Vin James Plastering Co.

National Labor Relations Board - Board Decisions

Sep 23, 1976

226 N.L.R.B. 125 (N.L.R.B. 1976)

VIN JAMES PLASTERING COMPANY
Vin James Plastering Company and Bricklayers, Ma-
sons and Plasterers International Union of America,
Local Union No. 3. Case 12-CA-6999
September 23, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On May 18, 1976 , Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter , the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record ' and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings,2 and
conclusions ' of the Administrative Law Judge and
to adopt his recommended Order.
' The Respondent filed a motion to correct the transcript. The General
Counsel opposed the motion. The disputed section of the transcript as re-
ported reads:
(Testimony of Vincent Sciandra, Respondent's President)
A. He [George Wallace, Union assistant business agent] asked me-
He came into my office and asked me to sign the agreement
Q What did you tell him, sir?
A. I says I would.
Q. What did he do then?
A. He left and assumed that I would read it and sign it.
Q. Did you ever sign the contract?
A. No.
9. Did you ever tell him you would?
A. No
The Respondent alleges that the line which reads "I says I would" should
read "I says I wouldn't " We find it unnecessary to dispose of the
Respondent's motion since its determination would not affect the result of
the case. The disputed statement was made in March 1974. For a period of
16 months thereafter (until August 1975), the Respondent continued to
abide by the terms of the collective-bargaining agreement. Regardless of
which version of the statement is correct, the conduct over approximately 16
months would be sufficient to bind the Respondent to the agreement.
We note, further, that the Respondent's correction would create an incon-
sistency in the transcript. If the statement were, "I says I wouldn't," then the
following answer, "He left and assumed I would read it and sign it," makes
little sense . Why should the party assume that an agreement would be
signed when he was told that it would not be signed? We note also that the
issue was not raised with the Administrative Law Judge and further that he
apparently thought the transcript was accurate since he quotes the state-
ment as it appears therein.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 The Respondent argued that the Board could not order the Employer to
pay moneys into the trust funds established by the collective-bargaining
agreement because there was no agreement in writing signed by the Respon-
ORDER
125
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Vin James Plastering Com-
pany, North Pinellas Park, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
dent which will satisfy Sec. 302(c)(5)(B) of the National Labor Relations
Act. In agreement with the Administrative Law Judge's conclusion, we find
nothing in Sec. 302(c)(5)(B) to prevent the Board from requiring the Re-
spondent to make such payments.
DECISION
FRANK H. ITKIN, Administrative Law Judge. This case
was heard before me in,Tampa, Florida, on March 15 and
16, 1976. The unfair labor practice charge was filed by the
Union on November 7, 1975. The unfair labor practice
complaint issued on January 2 and was amended on Janu-
ary 22, 1976, and at the hearing. General Counsel alleges
that Respondent Company recognized Charging Party
Union as collective-bargaining agent for an appropriate
unit consisting of the Company's journeymen and appren-
tice plasterers; that Respondent. Company adopted and be-
came a party to a collective-bargaining agreement negoti-
ated between the Charging Party Union and the Florida
West Coast Lathing And Plastering Contractors Associa-
tion, Inc. (the Contractors Association), effective April 1,
1974, through March 31, 1976; that about August 6, 1975,
Respondent Company unilaterally and without bargaining
changed the wages, hours, and working conditons of the
1974-76 agreement; and that about August 20, 1975, Re-
spondent Company notified Charging Party Union that it
had ceased to give effect to and comply with the terms of
the 1974-76 agreement.Gerisral Counsel alleges that Re-
spondent Company thereby violated Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended. Re-
spondent Company denies, inter alia, that it has violated
the Act as alleged and asserts various affirmative defenses.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
counsel, I make the following findings of fact and conclu-
sions of law:
FINDINGS OF FACT
Respondent Company, a Florida corporation with an of-
fice and place of business in North Pinellas Park, is a plas-
tering, subcontractor in the construction industry. During
the prior 12-month period, Respondent Company per-
formed plastering and other services for contractors in
Florida valued in excess of $50,000. During this same pen-
od, these contractors received materials and supplies val-
ued in excess of $50,000 at their jobsites in Florida directly
from outside of the State. I therefore find and conclude
that Respondent Company is an employer engaged in com-
226 NLRB No. 26
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce within the meaning of Section 2(6) and (7) of the
Act. Charging Party Union is an organization in which
employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning
grievances , labor disputes , wages , rates of pay, hours of
employment, and conditions of work. I therefore find and
conclude that Charging Party Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act. In addi-
tion , I find and conclude that Vincent James Sciandra is
president and supervisor and agent of Respondent Compa-
ny within the meaning of -Section 2(11) of the Act, as al-
leged . Further, I find and conclude , as stipulated, that all
journeymen and apprentice plasterers employed by Re-
spondent Company, excluding all other employees,, guards
and supervisors as defined in the Act, constitute a umon
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
Terry Smith is director of the Contractors Association.
The Contractors Association has executed collective-bar-
gaining agreements with- Charging Party Union effective
August 1,6, 1970, through March 31, 1973 (G.C. Exh. 7);
April 15','1973, through March 31, 1974 (G.C. Exh. 8); and
April 1, 1974, through March 31, 1976 (G.C. Exh. 5). The
1974-76 contract provides for, inter aha, a health and wel-
fare fund, pension fund , vacation fund, joint apprentice-
ship fund and industry advancement fund "to be financed
by employer contributions or deductions from wages as
... provided . . -. (G.C. Exh.- 5). The 1974-76 agreement
(G.C.. Exh. 5) also provides for, inter alia, "check-off" from
employees of "regular working dues." i Smith explained
that, under this agreement, 'Florida Administrators of
Tampa, Inc. (Florida Administrators) is the designated es-
crow agent of the above funds and checkoff deductions.
Further , according to Smith , ' about March 5, 1974, the
Contractors Association notified all employers of plas-'
terers in the geographical area or jurisdiction of the Charg=
ing Party Union, including Respondent Company:
... that the Labor Relations committee of this Asso-
ciation has completed collective bargaining talks with
the Plasterers , We have arrived at a two year agree-
ment to be effective your first full payroll on or after
April 1, 1974, and continuing until March 31, 1976,
pending approval by the Construction Industry Stabi-
lization Committee in Washington, D.C.
The only changes to the old contract were to wages, a
.25 per hour increase to the vacation fund and the
establishment of a .05 per hour dues check-off... .
The 1974-76 contract (G.C. Exh. 5) also provides, in
part:
Section 3 . This Agreement is negotiated by the Florida
West Coast Lathing and Plastering Contractors Asso-
ciation , Inc., as negotiating agent only , for and on be-
half of those member firms of the Association and
others authorizing the Association to negotiate for
them, which firms' liability for any breach of this
'The earlier agreements between the Union and the Association, al-
though containing provisions for the various funds , did not provide for -
checkoff of umon dues.
Agreement shall be several and not joint . The liability
of the Florida West Coast Lathing and Plastering
Contractors Association , Inc., shall be that of negoti-
ating agent only, acting without liability for the acts of
its individual members or other party to this Agree-
ment. Members of the. Association who have not au-
thorized the Association to negotiate on their behalf
and other employers not authorizing the Association
as their negotiating agent may, at their individual dis-
cretion, ratify and adopt this Agreement for their firm
by so notifying the Union and Association in writing.
However, the Union will not furnish men to any em-
ployer who is not a properly licensed and insured plas-
tering , contractor and who is not signatory to this
Agreement. -
The contract further provides:
By execution of this Agreement or by written accep-
tance and agreement to be ,bound hereby, each, em-
ployer accepts and agrees to be bound by the various
trust instruments creating the health and welfare, pen-
sion, vacation , and joint apprenticeship funds and ac-
cepts the employer trustees heretofore or hereafter,
ratifies and confirms their actions in accordance with
the respective trust instruments.
Association Director Smith testified in part as'follows:
Q. Does your association bargain on behalf of all of
its members? In other words, do you have authority
from all your members to sit down and negotiate a
contract when you bargain?
A. Not automatically, no.
Q. How do you go about obtaining the authoriza-
tion from a particular company to negotiate on its be-
half?
A. We have a negotiation for a new collective bar-
gaining agreement coming up. We'll send out a re-
quest for authorization to the individual employers
that ask them to give us their authorization and nego-
tiate on their behalf, for that particular contract.
Q. And if they do not give you the authorization to
negotiate, you do not have it. Is that correct?
A. Yes.
Q. Do you send this form out to people who are not
members of your association?
A. Yes, we do.
Q_ You're actually soliciting employers to negotiate
for when you're doing this , as well as contacting your
members?
A. I would be soliciting authorizations to negotiate,
yes.
Q. From members and non-members?
A. From members and non-members.
Q. Do= you have a current authorization to negoti-
ate on behalf of Mr.- Sciandra? -
A. No, I don't.
Smith has never received "an authorization to negotiate"
for Respondent Company. And, according to Smith, Re-
spondent Company was "dropped" from its "membership
roles in 1973."
Alton Ward is associated with Florida Administrators.
VIN JAMES PLASTERING COMPANY
Florida Administrators is the escrow agent for the various
funds and dues deductions as provided in the 1974-76 con-
tract between the Contractors Association and Charging
Party Union. Ward testified that Respondent Company
submitted to Florida Administrators the required fund and
checkoff contributions for its plasterer employees and ac-
companying report forms until August 6, 1975. (See G.C.
Exh. 13.) 2 Ward noted that the escrow account form sub-
mitted by Respondent Company for its employees during
the payroll period August 6, 1975, was marked "final re-
port." (See G.C. Exh. 2(d).) Florida Administrators re-
ceived no "further reports" or payments from Respondent
Company.3
About August 20, 1975, Respondent Company President
Vincent Sciandra sent the following letter to Charging Par-
ty Union:
Gentlemen:
As you know, this Company has voluntarily abided by
the terms and conditions of the agreement between
your local and the [Association], effective April 1,
1974.
As of August 6, 1975, circumstances dictated that we
abandon our prior policies and discontinue our ser-
vices with your local.
As stated, Florida Administrators received no fund contri-
butions, checkoff dues, or fund reports from Respondent
Company after the payroll period ending August 6, 1975.
Joe Fernandez, business manager for Charging Party
Union, testified that Respondent's president, Vincent
Sciandra, "participated in . . . the negotiations" culminat-
mg in the earlier 1970-73 agreement (G.C. Exh. 7) and
that, to his knowledge, Respondent Company thereafter
followed the terms of the agreement. Fernandez recalled
that about May 1975, during the term of the 1974-76
agreement (G.C. Exh. 5), Respondent President Vincent
Sciandra attended a meeting with Charging Party Union
and members of the Contractors Association. Fernandez
testified that Vincent Sciandra participated in the discus-
sion at this meeting 4
2 Some 67 escrow account forms which were submitted to Florida Admin-
istrators from Respondent Company for payroll periods March 13, 1974,
through August 6, 1975, recite: "This report is evidence of intention to
comply with Article XI of the Collective Bargaining Agreement," and pro-
vide a place for "Signature." The reports are unsigned.
3 Ward testified that Florida Administrators is required to have a "signed
authorization" from each employee before it will "receive" moneys "check
off from employee salaries" under the 1974-76 agreement. Ward identified
G.C. Exhs. 12(a) through 12(q) and G.C_ Exh 3 as "Authorization For
Representation For Collective Bargaining And For Payroll Deduction For
Union Dues" forms submitted to Florida Administrators from the employ-
ees. As Ward explained:
for each and every employee that shows up on the [reporting] form
[G.C., Exh 13], there is a corresponding authorization card that has
been signed by the employee authorizing a 05 per hour [deduction]
from his wages.
Ward testified that "all the trust funds we administer are qualified trust
funds that have a trust document in force that's authorized and in full
effect"; that he has seen the pertinent trust agreements ; and that
Respondent's signature does not appear on the trust documents.
° On cross-examination , Fernandez acknowledged that during the negoti-
ation of the 1970-73 agreement, Vincent Sciandra had not "given authoriza-
tion to the Association to negotiate on his behalf." Fernandez added " , .
127
George Wallace is business agent for Charging Party
Union. Wallace testified that since about 1968, "upon a
phone call from [Respondent] Vin James, I would send
plasterers to whatever job sites he needed them at." Wal-
lace "also had dealings with Vin James in connection with
[the] collection of health and welfare, pension, apprentice-
ship funds, as stated in the contract." Wallace explained
that this has been a "continuing relationship" on a "week-
ly" and "sometimes monthly basis." Wallace also recalled
that he would periodically visit job sites where Respondent
Company had plasterers working. Wallace testified that
when he observed persons on the various sites performing
plastering work who were not members of his Union, he
secured signed union membership and authorization cards
from them. (See, e.g., G.C. Exhs. 3, 12(a) through 12(q).)
Wallace noted that his Union has "authorizations for every
name that appears on the Health and Welfare Reports," as
submitted to Florida Administrators. (Cf. G.C. Exh. 13
and G.C. Exh. 3 and G.C. Exhs. 12(a) through 12(q).) 5
In addition, Business Agent Wallace testified that in Au-
gust 1975,
[President Vincent Sciandra] called me on the phone
one night and was a little upset with the situation .. .
on the job on Central Avenue where there was a lath-
erer working for a plastering contractor that was not a
signatory with the others. And, I explained to him that
it was out of my jurisdiction, that I handled the plas-
terers. And, I asked him at that time if we could get
together on the benefits and he said that he thought
that he could get things caught up and for me to drop
by the office and we'd talk about it.
Wallace "dropped by his office to pick up the health and
welfare reports and the money" about August 11, 1975.
According to Wallace,
[President Sciandra] stated to me that he was still un-
happy with the situation concerning the latherers and
that he was contemplating going to open shop. And, at
that time, . . . I informed him that our agreement had
until March 31 of this year to run. . . . [Sciandra]
said, "well, I don't know right now ...."
Company President Vincent Sciandra asserted that his
Company has never recognized the Charging Party Union
as bargaining agent for its plasterer employees; that his
Company has never signed or entered into an agreement
with the Union; that he has never authorized the Contrac-
tors Association to bargain for his Company; and that his
Company has never promised to pay the wages and other
benefits provided for in the agreements of Charging Party
Union. Vincent Sciandra acknowledged that he was famil-
iar with and had seen the 1970-73, 1973-74, and 1974-76
agreements between Charging Party Union and the Con-
tractors Association- The 1970-73 agreement (G.C. Exh. 7)
and 1973-74 agreement (G.C. Exh. 8) specifically name
Respondent Company as an employer. Vince Sciandra ac-
since he [Sciandra] was there, I didn't request it . I didn't request it of
anyone who was present . I assumed that , since he was negotiating on
his own behalf He was sitting there discussing the contract , the terms
[and] conditions of the contract "
5 Wallace acknowledged that he "was under the assumption" that Re-
spondent Company "was signatory to" the Union's agreement.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledged that in 1969 and 1970 his Company was a
"member" of the Contractors Association; that in 1970
and 1971 he was "president" of the Contractors Associa-
tion; that in June 1975 he attended a meeting of the Asso-
ciation; and that earlier, in May 1975, he attended a meet-
ing at the Association's office with Union Representative
Fernandez. Vincent Sciandra acknowledged sending
Charging Party Union a letter on or about August 20, 1975,
reciting that his Company "has voluntarily abided by the
terms and conditions" of the 1974-76 agreement between
the Association and the Union and that, as of August 6,
1975, the Company was "abandon[ing] our prior policies."
Vincent Sciandra, prior to August 6, 1975, was admittedly
paying "benefits" and "wages" as provided in the agree-
ment; paying the required amounts' to the "different
funds"; and "deducting Union dues from those of [Re-
spondent's] employees who had authorized such deduc-
tions." Vincent Sciandra also acknowledged that he "usu-
ally would" call Union Representative Wallace for
Ronald Howard
Michael Hughes
R. Littell
P. Maxwell
W.J. Penn
B. Pickering
John Sciandra
V.J. Sciandra
William Sebeni
D. Swol
E. Vaughn
B. Woods
Joseph Sciandra
G.C. Exh.' 12(a)
G.C. Exh. 12(d)
G.C. Exh. 12(c)
G.G. Exh. 12(e) and (h)
G.C. Exh. 12(i)
G.C. Exh. 12(f)
G.C. Exh. 12(g)
G.C. Exh. 3
G.C. Exh. 12(m)
G.C. Exh. 12(b)
G.C. Exh. 12(q)
G.C. Exh. 12(o)3
plasterers .6
Company President Vincent Sciandra asserted that a
majority of the Company's employees had not signed the
union authorization prior to August 1975. However, Vir-
cent Sciandra testified that during 1975 Respondent Com-
pany had "an average" of two to three plasterers employed
each week. In addition, Vincent Sciandra further testified:
... May I state that most plasterers I hire have been
open shop and then [Union Representative] Wallace
would get them into the Union. ,
Vincent Sciandra later acknowledged that he employed the
following plasterers before August 1975:
Lester Boyce G.C. Exh. 120)
Charles Chiarenza G.C. Exh. 12(1)
Candelora Costa G.C. Exh. 12(p)
Emilio Gonzalez G.C. Exh. 12(k)
V. Guerra G.C. Exh. 12(n)
6 Vincent Sciandra admitted that he had signed an agreement with Charg-
mg Party Union This agreement was between the Union and Florida West
Coast Chapter of the Associated General Contractors of America, Inc,
effective April 6, 1970 (G C. Exh. 10). Sciandra's signature to the agreement
reads- "Vin James Vincent Sciandra" However, this agreement does not
pertain to unit plasterers. Elsewhere in his testimony, Vincent Sciandra testi-
fied:
Q Has the Charging Party ever asked Vin James Plastering Compa-
ny to sign a collective bargaining contract with them9
A. No
Q. Has any agent of the Charging Party ever asked you to sign the
contract9
A. Yes.
Q. When did this happen
A March 1974
Q. Do you remember who asked you?
A. George Wallace, assistant business agent.
Q What did he-Do you remember what he asked you?
A He asked me-He came into my office and asked me to sign the
agreement.
Q. What did you tell him, sir?
A I says I would
Q. What did he do then
A. He left and assumed that I would read it and sign it.
Q Did you ever sign the contract'
A No.
Vincent Sciandra could recall no other persons employed
by Respondent during the pertinent period in 1975. As not-
ed, all but one of the listed employees had signed union
authorizations in 1974 and 1975, before August 1975. And,
between March 13, 1974, and August 6, 1975, Respondent
made contributions to the union funds and withheld union
dues for all but one of the employees (G.C. Exh. 13). I find
and conclude on this record that the Union had been des-
ignated as bargaining agent by and represented a majority
of Respondent's employees in the stipulated unit at all
times pertinent to this proceeding.
I credit the testimony of Ward, Smith, Fernandez, and
Wallace as recited above. Their testimony is in part mutu-
ally corroborative and supported by documentary evidence
of record. And, relying upon the demeanor of the witness-
es, I am persuaded that the above testimony of Ward,
Smith, Fernandez, and Wallace is trustworthy and reliable.
However, I do not find Vincent Sciandra to be a credible
or reliable witness. He was at times evasive and vague in
his testimony. Insofar as the testimony of Vincent Sciandra
conflicts with the testimony of Ward, Smith, Fernandez,
and Wallace, I am persuaded, on this record that the testi-
mony of the latter witnesses as recited above, is more com-
plete, reliable, and trustworthy.8
7 G.C. Exhs. 12(a) through 12(q) are signed "Authorization For Represen-
tation For Collective Bargaining And Authorization For Payroll Deduction
For Union Employees" forms for the named employees They were execu-
ted during 1974 and 1975 under the current 1974-76 agreement. G C Exhs.
12(a) through 12(q) were received into evidence without objection. G.C
Exh. 3, received earlier in the proceeding, purports to be the authorization
of V. J Sciandra This card was received into evidence initially to show
the language of the" authorization. Later, Union Business Agent Wallace
identified G C. Exh. 3 as having been signed by V. J. Sciandra
B The 1974-76 agreement between the Contractors Association and
Charging Party Union expired on March 31, 1976. Counsel for Respondent
formally apprised the Association, by letter dated March 3, 1976:
Please be advised that the undersigned represents Vin-James Plastering
Co with respect to negotiations and other dealings with Local Union 3
of the Bricklayers and Allied Craftsmen. I am returning the employer
authorization to negotiate form enclosed in your correspondence of
January 21, 1976 As indicated thereon my client does not [wish] to be
represented by the Association for the purposes of collective bargain-
ing.
My client is currently involved in an unfair labor practice charging a
refusal to bargain This is pending before the NLRB and a trial has
been set for March 15, 1976. In the event the NLRB finds my client
obligated to bargain with this Union we will do so on an individual
basis
See Resp Exh 1, a letter dated March 3, 1976, which was sent by
Respondent's counsel to the Union
VIN JAMES PLASTERING COMPANY 129
Discussion
General Counsel argues that Respondent Company
adopted and became bound by the 1974-76 agreement be-
tween the Charging Party Union and the Contractors As-
sociation and, consequently, violated Section 8(a)(1) and
(5) of the Act when it unilaterally determined on August 6,
1975, to "abandon [its] prior policies" and no longer abide
by the terms and conditions of the 1974-76 agreement. In
support of this contention, General Counsel cites Marquis
Elevator Company, Inc., 217 NLRB 461 (1974). In Marquis
Elevator, the Board (Member Jenkins concurring in part
and dissenting in part) adopted the findings of the Admin-
istrative Law Judge that respondent employer violated Sec-
tion 8(a)(1) and (5) of the Act by withdrawing recognition
from the union as bargaining agent of the unit employ-
ees-"all of whom were members of the union"; by refus-
ing thereafter to bargain with the union; and by "unilater-
ally changing the existing terms and conditions of
employment by initiating its own wage guidelines and dis-
continuing payments to various employee trust funds."
The Administrative Law Judge, in finding this violation,
stated in pertinent part:
... Here, as in Manor Research, Inc., 165 NLRB 909
(1967), the continued utilization of the welfare, pen-
sion, and educational funds, the use of the Union as
the source of employees and for the settlement of
grievances, "demonstrate the existence of a continuing
relationship between the Respondent and the Union."
*
On the basis of the above findings , it is now found
that by this course of conduct Respondent adopted
the current standard agreement and until April 20,
1974, abided b y it ... .
Further , the Administrative Law Judge found : "As the re-
sult of its adoption of the current standard agreement and
the fact that at no time prior to April 20, 1974 , did the
Respondent give the Union any notice that it did not con-
sider itself bound by that agreement, the Respondent is
estopped from now making a claim to the contrary."
Earlier, in Lewis et al. v. Cable, et al. 107 F.Supp. 196
(D.C. W,D. Pa., 1952), the District Court stated:
Defendant cannot by his acts and declarations pre-
tend to be bound by the Agreement so as to prevent
strikes and repercussions and then, when full liability
under said Agreement is asserted , seek to disaffirm it.
... And his uncommunicated motives in making
[welfare fund] payments cannot now alter the legal
effect of his manifested acts and declarations.
Also, in Rabouin v. N.L.R.B., 195 F.2d 906 (C.A. 2, 1952),
the court of appeals noted:
We agree with the Board that [respondent] was a
party to'the pre-existing area contract. It was negotiat-
ed on his behalf. He enjoyed its benefits of general
labor accord. He complied with its wage scales. And
he exploited its grievance adjustment procedure when
first threatened with a union dispute ... and agreed
to abide by the Joint Grievance Board's conclusion
Moreover, his claim that the union may not rely on
the previous contract because of his own failure for-
mally to ratify it is not only inconsistent with his own
actions; it is without legal substance as well... 9
Further, in Local Union 24, International Brotherhood of
Electrical Workers, AFL-CIO v. Wm. C. Bloom & Co., Inc.,
242 F.Supp. 421 (D.C. Md., 1965), the District Court stat-
ed:
Defendant's contention that it was not a party to or
bound by the agreement rests upon the undisputed
fact that it never signed a letter of assent , as required
by the . . . language in the . . . preamble ... .
*
Defendant's conduct indicates that it considered it-
self bound by the agreement although defendant re-
signed from the [association] in December, 1963: Prior
to its resignation, defendant availed itself of hiring fa-
cilities provided under the contract, and complied
with the wage rates for electricians working on com-
mercial projects as established by the contract. Fur-
ther, subsequent to its resignation, when defendant
appeared before the Labor-Management Committee,
it failed to assert that it had not been a party to or
bound by the contract ... .
Cf. Wagor v. Cal Kovens Construction Corporation, 382 F.2d
813, 815 (C.A. 5, 1967), cert. denied 390 U.S. 952; and
William Dunbar Co., Inc. v. Painters & Glaziers District
Council No. 51 et al., 129 F.Supp. 417 (D.C. D.C., 1955).
Counsel for Respondent argues here that the Company
is not bound by the terms of the 1974-76 agreement be-
cause, inter alia, the Company "never authorized the Asso-
ciation to bargain on its behalf"; "never adopted the col-
lective bargaining either orally or in writing"; "never
signed any agreement between the Association and the
Union"; "never complied with a majority of the terms of
the agreement"; and "never made any promise or per-
formed any act which could support General Counsel's es-
toppel or adoption theory." Counsel for Respondent cites,
in support of his contentions, cases such as Hann v. Har-
low, 271 F.Supp. 674 (D.C. Ore., 1967); Hann v. Naylor,
355 F.2d 200 (C.A. 9, 1966); and Local Union No. 529,
United Brotherhood of Carpenters and Joiners of America v.
Bracy Development Co., Inc., 321 F.Supp. 869 (D.C. W.D.
Ark., 1971). Hann v. Harlow, supra, was an action by trus-
tees of union-employee pension and welfare funds to re-
cover unpaid contributions from defendant employer. The
District Court stated:
The defendant did not sign any of the Labor or
Trust Agreements with the [union] as an individual or
as a member of any employer organization and he was
not told that the voluntary execution of monthly re-
9 And see Doyle v. Shortman, 311 F.Supp 187, 192 (D.C. S D. N.Y., 1970),
where the District Court cites Lewis v. Cable, supra, and Raboum v.
NLRB,supra
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port forms [concerning payments to the funds in-
volved] would require him to adhere to the terms of
these Agreements.
... [The] defendant did not intend to be bound by
the [union's] Labor and Trust Agreements and .. .
was not told and did not know that non-union em-
ployees were covered under these Agreements. When
the defendant voluntarily made payments to the
Funds he did not believe nor did he know that plain-
tiffs would claim that he would be obligated to make
payments until the Labor Agreement expired.
In Hann v. Naylor, supra, trustees of a union-employer
fund brought an action to recover unpaid contributions
from an employer. The District Court found:
... that [the Employer] did not intend to be bound
by the master labor agreement or by trust agreements;
that he was unacquainted with any of their provisions;
and that at no time was he furnished with a copy of
[agreements ] or given explanations thereof.
* * *
When he made payments to the Trust Funds he was
unaware that plaintiffs would claim that he would be
bound to make payments until . . . the master Labor
Agreement expired... .
And, in Local 529 Carpenters v. Bracy Development Co.,
supra, - the union brought an action against defendant em-
ployer for breach of a labor management agreement. The
District Court stated in part (321 F.Supp. at 873):
... The evidence does not disclose that when the [de-
fendant] Company made payments into the health
and welfare and apprenticeship training trust funds in
connection with the Clarksville project the plaintiff or
its agent advised the defendants that it was contending
or would contend that such payments were indicia of
consent to the statewide labor agreement for the re-
mainder of its duration. . . . [And see cases cited.]
In the instant case, Respondent Company did not sign a
collective-bargaining agreement with Charging Party
Union pertaining to the unit employees. Respondent Com-
pany did not sign an authorization to the Contractors As-
sociation "authorizing the Association to negotiate on [its]
behalf." Respondent Company did not sign a written ac-
ceptance of the 1974-76 agreement or the various trust
fund and related instruments. The question then raised is
whether, on the facts of this case, Respondent Company
has engaged in a course of conduct which manifested an
intention to adopt and be bound by the 1974-76 agreement
and, further, whether Respondent Company is estopped
from asserting its failure formally to sign the agreement
and related documents as a defense here. As the decisions
cited above show, a resolution of this issue depends on the
facts of each particular case. I find and conclude on the
credible evidence presented here that Respondent Compa-
ny engaged in a course of conduct which manifested an
intention to adopt and be bound by the 1974-76 agreement
between the Charging Party Union and the Contractors
Association. Further, I find and conclude that Respondent
Company is estopped to assert its failure formally to sign
the agreement or related documents as a defense.
The credible evidence of record, as detailed supra, shows
that Respondent Company generally complied with and
abided by the terms and conditions of the 1974-76 agree-
ment until August 6 , 1975. Company President Sciandra
admittedly was paying "benefits" and "wages" as provided
in the agreement. Respondent Company was checking off
from the unit employees union dues deductions and mak-
ing the required payments to the various funds under the
terms of the agreement. Respondent Company would sub-
mit these fund payments and dues deductions to the desig-
nated escrow agent with reporting forms which provided:
This report is evidence of, intention to comply with
Article XI of the Collective Bargaining Agreement.
Although the reports were unsigned , they were nevertheless
filled out and accompanied by the necessary payments by
Respondent. In addition, Company President Sciandra
"usually would" call" in the union representative for his
plasterer employees. (See art. III, G.C. Exh. 5.) And, all but
one of Respondent Company's plasterer employees during
the pertinent period in 1974 and 1975 had signed union
membership and authorization cards and, as stated, their
dues were deducted and submitted to the Union by the
Company as required in the agreement. According to
Company President Sciandra, in March 1974, Union Rep-
resentative Wallace "came into my office and asked me to
sign the agreement" and "I says I would"; "He left and
assumed that I would read it and sign it ...." Union
Representative Wallace acknowledged that he mistakenly
"was under the assumption" that Respondent Company
was "signatory" to the agreement.
Respondent Company was a member of the Contractors
Association in 1969 and 1970. Company President Scian-
dra was president of the Association in 1970 and 1971.
Company President Sciandra was aware of and familiar
with the terms of the 1970-73, 1973-74, and 1974-76 agree-
ments between the Association and the Union . Respon-
dent Company was listed as an employer in the 1970-73
and 1973-74 agreements. Company President Sciandra was
present at and participated in the negotiations of the 1970-
73 agreement between the Association and the Union.
Company President Sciandra attended and participated in
Association meetings during 1975. As Company President
Sciandra wrote in his letter of August 20, 1975, ". . . this
Company has voluntarily abided by the terms of the agree-
ment . ..."
Respondent Company, by its conduct, adopted and be-
came bound by the 1974-76 agreement. The Union, at all
times pertinent here, represented a majority of Re-
spondent's employees in an appropriate unit. Respon-
dent Company , by abandoning' this agreement on August
6, 1975, and by unilaterally changing the terms and condi-
tions of employment for its unit employees, violated Sec-
tion 8(a)(1) and (5) of the Act. Counsel for Respondent
notes in his brief that Respondent Company never execu-
ted a written authorization under the terms of section 3 of
the agreement , quoted supra. Likewise, as counsel for Re-
VIN JAMES PLASTERING COMPANY 131
spondent notes, Respondent did not sign the agreement or
related documents. However, on this record, I do not find
formal execution of the authorization, agreement, or relat-
ed documents to be a condition precedent to the existence
of an agreement here. Respondent Company has manifest-
ed an intention to adopt and be bound by the agreement
and, consequently, is estopped to assert this claim now.
See, e.g., Local Union 24 IBEW v. Wm. C. Bloom, Inc.,
supra; and cases cited above.
Counsel for Respondent argues that "the Board cannot
order this employer to pay moneys into the trust fund be-
cause there is no agreement in writing signed by the-Re-
spondent which will satisfy Section 302(c)(5)(B) of the
Act," citing cases such as Moglia v. Geoghegan, 403 F.2d
110 (C.A. 2, 1968), cert. denied 394 U.S. 919 (1969). In
moglia, a widow brought an action for declaratory judg-
ment of entitlement to pension payments from various
trust funds created from employer contributions. The court
of appeals stated the question presented, as follows:
... whether she [the widow] is entitled to receive pen-
sion benefit payments from the Local 282-Pension
Trust Fund notwithstanding the fact that there never
has been a written collective bargaining agreement or
any other written agreement between [the Employer]
and Local 282 detailing the basis upon which pay-
ments were to be made by [the Employer], on behalf
of its employees, into the trust fund.
The court of appeals held that under Section 302 of the
Act:
... any payment made by an employer to an employ-
ee representative, and this includes trustees adminis-
tering a pension trust fund, ... and the receipt of
such payments by an employee representative are ab-
solutely forbidden unless there is a written agreement
between the employer and the union specifying the
basis upon which the payments are made. Thus, in the
case of a legally established union pension fund, the
only employer contributions which may be accepted
by the trustees administering the fund are those con-
tributions from employers who have a written agree-
ment with the union as required by subsection
302(c)(5)(B).
In short, as the court stated, "A written agreement is neces-
sary before payments may be made under this section
." and the agreement must comply with Section 302.
However, in the instant case the record indicates that
there is in existence the required "written agreement" ade-
quately and sufficiently "detailing the basis upon which
payments were to be made by the [Respondent] on behalf
of its employees into the trust fund" as required by Section
302. Cf. Hinson v. N.L.R.B., 428 F.2d 133, 139 (C.A. 8,
1970); Bricklayers etc. v. Stuart Plastering Co., 512 F.2d
1017, 1028-30. (C.A. 5, 1975). Rather, counsel for Respon-
dent is arguing in effect that the Company is not a signato-
ry to or bound by such written agreement. Cf. Doyle v.
Shortman, supra, 311 F.Supp. at 191-192, Bricklayers, etc.
v. Stuart Plastering Co., supra, 512 F.2d at 1029.10 As found
here, Respondent Company has adopted the 1974-76
agreement and is bound by its terms. This existing written
agreement and related documents satisfy the requirments
of Section 302 of the Act. ll
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. All journeymen and apprentice plasterers employed
by Respondent Company, excluding all other employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The Charging Party Union has been at all times mate-
rial to this case and is now the exclusive bargaining repre-
sentative of the employees in the above unit.
5. At all times material to this case, Respondent Compa-
ny has recognized the Charging Party Union as the exclu-
sive bargaining representative of its employees in the unit
described above.
6. Respondent Company adopted and became bound
by a written collective-bargaining agreement between the
Charging Party Union and the'Contractors Association,
effective April 1, 1974, through March 31, 1976.
7. Respondent Company violated Section 8(a)(1) and (5)
of the Act by notifying the Charging Party Union that ef-
fective August 6, 1975, it had ceased to give effect to and
comply with the terms and conditions of employment con-
tained in the 1974-76 collective-bargaining agreement; by
unilaterally and without bargaining with Charging Party
Union changing the terms and conditions of employment
for the employees in the above unit; and by abandoning
the terms and conditions of employment as contained in
the 1974-76 collective-bargaining agreement.
8. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent Company violated Sec-
tion 8(a)(1) and (5) of the Act, Respondent will be directed
to cease and desist from engaging in the conduct found
10 The court noted in Doyle v Shortman,
while it may be argued that the employer's obligation would be
more specifically indicated by an individual written agreement between
each employer and the union providing the desired coverage of non-
union employees, such an arrangement is not necessary
And, in Bricklayers etc v Stuart Plastering Co, the court stated, in part,
... the appellants do not now contend, nor did they offer to prove in
the district court, that the defendants ratified or assented to this partic-
ular agreement by making any payments that were consistent with its
terms after the apparent date an its face
"Counsel for Charging Party argues in his brief that Respondent "be-
came a part of a multi-employer unit so as to be bound by the product of
the multi-employer negotiations" The record does not support this state-
ment Cf N L R.B v. Bagel Bakers Council of Greater New York, 434 F 2d
884, 886-887 (C A 2, 1970). General Counsel acknowledged at the hearing
that this is not such a case
132 DECISIONS OFNATIONAL LABOR RELATIONS BOARD
unlawful herein or like or related conduct and to take cer-
tain affirmative action necesary to effectuate the purposes
and policies of the Act. Respondent Company will be di-
rected to bargain collectively and in good faith upon re-
quest with Charging Party Union as the bargaining agent
of the employees in the unit found appropriate herein. Re-
spondent Company will be directed to rescind and revoke
its unlawful abandonment of the terms and conditions of
employment for the unit employees as contained in the
1974-76 collective-bargaining agreement; to give retroac-
tive effect to the terms and conditions of employment as
contained in, the 1974-76 agreement from the date of
Respondent's unlawful abandonment on August 6, 1975;
to make whole the employees in the unit found appropriate
herein for any loss of wages or other benefits which they
may have sustained as a result of Respondent's unlawful
conduct; to make whole the employees in the unit found
appropriate herein by paying all health and welfare fund,
pension fund, vacation fund, joint apprenticeship fund and
industry advancement fund benefits as provided in the ex-
pired 1974-76 collective-bargaining agreement, which have
not been paid and which would have been paid absent
Respondent's unlawful discontinuance of such payments;
and to post the attached notice. See Hinson v. N.L.R.B.,
428 F.2d 133 (C.A. 8, 1970), and Marquis Elevator Compa-
ny, Inc., 217 NLRB 461 (1974). Backpay shall be computed
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest at the rate of 6 percent per
annum as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). Respondent will be required to preserve
and, upon request, make available to authorized agents of
the Board all records necessary or useful in computing the
amount of backpay due or in determining compliance with
the Order.l2
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 13
Respondent Vin James Plastering Company, North Pi-
nellas Park, Florida, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Failing and refusing to give full effect to and comply
with the collective-bargaining agreement between the
Bricklayers, Masons and Plasterers International Union Of
12 Counsel for Respondent argued at the hearing that the pending of an
action by Charging Party Union against Respondent in the United States
District Court under Sec 301 of the Act concerning the conduct involved
herein limits the remedy which may be granted in this proceeding Counsel
does not press this contention in his brief. Sec. 10(a) of the Act makes it
clear that the Board's remedial authority "shall not be affected by any'other
means of adjustment or prevention that has been or may be established by
agreement, law or otherwise . . "
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
America, Local Union No. 3, Tampa, Florida, and Florida
West Coast Lathing And Plastering Contractors Associa-
tion, Inc., effective April 1, 1974, with respect to the em-
ployees in the following appropriate unit:
All journeymen and apprentice plasterers employed
by Respondent Company, excluding all other employ-
ees, guards and supervisors as defined in the Act.
(b) Failing or refusing upon request to bargain collec-
tively and in good faith with said Union as the exclusive
bargaining representative of the employees in the above
unit.
(c) Unilaterally changing terms and conditions of em-
ployment of the employees in the above unit without prior
notice to and consultation with said Union.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the purposes and policies of the Act:
(a) Upon request, recognize and bargain collectively
and in good faith with said Union as the exclusive bargain-
ing representatives of the employees in the above unit with
respect to rates of pay, wages, hours of work and other
terms and conditions of employment.
(b) Restore and place in effect all terms and conditions
of employment as provided in the above agreement which
were unilaterally changed and abandoned by Respondent.
(c) Make such health and welfare fund, pension fund,
vacation fund, joint apprenticeship fund and industry ad-
vancement fund payments on behalf of those employees in
the above unit for whom such contributions were previous-
ly made and would have continued to be made had the
Respondent not unlawfully abandoned the above collec-
tive-bargaining agreement.
(d) Make whole all of its employees for any loss of wag-
es or other benefits that they may have suffered as result of
Respondent's unlawful refusal to bargain with Charging
Party Union.
(e) Preserve and, upon request, make available to au-
thorized agents of the Board, for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
as provided in this Decision.
(f) Post at its facility in North Pinellas Park, Florida, the
attached notice marked "Appendix." 14 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 12, after being duly signed by the Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director for Region 12, in writ
14 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
VIN JAMES PLASTERING COMPANY 133
ing, within 20 days from the date of this Order, what steps unit without prior notice to and consultation with said
the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to give effect to and to comply
fully with the collective-bargaining agreement be-
tween the Bricklayers, Masons and Plasterers Interna-
tional Union of America, Local Union No. 3, Tampa,
Florida, and Florida West Coast Lathing And Plas-
tering Contractors Association, Inc., effective April 1,
1974, with respect to our employees in the following
appropriate unit:
All journeymen and apprentice plasterers employed
by Respondent Company, excluding all other em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT fall or refuse upon request to bargain
collectively and in good faith with said Union as ex-
clusive bargaining representative of the employees in
the above unit.
WE WILL NOT unilaterally change terms and condi-
tions of employment of the employees in the above
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
WE WILL revoke and cease to give effect to the
changes which we unilaterally instituted with respect
to terms and conditions of employment for the above
unit employees.
WE WILL restore and place into effect all terms and
conditions of employment of the above collective-bar-
gaining agreement which were unilaterally changed
and abandoned by us.
WE WILL make all such health and welfare fund,
pension fund, vacation fund, point apprenticeship fund
and industry advancement fund payments on behalf
of those employees in the above unit for whom such
contributions were previously made and would have
continued to be made had we not unlawfully aban-
doned the above collective-bargaining agreement.
WE WILL make whole our employees for any loss of
wages or other benefits that they may have sustained
as a result of our unlawful refusal to bargain with
Charging Party Union.
WE WILL, upon request, recognize and bargain col-
lectively with said Union as the representative of the
employees in the above unit with respect to rates of
pay, wages, hours of work, and other terms and condi-
tions of employment.
VIN JAMES PLASTERING COMPANY