Scapino Steel Erectors, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 992 (N.L.R.B. 2002)

992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Scapino Steel Erectors, Inc. and Local Union No. 292,
International Association of Bridge, Structural
and Ornamental Iron Workers, AFL–CIO.
Case 7–CA–43137
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On April 10, 2001, Administrative Law Judge Jerry M.
Hermele issued the attached decision. The Respondent
and the General Counsel each filed exceptions and a
supporting brief, and the Respondent filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified and to adopt the recommended Order as modi­
fied and set forth in full below.1
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to post a bond with
the Union’s trusts and by failing to respond to the Un­
ion’s request for certain information. We agree, for the
reasons stated by the judge. In his exceptions, the Ge n­
eral Counsel contends that the judge erred in failing to
make additional factual findings and conclusions of law
pursuant to Section 102.45 of the Board’s Rules and
Regulations despite the record evidence before him.
Thus, the General Counsel contends that the judge erred
by failing to find that the Respondent violated Section
8(a)(5) and (1) of the Act when it failed and refused to
pay the wage rates set forth in the Union’s collective-
bargaining agreement and by refusing to make the con­
tractually-mandated fringe benefit contributions as al­
leged in the amended consolidated complaint.
For the reasons set forth below, we find merit in the
General Counsel’s exceptions.
I. RELEVANT FACTS
In December 1999,2 the Respondent was erecting a
pre-engineered metal building in Mishawaka, Indiana,
for Jordan Ford/Toyota. On the morning of December
10, Jeffery Bailey, the Union’s business agent, and three
other union members were participating in area standards
picketing at the Mishawaka jobsite. As workers from
1 We shall modify the judge’s recommended Order in accordance
with our decision in Ferguson Electric Co., 335 NLRB 142 (2001).
Further, we shall substitute a new notice in accordance with our recent
decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
2 All dates are in 1999, unless stated otherwise.
other crafts arrived at the jobsite, they refused to cross
the Union’s picket line. To resolve the situation, John
Scapino signed the Union’s contract as well as two fringe
benefit participation agreements. Two union members
commenced working at the Mishawaka jobsite that
morning. The Respondent paid the two workers union
scale wages and also made the appropriate contributions
to the Union’s fringe benefit funds.
The contract states that its term expires May 31, 2002,
and states that it covers all “field erection and construc­
tion work traditionally performed by and coming under
the jurisdiction of the Association.” The contract speci­
fies the nature of that work and the geographic territory
covered by the contract. It also sets forth the wage rates
of the individuals performing work within the Union’s
jurisdictions and the signatory employer’s obligation to
make payments to the fringe benefit trusts.
At trial, the Respondent stipulated that since the Jor­
dan/Toyota job in Mishawaka, throughout 2000, and as
of that day (February 6, 2001), it performed field erec­
tion and construction work within the Union’s work and
territorial jurisdictions as set forth in the contract. Scap­
ino also admitted at trial that the Respondent employed
individuals who performed this work and that with the
exception of the two union members who worked on the
Jordan/Toyota job in Mishawaka, it did not pay those
individuals the wages specified in the contract, nor did it
make the contractually-mandated fringe benefit contribu­
tions.
II. THE JUDGE’S DECISION
Based on the record evidence, the judge concluded that
on December 10, the Respondent signed an enforceable
8(f) contract, which was binding on the parties through
May 31, 2002. See John Deklewa & Sons, 282 NLRB
1375 (1987), enfd. sub nom. Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488
U.S. 889 (1988). The judge rejected the Respondent’s
argument that it was no longer bound by the contract
because the parties had intended that the contract apply
only to the Jordan/Toyota job in Mishawaka. Finding no
evidence of any contrary oral understanding between the
parties with respect to the term of the contract, the judge
stated that even if such evidence existed, under the parol
evidence rule, it could not be credited, because the con-
tract was unambiguous. See Sansla, Inc., 323 NLRB
107, 109 (1997); W. J. Holloway & Son, 307 NLRB 487,
489 (1992).
Having determined that the contract was enforceable,
the judge concluded that the Respondent had refused to
honor it. Specifically, he found that the Respondent did
not post a bond with the Union’s trusts, or respond to the
337 NLRB No. 158
SCAPINO STEEL ERECTORS, INC. 993
Union’s request for certain information, thus violating
Section 8(a)(5) and (1) of the Act.
The judge declined, however, to rule on the complaint
allegation of whether the Respondent violated the Act
when it failed and refused to pay the wage rates and
make the fringe benefit contributions mandated by the
contract and the fringe benefit participation agreements.
Instead, the judge decided that the matter was best left to
a future compliance proceeding, because the agreement
was “ambiguous as to whether the Respondent was re­
quired to pay union scale wages and/or utilize the Un­
ion’s hiring hall.”
III. ANALYSIS
Based on the uncontroverted record evidence, we
agree with the General Counsel that the judge erred by
not concluding that the Respondent violated Section
8(a)(5) and (1) of the Act. First, as the judge correctly
found, the evidence established that the Respondent was
bound by an unambiguous 8(f) contract until May 31,
2002. Next, the Respondent stipulated that after it signed
the contract on December 10, 1999, it continued to per-
form field erection and construction work within the Un­
ion’s work and territorial jurisdictions. Finally, Scapino
admitted that the Respondent employed individuals who
performed such work and that with the exception of the
two union members who had worked on the Jor­
dan/Toyota job in Mishawaka, the Respondent had not
paid any of those individuals the wages specified in the
contract, nor did it make the contractually-mandated
fringe benefit contributions.
Contrary to the judge, we disagree that the contract is
ambiguous as to whether the Respondent is required to
pay union scale wages and to utilize the Union’s hiring
hall. With respect to paying union scale wages, a review
of the contract reveals that a signatory employer, such as
the Respondent, must pay specified wage rates for cer­
tain job classifications, i.e., apprentice, journeyman, and
foreman. The Respondent stipulated that it performed
work covered by the contract and admitted that it failed
to pay those individuals who performed that work the
wages specified in the contract or make the appropriate
fringe benefit contributions. That the Respondent de-
nominated its workers differently than the contract’s job
classifications does not create an ambiguity in this con-
text.
As to whether the Respondent is required to utilize the
Union’s hiring hall, the complaint contains no such alle­
gation. Furthermore, a review of the contract reveals no
specific reference to a hiring hall. Although the contract
contains an “Equal Employment Opportunity Clause”
that provides that the local union shall establish and
maintain open and nondiscriminatory employment refer­
ral lists for the use of members and applicants desiring
employment on work covered by the contract, we see no
ambiguity here. No one testified about a hiring hall or a
referral list and no issue related to compliance with hir­
ing hall or referral list provisions was raised by any of
the parties.
Accordingly, we find that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing and refusing
to pay the wage rates set forth in the Union’s collective-
bargaining agreement and by refusing to make the con­
tractually-mandated fringe benefit contributions.3
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified and orders that the Respondent, Scapino Steel
Erectors, Inc., Edwardsburg, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to pay all unit employees the
wage rates set forth in its collective-bargaining agree­
ment with the International Association of Bridge, Struc­
tural and Ornamental Iron Workers, Local Union No.
292.
(b) Refusing to make pension and other fringe benefit
contributions required by the collective-bargaining
agreement and accompanying fringe benefit participation
agreements on behalf of all unit employees.
3 Advancing an argument not made by the Respondent, our dissent­
ing colleague would find no violation, because the Board should not
decide cases where “the question is merely one of contract interpreta­
tion or enforcement.” It is certainly true that where the dispute is
“solely one of contract interpretation,” the Board “will not attempt to
determine which of two equally plausible contract interpretations is
correct.” Thermo Electron Corp., 287 NLRB 820 (1987), citing NCR
Corp., 271 NLRB 1212 (1984). See also Allied Signal, Inc., 330 NLRB
1201, 1204 (2000) (discussing “sound arguable basis” standard). But
this is not such a case.
Here, the Respondent—relying on parol evidence that, if credited,
would be inconsistent with the collective-bargaining agreement—
argues that the agreement cannot be applied to the jobsites in question.
The jobsite to which the Respondent would limit the agreement’s appli­
cation, in turn, no longer exists. The Board has not hesitated to decide
cases posing closely similar issues. See, e.g., Sommerville Construc­
tion Co., 327 NLRB 514 (1999), enfd. 206 F.3d 752 (7th Cir. 2000). It
is clear that the Respondent had no intention of complying with the
contract, including its core economic obligations, at any of the jobsites
in question. A controversy of this sort is fundamentally different from
a dispute over the meaning of a particular contract provision because it
goes to the heart of the collective-bargaining relationship. See Oak
Cliff-Golman Baking Co., 207 NLRB 1063, 1064 (1973), enfd. 505
F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975) (rejecting
employer’s argument that decision not to adhere to contractual wage
rate was breach of contract, but not unfair labor practice).
Accordingly, we find, contrary to our colleague, that the Respondent
has committed an unfair labor practice within the meaning of Sec.
8(a)(5) of the Act.
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) Refusing to post a bond with the Union’s trusts.
(d) Refusing to provide the Union with the requested
relevant information.
(e) 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 purposes of the Act.
(a) Make whole, with interest, all unit employees for
any losses they may have suffered as a result of the Re­
spondent’s unlawful failure and refusal to pay the wage
rates set forth in the collective-bargaining agreement.
(b) Make all fringe benefit fund contributions, and
make all unit employees whole for any expenses result­
ing from the Respondent’s failure to make the required
pension and other fringe benefit contributions, with in­
terest, as required by the collective-bargaining agreement
and the accompanying fringe benefit participation agree­
ments.
(c) Post a bond with the Union’s trusts.
(d) Provide the Union with the information requested
on July 27, 2000.
(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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Post at its facility in Edwardsburg, Michigan, cop­
ies of the attached notice marked “Appendix.”4 Copies
of the notice on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon­
dent and maintained for 60 consecutive days in con­
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no­
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business,
been purchased or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current and
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
former employees employed by Respondent since Janu­
ary 2000.
(g) File with the Regional Director a sworn certifica­
tion of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
MEMBER COWEN, dissenting.
Unlike my colleagues, I would not find that the Re­
spondent violated Section 8(a)(5) of the Act by failing to
adhere to certain provisions of its Section 8(f) contract
with the Union.
The judge stated that the only issue in this case is
whether the parties’ agreement is enforceable and, if so,
what remedial action is warranted for the Respondent’s
refusal to honor its terms. Thus, the issue in this case is
merely a question of contract interpretation and enforce­
ment. In my view, the Board should not be involved in
such questions, and the parties should be left to resolve
their dispute through traditional contract enforcement
mechanisms. See United Telephone Co. of the West, 112
NLRB 779, 782 (1955) (“The Board is not the proper
forum for parties seeking to remedy an alleged breach of
contract or to obtain specific enforcement of its terms.”).
The judge, however, did not dismiss the complaint, but
proceeded to interpret the scope of the parties’ agree­
ment, find that the Respondent breached certain aspects
of the agreement, and conclude that the Respondent
thereby violated Section 8(a)(5) and (1) of the Act. My
colleagues compound this error not only by adopting the
violations found by the judge, but also by finding that the
Respondent breached other aspects of the contract and
thereby further violated Section 8(a)(5) and (1) of the
Act.
I do not suggest that the Board never has a role in re-
viewing the validity, scope, or enforceability of a collec­
tive-bargaining agreement. If a contract dispute presents
an issue of statutory interpretation or an issue within the
Board’s primary jurisdiction, the Board has a duty to
express itself on those issues. However, where no such
issue is present, and the question is merely one of con-
tract interpretation or enforcement, the Board should not
insert itself into such disputes.
Congress did not intend for the Board to become em-
broiled in contractual disputes of the sort before us today.
As the framers of the Taft-Hartley Act stated, and the
Board has long recognized,1 “[o]nce parties have made a
collective-bargaining contract, the enforcement of that
contract should be left to the usual process of the law and
1 See, e.g., United Packinghouse Workers of America, 89 NLRB
310, 317, fn. 10 (1950); United Telephone Co. of the West, supra.
SCAPINO STEEL ERECTORS, INC. 995
not to the National Labor Relations Board.”2 Simply put,
mere breaches of contract are not unfair labor practices.
Nothing about the instant case justifies my colleagues’
deviation from this longstanding principle. The only
dispute here was whether the parties’ 8(f) contract ap­
plied beyond the Jordan/Toyota jobsite, and therefore,
whether the Respondent was bound to the contract with
respect to other jobsites. Having interpreted the contract
and finding that the Respondent was bound to the agree­
ment beyond the single site, my colleagues find unlawful
under the Act the Respondent’s failure to abide by the
contractually mandated terms. I disagree. I would sim­
ply find these alleged failures to amount to mere
breaches of contract, enforceable through traditional con-
tract enforcement mechanisms.3
In sum, absent other issues not present in this case, the
question of whether the parties intended their agreement
to be project-specific is not the type of question that
would justify the Board’s interjecting itself into this dis­
pute. Thus, I would dismiss the complaint, and leave the
parties to resolve their dispute through traditional con-
tract enforcement mechanisms.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Go vernment

The National Labor Relations Board has found that we vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
2 H.R. Cong. Rep. No. 510, 80th Congress, 1st Sess. 42, I Leg. Hist.
LMRA 546 (1947). See also NLRB v. Strong, 393 U.S. 357, 360
(1969): “[T]he Board has no plenary authority to administer and en-
force collective-bargaining contracts. Those agreements are normally
enforced as agreed upon by the parties, usually through grievance and
arbitration procedures, and ultimately by the courts.”
I recognize that the Board “may proscribe conduct which is also a
breach of contract remediable as such by arbitration and in the courts.”
Id. at 359. See also NLRB v. C&C Plywood Corp., 385 U.S. 421, 428
(1967). I simply do not view the instant case as involving the types of
breaches that require the Board to exercise its jurisdiction over unfair
labor practices instead of requiring the parties to grieve/arbitrate the
matter or litigate it in court. See, e.g., Sec. 301 of the LMRA.
3 It is notable that neither the judge nor my colleagues find that the
Respondent has repudiated its contract or its bargaining relationship
with the Union. Moreover, the record simply does not reflect that the
Respondent intended to repudiate its contract with the Union. Thus,
this case does not present the question of whether a respondent violates
the Act by repudiating a Sec. 8(f) agreement during its term, and I
express no view regarding that issue. Compare John Deklewa & Sons,
282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB,
843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988), with
Industrial Turn Around Corp. v. NLRB, 115 F.3d 248 (4th Cir. 1997).
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 fail or refuse to pay all unit employees
the wage rates set forth in the collective-bargaining
agreement.
WE WILL NOT refuse to make pension and other fringe
benefit contributions required by the collective-
bargaining agreement and accompanying fringe benefit
participation agreements on behalf of all unit employees.
WE WILL NOT refuse to post a bond with the Union’s
trusts.
WE WILL NOT refuse to provide the Union with the re-
quested relevant information.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exe rcise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole, with interest, all unit employees
for any losses they may have suffered as a result of our
unlawful failure and refusal to pay the wage rates set
forth in the collective-bargaining agreement.
WE WILL make all fringe benefit contributions required
by the collective-bargaining agreement and the accom­
panying participation agreements.
WE WILL post a bond with the Union’s trusts.
WE WILL provide the Union with the information it re-
quested on July 27, 2000.
SCAPINO STEEL ERECTORS, INC.
Steven E. Carlson, Esq., for the Acting General Counsel.
Charles S. Leone, Esq. (Botkin & Leone), South Bend, Indiana,
for the Respondent.
DECISION1
I. STATEMENT OF THE CASE
JERRY M . HERMELE, U.S. Administrative Law Judge. On
December 10, 1999, the Respondent, Scapino Steel Erectors,
Inc., signed a collective-bargaining agreement pursuant to Sec­
tion 8(f) of the National Labor Relations Act with the Union,
Local Union No. 292, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL–CIO. But in
complaints dated August 28 and October 6, 2000, the Acting
General Counsel alleges that the Respondent violated Section
8(a)(1) and (5) of the Act by failing, since January 2000, to
1 Upon any publication of this Decision by the National Labor Rela­
tions Board, unauthorized changes may have been made by the Board’s
Executive Secretary to the original Decision of the Presiding Judge.
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
honor this agreement. In answers of September 11 and October
23, 2000, however, the Respondent denied this allegation.
This case was tried on February 6, 2001, in Niles, Michigan,
during which the Acting General Counsel and the Respondent
called four witnesses each. Both parties then filed briefs on
March 12, 2001.
II. FINDINGS OF FACT
The Respondent, based in Edwardsburg, Michigan, erects
prebuilt metal structures for residential, industrial, and com­
mercial customers. Annually, the Respondent earns over
$1,000,000, of which over $50,000 comes from customers out-
side of Michigan. The Respondent’s President, John Scapino,
founded his nonunionized company in 1979 (GC Exhs. 1(h),
(j); Tr. 58, 66–68). The Company has approximately 10 work­
ers, consisting of laborers and foremen, and performs work
within the jurisdiction of the Union in north central Indiana,
and Cass and Berrien Counties in southwest Michigan (Tr. 21,
67, 72–73).
In the spring of 1999, Jeffery Bailey, the Union’s business
agent, met with Scapino to ask whether the Respondent would
be interested in recognizing the Union. Scapino said he would
think about it (Tr. 18–20). Then in late 1999, Bailey heard that
the Respondent was performing work at a jobsite in Misha­
waka, Indiana. So on December 10, 1999, Bailey set up a
picket line, with the signs thereon saying that the Respondent
did not pay union wages. Most of the other workers did not
cross the picket line that morning, but Todd North, the Respon­
dent’s foreman, did. The contractor on the jobsite called Scap­
ino and told him about the picket line. Scapino then called
North and then Bailey. Scapino and Bailey agreed to meet at
the jobsite (Tr. 20–23, 73–75, 106–107).
Upon arriving at the jobsite, Scapino asked how this problem
could be solved. Bailey responded that Scapino should sign an
agreement between the Union and the Michiana Builders Asso­
ciation, Inc., South Bend, Indiana. The agreement ran from
June 1, 1999 to May 31, 2002. Bailey also wanted him to sign
a “Participation Agreement” regarding the Union’s benefit,
pension, and annuity trust. Bailey said that if Scapino signed,
the Union would provide manpower for the Respondent at the
jobsite. Scapino testified that he needed more men on the job-
site to complete work sooner, having only North and one other
worker there. Scapino did not read the written agreements that
Bailey showed him and Bailey said they were self-explanatory.
Scapino then signed both, thinking that “I was doing them a
favor by putting their unemployed people to work. . . .” But
Scapino also signed because of the effective shutdown of the
jobsite by the picketers. Scapino only signed his name to the
main agreement but he signed the trust agreement on behalf of
his Company, as President. The meeting with Bailey took
about 15 minutes (GC Exhs. 2–3; Tr. 23–29, 31, 75–76, 81, 89–
90, 97).
Work then resumed on the jobsite. The Union provided two
men for Scapino, the first of whom left after one day. Although
he understood that he could call Bailey if he needed more help,
Scapino never called the Union for a replacement because “the
picket line was gone. The problem was over.” The second
union worker stayed on through the end of the job, which was
about 5 days later (Tr. 78–80, 98). Scapino paid both union
workers union-scale wages and made $243 in pension contribu­
tions for both men for their brief tenure (GC Exh. 5; Tr. 59, 82).
On January 27, 2000, the Union’s trust fund (Iron Workers
District Council of Southern Ohio & Vicinity Benefit
Trust/Pension Trust/Annuity Trust) wrote Scapino requesting a
bond or a letter of intent to pay weekly contributions for one
year, which is standard practice for a new employer to provide.
Scapino called the trust fund’s administrative worker, Helen
Clark, on February 21 and told her he would obtain a bond.
Scapino then called his insurance agent to obtain a surety bond
but Clark never received it (GC Exh. 6; Tr. 41–46, 87). In
March and April 2000, Scapino met twice with Bailey and
other union officials about signing up his employees with the
Union (Tr. 79, 114–115). Then on July 27, the Union’s lawyer
sent Scapino a letter requesting:
A list of all jobs you have performed since the date you
signed the Contract to the present date;
A listing including names, addresses, and telephone numbers
of all individuals performing bargaining unit work under the
Contract from the date you signed the Contract to the current
date; and
A listing of all hours worked by all bargaining unit employees
performing work covered under the Contract from the date
you signed the Contract until the current date.
This information was requested “so that the Union can deter-
mine whether there has been compliance by you with the Con-
tract.” Scapino did not respond (GC Exh. 7; Tr. 43–56). In-
deed, other than the two Union workers he used at the Misha­
waka jobsite in December 1999, Scapino did not follow the
agreements he signed (Tr. 60). He did file a petition with the
Regional Director for Region 7 seeking a representation elec­
tion among his employees, but the Union filed a charge on June
13, 2000 claiming that the Respondent had refused to honor the
two agreements signed on December 10, 1999 (GC Exh. 1(a);
Tr. 86).
III. ANALYSIS
Section 8(f) of the Act allows a union representing employ­
ees in the building and construction industries to enter into a
collective-bargaining agreement with an employer without first
having attained the majority support of the employer’s employ­
ees. Laborers Local 1184, 296 NLRB 1325, 1328 (1989). The
Respondent signed such an agreement with the Union in the
instant case on December 10, 1999. The only issue is whether
the agreement is enforceable and, if so, what remedial action is
warranted for the Respondent’s refusal to cooperate with the
Union after the date of signing.
The Respondent’s primary defense to enforceability is the
claim that Scapino only intended to apply the agreement to the
Mishawaka job. To argue this, however, parole evidence of an
oral agreement, which would vary the terms of the written
agreement, would have to be credited. But such evidence out-
side the four corners of an existing written agreement is consid­
ered only when there is “sufficient ambiguity” regarding the
terms of the written agreement. See Sansla, Inc., 323 NLRB
SCAPINO STEEL ERECTORS, INC. 997
107, 109 (1997); RPM Products, 217 NLRB 855 (1975). Here,
though, there is nothing ambiguous in the agreement Scapino
signed. Moreover, Jeffery Bailey, the Union’s business agent
who proffered the agreement to Scapino on December 10,
1999, did not testify as to any such narrow understanding re­
garding the scope of the agreement. And Scapino’s own testi­
mony belies the claim that he signed the agreement in order to
avail his Company of the Union’s additional manpower for the
Mishawaka jobsite only. Indeed, Scapino admitted that even
though he was shorthanded on the Mishawaka jobsite, he did
not ask Bailey for additional men after one of the two union
workers left after working just one day because “the picket line
was gone. The problem was over.” Accordingly, the written
agreement speaks for itself in this case and it is binding on the
parties, through May 31, 2002, and not subject to unilateral
repudiation by the Respondent. John Deklewa & Sons, 282
NLRB 1375, 1395 (1987). Compare Operating Engineers
Local 3 (Joy Engineering), 313 NLRB 25 (1993) (extrinsic
evidence allowed to determine actual identity of parties to
agreement).
But the Respondent did not honor the agreement. Specifi­
cally, it did not post a bond with the Union’s trust fund, or re­
spond to the Union’s July 27, 2000 information request, thus
violating Section 8(a)(1) and (5) of the Act. W. J. Holloway &
Son, 307 NLRB 487 (1992). Therefore, it will be required to
do both of these things. The General Counsel also alleges that
the Respondent failed to pay union scale wages to its employ­
ees and make the appropriate fund contributions, both as re­
quired by the 8(f) agreement. But the Respondent counters that
its workers are merely supervisors or laborers, not apprentices
or journeymen as set forth in the written agreement, and thus
are not covered by its provisions. This is a matter, however,
best left to any future compliance proceeding, inasmuch as the
agreement is also, in the Presiding Judge’s view, ambiguous as
to whether the Respondent is required to pay union scale wages
and/or utilize the Union’s hiring hall. Compare Sommerville
Construction Co., 327 NLRB 514 (1999) (“[t]he parties do
hereby adopt the latest Agreement . . . and agree to be bound by
all of the terms and conditions thereof. . . .”); Sansla, Inc., 323
NLRB 107, 109 (1997) (“[t]he employer recognizes the union
as the sole collective-bargaining agent for its employees con­
cerning wages, hours and all other terms and conditions of em­
ployment in respect to the classification of work referred to in
this Agreement.”).
IV. CONCLUSIONS OF LAW
The Respondent, Scapino Steel Erectors, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
The Union, Local Union No. 292, International Association
of Bridge, Structural and Ornamental Iron Workers, AFL–CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
The Respondent violated Section 8(a)(1) and (5) of the Act
since January 2000 by failing to post a bond as required by the
Section 8(f) agreements signed on December 10, 1999, as al­
leged in paragraphs 10 and 13 of the Acting General Counsel’s
amended complaint.
The Respondent violated Section 8(a)(1) and (5) of the Act
by failing, since August 11, 2000, to provide the information
requested by the Union, as alleged in paragraphs 12 and 13 of
the amended complaint.
The unfair labor practices of the Respondent, described in
paragraphs 3 and 4, above, affect commerce within the meaning
of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]