Ne Di Construction Co., Inc.

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ne Di Construction Co., Inc. and Eastern District Council of Carpenters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 5-CA-15680 25 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 22 February 1984 Administrative Law Judge Lowell Goerlich issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a cross-exception, a supporting brief, and a brief in opposition to the Respondent's exceptions. The Charging Party filed a brief in opposition to the Respondent's excep- tions, and the Respondent filed a brief in opposition to the General Counsel's cross-exception. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions, as modified below, and to adopt the recommended Order.I 1. We agree with the judge for the reasons below that the Respondent violated Section 8(a)(5) and (1) by implementing certain unilateral changes.2 The facts are set forth fully in the judge's deci- sion. Briefly, the judge found that the Union and the Respondent were parties to an Acceptance of Agreement by which the Respondent was bound to the master contract between the Union and the Virginia Association of Contractors. The Accept- ance of Agreement was to remain in effect unless either party gave written notice of a desire to ter- minate 120-150 days prior to the scheduled expira- tion date of the master contract. The Respondent contends, contrary to the judge's finding, that its letter of 17 January 1983 constituted a notice of termination within the meaning of the Acceptance of Agreement. Although it admits that the letter was untimely, the Respondent further contends i The judge cited F W Woolworth Co, 90 NLRB 289 (1950), in con- nection with the computation of any backpay due the employees as a result of the Respondent 's failure to comply with the terms of its collec- tive-bargaining agreement with the Union The correct citation is Ogle Protection Service, 183 NLRB 682 (1970) In addition, in par 2(a) of the Order the judge incorrectly stated that the date of the Acceptance of Agreement is "May 30, 1983 " The correct date is "May 30, 1980 " 2 We also do not disturb the judge's finding that the Respondent vio- lated Sec 8(a)(5) and (1) by bypassing the Union and dealing directly with an employee that the Union, by its conduct, waived its right to timely notice. We agree with the judge that the 17 January letter was not a notice of termination. However, even if we assume, arguendo, that it was a notice of termination, we find that the Union did not waive its right to timely notice. Thus, the 17 Janu- ary letter cited an "economic plight" and stated that the Respondent was "tendering notice of union cancellation." The letter also stated that the Respondent had "enjoyed our long association" and that it "did not make this change without con- siderable thought." The Union's representative, Hollis, immediately sought an explanation of the letter, and two management officials told him that the Respondent intended to "go nonunion." Hollis vowed to "fight" and do everything in his power to prevent the Respondent from eliminating the Union. Subsequently, the Union claimed majority status, requested bargaining, and sought an election to ensure its status as the employees' collective-bar- gaining representative. It also demanded compli- ance with the contract after the Respondent an- nounced an intention to change wage rates and cease health and welfare contributions. The Union further asserted that the Respondent had with- drawn recognition and had not simply given notice of an intention to terminate the contract. We fail to perceive how the Union's conduct can be deemed inconsistent with an intention to insist on adherence to the notice provisions of the Ac- ceptance of Agreement. We find this case to be clearly distinguishable from Hassett Maintenance Corp., 260 NLRB 1211 fn. 3 (1982), in which the Board found that the employer had waived a simi- lar notice requirement. Unlike the employer in Has- sett, the Union here did not ignore the untimely notice. Rather, it sought an immediate explanation and then consistently and forcefully resisted what it considered to be an attempt to withdraw recogni- tion. It also resisted the Respondent's announce- ment of unilateral changes by demanding immedi- ate compliance with the contract. We therefore cannot say here, as the Board did in Hassett, that both parties acted as though the notice was effec- tive and as though the contract had not been re- newed. In view of the above, the Acceptance of Agree- ment remained in effect at all relevant times, re- gardless of whether the 17 January letter is found to be a notice of termination or a statement of withdrawal of recognition. The Respondent was therefore bound to the original master contract, as well as to the new master contract which became effective on 15 August 1983. 279 NLRB No. 71 NE DI CONSTRUCTION CO In addition , we find that the original master con- tract remained in effect after its scheduled expira- tion date of 30 April 1983 until it was replaced on 15 August 1983. The contract provided that it would automatically renew itself unless either the Union or the Virginia Association of Contractors gave written notice of a desire to terminate at least 60 days prior to the expiration date. The Respond- ent did not present any evidence, and the record otherwise does not establish, that either the Union or the Virginia Association of Contractors gave the required written notice. The Respondent, through the Acceptance of Agreement, was therefore bound to the master contract at all relevant times, and consequently its unilateral changes constituted unlawful midterm modifications of an existing con- tract. 3 2. The amended complaint alleges that the Re- spondent unlawfully refused to furnish certain in- formation requested by the Union. The judge con- cluded that the issue is moot, and the General Counsel has excepted to the judge's failure to order the production of the information. The record discloses that on 25 August 1983 the Union requested that the Respondent furnish it with a list of unit employees and a statement of their rates of pay and fringe benefits. The Union reiterated its request on 7 September, and on 9 September the Respondent informed the Union that it was compiling the information. On 13 September the Respondent forwarded the information, but the Union responded on 19 October that the list was missing the name of at least one employee. The Union also stated that "other things" might have been omitted, but it did not specify to what it was referring. It also requested access to the Respond- ent's records in order to verify the information. On 31 October the Respondent replied that it had re- viewed its records again, but had been unable to determine which individual had been omitted. The Respondent requested the missing employee's name so that it could recheck its records, and it offered to rectify any mistakes and to make "every effort" to supply the information. However, the Respond- ent declined to provide the Union with access to its records. The record does not disclose any re- sponse by the Union or any further communication between the parties. We cannot discern an unlawful refusal by the Respondent to furnish the requested information. 3 In view of all our findings above, we disavow the judge 's statement at fn 5 of his decision that the Respondent "lawfully terminated" the Ac- ceptance of Agreement Because the original master contract did not expire on 30 April 1983, we also find it unnecessary to consider his dis- cussion in the same footnote of an employer's obligation to continue to make pension and welfare fund payments in accordance with the terms of an expired agreement 497 To the contrary, the record establishes that the Re- spondent promptly attempted to comply with the request by forwarding the information which it had compiled. When the Union alleged that some infor- mation might be missing, the Respondent quickly reviewed its records and offered to do so again in order to rectify any mistakes. The record does not contain any further response from the Union. In these circumstances we find that the Respondent did not violate Section 8(a)(5) and (1) by its con- duct in connection with the Union 's request for in- formation. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ne Di Con- struction Co., Inc., Henrico County, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Jacqueline W. Mintz, Esq., for the General Counsel. Alexander Wellford, Esq., of Richmond, Virginia, for the Respondent. Kathy L. Krieger, Esq., of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The original charge filed on August 19, 1983, by Eastern Dis- trict Council of Carpenters, United Brotherhood of Car- penters & Joiners of America, AFL-CIO, CLC (the Union or Carpenters) was served on Ne Di Construction Co., Inc. (the Respondent) by certified mail on the same date. The first amended charge, filed by the Union on September 14, 1983 , was served on the Respondent by certified mail on August 15, 1983 . A complaint and notice of hearing issued on September 16, 1983. An amended complaint and notice of hearing was issued on November 29, 1983 . Among other things, it was alleged in the amended complaint that the Respondent failed to comply with a collective-bargaining agreement in viola- tion of Section 8(a)(1) and (5) of the National Labor Re- lations Act. The Respondent filed a timely answer deny- ing that it had engaged in the unfair labor practices al- leged. The matter came on for hearing on December 6, 1983, at Richmond, Virginia. Each party was afforded a full opportunity to be heard , to call, examine, and cross-ex- amine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor I make the fol- lowing 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR I. THE BUSINESS OF THE RESPONDENT At all times material, the Respondent, a Virginia cor- poration, with an office and place of business in Henrico County, Virginia (Respondent's facility), has been en- gaged as a general contractor in the building and con- struction industry, constructing commercial and industri- al facilities. During the 12-month period ending April 30, 1983, a representative period, the Respondent, in the course and conduct of its business operations described above, pur- chased and received at its construction jobsites in Virgin- ia products, goods, and materials valued in excess of $50,000 directly from points outside the State of Virgin- ia. Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Pertinent Facts The Respondent admitted that the following unit con- stitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All working foremen, journeymen carpenters and apprentices employed by Respondent in Northamp- ton, Accomac, Northumberland, Lancaster, Math- ews, Gloucester, Newport News, Hampton, Virgin- ia Beach, Norfolk, Chesapeake, Suffolk, Ports- mouth, Isle of Wight, Southampton, Sussex, Surry, York, James City, Charles City, Prince George, Dinwiddie, Greensville, Brunswick, Mecklenburg, Lunenburg, Prince Edward, Nottoway, Amelia, Cumberland, Powhatan, Chesterfield, Goochland, Hanover, Henrico, New Kent, King William, King and Queen, Middlesex, Essex, Richmond, Louisa, Fluvanna, Buckingham, Nelson, Albermarle, [sic] Greene, Madison, Rockingham, Augusta, Highland, Bath and that portion of Caroline, Westmoreland and Orange Counties not now controlled by the Washington District Council in the State of Virgin- ia, excluding all clerical employees, professional em- ployees, all other employees, guards and supervisors as defined in the Act. In respect to such unit the Respondent and the Car- penters entered into an "Acceptance of Agreement" dated May 30, 1980. By signing such agreement the Re- spondent "approve[d] the collective-bargaining agree- ment now in effect between the Eastern District Council of Carpenters, covering carpenters, and the Virginia As- sociation of Contractors, Inc., and accept[ed] the same in its entirety, and [became] one of the parties thereto." In the agreement the Respondent agreed, "The employer hereby agrees to be bound by any subsequent renewals, modification, replacements, amendments and addenda to the agreement between the forementioned parties [East- ern District Council of Carpenters and Virginia Associa- tion of Contractors] unless and until notice is given in keeping with the following paragraph. The Employer agrees that notification by the Union to the Association of its desire to modify or terminate any agreement shall be considered notice to the undersigned." The paragraph referred to above provided: "The Ac- ceptance of Agreement shall continue in effect until ter- minated by registered letter to both the Union and the Virginia Association of Contractors at least 120 days but not more than 150 days prior to the termination of any existing agreement between the parties." The agreement between the Eastern District Council of Carpenters and the Virginia Association of Contrac- tors, Inc. provided, among other things, that the agree- ment would remain in full force and effect from May 30, 1980, until midnight April 30, 1983. Additionally, it was provided that "These conditions of employment shall continue in force from year to year after April 30, 1983, unless either party, at least sixty (60) days prior to that or any subsequent anniversary date, notifies the other party in writing of its desire to terminate this agree- ment." On August 12, 1983, the Eastern District Council of Carpenters and the Virginia Association of Contractors, Inc. reached agreement on a new collective-bargaining agreement effective from August 15, 1983, to April 30, 1986. On the date the acceptance of agreement, which had not been terminated in accordance with its terms, was still in full force and effect and the August 15, 1983 agreement between the Eastern District Council of Car- penters and the Virginia Association of Contractors, Inc., pursuant to the terms of the acceptance of agreement became binding on the Respondent, unless as claimed by the Respondent, the Respondent was excused from the operation of its terms. Phoenix Air Conditioning, 231 NLRB 341 (1977); Ted Hicks & Associates, 232 NLRB 712 (1977). On January 17, 1983, C. A. Knepp, executive vice president of the Respondent, addressed a letter to the Carpenters Union as follows: This is to formally advise you that Ne Di Construc- tion Company, Inc. of Route 2, Box 103A, Rich- mond VA 23229, is tendering notice of union can- cellation. We have enjoyed our long association and did not make this change without considerable thought. However, we do not forsee any permanent solution on the horizon to the economic plight we are all faced with. We were left with no alternative but to re-evaluate our position and take alternate steps to insure our continued participation in the marketplace. We would, however, be most interested in discuss- ing an open job contract with the Carpenters NE DI CONSTRUCTION CO. Union. Please advise when it would be possible to discuss this in more detail. Within 30 minutes after receiving this letter C. Frank Hollis, business representative of the Union, phoned Knepp and asked him what he meant by the letter. Ac- cording to Hollis, Knepp said that "they had decided to stay competitive in the marketplace , and that the only way they were going to do this was to go nonunion, that the financial situation was such that they couldn't com- pete " In response Hollis said that the Resondent had never asked for a "project agreement or any concessions on a special job."' The conversation ended with Hollis advising Knepp that he would do everything within his power to keep the Respondent from going nonunion. That evening Ned S . Creasey, the Respondent's presi- dent, phoned Hollis. Creasey reiterated Knepp 's state- ment that the Respondent was going nonunion . He said that the Respondent was being denied loans from the bank; that the Respondent had to rearrange its finances or it could not borrow money; and "that going non- union was the only way that they could see to lower the out put." Hollis' response, among other things, was the he "was going to do everything [he] could to keep the Company from going non-union." Thereafter Hollis talked to a "good number" of the Respondent's employees. None of them wanted to go nonunion. During this timeframe and prior to January 24, 1983, according to Knepp, he conversed with Hollis who was "upset about the January 17 memo " and "[H]e basically wanted to know what we were going to do, and I ex- plained to him that based upon the previous conversa- tions I had had on the phone , our position hadn't changed that we had difficulty in being competitive in the marketplace, we had trouble making the Union wel- fare and pension payments , and also living up to the wage scale that was imposed on us under the previous agreement . . . I said we were going to abide by the letter of January 17, and terminate and he said he would fight me." Apparently the Union commenced its fight by direct- ing a letter dated January 24 , 1983, to the Respondent captioned "Re: Request for Recognition and Collective Bargaining." (Because the Union's recognition had been voluntary, there had been no Board certification of the Union as the collective-bargaining representative for the Respondent's employees.) Shortly thereafter on January 27, 1983, and before the meeting suggested in the letter of January 31, 1983, the Union filed a petition for certifi- cation of representative, the purpose of which was to assure its bargaining status.2 The meeting suggested in the January 24, 1983 letter never occurred . The Re- spondent questioned the Union's majority and prepared "to contest the election ." The Respondent "didn't feel ' Hollis explained that concessions were given to union contractors who were bidding against nonunion contractors to give the union con- tractors "a better edge on bidding " 2 Under established Board principles, a union is entitled to the benefit of Board certification even though a contract is in existence Duke Power Co, 173 NLRB 240 (1968), General Dynamics Corp, 148 NLRB 338 fn 2 (1964) 499 . .. that they [the Union] had a majority representa- tion." After a hearing, a Decision and Direction of Elec- tion was issued on March 10, 1983. After an election a certification of representative was issued to the Union on April 19, 1983, in a bargaining unit substantially the same as the bargaining unit referred to in the acceptance of agreement for which the Respondent had granted volun- tary recognition. During the foregoing period and until April 30, 1983, the Respondent continued to compy with the agreement between the Eastern District Council of Carpenters and the Virginia Association of Contractors, Inc. On April 20, 1983, the Respondent addressed the fol- lowing letter to the Carpenters: We have not received from the Labor Board a certification of the results of the election on April 5, 1983, and expect this is why we have not heard from you concerning negotiations on a contract to replace the one which expires on April 30, 1983. It is our present intention to revise our wage, salary and overtime policies on May 1 , 1983, as set forth in the enclosed policy. We are prepared to ne- gotiate with you on these matters and recognize that any changes in the policy will be a subject of negotiation as to retroactive application if we have not reached agreement by May 1 , 1983. Our revi- sions are based on our perception of the going rates and practices in the area in which we do business. We also anticipate discontinuance of all contribu- tions to the multemployer Eastern District Carpen- ters Union Pension and Welfare Funds upon the ex- piration of the existing contract, at the same time recognized that you will probably want to make this a subject of bargaining and that we may be per- suaded to reinstate pension contributions On May 2 , 1983, the Union replied as follows: Please be advised our records indicate that you are in violation of Article 27 and the Acceptance of Agreement of the current collective bargaining agreement between the Virginia Association of Contractors and the Eastern District Council of Carpenters. We respectfully request that you immediately comply with all the terms and conditions of the above mentioned collective bargaining agreement immediately so that we are not forced to take legal action against your company. The Respondent responded to the Union 's letter of May 2, 1983, in part, as follows: If, indeed, our notice of withdrawal did not comply specifically with the terms of the Accept- ance of Agreement that you have appended to your May 2, 1983, letter , we view your former conduct as having been wholly inconsistent with reliance by you on that language , and in view of our demon- strated reliance on your conduct, we believe that you have waived the specific time limitations on 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawal and cannot now rely upon them. Cer- tainly you had ample notice of our intention to withdraw, and had you intended to rely on the spe- cific contract language you could have advised us of that on January 24, 1983, instead of requesting recognition and collective bargaining. On June 6, 1983, the Union directed the following letter to the Respondent: This is in response to your letter informing the Union that the Company does not believe it is obli- gated to comply with the current collective bar- gaining agreement. Contrary to your suggestion, the Union has never waived, and does not intend to waive, the time limitation for withdrawal specified in Ne Di's Acceptance of Agreement. Your January 17, 1983 letter to the Union was not simply an attempt to give untimely notice to reopen the contract and negotiate a successor agree- ment. Rather, the Company was indicating its inten- tion to terminate its established relationship with the Union as exclusive bargaining representative of the Company's construction carpentry employees and to operate nonunion. The Company did proceed to withdraw recognition from the Union, by question- ing our representative status. Because the Union had never received NLRB certification, but had only been voluntarily recognized by the Ne Di, we then sought and obtained NLRB certification so that there could be no question about our majority status if we were compelled to litigate over Ne Di's withdrawal of recognition and repudiation of the contract. Our participation in a NLRB election to obtain certification was completely consistent with the ex- istence of a current agreement binding Ne Di. As you must know there is a longstanding NLRB policy permitting uncertified but voluntarily recog- nized unions to obtain an election and the benefits of formal certification during the term of valid col- lective bargaining agreement. It was on this basis that we proceeded with the NLRB. As you also know, under federal law a union does not waive the terms of a current contract even if it meets with an employer and discusses mid-term modifications. If the Union does not ultimately give its consent to a modification, the existing contract remains in effect and is fully enforceable as written. Since we have never even discussed modifying the current agreement as applied to Ne Di, you have no basis for asserting that we have released Ne Di from its contractual obligations. We again request Ne Di's immediate compliance with all the terms and conditions of the collective bargaining agreement so that further legal action can be avoided. The Respondent continued to insist that it was not bound by the contract between the Eastern District Council of Carpenters and the Virginia Association of Contractors, Inc. and ignored its provisions. On August 19, 1983, the Union filed charges alleging that "Employ- er has violated the Act by unilaterally and without the consent of the established bargaining representative making changes in contractually established terms and conditions of employment." In this regard the parties stipulated that the Respond- ent ceased making health and welfare contributions to the union pension plan since April 30, 1983, and has not hired an employee through the union hiring hall since April 30, 1983. B. Conclusions and Reasons Therefor The Respondent's argument is that "the facts of this case present a clear case of waiver" by the Union of the requirement that the termination of the acceptance of agreement be served "at least 120 days and not more than 150 days prior to the termination date" of April 30, 1983. The Respondent concedes that the Respondent did not serve a notice of termination within the timeframe provided in the acceptance of agreement. The prime consideration here is whether the Respond- ent's letter of January 17, 1983, was actually a notice to terminate the acceptance of agreement If that were its objective, the intent, as expressed in the letter, was am- biguous, for the acceptance of agreement was not men- tioned in the letter either by name or implication. It was not until after May 2, 1983, that the Respondent, in a letter in response to the Union's demand that the Re- spondent abide by the acceptance of agreement, referred to the January 17, 1983 letter as "our withdrawal from the contract between your Union and the Virginia Asso- ciation of Contractors, Inc." Moreover, when the Union sought a clarificaton of the January 17, 1983 letter imme- diately after its receipt (especially of the language, "union cancellation"), it was not told that the Respond- ent was trying to terminate the acceptance of agreement but that it was a notice to the Union that the Respondent was going nonunion . From such explanation the Union might well reason that the letter was a repudiation of the Union as the bargaining representative of the Respond- ent's employees and the Respondent's withdrawal of union recognition. Had the Respondent informed the Union that the January 17 1983 letter was a belated at- tempt to terminate the acceptance of agreement, no doubt the Union would have demanded compliance with the agreement as it did in its May 2, 1983 letter. Thus, the Union's response, i.e., the Union would do all in its power to keep the Respondent from going nonunion, was reasonable under the interpretation of the letter as related to the Union by the Respondent. The Union's first step in this direction was to repel the attack on its bargaining status by obtaining a Board certification. It did this by sending a reqeust to bargain and by filing a petition for election, a standard procedure for raising a question of representation. Moreover, the Respondent re- vealed further the intent of its letter to cancel the Union by contesting the Union's majority status and forcing it to an election. It is apparent that it was not until after the union election that the Respondent actually decided to inform the Union that its January 17, 1983 letter was intended as a notice of the determination of the accept- ance of agreement In view of the Respondent's failure NE DI CONSTRUCTION CO. to advise the Union until May 2, 1983, that it considered the January 17, 1983 letter a belated notice of termina- tion of the acceptance of agreement, it was reasonable for the Union to assume that that was not its purpose. Hence the Union ought not to be faulted for failing to advise the Respondent that it was not accepting the letter as a legal notice under the terms of the agreement of acceptance The Respondent's contention to the con- trary is not well taken . Nor was the Union's resort to the election process an indication of waiver of the termina- tion notice requirement of the acceptance of agreement, as contended by the Respondent, because the Union acted in this regard to parry the Respondent's assault on its bargaining status.3 Thus, there cannot reasonably be read in this selection of procedure a waiver of the notice requirements incorporated in the acceptance of agree- ment. It also seems obvious that the Union could not waive an alleged notice which was actually no notice,4 or the Respondent in good faith could not rely on the Union's alleged waiver of an alleged notice which was no notice. Moreover, the Respondent's conduct, as re- vealed in the credited record , leads to the conclusion that the Respondent deliberately chose a course of action which would accomodate its objective of ousting the Union from its operations (going nonunion). Its claim that the January 17, 1983 letter was a notice of the termi- nation of the acceptance of agreement was a belated at- tempt to further that objective. I find that at all times material herein , the Respondent was bound by the acceptance of agreement and thereby bound by the agreement in effect between the Eastern District Council of Carpenters and the Virginia Associa- tion of Contractors, Inc. See NLRB v. Remodeling By Oltmanns, 719 F.2d 1420 (8th Cir . 1983); KCW Furniture Co., 247 NLRB 541 (1980). The Respondent's unilateral ceasing of health and wel- fare contributions, ceasing its obligation to use the Union as a source of carpenters , and instituting new and lower wage rates for all unit employees hired after April 30, 1983, constitute midterm modifications of an existing contract in violation of Section 8(d) of the Act and a re- pudiation of the contract in violation of Section 8(a)(1) and (5) of the Act. Michigan Dry Wall, 232 NLRB 120, 123 (1977), affd 616 F.2d 966 (6th Cir. 1980); Deluxe Poster Co., 238 NLRB 335 (1978), mem. granted 601 F.2d 598 (7th Cir 1979).5 3 Indeed, if Knepp is to be believed, the Respondent knew that the Union was not waiving any of its rights under the Acceptance of Agree- ment for Knepp testified that when he said, "We are going to abide by the letter of January 17 and terminate," Hollis "said he would fight me " The Respondent's alleged good-faith reliance on the Union' s alleged waiver of the notice requirements of the acceptance of agreement does not jell with this testimony 4 The case Stone Boat Yard, 264 NLRB 981 (1982), cited by the Re- spondent is inapposite It involves an entirely different set of facts from those revealed in this record S The Respondent's unilateral ceasing of health and welfare contribu- tions was in violation of Sec 8(a)(1) and (5) of the Act, even though the Respondent had lawfully terminated the acceptance of agreement An employer is legally required to make payments into a pension and welfare fund in accordance with an expired agreement absent a bargaining im- passe or waiver by the union American Distributing Co v NLRB, 715 F 2d 446 (9th Cir 1983) In the instant case there was neither an impasse reached nor a waiver by the Union 501 In the amended complaint it is also alleged that the Respondent in late June 1983 bypassed the Union and dealt directly with its employees in the unit by offering individual wage increases outside the scope of the con- tractually established wage rates. This allegation was supported by the uncontradicted testimony of James Sharp. A finding is made accordingly. By bypassing the Union, the certified bargaining repre- sentative of a majority of the Respondent's employees in an appropriate unit , and dealing directly with its employ- ees in June 1983, the Respondent violated Section 8(a)(1) and (5) of the Act. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944).6 CONCLUSIONS OF LAW 1. The Respondent, Ne Di Construction Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following unit constitutes an appropriate unit for the purposes of collective bargaining within the meaning of Section 8(b) of the Act: All working foremen, journeymen carpenters and apprentices employed by Respondent in Northamp- ton, Accomac, Northumberland, Lancaster, Math- ews, Gloucester, Newport News, Hampton, Virgin- ia Beach, Norfolk, Chesapeake, Suffolk, Ports- mouth, Isle of Wight, Southampton, Sussex , Surry, York, James City, Charles City, Prince George, Dinwiddie, Greensville, Brunswick, Mecklenburg, Lunenburg, Prince Edward, Nottoway , Amelia, Cumberland, Powhatan, Chesterfield, Goochland, Hanover, Henrico, New Kent, King William, King and Queen, Middlesex, Essex, Richmond, Louisa, Fluvanna, Buckingham , Nelson, Albermarle [sic], Greene, Madison, Rockingham , Augusta, Highland, Bath and that portion of Caroline , Westmoreland and Orange Counties not now controlled by the Washington District Council in the State of Virgin- ia, excluding all clerical employees, professional em- ployees, all other employees, guards and supervisors as defined in the Act. 4. Since on or about May 30, 1980, the Union has been lawfully designated as the exclusive bargaining represent- ative by a majority of the employees of the Respondent in the above appropriate unit. 5. On or about May 30, 1980, the Respondent signed an acceptance of agreement in which it approved and ac- cepted the terms of a collective-bargaining agreement in effect between the Eastern District Council of Carpen- ters and the Virginia Association of Contractors, Inc., and agreed to be bound by any subsequent renewals, 6 The amended complaint also alleges that the Respondent unlawfully refused to furnish certain requested information to the Union No findings are made in respect thereto in that it appears that the matter is now moot 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modifications, replacements, amendments, and addenda to the aforementioned agreement. 6. At all times material herein the acceptance of agree- ment dated May 30, 1980, was in full force and effect. 7. The Respondent's unilateral changes in the terms and conditions of employment established by the accept- ance of agreement dated May 30, 1980, resulted in a mid- term modification of the agreement in violation of Sec- tion 8(d) of the Act and constitutes a violation of Section 8(a)(5) and (-1) of the Act. 8. By bypassing the Union and dealing directly with its employees, the Respondent violated Section 8(a)(1) and (5) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I recommend that it cease and desist therefrom and that it take certain affirmative action de- signed to effectuate the policies of the Act. I further rec- ommend that the Board order the Respondent to comply fully with the acceptance of agreement dated May 30, 1980, and give it retroactive effect and that, pursuant to such agreement, the Respondent shall immediately put into effect and give retroactive effect to the agreement between the Eastern District Council of Carpenters and the Virginia Association of Contractors referred to and incorporated in the acceptance of agreement and make whole its employees for any loss of wages or other bene- fits they may have suffered as a result of the Respond- ent's deviation from the terms of the agreement, includ- ing but not limited to contributions to the welfare and pension plan. Monetary losses to employees, if any, to- gether with interest under the Order, shall be computed in the manner set forth in F W. Woolworth Co., 90 NLRB 289 (1950), Florida Steel Corp., 231 NLRB 651 (1977); and Isis Plumbing Co., 138 NLRB 716 (1962). De- terminations of interest, if any, on the moneys owed by the Respondent to the welfare and pension plan is left to the individual provisions of the employee benefit fund agreement. Merryweather Optical Co., 240 NLRB 1213 (1979). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Ne Di Construction Co., Inc., Hen- rico County, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Union in the appropriate unit set out below by refusing to comply 7 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses with the terms of the acceptance of agreement dated May 30, 1980, and to comply with the terms of the agreement referred to therein, between the Eastern Dis- trict Council of Carpenters and the Virginia Association of Contractors, Inc., and by refusing to make payments of health and welfare benefits and to utilize the Union as a source of carpenters. The appropriate unit is: All working foremen, journeymen carpenters and apprentices employed by Respondent in Northamp- ton, Accomac, Northumberland, Lancaster, Math- ews, Gloucester, Newport News, Hampton, Virgin- ia Beach, Norfolk, Chesapeake, Suffolk, Ports- mouth, Isle of Wight, Southampton, Sussex, Surry, York, James City, Charles City, Prince George, Dinwiddie, Greensville, Brunswick, Mecklenburg, Lunenburg, Prince Edward, Nottoway, Amelia, Cumberland, Powhatan, Chesterfield, Goochland, Hanover, Henrico, New Kent, King William, King and Queen, Middlesex, Essex, Richmond, Louisa, Fluvanna, Buckingham, Nelson, Albermarle [sic], Greene, Madison, Rockingham, Augusta, Highland, Bath and that portion of Caroline, Westmoreland and Orange Counties not now controlled by the Washington District Council in the State of Virgin- ia, excluding all clerical employees, professional em- ployees, all other employees, guards and supervisors as defined in the Act. (b) Unlawfully bypassing the Union and dealing direct- ly with its employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Fully comply with and give retroactive effect to the terms of the acceptance of agreement dated May 30, 1983, and to the agreement between the Eastern District Council of Carpenters and the Virginia Association of Contractors, Inc., referred to and incorporated therein and any renewals, modifications, replacements, amend- ments, and addenda of the agreement and make whole its employees for any loss of wages or other employee bene- fits they may have suffered as a result of the Respond- ent's deviation from or violation of any terms of said agreements, including but not limited to contributions to the welfare and pension plan, as set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Henrico County, Virginia facility copies of the attached notice marked "Appendix."8 Copies of a If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- Continued NE DI CONSTRUCTION CO. the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days 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 the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the amended com- plaint be dismissed insofar as it alleges violations of the Act other than those found in this decision. a] 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with the Eastern District Council of Carpenters, United Brother- hood of Carpenters & Joiners of America, AFL-CIO, CLC, as required by law, in the appropriate unit set out below by refusing to comply with the terms of the ac- ceptance of agreement dated May 30, 1980, which we executed with the Union and to comply with the terms of the agreement referred to and incorporated therein be- tween the Eastern District Council of Carpenters and the Virginia Association of Contractors, Inc. WE WILL NOT refuse to make health and welfare benefit payments and 503 utilize the Union as a source for carpenters as a required by the agreements. The appropriate unit is: All working foremen, journeymen carpenters and apprentices employed by us in Northampton, Acco- mac, Northumberland, Lancaster, Mathews, Gloucester, Newport News, Hampton, Virginia Beach, Norfolk, Chesapeake, Suffolk, Portsmouth, Isle of Wight, Southampton, Sussex, Surry, York, James City, Charles City, Prince George, Dinwid- die, Greenville, Brunswick, Mecklenburg, Lunen- burg, Prince Edward, Nottoway, Amelia, Cumber- land, Powhatan, Chesterfield, Goochland, Hanover, Henrico, New Kent, King William, King and Queen, Middlesex, Essex, Richmond, Louisa, Flu- vanna, Buckingham, Nelson, Albermarle [sic], Greene, Madison, Rockingham, Augusta, Highland, Bath and that portion of Caroline, Westmoreland and Orange Counties not now controlled by the Washington District Council in the State of Virgin- ia, excluding all clerical employees, professional em- ployees, all other employees, guards and supervisors as defined in the Act. WE WILL NOT unlawfully bypass the Union and deal directly with our employees. 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 fully comply with and give retroactive effect to the terms of the acceptance of agreement re- ferred to above and to the agreement between the East- ern District Council of Carpenters and the Virginia As- sociation of Contractors, Inc. referred to and incorporat- ed therein, and any renewals, modifications, replace- ments, amendments, and addenda to the agreements and make whole our employees for any loss of wages or other benefits they may have suffered as a result of our deviation from or violation of any terms of the agree- ments, together with interest including but not limited to contributions to the welfare and pension plan. NE DI CONSTRUCTION CO., INC.