E.S.P. Concrete Pumping

National Labor Relations Board - Board Decisions

Feb 23, 1999

327 N.L.R.B. 711 (N.L.R.B. 1999)

E.S.P. CONCRETE PUMPING 711
E.S.P. Concrete Pumping, Inc. and Local 47, Interna-
tional Union of Bricklayers ad Allied Craftsman,
AFL–CIO. Case 4–CA–20570
February 23, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, HURTGEN, AND BRAME
On August 31, 1993, Administrative Law Judge
Hubert E. Lott issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.
The Respondent has excepted to the judge’s finding
that it violated Section 8(a)(5) and (1) by repudiating its
collective-bargaining agreement with the Union. For the
reasons that follow, we agree with the judge that the Re-
spondent’s conduct violated the Act.
The facts, as found by the judge or undisputed in the
record, follow.
E.S.P. Concrete Pumping Company (the Company)
was a sole proprietorship owned and operated by Edwin
Piatt and engaged in the business of pouring, placing,
and finishing concrete at construction jobsites. In May
1988, Piatt signed a collective-bargaining agreement
with the Keystone Building Constructors Association and
Bricklayers Local Union No. 47 (Bricklayers), which
was effective by its terms from May 1, 1988, to April 30,
1993, and which covered all projects in Schuylkill
County, Pennsylvania. On November 15, 1989, Edwin
Piatt died.
At the time of Piatt’s death, the Company had one con-
tract, for cement work at the Minersville, Pennsylvania
Federal prison, and it was applying the Bricklayers
agreement to that job. The Company continued to per-
form work on the job under the direction of Piatt’s
widow, Lillian Piatt, and sons, Paul and Christopher
Piatt, and to abide by the Bricklayers’ collective-
bargaining agreement. On January 2, 1990, the Piatts
incorporated the Respondent, E.S.P. Concrete Pumping
Company, Inc., a Pennsylvania corporation, with the
same place of business as the Company and engaged in
the same line of work. Lillian Piatt became president
and sons Christopher and Paul became secretary-
treasurer and vice president, respectively. The sole pro-
prietorship ceased to exist on the date the Respondent
was incorporated.
The Respondent continued to perform work on the
Minersville prison contract throughout 1990, and to ap-
ply the Bricklayers’ agreement there. Thus, the Respon-
dent deducted and remitted union dues from employees’
pay, dealt with the Union over work disputes, applied all
contract terms covering wages, hours, and working con-
ditions, and made required payments to the Union’s pen-
sion and health and welfare funds.1
In late 1991, the Respondent was awarded a subcon-
tract to place and finish concrete slabs on a project at the
Frackville, Pennsylvania State Prison, also located in
Schuylkill County. The primary contractor at the Frack-
ville prison jobsite was Morris Kreitz and Sons, a union
general contractor that was signatory to the Bricklayers’
agreement and that also required its subcontractors to be
union contractors. On November 27, 1991, the Morris
Kreitz construction manager, Bruce Merlino, asked Paul
Piatt whether the Respondent was a union contractor and
notified him that application of the union contract was an
absolute prerequisite for the job. Piatt assured Merlino
that the Respondent was a union contractor and that he
would apply the Bricklayers’ contract at the Frackville
site. Based on these assurances, Kreitz awarded a sub-
contract to the Respondent.2 The work order confirming
Piatt’s verbal agreement was signed and stamped “E.S.P.
Concrete Pumping Co. [the name of the predecessor],
Lillian Piatt, President.”
On December 27, 1991, after the Respondent had
commenced work at the state prison jobsite, Paul Piatt
told the Union’s business representative that the “Com-
pany was not going to be union anymore and that no one
is going to stop the Company from going non-union.”
The Respondent did not apply the terms and conditions
of the collective-bargaining agreement to its employees
on the Frackville job.
The complaint alleged, and the judge concluded, that
by repudiating the collective-bargaining agreement in
December 1991, the Respondent violated Section 8(a)(5)
and (1). In so doing, the judge found that the Respon-
dent had adopted the collective-bargaining agreement
previously entered into by Edwin Piatt on behalf of the
Company and applied its terms and reaped its benefits
until it repudiated the agreement.
The Respondent contends that the judge erred in find-
ing that it was bound by an 8(f) agreement in the absence
of a signed commitment to be bound, citing Garman
Construction Co., 287 NLRB 88, 89 fn. 5 (1987), in
which the Board stated, in dicta, that it did not find the
“adoption-by-conduct rule applicable in 8(f) cases.” For
the reasons that follow, we find that the principles of

1 On April 16, 1992, the Respondent acquiesced in penalties im-
posed by a judgment that was entered against it for underpayment of
benefit fund contributions under the Bricklayers’ agreement.
2 According to Kreitz’ construction manager, the union representa-
tives on the job agreed that if all subcontractors were unionized there
would be no work stoppages on the Frackville job. Moreover, Kreitz’
collective-bargaining agreement with the Union contained a union
signatory subcontracting clause applicable to the state prison jobsite.
The judge found that the Respondent would not have received the
Frackville contract if it had not told Merlino that it was a union contrac-
tor and that it would apply the Bricklayers’ agreement.
327 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712
“adoption by conduct” of a collective-bargaining agree-
ment, properly understood, are applicable to agreements
covered by Section 8(f) as well as Section 9(a), and that
once an employer has voluntarily adopted a contract, it is
foreclosed under John Deklewa & Sons3 from repudiat-
ing it during its term. To the extent that the Garman
dicta is to the contrary, that case is overruled.4 Accord-
ingly, we reject the Respondent’s contentions and adopt
the judge’s conclusion that the Respondent unlawfully
repudiated its agreement with the Union.
The fundamental factual question presented is whether
the Respondent voluntarily adopted the 1988–1993
Bricklayers’ collective-bargaining agreement following
the dissolution of the predecessor sole proprietorship in
1990. Prior to the Board’s decision in Deklewa, it was
well settled that a union and employer’s adoption of ei-
ther an 8(f) or 9(a) labor contract “is not dependent on
the reduction to writing of the intention to be bound,” but
instead, “what is required is conduct manifesting an in-
tention to abide by the terms of an agreement.”5 We find
that these principles are entirely consistent with Section
8(f) and, contrary to the Garman dicta, were not up-
rooted in the 8(f) context by the Board’s decision in Dek-
lewa.
The issue in Garman was whether the employer had
violated Section 8(a)(5) and (1) by making unilateral
changes in terms and conditions of employment follow-
ing the expiration of an 8(f) agreement. The employer
had been bound by an agreement that expired in 1978,
and had continued to comply with the terms of an un-
signed successor agreement which expired in the spring
of 1981. The employer had also participated in a confer-

3 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988).
The judge made no findings that the Respondent and the Company
were single employers, alter egos, or that the Respondent was a dis-
guised continuance of the Company, and no party has excepted to his
failure to so find. Accordingly, the Respondent was free to abandon the
contract at the time the single proprietorship was dissolved simply by
failing to adopt it.
4 Member Hurtgen finds it unnecessary to overrule Garman. In that
case, the Board stated the following in the relevant footnote:
The judge found that the Respondent had adopted the Laborers’ and
Carpenters’ master contracts through its actions in following numer-
ous provisions of the master contracts. We do not find this adoption-
by-conduct doctrine to be applicable in 8(f) cases. [Emphasis added.]
Member Hurtgen agrees that “this” adoption-by-conduct doctrine
should not be endorsed. That is, an employer should not be deemed to
have adopted an 8(f) contract simply because that employer follows
“numerous provisions” thereof.
5 NLRB v. Haberman Construction Co., 641 F.2d 351, 355–356 (5th
Cir. 1981) (en banc) (footnotes and citations omitted), enfg. 236 NLRB
79 (1978); accord: Arco Electric v. NLRB, 618 F.2d 698 (10th Cir.
1980) (“whether particular conduct in a given case demonstrates the
existence or adoption of a contract is a question of fact”), enfg. 237
NLRB 708 (1980); Lozano Enterprises v. NLRB, 327 F.2d 814 (9th Cir.
1964) (in deciding whether an employer and a union have agreed upon
a contract the Board is not bound by the technical rules of contract
law); NLRB v. Truck Drivers Local 100, 532 F.2d 569, 571 (6th Cir.
(1976)), cert. denied 429 U.S. 859 (1976) (same).
ence with union representatives to resolve a jurisdictional
dispute and had bargained with the union for a new
agreement after the 1981 expiration date.6
The administrative law judge in Garman found that the
employer had adopted the 1978–1981 collective-
bargaining agreement by this conduct. Under the then-
applicable legal standard, the judge found that the 8(f)
collective-bargaining relationship had matured to 9(a)
status based on evidence of majority status and a stable
work force and that the employer had violated Section
8(a)(5) and (1) by withdrawing recognition, failing to
bargain in good faith, and unilaterally changing terms
and conditions of employment after the 1978–1981
agreement had expired.
The Board reversed the judge’s finding of a violation
in light of the principle announced in Deklewa that, inter
alia, an employer’s bargaining obligation to a union ends
when an 8(f) agreement expires. Finding that the em-
ployer had not entered into any bargaining relationship
after 1978, the Board concluded that under Deklewa the
employer was free to withdraw recognition from the un-
ion and make unilateral changes in 1981 as it had done.
The Board referred, in a footnote, to the judge’s adoption
by conduct finding, and stated, without any explanation,
that “[w]e do not find this adoption-by-conduct doctrine
to be applicable in 8(f) cases.” Garman, supra, 287
NLRB at 89 fn. 5.
Initially, we note that this comment was not necessary
to the disposition of the issue presented in Garman.
Even if the Board had found that the employer there had
adopted the 1978–1981 agreement, that contract had ex-
pired by its terms prior to the employer’s alleged 1981
refusal to bargain and there was no allegation in that case
that the employer had adopted any successor agreement.
Accordingly, the employer was privileged under Dek-
lewa to repudiate its bargaining relationship with the
union when it did, regardless of whether it had been
bound by the expired agreement. Thus, the Board’s
comment concerning the judge’s finding of adoption by
conduct was mere dicta.7
6 Significantly, there was no allegation in Garman that the employer
had failed to comply with the agreement between 1978 and 1981;
rather, the only allegation was that the employer had failed to meet its
obligation to maintain the status quo under Sec. 8(a)(5) and (d) after the
1978–1981 agreement had expired.
7 We recognize that the Ninth Circuit has found that the Garman
dicta was a reasonable construction of Sec. 8(f). See Hawaii Carpen-
ters Trust Funds v. Henry, 906 F.2d 1349, 1355 (9th Cir. 1990). How-
ever, the court’s decision was based on its deference to the Board’s
construction of the Act. For the reasons set forth in this decision, we
find that applying the same principles used to determine whether a
collective-bargaining agreement has been formed in 8(f) and 9(a) cases
better reflects the policies of the Act. We note in this regard, that the
Ninth Circuit has agreed with the Board that adoption of a collective-
bargaining agreement may be established by conduct in 9(a) cases. Bay
Area Typographical Union v. Alameda Newspaper, 900 F.2d 197 (9th
Cir. 1990).
E.S.P. CONCRETE PUMPING 713
Nothing in the text or legislative history of Section 8(f)
requires the Board to depart from its traditional princi-
ples of contract interpretation, including the adoption by
conduct doctrine, in 8(f) cases. Section 8(f) provides, in
pertinent part, that it shall not be an unfair labor practice
for an employer and a union in the construction industry
to “make an agreement” without the union first having
established its majority status pursuant to Section 9 of
the Act. Except for its mandate that such agreements be
voluntary,8 there is no indication that Congress intended
to establish special rules for the “making” of such
agreements. See Scandia Stucco Co., 319 NLRB 850,
855 (1995) (agreement to engage in multiemployer bar-
gaining for an 8(f) contract need not be manifested by a
written agreement).
We further find that applying the adoption by conduct
principles in 8(f) cases effectuates the Congressional
labor policies for the construction industry as embodied
in Section 8(e) and (f).9 As the Supreme Court recog-
nized in Jeff McNeff, Inc. v. Todd, 461 U.S. 260, 271
(1983):

However limited the binding effect of a prehire agree-
ment may be, it strains both logic and equity to argue
that a party to such an agreement can reap its benefits
and then avoid paying the bargained-for consideration.
Nothing in the legislative history of §8(f) indicates
Congress intended employers to obtain free the benefits
of stable labor costs, labor peace, and the use of the un-
ion hiring hall. Having had the music, he must pay the
piper. [Footnote omitted.]

Likewise, recognizing the unique possibility of “jobsite
friction that could exist when union and nonunion workers
were employed on the same construction site,”10 Congress
exempted certain collectively bargained agreements in the
construction industry from the prohibition against so-called
“hot cargo clauses” set forth in Section 8(e). Allowing em-
ployers, like the Respondent, to obtain work at a jobsite
covered by such an agreement by claiming to be a union
signatory employer, and then to avoid their contractual obli-
gations by claiming that no valid agreement exists, would
subvert the intent of Congress in enacting the 8(e) construc-

8 Deklewa, supra, 282 NLRB at 1381. Our finding below that the
Respondent adopted the 1988–1993 agreement is fully consistent with
this principle, however, as the finding is based solely on the Respon-
dent’s voluntary conduct.
9 See Electrical Workers IBEW Local 46 (Puget Sound NECA), 303
NLRB 48, 51 (1991) (provisions of Sec. 8(f) relevant to construction of
Sec. 8(e)).
Sec. 8(e) generally prohibits employers and unions from entering
into agreements: (1) in which the employer agrees to cease doing busi-
ness with any other person; and (2) that have a secondary objective.
The construction industry proviso to Sec. 8(e), however, authorizes
certain types of otherwise unlawful secondary agreements in the con-
struction industry. See generally Carpenters District Council of North-
east Ohio (Alessio Construction), 310 NLRB 1023 (1993).
10 Laborers Local 210 v. AGC, 844 F.2d 69, 76 (2d Cir. 1988) (ex-
plaining construction industry proviso to Sec. 8(e)).
tion industry proviso, as well as Section 8(f), and unneces-
sarily risk jobsite work stoppages and other disruptions of
commerce when the employer’s duplicity is discovered.
Our conclusion that the adoption by conduct principles
are applicable in 8(f) cases is also consistent with the
Board’s decision in Deklewa. In Deklewa, the Board
found that an 8(f) agreement was enforceable during its
term through Section 8(a)(5) and (b)(3), unless the em-
ployees voted to reject or change their bargaining repre-
sentative. The Board concluded that the limited enforce-
ability of 8(f) agreements was a reasonable quid pro quo
for the benefits the employer received from being party
to an 8(f) agreement, “that is imposed only when an em-
ployer voluntarily recognizes the union, enters into a
collective-bargaining agreement, and then set 5 about
enjoying the benefits and assuming the obligations of the
agreement.” 282 NLRB at 1387. In contrast to Garman,
the parties in Deklewa did not dispute that a valid 8(f)
collective-bargaining agreement existed at the time it
was repudiated by the employer. The Board thus had no
occasion to pass on the requirements for establishing that
such an agreement has been “made.” However, the Board
did state in Deklewa that “nothing in this opinion is
meant to suggest that unions have less favored status
with respect to construction industry employers than they
possess with respect to those outside the construction
industry.”11 Our holding today is consistent with this
principle.
In summary, we have decided to reaffirm in the 8(f)
context the Board’s longstanding rule that an employer
and a union may enter into a collective-bargaining
agreement without having reduced to writing their intent
to be bound. Instead, the formation of a contract is
established by conduct demonstrating an intent to be
bound by the terms of the agreement. These principles
are equally applicable to 8(f) and 9(a) agreements.
Indeed, their application in the 8(f) setting is necessary to
promote industrial peace and effectuate the intent of
Congress with respect to the adoption of collective-
bargaining agreements in the construction industry.
Applying the foregoing principles to the facts of this
case, we find that the Respondent adopted the Bricklay-
ers’ agreement by its voluntary conduct. Thus, the Re-
spondent had not only voluntarily completed the Miners-
ville job, applying the collective-bargaining agreement to
the work, but acquiesced in a judgment against it for un-
paid contributions to the Bricklayers’ Pension Fund.12 In
addition, the Respondent deliberately held itself out as a
union contractor in representations made for the purpose
of obtaining a contract from Morris Kreitz for work on
11 282 NLRB at 1387 fn. 53.
12 See Haberman Construction Co., supra, 236 NLRB at 85 (acqui-
escence in penalties imposed for breach of collective-bargaining
agreement an indication of adoption of contract).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 714
the Frackville project in 1991.13 Under these circum-
stances, “it makes little difference whether that conduct
be appraised as expressing the intent of the parties to an
ambiguous contract or as the creation of an estoppel
against repudiation.” Arco Electric Co. v. NLRB, supra,
618 F.2d at 699. As the Supreme Court observed in
McNeff, “Having had the music, [the Respondent] must
pay the piper.” McNeff, supra, 461 U.S. at 271. In the
language of Deklewa, the Respondent “voluntarily rec-
ognize[d] the union, enter[ed] into a collective-
bargaining agreement, and then set[ ] about enjoying the
benefits and assuming the obligations of the agreement.”

282 NLRB at 1387.14 Therefore, we find that the Re-
spondent voluntarily adopted the Bricklayers’ agreement
signed by Edwin Piatt. Respondent thus was bound by
the Bricklayers’ 1988–1993 collective-bargaining agree-
ment at the time of its repudiation of that agreement in
1991, and that its repudiation was, accordingly, unlaw-
ful.15
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.16 We shall order the
Respondent to comply with the terms of its collective-
bargaining agreement with the Union from May 1, 1988,

13 Kreitz’ contract with the Union contained a union signatory
clause, the application of which both parties considered necessary to
avoid work stoppages.
In this regard, the Respondent’s work order confirming its agree-
ment with Kreitz was signed and stamped “E.S.P. Concrete Pumping
Co.,” the name of the predecessor, “Lillian Piatt, President.” Thus, it
is highly unlikely that Kreitz could have inferred from the work order
that it was dealing with a legal entity, E.S.P. Concrete Pumping, Inc.,
that was different from the sole proprietorship.
We recognize that some nonunion employers may elect to maintain
the same wage rates and benefit levels as those prescribed in a collec-
tive-bargaining agreement. Nothing in this decision should be read to
establish that the Board will find that an employer is bound by an 8(f)
agreement merely because it has paid wages and benefits equivalent to
those specified in such an agreement.
14 See also Scandia Stucco Co., supra, 319 NLRB at 856 (employer
bound to multiemployer agreement, where, inter alia, it complied with
major provisions and held itself out as a union contractor, despite fail-
ure to indicate continued membership in multiemployer bargaining
group in writing; its self-serving silence about its limited intentions in
joining the multiemployer bargaining group is not sufficient to put
other contractors with economic stakes in labor costs on notice of its
intentions).
15 We find no merit in the Respondent’s argument that it was incum-
bent upon the Union to approach it with an agreement if it wished to
continue a bargaining relationship. There is no evidence that the Re-
spondent informed the Union that it had dissolved the Company and
started up a new concern that was acting in the Company’s stead.
Further, the Respondent’s voluntary acceptance of the terms of the
collective-bargaining agreement was a substitute for the process of
arriving at terms and conditions of employment for the Respondent’s
unit employees.
16 We have in our new Order and notice modified the judge’s rec-
ommended remedy and notice to include appropriate remedial provi-
sions.
through the expiration of the agreement on April 30,
1993.17 We shall also order the Respondent to make
whole the employees covered by that agreement for any
losses they may have suffered as a result of the Respon-
dent’s failure to comply with the 1988–1993 contract in
the manner prescribed in Ogle Protection Service, 183
NLRB 682 (1970).18 We shall also order the Respondent
to pay to the appropriate health and welfare, pension, and
education funds the contributions required under the
1988–1993 contract and to make whole employees for
any losses suffered as a result of the Respondent’s failure
to make the contributions in the manner set forth in Kraft
Heating & Plumbing, 252 NLRB 891 (1980).19 All
payments to employees shall be made with interest as
computed in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, E.S.P. Concrete Pumping, Inc., Sweet Val-
ley, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Withdrawing recognition during the term of a col-
lective-bargaining agreement from Local 47, Interna-
tional Union of Bricklayers and Allied Craftsmen, AFL–
CIO as the collective-bargaining representative of the
Respondent’s employees covered by the agreement.
17 In Member Hurtgen’s view, an employer who agrees to honor a
contract on a job in order to work on that job is obligated to abide by
that contract for the duration of that job. However, it does not necessar-
ily follow that the employer has agreed to that contract generally, i.e.,
for future jobs. Thus, it may be inappropriate to enter an order requiring
adherence to the contract generally. However, in the instant case, Re-
spondent did more than simply agree to the contract in order to get the
job at Frackville. Respondent also honored the contract at Minersville
and acquiesced to a judgment there. There is no showing that adherence
to the contract at Minersville was a necessary precondition for perform-
ing the Minersville job. In these circumstances, Member Hurtgen
agrees with the remedial order which obligates Respondent to honor the
contract generally.
18 See Wilson & Sons Heating, 302 NLRB 802, 806 (1991), enf. de-
nied on other grounds 971 F.2d 758 (D.C. Cir. 1992).
Contrary to the judge, we shall not require compliance with the “re-
ferral system” as part of the remedy in this case. In this regard, the
complaint alleges only that the Respondent violated Sec. 8(a)(5) by
withdrawing recognition from the Union and by repudiating the 1988–
1993 Bricklayers collective-bargaining agreement during the term of
that agreement. Because that agreement does not contain an express
hiring hall provision, and there is no showing that any practice of using
the Union for referrals that may have existed had become an implied
term of that agreement, there is no basis for requiring the Respondent to
utilize the Union for referrals in order to remedy the unfair labor prac-
tices found herein.
19 Because the provisions of employee benefit fund agreements are
complex and variable, any additional amounts owed with respect to the
employee benefit funds will be determined at the compliance stage in
accordance with the procedure set forth in Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979).
E.S.P. CONCRETE PUMPING 715
(b) Repudiating the May 1, 1988, to April 30, 1993
collective-bargaining agreement between the Respondent
and the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole, with interest, any employees covered
by the collective-bargaining agreement for any losses
they may have suffered as a result of the Respondent’s
failure to comply with the agreement until it expired on
April 30, 1993.
(b) Comply with the provisions of the 1988–1993
agreement, including making the contractually required
contributions to the appropriate health and welfare and
pension funds, and other contributions required to be
paid by the 1988–1993 agreement.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its Sweet Valley, Pennsylvania facility copies of the at-
tached notice marked “Appendix.”20 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by and other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in theses proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 19,
1992.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

20 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.”

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

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

Section 7 of the Act gives employees these rights.

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

WE WILL NOT withdraw recognition during the term
of a collective-bargaining agreement from Local 47, In-
ternational Union of Bricklayers and Allied Craftsmen,
AFL–CIO as the collective-bargaining representative of
our employees covered by the agreement.
WE WILL NOT repudiate our May 1, 1988, to April
30, 1993 collective-bargaining agreement with the Un-
ion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL make whole, with interest, any employees
covered by the collective-bargaining agreement for any
losses they may have suffered as a result of our failure to
comply with the agreement until it expired on April 30,
1993.
WE WILL comply with the provisions of the 1998–
1993 agreement, including making the contractually re-
quired contributions to the appropriate health and welfare
and pension funds, and other contributions required to be
paid by the 1988–1993 agreement.

E.S.P. CONCRETE PUMPING, INC.

Carmen Cialino Jr., Esq., for the General Counsel.
John Rybolt, Esq., for the Respondent.
Stephen Richmond, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was heard in Pottsville, Pennsylvania, on November 16, 1992,
upon unfair labor practice charges filed on March 19, 1992.
Complaint and amendments were issued on May 28 and No-
vember 6, 1992.
Respondent’s answers to the complaint and amendments de-
nied the commission of any unfair labor practices.
The parties were afforded an opportunity to be heard, to call,
to examine and cross-examine witnesses, and to introduce rele-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
vant evidence. Since the close of hearing, briefs have been
received from the parties.
On the entire record, and based on my observation of the
witnesses and in consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Pennsylvania corporation with an office and
place of business located in Sweet Valley, Pennsylvania, where
it is engaged as a contractor in the business of pumping, pour-
ing, placing, and finishing concrete at construction jobsites. The
parties stipulated that during the past year Respondent provided
services in excess of $50,000 to employers who are directly
engaged in interstate commerce.
The Company admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
E.S.P. Concrete Pumping Company was a sole proprietor-
ship owned and operated by Edwin Piatt. This company was
engaged in the same business at the same location as the later-
formed corporation of the same name. In May 1988, Edwin
Piatt signed a collective-bargaining agreement with the Key-
stone Building Constructors Association and Bricklayers, Local
Union No. 47, which was effective from May 1, 1988, to April
30, 1993. The agreement requires employees to become mem-
bers of the Union after the eighth day of employment and pro-
vides for wages, hours, working conditions, and benefits. On
November 15, 1989, Edward Piatt died.
On January 2, 1990, the sole proprietorship ceased to exist
when E.S.P. Concrete Pumping Company, Inc. was formed.
Lillian Piatt, wife, became president and sons Christopher be-
came secretary-treasurer and Paul became vice president.
The terms and conditions of the collective-bargaining
agreement were applied to all relevant E.S.P. employees work-
ing for the sole proprietorship and were continued and applied
to all employees working for the corporation. For example, on
the Federal prison job at Minersville, Pennsylvania, during
1990, employees were referred to the jobsite by the Union.
Union dues were deducted and remitted to the Union along
with all required payments to the Union’s pension and health
and welfare funds. Furthermore, all contract terms covering
wages, hours, and working conditions were met by Respondent
corporation.
However, on December 27, 1991, at the Frackville State
Prison jobsite, Paul Piatt told the Union that the corporation
would no longer recognize the Union. Thereafter, Respondent
did not apply the terms and conditions of the labor agreement to
any of its employees.1
Morris Kreitz and Sons was a contractor on the Frackville
Prison job. Bruce Merlino was the construction manager for
Kreitz who had a labor agreement with the Bricklayers Union,
which required that labor agreements would apply to all sub-
contractors on this job. On November 27, 1991, Paul Piatt told
Merlino that he would apply the union contract on this job

1 The Board affidavit of the Union’s business agent, Ronald Hossler,
who died on July 3, 1992, was admitted into evidence and considered
because it meets all the requirements of Sec. 804(b)(5) of the Federal
Rules of Evidence.
which lasted at least until Merlino left Kreitz on July 31, 1992.
E.S.P. Corporation started work on this job in January 1992.
However, the labor agreement was not applied to E.S.P. em-
ployees on this job or any other job thereafter.
Paul Piatt testified that he applied the labor agreement on the
Minersville job because his father made that commitment when
he was alive. He stated that once his father died, the labor
agreement died with him.
Analysis and Conclusions
All the evidence is undisputed or admitted. It is clear, and I
find that the sole proprietorship entered into a collective-
bargaining agreement with the Union, assuming the obligations
and enjoying the benefits.
It is also clear that since January 2, 1990, the corporation did
the same thing. The corporation adopted the agreement on the
day it was incorporated, applied its terms and reaped its bene-
fits until it repudiated the agreement on December 27, 1991.
Even after its repudiation, Respondent still wanted to enjoy the
benefits without meeting its obligations. It never would have
gotten the Frackville prison job had it not agreed to apply the
labor agreement to its employees. Respondent cannot have it
both ways.
Accordingly, I find that Respondent, by repudiating the labor
agreement with Local 47, which it had adopted, violated Sec-
tion 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local 47, International Union of Bricklayers and Allied
Craftsmen, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All bricklayers, cement masons, plasterers, terrazzo work-
ers and tile setters employed by Respondent, excluding all other
employees, guards, and supervisors, as defined in the Act, con-
stitutes a unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material, Local 47, International Union of
Bricklayers and Allied Craftsmen, AFL–CIO has been the ex-
clusive representative for purposes of collective bargaining of
all Respondent’s employees employed in the unit described
above in paragraph 3.
5. Respondent violated Section 8(a)(1) and (5) of the Act by
repudiating the collective-bargaining agreement on December
27, 1991.
6. The aforesaid unfair labor practices are unfair labor prac-
tices effecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
REMEDY
Having found that Respondent engaged in acts and conduct
violative of Section 8(a)(1) and (5) of the Act, I shall recom-
mend that it be ordered to cease and desist therefrom and to
take certain affirmative actions designed to effectuate the poli-
E.S.P. CONCRETE PUMPING 717
cies of the Act. As a remedy I shall recommend that Respon-
dent recognize the Union and adhere to the collective-
bargaining agreement until its expiration date on April 30,
1993. Respondent will make employees whole for any losses
they have suffered as a result of such repudiation since Decem-
ber 27, 1991. This includes loss of wages and other benefits by
paying into all pension funds, health and welfare funds and any
other funds provided by the labor agreement. The referral sys-
tem should be used in making these determinations since it was
the practice utilized by the parties under the labor agreement.
[Recommended Order omitted from publication.]