300 Exhibit Services & Events, Inc.

300 EXHIBIT SERVICES & EVENTS 415 300 Exhibit Services & Events, Inc. and Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 631 affiliated with International Brotherhood of Teamsters and Southwest Re- gional Council of Carpenters and its Local 1780, Intervenor. Case 28–CA–22347 December 30, 2010 DECISION AND ORDER BY MEMBERS BECKER, PEARCE, AND HAYES On November 27, 2009, Administrative Law Judge John J. McCarrick issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. The National Labor Relations Board has delegated 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,1 findings,2 and conclusions, to 1 The Respondent excepts to many of the judge’s evidentiary rulings. It is well established that the Board will affirm an evidentiary ruling of an administrative law judge unless that ruling constitutes abuse of discretion. See Aladdin Gaming, LLC, 345 NLRB 585, 587 (2005), petition for review denied sub. nom. Local Joint Executive Board of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a careful re- view of the record, we find no abuse of discretion in any of the chal- lenged rulings. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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 reversing the findings. In doing so, we note that “[a] trier of fact need not accept uncontradicted testimony as true if it contains improbabilities or if there are reasonable grounds for concluding that it is false. It is well settled that a witness’ testimony may be contradicted by circumstances as well as by statements and that demeanor may be considered in such circumstances.” Operative Plasterers, Local 394, 207 NLRB 147, 147 (1973) [footnote omitted]; see also Richard Mel- low Electrical Contractors Corp., 327 NLRB 1112 fn. 1 (1999). We agree with the judge that Sec. 10(b) bars the Respondent’s chal- lenge to its earlier recognition of the Union based on the absence of proof of the Union’s majority status. In doing so, we find that the Respondent recognized the Union by its course of conduct in June and July 2008, more than 6 months prior to the Union’s filing of the first unfair labor practice charge alleging the Respondent’s refusal to bar- gain. During that period, the Respondent applied the Union’s collec- tive-bargaining agreement’s terms to its employees (e.g., the contractu- al requirements as to wages, benefits, and the grievance procedure). In addition, the Respondent’s president, Michael Cunningham, and secre- tary treasurer, Kurt Walsiak, acknowledged the Respondent’s contrac- tual relationship with the Union to its payroll services company, Em- ployco, in June/July 2008 email exchanges. The Respondent also was conspicuously silent when it failed to deny the existence of a contractu- al relationship after third-party beneficiary Western Conference of Teamsters Pension Trust Fund referred to the collective-bargaining modify his remedy,3 and to adopt the recommended Or- der as modified.4 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, 300 Ex- hibit Services & Events, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order as modified. 1. Substitute the following for paragraph 2(c). “(c) Within 14 days after service by the Region, post at its Las Vegas, Nevada facility, copies of the attached notice marked “Appendix.”25 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since February 6, 2009.” 2. Substitute the attached notice for that of the admin- istrative law judge. agreement between the Respondent and the Union in a series of letters to the Respondent and mailed it reporting forms required by the agree- ment. 3 The make-whole relief included in the judge’s Order shall be com- puted in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). 4 We shall modify the judge’s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice. 356 NLRB No. 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT do anything that interferes with these rights. More particularly: WE WILL NOT refuse to recognize or bargain collective- ly with Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 631, affiliated with the Inter- national Brotherhood of Teamsters (the Union) as the representative of the appropriate unit of employees by repudiating and refusing to honor our collective- bargaining agreement with the Union. The appropriate bargaining unit (the unit) is: All employees of the 300 Exhibit Service & Events, Inc. who perform erection, touch-up painting, disman- tling and repair of all exhibits including Decorating, Freight, I&D, Specialty Crafts, and leadman/foreman, excluding all other employees, office clerical employ- ees, guards and supervisors as defined in the Act. WE WILL NOT refuse to honor the terms of the collec- tive-bargaining agreement we have entered into with the Union. WE WILL NOT in any similar way frustrate your exer- cise of the rights stated above. WE WILL adhere to our collective-bargaining agree- ment with the Union during its term and any renewals of it, and WE WILL make whole our employees for any loss- es of wages and benefits, including those who would have been referred to us by the Union had we requested employees through the dispatch procedure as provided for in our collective-bargaining agreement with the Un- ion. WE WILL, on request, bargain with the Union, as the exclusive collective-bargaining representative of the em- ployees in the Unit, concerning wages, hours, and terms and conditions of employment of the unit 300 EXHIBIT SERVICE & EVENTS, INC. Mara-Louise Anzalone, Esq., for the General Counsel. Gregory E. Smith, Esq. and Mohamed A. Iqbal Jr., Esq. (Li- onel, Sawyer & Collins), of Las Vegas, Nevada, for the Re- spondent. John M. Masters, Esq., of Las Vegas, Nevada, for the Charging Party. Kathleen M. Jorgenson, Esq. (DeCarlo Connor Shanley), of Los Angeles, California, for the Intervenor. DECISION STATEMENT OF THE CASE JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Las Vegas, Nevada, on August 4 and 5, 2009, upon the complaint, as amended,1 issued on May 27, 2009, by the Regional Director for Region 28. The complaint alleges that 300 Exhibit Services & Events, Inc. (Respondent) violated Section 8(a)(1) and (5), and 8(d) of the Act by withdrawing recognition of and repudiating its col- lective-bargaining agreement with Teamsters Local 631 (Un- ion). Respondent filed a timely answer to the complaint stating it had committed no wrongdoing and specifically that it did not enter into a valid collective-bargaining agreement with the Union. Findings of Fact2 Upon the entire record herein, including the briefs from the General Counsel, Charging Party, and Respondent,3 I make the following findings of fact. I. JURISDICTION Respondent admitted it is an Illinois corporation with an of- fice and place of business located in Las Vegas, Nevada, where it is engaged in providing trade show installation and disman- tling services. Annually, Respondent in the course of its busi- ness operations performed services valued in excess of $50,000 in states other than the State of Nevada. Based upon the above, Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1 At the outset of the hearing, counsel for the General Counsel made a motion to amend the complaint by adding language alleging that Respondent violated Sec. 8(d) of the Act. The parties also stipulated that complaint subparagraph 5(a), as amended, was an appropriate unit. In addition counsel for the General Counsel filed a “Notice of Intent to Amend Complaint” at the hearing adding subparagraphs 5(g), (h), and (i) (GC Exh. 2). The amendments were granted. Respondent denied the allegations of the complaint, as amended. In addition Respondent added a further affirmative defense to the complaint that the alleged collective-bargaining agreement was an agreement encompassed by Sec. 8(e) of the Act. 2 In its brief, Respondent moves that its rejected Exhs. 6, 7, 11–13, and 17–19 as well as testimony of its witnesses that was stricken be entered into the record. Respondent sets forth no reasons for why I should reverse my rulings, nor does Respondent specify what witness or what testimony it seeks to have entered. The Motion is denied. 3 On September 24, 2009, Respondent filed a motion to accept and consider late file posttrial brief. Good cause having been shown for the late filing and there being no objection filed, I grant Respondent’s motion. 300 EXHIBIT SERVICES & EVENTS 417 II. LABOR ORGANIZATION Respondent admitted and I find that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts4 Respondent was established on about May 5, 2008, for the purpose of setting up and removing exhibitor’s booths at trade shows throughout the United States. The initial equal share- holders of Respondent were: Michael Cunningham, president; Kurt Walisiak, secretary treasurer; William Muhich and Joseph Holgado, vice presidents for sales. In May 2008, Edward Ro- driguez was Respondent’s Las Vegas City manager.5 In Sep- tember 2008, Rodriguez became a 15-percent owner of Re- spondent’s stock and was made a vice president. Cunningham and Rodriguez left another exhibit installation company named “Willwork” when Respondent was formed. In 2006 Cunningham had helped negotiate an agreement6 that allowed 21 of Willwork’s employees to become union jour- neymen without completing the Union’s apprenticeship pro- gram. The Willwork agreement reflected that the 21 Willwork employees voted to have the Union as their collective- bargaining agent. The agreement further states that until Will- work’s employees obtain journeyman status through the ap- prenticeship program, they are limited to dispatch to Willwork if they join the Union or pay the applicable hiring hall fee. About 10 to 11 of Willwork’s former employees joined Re- spondent when it was established. At the time Respondent was created, Cunningham was told by union business agent, Laura Sims, that Respondent needed to obtain payroll and benefits bonds in order to utilize union labor. Respondent utilized the services of Employco, a payroll ser- vices company for the payment of its employees’ wages and benefits as well as mandatory deductions. There is no dispute that Employco had no authority to direct the day-to-day opera- tions of Respondent or its employees. While Respondent con- tends that it utilized an Employco collective-bargaining agree- ment with the Union to secure union labor in Las Vegas, no evidence of such an agreement was produced nor did an Em- ployco witness testify that such an agreement exists. On about May 19, 2008, Respondent secured its first contract from Ozram—the Ozram booth at a Light trade show in Las Vegas. Cunningham notified Rodriguez he would be the lead- man on the Ozram job at the Light show the same day he se- cured the Ozram agreement. On May 24, 2008, Holgado faxed a letter to the Union notifying them that Rodriguez was Re- spondent’s Las Vegas City Manager in charge of coordinating 4 On September 23, 2009, counsel for the General Counsel filed a Motion to Correct the Record. Good cause having been shown and no objection having been filed, the motion is granted. 5 As city manager, Rodriguez had the authority to settle employee grievances and effectively recommended the hiring and firing of em- ployees. I find that Rodriguez, in his capacity as city manager, was a supervisor within the meaning of Sec. 2 (11) of the Act. 6 R. Exh. 14. payroll for Respondent.7 The installation work was to com- mence on May 25, 2008. On May 21, 2008, Rodriguez made a request through the Union’s hiring hall for eight men Cunning- ham said he wanted to install and remove Ozram’s exhibit booth at the Light show. Presumably these were the employees who left Willwork to join Respondent. On May 22, 2008, at the union hall, Rodriguez was told by a union agent that he was not a journeyman member of the Union and thus was not enti- tled to be dispatched until all journeymen on the hiring hall list had been exhausted. When Rodriguez explained that he was a journeyman union member, the union agent said that Rodriguez was part of the Willwork group and confiscated Rodriguez journeyman’s card. Rodriguez explained what had happened to Respondent’s President Cunningham. On May 23, 2008, Cun- ningham told Rodriguez to pick up some documents from Un- ion Agent Tim Koviak (Koviak). Cunningham explained he would fly to Las Vegas the following day to look at the docu- ments. When Rodriguez met Koviak on May 23, 2008, Koviak gave him an envelope containing three documents, a short-form collective-bargaining agreement with the Union, a Western Conference of Teamsters Pension Trust Fund Certificate and a Trust Acceptance and Control Data form.8 Koviak said he needed to have the documents returned to his house the follow- ing day. Cunningham did not arrive in Las Vegas the following day so Rodriguez met Koviak on May 24 at the Mirage Hotel. When Rodriguez gave the documents to Koviak, Koviak said the contracts were not signed. Rodriguez explained that Cun- ningham did not make it to Las Vegas. Koviak said that Cun- ningham needed to sign the contracts or Respondent was not working tomorrow at the Light show. Rodriguez briefly looked at the documents and signed Cunningham’s name to each of them and returned the contracts to Koviak. The short-form agreement binds the signatory employer to the collective- bargaining agreement between GES Exposition Services, Inc. and the Union9 (GES agreement). The GES agreement con- tains a hiring hall provision10 that specifies that journeymen must be referred before extra board workers. Journeymen are defined as individuals qualified as journeymen under a prior collective-bargaining agreement or individuals certified as journeymen by the apprenticeship training program.11 Accord- ing to Respondent’s witnesses, Respondent did not become aware that Rodriguez had signed the three documents until February 2009. However, Rodriguez admitted that after May 20, 2008, he signed Cunningham’s signature on a bond agree- ment12 the Union required on behalf of Respondent. Cunning- ham identified the bond form and admitted he did not sign it. On June 9, 2008, Western Conference of Teamsters Pension Trust sent Cunningham a letter enclosing reporting forms in accordance with their collective-bargaining agreement. The certified receipt was signed by Cunningham.13 On June 10, 7 GC Exh. 5. 8 GC Exhs. 13, 14, and 15. 9 GC Exh. 16. 10 Id. at pp. 5–8, art. 4, sec. 1E. 11 Id. at page 6, art. 4, sec. 1A. 12 GC Exh. 12. 13 GC Exh. 9. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418 2008, the Western Conference of Teamsters Pension Trust sent Cunningham written notification of labor agreement ac- ceptance14 to the same address as the June 9, 2008 letter advis- ing that Respondent’s collective-bargaining agreement had been accepted. In addition Walisiak received a copy of the August 20, 2008 letter15 from the Western conference of Team- sters Pension Fund demanding remittance of pension contribu- tions required by Respondent’s labor agreement. Pursuant to the provisions of the GES agreement, the Union refused to refer Respondent’s employees, who had previously worked for Willwork,16 until the journeymen referral list had been exhausted. On June 19, 2008, Cunningham met with Union Representa- tives Tim Koviak, Terry Shartung, and Laura Sims to discuss the journeyman status of Respondent’s employees. The union agents told Cunningham that Respondent’s employees, the former employees of Willwork, were not valid journeymen since the Willwork addendum was invalid. The Union, in the addendum to its short-form collective-bargaining agreement with Willwork, agreed to dispatch to Willwork 20 of its em- ployees named in the addendum notwithstanding the provisions of the hiring procedures set forth in the GES Exposition Ser- vices labor agreement.17 Cunningham tried to get the Union to agree to the same addendum for Respondent that it had given to Willwork. However, the Union refused, taking the position that such an agreement was illegal. On July 16, 2008, Tina Chen of Employco sent Cunningham an email requesting a copy of Respondent’s contract with the Union. Cunningham responded he would get a copy from Ro- driguez.18 That same day Chen requested a copy of Respond- ent’s collective-bargaining agreement from Respondent’s secre- tary in Las Vegas who replied that there was a copy in Chica- go.19 On July 18, 2008, Chen emailed Walsiak that the Team- sters Southwest Administrators had mailed a copy of Respond- ent’s contract with the Union to Walsiak and Walsiak replied, “No problem.”20 On August 4, 2008, Walsiak replied to Chen’s email saying that he had not received the contract from the Teamsters. On about July 28, 2008, Cunningham, Muhich, and Walisiak met with Union Representatives Koviak, Don McNab, and Sheridan at the union hall. Cunningham again attempted to have his employees grandfathered into the Union as journey- men. The Union again refused to allow Respondent’s employ- ees to become journeymen. However, Cunningham stated that he continued to abide by the collective-bargaining agreement paying wages, benefits, and using the union hiring hall for re- ferrals. On January 30, 2009, Cunningham met with Union Business Agent Steve LoPresti (LoPresti) and once again tried to have 14 GC Exh. 8. 15 GC Exh. 11. 16 The terms of the agreement between the Union and Willwork spe- cifically limited the Willwork employees to be treated as journeymen only for hiring hall requests made by Willwork. 17 GC Exh. 16. 18 GC Exh. 4, p. 1. 19 Id. at p. 2. 20 Id. at p. 6. Respondent’s employees grandfathered as union journeymen. LoPresti said it could not be done. On February 5, 2009, Cunningham and Danny Gai, Re- spondent’s New Orleans, Louisiana City manager, met with LoPresti and Union Secretary-Treasurer John Phillipenas. Cunningham said that he wanted to have his employees made union journeymen and work out a contract like Willwork did. The Willwork addendum was displayed and Phillipenas said, “Are you talking about this document?” When Cunningham said it was, Phillipenas said the addendum was illegal and that the Union could not discuss this anymore as to the 21 former Willwork employees. After further heated discussion Philli- penas left. LoPresti told Cunningham he wanted to discuss a grievance but Cunningham said he was there only to negotiate a contract and get his employees back in the Union. LoPresti continued to press the grievance and Cunningham said he would pay the grievance if LoPresti could show him a copy of Respondent’s contract with the Union. LoPresti was unable to find the contract. Initially when called by the General Counsel Cunningham testified that LoPresti said “Well, if you don’t have contract with us you can just go down the street and sign with the Carpenters.” Later when called by Respondent Cun- ningham testified that LoPresti said, “go to the Carpenters” but admitted he could not recall if LoPresti had prefaced his state- ment with if you don’t have a contract with us. According to Gai’s testimony on cross-examination LoPresti said, “You know what? I can’t help you. Since you don’t have a contract with us, go to the Carpenters? Maybe they can help you.” Gai was absolutely sure that LoPresti said this. Gai’s affidavit dat- ed May 14, 2009, states, “If the employer didn’t have a contract to go see the Carpenters.”21 At that point the meeting ended. On February 6, 2009, Respondent signed a collective- bargaining agreement22 with the Carpenters Union which grandfathered Respondent’s employees as journeymen. According to Cunningham, he did not learn that Rodriguez had signed Cunningham’s name to the short-form contract until February 25, 2009. At all jobs Respondent performed in Las Vegas it paid wages and benefits pursuant to the Union’s collective-bargaining agreement. Respondent also processed and settled grievances raised by the Union. All labor for jobs Respondent performed in Las Vegas was secured through the union hiring hall. B. The Analysis Counsel for the General Counsel contends that Respondent violated Section 8(a)(1) and (5) and Section 8(d) of the Act when it repudiated its collective-bargaining agreement with the Union. The General Counsel’s theory of the case asserts that Rodriguez was clothed with apparent or ratified authority to sign the May 24, 2008 short-form agreement with the Union and that moreover Respondent adopted the short-form agree- ment by its conduct. Counsel for the General Counsel contends that Respondent violated Section 8(a)(1) and (5) and Section 21 I credit Cunningham’s version of the statement when initially called as a witness by the General Counsel. It is consistent with Gai’s affidavit. 22 R. Exh. 8. 300 EXHIBIT SERVICES & EVENTS 419 8(d) of the Act when it repudiated its collective-bargaining agreement with the Union. The General Counsel’s theory of the case asserts that either Rodriguez was clothed with apparent or ratified authority to sign the May 24, 2008 short-form agreement with the Union or in the alternative Respondent adopted the short-form agreement by its conduct. Respondent counters that Rodriguez had no authority to enter into a collec- tive-bargaining agreement with the Union, that no contract may be formed by an employer’s conduct where it has not been established that the Union enjoys majority support in the bar- gaining unit, that the Respondent’s conduct was insufficient to show it had adopted the contract by its conduct and that the Union repudiated the collective-bargaining agreement. 1. The apparent authority of Rodriguez In SSC Corp., 317 NLRB 542, 546 (1995), the Board restat- ed the standard for determining apparent authority it had ap- plied in Dentech Corp., 294 NLRB 924, 925 (1989), quoting from Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82 (1988): Apparent authority is created through a manifestation by the principal to a third party that supplies a reasonable basis for the latter to believe that the principal has authorized the al- leged agent to do the acts in question. NLRB v. Donkin’s Inn, 532 F.2d 138, 141 (9th Cir. 1976); Alliance Rubber Co., 286 NLRB 645, 646 fn. 4 (1987). Thus, either the principal must intend to cause the third person to believe that the agent is au- thorized to act for him, or the principal should realize that this conduct is likely to create such a belief. Restatement 2d, Agency Section 27 (1958), Comment. Two conditions must be satisfied in order to establish appar- ent authority, a manifestation by the principal to a third party and a reasonable basis for the third party to believe that the authority granted to the agent encompasses the contemplated activity. See also Cora Realty Co., LLC, 340 NLRB 366 (2003). On about May 19, 2008, Cunningham notified Rodriguez he would be the leadman on the Ozram job at the Light show. Sometime after May 20, 2008, Rodriguez also signed Cunning- ham’s signature on a bond agreement the Union required of Respondent. On May 21, 2008, Rodriguez made a request through the Union’s hiring hall for eight men Cunningham said he wanted to install and remove Ozram’s exhibit booth at the Light show. On May 24, 2008, Holgado faxed a letter to the Union notifying them that Rodriguez was Respondent’s Las Vegas City manager in charge of coordinating payroll. On May 24, 2008, when Rodriguez signed Cunningham’s name to the short-form union contract, Cunningham had made no represen- tations to the Union concerning Rodriguez’ authority to sign a collective-bargaining agreement. Based upon the above, it does not appear that Respondent manifest to the Union any facts that would lead to a reasonable belief that Rodriguez had authority to sign Cunningham’s name to a collective-bargaining agreement nor to believe that Rodri- guez himself had authority to negotiate and sign a collective- bargaining agreement for Respondent. From about May 19, 2008, until September 2008, Rodriguez held the posi- tion of Respondent’s Las Vegas City manager, a lower level supervisory position. His duties were limited to requesting employees from the Union’s hiring hall, directing employees, handling grievances, and recommending the hiring and firing of employees. Nothing in these duties coupled with the absence of any representations by Respondent to the Union regarding Rodriguez’ further authority, created a reasonable basis for the Union to conclude that Rodriguez had apparent authority to sign the short-form agreement. Local Union No. 483, 242 NLRB 573, 575 (1980). 2. Did Respondent adopt the union short-form agreement through its conduct? In DST Insulation, Inc., 351 NLRB 19 (2007), the Board held that a binding agreement may be formed even when the parties have not reduced to writing their intent to be bound citing Haberman Construction Co., 236 NLRB 79, 85–86 (1978), enfd. 641 F.2d 351 (5th Cir. 1981). The Board said it considers whether the party at issue has engaged in a course of conduct that reflects its intent to follow the terms of the agree- ment. The adoption by conduct rule applies to both 9(a) and 8(f) contracts. ESP Concrete Plumbing Co., 327 NLRB 711, 713 (1999). In ESP, the Respondent applied the collective- bargaining agreement to its work, acquiesced in a judgment against it for unpaid contributions to the Bricklayers’ Pension Fund and held itself out as a union contractor. Under these circumstances the Board said, “it makes little difference wheth- er that conduct be appraised as expressing the intent of the par- ties to an ambiguous contract or as the creation of an estoppel against repudiation.” Arco Electric Co. v. NLRB, supra, 618 F.2d at 699. The Board noted, as the Supreme Court observed in McNeff, “Having had the music [the Respondent] must pay the piper.” McNeff, supra, 461 U.S. at 271. The Board went on that in the language of Deklewa, the Respondent “voluntarily recognize[d] the union, enter[ed] into a collective-bargaining agreement, and then set about enjoying the benefits and assum- ing the obligations of the agreement.” 282 NLRB at 1387. See also CAB Associates, 340 NLRB 1391, 1401–1402 (2003). Initially Respondent contends that it was not even aware that Rodriguez had signed the short-form agreement with the Union until Rodriguez’s admission in February 2009. I find this con- tention incredible. Commencing in early June 2008 the Western Conference of Teamsters Pension Trust sent Respondent a series of three let- ters advising that it had a collective-bargaining agreement with the Union. In July 2008, Respondent’s own payroll service sent a series of emails requesting a copy of Respondent’s col- lective-bargaining agreement with the Union. Both Cunning- ham and Respondent’s Las Vegas administrative aide replied they would get the payroll service a copy. When the payroll service advised Walsiak that a copy of Respondent’s contract with the Union was being sent to him, he said there was “no problem.” Further, Respondent acted as if it had a collective-bargaining agreement with the Union in that it applied all the terms of the GES agreement to the jobs performed in Las Vegas by paying wages and benefits pursuant to the Union’s collective- bargaining agreement, processing and settling grievances DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 420 raised by the Union and securing all labor through the hiring hall. Respondent’s contention that its conduct over an 8-month time period is insufficient to establish a contract through adop- tion. I disagree. Nothing in the Board’s cases cited by Re- spondent suggests there is a minimum time period for evaluat- ing if a party has adopted a contract through course of conduct. Rather the Board looks at the party’s conduct to determine if it shows that the party has adopted the contract. Here everything Respondent did from the time Rodriguez signed the short-form agreement until Respondent repudiated its agreement with the Union by signing a collective-bargaining agreement with the Carpenters reflected that it applied the terms and conditions of the Union’s contract to its jobs in Las Vegas. Respondent’s contention that its actions manifest an intent that it was bargaining for an initial contract is not supported by the evidence. It is clear that what Respondent sought from the Union was not bargaining for an initial labor agreement, but rather a side agreement like Willwork’s that merely grandfa- thered Respondent’s employees as journeymen so that they could be referred from the hiring hall. At no time did Respond- ent submit any bargaining proposals for any terms of a collec- tive-bargaining agreement as would be expected from an em- ployer seeking an initial collective-bargaining agreement. Ra- ther Respondent acted as if it were already bound by the terms of a collective-bargaining agreement as noted above. Respondent’s contention that there can be no contract creat- ed by its actions since it has not been established that the Union enjoyed majority support is not supported by the law. In Alpha Associates, 344 NLRB 782 (2005), the Board held that Section 10(b) of the Act precludes an employer from de- fending against a refusal-to-bargain allegation on the basis that its initial recognition of the union was invalid or unlawful. See Route 22 Honda, 337 NLRB 84, 85 (2001); Morse Shoe, 227 NLRB 391, 394 (1976), supplemented by 231 NLRB 13 (1977), enfd. 591 F.2d 542 (9th Cir. 1979); North Bros. Ford, 220 NLRB 1021, 1021 (1975). The Board has further held whether or not the recognized union had proffered evidence demonstrating its majority status at the time of recognition is irrelevant. The Board in Oklahoma Installation Co., 325 NLRB 741, 742 (1998), stated that the rule concerning nonconstruc- tion industries is plain: If an employer voluntarily recognizes a union based solely on that union’s assertion of majority status, without verification, an employer is not free to repudiate the contractual relation- ship that it has with the union outside the 10(b) period, i.e., beyond the 6 months after initial recognition, on the ground the union did not represent a majority when the employer rec- ognized the union, enf. denied on other grounds 219 F.3d 1160 (10th Cir. 2000). see Moisi & Son Trucking, 197 NLRB 198 (1972). Accordingly, as the Respondent’s voluntary recognition of the Union in this case on May 24, 2008, when Respondent be- came signatory to the short-form agreement binding them to the recognition clause of the GES agreement,23 more than 6 months prior to the Union’s filing of the first unfair labor practice 23 GC Exh. 16, at p. 4. charge alleging the Respondent’s refusal to bargain, Section 10(b) bars the Respondent’s challenge to its earlier recognition of the Union based on the absence of proof of the Union’s ma- jority status. I find that by its actions Respondent has adopted the May 24, 2008 agreement signed by Rodriguez. 3. Did the Union repudiate its agreement with Respondent? Finally, Respondent asserts that the Union repudiated its col- lective-bargaining agreement with Respondent. The evidence does not support this contention. At the February 5, 2009 meet- ing between Cunningham and Danny Gai, Respondent’s New Orleans, Louisiana City Manager and Union Business Agent Lo Presti and Union Secretary-Treasurer John Phillipenas, I have previously found that LoPresti’s comment that Respondent could sign with the Carpenters was conditional, predicated by the assumption that Respondent did not have a contract with the Union. Such a conditional disclaimer is not effective to repudi- ate interest in the bargaining unit or the contract with Respond- ent. Longshoremen Local 1294 ILA (Cibro Petroleum Prod- ucts), 257 NLRB 403, 406 (1981). When Respondent signed the collective-bargaining agree- ment with the Carpenters on February 6, 2009, it repudiated its agreement with the Union and thereby violated Section 8(a)(1) and (5) and Section 8(d) of the Act. CONCLUSION OF LAW Respondent has engaged in conduct in violation of Section 8(a)(1) and (5) and Section 8(d) of the Act by failing and refus- ing to recognize the Union and by unilaterally refusing to honor the terms of the collective-bargaining agreement Respondent entered into with the Union. The above are unfair labor practic- es affecting commerce within the meaning of Sections 2(6), (7), and (8) of the Act. REMEDY In determining make-whole relief herein, counsel for the General Counsel urges that the current practice of awarding only simple interest on backpay and other monetary awards be replaced with the practice of compounding interest. Counsel for the General Counsel requests that I recommend that the Board adopt a policy that requires interest to be compounded on a quarterly basis. Under its current policy, the Board calculates interest on monetary remedies using the short-term Federal rate plus three percent. See New Horizons for the Retarded, 283 NLRB 1173 (1987). In that it is the Board’s policy at this time to award simple interest on backpay and other monetary awards, I have no au- thority to rule on the General Counsel’s request for an award of compound interest and defer this issue to the Board. Having found that the Respondent has engaged in certain un- fair labor practices, I shall recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the purposes of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended24 24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- 300 EXHIBIT SERVICES & EVENTS 421 ORDER The Respondent, 300 Exhibit Services and Events, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain in good faith with Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 631, affiliated with the International Brother- hood of Teamsters (the Union), as the exclusive collective- bargaining representative in the following appropriate unit: All employees of the Respondent who perform erection, touch-up painting, dismantling and repair of all exhibits in- cluding Decorating, Freight, I&D, Specialty Crafts, and lead- man/foreman, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. (b) Failing and refusing to honor the terms of the collective- bargaining agreement we have entered into with the Union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for employees in the above described unit. (b) Adhere to our collective-bargaining agreement with the Union during its term and any renewals of it, and make whole mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. employees for any losses of wages and benefits, including those who would have been referred by the Union had Respondent requested employees through the dispatch procedure as provid- ed for in the collective-bargaining agreement with the Union. (c) Within 14 days after service by the Region, post at its fa- cilities in Las Vegas, Nevada, copies of the attached notice marked “Appendix.”25 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Company’s authorized representative, shall be posted by the Company immediately on receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Company have gone out of business, closed a facility involved in these proceedings, or has laid off employees, Respondents shall du- plicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Company at any time since February 6, 2009. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. 25 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted Pursuant to an Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”