Safway Steel Products, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 2001

333 N.L.R.B. 394 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394
Safway Steel Products, Inc. and Local 2819, United
Brotherhood of Carpenters and Joiners of
America. Case 29–CA–22769
February 26, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On March 14, 2000, Administrative Law Judge Steven
Davis issued the attached decision. The General Counsel
filed limited exceptions and a supporting brief.
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 brief and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below1 and to adopt the recommended Order as
modified.
AMENDED CONCLUSION OF LAW
Insert the following as Conclusion of Law 5.
“(5) By failing and refusing to implement the terms of
the memorandum of agreement reached by the parties in
May 1999, entitled, “Addendum Article J.#1, Benefit
Funds” as further described above covering payments to
the Union’s trust fund for its bargaining unit employees,
the Respondent violated Section 8(a)(1) and (5) of the
Act.”
AMENDED REMEDY
Substitute the following for the second paragraph.
“The Respondent shall execute the above-described
addendum between itself and the Union and give effect
to its provisions and pay to the Hollow Metal Trust Fund
the amounts of increased contributions set forth in the
addendum retroactive to January 1999, in accordance
with the Board’s decision in Fox Painting Co., 263
NLRB 437 (1982), with any additional amount to be
computed in accordance with the Board’s decision in
Merryweather Optical Co., 240 NLRB 1213 (1979).”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Safway
Steel Products, Inc., Brooklyn, New York, its officers,
agents, successors, and assigns shall take the action set
forth in the Order as modified.

1 We find merit in the General Counsel’s limited exceptions to the
judge’s failure to include a consistent provision in his conclusions of
law, remedy, Order, and notice that the Respondent implement the
agreement reached by the parties in May 1999, retroactively to January
1999, and that payment of funds into the Union’s trust fund should also
be retroactive to that date. Therefore, the conclusion of law, remedy,
Order, and notice are modified accordingly.
1. Substitute the following for paragraph 1(a).
“(a) Failing and refusing to execute and implement the
addendum to the contract between itself and the New
York City Industrial Council of Carpenters, Local Union
2819, United Brotherhood of Carpenters and Joiners of
America entitled “Addendum Article J.#1. Benefit
Funds” embodying the terms of an agreement reached in
May 1999.”
2. Substitute the following for paragraph 2(b).
“(b) Upon the execution of the Addendum, give retro-
active effect and implement its provisions and pay to the
Hollow Fund Metal Trust Fund the amounts of increased
contributions as set forth in the Addendum, with interest
retroactive to January 1999.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT fail or refuse to execute or implement
the Addendum to the contract between us and the New
York City Industrial Council of Carpenters, Local Union
2819, United Brotherhood of Carpenters and Joiners of
America entitled, “Addendum Article J.#1. Benefit
Funds” embodying the terms of an agreement reached in
May 1999.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL forthwith execute and implement the ad-
dendum to the contract between us and the Union enti-
tled “Addendum Article J.#1. Benefit Funds” embodying
the terms of an agreement reached in May 1999.
WE WILL on the execution of the Addendum, give ef-
fect to its provisions and pay to the Hollow Metal Trust
Fund the amounts of increased contributions set forth in
the Addendum retroactive to January 1999.
SAFWAY STEEL PRODUCTS, INC.

David Pollack, Esq., for the General Counsel.
Thomas Bianco, Esq. (Kaufman, Schneider & Bianco), of Jeri-
cho, New York, for the Respondent.
Wendell Shepherd, Esq. (Roy Barnes, P.C.), of Elmsford, New
York, for the Union.
333 NLRB No. 55
SAFWAY STEEL PRODUCTS 395
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge and a first amended charge filed on May 28 and August
23, 1999, respectively, by Local 2819, United Brotherhood of
Carpenters and Joiners of America (Union) a complaint was
issued against Safway Steel Products, Inc. (Respondent) on
August 25, 1999.1
The complaint alleges essentially that during negotiations
pursuant to a reopening of the parties’ collective-bargaining
contract to consider an increase in welfare fund benefits, a
complete agreement was reached on an increase in welfare
costs for unit employees. The complaint further alleges that the
Union requested that Respondent execute a memorandum of
agreement containing that agreement but it has refused to do so,
and has also refused to abide by the terms of that agreement, all
in violation of Section 8(a)(1) and (5) of the Act.
Respondent’s answer denied the material allegations of the
complaint and asserted 2 affirmative defenses, which will be
discussed, infra. On January 19, 1999, a hearing was held be-
fore me in Brooklyn, New York. On the evidence presented in
this proceeding, and my observation of the demeanor of the
witnesses, and after consideration of the briefs filed by all par-
ties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation having its principal office and
place of business located at 370 Greenpoint Avenue, Brooklyn,
New York, has been engaged in the renting, erecting and dis-
mantling of scaffolding, and sidewalk bridging. During the past
year, Respondent has purchased and received at its facility,
goods and materials valued in excess of $50,000 directly from
entities located outside New York State. Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Local 2819, United Brotherhood of Carpenters and Joiners of
America, is affiliated with the New York City Industrial Coun-
cil of Carpenters (Council). Jose Rivera, the president of Local
2819 and the vice president of the Council, negotiated the last 3
collective-bargaining agreements with Respondent. He has
personally been involved in representing Respondent’s em-
ployees for the past 25 years. The most recent contract between
the parties runs from December 1994, through November 1999.
It was between Respondent and the New York City Industrial
Council of Carpenters, Local 2819. Respondent stipulated that
during the term of the contract, the Council was the Section
9(a) exclusive collective-bargaining representative of the em-
ployees in the unit set forth in the contract. Respondent’s an-
swer admits that it has recognized the Council as such represen-
tative, and that Rivera is an agent of the Council.

1 A notice of intention to amend complaint was issued on January 6,
2000 by General Counsel but at the hearing that notice was effectively
withdrawn when certain issues were resolved by stipulation of the
parties.
Based on the above, I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Agreement
The Union represents 25 to 30 employees in a contractual
unit, which includes “all workers in the employer’s yard opera-
tion excluding guards, supervisors, and clerical workers.” It
was stipulated that such unit is an appropriate collective-
bargaining unit.
The parties’ 1994 to 1999 contract contained the following
term in Article J (1) Benefit Funds, which relates to contribu-
tions to the Hollow Metal Trust Fund:

The Company agrees to re-open negotiations on July 1, 1998
to discuss any welfare cost increases and the union agrees not
to strike.

Union President Rivera testified that about 1 week before
Christmas 1998, accompanied by Shop Steward Joseph Ca-
landra, he met with Respondent’s branch manager, Salvatore
Impieri, at Respondent’s premises. They discussed certain un-
specified matters, and as Rivera was leaving, he told Impieri
that they had to “reopen the contract”, but that he would not
make any increase retroactive to July 1, 1998, thereby saving
the Company money.
According to Rivera, Impieri replied that he understood that
they were supposed to reopen the contract. Rivera then said that
he (Rivera) would consult with his office because he did not
know how much of an increase to the welfare fund was needed,
and would then contact Impieri.
Calandra testified that as he and Rivera were leaving
Impieri’s office, Rivera asked Impieri when they were going to
“settle” the welfare fund matter. Impieri replied “soon we’ll
take care of it.”
Rivera testified that thereafter, in early February 1999, he
met with Charles Claytor, the president of the Council and
chairman of the board of the trust fund. At their meeting,
Rivera asked him how much of an increase in welfare funds
was needed. Claytor reviewed Respondent’s collective-
bargaining agreement, which stated that the contribution was
then $2.32 per hour, and told him that a 50-cent-per-hour in-
crease was necessary.
Rivera stated that in about mid or late February, about 2
weeks after his meeting with Claytor, he returned to Respon-
dent’s premises and met with Impieri. According to Rivera, he
told Impieri that the Union needed a 50-cent increase in the
welfare fund. Impieri asked whether Rivera knew how much
money Respondent had already paid into the Union’s benefit
funds, and mentioned a particular figure. Rivera asked whether
Impieri knew how much money the Union paid to its members,
adding that he still needed the 50-cent increase. Impieri an-
swered that he would “look into it.”
Rivera further testified that about 3 weeks later, in mid-
March, he returned to Respondent’s premises and was told by
Impieri that Respondent would agree to give a 25-cent increase
to the welfare fund. Rivera replied that he would check with his
people to see if that was acceptable.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396
Rivera reported to Claytor that Respondent offered 25 cents,
effective January 1, 1999. Claytor replied that that amount was
not sufficient and that 50 cents was required. Rivera asked him
whether the following was acceptable: 25 cents effective Janu-
ary 1, 1999, and an additional 25 cents effective July 1, 1999.
Claytor responded that that would be acceptable.
Rivera stated that a few weeks later, in late April or early
May, he met with Impieri at the shop and told him that the Un-
ion needed a 50-cent increase. Rivera told him that the Union
would accept such an increase in 2 increments: a 25-cent raise,
effective January 1, 1999, and an additional 25-cent increase,
effective July 1, 1999.
Rivera first testified that Impieri said that he would let
Rivera know in 1 week. Rivera left and returned to the shop in
1 week and was told that, “it can be done, we’ll agree to it.”
Rivera said that he would draft the addendum and present it for
his signature. Impieri said, “fine”. They shook hands and
Rivera left.
Rivera testified on cross examination, however, that at this
meeting after telling Impieri that the Union would accept two
25-cent increases, Impieri immediately agreed, saying “it’s
doable.” Rivera interpreted that expression as Impieri’s agree-
ment to the Union’s terms. Rivera told him that he would draft
the addendum.
As he was leaving the building, Rivera told Steward Ca-
landra that Impieri agreed to a 50-cent increase in the welfare
fund.
Calandra corroborated Rivera’s testimony. He testified that
in early May he met Rivera as he was leaving the building and
was told that “it is settled. We got the 50 cents for the health
and welfare fund.” Calandra replied “good. It’s over.” Calandra
stated that that day he advised his coworkers that Rivera told
him that the welfare fund matter was settled and that they
should tell their fellow employees.
About 1 week later, on about May 17, Rivera typed and
mailed to Impieri the following addendum to the contract:

It is agreed by all parties that notwithstanding the language in
the Agreement dated December 1, 1994, the payments to the
Welfare Fund shall be increased as follows:

Effective January 1, 1999…$2.57 per hour on each employee.
Effective July 1, 1999……..$2.82 per hour on each employee.

The addendum had a place for signatures of Respondent and
the Union.
B. The Altercation
On May 18, steward Calandra received a warning letter from
Respondent’s supervisor Steve Mullin. The letter concerned
damage sustained on May 13, to a forklift which Calandra was
allegedly operating. The letter advised that further abuse of
equipment would result in his suspension.
Calandra called Rivera that day, notifying him of the warn-
ing letter. Rivera visited Respondent’s premises the following
day, May 19, in order to discuss the matter.
Impieri and Supervisor Mullin met with Calandra and
Rivera. Impieri testified that during the discussion of the letter
Rivera presented a petition to Impieri, which stated that the
yard was unsafe. The petition was signed by Respondent’s
employees. Impieri stated that Rivera was very confrontational,
placing the petition directly in front of and very close to his
(Impieri’s) face. The dispute escalated and Impieri and Mullin
became angry at the “untrue” allegation that the yard was un-
safe. Mullin positioned himself very close to Rivera, Impieri
cursed at Rivera, and Impieri “threw” Rivera and Calandra out
of his office.
Rodney Brooks, Respondent’s northeast regional manager
and Impieri’s immediate supervisor, testified that Impieri had
phoned him and mentioned that he was having problems with
the facility including damage being done to equipment, and he
(Impieri) believed that the employees were abusing company
property which was beginning to cost a lot of money.
Brooks further testified that on the day of the confrontation,
Impieri called and told him what happened at the “very heated”
meeting, and stated that Rivera was “coming and going sort of
unannounced” in and out of the building. Impieri asked whether
it was reasonable to require that Rivera give advanced notice of
his visits to Respondent’s premises. Brooks said that such an
approach was reasonable since Impieri had a business to run,
and because of safety issues. Brooks suggested that Impieri
send a letter to Rivera.
C. Later Events Concerning the Increase in Welfare Payments
About 1 or 2 days after the altercation Impieri received the
above contract addendum. Impieri testified that he was very
upset because he never agreed to “anything like it.” He stated
that he called Brooks and told him that he advised Rivera that
he would “look into” the matter, but he had never agreed to any
such increase.
Brooks contradicted that testimony, stating that following his
conversation with Impieri concerning the confrontation Impieri
did not contact him regarding correspondence he received from
Rivera. Brooks denied seeing the addendum, and could not
recall any discussion with Impieri concerning its contents.
On May 21, Impieri sent two letters to Rivera. One stated:

Unfortunately we cannot honor the Benefit Fund increase at
this time. Our contract states “Article J” that the company
agrees to re-open negotiations on July 1, 1998 to discuss any
welfare cost increases and the union agrees not to strike.
It is now May, 1999 and we cannot, at this time, afford the
additional costs.

The enclosed addendum is being returned to you unsigned.

In the second letter, Impieri wrote that the contract’s lan-
guage which stated that the union representative shall have
access to the shop at all times was “disruptive to our business,
especially when the meetings are held with the men while they
are serving customers. I strongly recommend that you call me
or Steve prior to scheduling any meetings with the men and that
you schedule these appointments during the men’s breaks …
and/or at lunch.”
As set forth above, on May 28, the original charge in this
proceeding was filed.2

2 The charge alleged that (a) on May 19, Respondent refused to bar-
gain with Rivera over a grievance; (b) on May 25, Respondent refused
to sign a memorandum of agreement containing contract terms agreed
SAFWAY STEEL PRODUCTS 397
D. The Testimony of Charles Claytor
Claytor testified that he spoke twice to Rivera concerning in-
creases to Respondent’s welfare fund contributions.
On the first occasion, in early or mid December 1998, Rivera
reported that Respondent offered an additional 25-cents-per-
hour to the welfare fund. Claytor told Rivera that that amount
was not acceptable as it was less than other employers were
paying who received the same benefit.
Their second meeting occurred in late December 1998 or
January 1999. Rivera asked him whether a total of 50 cents
would be acceptable if he could get 25 cents retroactive to
January and an additional 25 cents. Claytor replied that that
arrangement would be acceptable.
E. The Testimony of Respondent’s Witnesses
Impieri has been the branch manager of Respondent’s
Brooklyn location since October 1994. He is responsible for the
day-to-day operations of the branch, including supervising sales
contracts with customers.
Impieri hires employees who work as carpenters and labor-
ers. However, in order to hire salaried employees he is required
to send an employee requisition form to the Milwaukee, Wis-
consin home office of Respondent. Regional Manager Brooks
testified that Impieri could hire certain classifications of em-
ployees on his own. If there is a need to hire 2 or 3 laborers he
can do so. As to others, he has to ask for permission or have
Brooks make the decision.
Brooks answered several hypothetical questions concerning
Impieri’s authority over employees. Brooks stated that Impieri
could not suspend an employee for 3 days without conferring
with him. If Impieri informed Brooks that documentation had
been made that the employee had been repeatedly warned for
chronic lateness, Brooks would give Impieri permission to sus-
pend him. If the Union protests the discipline, and Impieri
agrees to a reduction to a 1-day suspension, Impieri could do
that on his own but Brooks would “hope” that Impieri would
confer with him before doing so. If he did not, however, and
Brooks learned that such an agreement was made, he would
have no objection.
With respect to discharges of employees, Brooks stated that
depending on the job title of the employee, Brooks would or
would not ask to become involved in the process. However, he
is kept informed of human resources decisions made by
Impieri.
Brooks and Impieri confer with the home office before exe-
cuting commercial contracts containing provisions regarding
indemnification and subjugation. However, Impieri has the
authority to approve a sale of scaffolding up to $100,000.
Impieri stated that any increases in costs, such as the hire of
employees and the purchase of a large truck or forklift must be
“justified” to the home office. Before terminating any employee
he must confer with Regional Manager Brooks.

to between the parties; and (c) on May 25, Respondent unilaterally
restricted the access of union representatives to its premises.
Only the issue set forth in (b) is before me. The amended charge
filed on August 23 contains only the allegations set forth in the com-
plaint.
Impieri testified that he could not recall having a discussion
with Rivera in December 1998, concerning increases to the
welfare fund. He stated that he was on vacation from December
5th through December 14th. Further, Impieri stated that during
the period July 1998 through May 1999, he met with Rivera
only three or four times during which they discussed discharges
of employees. Impieri saw Rivera only one additional time
during that period when Rivera asked for a welfare fund in-
crease. Impieri specifically denied seeing Rivera in December
1998, or in January, February, or March 1999. He also testified
that if Rivera visited the shop to speak with employees, he
would not have been notified of such an occurrence.3
Impieri stated that Rivera discussed the welfare fund in-
crease matter with him only once, in late April or early May,
about 2 to 3 weeks before their altercation on May 19. At that
time, Rivera told him that they should have been discussing an
increase in the welfare fund contributions in 1998, but in any
event, he needed a 25-cent increase in the welfare fund. Impieri
replied that Respondent could not afford an increase in such
payments, and that nevertheless this matter should be discussed
when they negotiated their new agreement in December.
Impieri admitted telling Rivera that he would “look into it,”
and Rivera told him that he would speak with Claytor. At hear-
ing, Impieri stated that “looking into it” would have meant
contacting Respondent’s home office and discussing the matter
with his supervisors, determining how many employees were
involved, and analyzing the costs and the impact of an increase
on the facility and the Respondent itself. At hearing, Impieri
conceded that he did not look into the matter.
Impieri denied that he made any agreement with Rivera, or
that there was any conversation in which an agreement was
made. He also denied that Rivera said he would send a stipula-
tion memorializing the terms of their alleged agreement. The
farthest Impieri went was telling Rivera that he would look into
the matter. He further denied speaking to Rivera about this
issue in December, February, or March.
Impieri testified that assuming his work force of 30 employ-
ees worked a normal 40-hour workweek, their total weekly
hours would be 1200. He further assumed that if they worked
50 weeks per year their total number of hours worked would be
60,000. That amount multiplied by the 25-cents-per-hour wel-
fare contribution allegedly agreed to would equal $15,000 per
year. Impieri further stated that that figure represented straight
time worked, but that his employees worked much overtime so
that figure would be higher. He further extrapolated that a 50-
cent total contribution, which he allegedly agreed on, would
result in an outlay of $30,000 without the addition of overtime
hours worked.
Impieri stated that he did not have authority to agree to such
an expenditure. Rather, he would have to check with Respon-
dent’s home office. He stated that he had no contact with the
home office before receiving the addendum to the contract.
3 In contrast, Rivera testified that he visited Respondent’s premises
at least once per month during which he also discussed with Impieri
any problems in the shop. Steward Calandra corroborated that Rivera
visits the shop about once per month.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398
The 1994 collective-bargaining agreement was negotiated
and signed on behalf of Respondent by Impieri and Art Young,
Respondent’s human resources director whose office was in the
Milwaukee home office.4 In preparing for and conducting
those negotiations, the home office performed the cost analysis
and prepared documents and spreadsheets. Those documents
were then reviewed by Impieri, Young, and Don Bovre, the
current director of human resources. When the draft contract
was agreed to, the final document was prepared at Respon-
dent’s home office, Bovre signed it and it was sent to New
York where Impieri signed it and sent it to Rivera.
Brooks testified that if Impieri had approved an increase in
costs in a collective-bargaining agreement or approved a
change in the contract’s terms without consulting with Brooks
or the home office, Brooks would consider that a “very big
problem” which could result in his (Impieri’s) termination. He
stated that Impieri’s signing the contract’s addendum tendered
by Rivera or even his oral agreement to that addendum, were
outside Impieri’s “realm of authority” because all union issues
were outside the authority of Impieri and Brooks. All matters
relating to collective-bargaining agreements and their terms
must be approved by Respondent’s human resources director
and the vice president of branch operations.
Impieri stated that he could not, on his own, have agreed to
the increases to which Rivera stated he agreed. In order to do
so, he would have had to call Brooks for approval, which he
had not done.
The current negotiations for a renewal contract are being ne-
gotiated on behalf of Respondent by Impieri, Brooks, and
Bovre. Each negotiation session is attended by Bovre who is
from Respondent’s home office. Brooks stated that although he
is involved with collective-bargaining negotiations, nearly all,
if not all authority remains with the corporate human resources
office. The reason for this policy is that of the 50 branch facili-
ties of Respondent, 35 to 40 have collective-bargaining agree-
ments with unions, and accordingly negotiations are “central-
ized” through the human resources office.
III. ANALYSIS AND DISCUSSION
A. Respondent’s Affirmative Defenses
Respondent’s answer asserts two affirmative defenses. First,
it alleges that the complaint in this proceeding is barred by
Section 10(b) of the Act. Second, it is alleged that, assuming
that the Union first requested that Respondent bargain in De-
cember 1998, the Union waived its right to reopen negotiations
by waiting nearly 6 months, from July 1998 before approaching
Respondent with its request to reopen negotiations.
Section 10(b) of the Act provides in relevant part:

No complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing
of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is
made.

4 Respondent was also represented by Young in the negotiations for
the predecessor contract to the 1994 agreement.
The 6-month period within which a charge must be filed be-
gins to run when a party refuses to execute a contract. Stanford
Realty Associates, 306 NLRB 1061, 1065 (1992); Chambers-
burg County Market, 293 NLRB 654, 655 (1989).
As set forth above, Respondent first refused to execute the
addendum to the contract by its letter dated May 21, 1999. The
original charge, which alleged that Respondent refused to sign
the addendum, was filed on May 28, 7 days after Respondent’s
refusal to sign the addendum. Accordingly, I find that the
charge was timely filed, and that the complaint’s allegations are
not barred by Section 10(b) of the Act.
Respondent argues that the Union waived its right to bargain
about an increase in welfare contributions because it waited too
long in raising the issue.
Section 8(d) of the Act defines the scope of the duty to bar-
gain collectively as encompassing “wages, hours, and other
terms and conditions of employment.” Those are mandatory
subjects of bargaining. Specifically, the making of contribu-
tions to benefit funds is a mandatory subject of collective bar-
gaining. Stevens & Associates Construction Co., 307 NLRB
1403 (1992).
“The Board requires that a waiver of bargaining rights under
Section 8(a)(5) not be lightly inferred but must be clear and
unmistakable.” Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983). Colorado-Ute Electric Assn., 295 NLRB 607,
609 (1989). I cannot find that the Union’s delay in requesting
bargaining over an increase in the welfare fund contributions
constituted a waiver of its right to bargain. “The Union’s be-
havior, although lax, did not amount to conduct, either standing
alone or in concert with any other factors, which constituted a
clear and unmistakable intent to waive any pertinent rights”. E-
Systems, Inc., 318 NLRB 1009, 1012 (1995).
In addition, I cannot find that Respondent has suffered any
prejudice from the Union’s failure to request bargaining in a
more timely fashion. Stanford Realty Associates, supra at 1065.
Indeed, although the Union possessed a contractual right to re-
open negotiations on July 1, 1998, its delay until December
1998 in reopening negotiations and its ultimate agreement to
have the increased contributions begin on January 1, 1999,
actually resulted in a 6-month period of time, from July 1 to
January 1, within which the Respondent did not have to pay
any increased welfare contributions.
I accordingly find no merit in Respondent’s affirmative de-
fenses.
B. The Agreement
Section 8(d) of the Act requires that parties bargain in good
faith and execute “a written contract incorporating any agree-
ment reached if requested by either party.” An employer vio-
lates Section 8(a)(1) and (5) of the Act by refusing to execute a
written contract incorporating the terms of an agreement
reached with a union representing its employees. H.J. Heinz
Co. v. NLRB, 311 U.S. 514, 525–526 (1941).
The main issue is whether there was a meeting of the minds
and whether the parties reached an agreement on the issue of an
increase in the welfare fund contribution. Canyon Coals, 316
NLRB 448, 452 (1995). The burden of proof on the issue of
whether the requisite meeting of the minds occurred is on the
SAFWAY STEEL PRODUCTS 399
General Counsel. New Orleans Stevedoring Co., 308 NLRB
1076, 1081 (1992). While the technical rules of contract law are
not necessarily controlling in labor relations negotiations, the
normal rules of offer and acceptance in contract law are appli-
cable to determine whether an agreement was reached. An offer
can be accepted and the parties bound without the agreement
being reduced to writing and signed. Kasser Distiller Products,
307 NLRB 899, 903 (1992).
I believe that the evidence establishes that an agreement was
reached between Rivera and Impieri that the welfare fund con-
tribution would be increased by 25 cents on January 1, 1999,
and by an additional 25 cents on July 1, 1999.
Thus, Rivera, whose testimony I credit, first raised the issue
of reopening the contract with Impieri in December 1998. His
testimony in this regard was corroborated by Steward Calandra.
I cannot credit Impieri who denied that this meeting occurred
because he was on vacation in December. Accordingly, Rivera
stated that he met with Impieri about 1 week before Christmas,
which would be on about December 18. Impieri said that he
was on vacation from December 5th through December 14th.
Thus, Impieri apparently was available to have met with Rivera
the week before Christmas.
Rivera testified that he met with Council official Claytor and
learned that the fund needed a 50-cent increase in contributions,
then met with Impieri in mid or late February and told him that
a 50-cent raise was required. At that time Impieri told Rivera
that he would “look into it.” In mid-March, Rivera was told by
Impieri that Respondent agreed to one 25-cent increase. Rivera
returned to Claytor and they agreed that two increases of 25
cents each—one effective in January and the other in July 1999
would be acceptable if Respondent consented to those terms.
Rivera then met with Impieri and was told that Respondent
agreed to those terms. Rivera immediately told Calandra that
Impieri agreed to a 50-cent increase. Calandra corroborated
Rivera’s testimony.
Claytor, in agreement with Rivera, stated that he met with
Rivera twice concerning this matter. I credit Rivera notwith-
standing that the dates of his meetings with Claytor differed
from Claytor’s recollection. Thus, Rivera testified that he met
with Claytor in February and March or April. Claytor stated
that their first meeting was in December and the other in De-
cember or January. Obviously, Claytor is mistaken about the
date of his second meeting with Rivera.
Respondent argues that the confusion over the dates of the
meetings between Rivera and Claytor compels a conclusion
that the meetings did not occur. I do not agree.
Thus, Claytor stated that his first meeting with Rivera was in
December 1998 at which Rivera told him that Respondent of-
fered a 25-cent-per-hour increase. However, Rivera stated that
it was not until mid March that such an offer was made.5

5 Respondent’s brief erroneously states that at that meeting, Rivera
reported that Impieri proposed two 25-cent increases. However, Clay-
tor’s testimony is that Impieri was referring to an offer of one 25-cent
increase at that time. “At that time, he said that the company had of-
fered 25 cents an hour, an additional 25 cents an hour in the welfare
fund.” In such testimony, Claytor clarified that he was referring to one
additional 25-cent-per-hour increase.
As set forth above, Claytor stated that his second meeting
with Rivera occurred in late December 1998, or early January
1999, at which they agreed that two 25-cent increases would be
acceptable to the Union if agreed to by the Respondent. How-
ever, Rivera stated that such a meeting occurred in late April or
early May.
There was clearly confusion between the versions concern-
ing the dates of the meetings between Claytor and Rivera.
However, uncertainty as to the dates the meetings occurred
does not alter the fact that the meetings took place and that the
content of the meetings coincided. Thus, Rivera and Claytor
consistently testified that at one meeting between them, Rivera
reported that Impieri offered a 25-cent raise, and that at the next
meeting they agreed that two 25-cent increases would be ac-
ceptable to the Union.
Respondent argues that the fact that Calandra was not aware
of Rivera’s meetings with Impieri proves that they did not oc-
cur. Calandra testified that he spoke with Rivera twice, in De-
cember and May concerning the health and welfare fund, and
that he was not aware that “incremental” meetings had occurred
between Rivera and Impieri.
Respondent points to Rivera’s lack of written notes of the
meetings with Impieri as evidence that the meetings did not
occur. I do not agree. Apparently it was not Rivera’s practice to
keep notes of these brief, informal meetings although he did
make notes when he engaged in extended collective-bargaining
negotiations. Respondent further faults Rivera for not sending a
letter confirming his agreement with Impieri, arguing that a
confirming letter is a standard business practice. However,
Rivera sent the addendum shortly after an agreement was
reached. The addendum served, in effect, as a confirming letter.
Respondent also contends that no agreement was reached be-
tween Rivera and Impieri even accepting Rivera’s testimony.
Thus Respondent argues that Rivera’s testimony is unreliable,
pointing to Rivera’s two versions of the critical meeting with
Impieri in late April or early May in which Impieri agreed to
two 25-cent increases in welfare contributions. As set forth
above, Rivera first testified that following his demand for two
25-cent raises, Impieri said he would let Rivera know in one
week, and thereafter accepted the demand. Rivera then testified
that Impieri immediately accepted the offer when presented.
This slight variation in Rivera’s testimony is not fatal to his
credibility. The most important consideration is that the crucial
part of Rivera’s testimony was consistent—that Impieri agreed
to the Union’s demand of two 25-cent increases. Whether that
agreement was separated from the demand by 1 week or not is
not of critical importance.
Impieri’s letter to Rivera on receiving the addendum pro-
vides support for a finding that agreement was reached. Thus,
the letter states that Respondent “cannot honor the Benefit Fund
increase at this time.” The letter further states that “we cannot,
at this time, afford the additional costs.” The letter makes no
reference to there not having been an agreement and does not
question the basis for the increases. In fact it implies that
agreement was reached as to an increase but that Respondent
has chosen not to honor such an increase due to financial con-
siderations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400
In addition, although Impieri admittedly told Rivera in late
April or early May that Respondent could not afford the in-
crease and that discussions concerning a raise should take place
in December in negotiations for a new contract, Impieri con-
ceded that he also told Rivera that he would “look into it” and
that Rivera told him that he would contact Claytor. Why would
Impieri agree to look into the matter if he had determined that
Respondent could not afford the increase demanded and that
such negotiations were better left to full contract negotiations 7
or 8 months later?
The fact that Impieri told Rivera that he would look into it
and that Rivera told him that he would speak to Claytor sup-
ports a finding that there was some movement toward negotia-
tion. Impieri did not make an outright refusal to discuss the
matter or consider it.
I cannot credit Impieri’s denial that agreement was reached
with Rivera. His credibility is harmed in the following respects.
There was a direct contradiction between his testimony that
when he received the addendum he told Brooks that he had not
agreed to its terms, and Brooks’ testimony that he had no dis-
cussion about that matter with him.
Further, in an effort to prove that he could not have met with
Rivera four or five times as testified by Rivera, Impieri testified
that Rivera rarely visited the shop, that in a 10-month period he
had met with Rivera only three to five times, and that he would
have been aware if Rivera had been at the shop more frequently
to speak with employees. This is contradicted by Brooks’ tes-
timony that Impieri told him that Rivera was “coming and go-
ing” into and out of the facility unannounced, and wanted to
inform Rivera that he must give advanced notice of his visits.
Impieri’s letter of May 21 also contradicted his testimony. In
that letter, Impieri advised Rivera that the contract’s language
giving the Union representative access at all times was disrup-
tive to the business particularly where meetings were held with
employees while they served customers. The letter advised that
Rivera call him prior to scheduling any meetings and that such
meetings be held during nonwork time.
Two possible explanations exist for Impieri’s denial that an
agreement was reached. Immediately following the final meet-
ing at which I find that Impieri agreed on the terms of the wel-
fare fund increase, a heated exchange took place in his office
which was ended when Impieri threw Rivera out. In those cir-
cumstances, especially when the addendum was received by
Impieri only days after the confrontation, it is apparent that
Impieri would not want to acknowledge that he reached agree-
ment on an increase in the union welfare fund. Also, at the
hearing, Impieri’s supervisor, Brooks, testified that if Impieri
made such an agreement it may be grounds for discharge. Un-
derstandably, when Impieri became aware that he had erred in
agreeing to the increase he could acknowledge that he had
made such an agreement only on risk of being terminated.
I find that Rivera and Impieri reached agreement on the
terms of a welfare fund increase. The evidence compels the
conclusion that Impieri agreed to two 25-cent raises in the wel-
fare fund. They shook hands on the deal. Sands Hotel & Ca-
sino, 324 NLRB 1101, 1108 (1997). In sum, I believe that the
facts establish an “explicit, forthright demonstration of accep-
tance and approval” of an agreement to increase the welfare
fund contributions. Alameda County Assn., 255 NLRB 603, 605
(1981).
C. Impieri’s Authority to Negotiate and Agree
Respondent argues that even assuming an agreement was
reached Impieri had no authority to bind Respondent to that
agreement.
As set forth above, there was testimony by Brooks that
Impieri did not have authority to negotiate the welfare fund
increase with Rivera. Respondent argues that Impieri lacked
authority to bind Respondent to the terms of the addendum, and
that Rivera knew that Impieri lacked such authority and could
not agree to its terms without the approval of the home office.
There was evidence that a representative of Respondent’s
home office had always been present with the local branch
manager during collective-bargaining negotiations. Respondent
states that inasmuch as Rivera acknowledged that he bargained,
in the past, with a member of the home office in addition to the
local branch manager, in this case Impieri, Rivera must have
known that Impieri’s authority was limited.
Respondent also argues that Rivera had a duty to inquire
about Impieri’s authority to negotiate the welfare fund in-
creases.
“The law is clear that when an agent is appointed to negoti-
ate a collective-bargaining agreement that agent is deemed to
have apparent authority to bind his principal in the absence of
clear notice to the contrary.” Sands Hotel & Casino, supra at
1108; University of Bridgeport, 229 NLRB 1074 (1977).
Here, I have found that Rivera and Impieri reached agree-
ment on the terms of a welfare fund increase. It was incumbent
on Impieri to advise Rivera that he had no authority to partici-
pate in the reopened negotiations for the welfare fund increase
without the participation of Respondent’s home office. “If the
necessity for an employer’s approval of an agreement made by
its agent is not clearly understood, the employer’s refusal to
sign the agreement is unlawful.” Sands Hotel & Casino, supra
at 1109.
Impieri never expressed to Rivera at any time during their
meetings that his authority was limited in any manner or that he
needed prior approval from the home office before agreeing to
any terms. I find that he reached agreement with Rivera before
any restrictions on Impieri’s authority were made known to the
Union. New Orleans Stevedoring Co., 308 NLRB 1076, 1081–
1082 (1992).
The fact that a home office representative had been present
during negotiations with Impieri in the past does not mean that
the Union was thereby placed on notice that negotiations with-
out the home office representative were a nullity. There was no
evidence that Rivera was told that the home office negotiator
was required for negotiations. Indeed, the fact that Impieri ad-
mittedly told Rivera that he would “look into it”, and as I find,
thereafter made an offer of 25 cents and a later agreement to
two 25-cent increases, is compelling evidence that he sought
and obtained the approval of the home office for the increases.
Impieri’s definition of “looking into it” meant discussing with
the home office the terms. In any event, viewed from Rivera’s
perspective, Impieri said that he would look into the matter and
then agreed to the terms of the increase. Under these circum-
SAFWAY STEEL PRODUCTS 401
stances, Rivera was led to conclude that Impieri received au-
thorization to negotiate and agree. Niagara Therapy Mfg.
Corp., 237 NLRB 1, 4 (1978). See Walnut Hill Convalescent
Center, 260 NLRB 258, 264 (1982).6
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. New York City Industrial Council of Carpenters, Local
Union 2819, United Brotherhood of Carpenters and Joiners of
America, is a labor organization within the meaning of Section
2(5) of the Act.
3. The Union is the exclusive representative for purposes of
collective-bargaining of the employees in the following appro-
priate unit within the meaning of Section 9(a) of the Act: “All
workers in the employer’s yard operation excluding guards,
supervisors, and clerical workers.”
4. By failing and refusing to execute a written memorandum
of agreement, which is an addendum to the contract between
itself and the Union entitled “Addendum Article J. #1. Benefit
Funds” embodying the terms of an agreement reached in about
mid May 1999, covering the bargaining unit employees de-
scribed above, Respondent violated Section 8(a)(1) and (5) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I shall recommend that Respondent be ordered to execute the
above-described addendum between itself and the Union. In
addition, I shall recommend that, upon execution of the adden-
dum, Respondent give effect to its provisions and shall pay to
the Hollow Metal Trust Fund the amounts of increased contri-
butions set forth in the addendum, in accordance with the
Board’s decision in Fox Painting Co., 263 NLRB 437 (1982),
with any additional amount to be computed in accordance with
the Board’s decision in Merryweather Optical Co., 240 NLRB
1213 (1979).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Safway Steel Products, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns, shall

6 Steward Calandra’s testimony that he believed that Rivera was ne-
gotiating with the home office is of no moment inasmuch as Calandra
was not present during any of the meetings.
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.
1. Cease and desist from
(a) Failing and refusing to execute the addendum to the con-
tract between itself and the New York City Industrial Council
of Carpenters, Local Union 2819, United Brotherhood of Car-
penters and Joiners of America entitled “Addendum Article J.
#1. Benefit Funds” embodying the terms of an agreement
reached in about mid May 1999.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the 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) Forthwith execute the addendum to the contract between
itself and the Union entitled “Addendum Article J. #1. Benefit
Funds” embodying the terms of an agreement reached in about
mid May 1999.
(b) On the execution of the aforesaid Addendum, give effect
to its provisions and pay to the Hollow Metal Trust Fund the
amounts of increased contributions set forth in the Addendum,
with interest.
(c) Within 14 days after service by the Region, post at its fa-
cility in Brooklyn, New York copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent 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
Respondent has gone out of business or closed the facility in-
volved 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 Respondent at
any time since May 21, 1999.
(e) 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
Respondent has taken to comply.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”