement.” Santana then testified
that Sanders conceded, responding that he was in
Mexico with his family, but adding “when [I] get
back next Monday, I will call you and set up a time
with you.”
 Morales testified that Santana told Sanders that he
owed money to the pension trust fund and “needed to
come in and sign a – the agreement.” Sanders, he re-
called, responded that he was in Mexico and “that he
wanted to review the contract and that he would have
some questions.”
 Farley testified that he observed Sanders on the
phone in Mexico stating “something like, ‘I’m in
Mexico, I’ll deal with it next week.’” and then, “do
you realize you’re threatening me over this phone
right now?” After hanging up, Farley recalled, Sand-

6 I agree with Respondent that Sanders’ expressions of trepidation
about agreeing to the BAE contract terms qualify for the hearsay excep-
tion contained in Fed. R. Evid. 803(3). See U.S. v. Ponticelli, 622 F.2d
985, 991 (9th Cir.), overruled on other grounds by United States v. De
Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc). While I also
agree that testimony by Sanders, Jr. that his father was concerned about
rising labor costs is likewise admissible, I find such statements shed
little light on whether he had reached a deal with the Union.
DELTA SANDBLASTING CO. 9
ers said something like, “I can’t even go fishing in
peace.”
 Another friend, John Capovilla, recalled similar
comments by Sanders, albeit in the opposite order.
According to him, Sanders first said, “you’re threat-
ening me,” and then explained that he was in Mexico
and would talk to the caller when he got home the
following week.
Santana explicitly denied that, during this conversation, he
threatened Sanders or that Sanders accused him of doing so.
(Tr. 61–62, 82, 124–125, 128–130, 202, 211.)
Respondent also presented testimony by Sanders’ wife
(Joyce Sanders) and son (Sanders, Jr.) relating statements he
made shortly following the call. Joyce Sanders testified that,
on May 3, an upset Sanders told her that Santana had threat-
ened him. Sanders, Jr. reported having a similar conversation
with his father on May 4. (Tr. 232, 256–257.)
ANALYSIS
A. The Parties’ Positions
The General Counsel argues that Respondent violated Sec-
tion 8(a)(5) of the Act when it failed and/or refused to execute a
successor contract after the parties established a complete
agreement on all of its substantive terms. The General Counsel
alternately alleges that Respondent violated Section 8(a)(5) by
unilaterally decreasing the amount of its pension contributions
required by the Expired Contract. Respondent denies that it
violated the Act in any respect, and specifically argues that: (a)
no meeting of the minds occurred regarding a successor con-
tract; and (b) it was not obligated to provide the Union with
notice and an opportunity to bargain over its decision to reduce
its pension contributions.
B. Credibility
The key aspects of my factual findings above incorporate the
credibility determinations I have made after carefully consider-
ing the record in its entirety. The testimony concerning the
material events underlying the General Counsel’s allegations
contain certain conflicts. I have based my credibility resolu-
tions on consideration of a witness’ opportunity to be familiar
with the subjects covered by the testimony given; established or
admitted facts; the impact of bias on the witness’ testimony; the
quality of the witness’ recollection; testimonial consistency; the
presence or absence of corroboration; the strength of rebuttal
evidence, if any; the weight of the evidence; and witness de-
meanor while testifying and the form of questions eliciting
responses. As set forth below, I have credited the testimony of
Morales over that of Santana when it came to the issue of
whether a “meeting of the minds” occurred between the parties.
C. Duty to Execute a Fully Negotiated Collective-Bargaining
Agreement
As noted, the General Counsel argues that, despite the lack
of a signed successor contract, Respondent is bound to a collec-
tive-bargaining agreement verbally agreed to by the late Sand-
ers. Respondent contends that no such agreement was reached.
1. The “Heinz” obligation and “meeting of the minds”
It is well established that the Board lacks the authority to
compel a party to agree to any substantive contractual provision
of collective-bargaining agreement. Thus, the Board may not
order a party to execute an agreement to which it has not as-
sented. New Orleans Stevedoring Co., 308 NLRB 1076, 1081
(1992), enfd. 997 F.2d 881 (5th Cir. 1993). These principles
are reflected in Section 8(d) of the Act, which requires “the
execution of a written contract incorporating any agreement
reached if requested by either party” but notes that “such obli-
gation does not compel either party to agree to a proposal or
require the making of a concession.”7
Accordingly, the obligation to execute a collective-
bargaining agreement arises only once the parties have had a
“meeting of the minds” on all substantive issues and material
terms of the agreement. See Sunrise Nursing Home, 325
NLRB 380, 389 (1998). To prove a meeting of the minds, the
General Counsel must prove that the parties’ objectively mani-
fested intent, as demonstrated by their communications with
each other, as well as their “tone and temperament,” shows that
they agreed on all substantive issues and material terms con-
tained in the alleged agreement. Crittenton Hospital, 343
NLRB 717, 718 (2004); Diplomat Envelope Corp., 263 NLRB
525, 535–536 (1982), enfd. 760 F.2d 253 (2d Cir. 1985). It is
appropriate to evaluate the parties’ conduct against the back-
drop of their prior negotiations. Electrical Workers IBEW Lo-
cal 938, 200 NLRB 850 (1972), enfd. 492 F.2d 1240 (4th Cir.
1974).
In determining whether an agreement has been reached by
the parties, the Board is not strictly bound to “the technical
rules of contract law but is free to use general contract princi-
ples adapted to the collective-bargaining context.” New Orle-
ans Stevedoring Co., 308 NLRB at 1081 (citing NLRB v. Elec-
tra-Food Machinery, 621 F.2d 956, 958 (9th Cir. 1980)). In
this regard, verbal acceptance of the terms of collective-
bargaining agreement will bind a party. Capitol-Hustling Co.
v. NLRB, 671 F.2d 237, 243 (7th Cir. 1982) (in order to find
acceptance of an offer, all that is needed is conduct manifesting
intention to agree, to abide and be bound by the terms of an
agreement). Such verbal acceptance may take the form of asset
to an unsigned document with the intent to sign later. See New
Orleans Stevedoring Co., 308 NLRB at 1081; Kelly’s Private
Car Service, 289 NLRB 30, 39 (1988), enfd. 919 F.2d 839 (2d
Cir. 1990). Moreover, even without explicit assent to a written
document, a party’s acceptance of an unambiguous verbal offer
will create a binding contract. See Pittsburgh-Des Moines Steel
Co., 202 NLRB 880, 888 (1973) (“if words and conduct
chargeable to one or any party have but one reasonable mean-
ing, with respect to which the other party has noted concur-
rence, a contract will be deemed concluded on that basis”).
The classic “hallmark indication” of a binding contract hav-
ing been reached is the conclusion of a meeting (or series of

7 Prior to the enactment of Sec. 8(d), the Supreme Court had already
reached essentially the same result; in H.J. Heinz Co. v NLRB, the
Court held that, once the parties have reached an oral agreement, it is
unlawful for one of the parties to fail to reduce to writing and apply that
agreement. 311 U.S. 514, 526 (1941).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
meetings) “with handshakes and mutual expressions of satisfac-
tion on the successful outcome of their endeavor.” See Wind-
ward Teachers Association, 346 NLRB 1148, 1150–1151
(2006) (citations omitted). Conversely, evidence that, through-
out the course of negotiations, the parties “stood pat” in their
disagreement over at least one substantial and material contract
provision will be found to indicate that they never reached a
complete agreement. Intermountain Rural Electric Assn., 309
NLRB 1189, 1193 (1992). Since many cases lack evidence of
such recognizable indicia of manifested intent, the Board also
affords significant weight to whether, following an alleged
“meeting of the minds,” the parties behaved as if they had, in
fact, successfully entered into a new, binding contract. See
Windward Teachers Association, supra.
2. The General Counsel failed to establish a “meeting of
the minds.”
Based on the application of the above principles, I find that,
as of Sanders’ passing, he and Santana had not reached a
“meeting of the minds” on all substantive issues and material
terms of a successor agreement as alleged. First, I do not credit
Santana’s testimony that the premise for the February 8 meet-
ing was that the BAE contract had been ratified and that Sand-
ers had orally assented to its terms by phone on February 2.
Had this been the case, surely Santana would have come to the
meeting six days later armed with the executed BAE contract
(as he promised Sanders) for them to review. Remarkably,
Santana offered no explanation for his failure to do so.
As for the February 8 meeting itself, not only did it lack the
tell-tale, congratulatory handshake signaling that a deal had
been reached, it was also missing the critical offer and ac-
ceptance elements. In this regard, I note that the General Coun-
sel’s own witness, Morales, did not corroborate Santana’s
vague assertions that he presented Sanders with wages and
benefits based on the BAE contract. I instead credit Morales as
to what occurred on February 8.8 His account made it clear that
on February 8, Sanders, at best, agreed to review the BAE con-
tract once it was signed, but did not agree to its unsigned terms
sight unseen. This version of the meeting was consistent with
the parties’ prior negotiations; while Sanders had, in the past,
agreed to BAE’s negotiated wage scale, there is no evidence
that he had ever agreed to pay whatever BAE might ultimately
agree to. It is further consistent with Farley’s testimony that,
on numerous occasions in 2015 and 2016, Sanders expressed
concern that Santana was pressuring him to agree to the new
BAE contract, sight unseen.
I further find that, following February 8, the parties did not
behave as if they had, in fact, successfully entered into a new,
binding contract. I found particularly unconvincing Santana’s
testimony that, later in April, he fortuitously found himself in
the neighborhood of Respondent’s business later for an oppor-
tunity to “re-agree” that Sanders was willing to sign a written
contract. This claimed encounter simply cannot be squared
with the parties’ confrontational May 3 phone call. While wit-

8 As opposed to Santana’s somewhat “prepackaged” explanations,
Morales’ testimony was grudging but unvarnished, leading me to be-
lieve that he knew it was not helpful to the General Counsel’s case but
was nonetheless true.
ness accounts of that call varied, I credit Morales’ testimony
that, when Santana accused Sanders of ceasing his pension
surcharge contributions, he also demanded that Sanders “sign a
– the agreement.” In other words, Santana told Sanders that he
needed to sign an agreement (i.e., not “the” agreement they had
allegedly reached).9 I further credit Morales’ recollection of
Sanders’ response—that he wanted to review the Union’s con-
tract and “would have some questions.” Based on the record as
a whole, I find that, on May 3, Santana and Sanders were not
making arrangements to sign a contract to which they had ver-
bally agreed, but were in fact still at odds on substantive con-
tractual issues, not the least of which was Respondent’s duty to
make certain pension contributions.10
For the reasons set forth above, the allegation that Respond-
ent violated Section 8(a)(5) of the Act by failing and refusing to
execute a complete written agreement reached with the Union
is dismissed.
D. Duty to Bargain Before Ceasing Pension Contributions
The General Counsel argues that, even if no enforceable con-
tract were formed by the parties’ 2015–2016 conduct, Re-
spondent violated Section 8(a)(5) of the Act by unilaterally
ceasing its surcharge contributions to the Fund. As noted, Re-
spondent does not deny that it ceased paying these contribu-
tions without giving the Union notice and the opportunity to
bargain. Instead, Respondent’s defense to this allegation is that
its remittance of those contributions would violate Section 302
of the Labor Management Reporting and Disclosure Act of
1959 (Section 302). As explained below, I reject this defense
and find that Respondent violated the Act as alleged.
1. The applicable law
It is well established that benefit fund contributions are man-
datory subjects of bargaining that generally survive expiration
of the contract. Thus, in the absence of a contrary agreement or
other applicable exception, an employer violates Section
8(a)(5) by failing to continue making such contributions after
the contract expires. Peerless Roofing Co. v. NLRB, 641 F.2d
734, 736 (9th Cir. 1981); Southwestern Steel & Supply, Inc. v.
NLRB, 806 F.2d 1111, 1114 (D.C. Cir. 1986); Concourse Nurs-
ing Home, 328 NLRB 692, 702 (1999); N.D. Peters & Co., 321
NLRB 927, 928 (1996). This is true regardless of the employ-
er’s good faith or motive for doing so. Local 777, Democratic
Union Organizing Committee (Yellow Cab) v. NLRB, 603 F.2d
862, 890 (D.C. Cir. 1978).
Section 302, on which Respondent relies, makes it unlawful
for an employer to pay, lend, or deliver, or agree to pay, lend,

9 This mid-sentence pivot was notable. While I have credited Mo-
rales on numerous occasions throughout this decision, I find that he
attempted on this occasion to refashion his testimony ‘on the fly’ to
render it consistent with the General Counsel’s theory of contract for-
mation.
10 I further rely on the state-of-mind evidence by Respondent wit-
nesses Farley and Capovilla that, during their telephone conversation,
Sanders accused Santana of “threatening” him, as well as the testimony
by Sanders Jr. and Joyce Sanders that Sanders in fact felt threatened by
Santana during the call. I agree with Respondent that such statements
by Sanders reveal the acrimony and lack of agreement between the
parties as of May 3. See Fed. R. Evid. 803(3).
DELTA SANDBLASTING CO. 11
or deliver, any money or other thing of value to any representa-
tive of its employees. Section 302(c)(5)(B) excepts from this
prohibition payments by an employer to a trust fund established
by any representative of his employees for the benefit of the
employees, provided that:
[T]he detailed basis on which such payments are to be made
is specified in a written agreement with the employer and the
employees and employers are equally represented in the ad-
ministration of such fund, together with such neutral persons
as the representatives of the employers and the representative
of the employees may agree upon.
29 U.S.C. § 186(a)-186(c)(5)(B) (emphasis added).
2. Respondent violated 8(a)(5) by unilaterally ceasing its sur-
charge pension contributions
The record evidence establishes that the Expired Contract
both requires Respondent to make contributions to the Fund, as
well as to make appropriate surplus contributions to make up
for any unfunded liability. See (R. Exh. 1, Art. 18.1, 18.4).
Consistent with these obligations, Respondent did, until April
2016, make such contributions. Nor is there any dispute that
Respondent did, at that point, unilaterally cease making all but
its base-rate contributions to the Fund. Respondent, however,
argues that, despite its past practice of making surcharge con-
tributions, it was privileged to unilaterally change this practice
because making such contributions would violate Section 302.
I disagree and find that Respondent’s alleged concern over
Section 302 does not excuse its failure to bargain.
It is true that, while the Board is not charged by the statute
with responsibility for enforcing Section 302, it has found it
appropriate to consider the applicability of that provision as a
possible defense to unfair labor practice allegations, where the
Board’s remedy would place a party in the position of being
required to comply with two conflicting statutory mandates.
BASF Wyandotte Corp., 274 NLRB 978 (1985), enfd. 798 F.2d
849 (5th Cir. 1986). However, where—as here—the alleged
violation is a failure to provide notice and the opportunity to
bargain, no such risk is present. Instead, as the Board has ex-
plained, an employer that believes Section 302 mandates its
cessation of benefit contributions remains
obligated to bargain in good faith with the [u]nion by inform-
ing and discussing with the [u]nion the alleged legal mandates
with which the Respondent felt constrained to comply,
providing an opportunity to bargain over the proposed change
and bargaining to impasse.
Quality House of Graphics, Inc. (Local One-L, Graphic
Comm. Int’l Union), 336 NLRB 497, 498–499 (2001).
Here, it is undisputed that Respondent gave the Union no no-
tice of its intention to discontinue making the surcharge contri-
butions or its view that such contributions were proscribed
under Section 302. Accordingly, I find that, even assuming that
making its full pension contribution would present Respondent
with a form of “exigent circumstance” recognized by the
Board, this would not excuse its failure to provide the Union
with notice and opportunity to bargain over such circumstance.
In order to avoid the predicament discussed by the Board in
BASF Wyandotte, supra, in which compliance with a Board
order results in a violation of Section 302, Respondent will be
given the chance to prove at compliance that resuming its sur-
charge contributions would violate Section 302.
CONCLUSIONS OF LAW
1. By unilaterally failing to make pension contributions for
certain unit employees from March 2016 to the present, Re-
spondent unlawfully refused to bargain in good faith in viola-
tion of Section 8(a)(5) and (1) of the Act.
2. The above unfair labor practice affects commerce within
the meaning of Section 2(a), (6), and (7) of the Act.
3. Respondent did not violate the Act by failing and refusing
to execute and comply with a successor collective-bargaining
agreement that embodied the terms of an agreement between
Respondent and the Union covering certain unit employees.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices in violation of Section 8(a)(5) and (1) of the
Act, I find that it should be ordered to cease and desist there-
from and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having found that Re-
spondent unlawfully ceased making contributions to the Fund
on behalf of unit employees since April 2016, I shall order
Respondent to make whole its unit employees by making all
such delinquent contributions on behalf of eligible unit em-
ployees that have not been made since those dates, including
any additional amounts due the Fund in accordance
with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).11
Further, I shall order Respondent, on request of the Union, to
restore the status quo ante that existed prior to April 2016 by
continuing to make timely contributions to the Fund on behalf
of all eligible unit employees unless and until such time as it
bargains with the Union in good faith to a contrary agreement
or bona fide impasse.
Finally, I shall order Respondent to post a notice to employ-
ees in accordance with J. Picini Flooring, 356 NLRB 11
(2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
Respondent, Delta Sandblasting Company, Inc., its officers,
agents, successors, and assigns, shall

11 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by such fund in lieu of
Respondent’s delinquent contributions during the period of the delin-
quency, Respondent will reimburse the employee, but the amount of
such reimbursement will constitute a setoff to any amount that Re-
spondent otherwise owes the Fund.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
1. Cease and desist from
(a) Failing and refusing to timely make required contribu-
tions to the Pacific Coast Shipyards Pension Fund without bar-
gaining with the Union in good faith to an agreement or bona
fide impasse, on behalf of eligible employees in the following
unit:
All production, repair and maintenance employees employed
by Respondent performing work in connection with the con-
struction, conversion, repair or scrapping of any vessel on the
Pacific Coast, including but not limited to, sandblasting of
dredges, floating dry docks, offshore drilling vessels, barges,
Mobil drilling platforms, platforms and all component parts,
plant equipment, and all auxiliary equipment used in conjunc-
tion therewith and other new work as shall be mutually agreed
to by Respondent and the Union; excluding, all employees
represented by International Association of Machinists &
Aerospace Workers in the bargaining unit defined in Case 20-
RC-1275, all employees represented by Northern California
Carpenters Regional Council and its affiliated Local Union
No. 2236 of the United Brotherhood of Carpenters and Join-
ers of America in the bargaining unit defined in Case 20-RC-
1327, and all employees represented by International Brother-
hood of Electrical Workers in the bargaining unit defined in
Case 20-RC-2157.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make all delinquent pension contributions on behalf of
unit employees that have not been made since April 2016, in-
cluding any additional amounts due the Fund, as set forth in the
remedy section of this decision.
(b) Make unit employees whole for any expenses ensuing
from its failure to make the required pension contributions,
with interest, as set forth in the remedy section of this decision.
(c) Continue making required contributions to the Fund on
behalf of eligible unit employees unless and until it has bar-
gained in good faith to a new agreement or bona fide impasse.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of pension
contributions due under the terms of this Order.
(e) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix” at its facilities in
Petaluma, California, and Alameda, California.13 Copies of the
notice, on forms provided by the Regional Director for Region

13 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.”
20, after being signed by Respondent’s authorized representa-
tive, shall be posted by Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if Respondent cus-
tomarily communicates with its employees by such means.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, Respondent has gone out of business or has closed or
ceased doing business at a facility covered by this order, Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by Respondent at those facilities at any time since April
22, 2015.
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 20 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
It is further ordered that the Complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. September 15, 2017
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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a 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 do anything to prevent you from exercising the
above rights.
WE WILL NOT refuse to bargain in good faith with Auto Ma-
rine & Specialty Painters Union Local 1176, affiliated with
International Union of Painters and Allied Trades, District
Council 16 (the Union) as the exclusive collective-bargaining
representative of our employees in the following appropriate
unit (Unit):
All production, repair and maintenance employees employed
by Respondent performing work in connection with the con-
struction, conversion, repair or scrapping of any vessel on the
DELTA SANDBLASTING CO. 13
Pacific Coast, including but not limited to, sandblasting of
dredges, floating dry docks, offshore drilling vessels, barges,
Mobil drilling platforms, platforms and all component parts,
plant equipment, and all auxiliary equipment used in conjunc-
tion therewith and other new work as shall be mutually agreed
to by Respondent and the Union; excluding, all employees
represented by International Association of Machinists &
Aerospace Workers in the bargaining unit defined in Case 20-
RC-1275, all employees represented by Northern California
Carpenters Regional Council and its affiliated Local Union
No. 2236 of the United Brotherhood of Carpenters and Join-
ers of America in the bargaining unit defined in Case 20-RC-
1327, and all employees represented by International Brother-
hood of Electrical Workers in the bargaining unit defined in
Case 20-RC-2157.
WE WILL NOT make changes to our contributions to the Pacif-
ic Coast Shipyards Pension Fund without giving prior notice to
the Union and affording it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above
WE WILL, if requested by the Union, rescind any or all
changes to your terms and conditions of employment that we
made without bargaining with the Union.
WE WILL make whole the Unit employees and the Pacific
Coast Shipyards Pension Fund for any loss of contributions, or
benefits, and for any expenses incurred in connection with the
failure to make those benefit contributions since April 22, 2016.
DELTA SANDBLASTING CO. INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20-CA-176434 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.