Snellco Construction, Inc

320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Snellco Construction , Inc and Drywall Tapers and Pointers of Greater New York, Local 1974, a/w International Brotherhood of Painters and Allied Trades, AFL-CIO Case 2-CA-22596 January 12, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On August 24, 1988, Administrative Law Judge Robert T Snyder issued the attached decision The General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed ' The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings Alice Joyce Garfield Esq for the General Counsel Jerrold Goldberg Esq (Epstein Becker & Green P C) of New York, New York for the Respondent Burton Hall Esq (Hall & Simon) of New York New York for the Charging Party DECISION STATEMENT OF THE CASE ROBERT T SNYDER Administrative Law Judge This case was heard by me on April 28 1988 at New York, New York The complaint which issued in February 4, 1988 alleges that Snellco Construction Inc (Snellco or Respondent) refused to bargain in violation of Section 8(a)(1) and (5) of the Act by failing and refusing to exe cute a collective bargaining agreement to which it had previously agreed with the Drywall Tapers and Pointers of Greater New York Local 1974 a/w International Brotherhood of Painters and Allied Trades AFL-CIO (Union or Local 1974) thereby repudiating the agree ment and withdrawing recognition from the Union as the exclusive collective bargaining representative of its em ployees in an appropriate unit Respondent filed an answer denying that it had ever agreed to recognize the Union or to execute an agreement that it had previously proposed and accordingly denied the conclusionary al legations that it had violated the Act The parties were each represented by counsel at the hearing and were pro vided full opportunity to introduce relevant evidence to examine and cross examine witnesses to make opening and closing statements and to file briefs with me The General Counsel and Respondent have filed briefs that have been carefully considered On my observation of the witnesses the entire record in this proceeding, and the briefs filed, I make the fol lowing FINDINGS OF FACT I JURISDICTIONAL FACTS At all times material Respondent, a New York corpo ration, with an office and place of business located at 585 Washington Street New York New York has been en gaged as a general contractor and drywall and ceiling subcontractor in the building and construction industry Annually, Respondent in the course and conduct of its business operation purchases and receives at its place of business and its various New York State jobsites goods and materials valued in excess of $50,000 from firms lo cated within New York State which firms purchase the goods and materials directly from firms located outside New York State Respondent admits and I find that at all times material it has been an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Respondent concedes , and I find that at all times ma terial the Union has been a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction In essence it is the General Counsels theory that the Respondent reneged on an agreement to recognize the Union and execute a collective bargaining agreement made outside the 10(b) period but reaffirmed within it The Respondent denies making any such agreement B The Evidence The Respondent has been in existence for 10 years as a general contractor, performing its own carpentry and drywall construction work both as general and subcon tractor but normally subcontracting all other work when performing as a general contractor The construction work it performs is normally rehabilitation work on ex isting structures At the time of the hearing it employed 11 employees Matthew Snell who formed the company is its president and is in overall charge of its day to day construction operations in the field and at jobsites He is assisted among others by a carpentry foreman Since its formation Barbara Thompson has also been secretary treasurer of the Respondent as well as its office manager in charge of billing paying bills reviewing incoming mail answering telephones preparing payroll and sign 292 NLRB No 48 SNELLCO CONSTRUCTION 321 ing the paychecks There is evidence that she also re sponds to requests for materials and supplies made by employees at jobsites by arranging to have the materials forwarded to the jobsites In February 1986 Respondent succeeded another firm as subcontractor for the carpentry and drywall work on a construction project already underway at the New York City Technical College in downtown Brooklyn (the jobsite), on which Thomason Industries was em ployed as the general contractor The project was fi nanced by the Dormitory Authority of the State of New York and therefore subject to section 220 of the New York State Labor Law as Public Work requiring wages paid to workmen to be not less than the prevailing rate and the supplements (health, welfare, nonoccupational disability, retirement, vacation benefits holiday pay, and life insurance) to be provided to workmen in accordance with the prevailing practices in the locality The prevailing rate of wages is defined by the law as the rate paid in the locality, as defined by virtue of col lective bargaining agreements between bona fide labor organizations and employers of the private sector pro vided the employers employed at least 30 percent of the workers in the same trade in the locality The rate shall be annually determined no later than 30 days prior to July 1 of each year The prevailing practices in the local ity regarding payment of supplements also is defined as the practice of providing supplements as provided by collective bargaining agreements covering at least 30 percent of the workers in the trade in the locality In February 1986 for the first time Respondent en tered its only collective bargaining relationship since its inception, with the District Council of Carpenters Snellco began work at the jobsite the same month with its own carpenters Joseph Giordano had been business representative of the Union since 1972 and its financial secretary since 1970 Toward the end of March or beginning of April 1987 Giordano learned that construction work was being performed at New York City Technical College He had seen a dumpster outside the fence at the jobsite and had reviewed Dodge Reports, which list construc tion jobs let out for bid or authorized in the New York City metropolitan area On April 3, 1987 Giordano vis ited the jobsite and noticed one taper working In an en suing conversation Giordano learned that the workman s name was Paul Frederique that he was employed by Snellco and was the only one on the job Frederique ex pressed an interest in having Local 1974 represent him in collective bargaining Frederique said he was earning $18 60 per hour Giordano told him union contract wages were $19 75 an hour Giordano said he would call Snellco and ask for them to sign an agreement with the Union If Snellco refused he would place Frederique on another job paying union wages Later the same day Giordano telephoned Snellco As explained by Giordano a woman answered he identified himself as the business agent from the Drywall Tapers Local and said he would like to speak to one of the prin cipals of the Company pertaining to the job on Jay Street and Tillary New York Technical Another woman got on the line and identified herself as Barbara Thompson Giordano told her he was calling her because a taper on the job wants to be represented by their local and they did not have a collective bargaining agreement with Snellco and he was asking if she would be interest ed in signing a trade agreement with their local Accord ing to Giordano, she agreed she said yes, I would She also said that on their job she had already signed with the carpenters local and she had signed with the laborers local and she knows that she had to sign with the locals she had to do work with Giordano told her he would mail out a contract pack age that contained the trade agreement the stamp orders, payroll reports bond form principals of the Company Thompson responded she would certainly look at it, sign it and mail it back to them He told her about the wages and that everything was in the contract She said the taper would be on the job for a short period of time because the current work was being completed and more taping would have to await the completion of further sheetrock installation In the interim the job would be closed down for a week or so and the taper would then return Giordano also informed Thompson that if she needed more manpower the local would supply it Thompson said they are a very small outfit They only have one or two men and if they need other bodies would it be all right for them to hire Giordano said as long as the man was qualified and was getting the wages that would be fine with them On the following workday, Monday April 6 1987 Giordano had his office secretary prepare a typed speed message and mail to Thompson a series of documents comprising a contract package The message read En closed is a contract package which you requested The booklet and the Interim Agreement is the Trade Agree ment Please read & sign the agreement as soon as possi ble and return to me Any further questions please call Thank you (signed) Joe Giordano The message listed the Local s address but not its telephone number Gior dano testified he had his secretary enclose a trade agree ment interim agreement, stamp order, form payroll report an application for trade agreement including space to list the form of business names and data about the principals and agreement to be bound by the Union s rules regulations bylaws and trade agreement, standard bond form with acknowledgement calling for the depos it of a proper bond or its cash equivalent with the Joint Industry Board as security for the faithful performance of the terms of the agreement, and a form to be complet ed detailing information about the Company The Respondent stipulated to its receipt of the agree ments stamp order, and payroll report but not the re maining documents Giordano could not specifically recall sending each document comprising the usual pack age in this case, particularly since he did not personally insert them in the mailing envelope He agreed it was possible some documents were omitted In any event Respondent did receive the documents comprising the collective bargaining agreement and the forms necessary to evidence proper employer contribu tions to the benefit funds and receipt of the appropriate benefits by its employees covered by the agreement 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The trade agreement is a booklet containing the col lective bargaining agreement between Local 1974 and the Metropolitan New York Dry Wall Contractors Asso ciation, Inc, a multiemployer association representing dry wall contractors in the New York metropolitan area and also containing a form agreement between the Local and independent employer adopting its terms The agree ment ran from August 1, 1983, to July 31, 1986 The in terim agreement , a one page document extended the ex pired agreement pending establishment of a new trade agreement to run until July 31, 1989, with amendment to the wage section providing for a rate of $19 17 per hour from August 1, 1986, to January 3, 1987, $19 75 from February 1 to July 31 1987, $20 34 from August 1, 1987 to January 31, 1988, and succeeding increases for each successive 6 month period to the agreement s expiration The payroll reports were to be used to forward the em ployer s contributions to the Taper s industry insurance fund, calculated on the basis of gross earnings for actual hours worked for each covered employee A separate stamp order permitted the employer to prepay contribu tions and thereby purchase fringe benefit stamps for issu ance to its employees along with weekly pay, to notify them that the contributions have been made and they are eligible to receive the benefits Giordano next met Frederique on May 15, 1987, in his office where the employee executed a combined applica tion for membership in the Union, collective bargaining authorization, and political contribution and dues check off authorizations and made a down payment of $200 on the union initiation fee of $977 45 At this time Frederi que told Giordano he was still getting the same $18 60 per hour Giordano said he would call up Barbara Thompson to straighten out the matter and if Frederique did not receive the $19 75 increase to call him back in a week A day later on May 16, 1987, Giordano telephoned Thompson He told her Frederique had not received the $19 75 and she said she would take care of that matter He also said that as of this time, looking through the office records he noticed that the contract package was not signed and we did not have it She responded that the contract package was on her desk and that she would get to it sign it and also make the corrections in Paul Frederique's wages By the next pay period, for the week ending May 22, 1987, Frederique s rate of pay had increased to $19 75 per hour During the first week in June, Frederique telephoned Giordano to tell him that there was another taper on the job and this man also wanted the Union to represent him Giordano told Frederique to have the taper work a week or two and then come to the Union to sign the forms Frederique also told Giordano he was not receiv mg the fringe benefit stamps Following this conversa tion Giordano sent another speed message to Thompson at Snellco It is dated June 11, 1987, and contained the following message On April 6, 1987 we sent you a con tract package which you requested This contract was to be signed and returned to me Without this signed con tract the men on your payroll cannot receive their bene fits Please call me concerning this matter Telephone # (212) 242-8500 Thank you [signed] Joseph Giordano Giordano directed his secretary to prepare and mail the message and saw her stamp it, place it with other outgo ing mail, and leave the office with it and the other mail at the end of the day Respondent denied ever receiving it A few days later Giordano learned from the union office receptionist, Kathy Voekl that Thompson had called and left a message for him that she had called and was going to sign the agreement and mail it out This hearsay testimony was not offered for its truth but to ex plain Giordano s subsequent course of conduct and was received on that basis On July 6 the second taper employee, Abner Fred eric, I Paul Frederique s nephew, came to the Local s office, signed the Union s application for membership and multiple authorizations, and paid $100 toward his ini tiation fee In early August Frederic called Giordano to report that he had not received the increased rate of $20 34, which was effective under the Union s association con tract as of August 1 Giordano said he would call Bar bara Thompson and have the matter taken care of and if Frederic did not receive the increase in a week or so call and Giordano would get it done Giordano then called Thompson on August 6 He told her as of August 1 the contract rate went up She said she was not aware of it Giordano said Frederic did not receive his money Thompson replied she would take care of that immedi ately Giordano also said he had not received the signed trade agreement She apologized explaining that she ran the office all by herself and the different construction jobs placed heavy demands on her, and the carpenters are also a little angry at her for being late with payments to the funds Thompson added she would get to it as soon as possible and mail it out When Giordano also ex plained that the insurance coverage of the men also hangs on Snellco making the payments and she has to make them, she agreed to do that signing the agreement and mailing everything out For the week ending August 11 Frederic started receiving his wage at the $20 34 rate Thereafter according to Giordano into December 1987 he made three or four more calls to Thompson on or about October 20 November 15, the end of Novem her and/or in December During the first two he kept telling her that Snellco had not made the insurance con tributions and the insurance is issued at the end of De cember if the men have the working hours and the con tributions are paid Thompson said she would get to it In one of these calls Giordano said in response to her promise, please do so because your going to leave me an alternative I do not want to take and that is to get the contract signed and the benefits paid Giordano ex plained that on each of these calls Thompson was agree able that she would do it she was sorry that she did not get to it but she was busy she would get it out and she was sorry As of December 7, 1987 Giordano still had not re ceived contributions or the signed agreement On that day he went down to the jobsite and told the two tapers ' Also known as Fred Abner SNELLCO CONSTRUCTION that Snellco had not signed the agreement or paid the contributions and the Local could no longer have the manpower working for a contractor that refuses to pay the benefits to the men The two men were removed from the job and Giordano informed the Thompson In dustries superintendent The superintendent said he would call the office to inform them of the problem The following day, December 18, Giordano returned to the jobsite to make sure the tapers had not returned to work He also visited the superintendents office and learned that Snell was at the site Giordano saw Snell on the sidewalk walking with the carpenter foreman He stopped Snell, introduced himself as business agent of the Drywall Tapers Local, and told him about the problem on the job Snell said he would pay from today on, but he would not pay the back contributions Giordano told him that was unacceptable to the local union Snell re sponded, I do not have to sign a contract with you, you do what you want to do Giordano then went back to the construction superintendent told him Snell was not in agreement, we cannot work anything out and I am keeping my manpower off the job On December 22 Giordano returned to the site and explained his problem to a few of the agents for other crafts, that he would not want any tapers on the job and if any came on the job he would take action The job superintendent asked if he could call Snellco to settle the matter before Giordano did anything and Giordano agreed On December 24 Giordano returned to the jobsite and saw two tapers working He identified himself and his union affiliation learned one taper was named Paul who claimed a union affiliation but would not show identifica tion and the other who, Giordano believed was named Wallace was an ex local 1974 member and both were working for Snellco Giordano could not locate the su perintendent To date he has not received the signed agreement nor has Snellco made any contributions to the union funds Under cross examination Giordano noted that in his initial conversation with Thompson he had also told her if she had any questions about the agreement to call him He also acknowledged that his dealings with Snellco was the first occasion in his experience that an independent employer had refused to sign the standard association wide agreement He had thus never collectively bar gained or negotiated with an independent employer In the past independent employers invariably have signed the association agreement without objection In this case Giordano insisted that without having first asked Thompson to sign she had volunteered that she would sign the agreement-an agreement that to his knowledge she had never seen Significantly however , under the Union s usual practice an employer need not express agreement but only an interest in entering one in order for it to receive the standard forms This practice was explained by Giordano in the following exchange with Respondent counsel (Tr 24) 323 Mr Giordano, looking at 3A through H the booklet and these forms Are these the standard forms you send to employees you re attempting to organize in the city-standard form that you would send to each one of those? A Only after we have an agreement We don t send out unless we have an agreement Tentative agreement Q Sorry? A The conversation that the contractors inter ested in signing an agreement with us, then we pro ceed to send them this When questioned on cross examination whether he had the message that the receptionist had taken of Thomp son s call a few days after he had sent his June 11 speed message to the Company, Giordano explained he had thrown it away, that he did not place great significance on it at the time that he thought Thompson was return ing or responding to his message and would get out the contract This was 2 months after his initial call He ac knowledged that he did not hear from Thompson again in June or July Giordano s diary, in which he made notes of events in the course of his day to refresh his memory, records his brief meeting with Snell on December 18 as follows Matt Snell on job from Snellco Won t pay benefits he owes No note was made of Snell s offer to make pay ments prospectively although Giordano reaffirmed that portion of the conversation Paul Frederique testified and in the main corroborated Giordano about the relative times and nature of their contacts which led to his applying for membership in the Union, authorizing the Union to represent him in bargaining making periodic payments towards his initi ation fee and receiving the two increases in his rate of pay Frederique appeared to contradict Giordano on in cidents regarding communications between them, which I do not deem to be serious discrepancies and which should also be tempered by the fact that they may re Elect in part , Frederique s limited ability to express him self easily and fluently in the English language 2 One matter concerned Abner Frederic, his nephew Paul Fre derique denied contrary to Giordano s testimony that he had called the Union to advise that Abner was on the job Regarding the other matter Frederique testified that rather than Giordano coming to the job to pull them off as Giordano had testified he as well as Abner had each received letters in December to report to the Union to discuss benefits When they got there Giordano told them to stop the job In fact unbeknownst to Giordano both employees returned to work the following day and continued to work for Snellco at the jobsite for another 2 to 3 weeks into January 1988 Paul Frederique also testified at some length about his having commenced employment for Snellco at the job site in November 1986 At that time, and until April 1987 he was paid in cash, $650 weekly, off the books Voir Dire 2 Fredenque s first language is French Creole At times in his testimo ny he exhibited some difficulty in phrasing his answers in whole sen By Mr Goldberg tences or with an understanding of proper grammar 324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD General Counsel produced pay stubs showing Fredenque was paid by check with normal deductions for the pay periods ending April 21 and 28, 1987 Frederique also testified to having performed work in May 1987 for Snellco at a job at the Apollo Theatre on 125th Street in Manhattan and other work as an independent contractor for Snell at a private 4 story residence doing painting and taping on evenings and weekends for which be re ceived $1000 per floor The parties stipulated that on April 30 and May 20 1987 Snellco paid Frederique by checks drawn from its regular, rather than its payroll ac count, in the net sum of $1000 each These represented the only payments Frederique received for work per formed for Snellco as an independent contractor prior to May 20 1987 While Respondent disputed that Frederique had per formed any work for it as an employee at the jobsite or anywhere else for that matter prior to May 1987, Freder ique s April pay stubs contradict this assertion 3 Further more, Barbara Thompson provided a letter for Frederi que dated May 12, 1987 confirming his employment as a taper for Snellco since January 1987, and the record con tans evidence of his working at only one other jobsite the Apollo Theatre, which Frederique, without contra diction had fixed as having been performed in May 1987 and Snell recalled as having finished in November or December 1987 Respondent produced two witnesses Thompson and Snell who contradicted all the basic elements of Gior dano s story of Respondent entering and then reneging on an agreement Thompson testified that in April 1987 she received the first telephone call from Giordano She had never spoken with him before He was friendly extolling the virtues of his union He had skilled professionals and she would never have to worry about people being out sick If there was a push period at a job, the Union could supply plenty of workers He told her he would like to send a package of materials Thompson said he could send it Giordano said he would talk to her again Thompson denied that Giordano had asked if she would sign the agreement If he had she would have told him that she does not do those things Thompson had earlier explained that she was aware that Snellco has no labor agreements with unions other than the carpenters and Snell has no interest in other agreements She also contradicted Giordano s claim that she informed him of an agreement with the laborers union Thompson noted that from time to time unions call the office seeking recognition, particularly where Snellco is general contractor on a job listed in the Dodge Reports Unions have tried to get Snellco to sign an agreement thus insuring that all the subcontractors 3 Thompson claimed that Snellco may have reimbursed Frederique for work he performed as employee for a subcontractor Akady that Snellco initially hired to perform the taping before it took over the taping work itself but which contractor defaulted in payment to it employees How ever Snellco failed to produce ant canceled checks or other records showing such payments the Snellco pay stubs for the two weeks in April produced by Frederique are identical in every respect to other pay stubs he received and show no evidence that they represented payment for work Fredenque performed for Akady Frederique also denied ever having been employed by Akady will be union She has also received contracts and book lets from various unions some of which she glances through, others of which she gives to the estimator be cause he keeps those kinds of records and still others she throws away Shortly after her conversation with Giordano she re ceived a package of materials including a cover speed message through the mails She disputed that she had re quested the contract package as Giordano s covering message stated She did not open it then but kept it near her in the office first on her desk and later on the floor next to her typewriter, for a considerable time, and only opened it much later when the issue arose as a result of the Union finally pressing the matter Giordano called five or six times in all She did not make notes and did not recall the specific dates He was friendly and chatty He asked if she had a good weekend when was she taking vacation, and did she get a chance to read the package yet On those occasions when he asked this latter question, Thompson responded that she honestly had not had time Thompson denied telling Giordano in any of the sub sequent calls that she would sign the agreement and send it in as soon as possible She explained that she could not sign it anyway it is not something that she could commit the Company to, earlier explaining she had no authority to make union agreements Neither did she inform Gior dano that somebody else would sign an agreement Thompson was adamant that she never agreed to recog nize the tapers union as the representative of Snellco s employees and did not discuss with Giordano any terms contained in the drywall tapers agreement By sometime in September 1987 when Giordano asked if she was making payments to his union she an swered no, that they had no agreement with his union Giordano replied that he was going to have to take some type of job action if Snellco did not start paying benefits Thompson told him to do what he had to do When Giordano in the same conversation referred to the em ployees as his men she told him he had not supplied them with any men Giordano never accused Snellco of committing unfair labor practices With respect to determining the rates to be paid to the tapers Thompson testified that she asked John Tercasio Snellco s estimator, who maintains a book containing prevailing scales what was the current prevailing wage She guessed that the Company had to meet the prevail ing wage on the New York Technical College job Ac cording to Thompson the increases in wage rates that Frederique and Abner received during 1987 were made as a direct result of Tercasio s informing her of changes in the prevailing rates of tapers Thompson also disputed Giordano s claim that on his last visit to the jobsite in December he saw the two men he described as Snellco tapers on the job Aside from Frederique and Abner only one other taper worked for Snellco on this job a Patrick Samuels and he started work in November 1987 No one named Paul or Wallace was employed as a taper Neither according to both Thompson and Snell did Snellco employ anyone off the SNELLCO CONSTRUCTION 325 books Snell explained he did not do so because he was a union shop and was bonded Thompson and Snell also denied that there had been any hiatus or break in work for tapers at the jobsite once the work got underway in May On cross examination, Thompson listed a number of the unions that over time, had contacted the Snellco office seeking agreements covering different jobsites, generally those on which Snellco was employed as gen eral contractor She noted that if they ask her, presum ably to sign an agreement, she tells them that Mr Snell is not interested in joining the union In spite of her uni form response some of the unions forward materials When any of these union representatives ask, Thompson has informed them that she is not authorized to sign any agreements When they do not ask Thompson has not volunteered to inform them of the limitation on her au thority It is apparent that Giordano not having asked her this question she did not advise him of this limita tion Thompson also agreed that she never informed Giordano that Snell did not want to sign an agreement with any union other than the carpenters because he never asked (Tr 197 ) Thompson also noted that in spite of Giordano s series of telephone calls, culminating in the fall with his threat to take action if contributions were not made to union funds, she did not inform Snell of his contacts and de mands until she learned from Snell himself about his brief meeting with Giordano in December She also could not recall any reference by Giordano to the rates of pay of the tapers on the job attributing the changes in their rates to her assumption that the workers were enti tied to receive the prevailing wage as determined by Snellco s estimator Later Thompson was emphatic in de nying that Giordano ever told her she had to pay Fre derique a particular rate She did not believe that fringe benefits had to be paid in accordance with prevailing practices even though the job in issue was financed by the Dormitory Authority of the State of New York The estimator did not inform her of any such requirement re garding fringe benefits To her knowledge the tapers on the job in question were not paid any fringe benefits by Snellco although such direct payments depending on the amounts, could be deemed equivalents of the supple ments provided under collective bargaining agreements and thereby meet the requirements of section 20 of the New York State Labor Law Action Electrical Contractors Co v Goldin 64 N Y 2d 213 (1984) Matthew Snell Snellco s president and chief officer, confirmed that Thompson had no authority to make agreements with unions or to deal with labor relations Prior to 1987 Snellco had never performed any taping work with its own employees Snell also confirmed that various unions have contacted Snellco from time to time as a result of a reports of Snellco having won a job to obtain agreement directly with Snellco, or for informa tion about the subcontractors who may be working on jobs on which Snellco is the general contractor These unions have included the teamsters, steamfitters plumb ers and electricians Snellco has long standing policies since its inception with which Thompson is familiar that the only one who deals with unions is himself and that Snellco will never recognize any union other than the carpenters According to Snell the tapping work began at the job site in May 1987 Snell gave the job to Akady After 3 days the three men employed were not paid two of them walked away, and only Paul Frederique stayed Snell knew Frederique from a private job he had done for him as an independent subcontractor on a brown stone on 120th Street in Manhattan which started around November 1986 The following Monday in May Frederique showed up at the jobsite and asked Snell for work, also explaining that he was not a member of the tapers union Snell hired him but said he did not have an agreement with the tapers union because he was a union carpentry shop Frederique told Snell he did not care and went to work Snell also in June subsequently hired Abner whom he knew from his having assisted Frederi que on the 120th Street job A third taper Samuels was later hired in November On a day in December, around 10 30 or 11 00 a in , Snell received a telephone call from a representative of the general contractor Thomason, informing him that he had learned from the contruction manager at the jobsite that Giordano had pulled the tapers from the jobs Snell replied that his foreman John Pitzle was there if there was any problem with the tapers he would be the first one on the phone to the office, and Snell had not heard from him Earlier, on the prior day Pitzle had told Snell that Abner had advised him that he had received a letter and was to go to the Union about some benefits Snell had approved this Snell did not go to the jobsite, but testified that the tapers worked that day, the next day, and continued working until the job ended around December 22 except for some corrective work that went into January 1988 Shortly before Christmas about December 19 Snell was at the jobsite as usual with his foreman when he learned there was a representative of a union who wanted to see him Snell left word that the representative could meet him in 15 minutes when he would be walking through the cafeteria At the time arranged a man walked up to where he was conferring with the foreman identified himself as Giordano explained he represented the tapers and asked are you going to sign the agreement to which Snell replied no Snell denied that he told Giordano he would agree to make payments prospectively Under cross examination, Snell explained that the time worked by employees on jobs such as the one at New York Technical College is kept by Foreman Pitzle in a notebook and later given to Barbara Thompson for entry onto the payroll sheets Snell also acknowledged that Thompson may have informed him that Giordano from Local 1974 called and they were going to send in some thing but he did not recall any extended discussion about this union with her After the documents were received Thompson probably told him in passing that she had re ceived the package After his brief meeting with Gior dano in mid December when Snell told Thompson about it, she told him by the way he had called and he 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had sent me a contract He did not read the material, and to his knowledge, neither had Thompson C Concluding Findings Before turning to resolution of the basic factual dispute posed by the countervailing accounts of Giordano and Thompson (and to a lessor extent, Giordano and Snell), necessary to a determination whether contractual agree ment was arrived at and then renounced , Respondent raises two preliminary issues that must first be addressed Respondent asserts that the complaint is time barred inasmuch as the agreement on which the Government relies was made more than 6 months prior to the filing of the charge 4 As a subsidiary contention , Respondent points to the reliance , in the charge, upon the April date of agreement, which, because it could not be directly al leged in the complaint, was dropped in favor of the date of the August 6, 1987 telephone conversation, but which nonetheless constitutes the only appropriate date and is therefore in fatal variance with the complaint It is clear that the charge filed on December 21, 1987, was timely with respect to the August 6, 1987 telephone conversation The complaint alleges that agreement was made on that date to recognize the Union and to execute a collective bargaining agreement previously proposed by the Union The General Counsels evidence, if cred ited, shows that on August 6 Thompson reaffirmed an understanding previously made in April and affirmed in May to execute and forward the agreement The rule embodied in Section 10(b) is inapplicable to such con duct, which, though originating outside the 6 month period, continues during the period Southwest Regional Joint Board v NLRB, 441 F 2d 1027 25 (D C Cir 1970) There is no fatal variance between the charge and complaint since the General Counsel was free to rely on conduct within the 6 month period preceding filing of the charge, which supported the charge allegation of violation of Section 8(a)(1) and (5) of the Act by the basis set forth or by other acts as asserted in the typed catchall sentence appended to the body of the charge The law is clear that the charge merely constitutes the necessary triggering device to the investigation whereas the complaint provides the more particular notice to Re spondent by means of a formal pleading setting forth the specific acts and conduct on which the General Counsel relies in alleging the commission of unfair labor prac tices Flex Plastics Inc, 262 NLRB 651 (1982) The Gen eral Counsel has here fairly met the limitation generally recognized, that the complaint bear such a relationship to the charge allegations that it may not appear to have ini tiated the proceeding on its own motion without refer ence or general reliance on the charge See NLRB v Kohler Co 220 F 2d 3 (7th Cir 1955) In this respect, Respondents reliance on Asko Inc 202 NLRB 330 (1973) is misplaced since the charge there, unlike the in stant charge made no reference direct or indirect, to the unlawful conduct first alleged in the amended charge filed well beyond the 6 month limitation period Respondent also claims that the General Counsel has failed to establish that Barbara Thompson , as Snellco s representative whose conversations with the Union it relied on to establish the agreement to recognize the Union and execute its contract, had authority to act on Snellco s behalf or to bind it to any collective bargaining relationship As the General Counsel notes in her brief, Section 2(13) of the Act in so many words rejects any require ment that the specific acts performed were actually au thonzed or subsequently ratified in order for the actor to be found to be an agent of another person 5 Even where actual authority is lacking, for example to consummate an agreement , an agent may be found to have bound her principal under the doctrine of apparent authority Such authority may result when the principal does something or permits the agent to do something that reasonably leads a third party to believe the agent had the authority she purported to exercise See Walnut Hill Convalescent Center, 260 NLRB 258 (1982) Retail Clerks Local 1364 (Food Employers), 240 NLRB 1127 (1979), Restatement 2d Agency § 170 From all that was apparent to Giordano in his dealings with her, Thompson s words and conduct bore every in dication that she could deal with him and consummate an understanding to recognize the Union and agree to the terms and conditions set forth in the agreement he forwarded to her Thus, while Thompson may have been limited in her authority indeed specifically prohibited from entering a relationship with any union except the carpenters or acting on behalf of Snellco in labor deal ings with any union, Snell having assumed all responsi bilities in that area those limitations were private and ad mittedly never communicated to Giordano Neither did Thompson ever make Giordano aware that there was any principal other than herself in active management of the enterprise during the period the Government asserts an agreement was arrived at On Giordano s identifying his union title and affiliation and requesting to speak with one of the Company s prin cipals Barbara Thompson immediately got on the phone, gave her name and engaged in an interchange in which she agreed at the very least that he could forward the Union s form agreement and other papers and that she would review them On subsequent telephone commune cations she provided a personal excuse for her failure to examine the contract package and finally disputed his assertion that the tapers were his men because he had not supplied them and refused to make the insurance pay ments because Snellco had no agreement with the Union All of Thompson s admitted statements portray a compa ny functionary with some responsibility in transacting business with union agents Indeed Thompson confirmed that she received inquiries and contracts from union rep 4 The charge was filed on December 21 1987 and the agreement is alleged as having been made on April 3 1987 well outside the 6 month period mandated by Sec 10(b) of the Act which states in relevant part no complaint shall issue based upon any unfair labor practice occur ring more than six months prior to the filing of the charge with the Board S Sec 2(13) provides In determining whether any person is acting as an agent of an other person so as to make such other person responsible for his acts the question of whether the specific acts performed were actually an thorized or subsequently ratified shall not be controlling SNELLCO CONSTRUCTION 327 resentatives in the course of her employment responsibil itles Surely, Giordano had no inkling from the way she comported herself on his inquiries that she lacked the au thority to accept or reject his requests The employees who authorized the Union to represent them could truthfully report to Giordano, if they had been asked, that Thompson ran the office, saw to the de livery of materials to the jobsite, signed their paychecks as an officer of the company, and provided one of them with signed letters as treasurer, on behalf of Snellco, at testing to his employment history, status, work record, and excellent prospects for continued employment all in the same timeframe in which she dealt with Giordano Each of these actions denotes a responsible official, ac customed to making business judgments and representing Snellco's management in personnel matters At no time in her contacts with Giordano did Thompson defer to another principal or disclose any limitation on her au thority Even when Giordano threatened some form of action to force Snellco s compliance with what he claimed to be the parties agreement, if she is to be be lieved, Thompson handled the matter on her own with out then notifying Snellco s president and chief executive officer All the foregoing evidence leads me to conclude that Thompson by her conduct, and Snell by his inaction, in spite of his admitted knowledge of Giordano s contacts with her reasonably led Giordano to believe that Thompson possessed the authority to deal with the tapers union and conclude an agreement with it The central issue is now reached Was an agreement struck between the parties as a result of the August 1987 communication of the two agents and if so did Thomp son, and later Snell renege on that agreement in viola tion of the Act) As a preliminary matter dealing with the Union s ma jority status at the time of the alleged agreement it is true that it was only during Giordano s April 1987 con tact that he informed Thompson he represented the single taper on the New York Technical College job Subsequently, Frederique and later, shortly after his hire Abner both executed union authorization cards That representation continued unabated into August and beyond, until completion of the job in January 1988 Ac cordingly I conclude that during the August 6 conversa tion alleged in the complaint, the Union represented the two tapers employed by Respondent at the jobsite Respondent offered only the most meager evidence to dispute the Union s representation of these employees Snell reported a conversation in May in which Frederi que disclaimed membership in the tapers union and inter est in Snellco s status as nontapers union shop At the time, Frederique probably had not yet executed his union membership application, authorization and checkoff dated May 15 although he had expressed an interest in joining more than a month earlier I do not credit Snell s attributing to Frederique a lack of interest in the Union noting among other things Respondents lack of credi bility shown by both Thompson and Snell, in denying in the face of the strong documentary evidence to the con trary, that Frederique had not been employed by Snellco or at the jobsite prior to May 1987 In any event, Thompson, with whom Giordano dealt did not dispute or deny his representing Frederique as interested in union representation Her mid December comment to Giordano that he had not supplied Snellco with the tapers does not conflict with the Union s having been ex clusive representative of the taper employees since, at least August 6 1987, the date of the alleged agreement Even earlier, in September, Thompson did not dispute the Union s representative status, only that Snellco had no agreement with which Giordano could compel com pliance Snell also, by December, before his conversa tion with Giordano, was admittedly well aware of his employees affiliation with the Union, when Abner (joined by Frederique) received his permission to leave the job to go to the union office to discuss benefits, and he shortly afterward received a report that both tapers had been pulled from the job by Giordano Neither did Respondent deny the appropriateness of the unit once the General Counsel amended the com plaint to allege all full time and regular part time tapers and painters employed by Respondent at the jobsite as a unit appropriate for the purposes of collective bargain ing Thus, I further conclude that the General Counsel has sustained the allegations of paragraphs 8 of the com plaint, that since August 6 the Union has been exclusive representative of the employees in the aforesaid appro priate unit I am not however, prepared to credit Giordano s con tention that Thompson on behalf of Respondent, agreed to execute the tapers 1983 multiemployer agreement as extended A number of factors lead me to this conclu sion Giordano s testimony makes it evident that he had not in all his prior experience, been faced with an inde pendent employer, like Snellco who did not immediately fall into line and adopt in toto the multiemployer agree ment Giordano had thus no experience by which to guide his own conduct when an employer to whom the form agreement had been forwarded chose to ignore the material As Giordano noted, an employers expression of interest in the documents was sufficient to justify his mailing them His generally soft sell approach had proven effective in the past and there was no reason to believe it would not work once he had initiated contact with Snellco If he had some positive feedback he could have dealt with that Giordano, however was now up against an intransigent employer While he may have be lieved he had obtained a commitment to execute his package on his initial call, I cannot credit such an illogi cal and irrational result Thompson was an experienced office manager for the firm It is beyond logic and good sense to believe that she would have committed her employer to terms and conditions of employment with which she was not famil iar without first having received and reviewed the con tract and then referred it to Snell for his consideration and determination Yet Giordano s testimony recounting his April 3 conversation with Thompson would lead to just such an improbable and inconceivable result She was also mindful of Snell s two injunctions regarding dealings with unions other than the carpenters and Snell's exclusive authority over labor relations Thus, 328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD while Thompson had apparent authority to negotiate and agree insofar as Giordano was concerned, her very limit ed actual authority must be carefully weighed in deter mining her reaction here While Giordano may have be lieved from Thompson s generally cordial and friendly response he was dealing with a compliant employer, Thompson was, in my judgment buying time during which the Union could be held at bay while the job moved to completion It is significant in judging this matter to note that Giordano at no time made demand for a bargaining meeting primarily because he believed he had an em ployer ready to adopt the form agreement When that did not turn out to be the case it was too late for the Union to seek to negotiate Giordano s attribution to Thompson of a statement acknowledging a bargaining relationship with the laborers union, when, in fact, no such relationship existed, further undermines Giordano s version of their communications By virtue of my credibility finding, I also conclude that Respondent did not recognize the Union as exclu sive bargaining representative and is accordingly not liable to bargain in good faith with respect to a unit that admittedly ceased to exist by January 1988 Aside from the factors I have noted, I find significant in resolving credibility in favor of Thompson the fact that the General Counsel failed to corroborate Gior dano s version of their conversations in April and August in particular, with the testimony of a witness, re ceptionist Voekl who was a recipient of a telephone message in June during which Thompson allegedly reit erated her commitment to sign the agreement and mail it to the Union-a witness under the Charging Party s di rection and control Although the General Counsel ad duced the substance of the telephone message she did not offer it for its truth While the message may have ex plained Giordano s subsequent delay in forcing the issue it was the credibility of the message itself that goes to the heart of the merits of this case Having failed to call or explain its failure to call a witness apparently available to buttress the Union s interpretation of Thompson s positive response to the Union s demand I am left with the inference that the receptionists testimony would have been unfavorable to the General Counsels case Interstate Circuit v US 306 U S 208 225-226 (1939) See also Greg Construction Co 277 NLRB 1411 1419 (1985) Pur O Sil Inc 211 NLRB 333 337 (1974) Spar tenburg Sportswear Co 116 NLRB 1914 1926 (1956) Voekl s absence lends Thompson s denial of any such statement agreeing to sign and forward the agreement additional probative force, Paudler v Paudler 185 F 2d 901, 903 (5th Cir 1950) cert denied 341 U S 920 In evaluating Thompson s testimony I am not unmind ful of the fact that her report about Frederique s starting date as an employee in May 1987 conflicts with her letter listing a January 1987 date and fails to account for the pay stubs covering 2 weeks work in April While serving to cast doubt on Thompson s veracity in that area, I am unable to conclude against the weight of the credible evidence as I view it that her responses to Giordano in their telephone exchange in August spells out or supports a finding that Respondent agreed to rec ognize the Union and execute the agreements Giordano had forwarded It is also noteworthy that even under Giordano s versions of his conversations into August Thompson continued to maintain she had not been able to get to the package of documents surely behavior that is inconsistent or equivocal at best, with respect to the conclusion that the General Counsel urges that she had agreed to sign the agreement On the other hand such behavior lends support to a more compelling inference which I have previously suggested that Thompson was putting off Giordano as long as it was possible for her to do so So too Snell s attempt to portray himself as unaware of Thompson s dealings with Giordano does not ring completely true His reluctant admissions of some under standing that the tapers union was in contact with the office and had forwarded a contract and supporting doc uments probably shields more knowledge of the matter than he was about to disclose voluntarily Snell s denial of the full extent of Frederique s employment history with his firm was also contradicted and his explanation of having hired Frederique when the taper subcontractor failed was also not supported with documentary evi dence In his brief negative response to Giordano s ques tion whether he was going to sign the agreement, Snell appeared not to exhibit any surprise that the Union was making such a demand on his firm a somewhat unlikely occurrence given his self professed ignorance of Thomp son s prior contacts with Giordano Nonetheless, and in view of Respondents prior consistent refusal to comply the Union s entreaties to sign the agreement and make the requisite fund contributions, I am not prepared to conclude that Snell acknowledged any responsibility to make future contributions particularly at a time when the job was substantially completed Giordano s failure to have noted this damaging admission in his diary fur ther supports this finding While Respondent may have been able to corroborate Snell s December response because of Carpenter Fore man Pitzle s presence at the scene I do not find that an inference of Pitzle s unfavorable testimony is necessarily warranted or that Respondents failure here unlike the General Counsels noted earlier warrants a different con clusion on the issue of Snellco s responsibility to execute the agreement The hearing was completed in 1 day and Respondent was not placed on notice that Giordano would testify to this alleged admission Further the Gen eral Counsel did not establish nor did Snell disclose Pit zle s precise location when Giordano confronted him Fi nally it is the General Counsels burden to establish the agreement and I do not find this conversation as signifi cant in resolving the ultimate issue as the ones held with Thompson in August and earlier on with the General Counsel relies in establishing Respondents responsibility The telephone message Thompson left with the Union s receptionist would have constituted an independent cor roboration of the admissions Giordano attributed to her on August 6 and earlier and as such stand on a higher plane than Snell s alleged offer to make future contribu tions which is not as conclusive SNELLCO CONSTRUCTION 329 I am left finally with the General Counsels argument that since Respondent increased the tapers wages to the contract rate shortly after Giordano brought the lesser rates to Thompson s attention this provides evidence of compliance with an important contract term and sup ports an inference that Respondent had agreed to adopt the tapers contract However, it is also evident that the tapers contract formed the basis for the prevailing rate required to be paid by contractors on public work per formed in New York Thompson had access to the inter im extension agreement setting forth the new rates and Snellco's estimator was her regular source of wage infor mation on prevailing rate requirements Thus it is just as valid to draw an inference that the tapers wages were reset in accordance with the statutory mandates as the one the General Counsel seeks, that Snellco revised the rates in accordance with an obligation under the agree ment It is probable that Thompson who at first did not recall but then later denied the exchange received word about the rate changes from Giordano on the two occa sions he claimed he brought them to her attention and used this information to verify the changes in prevailing wages from the estimator 6 before incorporating the new rates on Snellco s payroll The receipt of that informa tion and Thompson s agreement to change the rates however, does not alone warrant the conclusion that Thompson thereby agreed to pay the tapers under the agreement Snellco s failure to make payments of fringe benefits in accordance with the prevailing practice does not aid in resolving this matter Thompson informed Giordano that Snellco would not purchase the stamps 6 Snellco was late in complying with the prevailing wage The $19 75 tapers rate was effective February i to July 31 1987 Frederique did not receive this figure until the payroll period ending June 9 1987 after working at the site at least since mid April Also the prevailing rate schedule was published August 26 1987 well after the two rate changes were made by Snellco Neither fact is determinative of Snellco fixing rates to comply with the agreement Snellco may have been delinquent by choice Recall Frederique s claim of receiving his wages off the books until April which although denied by Snell is at least supported by Snellco s admission of Frederique s employment since January The publi cation date did not foreclose inclusion of dates 6 months prior thereto and supports the inference that the information was available in some other form from the State before August and Snell refused to make the fringe benefit contribu tions Thompson exhibited a certain unfamiliarity with the prevailing practice requirements under the New York Labor Law and at the time the two tapers were the only nonrepresented employees apparently subject to the prevailing rate requirements Thus Snellco s pay ment of prevailing wage coupled with its failure to make the fringe payments directly could have been due to any one of a number of factors none of which were related to enforcement of the Union s collective bargaining agreement In sum, I conclude that the General Counsel has failed to show, by a preponderance of credible evidence that Respondent ever agreed to recognize the Union as the exclusive collective bargaining representative of its tapers and painters employed at the jobsite or to execute the Union s collective bargaining agreement and thus it never repudiated that agreement or withdraw recogni tion from the Union as alleged in the complaint Accord ingly I shall recommend dismissal of the complaint in its entirety CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of the Act 2 The Union is a labor organization within the mean ing of the Act 3 The General Counsel has not established by a pre ponderance of the evidence that the Respondent has vio lated the Act as alleged in the complaint On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed7 ORDER The complaint is dismissed in its entirety 7 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses