Vin James Plastering Co.

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