In the instant case, defendant does not contend that plaintiff is bound by the 1986-1988 Master Agreement because plaintiff's January 8, 1988 notice of termination was defective. Defendant does not argue that the controversy it presently seeks to arbitrate arose out of the expired 1984-1986 Agreement with plaintiff. Cf. Nolde Brothers, Inc. v. Local No. 358, Bakery and Confectionery Workers Union, supra. Instead, defendant argues that plaintiff is bound by the terms of the 1986-1988 Master Agreement, though not a signatory to that Agreement, based on its conduct since the expiration of the 1984-1986 Agreement. See, e.g., document 27 of record, at pp. 13-25. The court finds this argument to be without merit.
The fact that plaintiff continued to employ union members, make fringe benefit contributions, and check off union dues is clearly not dispositive. See, e.g., O'Connor Company, Inc. v. Carpenters Local Union No. 1408 of the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, 702 F.2d 824, 825-826 (9th Cir. 1983)(payment of increased wages and fringe benefits and hiring of carpenters from union hiring hall following complete and unequivocal termination of agreement does not indicate consent by company to be bound by new agreement), aff'g, 534 F. Supp. 484, 485-486 (N.D. Cal. 1982) ("Plaintiff unequivocally informed defendants that it desired to terminate their collective bargaining agreement effective June 15, 1980. In light of this clear expression, it cannot be concluded that plaintiff's actions subsequent to June 15, 1980, were indicative of an intention to be bound by the 1980-1983 Agreement"); Seymour v. Coughlin Co., 609 F.2d 346, 351-352 (9th Cir. 1979), cert. denied, 446 U.S. 957, 100 S. Ct. 2929, 64 L. Ed. 2d 816 (1980); Procter & Gamble Independent Union of Port Ivory v. Procter & Gamble Manufacturing Co., 312 F.2d 181, 184 (2d Cir. 1962), cert. denied, 374 U.S. 830, 83 S. Ct. 1872, 10 L. Ed. 2d 1053 (1963); Cuyahoga Wrecking Corp. v. Laborers International Union of North America, Local Union #210, 644 F. Supp. 878, 881 (W.D.N.Y. 1986); General Warehousemen and Employees Union Local No. 636 v. J. C. Penney Co., 484 F. Supp. 130, 134-135 (W.D. Pa. 1980) ("Even though employees continue to work under the compensation arrangements of an old contract, the court cannot imply that the entire contract was extended. . . . Nor are the checkoff of union dues and the settlement of minor grievances in accord with the old contract, alone, sufficient for the court to infer that the parties agreed to extend the old contract in its entirety"); cf. Teamsters Steelhaulers Local Union No. 800 v. Artim Transportation Systems, 555 F. Supp. 810, 814-815 (W.D. Pa. 1983) (by knowingly, readily, and consistently accepting the benefits of a purported collective bargaining agreement, employer was estopped from challenging the existence or validity of that agreement). In fact, as many of the cases just cited point out, an employer is required to maintain the status quo and to refrain from making unilateral changes until the parties negotiate a new agreement or bargain in good faith until impasse. See, e.g., NLRB v. Katz, 369 U.S. 736, 82 S. Ct. 1107, 8 L. Ed. 2d 230 (1962); Stone Boat Yard v. National Labor Relations Board, 715 F.2d 441, 444 (9th Cir. 1983), cert. denied, 466 U.S. 937, 104 S. Ct. 1910, 80 L. Ed. 2d 459 (1984); O'Connor Company, Inc., 702 F.2d at 825-826; International Association of Machinists and Aerospace Workers, 580 F. Supp. at 644 and cases cited therein; General Warehousemen and Employees Union Local No. 636, 484 F. Supp. at 135. Here, the parties have stipulated that the use of the union members, reports, and payments were made pursuant to the expired 1984-1986 Agreement "which Empire continued to maintain in a good faith gesture pending further negotiations with the Union for a new Agreement." See document 26 of record, at para. 34. In addition, Empire refused to forward annuity fund contributions called for in the 1986-1988 Master Agreement on the ground that the annuity fund was not part of the expired Agreement. See id. at para. 32. Thus, plaintiff's continued use of union members and forwarding of fringe benefit contributions and union dues, without more, does not establish that plaintiff is bound by the 1986-1988 Master Agreement.
Defendant also argues that plaintiff is bound by the 1986-1988 Master Agreement based on the language contained in the fringe benefit reporting form completed each month by plaintiff's Office Manager. That form contained the following provision:
The Undersigned Employer hereby agrees that the contributions enclosed with this Remittance Report are made in conformity with the provisions concerning contributions to the Funds which are contained in the Trust Agreement and the Collective Bargaining Agreement between the Union and the Operating Engineers Employer of Eastern Pennsylvania and Delaware.
See document 26 of record, Exhibits D; document 27 of record, at pp. 17-18.
Thus, defendant argues that plaintiff's Office Manager had the apparent authority to bind plaintiff to the 1986-1988 Master Agreement and that, by completing and submitting the monthly reports, the Office Manager did in fact bind plaintiff to the new Master Agreement. See document 27 of record, at pp. 17-25. As the court concludes that the language contained in the form is insufficient to bind plaintiff to the Master Agreement when viewed in the context of the applicable law and the history of the parties, this argument must also be rejected. See Teamsters Steelhaulers Local Union No. 800, 555 F. Supp. at 814 (grievance form filled in and signed by employer's manager of operations was insufficient evidence to show that employer was bound as a signatory to a contract).
In order for a collective bargaining agreement to be found, all that is required is conduct manifesting an intention to be bound by the terms of an agreement. United Paperworkers International Union, AFL-CIO v. Wells Badger Industries, Inc., 835 F.2d 701, 703-704 (7th Cir. 1987). As stated by this court in Wilkes Barre Printing Pressmen and Assistants' Union, No. 137 v. Great Northern Press, 522 F. Supp. 106 (M.D. Pa. 1981) (Nealon, C.J.),
labor agreements are governed by the "objective theory" of contracts. In other words, the central inquiry for the court is whether the actual conduct of [the parties] would have manifested offer and acceptance to a reasonable observer, regardless of the subjective intent of the parties.