D'Angelo & Khan, Inc.

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D'Angelo & Khan, Inc. and Bricklayers, Masons & Plasterers Local Union No. 43 of the Finger Lakes Region. Cases 3-CA-8076 and 3-CA- 8162 March 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On March 5, 1979, Administrative Law Judge George Norman issued the attached Decision in this proceeding. Thereafter, Respondent, the Gen- eral Counsel, and the Charging Party Union filed exceptions, supporting briefs, and Respondent filed an answering 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. Contrary to the findings and conclusions of the Administrative Law Judge, we find that Respon- dent did not violate Section 8(a)(1) and (5) of the Act by refusing to bargain collectively with Brick- layers, Masons & Plasterers Local Union No. 43 of the Finger Lakes Region, hereinafter called Local 43, or by refusing to apply the terms and condi- tions of a collective-bargaining agreement previous- ly executed at another construction site, with re- spect to employees at a subsequent site in Romulus, New York. As explained in greater detail in the Administra- tive Law Judge's Decision, D'Angelo & Khan, Inc., hereinafter called Respondent, was formed in September 1974. Subsequent to its formation, Re- spondent engaged in construction in the geographi- cal jurisdiction of both Local 43, as well as in the jurisdiction of Respondent's sister Local 11, with most of its work being done in Local I I's jurisdic- tion. During the first week of November 1974, Re- spondent started construction at a site in Hopewell, New York, its first project located in Local 43's ju- ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect t credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis fior reversing his findings In his Decision the Administrative Law Judge has inadvertently mis- spelled the name of one of Respondent's officers, correctly identified as Pervaiz Khan 248 NLRB No. 62 risdiction. At this site, Respondent employed two masons, who were both members of Local 11. One of these masons worked for 2 days on November 18 and 19, and the other mason worked for several weeks in November and December 1974. We adopt the Administrative Law Judge's finding that on November 19, 1974, Respondent, by Nicholas D'Angelo in a conversation with Local 43's busi- ness representative, orally agreed to enter into and be bound by the terms of a collective-bargaining agreement previously executed between Local 43 and the Geneva Builders & Trades Association, a multiemployer group. Respondent, however, failed to execute a copy of this contract until February 19, 1975, well after the Hopewell project had been completed. Up until this time Respondent had been remitting monthly contributions for employee bene- fit funds and for union dues to Local 11 for the two masons employed on the Hopewell project. However, on February 19, 1975, Respondent signed the collective-bargaining agreement, and on the next day sent Local 43 amounts retroactively due under this contract for Local 43's employee benefit funds and for union dues for work done by the masons at the Hopewell site. There is no evi- dence that prior to or during these events, the two masons employed on the Hopewell project became members of Local 43, or otherwise selected it as their bargaining representative. The collective-bargaining agreement signed by Respondent on February 19, 1975, contained a ter- mination date of May 31, 1976. However, the agreement stated that it would remain in effect from year to year unless changed or terminated in a manner specified in the agreement. We adopt the Administrative Law Judge's finding that Respon- dent did not terminate the agreement in the re- quired manner and that the contract remained in effect on a year-by-year basis. After Respondent completed work on the Hope- well site in December 1974, it engaged in no other construction projects in Local 43's jurisdiction until April 1977, when it was awarded the contract on a federally funded project in Romulus, New York. Actual work on this site commenced in mid-April of that year. On May 12, Local 43's business agent spoke to Respondent's vice president, Pervaiz Khan, and claimed that Local 43 had a contract with Respondent, evidently referring to the agree- ment entered into above. Khan replied that if there were a contract there would be no problem and asked the business representative to send the fringe benefit forms. The forms were sent to Respondent but were returned on approximately May 26, D'ANGELO & KHAN, INC 397 1977,2 with a letter from Khan stating that Respon- dent was going to pay benefits directly to its men in the form of additional wages. At the time of Re- spondent's refusal to contribute to the benefits funds, the bulk of the masonry work had not yet begun on the Romulus project and there is no showing that the employees who intermittently en- gaged in masonry work were members of Local 43. Khan testified at the hearing that the employees on the Romulus project were paid at the prevailing wage rate as posted by the Federal Government and that no contributions were made to Local 43's employee benefit funds. In his Decision, the Administrative Law Judge found that Respondent orally agreed to enter into a bargaining agreement onNovember 19, 1974, at the time when masons were employed on the Hope- well jobsite and therefore the contract was not a prehire agreement. The Administrative Law Judge also found that the contract was not terminated and was automatically effective on a year-to-year basis when Respondent requested referrals from Local 43 for the Romulus project in August 1977. Accordingly he concluded that Respondent violat- ed Section 8(a)(5) on and after May 26, 1977, by repudiating and failing and refusing to apply the terms and conditions of the previously executed agreement to the Romulus project. Upon an analysis of the record herein, we con- clude that the Administrative Law Judge erred in finding that Respondent violated Section 8(a)(5) of the Act. When Respondent orally agreed to enter into the collective-bargaining agreement with Local 43, it did so at a time when the only masons employed on the Hopewell job were members of Local 11, and not Local 43. Prior to the termina- tion of their work at the Hopewell site, there is no indication that they ever became members of Local 43 or had selected it as their bargaining representa- tive. The fact that Respondent sent amounts to Local 43 after the job was completed for employee benefit fund contributions and employee dues is in- sufficient to show that the employees earlier en- gaged on the jobsite had ever selected Local 43 as their bargaining representative.3 2 Although the estrinon at the hearing did nt specificalls indicate the date after May 12 that the fringe benefit frins %h ere returned, the conplaint alleges Ma\ 26 a the date that the conract as repudiated :' A the hearing. and in his brief to the Administratie Law Judge, the General Counsel contended that tie employees on the Hlopessell site had. in fact, indicated their rnaloill suppol for Local 4 The General Coun- sel noted thal Ihese to ineploe ,cc s ,cre each memhers iof Local I I A such, thex 'mere obligated undel the prokisions of the Internation; Union's constiutlir t h 'sublecl to all the pros isionis of the coniti- tion and by-la is, colleci c baligailng agreemeits, la ;lful rule, and orders of the local hi ing jurisdictin oixer the area .there hie is eti ploed (if he xsirks iitside rlf he jurisdiction of his locall) We reject the General Counscl' s contentioln that this clnstiltU lnail prsxision tindl cated that hese emproe .autiriracllall. supported ocal 43 as heti hall In these circumstances, we disagree with the Ad- ministrative Law Judge's conclusion that the agree- ment signed by Respondent was not a prehire agreement. 4 On the contrary, we find that the agreement reached at the time of the Hopewell construction project was an 8(f) bargaining agree- ment and, as such, did not give rise to the pre- sumption of majority status on the part of Local 43.5 Furthermore, regardless of Local 43's majority status at the Hopewell site, it remains that, even where such majority status is shown at the original site covered by an 8(f) agreement, the provisions of Section 8(a)(5) of the Act do not apply unless the Union can demonstrate its majority status at the succeeding jobsites. 6 At the time Respondent in- formed Local 43 that it was repudiating the appli- cability of the contract to employees at the Romu- lus jobsite, the record shows that Local 43 did not have the majority support of masonry employees who worked at the site. Moreover, it appears that very little of the masonry work was being done during the time surrounding the repudiation of the contract, and that the employees who were so en- gaged performed nonbargaining unit work as well. Consequently, we find that Respondent did not violate Section 8(a)(5) when it refused to honor the bargaining agreement at this site. The circumstance that masons might have been referred from the Local 43 hiring hall in August 1977, 2 months after the repudiation, as found by the Administrative Law Judge, does not affect our results reached herein. Accordingly, we shall direct that the 8(a)(5) and (I) allegations herein be dismissed.7 The complaint issued in this case alleged that Respondent violated Section 8(a)(5) of the Act by the acts described above, which, as stated by the General Counsel, was derivative of the 8(a)(5) alle- gation. At the hearing, Respondent filed a motion galNing representallt at the Hope'.ell site, particularl 5 in the absence of allx shro\ t ng that hex Dkere aware that a bargaining agreemenlt had been ir.dal agreed to hx Responldent and lIocal 43 So-called 8(f) prehire agreements ma 5 he etered into I hen a ern- plher has :dread5 hired employees 'ho sirll be cuoseled under such a cintliract See Fitrif & ISnro n1. . 207 NI.RB 752 752 759 (1973), Prgresi (onrrriuctio Corp. 218 N.RB 1368 (1975) R J Sih Cnstrucion Co.. Itnc. 191 NLRB 093. 695 l9'71). el- fircetrnlelil denied 480 2d 1186 (D C Clr 1973) See also Rumltrianiri (,im- trlicrtt (i lipuri' nd Rlatrtlin CSrporrirln Jom ri. f/plo ier, 19I NI RB '1l (1971), and .L. R. B. Local Un o 103. Io ter r lnalromal - ociatiro igo Bridg'. Slrurraf & Orlametlul eroi H 'rCIrs 4F O-(10 [Igdont C(orraciring Co., 434 L' S. 335 1978 e De 'c [oo Coirmg. n . aid ii .. rEgo nrd r Successor. f)orgin-,Arab Foor Corirg. Inc - 232 NI RB 421 (19'') (.1 3f . senir ('o 245 NIRH No 54 (1979) see also DiwSd f' ri- ,t ai d,'h a 1u-w Ir-vi, .cKelc Coml,,irpai. 194 NlRB 52 11971). lenfrcenict denied it) part 475 F 2d 1265 (3d Cir 1973) : I \sc.i of tIhe result reached herein ie leed Illit coillder the Ch.lrg- Ig Pr'l' iald he General Corilrll's cxcpl mr rel.tinig s,.lel. to the trrls, of lhe recominmenlded reied fr rte ullfrllr l;lhor prictllies founld h Ithe Adnlmnliltrlrxic I ., Judge D'ANGEL0 & KHAN, INC 397 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to dismiss this allegation which the Administrative Law Judge denied, and in its brief to the Adminis- trative Law Judge, the General Counsel moved that the allegation be struck from the complaint. However, the Administrative Law Judge did not make any findings with respect to this allegation and the parties have not excepted to his failure to do so. In view of these circumstances and the ab- sence of any evidence with respect to discrimina- tory motivation,8 we shall direct that the 8(a)(3) al- legation be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board orders that the complaint be, and it hereby is, dismissed in its entirety. CHAIRMAN FANNING, concurring: I have previously set forth my disagreement with the construction of Section 8(f) and related sections of the statute applied by the Board in this case." However, in N.L.R.B. v. Iron Workers,'° the Su- preme Court held that such a construction is a ten- able one, and I do not think it appropriate to dis- sent further on this issue. Accordingly, I will follow the position which has been upheld by the Court. In doing so, I note that the language of the Iron Workers decision suggests that a different stat- utory construction is also tenable and within the Board's competence. x C. Production Molded Plastics. Inc., and Detroit Plastic Molding Co., 227 NLRB 776 (1977) 9 See m position et forth in dissenting or concurring opinions in R. J. Smith Cotnstrautiotl Co. Inc. 191 NLRB 693 (1971); Ruttman Construction Comnpaly, 191 NLRB 701 (1971): Dee Cee Floor Covering. Inc. 232 NLRB 421 (1977). .L.R B. s. Local Unrion .o. 103. lnternatonal Association of Bridge. Structural & Ornamental Iron Workerr. 4FL-C llHitgdon Contracting Co.], 434 US 335 (1978) DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge: This case was heard on June 5 and 6, 1978, in Geneva, New York, upon charges filed by Bricklayers, Masons & Plas- terers Local Union No. 43 of the Finger Lakes Region, herein the Union, on August 17 and October 6, 1977, and a consolidated complaint issued by the Regional Director for Region 3 of the National Labor Relations Board on January 24, 1978. The complaint alleged that D'Angelo & Khan, Inc., herein Respondent, violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, by refusing to bargain collectively with the Union as the representative of its employees. Respondent denied the substantive allegations of the complaint. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to argue orally. Briefs were filed by the General Counsel, Respondent, and the Charging Party. Upon the entire record, including my careful observa- tion of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS Respondent is a New York corporation engaged in the building and construction industry and has maintained various construction jobsites in the Syracuse and Roches- ter, New York, areas, including a construction jobsite in Romulus, New York. Jurisdiction is not in issue. The complaint alleges, Respondent admits, and I find that Re- spondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. It. THE UNFAIR LABOR PRACTICES A. Background Respondent started business about September 1974 as a general contractor in the construction industry. As in the case of most general contractors, Respondent has only a few permanent employees. Construction workers are usually assembled for a particular job. When the job is finished, unless the Employer has another similar job lined up, the employee's employment is terminated. The general contractor usually is directly responsible for only a portion of the actual production work on a construc- tion project; the remainder is handled by a subcontractor specializing in specific aspects of construction work. The Company was formed by its present officers, Per- vaiz Khan and Nicholas D'Angelo, both of whom were previously employed by LeChase Construction Compa- ny. While at LeChase Mr. Khan had been an estimator responsible for bidding and insuring that jobs were com- pleted within the limits of the bid. D'Angelo was an ex- perienced mason who had worked on the construction sites and was also a longstanding member of Bricklayers, Masons, Plasterers, Marble Masons, Tile Layers, and Terrazzo Union No. 11 of Rochester, New York (herein referred to as Local 11). Upon establishing their own company, D'Angelo and Khan assumed duties in accor- dance with their skill and experience. D'Angelo's time was spent mostly supervising projects in the field while Khan assumed the responsibility for obtaining jobs, pro- viding technical expertise, and managing the Company. D'Angelo did practically no office work, usually his office duties were limited to providing his signature when necessary, such as on checks. In Respondent's employ was a clerical who handled the Company's pa- perwork, including union fringe benefit reports to Local 11 and other unions. During the first week of November 1974, Respondent began work on a small garage project in Hopewell, New D'ANGELO & KHAN, INC. 399 York. The project was within the geographical jurisdic- tion of Local 43. Prior to performing that project, Re- spondent had never performed work in Local 43's juris- diction and was not a signatory to a contract with Local 43. Respondent employed two masons in the Hopewell project, Howard Beville and Daniel Panetta. Beville worked at Hopewell every day, Panetta worked only 2 days, November 18 and 19, 1974. Both Beville and Pan- etta were members of Local 11 and pursuant to the con- tract between Respondent and Local 11, Respondent for- warded contributions to the union fringe benefit funds on their behalf to Local I 1. James Walters is the sole business representative of Local 43. When Walters became aware of the Hopewell project he visited it on November 18 or 19 and saw that Respondent was performing masonwork with two em- ployees on the project. Walters learned that Nick D'An- gelo was the person to talk to about obtaining a contract from Respondent. On the same day, Walters telephoned D'Angelo whom he knew when D'Angelo was em- ployed at the Newark State School project. D'Angelo knew Walters and had had several conversations with him concerning the Local 43 contract, particularly hiring procedures, layoff procedures, and general job condi- tions. In addition, John VanDeMortel, job steward for the Union at the Newark project, spoke with D'Angelo in his capacity as job superintendent and discussed cer- tain contract provisions with respect to rain days. Joseph Marino, an employee at the Newark project, testified that D'Angelo resolved a grievance he filed by referring to the Union's contract with LeChase, the general con- tractor on the Newark project. On that project D'An- gelo took orders from LeChase himself. He called var- ious union locals to obtain men for the job. He directed masons on the job as to what work to do and discussed layoffs with Walters. Both VanDeMortel and Marino testified that D'Angelo hired them for the Newark job and that D'Angelo never did any masonwork on that job. Walters testified that he obtained an audit on the Newark job and that D'Angelo was not listed as a mason employee on that job.' Walters testified that he spoke with D'Angelo about the Hopewell job by telephone and reminded D'Angelo that he should have given him 48-hour notice before be- ginning the job and then he requested a contract. Wal- ters testified that D'Angelo agreed to the cntract and said that he would sign it when Walters sent it to him. On that same day, Walters sent Respondent a copy of the contract with instructions on how to execute it to- gether with fringe benefit forms for Respondent's use in complying with the contract. Respondent admitted re- ceiving the contract and Walters' accompanying letter. 2 I the e ent no exceptilons are filed a provided by Sec 102 46 of the Rules and Regulations of he National Labor Relations Board, the findings, conclusilns, and recommended Order hich follows, herein shall, as proided in Sec 102 48 of those Rules and Regulatins, be adopted h the Board alnd hecome its findings. conclusions,. and Order. and all obeclirns thereto hall he deemed ived for all purposes D'Angelo's entire teslimrny as easie. his memry as, had He appeared to deliherately orbfuscate the factl (VanlDeMorilel Marino. and Walters, on the other hand. Ilestfied redihlN) I credit them arid find that Respondent issued checks to Local 43 for dues, pen- sion, and welfare benefits for the entire period of the Hopewell job which ran during the months of November and December 1974. These payments to the Union of dues, pension, and welfare benefits were made pursuant to the provisions of the collective-bargaining agreement signed by Respondent on February 19, 1975. That agreement remained in effect until May 31, 1976. Article III, section 1, thereof states that the agreement will remain in effect from year to year unless changed or terminated in a manner provided for in the agreement. Article III, section 2, provides that any party desiring to change or terminate the agreement must notify the other party at least 90 days prior to the termination date. Respondent contends that it terminated its contract with the Union by letter dated April 19, 1976. Union Representative Walters contends that he never received the letter. Respondent offered no proof of a returned re- ceipt. In any event, even if the letter had been sent it was not timely inasmuch as the contract provides for a least 90-day notice for termination. Respondent contends that Pervaiz Khan sent the April 19 letter without in- forming D'Angelo and without the advice of legal coun- sel and that he apparently believed the terms of the Local 43 agreement permitted him to take this action. Respondent also contends that Khan did not send any notices to Federal or state mediation agencies because he was not aware of any requirement that he do so. In April 1977 Respondent was granted the bid on a federally funded project in Romulus, New York. This project was within the geographical jurisdiction of Local 43 and work began in mid-April 1977. 3 At the start of the Romulus project the only employee at the site was Lou Montante who, although a mason by trade, was Respondent's superintendent on the job, and although he had the power to hire and fire and did in fact hire and lay off all those who worked for Respon- dent at Romulus, he also performed some necessary labor. As the Romulus job progressed employees were hired but Respondent contends that none of these employees were masons. The employees came from the local area and those who came to the site for work and were quali- fied were hired. No request was made of Local 43 for mason employees. Khan testified that a small amount of masonry work, perhaps 5 percent of the total on the pro- ject, was performed by Louie Montante, the superinten- D'Angelo acted as a job superintendent at the Newark job. that he kne. Walters, and that he was familiar with the ocal 43 contract 2 Walters testified that his purpose in calling D'Angelo was to get a contract, that there was no doubt in his mind after the conersation that he had a conract. and that if he did not hase a cntrac he vould have pulled the masons off the job DAngelo. on the other hand, denies agree ing to a contract slrth Walters He states that some time after Christmas 1974. Walters approached him at the Hopewell project and requested that he sign a contract and that D'Angelo refused because Ihe had no reason to sign the agreement inasmuch as the ob ,h as completed He said "1 lust don't hare not reason for it and I am olt glng to sign it " In spite of this, D'Angelo did sign the agreemen t n February 9. 197. s rth- out explaining w.hy he felt it as linnecess.,r ' to enter into the agreemenl in December because the sork was completed but thell turned around .and sIgnd iit 2 months later In that connection. D'Angelo denied 1all recoilllnclln of haling signed the illectlie-h i gl-gai nig ;lgreen .ll il iholiighl hc 3ilirIils his sigrlnltilrc appears Ii It espondent issued checks to Local 43 for dues. pen- sion, and welfare benefits for the entire period of the + 9 t w e S - - S - - - - Hopewell job which ran during the months of November 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent, and Carmen Petrella, an employee, before July when the bulk of the masonry work began and masons were hired. 4 As previously indicated, Respondent did not do ma- sonwork in Local 43's jurisdiction since the Hopewell project until the Romulus School project. Upon discov- ering that Respondent was on the Romulus School pro- ject through the Dodge reports, Walters visited the job- site and spoke with Lou Montante. The two discussed the job and what amount of work was to be done on that project, including the employment situation. Montante told Walters at that time that Respondent would be using all of Local 43's "people" on that project. Although Re- spondent denied having called the hall for people, Wal- ters stated that Montante did call Local 43 for masons for the Romulus job. On May 12, 1977, Walters spoke with Khan; intro- duced himself as the business representative for the Masons Local 43; and informed him that Local 43 had had a contract with Respondent since the Hopewell job. Khan replied that if there were a contract, there would be no problem, and asked Walters to send the fringe benefit forms which he would complete and return. Wal- ters sent him the forms. However, the forms were sent back to Walters with a letter from Khan stating that Re- spondent was going to pay the benefits directly to their men. In other words, Respondent intended to pay the hourly wages plus benefits in the form of wages to the men directly.5 During the remainder of 1975, following the Hopewell job, Respondent performed no work in the Local 43 ju- risdiction. In November 1975 Respondent received a letter from Local 43 regarding some wage changes under the contract but otherwise had no contact with Local 43. Respondent contends that it "ceased having any inten- tion to do work in Local 43's jurisdiction or anywhere else because it was at its bonding limit." Respondent did not, however, cease bidding projects within Local 43's jurisdiction. It contends that to insure that future busi- ness was not lost because of apparent inactivity, it con- tinued to enter inflated bids on projects in Local 43's ju- risdiction expecting to be turned down. Khan had testi- fied that to bid a job he must (1) call the architect and find out what the bid deposit is; (2) contact the bonding company and presumably obtain a commitment from such company to provide bonding services for the job; 4 The General Counsel adduced the testimony of Thomas Barnard who was the supervising construction consultant for the Romulus central school district Barnard testified that he prepared daily reports which in- dicated what work was performed on the Romulus job Those reports (G.C Exh 16(a)) established that between May 4. 1977, through July 28, 1977. a large amount of masonry work was performed on the Romulus project I do not credit Khan's testimony The renegotiated general contracts contained higher wages and fringe benefits than the previous contracts amounting to a difference of about $1.20 an hour which would not be reflected in the aultomatcall y renewed contracts Inasmuch as 90 to 95 percent of the work performed by employers who had contracts with Local 43 were public work con- tracts. there was a posted wage rate or prevailing rate that all of the em- ployers ere required to pay regardless of the wage rate contained in the contract Therefore, Local 43. hich has a large number of employers who are operating on contracts that have been renewed iutoatiically rather than renegotiated upon expiration. was not too concernced that the wages and fringe benefits contained in those contracts were lovvel than those in the renegotiated or up-to-date contracts. (3) make a cash deposit of between $50 and $100 of which only about 50 percent will be returned; and (4) prepare the bid which consists of "costing out" each and every aspect of the work to be done, including ascertain- ing prices from subcontractors. In that connection, the General Counsel contends that it is incredible that a contractor would perform all those functions and forfeit its cash deposits to bid on a job that it avowedly does not want, merely to be invited to bid again when all it had to do was to explain to the archi- tect that it did not want to bid that particular job but de- sired to be considered for future work. Since late 1977, Respondent has been engaged in a project in Shortsville, New York, in Local 43's jurisdic- tion. Respondent hired masons it required on that job through Local 43 but contends that it has done so only under protest because it had been informed by represen- tatives of the Board that its monetary liability arising from its alleged violation of the Local 43 contract con- tinues to accrue if it continues to refuse to adhere to the contract. 6 Analysis and Conclusions Walters testified that he visited Respondent's Hope- well jobsite on either November 18 or 19, 1974, and spoke with Howard Beville and that Beville told him that D'Angelo had the authority to sign an agreement. After this conversation Walters returned to his office, called, and spoke with D'Angelo. Walters inquired about the Hopewell project and the Local 43 contract. D'An- gelo replied that Hopewell was a small job and that Wal- ters should not worry about it. D'Angelo said there would be no problem with the contract and that Walters should send it to him and he would sign it and send it back. Walters on that same day then sent Respondent the letter dated November 19, 1974, believing that he had concluded a collective-bargaining agreement. The letter contained the written agreement and requested that Re- spondent sign the last page of the contract and return it. Walters then saw D'Angelo again on the Hopewell project site on December 16, and spoke with him about the agreement, and about providing Local 43 men to pour floors. D'Angelo said not to worry about the agree- ment. Walters further testified that he initiated and had two more telephone conversations with D'Angelo on January 31 and February 17, 1975, about the contract and fringe benefits due Local 43. D'Angelo told Walters in the January 31 conversation that he would get the contract out. The contract was indeed signed and re- ceived by Local 43 on February 19, 1975. The Respon- dent did, in fact, pursuant to the provisions of the con- tract, send collected dues and contributions to Local 43 for all the masonry hours worked at Hopewell, including the hours prior to November 19, the date D'Angelo agreed for Respondent to a collective-bargaining agree- ment with Local 43. As previously indicated, I credit Walters and do not credit D'Angelo. I find that a contract was indeed en- ; Al the hearing. ciounisel for the Gencerli Coulnsel nmoed to amenld the complainl Io allege the existence of al ciollectie-hbirgll nlilg greemen ef- fetiCe Con r aiboul November 19, 1974. instcad of Februtarr 19, 1975 rThe mlotion .o gainted u, .r the oppisttilO of Rspolidenil's CiiOuise D'ANGELO & KHAN, INC. 401 tered into effective on November 19, 1974, The testimo- ny concerning the oral agreement is consistent with Wal- ters' dispatching the letter of November 19, 1974, to D'Angelo and Khan enclosing the written agreement for signing. The retroactive payment consisted of fringe benefit contributions, construction industry fund contri- butions and dues to Local 43 for the times that bricklay- ers were employed on the Hopewell job. Such payments would only have been made pursuant to an agreement between the Union and the Employer, and a binding agreement is what the Employer believed existed when he made those payments to Local 43. The only explana- tion offered by Respondent for having made those pay- ments was "reciprocity or something," between Locals 11 and 43. "And we had the union guys working with 11 and working in their jurisdiction and that actually forced us to pay them." I find that the payments were made for the Hopewell job because Respondent was living up to the agreement effective November 19, 1974. Joseph Strong d/b/a Strong Roofing and Insulating Co., 152 NLRB 9, 13 (1965), enfd. as modified 386 F.2d 929 (9th Cir. 1967), reversed as to the modification 393 U.S 357 (1969). It is well settled that a collective-bargaining contract may be agreed to prior to the signing of it by one of the parties. See H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514 (1941). Section 8(d) of the Act requires execution of an agreement (signing) only if requested by either party. The Respondent's failure to sign the agreement, for the period for which it subsequently complied with the agreement, cannot now be used to escape its obligations. Conway's Express v N.L.R.B., 195 F.2d 906 (2d Cir. 1952). Furthermore, Walters' asking for a signed agree- ment cannot be considered a concession that the agree- ment had not already been in force. Kenai Salmon Pack- ing Company d/b/a Kenai Packers, 144 NLRB 1122, 1126 (1963). Agreement not a Prehire Agreement Having entered into the agreement in November 1974 at a time when masons were working in the employ of Respondent on the Hopewell job, and not in February when it was actually signed and at a time when Respon- dent had no masons in its employ within the jurisdiction of Respondent, Respondent's contention that the agree- ment is a prehire agreement is without merit. Respondent did not Timely Terminate the Collective-Bargaining Agreement Prior to the Romulus Project The 1974-76 collective-bargaining agreement signed by Respondent provides in article III as follows: 1. This agreement shall take effect on June 1, 1974 and shall remain in effect until May 31, 1976 unless otherwise specifically provided for herein. It shall continue in effect from year to year, unless changed or terminated in a way later provided herein. 2. Either party desiring to change or terminate this agreement must notify the other in writing at least 90 days prior to the termination date. Whenever notice is given for changes, the nature of the changes must be specified in the notice. [Emphasis supplied.] Respondent contends that it mailed what purports to be a termination letter to the Union on April 19, 1976. The Union denies receiving such a letter and Respondent has failed to overcome that denial by any direct evidence that it was received such as a return receipt. In any event, under the terms of the agreement quoted above, the alleged termination notice of April 1976 would have clearly been untimely as it was not given at least 90 days prior to the termination date contained in the agreement of May 31, 1976. Even if Respondent proved that the termination notice was received by the Union, such proof would have been without any legal effect. Strong Roofing, supra. Therefore, by its own terms the contract renewed itself automatically. Respondent requested the Union for referrals for the Romulus job and obtained re- ferrals in August 1977. Those referrals were made pursu- ant to an existing contract. Indeed, Union Representative Walters testified uncontrovertedly that in no circum- stances would the Union refer its members without an existing collective-bargaining agreement between the Union and the employer requesting such referral. 111. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with its operation de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act,7 I shall recommend that it be ordered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Having found that commencing on or about May 26, 1977, and at all times since such date, Respondent has re- fused, and continues to refuse, to bargain collectively as the exclusive collective-bargaining representative in the unit found appropriate herein in that it has repudiated and failed and refused to apply the terms and conditions of the collective-bargaining agreement, the most recent of which has been effective by its terms since February 19, 1975, in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent be directed to cease and desist from engaging in such conduct and that it be directed to bargain collectively in good faith, upon request, with the Union as the bargaining agent of the employees in the said unit. I shall also recommend that Respondent be ordered to honor its contract with the h Il It, brief the General Counsel stated that it reconlsidered its psitiolll With resppcil to par 9 of he cormplailnt and rInooed to rike froml Ihe complainlt That motion is granted Par 9 i, triken fromil the compinlpill DANGELO & KHAN, INC. 40! 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union retroactive to the beginning of the Romulus pro- ject in May 1977 when Respondent unlawfully repudiat- ed its collective-bargaining agreement. I shall further recommend that Respondent be ordered to make whole all of its employees and former unit employees for any losses they may have sustained by reason of Respon- dent's failure to honor and apply the terms of the afore- said collective-bargaining agreement and make contribu- tions on behalf of those employees for all fringe benefits such as health and welfare, pension, and other benefits and dues deductions. The Charging Party argues that the remedy in this case should include the payment of attorney's fees to the union pension and security funds. Inasmuch as the failure to make contributions to the union pension and security funds is a result of Respondent's refusal to honor the whole agreement therefore violating Section 8(a)(1) and (5) of the Act, I believe that an order such as I have al- ready recommended, requiring Respondent to make con- tributions retroactively to pension and security funds as required by the terms of the collective-bargaining agree- ment and not an order that includes the payment of at- torney's fees to the union pension and security funds is the appropriate remedy. To require that Respondent pay attorney's fees to the union pension and security funds because the Charging Party chose to obligate those funds for the payment of attorney's fees to cover the expenses of processing an unfair labor practice charge involving the violation of the entire contract will establish a bad precedent of including in the remedy in any unfair labor practice case involving a refusal to honor an existing agreement legal expenses whenever the charging party chooses to obligate pension and security funds. I am not convinced that such a remedy is either appropriate or would effectuate the purposes of the Act. Therefore, I do not recommend that the remedy in this case should include the payment of attorney's fees to the union pen- sion and security funds. Furthermore, I know of no Board Decision that provides such a remedy. Upon the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees of Respondent engaged in brickma- sonry, stonemasonry, artificial masonry, cement masonry, marble masonry, plastering, marble mosaic and terrazzo work, tile layers', and other related masonry work exclu- sive of all other employees and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b). 4. The Union has been at all times material to this case, and is now, the exclusive bargaining representative of the employees in the above unit. 5. Respondent became bound by a collective-bargain- ing agreement between the Union and the Geneva Build- ers & Trades Association on November 19, 1974, which agreement was later signed by Respondent on February 19, 1975, and continues to be bound by said agreement by reason of automatic renewals thereof, the last of which is effective June 1, 1976, to May 31, 1979. 6. Respondent violated Section 8(a)(l) and (5) of the Act by, on or about May 26, 1977, and at all times since such date, refusing and continuing to refuse to bargain collectively with the Union as the exclusive bargaining representative in the unit described above, in that it has repudiated and failed and refused to apply the terms and conditions of the collective-bargaining agreement also described above. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.j