Snellco Construction, Inc

National Labor Relations Board - Board Decisions

Jan 12, 1989

292 N.L.R.B. 320 (N.L.R.B. 1989)

320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Snellco Construction , Inc and Drywall Tapers and
Pointers of Greater New York, Local 1974, a/w
International Brotherhood of Painters and
Allied Trades, AFL-CIO Case 2-CA-22596
January 12, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On August 24, 1988, Administrative Law Judge
Robert T Snyder issued the attached decision The
General Counsel filed exceptions and a supporting
brief and the Respondent filed an answering brief
The National Labor Relations Board has delegat-
ed 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 and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
' The General Counsel has excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
tive 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 re
versing the findings
Alice Joyce Garfield Esq for the General Counsel
Jerrold Goldberg Esq (Epstein Becker & Green P C) of
New York , New York for the Respondent
Burton Hall Esq (Hall & Simon) of New York New
York for the Charging Party
DECISION
STATEMENT OF THE CASE
ROBERT T SNYDER Administrative Law Judge This
case was heard by me on April 28 1988 at New York,
New York The complaint which issued in February 4,
1988 alleges that Snellco Construction Inc (Snellco or
Respondent) refused to bargain in violation of Section
8(a)(1) and (5) of the Act by failing and refusing to exe
cute a collective bargaining agreement to which it had
previously agreed with the Drywall Tapers and Pointers
of Greater New York Local 1974 a/w International
Brotherhood of Painters and Allied Trades AFL-CIO
(Union or Local 1974) thereby repudiating the agree
ment and withdrawing recognition from the Union as the
exclusive collective bargaining representative of its em
ployees in an appropriate unit Respondent filed an
answer denying that it had ever agreed to recognize the
Union or to execute an agreement that it had previously
proposed and accordingly denied the conclusionary al
legations that it had violated the Act The parties were
each represented by counsel at the hearing and were pro
vided full opportunity to introduce relevant evidence to
examine and cross examine witnesses to make opening
and closing statements and to file briefs with me The
General Counsel and Respondent have filed briefs that
have been carefully considered
On my observation of the witnesses the entire record
in this proceeding, and the briefs filed, I make the fol
lowing
FINDINGS OF FACT
I JURISDICTIONAL FACTS
At all times material Respondent, a New York corpo
ration, with an office and place of business located at 585
Washington Street New York New York has been en
gaged as a general contractor and drywall and ceiling
subcontractor in the building and construction industry
Annually, Respondent in the course and conduct of its
business operation purchases and receives at its place of
business and its various New York State jobsites goods
and materials valued in excess of $50,000 from firms lo
cated within New York State which firms purchase the
goods and materials directly from firms located outside
New York State Respondent admits and I find that at
all times material it has been an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent concedes , and I find that at all times ma
terial the Union has been a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
In essence it is the General Counsels theory that the
Respondent reneged on an agreement to recognize the
Union and execute a collective bargaining agreement
made outside the 10(b) period but reaffirmed within it
The Respondent denies making any such agreement
B The Evidence
The Respondent has been in existence for 10 years as a
general contractor, performing its own carpentry and
drywall construction work both as general and subcon
tractor but normally subcontracting all other work when
performing as a general contractor The construction
work it performs is normally rehabilitation work on ex
isting structures At the time of the hearing it employed
11 employees Matthew Snell who formed the company
is its president and is in overall charge of its day to day
construction operations in the field and at jobsites He is
assisted among others by a carpentry foreman Since its
formation Barbara Thompson has also been secretary
treasurer of the Respondent as well as its office manager
in charge of billing paying bills reviewing incoming
mail answering telephones preparing payroll and sign
292 NLRB No 48
SNELLCO CONSTRUCTION 321
ing the paychecks There is evidence that she also re
sponds to requests for materials and supplies made by
employees at jobsites by arranging to have the materials
forwarded to the jobsites
In February 1986 Respondent succeeded another firm
as subcontractor for the carpentry and drywall work on
a construction project already underway at the New
York City Technical College in downtown Brooklyn
(the jobsite), on which Thomason Industries was em
ployed as the general contractor The project was fi
nanced by the Dormitory Authority of the State of New
York and therefore subject to section 220 of the New
York State Labor Law as Public Work requiring wages
paid to workmen to be not less than the prevailing rate
and the supplements (health, welfare, nonoccupational
disability, retirement, vacation benefits holiday pay, and
life insurance) to be provided to workmen in accordance
with the prevailing practices in the locality
The prevailing rate of wages is defined by the law as
the rate paid in the locality, as defined by virtue of col
lective bargaining agreements between bona fide labor
organizations and employers of the private sector pro
vided the employers employed at least 30 percent of the
workers in the same trade in the locality The rate shall
be annually determined no later than 30 days prior to
July 1 of each year The prevailing practices in the local
ity regarding payment of supplements also is defined as
the practice of providing supplements as provided by
collective bargaining agreements covering at least 30
percent of the workers in the trade in the locality
In February 1986 for the first time Respondent en
tered its only collective bargaining relationship since its
inception, with the District Council of Carpenters
Snellco began work at the jobsite the same month with
its own carpenters
Joseph Giordano had been business representative of
the Union since 1972 and its financial secretary since
1970 Toward the end of March or beginning of April
1987 Giordano learned that construction work was
being performed at New York City Technical College
He had seen a dumpster outside the fence at the jobsite
and had reviewed Dodge Reports, which list construc
tion jobs let out for bid or authorized in the New York
City metropolitan area On April 3, 1987 Giordano vis
ited the jobsite and noticed one taper working In an en
suing conversation Giordano learned that the workman s
name was Paul Frederique that he was employed by
Snellco and was the only one on the job Frederique ex
pressed an interest in having Local 1974 represent him in
collective bargaining Frederique said he was earning
$18 60 per hour Giordano told him union contract
wages were $19 75 an hour Giordano said he would call
Snellco and ask for them to sign an agreement with the
Union If Snellco refused he would place Frederique on
another job paying union wages
Later the same day Giordano telephoned Snellco As
explained by Giordano a woman answered he identified
himself as the business agent from the Drywall Tapers
Local and said he would like to speak to one of the prin
cipals of the Company pertaining to the job on Jay
Street and Tillary New York Technical Another
woman got on the line and identified herself as Barbara
Thompson Giordano told her he was calling her because
a taper on the job wants to be represented by their local
and they did not have a collective bargaining agreement
with Snellco and he was asking if she would be interest
ed in signing a trade agreement with their local Accord
ing to Giordano, she agreed she said yes, I would
She also said that on their job she had already signed
with the carpenters local and she had signed with the
laborers local and she knows that she had to sign with
the locals she had to do work with
Giordano told her he would mail out a contract pack
age that contained the trade agreement the stamp
orders, payroll reports bond form principals of the
Company Thompson responded she would certainly
look at it, sign it and mail it back to them He told her
about the wages and that everything was in the contract
She said the taper would be on the job for a short period
of time because the current work was being completed
and more taping would have to await the completion of
further sheetrock installation In the interim the job
would be closed down for a week or so and the taper
would then return Giordano also informed Thompson
that if she needed more manpower the local would
supply it Thompson said they are a very small outfit
They only have one or two men and if they need other
bodies would it be all right for them to hire Giordano
said as long as the man was qualified and was getting the
wages that would be fine with them
On the following workday, Monday April 6 1987
Giordano had his office secretary prepare a typed speed
message and mail to Thompson a series of documents
comprising a contract package The message read En
closed is a contract package which you requested The
booklet and the Interim Agreement is the Trade Agree
ment Please read & sign the agreement as soon as possi
ble and return to me Any further questions please call
Thank you (signed) Joe Giordano The message listed
the Local s address but not its telephone number Gior
dano testified he had his secretary enclose a trade agree
ment interim agreement , stamp order, form payroll
report an application for trade agreement including
space to list the form of business names and data about
the principals and agreement to be bound by the Union s
rules regulations bylaws and trade agreement, standard
bond form with acknowledgement calling for the depos
it of a proper bond or its cash equivalent with the Joint
Industry Board as security for the faithful performance
of the terms of the agreement, and a form to be complet
ed detailing information about the Company
The Respondent stipulated to its receipt of the agree
ments stamp order, and payroll report but not the re
maining documents Giordano could not specifically
recall sending each document comprising the usual pack
age in this case, particularly since he did not personally
insert them in the mailing envelope He agreed it was
possible some documents were omitted
In any event Respondent did receive the documents
comprising the collective bargaining agreement and the
forms necessary to evidence proper employer contribu
tions to the benefit funds and receipt of the appropriate
benefits by its employees covered by the agreement
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The trade agreement is a booklet containing the col
lective bargaining agreement between Local 1974 and
the Metropolitan New York Dry Wall Contractors Asso
ciation, Inc, a multiemployer association representing
dry wall contractors in the New York metropolitan area
and also containing a form agreement between the Local
and independent employer adopting its terms The agree
ment ran from August 1, 1983, to July 31, 1986 The in
terim agreement , a one page document extended the ex
pired agreement pending establishment of a new trade
agreement to run until July 31, 1989, with amendment to
the wage section providing for a rate of $19 17 per hour
from August 1, 1986, to January 3, 1987, $19 75 from
February 1 to July 31 1987, $20 34 from August 1, 1987
to January 31, 1988, and succeeding increases for each
successive 6 month period to the agreement s expiration
The payroll reports were to be used to forward the em
ployer s contributions to the Taper s industry insurance
fund, calculated on the basis of gross earnings for actual
hours worked for each covered employee A separate
stamp order permitted the employer to prepay contribu
tions and thereby purchase fringe benefit stamps for issu
ance to its employees along with weekly pay, to notify
them that the contributions have been made and they are
eligible to receive the benefits
Giordano next met Frederique on May 15, 1987, in his
office where the employee executed a combined applica
tion for membership in the Union, collective bargaining
authorization, and political contribution and dues check
off authorizations and made a down payment of $200 on
the union initiation fee of $977 45 At this time Frederi
que told Giordano he was still getting the same $18 60
per hour Giordano said he would call up Barbara
Thompson to straighten out the matter and if Frederique
did not receive the $19 75 increase to call him back in a
week
A day later on May 16, 1987, Giordano telephoned
Thompson He told her Frederique had not received the
$19 75 and she said she would take care of that matter
He also said that as of this time, looking through the
office records he noticed that the contract package was
not signed and we did not have it She responded that
the contract package was on her desk and that she
would get to it sign it and also make the corrections in
Paul Frederique's wages By the next pay period, for the
week ending May 22, 1987, Frederique s rate of pay had
increased to $19 75 per hour
During the first week in June, Frederique telephoned
Giordano to tell him that there was another taper on the
job and this man also wanted the Union to represent
him Giordano told Frederique to have the taper work a
week or two and then come to the Union to sign the
forms Frederique also told Giordano he was not receiv
mg the fringe benefit stamps Following this conversa
tion Giordano sent another speed message to Thompson
at Snellco It is dated June 11, 1987, and contained the
following message On April 6, 1987 we sent you a con
tract package which you requested This contract was to
be signed and returned to me Without this signed con
tract the men on your payroll cannot receive their bene
fits Please call me concerning this matter Telephone #
(212) 242-8500 Thank you [signed] Joseph Giordano
Giordano directed his secretary to prepare and mail the
message and saw her stamp it, place it with other outgo
ing mail, and leave the office with it and the other mail
at the end of the day Respondent denied ever receiving
it
A few days later Giordano learned from the union
office receptionist, Kathy Voekl that Thompson had
called and left a message for him that she had called and
was going to sign the agreement and mail it out This
hearsay testimony was not offered for its truth but to ex
plain Giordano s subsequent course of conduct and was
received on that basis
On July 6 the second taper employee, Abner Fred
eric, I Paul Frederique s nephew, came to the Local s
office, signed the Union s application for membership
and multiple authorizations, and paid $100 toward his ini
tiation fee
In early August Frederic called Giordano to report
that he had not received the increased rate of $20 34,
which was effective under the Union s association con
tract as of August 1 Giordano said he would call Bar
bara Thompson and have the matter taken care of and if
Frederic did not receive the increase in a week or so call
and Giordano would get it done Giordano then called
Thompson on August 6 He told her as of August 1 the
contract rate went up She said she was not aware of it
Giordano said Frederic did not receive his money
Thompson replied she would take care of that immedi
ately Giordano also said he had not received the signed
trade agreement She apologized explaining that she ran
the office all by herself and the different construction
jobs placed heavy demands on her, and the carpenters
are also a little angry at her for being late with payments
to the funds Thompson added she would get to it as
soon as possible and mail it out When Giordano also ex
plained that the insurance coverage of the men also
hangs on Snellco making the payments and she has to
make them, she agreed to do that signing the agreement
and mailing everything out For the week ending August
11 Frederic started receiving his wage at the $20 34 rate
Thereafter according to Giordano into December
1987 he made three or four more calls to Thompson on
or about October 20 November 15, the end of Novem
her and/or in December During the first two he kept
telling her that Snellco had not made the insurance con
tributions and the insurance is issued at the end of De
cember if the men have the working hours and the con
tributions are paid Thompson said she would get to it
In one of these calls Giordano said in response to her
promise, please do so because your going to leave me
an alternative I do not want to take and that is to get the
contract signed and the benefits paid Giordano ex
plained that on each of these calls Thompson was agree
able that she would do it she was sorry that she did not
get to it but she was busy she would get it out and she
was sorry
As of December 7, 1987 Giordano still had not re
ceived contributions or the signed agreement On that
day he went down to the jobsite and told the two tapers
' Also known as Fred Abner
SNELLCO CONSTRUCTION
that Snellco had not signed the agreement or paid the
contributions and the Local could no longer have the
manpower working for a contractor that refuses to pay
the benefits to the men The two men were removed
from the job and Giordano informed the Thompson In
dustries superintendent The superintendent said he
would call the office to inform them of the problem The
following day, December 18, Giordano returned to the
jobsite to make sure the tapers had not returned to work
He also visited the superintendents office and learned
that Snell was at the site Giordano saw Snell on the
sidewalk walking with the carpenter foreman He
stopped Snell , introduced himself as business agent of the
Drywall Tapers Local, and told him about the problem
on the job Snell said he would pay from today on, but
he would not pay the back contributions Giordano told
him that was unacceptable to the local union Snell re
sponded , I do not have to sign a contract with you, you
do what you want to do Giordano then went back to
the construction superintendent told him Snell was not
in agreement , we cannot work anything out and I am
keeping my manpower off the job
On December 22 Giordano returned to the site and
explained his problem to a few of the agents for other
crafts, that he would not want any tapers on the job and
if any came on the job he would take action The job
superintendent asked if he could call Snellco to settle the
matter before Giordano did anything and Giordano
agreed
On December 24 Giordano returned to the jobsite and
saw two tapers working He identified himself and his
union affiliation learned one taper was named Paul who
claimed a union affiliation but would not show identifica
tion and the other who, Giordano believed was named
Wallace was an ex local 1974 member and both were
working for Snellco Giordano could not locate the su
perintendent To date he has not received the signed
agreement nor has Snellco made any contributions to the
union funds
Under cross examination Giordano noted that in his
initial conversation with Thompson he had also told her
if she had any questions about the agreement to call him
He also acknowledged that his dealings with Snellco was
the first occasion in his experience that an independent
employer had refused to sign the standard association
wide agreement He had thus never collectively bar
gained or negotiated with an independent employer In
the past independent employers invariably have signed
the association agreement without objection In this case
Giordano insisted that without having first asked
Thompson to sign she had volunteered that she would
sign the agreement-an agreement that to his knowledge
she had never seen Significantly however , under the
Union s usual practice an employer need not express
agreement but only an interest in entering one in order
for it to receive the standard forms This practice was
explained by Giordano in the following exchange with
Respondent counsel (Tr 24)
323
Mr Giordano, looking at 3A through H the
booklet and these forms Are these the standard
forms you send to employees you re attempting to
organize in the city-standard form that you would
send to each one of those?
A Only after we have an agreement We don t
send out unless we have an agreement Tentative
agreement
Q Sorry?
A The conversation that the contractors inter
ested in signing an agreement with us, then we pro
ceed to send them this
When questioned on cross examination whether he had
the message that the receptionist had taken of Thomp
son s call a few days after he had sent his June 11 speed
message to the Company, Giordano explained he had
thrown it away, that he did not place great significance
on it at the time that he thought Thompson was return
ing or responding to his message and would get out the
contract This was 2 months after his initial call He ac
knowledged that he did not hear from Thompson again
in June or July
Giordano s diary, in which he made notes of events in
the course of his day to refresh his memory, records his
brief meeting with Snell on December 18 as follows
Matt Snell on job from Snellco Won t pay benefits he
owes No note was made of Snell s offer to make pay
ments prospectively although Giordano reaffirmed that
portion of the conversation
Paul Frederique testified and in the main corroborated
Giordano about the relative times and nature of their
contacts which led to his applying for membership in
the Union , authorizing the Union to represent him in
bargaining making periodic payments towards his initi
ation fee and receiving the two increases in his rate of
pay Frederique appeared to contradict Giordano on in
cidents regarding communications between them, which
I do not deem to be serious discrepancies and which
should also be tempered by the fact that they may re
Elect in part , Frederique s limited ability to express him
self easily and fluently in the English language 2 One
matter concerned Abner Frederic, his nephew Paul Fre
derique denied contrary to Giordano s testimony that
he had called the Union to advise that Abner was on the
job Regarding the other matter Frederique testified that
rather than Giordano coming to the job to pull them off
as Giordano had testified he as well as Abner had each
received letters in December to report to the Union to
discuss benefits When they got there Giordano told
them to stop the job In fact unbeknownst to Giordano
both employees returned to work the following day and
continued to work for Snellco at the jobsite for another
2 to 3 weeks into January 1988
Paul Frederique also testified at some length about his
having commenced employment for Snellco at the job
site in November 1986 At that time, and until April
1987 he was paid in cash, $650 weekly, off the books
Voir Dire 2 Fredenque s first language is French Creole At times in his testimo
ny he exhibited some difficulty in phrasing his answers in whole sen
By Mr Goldberg tences or with an understanding of proper grammar
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel produced pay stubs showing Fredenque
was paid by check with normal deductions for the pay
periods ending April 21 and 28, 1987 Frederique also
testified to having performed work in May 1987 for
Snellco at a job at the Apollo Theatre on 125th Street in
Manhattan and other work as an independent contractor
for Snell at a private 4 story residence doing painting
and taping on evenings and weekends for which be re
ceived $1000 per floor The parties stipulated that on
April 30 and May 20 1987 Snellco paid Frederique by
checks drawn from its regular, rather than its payroll ac
count, in the net sum of $1000 each These represented
the only payments Frederique received for work per
formed for Snellco as an independent contractor prior to
May 20 1987
While Respondent disputed that Frederique had per
formed any work for it as an employee at the jobsite or
anywhere else for that matter prior to May 1987, Freder
ique s April pay stubs contradict this assertion 3 Further
more, Barbara Thompson provided a letter for Frederi
que dated May 12, 1987 confirming his employment as a
taper for Snellco since January 1987, and the record con
tans evidence of his working at only one other jobsite
the Apollo Theatre, which Frederique, without contra
diction had fixed as having been performed in May 1987
and Snell recalled as having finished in November or
December 1987
Respondent produced two witnesses Thompson and
Snell who contradicted all the basic elements of Gior
dano s story of Respondent entering and then reneging
on an agreement
Thompson testified that in April 1987 she received the
first telephone call from Giordano She had never
spoken with him before He was friendly extolling the
virtues of his union He had skilled professionals and she
would never have to worry about people being out sick
If there was a push period at a job, the Union could
supply plenty of workers He told her he would like to
send a package of materials Thompson said he could
send it Giordano said he would talk to her again
Thompson denied that Giordano had asked if she would
sign the agreement If he had she would have told him
that she does not do those things
Thompson had earlier explained that she was aware
that Snellco has no labor agreements with unions other
than the carpenters and Snell has no interest in other
agreements She also contradicted Giordano s claim that
she informed him of an agreement with the laborers
union Thompson noted that from time to time unions
call the office seeking recognition, particularly where
Snellco is general contractor on a job listed in the
Dodge Reports Unions have tried to get Snellco to sign
an agreement thus insuring that all the subcontractors
3 Thompson claimed that Snellco may have reimbursed Frederique for
work he performed as employee for a subcontractor Akady that Snellco
initially hired to perform the taping before it took over the taping work
itself but which contractor defaulted in payment to it employees How
ever Snellco failed to produce ant canceled checks or other records
showing such payments the Snellco pay stubs for the two weeks in April
produced by Frederique are identical in every respect to other pay stubs
he received and show no evidence that they represented payment for
work Fredenque performed for Akady Frederique also denied ever
having been employed by Akady
will be union She has also received contracts and book
lets from various unions some of which she glances
through, others of which she gives to the estimator be
cause he keeps those kinds of records and still others she
throws away
Shortly after her conversation with Giordano she re
ceived a package of materials including a cover speed
message through the mails She disputed that she had re
quested the contract package as Giordano s covering
message stated She did not open it then but kept it near
her in the office first on her desk and later on the floor
next to her typewriter, for a considerable time, and only
opened it much later when the issue arose as a result of
the Union finally pressing the matter Giordano called
five or six times in all She did not make notes and did
not recall the specific dates He was friendly and chatty
He asked if she had a good weekend when was she
taking vacation, and did she get a chance to read the
package yet On those occasions when he asked this
latter question, Thompson responded that she honestly
had not had time
Thompson denied telling Giordano in any of the sub
sequent calls that she would sign the agreement and send
it in as soon as possible She explained that she could not
sign it anyway it is not something that she could commit
the Company to, earlier explaining she had no authority
to make union agreements Neither did she inform Gior
dano that somebody else would sign an agreement
Thompson was adamant that she never agreed to recog
nize the tapers union as the representative of Snellco s
employees and did not discuss with Giordano any terms
contained in the drywall tapers agreement
By sometime in September 1987 when Giordano
asked if she was making payments to his union she an
swered no, that they had no agreement with his union
Giordano replied that he was going to have to take some
type of job action if Snellco did not start paying benefits
Thompson told him to do what he had to do When
Giordano in the same conversation referred to the em
ployees as his men she told him he had not supplied
them with any men Giordano never accused Snellco of
committing unfair labor practices
With respect to determining the rates to be paid to the
tapers Thompson testified that she asked John Tercasio
Snellco s estimator, who maintains a book containing
prevailing scales what was the current prevailing wage
She guessed that the Company had to meet the prevail
ing wage on the New York Technical College job Ac
cording to Thompson the increases in wage rates that
Frederique and Abner received during 1987 were made
as a direct result of Tercasio s informing her of changes
in the prevailing rates of tapers
Thompson also disputed Giordano s claim that on his
last visit to the jobsite in December he saw the two men
he described as Snellco tapers on the job Aside from
Frederique and Abner only one other taper worked for
Snellco on this job a Patrick Samuels and he started
work in November 1987 No one named Paul or Wallace
was employed as a taper Neither according to both
Thompson and Snell did Snellco employ anyone off the
SNELLCO CONSTRUCTION 325
books Snell explained he did not do so because he was a
union shop and was bonded
Thompson and Snell also denied that there had been
any hiatus or break in work for tapers at the jobsite once
the work got underway in May
On cross examination, Thompson listed a number of
the unions that over time, had contacted the Snellco
office seeking agreements covering different jobsites,
generally those on which Snellco was employed as gen
eral contractor She noted that if they ask her, presum
ably to sign an agreement , she tells them that Mr Snell
is not interested in joining the union In spite of her uni
form response some of the unions forward materials
When any of these union representatives ask, Thompson
has informed them that she is not authorized to sign any
agreements When they do not ask Thompson has not
volunteered to inform them of the limitation on her au
thority It is apparent that Giordano not having asked
her this question she did not advise him of this limita
tion Thompson also agreed that she never informed
Giordano that Snell did not want to sign an agreement
with any union other than the carpenters because he
never asked (Tr 197 )
Thompson also noted that in spite of Giordano s series
of telephone calls, culminating in the fall with his threat
to take action if contributions were not made to union
funds, she did not inform Snell of his contacts and de
mands until she learned from Snell himself about his
brief meeting with Giordano in December She also
could not recall any reference by Giordano to the rates
of pay of the tapers on the job attributing the changes in
their rates to her assumption that the workers were enti
tied to receive the prevailing wage as determined by
Snellco s estimator Later Thompson was emphatic in de
nying that Giordano ever told her she had to pay Fre
derique a particular rate She did not believe that fringe
benefits had to be paid in accordance with prevailing
practices even though the job in issue was financed by
the Dormitory Authority of the State of New York The
estimator did not inform her of any such requirement re
garding fringe benefits To her knowledge the tapers on
the job in question were not paid any fringe benefits by
Snellco although such direct payments depending on
the amounts, could be deemed equivalents of the supple
ments provided under collective bargaining agreements
and thereby meet the requirements of section 20 of the
New York State Labor Law Action Electrical Contractors
Co v Goldin 64 N Y 2d 213 (1984)
Matthew Snell Snellco s president and chief officer,
confirmed that Thompson had no authority to make
agreements with unions or to deal with labor relations
Prior to 1987 Snellco had never performed any taping
work with its own employees Snell also confirmed that
various unions have contacted Snellco from time to time
as a result of a reports of Snellco having won a job to
obtain agreement directly with Snellco, or for informa
tion about the subcontractors who may be working on
jobs on which Snellco is the general contractor These
unions have included the teamsters, steamfitters plumb
ers and electricians Snellco has long standing policies
since its inception with which Thompson is familiar that
the only one who deals with unions is himself and that
Snellco will never recognize any union other than the
carpenters
According to Snell the tapping work began at the job
site in May 1987 Snell gave the job to Akady After 3
days the three men employed were not paid two of
them walked away, and only Paul Frederique stayed
Snell knew Frederique from a private job he had done
for him as an independent subcontractor on a brown
stone on 120th Street in Manhattan which started
around November 1986 The following Monday in May
Frederique showed up at the jobsite and asked Snell for
work, also explaining that he was not a member of the
tapers union Snell hired him but said he did not have an
agreement with the tapers union because he was a union
carpentry shop Frederique told Snell he did not care
and went to work Snell also in June subsequently hired
Abner whom he knew from his having assisted Frederi
que on the 120th Street job A third taper Samuels was
later hired in November
On a day in December, around 10 30 or 11 00 a in ,
Snell received a telephone call from a representative of
the general contractor Thomason, informing him that he
had learned from the contruction manager at the jobsite
that Giordano had pulled the tapers from the jobs Snell
replied that his foreman John Pitzle was there if there
was any problem with the tapers he would be the first
one on the phone to the office, and Snell had not heard
from him Earlier, on the prior day Pitzle had told Snell
that Abner had advised him that he had received a letter
and was to go to the Union about some benefits Snell
had approved this
Snell did not go to the jobsite, but testified that the
tapers worked that day, the next day, and continued
working until the job ended around December 22
except for some corrective work that went into January
1988
Shortly before Christmas about December 19 Snell
was at the jobsite as usual with his foreman when he
learned there was a representative of a union who
wanted to see him
Snell left word that the representative could meet him
in 15 minutes when he would be walking through the
cafeteria At the time arranged a man walked up to
where he was conferring with the foreman identified
himself as Giordano explained he represented the tapers
and asked are you going to sign the agreement to which
Snell replied no Snell denied that he told Giordano he
would agree to make payments prospectively
Under cross examination, Snell explained that the time
worked by employees on jobs such as the one at New
York Technical College is kept by Foreman Pitzle in a
notebook and later given to Barbara Thompson for entry
onto the payroll sheets Snell also acknowledged that
Thompson may have informed him that Giordano from
Local 1974 called and they were going to send in some
thing but he did not recall any extended discussion about
this union with her After the documents were received
Thompson probably told him in passing that she had re
ceived the package After his brief meeting with Gior
dano in mid December when Snell told Thompson
about it, she told him by the way he had called and he
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had sent me a contract He did not read the material, and
to his knowledge, neither had Thompson
C Concluding Findings
Before turning to resolution of the basic factual dispute
posed by the countervailing accounts of Giordano and
Thompson (and to a lessor extent , Giordano and Snell),
necessary to a determination whether contractual agree
ment was arrived at and then renounced , Respondent
raises two preliminary issues that must first be addressed
Respondent asserts that the complaint is time barred
inasmuch as the agreement on which the Government
relies was made more than 6 months prior to the filing of
the charge 4 As a subsidiary contention , Respondent
points to the reliance , in the charge , upon the April date
of agreement , which , because it could not be directly al
leged in the complaint , was dropped in favor of the date
of the August 6, 1987 telephone conversation , but which
nonetheless constitutes the only appropriate date and is
therefore in fatal variance with the complaint
It is clear that the charge filed on December 21, 1987,
was timely with respect to the August 6, 1987 telephone
conversation The complaint alleges that agreement was
made on that date to recognize the Union and to execute
a collective bargaining agreement previously proposed
by the Union The General Counsels evidence, if cred
ited , shows that on August 6 Thompson reaffirmed an
understanding previously made in April and affirmed in
May to execute and forward the agreement The rule
embodied in Section 10(b) is inapplicable to such con
duct, which , though originating outside the 6 month
period , continues during the period Southwest Regional
Joint Board v NLRB, 441 F 2d 1027 25 (D C Cir 1970)
There is no fatal variance between the charge and
complaint since the General Counsel was free to rely on
conduct within the 6 month period preceding filing of
the charge, which supported the charge allegation of
violation of Section 8(a)(1) and (5) of the Act by the
basis set forth or by other acts as asserted in the typed
catchall sentence appended to the body of the charge
The law is clear that the charge merely constitutes the
necessary triggering device to the investigation whereas
the complaint provides the more particular notice to Re
spondent by means of a formal pleading setting forth the
specific acts and conduct on which the General Counsel
relies in alleging the commission of unfair labor prac
tices Flex Plastics Inc, 262 NLRB 651 (1982) The Gen
eral Counsel has here fairly met the limitation generally
recognized , that the complaint bear such a relationship to
the charge allegations that it may not appear to have ini
tiated the proceeding on its own motion without refer
ence or general reliance on the charge See NLRB v
Kohler Co 220 F 2d 3 (7th Cir 1955) In this respect,
Respondents reliance on Asko Inc 202 NLRB 330
(1973) is misplaced since the charge there, unlike the in
stant charge made no reference direct or indirect, to the
unlawful conduct first alleged in the amended charge
filed well beyond the 6 month limitation period
Respondent also claims that the General Counsel has
failed to establish that Barbara Thompson , as Snellco s
representative whose conversations with the Union it
relied on to establish the agreement to recognize the
Union and execute its contract , had authority to act on
Snellco s behalf or to bind it to any collective bargaining
relationship
As the General Counsel notes in her brief, Section
2(13) of the Act in so many words rejects any require
ment that the specific acts performed were actually au
thonzed or subsequently ratified in order for the actor to
be found to be an agent of another person 5 Even where
actual authority is lacking , for example to consummate
an agreement , an agent may be found to have bound her
principal under the doctrine of apparent authority Such
authority may result when the principal does something
or permits the agent to do something that reasonably
leads a third party to believe the agent had the authority
she purported to exercise See Walnut Hill Convalescent
Center, 260 NLRB 258 (1982) Retail Clerks Local 1364
(Food Employers), 240 NLRB 1127 (1979), Restatement
2d Agency § 170
From all that was apparent to Giordano in his dealings
with her, Thompson s words and conduct bore every in
dication that she could deal with him and consummate
an understanding to recognize the Union and agree to
the terms and conditions set forth in the agreement he
forwarded to her Thus, while Thompson may have been
limited in her authority indeed specifically prohibited
from entering a relationship with any union except the
carpenters or acting on behalf of Snellco in labor deal
ings with any union , Snell having assumed all responsi
bilities in that area those limitations were private and ad
mittedly never communicated to Giordano Neither did
Thompson ever make Giordano aware that there was
any principal other than herself in active management of
the enterprise during the period the Government asserts
an agreement was arrived at
On Giordano s identifying his union title and affiliation
and requesting to speak with one of the Company s prin
cipals Barbara Thompson immediately got on the phone,
gave her name and engaged in an interchange in which
she agreed at the very least that he could forward the
Union s form agreement and other papers and that she
would review them On subsequent telephone commune
cations she provided a personal excuse for her failure to
examine the contract package and finally disputed his
assertion that the tapers were his men because he had not
supplied them and refused to make the insurance pay
ments because Snellco had no agreement with the Union
All of Thompson s admitted statements portray a compa
ny functionary with some responsibility in transacting
business with union agents Indeed Thompson confirmed
that she received inquiries and contracts from union rep
4 The charge was filed on December 21 1987 and the agreement is
alleged as having been made on April 3 1987 well outside the 6 month
period mandated by Sec 10(b) of the Act which states in relevant part
no complaint shall issue based upon any unfair labor practice occur
ring more than six months prior to the filing of the charge with the
Board
S Sec 2(13) provides
In determining whether any person is acting as an agent of an
other person so as to make such other person responsible for his acts
the question of whether the specific acts performed were actually an
thorized or subsequently ratified shall not be controlling
SNELLCO CONSTRUCTION 327
resentatives in the course of her employment responsibil
itles Surely, Giordano had no inkling from the way she
comported herself on his inquiries that she lacked the au
thority to accept or reject his requests
The employees who authorized the Union to represent
them could truthfully report to Giordano, if they had
been asked, that Thompson ran the office, saw to the de
livery of materials to the jobsite, signed their paychecks
as an officer of the company, and provided one of them
with signed letters as treasurer , on behalf of Snellco, at
testing to his employment history, status, work record,
and excellent prospects for continued employment all in
the same timeframe in which she dealt with Giordano
Each of these actions denotes a responsible official, ac
customed to making business judgments and representing
Snellco's management in personnel matters At no time
in her contacts with Giordano did Thompson defer to
another principal or disclose any limitation on her au
thority Even when Giordano threatened some form of
action to force Snellco s compliance with what he
claimed to be the parties agreement, if she is to be be
lieved, Thompson handled the matter on her own with
out then notifying Snellco s president and chief executive
officer
All the foregoing evidence leads me to conclude that
Thompson by her conduct, and Snell by his inaction, in
spite of his admitted knowledge of Giordano s contacts
with her reasonably led Giordano to believe that
Thompson possessed the authority to deal with the
tapers union and conclude an agreement with it
The central issue is now reached Was an agreement
struck between the parties as a result of the August 1987
communication of the two agents and if so did Thomp
son, and later Snell renege on that agreement in viola
tion of the Act)
As a preliminary matter dealing with the Union s ma
jority status at the time of the alleged agreement it is
true that it was only during Giordano s April 1987 con
tact that he informed Thompson he represented the
single taper on the New York Technical College job
Subsequently, Frederique and later, shortly after his hire
Abner both executed union authorization cards That
representation continued unabated into August and
beyond, until completion of the job in January 1988 Ac
cordingly I conclude that during the August 6 conversa
tion alleged in the complaint, the Union represented the
two tapers employed by Respondent at the jobsite
Respondent offered only the most meager evidence to
dispute the Union s representation of these employees
Snell reported a conversation in May in which Frederi
que disclaimed membership in the tapers union and inter
est in Snellco s status as nontapers union shop At the
time, Frederique probably had not yet executed his union
membership application, authorization and checkoff
dated May 15 although he had expressed an interest in
joining more than a month earlier I do not credit Snell s
attributing to Frederique a lack of interest in the Union
noting among other things Respondents lack of credi
bility shown by both Thompson and Snell, in denying in
the face of the strong documentary evidence to the con
trary, that Frederique had not been employed by Snellco
or at the jobsite prior to May 1987 In any event,
Thompson, with whom Giordano dealt did not dispute
or deny his representing Frederique as interested in
union representation Her mid December comment to
Giordano that he had not supplied Snellco with the
tapers does not conflict with the Union s having been ex
clusive representative of the taper employees since, at
least August 6 1987, the date of the alleged agreement
Even earlier , in September, Thompson did not dispute
the Union s representative status, only that Snellco had
no agreement with which Giordano could compel com
pliance Snell also, by December, before his conversa
tion with Giordano, was admittedly well aware of his
employees affiliation with the Union, when Abner
(joined by Frederique) received his permission to leave
the job to go to the union office to discuss benefits, and
he shortly afterward received a report that both tapers
had been pulled from the job by Giordano
Neither did Respondent deny the appropriateness of
the unit once the General Counsel amended the com
plaint to allege all full time and regular part time tapers
and painters employed by Respondent at the jobsite as a
unit appropriate for the purposes of collective bargain
ing Thus, I further conclude that the General Counsel
has sustained the allegations of paragraphs 8 of the com
plaint, that since August 6 the Union has been exclusive
representative of the employees in the aforesaid appro
priate unit
I am not however, prepared to credit Giordano s con
tention that Thompson on behalf of Respondent, agreed
to execute the tapers 1983 multiemployer agreement as
extended A number of factors lead me to this conclu
sion Giordano s testimony makes it evident that he had
not in all his prior experience, been faced with an inde
pendent employer, like Snellco who did not immediately
fall into line and adopt in toto the multiemployer agree
ment Giordano had thus no experience by which to
guide his own conduct when an employer to whom the
form agreement had been forwarded chose to ignore the
material As Giordano noted, an employers expression of
interest in the documents was sufficient to justify his
mailing them His generally soft sell approach had
proven effective in the past and there was no reason to
believe it would not work once he had initiated contact
with Snellco If he had some positive feedback he could
have dealt with that Giordano, however was now up
against an intransigent employer While he may have be
lieved he had obtained a commitment to execute his
package on his initial call, I cannot credit such an illogi
cal and irrational result
Thompson was an experienced office manager for the
firm It is beyond logic and good sense to believe that
she would have committed her employer to terms and
conditions of employment with which she was not famil
iar without first having received and reviewed the con
tract and then referred it to Snell for his consideration
and determination Yet Giordano s testimony recounting
his April 3 conversation with Thompson would lead to
just such an improbable and inconceivable result She
was also mindful of Snell s two injunctions regarding
dealings with unions other than the carpenters and
Snell's exclusive authority over labor relations Thus,
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
while Thompson had apparent authority to negotiate and
agree insofar as Giordano was concerned, her very limit
ed actual authority must be carefully weighed in deter
mining her reaction here While Giordano may have be
lieved from Thompson s generally cordial and friendly
response he was dealing with a compliant employer,
Thompson was, in my judgment buying time during
which the Union could be held at bay while the job
moved to completion
It is significant in judging this matter to note that
Giordano at no time made demand for a bargaining
meeting primarily because he believed he had an em
ployer ready to adopt the form agreement When that
did not turn out to be the case it was too late for the
Union to seek to negotiate Giordano s attribution to
Thompson of a statement acknowledging a bargaining
relationship with the laborers union, when, in fact, no
such relationship existed, further undermines Giordano s
version of their communications
By virtue of my credibility finding, I also conclude
that Respondent did not recognize the Union as exclu
sive bargaining representative and is accordingly not
liable to bargain in good faith with respect to a unit that
admittedly ceased to exist by January 1988
Aside from the factors I have noted, I find significant
in resolving credibility in favor of Thompson the fact
that the General Counsel failed to corroborate Gior
dano s version of their conversations in April and
August in particular, with the testimony of a witness, re
ceptionist Voekl who was a recipient of a telephone
message in June during which Thompson allegedly reit
erated her commitment to sign the agreement and mail it
to the Union-a witness under the Charging Party s di
rection and control Although the General Counsel ad
duced the substance of the telephone message she did not
offer it for its truth While the message may have ex
plained Giordano s subsequent delay in forcing the issue
it was the credibility of the message itself that goes to
the heart of the merits of this case Having failed to call
or explain its failure to call a witness apparently available
to buttress the Union s interpretation of Thompson s
positive response to the Union s demand I am left with
the inference that the receptionists testimony would
have been unfavorable to the General Counsels case
Interstate Circuit v US 306 U S 208 225-226 (1939)
See also Greg Construction Co 277 NLRB 1411 1419
(1985) Pur O Sil Inc 211 NLRB 333 337 (1974) Spar
tenburg Sportswear Co 116 NLRB 1914 1926 (1956)
Voekl s absence lends Thompson s denial of any such
statement agreeing to sign and forward the agreement
additional probative force, Paudler v Paudler 185 F 2d
901, 903 (5th Cir 1950) cert denied 341 U S 920
In evaluating Thompson s testimony I am not unmind
ful of the fact that her report about Frederique s starting
date as an employee in May 1987 conflicts with her
letter listing a January 1987 date and fails to account for
the pay stubs covering 2 weeks work in April While
serving to cast doubt on Thompson s veracity in that
area, I am unable to conclude against the weight of the
credible evidence as I view it that her responses to
Giordano in their telephone exchange in August spells
out or supports a finding that Respondent agreed to rec
ognize the Union and execute the agreements Giordano
had forwarded It is also noteworthy that even under
Giordano s versions of his conversations into August
Thompson continued to maintain she had not been able
to get to the package of documents surely behavior that
is inconsistent or equivocal at best, with respect to the
conclusion that the General Counsel urges that she had
agreed to sign the agreement On the other hand such
behavior lends support to a more compelling inference
which I have previously suggested that Thompson was
putting off Giordano as long as it was possible for her to
do so
So too Snell s attempt to portray himself as unaware
of Thompson s dealings with Giordano does not ring
completely true His reluctant admissions of some under
standing that the tapers union was in contact with the
office and had forwarded a contract and supporting doc
uments probably shields more knowledge of the matter
than he was about to disclose voluntarily Snell s denial
of the full extent of Frederique s employment history
with his firm was also contradicted and his explanation
of having hired Frederique when the taper subcontractor
failed was also not supported with documentary evi
dence In his brief negative response to Giordano s ques
tion whether he was going to sign the agreement, Snell
appeared not to exhibit any surprise that the Union was
making such a demand on his firm a somewhat unlikely
occurrence given his self professed ignorance of Thomp
son s prior contacts with Giordano Nonetheless, and in
view of Respondents prior consistent refusal to comply
the Union s entreaties to sign the agreement and make
the requisite fund contributions, I am not prepared to
conclude that Snell acknowledged any responsibility to
make future contributions particularly at a time when
the job was substantially completed Giordano s failure
to have noted this damaging admission in his diary fur
ther supports this finding
While Respondent may have been able to corroborate
Snell s December response because of Carpenter Fore
man Pitzle s presence at the scene I do not find that an
inference of Pitzle s unfavorable testimony is necessarily
warranted or that Respondents failure here unlike the
General Counsels noted earlier warrants a different con
clusion on the issue of Snellco s responsibility to execute
the agreement The hearing was completed in 1 day and
Respondent was not placed on notice that Giordano
would testify to this alleged admission Further the Gen
eral Counsel did not establish nor did Snell disclose Pit
zle s precise location when Giordano confronted him Fi
nally it is the General Counsels burden to establish the
agreement and I do not find this conversation as signifi
cant in resolving the ultimate issue as the ones held with
Thompson in August and earlier on with the General
Counsel relies in establishing Respondents responsibility
The telephone message Thompson left with the Union s
receptionist would have constituted an independent cor
roboration of the admissions Giordano attributed to her
on August 6 and earlier and as such stand on a higher
plane than Snell s alleged offer to make future contribu
tions which is not as conclusive
SNELLCO CONSTRUCTION 329
I am left finally with the General Counsels argument
that since Respondent increased the tapers wages to the
contract rate shortly after Giordano brought the lesser
rates to Thompson s attention this provides evidence of
compliance with an important contract term and sup
ports an inference that Respondent had agreed to adopt
the tapers contract However, it is also evident that the
tapers contract formed the basis for the prevailing rate
required to be paid by contractors on public work per
formed in New York Thompson had access to the inter
im extension agreement setting forth the new rates and
Snellco's estimator was her regular source of wage infor
mation on prevailing rate requirements Thus it is just as
valid to draw an inference that the tapers wages were
reset in accordance with the statutory mandates as the
one the General Counsel seeks, that Snellco revised the
rates in accordance with an obligation under the agree
ment It is probable that Thompson who at first did not
recall but then later denied the exchange received word
about the rate changes from Giordano on the two occa
sions he claimed he brought them to her attention and
used this information to verify the changes in prevailing
wages from the estimator 6 before incorporating the new
rates on Snellco s payroll The receipt of that informa
tion and Thompson s agreement to change the rates
however, does not alone warrant the conclusion that
Thompson thereby agreed to pay the tapers under the
agreement Snellco s failure to make payments of fringe
benefits in accordance with the prevailing practice does
not aid in resolving this matter Thompson informed
Giordano that Snellco would not purchase the stamps
6 Snellco was late in complying with the prevailing wage The $19 75
tapers rate was effective February i to July 31 1987 Frederique did not
receive this figure until the payroll period ending June 9 1987 after
working at the site at least since mid April Also the prevailing rate
schedule was published August 26 1987 well after the two rate changes
were made by Snellco Neither fact is determinative of Snellco fixing
rates to comply with the agreement Snellco may have been delinquent
by choice Recall Frederique s claim of receiving his wages off the books
until April which although denied by Snell is at least supported by
Snellco s admission of Frederique s employment since January The publi
cation date did not foreclose inclusion of dates 6 months prior thereto
and supports the inference that the information was available in some
other form from the State before August
and Snell refused to make the fringe benefit contribu
tions Thompson exhibited a certain unfamiliarity with
the prevailing practice requirements under the New
York Labor Law and at the time the two tapers were
the only nonrepresented employees apparently subject to
the prevailing rate requirements Thus Snellco s pay
ment of prevailing wage coupled with its failure to make
the fringe payments directly could have been due to any
one of a number of factors none of which were related
to enforcement of the Union s collective bargaining
agreement
In sum , I conclude that the General Counsel has failed
to show, by a preponderance of credible evidence that
Respondent ever agreed to recognize the Union as the
exclusive collective bargaining representative of its
tapers and painters employed at the jobsite or to execute
the Union s collective bargaining agreement and thus it
never repudiated that agreement or withdraw recogni
tion from the Union as alleged in the complaint Accord
ingly I shall recommend dismissal of the complaint in its
entirety
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of the Act
2 The Union is a labor organization within the mean
ing of the Act
3 The General Counsel has not established by a pre
ponderance of the evidence that the Respondent has vio
lated the Act as alleged in the complaint
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed7
ORDER
The complaint is dismissed in its entirety
7 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses