Schmidt-Tiago Construction Co.

342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schmidt-Tiago Construction Company and Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 13. Cases 27-CA-7424, 27-CA- 7367-7, and 27-CA-8348 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 14 November 1984 Administrative Law Judge Jerrold H. Shapiro issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions and an answering brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modi- fied. The judge found that the Respondent violated Section 8(a)(5) of the Act by unilaterally instituting a new health and welfare program and increasing the wages of returning Colorado Springs strikers. He also found that the Respondent gave the Union adequate notice and opportunity to bargain over its cessation of contributions to the fringe benefit plans of the recently expired collective-bargaining agree- ment and therefore acted lawfully in that respect. We adopt the judge's affirmative 8(a)(5) fording but reverse the accompanying dismissal. Shortly after an economic strike began on 18 June 1981, the Respondent informed the Union that it was discontinuing contributions to existing con- tractual benefit plans (which included a health and welfare plan, a vacation fund, and a pension fund) until new "labor agreements" were reached be- tween the parties.2 This announcement suggested that the discontinuance was a temporary measure and that contributions might be expected to be re- sumed if and when the strike was settled. In any event, it reflected the fact that at the time of the announcement no unit employees were working and therefore none were earning benefits. As soon as some strikers abandoned the strike and returned i The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the fmdtings. The General Counsel did not except to the judge's dismissal of the alle- gation that the Respondent's unfair labor practices caused the employees' economic strike to be converted into an unfair labor practice strike. 2 All dates are in 1981 to work in July, the Respondent began to contrib- ute to a different health and welfare fund on their behalf and paid them an additional 40 cents an hour in cash in lieu of contributing to the contrac- tual vacation fund. Contributions to the pension fund were simply discontinued with no substitu- tion. While the strike continued, contract negotiations resumed on 23 July. The Respondent then proposed that the three contractual funds be discontinued. Under this proposal, the health and welfare fund and pension fund would be replaced and the vaca- tion fund moneys would be paid to employees as a lump sum payment at the end of each calendar year. The Union's only response at that time was to request a copy of the substituted health and wel- fare plan. The parties met next on 29 July. The Re- spondent gave the Union a description of the health and welfare plan and informed the Union that the change embodied in this plan had been im- plemented. The Union requested further informa- tion regarding all of the benefit plans that had been or were intended to be substituted, so that the Union could "bargain meaningfully . . . concern- ing any benefit plan." The Respondent modified its benefit plan proposals by making the 40-cent-an- hour increase part of the hourly rate, presumably to be paid weekly as already in effect, rather than in an annual lump sum. The Respondent deferred its proposal to discontinue the contractual pension plan , pending further developments in settling the strike.3 The parties met for the last time on 31 July. The Union protested the cessation of contributions to the contractual benefit funds, stating that the Re- spondent was obligated to continue these contribu- tions until the parties reached impasse, which, the Union stated, they had not.4 The Respondent dis- agreed with this assessment of its bargaining obliga- tion. Its representative stated that the Union's op- tions were either to accept the Respondent's pro- posals or to file charges with the Board.5 In creating this confusing situation, the Respond- ent improperly bypassed the Union in establishing new and permanent terms and conditions of em- ployment. Contrary to our dissenting colleagues' characterization, the Respondent's actions belie its original suggestion, if it was so intended, that these 9 However, as noted above, the Respondent informed the Union previ- ously that it had discontinued its contributions to the pension plan for the duration of the strike It never resumed these contributions 4 Previously, the Union had agreed that the parties were at an impasse regarding other matters. As of 31 July, however, no bargaining over the Respondent's 23 July proposal to discontinue the contractual benefit plans had occurred. 5 A third option mentioned by the Respondent was that the Union could "go to hell " 286 NLRB No. 31 SCHMIDT-TIAGO CONSTRUCTION CO. 343 changes were temporary, strike-related measures, for it relabeled them as proposals to be incorporat- ed into a new collective-bargaining agreement and almost immediately acknowledged that they had been implemented. The Respondent thereby unilat- erally set terms and conditions of employment that presumably would continue in effect until such time as the Respondent might be persuaded in sub- sequent bargaining to rescind them.6 Our dissenting colleagues' contention that the Respondent's changes in the fringe benefit plans for its Colorado Springs facility were made for the limited purpose of operating during the strike is belied further by the fact that at approximately the same time the Respondent unilaterally made similar changes at other union-represented facilities where no strike was either in progress or imminent. The judge correctly found that the changes made at these facilities violated Section 8(a)(5), and the Re- spondent's exception to that finding is limited to a matter of contract interpretation involving only the pension fund.7 We conclude that the Colorado Springs unilateral changes were not made pursuant to any claim that the strike relieved the Respond- ent of the duty to bargain.8 Accordingly, we agree with the judge's finding that the Respondent violat- ed Section 8(a)(5) of the Act when it unilaterally instituted a new health and welfare program and increased the wages of returning strikers at the Colorado Springs facility.9 6 Such opportunity for future bargaining, after unilateral implementa- tion, would not in any event cure the violation Golconda Corp. v. NLRB, 474 F.2d 49, 53 (6th Cir 1973), enfg. 194 NLRB 609 (1971) Therefore, we find no meet in the Respondent's argument based on postimplementa- tion bargaining. Contrary to the dissent, we agree with the judge's analysis in finding that the language in the Declaration of Trust requiring that employer contributions to the pension fund be "in accordance with a Pension Agreement" was not clearly and unnustakably intended as a waiver of the Union's right to bargain over discontinuation of contributions on ex- piration of the parties' collective-bargaining agreement. 8 Thus, we decline to join our dissenting colleagues in reaching out to decide the broad and complicated issue-not before us here-concerning the suspension of an employer's duty to bargain during a strike In fact, the Respondent's exception to the judge's finding that certain Colorado Springs changes violated Sec. 8(a)(5) argues only that any violation was cured by subsequent bargaining, a defense we have rejected. See fn. 6, supra Moreover, the Respondent's action in unilaterally establishing per- manent new conditions for all of its Colorado Springs employees exceed- ed the limits of any arguable strike-related hiatus in the obligation to bar- gain concerning returned strikers such as that which our dissenting col- leagues propose 9 Member Cracraft agrees with the majority's conclusions except as they relate to the unilateral changes affecting the returning economic strikers at the Respondent's Colorado Springs facility. Because she be- lieves that the interests of returning economic striker. are more closely aligned with the interests of strike replacements than with those of the employees who have chosen to remain on strike, she joins the Chairman's dissent insofar as he finds that the Respondent is not required to apply the preexisting terms and conditions of employment to the returning stokers. Thus, as an employer is not obligated to bargain over the terms and conditions of employment for strike replacements, Member Cracraft would not find that such an obligation arises as to the returning strikers. We disagree, however, with the judge's finding that the Respondent lawfully ceased making contri- butions to the fringe benefit plans of the expired contract. In so finding, the judge treated the Re- spondent's discontinuance of the contractual bene- fits as something separate and distinct from the Re- spondent's partial substitution of different benefits in their place at the Colorado Springs facility. Thus, as noted above, the judge found that the Re- spondent unlawfully substituted a new health and welfare plan and paid its former 40-cent-an-hour vacation fund contribution to the employees as in- creased wages, both without notice to the Union. On the other hand, he found that the Respondent's permanent discontinuance of the contractual benefit plans was not implemented until 10 August, when the Union already had notice and had either bar- gained to impasse or waived its right to bargain. We find that these related unilateral actions are equally violative of the Respondent's duty to bar- gain, and that the judge erred in separating the in- stitution of the new benefits from the cessation of the old ones in determining the legality of the Re- spondent's conduct. The judge arrived at 10 August as the date of implementation because that was the first date on which contributions for the strikers who returned in July were due to be paid to the benefit funds. Determination of the Respondent's bargaining obli- gation, however, depends not on the date on which the Respondent would have been in default on its contributions, but on the position it presented to the Union. Having first given the impression that it was ceasing its contributions because of the strike, the Respondent announced, shortly after submitting discontinuance of the plans as a bargaining propos- al, and without advance notice to the Union, that replacement of the health and welfare plan had been implemented. This announcement signified that the change was permanent, that is, it would remain in effect until the Respondent chose to re- scind it. Although it referred explicitly only to the health and welfare plan, the announced substitution was part of a pattern of unilateral changes that in- cluded conversion of the vacation fund contribu- tions to hourly wages and discontinuance of pen- sion fund contributions. The Union recognized these changes as all of one piece, and, on objecting to them, was rebuffed as noted above. The picture thus presented was that any tempo- rary discontinuance of contributions that may have been justified by the fact that all of the employees were out on strike had acquired the earmarks of permanent changes that were imposed unilaterally in lieu of bargaining over the Respondent's propos- al to make those very changes. By engendering 344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that perception, the Respondent placed the Union in the position of having to bargain, if at all, over a fait accompli. Because these changes were made before the Union had an opportunity to bargain about the proposals, the Respondent was not privi- leged to implement them .1 ° The Union promptly requested information about the proposed changes and then protested their unilateral implementation. Thus, the Union can hardly be said to have waived its bargaining rights. We therefore find that the Re- spondent's repudiation of its obligation to make contributions to any of the contractual benefit plans for unit employees at work at its Colorado Springs facility violated Section 8(a)(5). We shall incorporate the appropriate remedial provisions in the Order. 1I ORDER The National Labor Relations Board orders that the Respondent, Schmidt-Tiago Construction Com- pany, Arvado and Colorado Springs, Colorado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 13 as the representative of the appropri- ate units described below, by unilaterally ceasing to make contributions on behalf of unit employees to the pension, health and welfare, and vacation trust funds, as provided in the expired 1978-1981 High- way, Heavy Engineering, Utility and Building Construction Agreement, by unilaterally paying unit employees an additional 40 cents an hour which previously was contributed by the Respond- ent to the contractual vacation trust fund, and by unilaterally instituting a new health and welfare program. The appropriate bargaining units are as follows: All employees, excluding supervisors as de- fined by the Act, employed in the job classifi- cations covered by the 1978-1981 Highway, Heavy Engineering, Utility and Building Con- struction Agreement, who are employed at (a) 10 The Respondent's original announcement of a temporary discontinu- ance did not constitute a bargaining proposal Therefore, we disagree with the judge's conclusion that, assuming that shortly before the unilat- eral changes the parties reached impasse on other issues, the unilateral changes were encompassed by the Respondent's pre-impasse proposals That necessary condition for the "impasse " exception to the rule against unilateral changes has not been established here See Western Publishing Co., 269 NLRB 355 (1984) 11 The judge expressed doubts that it would be appropriate, even if the Colorado Springs benefits were discontinued unlawfully, to restore the status quo ante because (as the judge found without exception) the parties had bargained to a general good -faith impasse after the unilateral changes However, the record shows that no substantial bargaining on this issue occurred. the Company's Colorado Springs, Colorado fa- cility, and, (b) the Company's other operations in the State of Colorado. (b) Refusing to bargain with the Union by deal- ing directly with employees concerning matters over which it is obligated to bargain with the Union. (c) Telling employees represented by the Union that the Respondent would never sign a contract with the Union and that the employees' continued employment was conditioned on their resignation from the Union. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole the unit employees represented by the Union employed in the State of Colorado by paying on their behalf all pension and vacation trust fund contributions, as provided in the expired 1978-1981 Highway, Heavy Engineering, Utility and Building Construction Agreement, which have not been paid and which would have been paid but for the unlawful conduct found here, and continue such payments until such time as the Respondent negotiates in good faith to a new agreement or to an impasse. (b) Make whole the aforesaid unit employees for any losses or expenses they may have incurred as a result of the Respondent's failure from 10 July 1981 and continuing thereafter to make contributions on their behalf to the pension and vacation trust funds, as set forth in the remedy section of the judge's de- cision.12 (c) On written request from the Union, and in the same manner set forth in the remedy section of the judge's decision, rescind the Colorado Contrac- tors Association Health and Welfare Program which it instituted in July 1981 and immediately re- establish the health and welfare program which was in existence under the 1978-1981 Highway, Heavy Engineering, Utility and Building Construc- tion Agreement and resume making contributions into the health and welfare trust fund established by that agreement. 12 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C § 6621. Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S.C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). Any interest due on trust fund payments shall be computed in the manner prescribed in Merryweather Optical Co, 240 NLRB 1213 (1979) SCHMIDT-TIAGO CONSTRUCTION CO. 345 (d) Notify, in writing, all persons employed after 1 July 1981 in Colorado represented by the Union that they may be entitled to money damages they may have incurred due to the Respondent's institu- tion of the Colorado Contractors Association Health and Welfare Program for the program which was previously in existence. (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its locations in the State of Colorado copies of the attached notice marked "Appen- dix."13 Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon 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. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found are dismissed. CHAIRMAN DOTSON, dissenting in part. Although I agree, for the most part, with my colleagues' and the judge's findings in this case, I do not agree that the unilateral[ changes instituted by the Respondent at its Colorado Springs, Colora- do facility and applied to employees who returned to work during the course of an economic strike were unlawful, or that its discontinuance of pen- sion fund contributions for employees outside its Colorado Springs facility violated the Act. As stated in Service Electric Co., 281 NLRB 633 (1986), the Act, in my view, does not require an employer to apply preexisting terms and conditions of employment to economic strike replacements on the strike's termination. Since the interests of re- turning economic strikers are more closely aligned with those of strike replacements rather than with those of the strikers, an employer has no greater duty to bargain during the strike over the returning strikers' terms of employment than it does over 13 If this Order is enforced by a judgment of a Umted States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 " those of the strike replacements. For this reason I find, contrary to my colleagues, that the unilateral changes instituted by the Respondent at its Colora- do Springs facility for its returning strikers did not violate the Act, as alleged. Nor, as stated, would I find a violation with re- spect to the Respondent's decision to discontinue making pension fund contribution for employees employed outside its Colorado Springs facility. Rather, I agree with the Respondent that the Union in this case waived its right to bargain over discontinuance of the pension fund once the con- tract authorizing establishment of the fund expired. Thus, the Declaration of Trust authorizes employer contributions only when made "in accordance with a Pension Agreement" which is defined as includ- ing "any extension, renewal or replacement there- of," and is considered to be in effect "on any date if it provides for employer contributions to be made to the Trust Fund with respect to employ- ment on such date." The clear implication of these limitations is to waive both the employees' right to receive the benefits of pension fund contributions and the Union's right to bargain regarding the Re- spondent's cessation of contributions when the con- tract expired without renewal or replacement.' Under these circumstances, the Respondent's con- duct in discontinuing its pension fund contributions was not unlawful and I would, accordingly, dismiss this complaint allegation. In all other respects, I agree with my colleagues' and the judge's findings in this case. 1 Cauthorne Trucking, 256 NLRB 721 (1981), remanded on other grounds 691 F 2d 1023 (D C Cir. 1982) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 13 as the representative of the ap- propriate units described below, by unilaterally ceasing to make contributions on behalf of the unit employees to the pension health and welfare, and vacation trust funds, as provided in the expired 1978-1981 Highway, Heavy Engineering, Utility and Building Construction Agreement, by unilater- 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ally paying unit employees an additional 40 cents an hour which previously we contributed to the contractual vacation trust fund, and by unilaterally instituting a new health and welfare program. The appropriate bargaining units are as follows: All employees, excluding supervisors as de- fined by the Act, employed in the job classifi- cations covered by the 1978-1981 Highway, Heavy Engineering, Utility and Building Con- struction Agreement, who are employed at (a) our Colorado Springs, Colorado facility, and (b) our other operations in the State of Colora- do. WE WILL NOT refuse to bargain with the above- named Union by dealing directly with employees concerning matters over which we are obligated to bargain with the Union. WE WILL NOT tell employees represented by the Union that we will never sign a contract with the Union and that the employees' continued employ- ment is conditioned on their resigning from the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole employees represented by the Union employed by us in the State of Colorado by paying on their behalf all pension and vacation trust fund contributions, as provided in the expired 1978-1981 Highway, Heavy Engineering, Utility and Building Construction Agreement, which have not been paid and which would have been paid absent our unilateral discontinuance of such pay- ments, and WE WILL continue such payments until such time as we negotiate in good faith to a new agreement or to an impasse. WE WILL make the bargaining unit employees described immediately above whole, with interest, for any losses or expenses they may have incurred as a result of our failure from 10 July 1981 and continuing thereafter to make contributions on their behalf to the pension and vacation trust funds of the expired 1978-1981 Highway, Heavy Engi- neering, Utility and Building Construction Agree- ment. WE WILL, on written request from the Union, re- scind the Colorado Contractors Association Health and Welfare Program which we instituted in July 1981, and immediately reestablish the health and welfare program which was in existence under the 1978-1981 Highway, Heavy Engineering, Utility and Building Construction Agreement and resume making contributions into the health and welfare trust fund established by that agreement. WE WILL notify, in writing, all persons em- ployed by us in Colorado after 1 July 1981 and who were represented by the Union that they may be entitled to financial reimbursement for damagaes they may have incurred due to our unilateral insti- tution of the Colorado Contractors Association Health and Welfare Program in place of the pro- gram which was previously in existence. SCHMIDT-TIAGO CONSTRUCTION COMPANY William J. Daly and Arturo E. Roybal, Esqs., for the Gen- eral Counsel. Daniel J. Collyar (Mountain States Employers Council), for the Respondent. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. The hearing in this proceeding, which was held May 22-23, 1984, was based on unfair labor practice charges filed by International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union No. 13 (Union), in Cases 27-CA-7424, 27-CA-7336-7, and 27-CA-83481 against Schmidt -Tiago Construction Company (Respondent), and on a fourth amended con- solidated complaint issued May 31, 1983 , by the Regional Director of Region 27 of the National Labor Relations Board on behalf of the Board's General Counsel, alleging that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The complaint alleges that in violation of Section 8(a)(1) of the Act Respondent told striking employees that in order to return to work they would have to resign from the Union and show Respondent proof of their resignations, told employees that Respondent would never sign a collective-bargaining contract with the Union, and promulgated and maintained an illegal no-so- licitation rule. The complaint also alleges that in viola- tion of Section 8(a)(3) and (1) of the Act, Respondent al- lowed striking employees to return to work and granted them a pay raise if they resigned from the Union and showed Respondent proof of their resignations , and con- structively discharged 13 named striking employees by conditioning their continued employment on their resign- ing from the Union and showing Respondent proof of their resignations . The complaint further alleges that in violation of Section 8(a)(5) and (1) of the Act, Respond- ent bypassed the Union and instead dealt directly with employees represented by the Union, denied union busi- ness agents access to its facilities, and, without affording the Union a reasonable opportunity to bargain, engaged in the following unilateral conduct: Implemented a new ' The charge in Case 27-CA-7367 was filed June 22, 1981, and amend- ed April 19, 1982. The charge in Case 27-CA-7424 was filed July 21, 1981, and amended July 28 , 1981 The charge in Case 27-CA-8348 was filed April 18, 1983 SCHMIDT-TIAGO CONSTRUCTION CO. 347 health insurance plan for its employees; ceased making employee fringe benefit payments to the several trust funds established by its recently terminated contract with the Union; increased the wage rates of employees who returned to work during the Union's strike; changed the manner of paying its employees by paying directly to nonstriking employees moneys that previously had been contributed by Respondent on their behalf lo a pension trust fund. Last, the complaint alleges that a strike of Re- spondent's employees represented by the Union was pro- longed by the above-described alleged unfair labor prac- tices. Respondent filed a timely answer denying the com- mission of the alleged unfair labor practices.2 On the entire record, and from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Background During the time material, the Respondent, a corpora- tion, as admitted by its answer, was engaged in business as a paving contractor in the construction industry con- structing roads, dams, and similar heavy construction projects in the State of Colorado with its principal place of business in Arvado, Colorado, and with other offices and places of business in other locations in Colorado. The record further reveals that during the time material that Respondent in addition to its paving work on heavy construction, such as highways, also did paving work on smaller projects such as parking lots for commercial buildings. At all times Respondent has operated one fixed-location asphalt plant situated in Colorado Springs, Colorado, where Respondent's employees transport and process sand and gravel into asphalt. The Union for more than 30 years has represented all the truckdrivers, warehousemen, truck maintenance em- ployees, and truckdriver helpers employed by Respond- ent in the State of Colorado. These employees have been represented by the Union as a part of a multiemployer bargaining unit consisting of Respondent's employees and the employees of over 20 other contractors who do business in the State of Colorado. The employers in this multiemployer unit have been represented by the Signa- tory Labor Committee appointed by the Colorado Con- tractors Association, Inc. (SLC), and the collective-bar- gaining contracts entered into between the Union and the SLC covering the employees in the multiemployer unit have been entitled "[Union] Highway, Heavy Engi- neering, Utility and Building Construction Agreement" (union heavy highway contract). The most recent union heavy highway contract between SLC and the Union, which covered all the Respondent's employees employed 2 Respondent admits that the Union is a labor organisation within the meaning of Sec 2(5) of the Act Likewise, Respondent admits that it meets the Board's applicable discretionary jurisdictional standard and is an employer engaged in commerce within the meaning of Sec . 2(6) and (7) of the Act in Colorado, was effective from May 1, 1978, to May 1, 1981. In 1978 the Union negotiated a collective- bargaining contract with four paving contractors-Brannan Sand & Gravel, Asphalt Paving Company, Flatiron Paving Com- pany of Boulder and Western Paving Construction Com- pany-who were not part of the multiemployer unit en- compassed by the 1978-1981 union heavy highway con- tract. This contract was entitled the "Asphalt Paving In- dustry Group" contract (union asphalt paving group contract), and was negotiated jointly on behalf of all four employers by Kermit Darkey, the chief executive officer of the Mountain States Employers Council. All the rele- vant provisions of the union asphalt paving group con- tract, including its effective dates, are identical to the provisions of the 1978 union heavy highway contract. 2. The negotiations for a successor to the 1978-1981 union heavy highway contract The negotiations between the Union and SLC for a successor contract to the 1978-1981 union heavy high- way contract, which was scheduled to terminate May 1, 1981, began March 11, 1981, and seven negotiation meet- ings were held between March 1981, with the seventh and final meeting taking place June 16, 1981. During the June 16, 1981 negotiation meeting the SLC conditioned continued contract negotiations on the Union's consent to the untimely withdrawal of seven of the employer members from the multiemployer bargain- ing unit.3 Thereafter, on June 29, 1981, the SLC disband- ed the multiemployer bargaining unit and refused to meet and to bargain with the Union on a multiemployer unit basis. The Union in the months of June and July 1981 filed unfair labor practice charges with the Board in Cases 27- CA-7369 and 27-CA-7369-2 challenging the SLC's above-described conduct. The Board's General Counsel, based on these charges, on September 14, 1981, issued an amended consolidated complaint alleging that Respond- ent and 24 other named respondent employers were a multiemployer bargaining unit represented by the SLC, that all the drivers employed by these 25 respondent em- ployers constituted an appropriate bargaining unit, and that the 25 respondent employers and the SLC, which had been designated as their agent, all violated Section 8(a)(5) and (1) of the Act "by conditioning further nego- tiations on the Union's consent to the untimely with- drawal from the multiemployer unit of certain of re- spondent employers" and "by disband[ing] the multiem- ployer bargaining unit and by thereafter failing and re- fusing to meet and bargain with the Union as a multiem- ployer bargaining unit." A hearing was held in Cases 27-CA-7369 and 27-CA- 7369-2 on October 15-16, 1981, before Administrative Law Judge Holmes who issued a decision on February 8, 1982. On May 28, 1982, the Board issued its Decision and Order affirming the rulings, findings, and conclu- sions of Judge Holmes in their entirety , and adopted his 3 Respondent was not one of these seven employers. 348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD recommended Order.4 The Board concluded that the SLC was the respondent employers' agent for the pur- pose of negotiating a successor agreement to the 1978- 1981 union heavy highway contract, that the employees of the respondent employers in the job classifications covered by that contract constituted an appropriate mul- tiemployer bargaining unit, that the employees were rep- resented by the Union, and that the respondent employ- ers and their agent, the SLC, violated Section 8(a)(5) of the Act by "(a) conditioning further contract negotia- tions with the union on the union's multi-employer bar- gaining unit" and by "(b) disbanding the respondent em- ployers from the multi-employer unit, and failing and re- fusing to meet and bargain with the union as a multi-em- ployer bargaining unit." In addition to the unfair labor practices filed in Cases 27-CA-7369 and 27-CA-7369-2, the Union, during the negotiations for a successor contract to the 1978-1981 union heavy highway contract, filed an unfair labor prac- tice charge against the Respondent in Case 27-CA-7371 on June 23, 1981, alleging that Respondent was refusing to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, as follows: "By conditioning entry into a successor agreement to the [1978-1981 union heavy highway contract] upon exclusion of its fixed based stationary operation located at Colorado Springs, Colorado." Shortly thereafter the Union withdrew this charge. The circumstances surrounding the filing and withdrawal of this charge are undisputed and are as fol- lows. During the June 12, 1981 bargaining session the Re- spondent's representative Wally Schmidt requested that Respondent's fixed-base asphalt plant located in Colora- do Springs be excluded from the multiemployer unit being bargained for and insisted that the Union agree to this request. The Union's representative took the position that the SLC represented all the Respondent's operations in the State of Colorado and filed a charge in Case 27- CA-7371. On June 24, 1981, the day after filing the charge, the Union's lawyer John McKendry spoke to David Gor- such, the lawyer representing the Respondent in connec- tion with the Board's investigation of the charge, 5 and explained to Gorsuch why the charge had been filed and that it was the Union's position that SLC represented all of Respondent's operations in Colorado including the Colorado Springs location. Gorsuch stated that this was correct and that he would acknowledge this in the future. McKendry stated that he would accept Gorsuch's representation, confirm it in writing, and based on it, 4 Signatory Labor Committee, 261 NLRB 1459 ( 1982). On February 29, 1983, the Board's Order was enforced in its entirety by the United States Court of Appeals for the Tenth Circuit. Previously, in December 1982, the court granted the Board's motion for temporary injunctive relief under Sec 10(e) of the Act enforcing the Board's Order in full, pendente lite. 6 The law firm in which Attorney Gorsuch is a partner , Gorsuch, Kirgis, Campbell, Walker, and Grover, represented Respondent in the litigation before the Board and court in Cases 27-CA-7369 and 27-CA- 7369-2 and was also Respondent's counsel in this litigation until April 2, 1982, when it withdrew. Also at all times material Attorney Gorsuch's law firm has represented the SLC advise the Union to withdraw its charge. The same day one of McKendry's associates wrote Gorsuch as follows: Re: Teamsters Local No. 13 and Schmidt-Tiago Construction Co.; (1981 Collective Bargaining Ne- gotiations) NLRB Case No. 27-CA-7371 Dear Mr. Gorsuch: This letter will serve to confirm your discussion by telephone of June 24, 1981 with John McKen- dree [sic] wherein you represented that the Schmidt-Tiago Construction Company has and will continue to designate the Colorado Contractors As- sociation, Inc. as its sole and exclusive bargaining representative for the purpose of negotiating on its behalf with the Teamsters Construction Workers Local Union No. 13 of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America for all its Colorado operations including its fixed based stationary operations locat- ed at Colorado Springs, Colorado. In consideration of the foregoing representations made in the above-mentioned telephone conversa- tion, the Union will withdraw without prejudice to refile its Unfair Labor Practice charge in the above- captioned matter. The negotiations between the SLC and the Union for a successor contract to the 1978-1981 union heavy high- way contract resumed briefly in February and March 1982 when three or four negotiation meetings were held. These negotiations ended late in March 1982 when At- torney Charles Grover, a partner in the law firm of Gor- such, Kirgis, Campbell, Walker, and Grover, which was representing the SLC, informed the Union's negotiators on behalf of the SLC, that "it has been consistently our position that the SLC represented all of [Respondent] state wide, with the exception of the Colorado Springs operation." The Union's lawyer John McKendry, who was present at this negotiation session, emphatically denied that this had been the position of the SLC and stated that all the Respondent's operations including its Colorado Springs operation were represented by SLC in the negotiations . The Respondent's representatives stated that if that was the Union's position, that they were leav- ing and left the meeting room, whereupon the Union's negotiators also walked out, thus ending the negotiations. It was not until early 1983 that the contract negotia- tions between SLC and the Union resumed and these ne- gotiations continued until March or April 1984 without success in reaching an agreement to replace the 1978- 1981 union heavy highway contract.6 During one of these bargaining sessions , early in February 1983, Robert Prevost, who at the time was one of Respondent's vice presidents and its general manager in charge of the Colo- rado Springs operation, informed the Union's negotiators that the SLC was negotiating on behalf of Respondent 6 These negotiations were apparently resumed by the SLC in comph- ance with the court's grant of temporary injunctive relief to the Board in December 1982 in connection with the Board 's petition to enforce its Order in Cases 27-CA-7369 and 27-CA-7369-2, and continued thereafter when the court enforced the Board's Order in those cases SCHMIDT-TIAGO CONSTRUCTION CO. 349 and all of its operations including the Company's Colora- do Springs fixed-based operations. 3. The negotiations for a successor to the 1978-1981 union asphalt paving contract On April 1, 1981, contract negotiations began for a contract to succeed the 1978-1981 union asphalt paving group contract, which by its terms was scheduled to ter- minate May 1, 1981. As indicated previously, the 1978- 1981 agreement covered four employers-Asphalt Paving Company, Brannan Sand & Gravel, Flatiron Paving Company of Boulder, and Western Paving Con- struction Company. However, prior to the start of the negotiations for a new contract, Kermit Darkey, the chief executive officer of the Mountain States Employers Council, which represented the employers who were sig- natory to the 1978-1981 contract, notified the Union in writing that four more employers were being added to this group-Broderick-Gibbons Inc., Flatiron Paving Company of Greeley, Sterling Paving Company, and Re- spondent. Darkey also told the Union that the eight em- ployers "are members of the Asphalt Paving Industry multiemployer bargaining group for their commercial as- phalt paving operation and/or their fixed based station- ary operations" and were ready to meet with the Union to negotiate the wages, hours, and terms and conditions of employment of their employees employed in these op- erations. As will be described in detail infra, starting on April 1, 1981, the parties held several negotiation meet- ings. Although Darkey was the spokesperson for the em- ployers at these meetings, there was at least one repre- sentative for each employer present at most of the meet- ings. Present for the Respondent at most meetings was Robert Prevost, its then vice president and general man- ager in charge of its Colorado Springs operation. The Union's spokesperson during the negotiations was its president, Jack Parker. During the April 1, 1981 negotiation meeting Darkey on behalf of the employers presented a written contract proposal. The proposal did not include a wage provision and proposed that the existing fringe benefit provision of the 1978-1981 asphalt paving group contract remain un- changed.7 At the outset of the meeting Parker told Darkey that he did not understand Respondent's presence in the ne- gotiations because Respondent, Parker stated, was "rep- resented by the SLC as well." Darkey responded by stat- ing that he did not know anything about that, but only knew that he was instructed that Respondent was a part of the group of employers on whose behalf he was nego- tiating. Parker did not press the matter and expressed no objection to Respondent being covered by the asphalt paving contract negotiations, nor did he object to the presence of Robert Prevost, Respondent's vice president and general manager in charge of the Colorado Springs operation. As I have noted supra , these provisions as well as all other contrac- tual provisions relevant to this case in the 1978-1981 asphalt paving During the April 1 meeting Darkey and Parker, among other things, discussed and identified the portions of the employers' businesses that were going to be cov- ered by negotiations, and at this time Parker asked whether Respondent's Craig, Colorado operation was in- cluded in the negotiations. Darkey replied that only Re- spondent's Colorado Springs facility would be included in the negotiations. The next two negotiations meetings were held April 9 and 14, 1981, and at neither meeting did Parker object to Respondent's inclusion in the negotiations. Nor did Parker object to Prevost's presence at the April 9 meet- ing.8 On April 21, 1981, the next negotiation meeting took place. Parker raised no objection to the inclusion of Re- spondent as one of the employers for whom Darkey was bargaining nor did Parker object to Prevost's presence. During this meeting Darkey submitted an amended and modified contract proposal on behalf of the employers, which proposed a contract of 3-year duration. This pro- posal provided that in 1981, 1982, and 1983 on May 1 of each of those years, there would be wage increases of 55 cents an hour or 80 percent of the union heavy highway contract settlement, whichever was greater. Regarding fringe benefits, the proposal provided that fringe benefit provisions of the existing contract remain unchanged and that employers' payments into the contractual pension and vacation trust funds remain unchanged for the dura- tion of the contract as would the employers' payments into the industry advancement program or asphalt indus- try program. With respect to contributions to the health and welfare trust fund, the employers' proposal called for hourly increases of 5 cents the first year, 6 cents the second year, and 6 cents the third year. The next negotiation session took place May 6, 1981. Parker raised no objection to the inclusion of Respond- ent as one of the employers for whom Darkey was bar- gaining nor did he object to Prevost's presence. Darkey modified the employers' April 21 contract proposal in several respects. The fringe benefits provisions remained the same, but with respect to wages the employers now proposed that on the effective date of a new agreement that employees working on or out of portable asphalt plants or producing aggregate for portable asphalt plants receive a 53-cent-an-hour increase and that employees working on or working out of or producing for a fixed- based commercial asphalt paving plant shall receive an hourly rate increase equal to 80 percent of the above rate. The employers further proposed that effective 1 year and 2 years after the new agreement, the identical pay raise be granted. When the parties next met on May 12, 1981, there was a Federal mediator present. Parker did not object the in- clusion of Respondent as one of the employers for whom Darkey was bargaining, nor did he object to Prevost's presence. Darkey presented to Parker a written contract proposal which was entitled "Best, Last and Final Offer." In pertinent part this proposal provided for a group contract were identical to the provisions in the 1978-1981 union 8 Neither Prevost nor any other representative of Respondent attended heavy highway contract the April 14 meeting 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contract of 2-year duration, provided for a wage increase of 80 cents an hour effective the first day of the month following the contract modification, and a further in- crease of 70 cents an hour effective May 1, 1982. With respect to fringe benefits, the only mention of that sub- ject in this proposal concern health and welfare and on that subject the Employer proposed that their hourly contributions be increased by 10 cents effective the first day of the month following the contract's ratification and that effective May 1, 1982, be increased by another 10 cents. No further negotiation meetings were held in May 1981 and none were held in June 1981, when on June 18 the Union struck all eight of the employers represented by Darkey in these negotiations. The Union only struck the Respondent's Colorado Springs location, not Re- spondent's other locations or jobs. The strike shut down Respondent's Colorado Springs operation as all the employees employed at that location who were represented by the Union supported the strike. However, the first week of July 1981 Respondent re- sumed operations at its Colorado Springs operation using a combination of returning strikers and striker replace- ments. On June 18, 1981, Darkey on behalf of the employers wrote Union President Parker as follows: 1. As you are aware, the individual member em- ployers of the Asphalt Paving Industry Group each made their best, last and final offer May 12, 1981. The Union has now struck the individual employers or directed its members to honor picket lines estab- lished by other Unions. The Employers have care- fully reviewed the situation and have concluded that it is their intention to resume and continue their operations in spite of the strike. Accordingly, the Employers intend to hire per- manent replacements. Letters will be mailed to the employees advising them of the Employer's inten- tions to resume operations and hire permanent re- placement employees. 2. Be advised, effective immediately, the Group Employer members are discontinuing enforcement of the Union Membership and Hiring Procedure provisions of the Collective Bargaining Agreement. Likewise, contributions will not be paid to any jointly trustee benefit plan or to any vacation or ap- prenticeship plans. 3. As you are aware the Industry Group negotiat- ed jointly albeit, as individual employers. Accord- ingly, because of the impasse which exists in the current bargaining situation each Employer member individually reserves the right to impasse the wage rate offer made to the Union May 12, 1981. The individual Employers stand ready and able to meet at a mutually convenient date and time. On June 29, 1981, Darkey, on behalf of the employers, wrote Union President Parker, as follows: In reference to the position of the individual em- ployers of the Asphalt Paving Industry, and specifi- cally in regard to contributions and payments to be made to respective Health and Welfare and Vaca- tion Fund Plans, the amounts owed will be paid on the basis of the contribution schedule of the labor agreement which terminated May 1, 1981, when the strike commenced. Employers were advised prior to the commencement of the strike that payments were due and payable. However, as you were advised in our letter dated June 18, 1981, contributions will not be paid to any jointly trusted benefit plan or to any vacation or ap- prenticeship plan for the period after June 18, 1981, unless and until subseqeunt labor agreements are agreed to and ratified between the Union and indi- vidual employers. The individual employers continue ready and able to meet at a mutually convenient date and time. Those strikers who returned to work, starting in the first week of July 1981, received the 80-cent-an-hour pay raise that was contained in the employers' May 12, 1981, "Best, Last and Final Offer." Also the returning strikers were paid the 40 cents an hour that had been previously paid by Respondent on behalf of the employees to have the vacation trust fund provided for in the 1978-1981 union heavy highway contract. Besides discontinuing to make the contractual vacation trust fund contributions on behalf of its employees, Respondent effective June 18, 1981, also discontinued making payments on behalf of its employees into the health and welfare and pension trust funds provided for in the 1978-1981 union heavy high- way contract, as well as the industry advancement funds payments provided for by that contract. Respondent since June 18, 1981, has not made any payments into the aforesaid trust funds on behalf of not only just its Colo- rado Springs employees but on behalf of all of its em- ployees in the State of Colorado. Also in the first week of July 1981, Respondent placed all of its employees rep- resented by the Union employed in the State of Colora- do under a health and welfare program maintained by the Colorado Contractors Association and since that time has been making payments on behalf of these employees into the Colorado Contractors Trust for their health and welfare benefits. Following the May 12, 1981 negotiation meeting, it was not until July 23, 1981, that Darkey, the Asphalt Paving Groups negotiator, and Parker, the Union's nego- tiator, next met. The circumstances surrounding this meeting are as follows. Prior to July 23, 1981, when Bill Keller, the president of Asphalt Paving Company, one of the employer members of the Asphalt Paving Group, asked Parker to negotiate with his company, Parker agreed to the July 23, 1981 negotiating meeting. Present at this meeting were Keller and Darkey for the Asphalt Paving Company, Parker, and another union official for the Union. None of the officials of the several other em- ployers in the Asphalt Paving Group, who Darkey rep- resented, was present as would have been the case if this had been scheduled as a negotiating meeting that con- cerned the other employers. During the July 23 meeting Darkey handed Parker a typed document dated July 23, 1981, which stated in sub- SCHMIDT-TIAGO CONSTRUCTION CO. 351 stance that Flatiron Paving Company of Boulder, Fla- tiron Paving Company of Greeley, Sterling Paving Com- pany, Asphalt Paving Company, and Respondent were unwilling to increase their economic offer that was re- jected on May 12, 1981, by the Union, that they were now proposing that the industry advancement fund in- cluded in the recently expired contract be terminated, and with respect to the subjects of health and welfare, vacation, and pension were presenting new contract pro- posals." Asphalt Paving Company's July 23 proposals regard- ing health and welfare, vacation, and pension were set out in a separate typed document that Darkey gave to Parker. The record does not reveal the substance of these proposals. Flatiron Paving Company of Boulder, Flatiron Paving Company of Greeley, and Sterling Paving Company pro- posed in their July 23 proposals that the health and wel- fare provision of the recently expired contract he deleted and that the health and welfare plan provided by the Colorado Contractors Association be substituted, that the vacation provision in the recently expired contract be de- leted and the moneys previously paid under that contract to a vacation trust fund be added to the employees' hourly rates of pay and paid to them directly, and that the pension plan provided for in the recently expired contract be deleted and that the moneys previously paid by the employer under that contract to a pension trust fund be added to the employees' hourly rate of pay and paid directly to the employees. Respondent's July 23, 1981, health and welfare, vaca- tion, and pension proposals insofar as they concerned health and welfare were identical to the above-described proposals of the other employers, but differed with re- spect to pensions and vacations. While proposing that the vacation plan provided for in the recently expired contract be deleted, Respondent proposed that the moneys previously paid to the contractual vacation trust fund be paid directly to the employees in a lump-sum payment at the end of each calendar year and, while pro- posing that the pension plan in the recently expired con- tract be deleted, Respondent proposed that a different pension plan be established using the money formerly paid by the Respondent into the contractual pension trust fund, to fund the new pension plan's benefits. There was no discussion about the above-described proposals. However, Parker asked Darkey to furnish the Union with a copy of the Colorado Contractors Associa- tion's health and welfare plan. There was one matter in dispute concerning the July 23 meeting. Parker testified that when Darkey handed him the above-described written proposals, that Parker, on observing Respondent's name, asked why Darkey was speaking on Respondent's behalf and that Darkey stated that he represented Respondent. Parker further testified that he then asked whether Darkey knew about the unfair labor practice charge settlement between Attor- 9 The reason why the July 23, 1981 proposals did not include the other three employer members of the Asphalt Paving Group-Brannan Sand & Gravel, Brodenck-Gibbons Inc, and Western Paving Construction Com- pany-was that these companies had reached agreements with the Union neys McKendry and Gorsuch in which it was settled that Respondent would be represented by SLC for all of its operations throughout the State. Darkey, according to Parker, replied by stating that he had no knowledge of this and that as far as he was concerned he represented Respondent because those were his instructions. Darkey specifically denied that this conversation took place. When Darkey denied that the above-described disput- ed conversation occurred, Darkey's testimonial demean- or was good. I also note that in an affidavit given July 23, 1981, in connection with the charges filed in this case, Parker failed to mention this disputed conversation. Quite the opposite, Parker stated in the affidavit that after Darkey handed him the July 23, 1981 proposals that the subject he discussed with Darkey concerned whether the employers had made contributions to the various trust funds since June 18, 1981, not the subject of Respondent's inclusion in the Asphalt Paving Group of employers. As a matter of fact even though Parker in his affidavit specifically mentioned the negotiations between the Union and the Asphalt Paving Group of employers, including Respondent, Parker significantly failed to men- tion that the Union questioned Respondent's right to be a part of that Group. Quite the opposite, Parker in his July 23, 1981 affidavit stated that Parker had been engaged in negotiations with a group of eight Asphalt Industry Em- ployers, one of whom was Respondent, that the employ- ers' spokesperson was Darkey, and that with respect to Respondent and four of the other employers that the ne- gotiations were continuing. It is for all of these reasons that I credit Darkey's testimony that the subject of Re- spondent's representation by Darkey was not brought up during the July 23, 1981 meeting. On July 29, 1981, the next bargaining session took place. It was attended by a Federal mediator who ar- ranged for the meeting. Besides Darkey and Parker and several other union representatives, also present was As- phalt Paving Company's president, Keller. No officials from any of the other employers were present. The July 29 meeting started with Darkey informing the Union's negotiators that the five Asphalt Paving Group of employers, including Respondent, who were being struck by the Union had implemented the Colora- do Contractors Association health and welfare plan in place of the former contractual plan to be sure that the employees had uninterrupted health and welfare cover- age. Also, pursuant to the Union's July 23 request, Darkey gave Parker a copy of the booklet describing the Colorado Contractors Association health and welfare plan. Parker then handed Darkey a July 29 letter which, on behalf of the Union, requested "information regarding any benefits plans . . . implemented or to be implement- ed by" the five Asphalt Paving Companies, including Respondent, being represented by Darkey in the negotia- tions. The letter explained that "to bargain meaningful with these employers [referring to Respondent and the other four Asphalt Paving Companies] concerning any benefit plan, the Union . . . must have relevant informa- tion concerning those plans," and requested certain enu- merated information about the benefit plans that the em- 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployers had either implemented or were proposing to im- plement. At this point in the July 29 meeting Darkey gave Parker a document dated July 29, 1981, which at the top contained the names of Respondent and the other four Asphalt Paving Companies represented by Darkey, and which read as follows: Incorporating the understanding of the individual proposals made July 23, 1981, the following is the position of the individual employers. (1) Driver employees and employees within the jurisdiction of the Teamsters Union will be covered by the Hospital and Surgical benefits provided under the Colorado Contractors Association Plan. (2) Monies formerly paid into the Vacation Fund will be added to the individual employee's hourly rate of pay and paid directly to each eligible em- ployee. (3) Because a strike is in progress and because the eligible employees are not covered by a labor agree- ment, the individual employers will defer its propos- al regarding deleting the Pension Plan provided for in Article 26. If a labor agreement is subsequently agreed to be- tween the parties or any of the parties on or before January 1, 1982, the above individual employers agree to re-negotiate the Teamsters Western Con- ference Pension Plan. This Plan will be in lieu of the C.C.A. retirement plan or an individual I.R.A. plan. There was discussion between Darkey and the Union's negotiators about the above-described employers' July 29 statement of position, but only insofar as the statement of position related to Asphalt Paving Company whose president was in attendance. The record is silent about the nature of this discussion. The meeting ended "with a discussion that [the parties] were at an impasse" and the Federal mediator also stated that in his opinion the parties were at an impasse and that he saw no reason at that time to schedule another meeting. On July 31, 1981, another negotiation meeting took place. The record does not reveal who, if anyone, other than Darkey and Parker, was present for this meeting. The meeting was arranged by Darkey for the purpose of making it plain to the Union that the statement of posi- tion given to the Union during the July 29, 1981 meeting was not only the position of Asphalt Paving Company but was the position of the other Asphalt Paving Compa- nies, including Respondent, who Darkey represented in the negotiations. It is undisputed that there was general discussion be- tween Darkey and Parker about the contractual issues over which the parties were in dispute, and that the par- ties were unable to narrow their differences. The meeting ended as follows. Parker protested the cessation by the employers of the various fringe benefit payments on behalf of the employees which the employ- ers had previously made to the fringe benefit trust funds contained in the recently expired contract. Parker stated to Darkey that it was the Union's position that the em- ployers were obligated to continue making these pay- ments until impasse was reached in negotiations and that no impasse had been reached and warned Darkey that if the employers had in fact ceased making such payments to the trust funds that the Union would have to pursue the matter acting on the advice of its lawyer. Darkey re- plied by stating that the union's lawyer was ignorant of the law, that if the Union pursued the matter in that fashion that it would be very distasteful, and that the Union had the employers' proposals, and had the option of accepting the proposals or going to the Board and filing unfair labor practice charges, or going straight to hell. It was at this point that the meeting ended.' 0 Lastly before leaving these negotiations, I note that the July 31, 1981 negotiation session was the last one be- tween the Union and Respondent that occurred in the context of the Asphalt Paving Group negotiations. I also noted that it is undisputed that at no time during these negotiations did the Union advance any counterproposals to Respondent's proposals with respect to health and welfare, wages, pension, or vacations. Also it is undis- puted that from May 12 through July 31, 1981, that there was no change in the Union's bargaining position in these negotiations. 4. Respondent's conversations with the strikers On June 18, 1981, as I have found supra, the Union struck Respondent's Colorado Springs facility. All the approximately 85 employees employed at that location, who were represented by the Union, supported the strike, thus forcing Respondent to shut down its Colora- do Springs operation."" However, starting the first week of July 1981 Respondent resumed operations at Colorado Springs using a combination of striker replacements and returning strikers.12 Previously, by letter dated June 28, 10 The description of how the meeting ended is based on Parker's testi- mony that was given in a straightforward and sincere manner Darkey did not specifically deny Parker's account, but only generally testified that the Union did not ask that the employer discontinue the Colorado Contractors Association health and welfare plan I have credited Parker's above-described description because his testimonial demeanor was good when he so testified, whereas Darkey failed to specifically deny his testi- mony l i Respondent's vice president and general manager, Prevost , testified that he guessed that at the time of the Union 's June 18, 1981 strike there were 50 to 60 union represented employees employed at the Colorado Springs facility Prevost's guess was incorrect An examination of A. Exh 7, the list of the union represented employees employed by Re- spondent in the State of Colorado between June 1, 1981, and February 1, 1983, as interpreted by the parties' stipulation (Tr 21, LL 4-5), estab- lishes that there were 73 strikers who returned to work at Colorado Springs after the start of the strike The record also reveals that there were at least another 12 strikers, those alleged as discrimmatees , who did not return to work Thus, Respondent employed at least 85 union repre- sented employees at its Colorado Springs facility at the time of the June 18, 1981 strike 12 The Union has never ended the strike and asked Respondent to recall those strikers who have not returned to work for Respondent. However, there has been no picketing of the Respondent since July 23, 1982, when striker Frank Luckman ceased picketing Luckman , who was retired and receiving social security, had been picketing the Colorado Springs facility for the Union by himself for the 6-month period prior to July 23, 1982 SCHMIDT-TIAGO CONSTRUCTION CO. 353 1981, Respondent's vice president and general manager in charge of the Colorado Springs facility, Robert Pre- vost, wrote the striking employees that it was Respond- ent's intention to resume and continue its operations in spite of the strike, and advised the strikers: For those employees who wish to work and to return to work, employment is available. If you choose not to return to work, it will be necessary to seek a permanent replacement for you. Needless to say, if such a replacement is hired before you make an offer to return to work, you will not have a job with us at that time. The decision as to whether or not to return to work is yours. If you decide to return to work, we will put into effect our best, last and final offer which we proposed to your union. You have a right, which is guaranteed by law, to return to your job without threats or coercion from anyone for doing so. The Supreme Court has ruled that if a striking employee resigns his or her mem- bership in the Union, the employee can not be fined by the Union for crossing the picket line. Thereafter, on June 30, 1981, Prevost wrote the strikers that "the decision has been made to resume operation with our trucks on Monday, July 6, 1981 at 7:30 a.m. If you do not return to work on the above date, you are subject to being replaced immediately." The General Counsel contends, as alleged in the com- plaint, that during the course of the strike the Respond- ent violated Section 8(axl), (3), and (5) of the Act by making certain statements to striking employees. The pertinent evidence, which is in dispute, is set forth and the disputes resolved in this section. a. Leslie Lynn Allison Allison, a truckdriver for Respondent, supported the June 18, 1981 strike and was a member of the Union. He resigned from the Union by letter dated July 13, 1981, and immediately thereafter crossed the picket line and returned to work, at which time he showed Truck Fore- man Duane Paradise the post office receipt from his letter of resignation." These facts are not in dispute. In dispute is whether Prevost told Allison and other strikers that they had to resign from the Union in order to return to work. During the first week of the strike Allison met with Prevost in the temporary office being used by Respond- ent to interview striker replacements. Allison testified that he asked Prevost "what was the deal for us to come back to work" and that, in response, Prevost stated that the strikers would receive the benefits contained in the Respondent's last contract offer, that they would receive an 80-cent-an-hour wage increase and would have health insurance and vacation benefits and that Respondent would try to implement a retirement plan that would enable the employees to retain what they had vested in the Union's retirement plan. Allison further testified that 18 Allison was not able to remember whether it was Prevost, Paradise, or one of the strikers who told him to show Paradise proof of his resigna- tion from the Union. Prevost then stated, "we could not stay in the Union. We'd have to resign from the Union to come back to work," and explained to Allison that the Respondent's lawyer had said that it was the employees' constitutional right to resign from any organization at any time. Allison testified that he responded by asking whether he could take a withdrawal from the Union rather than resign, and that Prevost, "no, we had to resign." Shortly before returning to work, Allison with five other strikers-Greg Nil], Gilbert Garbiso, Tommy Cor- nell, Charles Crippen, and Don Waters-met with Pre- vost in Prevost's office. Allison testified that one of them asked Prevost, "what we had to do to come back to work." Allison further testified that in response Prevost stated that "we would have to resign from the Union to come back," and that their jobs would remain open until the following Monday morning, and that then there would be "bodies" in the trucks. Allison testified that he asked Prevost about his retirement benefits and that Pre- vost told them that the company was working on imple- menting a retirement plan for the employees. Prevost did not deny meeting with Allison during the first week of the strike, but testified that he did not tell Allison that he would have to resign from the Union in order to return to work. Prevost failed to testify about what he did say to Allison when they met . Regarding his meeting with Allison, Nill, Garbiso, Cornell, Crippen, and Waters, Prevost testified that he recalled this meet- ing but the only thing he could remember being said was that Crippen asked a question about his union pension that Prevost was not able to answer. Prevost testified that he did not tell the employees at this meeting that they had to resign from the Union in order to return to work. When Allison gave the above-described testimony his demeanor was good, whereas, Prevost's testimonial de- meanor was poor. I also note that there was no evidence that Allison's interest were antagonistic toward Respond- ent's or in sympathy with the strikers inasmuch as he re- turned to work during the strike and was employed by Respondent until August 26, 1983, when due to a physi- cal injury he voluntarily left Respondent's employment. As a matter of fact the record reveals that if Allison bears any ill-will toward any of the parties to this pro- ceeding, that it would be toward the Union because the Union fined him $1000 for resigning and crossing the picket line to return to work. It is for these reasons that I have credited Allison's above-described testimony and rejected Prevost's. b. Jim Clementi Clementi, a truckdriver for Respondent, supported the June 18, 1981 strike and was ammember of the Union. His supervisor was Duane Paradise, the Respondent's truck foreman. Clementi testified that approximately 2 days after the strike he telephone Paradise and, after asking how Para- dise was doing, Clementi testified, "I asked him if I was going to be able to go back to work" and that "he [Para- dise) told me yes . . . but the way it looks now, if you want to get back you will have to drop out of the Union 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to go back to work." Clementi further testified that Para- dise told him he had approximately a week or a week and a half to decide whether he wanted to return to work and that if he decided not to return to work that Paradise would find someone else to drive his truck. Paradise testified that during the strike there never was a conversation between himself and Clementi, let alone a conversation between them about Clementi's re- turning to work and further testified that he never told Clementi that he ought to resign from the Union and come back to work. Clementi's testimonial demeanor was good when he gave his above-described testimony, whereas Paradise's was poor. It is for this reason that I have credited Cle- menti's testimony and rejected Paradise's testimony. c. Herman Chavez Chavez, a truckdriver for Respondent, supported the June 18, 1981 strike and was a member of the Union. As described in detail below, Chavez testified that he met on July 3, 1981, with Prevost in Prevost's office. Prevost testified that no such meeting occurred and that other than casually greeting Chavez in passing the only time he spoke to Chavez during the strike was in Respond- ent's parking lot in connection with an argument be- tween Chavez and a striker replacement. Chavez testified that on July 3, 1981, while on the picket line he observed several strikers including John Teeter leaving Prevost's office and he asked him what Prevost was offering. According to Chavez, Teeter re- plied that if he wanted to know that, Chavez would have to go into Prevost's office himself. Teeter testified that Chavez did not speak to him during the strike while on the picket line and that Teeter did not, as Chavez testi- fied, tell Chavez to talk with Prevost. Chavez initially testified that when he entered Pre- vost's office on July 3, "I just asked him what [Respond- ent] was going to do" and Prevost answered, "they were going to go non-union" and "that in order for me to con- tinue working, I'd have to resign from the union, and I'd have to have proof of resignation." Chavez further testi- fied that he then asked Prevost what protection Re- spondent would give him if he went nonunion and Pre- vost told him that Respondent would have employment benefits somewhat like the Union's. When asked to place Prevost's resignation statement in its context, Chavez tes- tified, "I asked him about the job-my job status" and that Prevost replied, "I had a job as long as I would go non-union, because they are going to go non-union." Up to this point Chavez did not attribute any statement to Prevost concerning Respondent's collective-bargaining contract with the Union. Now when asked if anything was said about a union contract, Chavez testified that Prevost stated, "They weld not going to sign a contract with the Union." When asked to place this statement in its context, Chavez testified that Prevost made this state- ment "when I asked him . . . if I went non-union what my protection would be-I said what happens if you sign with the Union. He said, `we're not going to sign with the Union."' During cross-examination, Chavez testified that when he entered the office the first thing he stated to Prevost about his job was, "What was going on," and in response Prevost stated, "They were going to go to work without the Union, but then testified that Prevost's words were "without union membership." Chavez further testified that Prevost's words were, "They were not going to sign with the Union" and that in response Chavez asked what protection he would have if he returned to work and Re- spondent signed with the Union. Prevost, according to Chavez, replied that Respondent was not going to sign with the Union and Chavez could go to work for him if he got a letter of resignation and presented proof of his resignation. Later during cross-examination Chavez testi- fied that in response to his inquiry about what protection he would have if Respondent did sign a contract with the Union, Prevost stated, "we are not going to sign with the Union and in order for you to go to work you have to have a resignation and proof of resignation." Also during cross-examination Chavez testified that Prevost told him that if he accepted Respondent's pro- posal he would have the same employment benefits as the office help and that Respondent was working on a pension plan and if Chavez returned to work Respondent would try to give him the same benefits that he would have had with union representation. I reject Chavez' aforesaid testimony that he met with Prevost. Chavez' testimonial demeanor was poor. In ad- dition, as described in detail supra, he gave several dif- ferent accounts of what was stated about significant mat- ters during the alleged meeting, and did not testify in a straightforward manner, rather his testimony was charac- terized by embellishments and internal inconsistencies. Also his version of what prompted him to visit Prevost's office is disputed by John Teeter who impressed me as a credible witness. Lastly, Chavez' testimony that he inter- rogated the last paragraph of Prevost's June 28, 1981 letter-"you have a right, which is guaranteed by law, to return to your job without threats or coercion from anyone for doing so. The Supreme Court has ruled that if a striking employee resigns his or her membership in the Union, the employee can not be fined by the Union for crossing the picket line"-to mean that he had to resign from the Union in order to return to work for Re- spondent, indicates that Chavez was not a reliable wit- ness. It is for all of these reasons that I am persuaded that relatively speaking, Prevost was a more credible witness. Accordingly, I have rejected Chavez' testimony in its entirety. d. Wayne Sell Sell, who was employed by Respondent as a truck- driver, supported the June 8, 1981 strike was a union member. It is undisputed that during the second week of the strike that a group of four of the striking employees, which included Wayne Sell, Garry Eiferd, and Dick Conrad went into Prevost's office to speak with Prevost. In dispute is what was stated during this meeting. Sell testified that one of the employees in the group told Prevost, "We come in just to-more or less to find out what was going on" and in response, Prevost stated "They were going to resume work, and if he wanted to come back to work, we had to resign from the Union SCHMIDT-TIAGO CONSTRUCTION CO. 355 and have a receipt of resignation, and then we could go back to work." On hearing this Sell testified that he turned around and walked out of the office leaving the others there. Prevost testified that he did not say to the employees who were present at this meeting that they had to resign from the Union in order to return to work or mention anything to them about showing proof of such a resigna- tion. Rather Prevost testified that the employees "wanted to know how they went about going to work" and what Respondent had to offer them and what was going to happen about their pension money and their health and welfare benefits and that, in response, Prevost talked to them about Respondent's May 12, 1981, "Best, Last and Final Offer." Sell's testimonial demeanor when he gave the aforesaid testimony was good, whereas, Prevost's was poor. I therefore credit Sell's and reject Prevost's testimony. e. Arthur Brautigam, Paul Forsett, and Edward Mayo On July 10, 1981, at approximately 11 a.m. strikers Arthur Brautigam, Paul Forsett, Edward Mayo, and Clem Leyba initiated a meeting with Respondent's vice president and general manager, Prevost, in Prevost's office that lasted for approximately 20 minutes. Also present during this meeting was Respondent's truck fore- man Duane Paradise.14 It is undisputed that during this meeting that the subject of the strikers resigning from the Union was brought up and discussed and that the strikers asked Prevost how Respondent intended to handle their fringe benefits such as health and welfare and pension benefits if they decided to return to work. Otherwise everything of significance that took place during this meeting is disputed. Brautigam, Forsett, and Mayo testified for the General Counsel and Prevost and Paradise on behalf of Respondent. An examination of their testimony follows. Brautigam testified that he asked about the require- ments for himself and the other three strikers to return to work and specifically asked whether they would have to resign from the Union in order to return to work for Re- spondent. Prevost answered "yes" and stated that in order to return to work they would have to send a letter of resignation to the Union by certified mail and provide proof to Respondent that they had resigned. Brautigam asked what his guarantee of being employed by Re- spondent would be, if in fact he went ahead and resigned from the Union. Prevost stated that Brautigam would have to trust him. Brautigam further testified that he asked what the employees fringe benefits such as medical insurance, pensions, and vacations would be if they re- turned to work. With respect to pensions, Prevost stated that the Company would set up a pension plan for the employees and that the Government would transfer the striker's money from the Union's plan into the Compa- ny's plan. Lastly, Brautigam testified that Forsett and 14 Brautigam, Forsett, and Mayo each placed Paradise at this meeting Paradise testified that he walked in during the middle of the meeting and only stayed 4 or 5 minutes Prevost did not corroborate Paradise' s testi- mony. Mayo also questioned Prevost about the strikers' wages and fringe benefits if they returned to work. Mayo testified that Forsett asked what would be re- quired of the four strikers if they wanted to return to work and Prevost replied by stating that they would have to resign from the Union and show proof of their resignations in order to work. Mayo then testified that either himself or Brautigam asked whether they would have a pension plan if they returned to work and that Prevost stated that he would try to get a pension plan for the employees that was the same as the office work- ers pension plan. At this point, according to Mayo, Pre- vost stated that he would never sign a contract with the Union again under any circumstances. Mayo also testi- fied that he and Forsett discussed the subject of health and welfare benefits with Prevost, and that Prevost told them that he was going to try to work something out with the Union about having the funds from the existing plan transferred. Finally Mayo testified that in the con- text of Brautigam's statement that he felt Truck Foreman Paradise had been picking on him unnecessarily during his last few weeks of employment before the strike, that they asked Prevost whether it might not be a good idea to have a union to serve as a "buffer" between the em- ployees and the employer and that Prevost stated that he did not think the Company needed such a "buffer." Forsett testified that Brautigam asked what the four strikers would have to do if they chose to return to work for Respondent and Prevost replied by stating that in order to return to work they would have to resign from the Union and that Prevost would accept a post office receipt showing that they had mailed the resignation let- ters as proof of their resignation. Also, according to For- sett, Prevost stated that Respondent was not going to sign a contract with the Union at that time and was never going to sign a contract with the Union. On the question of what, if any, pension plan strikers would have if they returned to work, Forsett testified that Pre- vost told them that while he had not yet discussed the matter with the Union, he would attempt to absorb the pension contributions made on behalf of the strikers to the Union's plan into a pension plan instituted by the Company. On the subject of health and welfare, Forsett testified that Prevost stated that he intended to try to get group insurance plan coverage for the employees through the Company. In response to Forsett's questions, Prevost stated that the employees' vacation and overtime benefits would remain the same as they were before the strike, but he intended to pay the strikers an 80-cent-an- hour increase, which was the Company's last offer to the Union, if they returned to work. In response to Forsett's inquiry about what Prevost intended to pay the striker replacements if the strikers did not return to work, Pre- vost stated that he intended to pay the striker replace- ments $2 an hour less than the strikers who cross the picket line, but in response to Forsett's further question- ing advised Forsett that in order to avoid hard feelings on the part of the striker replacements over this disparate treatment that Respondent would eventually reduce the wages of the returning strikers to the level of the striker replacements. Last, Forsett testified that Brautigam asked 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Prevost about the job protection, as he explained that he felt that Truck Foreman Paradise during the weeks im- mediately prior to the strike had been picking on him un- necessarily. Prevost replied by stating that he would back his foreman and that he did not want to see the Union come between the bosses and the employees. Prevost testified that the strikers at the July 10, 1981 meeting, "all wanted to know what to do," and "they asked about the pension, how we were going to handle it, the health and welfare, the vacation, et cetera," and that Prevost responding by "explain[ing] that to them from our best, last, final offer" of May 12, 1981.15 Pre- vost also testified that the strikers "asked about resigna- tion" and when asked "what did they say about resigna- tion," testified that this question was asked by the strik- ers in the context of "what they had to do to go to work." Prevost further testified that he did not tell them that they had to resign in order to return to work, but that in response to their questions concerning resignation he told them that he had heard rumors that other strikers who already returned to work had resigned from the Union. Paradise testified that the meeting was already in progress when he entered Prevost's office and he stayed for only 3 or 4 minutes and left while the meeting was still in progress. He did not recall anyone asking or bringing up the topic of coming back to work or that Prevost said anything about resigning from the Union. Paradise admitted that he was not able to recall anything that he heard during the period he was present in the office. Of the five witnesses who testified about the July 10, 1981 meeting, the testimonial demeanor of Forsett, Mayo, and Brautigam was good, whereas, Prevost's and Paradise's was poor. I therefore credit Forsett's, Mayo's, and Brautigam's above-described testimony and reject Prevost's and Paradise's wherever there is a conflict. In evaluating the credibility of Forsett, Mayo, and Brauti- gam I have especially considered the following: their status as interested witnesses; the variance in the exact words that they attribute to as well as the chronology in which the subjects were discussed; that with respect to certain matters their corroboration of one another was skimpy;16 that Brautigam failed to corroborate Forsett's and Mayo's testimony that Prevost stated Respondent would never sign a contract with the Union;17 that 15 Prevost's testimony that in answer to the strikers questions concern- ing what their fringe benefits would be if they returned to work that he told them that he would grant them Respondent's May 12, 1981, last, best, final contract proposal, is inherently incredible because it is undis- puted that insofar as the employees health and welfare and pension bene- fits were concerned, that the Respondent by July 10, 1981 , had disregard- ed its last, best, final contract offer that had provided for the Union's ex- isting health and welfare and pension plans and instead had instituted a new health and welfare program and had eliminated the employees' pen- sion plan without substituting a new one i 6 Although in certain respects Forsett's, Mayo, and Brautigam's cor- roboration of each others testimony was skimpy, the testimony of anyone of them did not contradict the testimony of the others and with respect to matters of significance their testimony was mutually consistent 11 I note that Prevost did not deny Mayo's and Forsett's testimony that he stated that Respondent would never sign a contract with the Union. Mayo and Forsett disagreed about whether it was Brauti- gam or Forsett who brought up the subject of resigna- tion; that all three admitted that Prevost's letter of June 28, 1981, to the strikers raised a question in their minds of whether they would have to resign from the Union in order to return to work; and that strikers John Teeter and Glen Schroeder who returned to work after resign- ing from the Union, testified in effect that neither Pre- vost nor Paradise told them that they had to resign in order to return to work.' 8 Nonetheless I am of the opin- ion that these circumstances, whether viewed singly or in their totality, do not warrant the rejection of the testi- mony of Forsett, Mayo, or Brautigam as being incredible when as here in terms of their testimonial demeanor each one of them seemed to be sincere and conscientious wit- nesses, whereas, Prevost's and Paradise's demeanor was poor. Based on a composite of Mayo's, Forsett' s, and Brauti- gam's testimony concerning their July 10, 1981 meeting with Prevost and the portion of Prevost's testimony that is not inconsistent with their testimony, I find that the following took place at this meeting . In response to the questions of the strikers about what conditions would be like if they decided to return to work, Prevost stated that in order to return to work Mayo, Forsett , Brauti- gam, and Leyba would have to resign from the Union and submit proof of their resignations and that the Re- spondent would never sign a contract with the Union, but if they decided to return to work Respondent would try to do the following: establish a pension plan for the employees that would be the same as the pension plan that now covered the Respondent's office workers and while it had not as yet discussed this with the Union the Respondent would attempt to have the contributions that had previously been made on the strikers behalf to the Union's plan transferred into the Company's plan; Re- spondent would try to establish a company health and welfare program to cover the employees and try to work out something with the Union about transferring funds from the plan that had previously covered the employ- ees; that overtime benefits and vacation benefits would remain the same as they were before the strike; that the stnkers would be granted an 80-cent-an-hour pay raise, which was the Company 's last offer to the Union, while the striker replacements would be paid $2 less an hour than the strikers, but that the Company at a later date might reduce the strikers' wages to the level of the strik- er replacements' in order to avoid any hard feelings by the striker replacements over this disparate treatment. Last, when one of the striking employees suggested that union representation was a good thing because it served as a "buffer" between supervisors and the employees so as to protect employees from unjustified discipline by su- pervisors, Prevost stated that he did not feel the Compa- ny needed such a "buffer" and that he did not want to see the Union come between supervisors and the em- ployees. 18 Likewise in evaluating the credibility of Forsett, Mayo, and Brauti- gam I have not relied on the fact that other strikers corroborated their testimony by testifying that either Prevost or Paradise told them that they had to resign from the Union in order to return to work. SCHMIDT-TIAGO CONSTRUCTION CO. 357 f. Donnie Burrell, Charles Trafton Jr., and James Machak Following their July 10, 1981 above-described meeting with Prevost, strikers Forsett, Brautigam, Mayo, and Leyba went back outside to the picket line and spoke to the approximately six other strikers who were there. They informed these other strikers that Prevost had told them that in order to return to work that Forsett, Brauti- gam, Mayo, and Leyba would have to resign from the Union. Among the other strikers on the picket line to whom they told this were Donnie Burrell, Charles Traf- ton Jr., and James Machak, each of whom was a member of the Union. Trafton responded by saying that he would not resign from the Union and Burrell responded by saying that he could not afford to resign from the Union because he would lose certain union retirement benefits and that he would have to go to work for a union con- tractor. 19 The next day, July 11, 1981, Machak on his way home from picket line duty met Truck Foreman Duane Para- dise at a truckstop where they ate lunch together. During the course of their conversation, Paradise, who was Machak's supervisor, told Machak that unless Machak by Friday of the next week resigned from the Union and showed Respondent some kind of proof of his resignation, Machak would not have his truck because Paradise would give it to a new driver. Machak respond- ed by stating that he could not afford to give up the Union because he had too much time in the Union's pen- sion fund to give it up. Machak's above-described conversation with Truck Foreman Paradise is based on Machak's testimony. Para- dise denied eating lunch or talking with Machak at a truckstop after the start of the strike and denied that he ever told or suggested to Machak that he resign from the Union. I have credited Machak's and rejected Paradise's testimony because Machak's demeanor was good, where- as Paradise's was poor. I have carefully considered Ma- chak's testimony that he understood that the last para- graph in Prevost's June 28, 1981 letter to the strikers "meant that I would have to give up my union card to keep working." However, Machak's misinterpretation of this letter does not, in my opinion, impugn his testimony concerning his conversation with Paradise where, as here, Paradise's testimonial demeanor in denying the conversation was poor and Machak's testimonial demean- or in describing the conversation was that of a sincere and conscientious witness. g. William Hall William Hall was employed by Respondent at the time of the strike as a truckdriver. He was a member of the Union and initially supported the strike. However, on Friday, July 17, 1981, he wrote the Union a registered letter submitting his resignation and the next workday, Monday, July 20, 1981, crossed the picket line and re- turned to work. The circumstances surrounding Hall's 19 Neither Trafton nor Burrell ever offered to return to work for Re- spondent During cross-examination, when asked why he never offered to return to work for Respondent, Trafton testified, "[b]ecause I would not resign from the Union " resignation from the Union and his return from work are as follows. On July 17, 1981, Hall spoke to Respondent's vice president and general manager, Robert Prevost, in the Company's reception room and asked what he would have to do to return to work. Prevost instructed him to speak to Repondent's truck foreman Duane Paradise.20 Hall immediately went to Paradise's office and in the presence of a couple of drivers asked Paradise what he would have to do in order to go back to work. Paradise told him that he would have to send a registered letter of resignation to the Union and show Paradise the postal re- ceipt from this letter before Paradise would put him back to work. Hall stated that this was okay with him and asked if he resigned and crossed the picket line would the Union be able to take disciplinary action against him. Paradise answered in the negative. The following work- day, after sending his July 17, 1981 letter of resignation to the Union, Hall reported to Paradise for work at which time he showed Paradise the postal receipt from his letter of resignation and Paradise assigned him a truck to drive. The above description of Hall's conversation with Par- adise and what took place when Hall returned to work is based on Hall's testimony. Paradise denies ever speaking to Hall in his office after the start of the strike or that Paradise ever told Hall to resign and denies that Hall showed him any sort of document indicating he had re- signed from the Union when Hall returned to work. Rather, Paradise testified that when hall returned to work that he merely asked, "what truck do I take?" and that Paradise assigned him a truck. I credit Hall's above-described testimony and reject Paradise's because when Hall testified his demeanor was good, whereas, Paradise's was poor. 5. The no-solicitation rule During the time material to this case a memo dated February 4, 1982, signed by Respondent's vice president and general manager, Robert Prevost, was posted at the Respondent's Colorado Springs facility for the employ- ees to read. This memo read as follows: SCHMIDT-TIAGO CONSTRUCTION CO. MEMO-DATE February 4, 1982 TO: All personnel including hourly FROM : Robert R. Prevost, Vice President SUBJECT: Talking or visiting to anyone other than employees during working hours TO ALL EMPLOYEES: Our company policy allows no salaried or hourly employees who are on the payroll to converse, visit, etc., etc. with anyone other than job related functions during business hours. This includes friends, associates, union officials, or anyone else who is not on our company payroll. All conversa- tions will be conducted by employees on thier own 20 The above-described description of Hall's conversation with Prevost is based on the undemed testimony of Hall. 358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD time at lunch or before or after working hours, off the premise of the job, pit, yard or in travel with material to the job, pit, yard, etc., etc. Violation to this will cause for immediate repri- mand or discharge if this violation continues. The policy set forth in the memo was placed in effect by Respondent several years prior to the February 4, 1982 and was in effect at all times material to this case. 6. Alleged denial of access to the Union to Respondent's premises Article 12, the "Job Admission" provision, of the 1978-1981 Union Heavy Highway Contract that covered Respondent's Colorado Springs facility until it expired on May 1, 1981, reads as follows: The Employer and the contractor shall not restrict and will assist representatives of the Union to gain access to all jobs where employees covered by this Agreement are employed or where work is covered by this Agreement is being performed, but the rep- resentatives of the Union shall not cause any unnec- essary interference with the work and shall comply with safety and security regulations to the same extent as required of any employees on the job. The Union Representative shall identify himself to the Contractor's Representative when the Union Repre- sentative first appears on the job site. On February 4, 1983, George Delmonte, a union busi- ness agent, telephoned Respondent's vice president and general manager, Robert Prevost, and told him that he had been advised by the Union's lawyer that even though the Union's contract with the Respondent had expired the terms of the expired contract, other than the union-security provision, could be enforced. Delmonte told Prevost that from time to time there could be a union business agent visiting Respondent's jobs to con- duct a "job check." Prevost asked what Delmonte meant by a "job check." Delmonte explained that the business agents would check to see whether there were any em- ployees with grievances and that the correct employees were doing the correct jobs, i.e., that the operating engi- neers were not doing teamsters' work. Prevost asked whether Delmonte intended to stop any of Respondent's trucks. Delmonte told him that he would not stop the Company's trucks or otherwise interfere with the em- ployees' production, but that, as was the practice in the past, the union business agent visiting a jobsite would only speak to employees during lunch hour or while the employees were waiting in line for their trucks to be loaded or weighed. The conversation then ended with Prevost stating, "if any unauthorized people showed up on any of his projects, he would call the police and have them put in jail."2 i 21 The description of Delmonte's February 4, 1983 telephone conver- sation with Prevost is based on Delmonte's testimony . I have rejected Prevost's version of this conversation that differs from Delmonte's be- Delmonte testified that if a union business agent went to one of Respondent's jobsites and visited employees before first identifying himself to a representative of the Company, the business agent would be considered "an unauthorized visitor" under the terms of article 12 of the 1978-1981 Union Heavy Highway Contract. Delmonte also testified that prior to the strike he was informed by Respondent's truck foreman Duane Paradise that Prevost was unhappy with Delmonte because Delmonte had been visting employees at the Colorado Springs facility before first identifying himself to a representative of the Company at the Company's main office. B. Conclusionary Findings and Analysis 1. The independent 8(a)(1) allegations The complaint alleges that at various times after the start of the June 18, 1981 strike Robert Prevost, the Re- spondent's vice president and general manager in charge of Respondent's Colorado Springs facility, and Duane Paradise, the truck foreman at that facility,22 told strik- ing employees that in order for them to return to work they would have to resign from the Union and show Re- spondent proof of their resignation, and that Respondent by engaging in this conduct violated Section 8(a)(1) of the Act. In support of these allegations , as described in detail supra, the General Counsel presented the follow- ing credible evidence : During the first week of the strike Prevost told striker Leslie Allison that in order to return to work the strikers could not stay in the Union but would have to resign; during the week of July 6, 1981, Prevost met with strikers Leslie Allison, Greg Nill, Gil- bert Garbiso, Tommy Cornell , Charles Crippen, and Don Waters and told them that they would have to resign from the Union in order to return to work; about June 20, 1981, Paradise told striker Jim Clementi that if he wanted to get back to work with Respondent he would have to drop out of the Union; during the second week of the strike Prevost met with striking employees Wayne Sell, Garry Eiferd, and Dick Conrad and told them if they wanted to return to work for Respondent they had to resign from the Union and show Respondent proof of resignation; on July 10, 1981, Prevost met with strikers Arthur Brautigam , Paul Forsett, Edward Mayo, and Clem Leyba and told them in order to return to work they would have to resign from the Union and submit to Respondent proof of their resignation ; on July 11, 1981, Paradise told striker James Machak that unless Machak resigned from the Union and showed Respond- ent proof of this resignation Respondent would not rein- state him; on July 17, 1981, Paradise told striker William Hall that in order to return that Hall would have to resign from the Union and show Paradise proof of his resignation. By engaging in the aforesaid conduct-tell- ing striking employees that if they wanted to return to work they would have to resign from the Union-Re- spondent violated Section 8(a)(1) of the Act . Randle- Eastern Ambulance Service, 230 NLRB 542 fn. 2 (1977). cause Prevost's testimonial demeanor was poor, whereas, Delmonte's was 22 Prevost and Paradise are admitted statutory supervisors and agents good. of Respondent SCHMIDT-TIAGO CONSTRUCTION CO 359 The complaint alleges that on July 10, 1981, Respond- ent violated Section 8(a)(1) of the Act when Prevost told striking employees that Respondent would never sign a contract with the Union. As described in detail supra, on July 10, 1981, when Prevost met With striking employees Brautigam, Forsett, Mayo, and Leyba, besides informing them that they would have to resign from the Union in order to return to work, Prevost also told that that Re- spondent would never sign a contract with the Union. By engaging in this conduct-telling employees Re- spondent would never sign a contract with the Union- Respondent violated Section 8(a)(1) of the Act. El Rancho Market, 235 NLRB 468, 471-472 fn. 18 and cases cited therein (1978). The complaint alleges that Respondent's posted rule dated February 4, 1982, entitled "Talking or visiting to anyone other than employees during working hours," set forth in detail supra, constitutes an overly broad no-solic- itation rule that violated Section 8(a)(1) of the Act.23 I disagree. On its face the rule unambiguously prohibits employees from talking or visiting only with nonem- ployees on the Company's premises. Thus the caption of the rule expressly informs employees that it deals with the subject of "talking or visiting to anyone other than employees during working hours," and, in explaining its application, the rule limits its application to those persons "who [are] not on our company payroll" and instructs employees that they can talk with these nonemployees on their own time at lunch or before or after working hours off the premises of their jiobs. Because the rule merely prohibits employees from visiting or talking with nonemployees on the Company's premises or jobsites and there is no showing that it has been discriminatorily ap- plied, it is not proscribed by the Act. I therefore shall recommend that this allegation be dismissed. 2. The 8(a)(5) and (1) allegations involving Respondent's Colorado Springs facility a. The collateral estoppel issue As described in detail supra, when Respondent during the first week of July 1981 resumed operating its Colora- do Springs facility, it changed certain terms and condi- tions of employment at that location. The complaint herein alleges that these changes in the employees' terms and conditions of employment violated Section 8(a)(5) and (1) of the Act because they were made unilaterally without affording the Union an opportunity to bargain. As discussed infra, Respondent's defense to these allega- tions is based in substantial part on what occurred during the Respondent's negotiations with the Union for its Col- orado Springs operation as a part of the Asphalt Paving Group of employers. The General Counsel, invoking the doctrine of collateral estoppel,24 argues that the Board's 23 There is no evidence to support the complaint's allegation that this rule was not promulgated until February 4, 1983. 24 "Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude rehtigation of the issue in a suit on a different cause of action involving a party to the first issue." Allen v. McCurry, 449 U S . 90, 94 ( 1980). Generally speak- ing the doctrine of collateral estoppel may be applied only if all the fol- lowing questions are answered in the affirmative: "Whether the issue Decision and Order in Cases 27-CA-7369 and 27-CA- 7369-225 precludes Respondent from raising this defense because the Board in those cases concluded that Re- spondent, as a part of the multiemployer bargaining unit represented by the SLC, was legally obligated to bargain with the Union for all of its employees, including those employees employed at the Colorado Springs operation. The complaint in Cases 27-CA-7369 and 27-CA- 7369-2 alleged and the Board concluded that the SLC was the agent of the 25 respondent employers, including Respondent, for the purpose of negotiating a successor agreement to the 1978-1981 Union Heavy Highway Contract, that the employees of the respondent employ- ers in the job classifications covered by that agreement constituted an appropriate multiemployer bargaining unit, that the employees were represented by the Union, and that in June 1981 the respondent employers and their agent, the SLC, violated Section 8(a)(5) and (1) of the Act by "(a) conditioning further contract negotiations with the union on the union's consent to the untimely withdrawal of certain respondent-employers from the multiemployer bargaining unit" and by "(b) disbanding the respondent-employers from the multiemployer unit, and by failing and refusing to meet and bargain with the union as a multiemployer bargaining unit." My analysis of the complaint, the answer, and the Board's Decision and Order in Cases 27-CA-7369 and 27-CA-7369-2 persuades me that the unit issue involved in those cases was whether the employees of the re- spondent employers employed in the job classifications covered by the 1978-1981 Union Heavy Highway Con- tract constituted an appropriate multiemployer bargain- ing unit. The issue of whether all or part of the respond- ent employers' business operations were a part of that multiemployer unit was not posed by the pleadings nor litigated. The parties' attention in that proceeding was not focused on whether all or part of the business oper- ations of the respondent employers was a part of the multiemployer unit. Insofar as the Board's conclusion that the employees of the respondent employers em- ployed in the job classifications covered by the 1978- 1981 Union Heavy Highway Contract constituted an ap- propriate bargaining unit implies that all of the respond- ent employers operations were included within the ap- propriate unit, such a finding was not necessary to the Board's Decision and Order. All that was necessary for the Board's Decision and Order, with respect to the ap- propriate bargaining unit, was a finding that the respond- ent employers were obligated to bargain with the Union as a multiemployer unit represented by the SLC for those employees whose job classifications were covered by the 1978-1981 Union Heavy Highway Contract. The scope of that unit-whether it consisted of all or a part of the employer's operations-was not necessary to the Board's decision. The Board's Decision was not depend- sought to be concluded is the same as that involved in the prior action, was litigated in the prior action; was in fact judicially determined in the prior action; and whether the judgement in the prior action was depend- ent upon the determination made of the issue " lB Moore's Federal Prac- tice, Par. 0.443(1), pp. 759-760 (2d ed. 1983). as Signatory Labor Committee, 261 NLRB 1459 ( 1982). 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent on a determination of the exact scope of the multiem- ployer unit, whether all or only some of the respondent employers' operations were included in that unit, and this issue was neither posed by the pleadings nor litigated. It is for this issue that I find that the Board's Decision and Order in Cases 27-CA-7369 and 27-CA-7369-2 does not preclude Respondent from relying on its negotiations with the Union as a part of the Asphalt Paving Group of employer as a defense to its alleged illegal unilateral changes made at its Colorado Springs operation.26 b. Whether the Union consented to bargain for Respondent's Colorado Springs facility employees as a part of the Asphalt Paving Group negotiations The complaint alleges that when Respondent resumed operating its Colorado Springs facility in the first week of July 1981, it instituted certain changes in the terms and conditions of employment of the employees at that facility without bargaining with the Union, thus violating Section 8(a)(5) and (1) of the Act. Respondent's defense to these allegations is based for the most part on its ne- gotiations with the Union for the Colorado Springs facil- ity as a part of the Asphalt Paving Group. The General Counsel takes the position that when the Asphalt Paving Group negotiations started on April 1, 1981, that Re- spondent's Colorado Springs facility was a part of the multiemployer unit represented by the SLC and that the record fails to establish the Union's "clear and unequivo- cal consent" to bargain with Respondent for the Colora- do Springs facility in the Asphalt Paving Group negotia- tions. The Respondent during the hearing and in its posthearing brief conceded that its Colorado Springs fa- cility was still a part of the multiemployer unit represent- ed by the SLC at the commencement of the Asphalt Paving Group negotiations, but that the Union by its conduct during those negotiations consented to the with- drawal of the Colorado Springs facility from the multi- employer unit represented by the SLC and consented to negotiate with Respondent for that facility in the Asphalt Paving Group negotiations.27 I am persuaded, for the reasons set forth hereinafter, that during the time materi- al to this case, the Union and the Respondent mutually agreed to the withdrawal of Respondent's Colorado Springs operation from the multiemployer unit represent- ed by the SLC and to negotiate a separate agreement covering the Respondent's Colorado Springs employees. As described in detail supra, from April 1, 1981, until June 12, 1981, the Union negotiated without objection with Respondent's collective-bargaining agent Darkey, on behalf of the employees represented by the Union em- ployed at the Respondent's Colorado Springs facility.28 96 Lehigh Lumber Co., 238 NLRB 675 (1978), relied on by the General Counsel, is factually distinguishable from the instant proceeding in signifi- cant respects. $'i "At the outset, the Respondent concedes the Union's consent was necessary for the proper withdrawal of its Colorado Springs operation from the SLC bargaining and its proper inclusion in the Asphalt Paving Industry Group negotiations Respondent 's position, quite simply, is the Union did consent." (R Br. 22) 28 The Union's negotiator Parker at the start of the negotiations on April 1, 1981, stated to Darkey that he did not understand why Respond- ent was present in the Asphalt Paving Group negotiations because Re- spondent was represented "by the SLC as well " However, when Darkey It was not until June 12, 1981, that for the first time a representative of the Union told a representative of the Respondent that the Colorado Springs facility was a part of the SLC multiemployer bargaining unit for purposes of collective-bargaining negotiations.29 During this 2- 1/2-month period, as described in detail supra, the Union knew that it was Darkey's position that he was negotiat- ing on behalf of Respondent for its Colorado Springs fa- cility. Also during this period the Union's negotiators ob- served that Respondent's vice president and general man- ager, Prevost, who was in charge of the Colorado Springs facility, was present at the negotiating meetings, yet at no time did the Union's negotiators expressly or by implication take the position that Respondent's Colo- rado Springs facility was not a part of these negotia- tions.90 It was only after the Union's negotiations with the Respondent, as part of the Asphalt Paving Group, had reached an impasse, as I have found infra, that the Union on June 12, 1981, for the first time indicated to Respondent that it was the Union's position that the Col- orado Springs facility was still a part of the SLC-repre- sented unit. In other words, after bargaining for several weeks with Darkey in the Asphalt Paving Group negoti- ations for a contract to cover Respondent's Colorado Springs employees in a unit separate from Respondent's other employees, the Union objected to the severance of this facility from the rest of Respondent's operations only after the Asphalt Paving Group negotiations had proved to be unsuccessful and resulted in a bargaining impasse. Under the circumstances, the Union's change of heart was untimely. In any event the record reveals that despite the Union's June 12, 1981 objection and its June 23, 1981 replied that he only knew that he had been instructed that Respondent was one of the employers on whose behalf he was negotiating, Parker dropped the matter and did not object Indeed, later during the meeting when Darkey and Parker discussed and identified the portions of the em- ployers' businesses which were going to be covered by the Asphalt Paving Group negotiations, Parker asked whether Respondent's Craig, Colorado facility was included in the negotiations and Darkey replied that only Respondent's Colorado Springs facility would be included. 29 As described supra, on June 12, 1981, at a negotiating meeting be- tween the Union and the SLC for a successor agreement to the 1978- 1981 Union Heavy Highway Contract, in response to Respondent's insist- ence that the Colorado Springs facility be excluded from the SLC negoti- ations, a representative of the Union told a representative of the Re- spondent that it was the Union's position that the Colorado Springs facili- ty was a part of the SLC-represented multiemployer bargaining unit. Thereafter, on June 23, 1981, the Union filed its unfair labor practice charge in Case 27-CA-7371 against Respondent that reiterated this posi- tion. so Parker testified that the reason he continued to meet with Darkey despite the fact that Darkey stated he was bargaining on behalf of Re- spondent's Colorado Springs facility was because Parker felt that it was important to the Union to bargain with those other employers being rep- resented by Darkey who were properly members of the Asphalt Paving Group. This, however, does not explain why Parker did not object to Prevost's presence during the negotiations or otherwise inform Darkey that the Union's negotiation meetings with him should not be construed as an agreement to negotiate on behalf of Respondent's Colorado Springs facility Moreover, Parker's July 23, 1981 affidavit, in which Parker in- formed the Board's General Counsel that Respondent was one of the em- ployers represented by Darkey in the Asphalt Paving Group negotiations and that the Union prior to July 23, 1981, had been negotiating with Re- spondent as a part of that group and intended to continue these negotia- tions with Respondent in the future, contradicts Parker's above-described testimony. SCHMIDT-TIAGO CONSTRUCTION CO. 361 unfair labor practice charge against Respondent, that the Union continued to negotiate with the Respondent as a part of the Asphalt Paving Group for a contract cover- ing only Respondent's Colorado Springs facility. On June 18, 1981, in support of its bargaining position in the Asphalt Paving Group negotiations, the Union struck all the employers who were being represented by Darkey in those negotiations, including Respondent's Colorado Springs facility. The Union did not strike any of Re- spondent's other locations where the Union represented employees, nor were any of the other employers in the SLC multiemployer unit struck. This conduct warrants an inference that the Union as of June 18, 1981, 6 days after its objection to Respondent's withdrawal of the Colorado Springs facility from the SLC negotiations, was still intent on reaching an agreement on a contract with Respondent covering Respondent's Colorado Springs facility. Thereafter, when negotiations resumed in the Asphalt Paving Group on July 23, 1981, Parker did not object, when Darkey, on behalf of the Asphalt Paving Group of employers, handed Parker a contract proposal which on its face stated that it was being of- fered on behalf of Respondent. Parker not only failed to object to Darkey's bargaining on behalf of Respondent, but in an affidavit submitted on July 23, 1981, in connec- tion with the charges filed in this case, Parker stated that Respondent was one of the employers being represented by Darkey in the Asphalt Paving Group negotiations and that the Union prior to July 23 had been negotiating with Respondent as a part of that group and intended to continue these negotiations with Respondent. Consistent with this statement in his July 23 affidavit, Parker at the next Asphalt Paving Group negotiation meetings of July 29 and July 31, 1981, did not object when Darkey sub- mitted contract proposals on behalf of Respondent. Quite the opposite during the July 31, 1981 meeting, Parker gave Darkey a letter that, in pertinent part, asked for in- formation concerning the benefit plans that had been im- plemented or were going to be implemented by Re- spondent so that the Union, as the letter stated, could bargain intelligently with Respondent. It is for the foregoing reasons that I am persuaded that during the times material to this case, that the Union clearly and unequivocally consented to the withdrawal of the Respondent's Colorado Springs facility from the multiemployer bargaining unit represented by the SLC and consented to the negotiation of a separate agreement covering these employees. 3 i By engaging in this con- duct, I further find that during the times material to this case, that the Union and Respondent mutually agreed to negotiate a contract to cover the employees represented by the Union employed at the Respondent's Colorado Springs facility separate and apart from the union-repre- sented employees employed at Respondent's other loca- tions. c. The impasse issue Respondent takes the position that negotiations be- tween the Union and Respondent for a contract to cover the union-represented employees at Respondent's Colora- do Springs facility were at an impasse when that facility resumed operating in the first week of July 1981, after having been closed on June 18, 1981, because of the Union's strike . 32 I agree for the following reasons. There was a lapse of slightly more than 2-1/2 months between the start of the negotiations on April 1, 1981, and the Union's June 18, 1981 strike. During this period the parties held six negotiation sessions. The last of these sessions was held over 1 month before the strike. There is a lack of evidence that during the more than 2-1/2 months between the start of the negotiations and the strike that Respondent was engaged in bad-faith bargain- ing within the meaning of Section 8(a)(5) of the Act. During the 2-1/2 months of negotiations immediately prior to the June 18, 1981 strike, Respondent offered a series of contract proposals that granted the Colorado Springs employees a substantial pay raise, substantially the same fringe benefits as they had been receiving under the most recent contract, and increased the Respondent's contractual fringe benefit contributions. The last in this series of proposals was made at the sixth negotiation ses- sion held on May 12, 1981 when Respondent presented its "Best, Last and Final Offer" which the Union reject- ed. Neither at that time nor at any other time did the Union offer Respondent a counterproposal with respect to wages or fringe benefits and there was no change in the Union's bargaining position between the Union's re- jection of Respondent's May 12, 1981 offer and the re- opening of the facility in the first week of July 1981. As a matter of fact no contract negotiation sessions were held in May 1981 after the Union's rejection of Respond- ent's May 12 offer and no negotiation sessions had been held in June 1981 when on June 18, in support of its bar- gaining position, the Union struck the Respondent's Col- orado Springs facility. The aforesaid circumstances establish that as of the June 18, 1981 strike there was no realistic possibility that the continuation of collective-bargaining negotiations be- tween Respondent and the Union for a contract covering the Colorado Springs facility would have been fruitful. And although in some circumstances a strike will break a bargaining impasse, this was not such a case. Here, fol- lowing the strike, the parties did not hold a negotiating meeting for another 5 weeks and when they did meet, it was not because their negotiators felt that another nego- tiation meeting would be fruitful, but they met at the in- stance of the president of the Asphalt Paving Company, one of the employers in the Asphalt Paving Group, who apparently wanted to bargain individually with the Union. In any event, when the parties did meet on July 23, 1981, after a hiatus of approximately 2-1/2 months, the Union's bargaining position was the same as it had ii When "there was no realistic possibility that continuation of discus- s' In reaching this conclusion I have found it unnecessary to decide sion would have been fruitful ," it is reasonable to conclude that on- whether the Respondent and the other employers who were a part of the passe was reached . Television & Radio Artists v. NLRB, 395 F 2d 622, 628 Asphalt Paving Group, constituted a multiemployer bargaining unit (D C Cir 1969) 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been when it rejected the Respondent's May 12, 1981 offer and the Respondent's new proposal was less favor- able to the Union than the May 12, 1981 offer. All of these circumstances warrant the inference that the June 18, 1981 strike did not break the impasse in bargaining. Based on the foregoing I find, in agreement with Re- spondent, that negotiations between the Union and Re- spondent for the employees employed at Respondent's Colorado Springs facility were at an impasse when, in the first week of July 1981, that facility resumed oper- ations. I further find that when the negotiations ended on July 31, 1981, after their resumption on July 23, 1981, that they were at an impasse for the following reasons. As I have found supra, the negotiations were at an impasse on May 11, 1981, when the Union rejected the Respondent's "Last, Best and Final Offer" and were still at an impasse when Respondent in the first week of July 1981 resumed business operations . During the negotiations which fol- lowed the July 1981 reopening, the Union did not change its bargaining position and the Respondent of- fered the Union less favorable terms than were on the table when on May 11, 1981 the negotiations had initially deadlocked. In addition at the conclusion of the July 29, 1981 negotiation session the parties indicated that the ne- gotiations were at an impasse and the Federal mediator stated that he agreed that the negotiations were at an im- passe and stated that because of this that he did not be- lieve that it was feasible to schedule another negotiation meeting. However, since the parties during the July 29, 1981 negotiation session only discussed the employers' bargaining proposal insofar as the proposal related to the business of the Asphalt Paving Company, the negotiator for the Asphalt Paving Group of employers met with the Union's negotiator on July 31, 1981, and explained to the Union's negotiator that the Respondent's bargaining posi- tion and the bargaining position of the other employer- members of the Asphalt Paving Group was the same as the Asphalt Paving Company's position. During this meeting there was discussion between the negotiators about the contractual issues over which the parties were apart but they were unable to narrow their differences. The aforesaid circumstances demonstrate that by the end of the July 31, 1981 negotiating meeting that the negotia- tions between the Union and the Respondent covering the Respondent's Colorado Springs facility remained at an impasse. In concluding that on July 31, 1981, at the conclusion of the bargaining session held on that date, that the nego- tiations remained at an impasse, I have considered, as I have found infra, that Respondent previously had violat- ed Section 8(a)(5) and (1) of the Act on July 10, 1981, by dealing directly with four of the unit employees and in the first week of July 1981 by unilaterally instituting a new health and welfare program and by unilaterally in- creasing the wages of the returning strikers by including as a part of their wages the 40 cents an hour formerly paid into the contractual vacation trust fund. However, the evidence does not establish that the July 31, 1981 bargaining deadlock would not have occurred absent these unfair labor practices or that these unfair labor practices contributed to the deadlock. Rather, the evi- dence, as described in detail supra, reveals that the illegal direct dealing involved only 4 of the approximately 85 bargaining unit employees and that when negotiations re- sumed late in July 1981 that Respondent included these two unilateral changes as a part of its contract proposals, that the Union's and Respondent's negotiators discussed these proposals, and that Respondent explained why it instituted a new health and welfare program and gave the Union a booklet which presumably explained the coverage, benefits, and other matters pertinent to the new program. Also, as described in detail supra, the record reveals that even before the Respondent early in July 1981 dealt directly with the four employees and even before it made the unilateral changes herein, that the parties had been hopelessly deadlocked in negotia- tions since May 11, 1981, and that the Union's June 18, 1981 strike did not break this deadlock and that the Union's bargaining position on economic matters, which included the subjects encompassed by illegal unilateral changes, had remained unchanged since the start of ne- gotiations, and that the Union's overall bargaining posi- tion had not changed since May 11, 1981, when the ne- gotiations first impassed. In view of the aforesaid circum- stances I shall not infer that Respondent's direct dealings with four employees and its unvacated unilateral changes were a contributing cause to the parties July 31, 1981 bargaining impasse. d. Alleged unilateral changes in the Colorado Springs employees' terms and conditions of employment Sections 8(a)(5) and 8(d) of the Act impose on an em- ployer an obligation to refrain from unilaterally institut- ing changes in established terms and conditions of em- ployment which constitute mandatory subjects of bar- gaining . Fibreboard Products Corp. v. NLRB, 379 U.S. 203, 209-210 (1964); NLRB v. Katz, 369 U.S. 736, 742- 743 (1962). Because an employer's obligation to refrain from unilaterally instituting changes applies to all estab- lished employment terms and conditions which constitute mandatory bargaining subjects, it extends not only to terms and conditions established by a collective-bargain- ing contract which is still in effect but also to terms and conditions established by a collective-bargaining contract that has expired. NLRB v. Carilli, 648 F.2d 1206, 1213- 1214 (9th Cir. 1981); Peerless Roofing Co. v. NLRB, 641 F.2d 734, 735-736 (9th Cir. 1981). "The principal excep- tion to this rule occurs when the negotiations reach an impasse: when impasse occurs, the employer is free to implement changes in employment terms unilaterally so long as the changes have been previously offered to the Union during bargaining." Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1186 (5th Cir. 1982); see also Latrobe Steel Co. v. NLRB, 630 F.2d 171, 179 (5th Cir. 1980). Also another situation in which an employer is privileged to change the terms and conditions of employment established by a recently terminated contract is when "the employer gives timely notice of its intention to modify a condition of employment and the Union fails to timely request bar- gaining" Bay Area Sealers, 251 NLRB 89, 90 (1980), for when an employer notifies a union that it intends to make changes that will effect employees' terms and con- SCHMIDT-TIAGO CONSTRUCTION CO. 363 ditions of employment, it is incumbent on the union to act with due diligence in requesting bargaining. Rochester Institute of Technology, 264 NLRB 1020 fn. 2 (1982). See also City Hospital of East Liverpool, 234 NLRB 58 (1978), and Clarkwood Corp., 233 NLRB 1172 (1977). In the first week of July 1981 when Respondent re- sumed operating its Colorado Springs facility it changed the union-represented employees terms and conditions of employment, as follows. The strikers who returned to work were granted an 80-cent-an-hour pay raise and were additionally paid a 40-cent-an-hour contribution that Respondent previously made on their behalf into the vacation trust fund established by the recently expired contract. A new health and welfare plan was instituted for all the union represented employees. Also about August 10, 1981, Respondent ceased paying contributions on behalf of the union represented employees to the health and welfare, pension, and vacation trust funds es- tablished by the recently expired contract.33 The afore- said employment changes made by Respondent at the Colorado Springs facility are alleged in the complaint as being unilateral changes in the union represented em- ployees' terms and conditions of employment that violat- ed Section 8(a)(1) and (5) of the Act.34 I shall now evaluate these allegations. The allegation that the 80-cent-an-hour pay raise granted to the returning strikers when the Colorado Springs facility resumed operations in the first week of July 1981 was an illegal unilateral change in the employ- ees wages, is without merit. As I have found supra, when this pay raise was granted, the collective-bargain- ing negotiations between Respondent and the Union for the Colorado Springs facility were at an impasse and the amount of the pay raise, 80 cents an hour, had been pre- viously offered to the Union. It is for this reason that I shall recommend that this allegation be dismissed. Also without merit, insofar as it pertains to the Colora- do Springs employees, is the allegation that Respondent engaged in unilateral conduct in violation of Section 8(a)(5) and (1) of the Act by ceasing its contractual health and welfare, pension, and vacation trust fund pay- ments. As I have found supra, it was on August 10, 1981, 99 The record reveals that Respondent was obligated under the recent- ly expired contract to make the above-described trust fund contributions on the 10th day of the month following the month foi which they were paid In other words Respondent's trust fund contributions for June 1981 were due July 10, 1981, and its July 1981 contributions were due August 10, 1981. On July 10, 1981 , Respondent paid the contributions to the sev- eral funds for the period June 1 to June 18, 1981 As described supra, no union-represented employees were employed between June 18, 1981, and the first week of July 1981, due to the Union's strike. Thus, August 10, 1981, was the first date on which Respondent's trust fund contribution payments were due during the time material to this cast. a* Respondent's 80-cent-an-hour pay raise to the returning strikers, the payment of the additional 40-cent-an -hour wage increase to them which was formerly paid to the vacation trust fund, and Respondent's cessation of contributions on behalf of the employees to the health and welfare, pension, and vacation trust funds, constitute mandatory subjects of bar- gaining However, Respondent's contribution on behalf of the unit em- ployees to the Industry Advancement Program Fund , an industry promo- tional fund, does not constitute a mandatory subject of bargaining There- fore, Respondent was not obligated under Section 8(a)(5) of the Act to afford the Union an opportunity to bargain about its decision to discon- tinue contributing to this fund Finger Lakes Plumbing Co, 254 NLRB 1399 (1981); FML Supply, 258 NLRB 604 fn. 3 (1981). that Respondent cease contributing to the health and welfare, pension, and vacation trust funds on behalf of the Colorado Springs employees. However, as described in detail supra, Respondent, through its collective-bar- gaining representative, Darkey, by letters of June 18 and 29, 1981, notified the Union of its decision to engage in this conduct and advised the Union that it was "ready and able" to meet with the Union to discuss this and other matters. Although the Union received notice of these proposed changes in the employees' terms and con- ditions of employment, it admittedly did not request bar- gaining about these matters . 35 Rather the Union's re- sponse, as described in detail supra, was Parker's July 31, 1981 statement to Darkey that if the Respondent had in fact stopped making the contributions to the several fringe benefit trust funds that its conduct constituted ille- gal unilateral conduct and the Union would refer the matter to its attorney. In failing to exercise its right to meet and bargain, the Union cannot now claim that Re- spondent unlawfully refused to bargain. The Union by its conduct has effectively waived its right to assert that the Respondent's conduct in ceasing to make the aforesaid trust fund payment constitutes unilateral action in viola- tion of Section 8(a)(5) and (1) of the Act. Rochester Insti- tute of Technology, 264 NLRB 1021, 1024-1025 fn. 2 (1982); Citizens National Bank of Willmar, 245 NLRB 389, 390 (1979). Moreover, as I have found supra, on July 31, 1981, several days before Respondent imple- mented its decision to stop making its contributions to the fringe benefit trust funds, the Respondent and the Union bargained to an impasse, thus Respondent was privileged to stop contributing to the trust funds since this conduct was encompassed by its preimpasse bargain- ing proposals. I therefore find that Respondent did not violate Section 8(a)(5) and (1) of the Act by discontinu- ing making the contributions on behalf of the Colorado Springs employees to the recently expired contractual health and welfare, pension, and vacation trust funds. Pursuant to the terms of the 1978-1981 Union Heavy Highway Contract, Respondent paid 40 cents an hour to a vacation trust fund for each hour worked by its union- represented Colorado Springs employees for their vaca- tion benefits. Also there Colorado Springs employees were covered by a health and welfare program under that contract. In the first week of July 1981, as I have found supra, when Respondent reopened its Colorado Springs facility, it instituted a new health and welfare program, the Colorado Contractors Association Health and Welfare Program, and increased the hourly wages of the returning strikers by paying them an additional 40 cents an hour that previously was contributed by Re- spondent, on their behalf, to the vacation trust fund. The General Counsel, as alleged in the complaint, contends that this conduct violated Section 8(a)(5) and (1) of the Act because it was done unilaterally without affording ss It would be unwarranted for me to conclude that if the Union made a timely response to Darkey's June 18 or 29, 1981 letters, that Respond- ent would have gone ahead and ceased making the trust fund payments without first affording the Union an opportunity to bargain about the matter until either agreement or impasse was reached. 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Union an opportunity to bargain. I agree for the fol- lowing reasons. Unlike the situation involving Respondent's cessation of its fringe benefit trust fund contributions, discussed supra, where the Union received notice prior to the im- plementation of that decision, here the decision to insti- tute a new health and welfare program and increase the returning strikers wages by 40 cents an hour were actual- ly placed into effect before the Union received notice of the Respondent's intentions. As described in detail supra, it was not until July 23, 1981, that the Union was noti- fied about these decisions. This was at least 2 weeks after Respondent's decisions had already been implemented and placed into effect.36 Obviously this did not satisfy Respondent's bargaining obligation under Section 8(a)(5) because, as the court stated in Garment Workers (McLaughlin Mfg) v. NLRB, 463 F.2d 907, 919 (D.C. Cir. 1972)..3 7 [N]otice to be effective must be given sufficiently in advance of actual implementation of a decision to allow reasonable scope for bargaining. Indeed "(n)o genuine bargaining . . . can be conducted where [the] decision had already been made and imple- mented" . . . notice of a fait accompli is simply not the sort of timely notice upon which a waiver de- fense is predicated. It is for this reason that I find that Respondent violated Section 8(a)(5) and (1) of the Act, when during the first week of July 1981 at its Colorado Springs facility, it uni- laterally and without affording the Union a reasonable opportunity to bargain instituted a new health and wel- fare program, the Colorado Contractors Association Health and Welfare Program, and increased the hourly wages of the returning strikers by paying them an addi- tional 40 cents an hour which previously was contribut- ed to the vacation trust fund established by the recently expired 1978-1981 contract.38 e. Alleged direct dealing with the Colorado Springs employees The complaint alleges that Respondent violated Sec- tion 8(a)(5) and (1) of the Act when, through its vice president and general manager, Prevost, about July 9 and 10, 1981, it "bypassed the Union and dealt directly with employees . . . by discussing wages, hours of employ- ment, health insurance, pension benefits, vacation pay, and other terms and conditions of employment with 86 In its posthearmg brief Respondent concedes that it implemented its decision to institute the Colorado Contractors Association Health and Welfare Program and to grant the returning strikers the above -described 40-cent-an-hour pay raise before the Union was notified about these changes in the employees' terms and conditions of employment Respond- ent's argument is without merit that because the parties subsequently bar- gained to an impasse over these changes, that this after-the-fact bargain- ing removed the taint of illegality from its prior unilateral conduct 90 See also NLRB v. Northeast Oklahoma City Mfg. Co., 631 F 2d 669 (10th Cir 1980). 98 The law is settled that Respondent violated Sec 8(aX5) and (1) of the Act by its unilateral conduct of paying the returning strikers an addi- tional 40 cents an hour that previously was contributed on their behalf to the vacation trust fund. Excavation-Construction, 248 NLRB 649, 651 (1980) those employees." This allegation refers to Prevost's July 10, 1981 meeting with striking employees Brautigam, Forsett, Mayo, and Leyba, which has been described in detail previously. I agree with the allegations of the complaint that Pre- vost's statements to the strikers at the July 10, 1981 meeting constituted impermissible direct dealing in dero- gation of the Union's status as the employees' exclusive collective-bargaining representative. I do so because Pre- vost did more than simply urge the striking employees to accept as their terms and conditions of employment the Respondent's bargaining proposals previously offered to the Union. Rather Prevost offered the strikers certain terms and conditions of employment before even afford- ing the Union an opportunity to consider them. Thus, as I have found supra, Prevost told this group of strikers that if they decided to return to work that the Respond- ent would attempt to establish new health and welfare and pension programs to replace the programs that exist- ed prior to the strike and would attempt to arrange with the Union to transfer the contributions made on their behalf by Respondent from the old programs to the new ones. Also, as I have found supra, Prevost told them that there would be a two-tier system of wages, with the striker replacements receiving $2 an hour less than the returning strikers and advised the strikers that the Re- spondent at a later date might reduce the returning strik- ers' wages to the same level as the striker replacement wages in order to eliminate the hard feelings generated by this disparate treatment. When Prevost on July 10, 1981, made the above-de- scribed proposals to the strikers in his office, Respondent had already unilaterally implemented a new health and welfare program for the unit employees without notify- ing the Union. Indeed, Respondent's last bargaining pro- posal submitted to the Union proposed the continuance of the health and welfare program that was in existence prior to the strike, with an increase in Respondent's level of contributions. Likewise no contract proposal had been made to the Union as of July 10, 1981, concerning a new pension program to replace the one in existence prior to the strike. Nor had Respondent indicated to the Union that it was contemplating lowering the wages of the re- turning strikers from what had been proposed to the Union to that being paid to the striker replacements. In making the aforesaid proposals on July 10, 1981, to the group of four striking employees before affording the Union an opportunity to bargain or otherwise discussing these matters with the Union, Prevost engaged in the kind of conduct that constitutes direct dealing with the striking employees in derogation of the union status as their exclusive collective bargaining and that was calcu- lated to disparage the Union in the eyes of the employ- ees. Moreover, when viewed in the context of Prevost's contemporaneous July 10, 1981 illegal statement to this group of strikers that Respondent would never sign a contract with the Union, it is clear that the intended effect of Prevost's aforesaid conduct at the July 10, 1981 meeting was to wean the strikers away from the Union and to deal directly with them concerning matters on which Respondent was obligated to bargain with the SCHMIDT-TIAGO CONSTRUCTION CO. 365 Union. By engaging in such conduct Respondent not only interfered with employees' Section 7 rights in viola- tion of Section 8(aXl) of the Act, but also undermined the Union and its legitimate bargaining position in viola- tion of Section 8(a)(5) of the Act. It is for these reasons that I find that as alleged in the complaint that Respond- ent violated Section 8(a)(5) and (1) of the Act by bar- gaining directly with employees represented by the Union on matters subject to collective bargaining. 3. The 8(a)(5) and (1) violations involving Respondent's union represented employees not employed at Colorado Springs On July 10, 1981, as described in detail supra, Re- spondent ceased making contributions to the health and welfare, pension, and vacation trust funds on behalf of all of its union represented employees in the State of Colo- rado, not just those employed at its Colorado Springs fa- cility. Likewise at this time Respondent placed all of its union represented employees, not just those employed at its Colorado Springs facility, under the Colorado Con- tractors Association Health and Welfare Program in place of the program that existed under the 1978-1981 Union Heavy Highway Contract. The complaint alleges that by engaging in this conduct Respondent violated Section 8(a)(5) and (1) of the Act because these changes in the employees terms and conditions of employment were instituted unilaterally without affording the Union an opportunity to bargain. For the reasons set forth here- inafter, I agree. It is undisputed that Respondent's union-represented employees employed in the State of Colorado outside of the Colorado Springs facility were not included with the union represented Colorado Springs employees in the Asphalt Paving Group negotiations. Indeed, Respondent during the hearing and in its posthearing brief conceded that all of its union represented employees who are not employed at its Colorado Springs facility remained a part of the multiemployer bargaining unit in which Respond- ent was represented by the SLC. There is no contention or evidence that in July 1981 when Respondent stopped contributing to the several fringe benefit trust funds of the 1978-1981 Union Heavy Highway Contract and sub- stituted the Colorado Contractors Association Health and Welfare Program for the existing health and welfare program, that the SLC, on behalf of Respondent, in its negotiations with the Union had proposed these changes or comparable changes in the employees' terms and con- ditions of employment. Also no evidence was presented that at the time in question that the SLC negotiations were at an impasse . Quite the opposite, 1 he Board in Sig- natory Labor Committee, 261 NLRB 1459 (1982), held that during the material period of time that those negoti- ations were not at an impasse. In other words the record establishes that in July 1981 when Respondent ceased contributing to the health and welfare, pension, and va- cation trust funds on behalf of the non-Colorado Springs union represented employees, and substituted the Colora- do Contractors Association Health and 'Welfare Program for these employees' existing program, that Respondent acted unilaterally without affording the Union an oppor- tunity to bargain about these changes in the employees terms and conditions of employment. I therefore find that by engaging in this conduct Respondent violated Section 8(a)(5) and (1) of the Act. In concluding that Respondent's above-described uni- lateral cessation of its pension trust fund contributions on behalf of the non-Colorado Springs union represented employees violated Section 8(a)(5) and (1) of the Act, I have considered Respondent' s argument that under the terms of the pension trust fund agreement to which Re- spondent and the Union were bound, that Respondent's obligation to make pension trust fund contributions de- pended on the existence of a current collective-bargain- ing contract. I shall now set out the provisions of the various pension trust fund documents that are relevant for an evaluation of this argument and explain my rea- sons for rejecting it. Contemporaneously with the execution of the 1978- 1981 Union Heavy Highway Contract, which included a provision calling for the Respondent to make contribu- tions on behalf of its union represented employees into a pension trust fund, the Respondent and Union executed an "Employer-Union Pension Certification." This pen- sion certification, in pertinent part, provides that, "[Re- spondent] and [Union] hereby certify that a written labor agreement is in effect between the parties providing for contributions to the Western Conference of Teamsters Pension Trust Fund [Trust Fund] and that such agree- ment conforms to the trustee policy on acceptance on Employer contributions and is not otherwise detrimental to the plan," and further provides that, "the [Union] and [Respondent] agree to be bound by the Western Confer- ence of Teamsters Agreement and Declaration of Trust and Pension Plan as now constituted or as hereinafter amended." The pension certification and the declaration of trust each contained the following provision: It is the policy of the Trustees of the Western Con- ference of Teamsters Pension Trust Fund to accept as Employer Contributions only payment made in accordance with a Pension Agreement that is not detrimental to the Plan. The determination of whether or not a Pension Agreement is detrimental to the Plan shall be made by the Trustees in their sole discretion. However, the list of provisions that follows is furnished as an illustration of those whose inclusion in a Pension Agreement may result in a determination by the Trustees that the Pension Agreement is detrimental to the Plan. Section 9, article I of the trust declaration, entitled "Definitions," defines "Employer Contributions" as fol- lows: The term Employer Contributions as used herein shall mean payments to the Trust Fund by an em- ployer in accordance with a Pension Agreement. Any contribution to the Trust Fund which are dis- covered not to have been made pursuant to a valid pension agreement, or which are subsequently dis- covered to be unacceptable for any other reason, shall be withdrawn from the Trust Fund and cred- 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ited to a Segregated Account pending the determi- nation of the person or persons entitled thereto. Section 10, article I of the trust declaration, entitled "Definitions," defines "Pension Agreement," as follows: The term Pension Agreement as used herein shall mean a written agreement between any Union and any Employer which, among other thing, requires payments to the Trust Fund on behalf of employees of such Employer who are represented by such Union. Such agreement may not provide for pay- ments to the Trust Fund with respect to employees not so represented. The term Pension Agreement shall include any extension, renewal or replacement thereof. A Pen- sion Agreement shall be considered as being in effect on any date if it provides for Employer Con- tributions to be made to the Trust Fund with re- spect to employment on such date. Respondent argues that by virtue of the above-de- scribed language of the pension certification and declara- tion of trust, that the Union has waived its right to bar- gain regarding the Respondent's cessation, at the expira- tion of the 1978-1981 union heavy highway contract, of payments into the pension trust fund, absent a renewed agreement to continue such payments. In support of this argument Respondent relies on Cauthorne Trucking, 256 NLRB 721 (1981), in which a pension trust fund agree- ment contained the following language. Id. at 722: IT IS UNDERSTOOD AND AGREED that at the expira- tion of any particular collective bargaining agree- ment by and between the Union and any Compa- ny's obligation under this Pension Trust Agreement shall terminate unless, in a new collective bargain- ing agreement, such obligation shall be continued. This language clearly and unmistakably established that it was the Union's intent to waive its statutory right to bargain about the discontinuance of the trust fund pay- ments when the existing collective-bargaining contract expired. I do not believe that in the instant case there is an adequate basis for implying the existence of such a waiver, without a more compelling expression of it than appears in the above-described language of the pension certification and declaration of trust. This language does not on its face, as in Cauthorne Trucking, specifically state that Respondent's obligation to contribute to the pension trust fund ends with the expiration of the current collective-bargaining contract. Moreover, the provisions of the pension certification and the declaration of trust, relied on by Respondent in support of its waiver argu- ment, appear from their language to have been drafted with the intent of complying with the requirements of Section 302 of the Act,39 rather than with the idea of 39 Sec. 302 of the Act states in relevant part: (a) It shall be unlawful for any employer . . . to pay, lend, or de- liver ... any money or other thing of value - (2) to any labor organization which represents . any of the employees of such employer... . circumscribing the Union's statutory right to bargain over cessation of the trust fund payments at the expira- tion date of the 1978-1981 union heavy highway con- tract. It is for these reasons that I am of the opinion that the language of the pension certification and declaration of trust, relied on by Respondent, fails to clearly and un- mistakably evidence an intent by the Union to waive its statutory right to bargain over the Respondent's discon- tinuance of the pension trust fund contributions when the 1978-1981 union heavy highway contract expired.40 I therefore reject Respondent's waiver defense. Cf. Ameri- can Distributing Co. v. NLRB, 715 F.2d 446 (9th Cir. 1983), enfg. 264 NLRB 1413, 1415 (1982). 4. The 8(a)(5) and (1) allegations involving the denial of access to Respondent's facilities to union representatives The General Counsel contends, as alleged in the com- plaint, that on February 4, 1983, Respondent's vice presi- dent and general manager in charge of its Colorado Springs facility, Robert Prevost, denied union representa- tives access to Respondent's facilities in violation of Sec- tion 8(a)(5) and (1) of the Act. The theory of this allega- tion is that Prevost denied union business agents access to Respondent's premises and jobsites in derogation of article 12, the "job admission" provision, of the 1978- 1981 union heavy highway contract. The facts pertinent to this allegation have been de- scribed in detail previously. I am persuaded that this alle- gation is without merit because the evidence is insuffi- cient to establish that Respondent acted in derogation of the "job admission" provision of the 1978-1981 Union Heavy Highway Contract. The fact that Prevost ended his February 4, 1983 conversation with Union Business Representative Delmonte by declaring that he would have the police jail any "unauthorized people" who showed up on Respondent's projects, does not establish that he intended to deny access to union business repre- sentatives. Rather it is just as likely that in making this statement that Prevost's intent was to place Delmonte on notice that it was his intent to enforce the portion of the "job admission" provision that provides that "[t]he union representative shall identify himself to the contractor's representative when the union representative first ap- pears on the job site." In this regard Union Representa- tive Delmonte testified that if a union business agent went to one of Respondent's jobsites and visited employ- ees before first identifying himself to a representative of the Respondent that the business agent would be consid- ered "an unauthorized visitor" under the "job admission" (c) The provisions of this section shall not be applicable .. . (5) with respect to money . . . paid to trust fund established by such representative, for the sole and exclusive benefit of the employ- ees of such employer . : Provided, That . (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer. 40 The law is settled that an inference that parties to a contract intend to waive a statutorily protected right will not be inferred from a general contractual provision or provisions. Rather such a waiver must be clear and unmistakable. See generally Metropolitan Edison Ca v. NLRB, 460 U.S. 693 fn. 12 (1983). SCI-EVIDT-TIAGO CONSTRUCTION CO. 367 provision. Delmonte also admitted before the strike that he was told by Respondent's Truck Foreman Paradise that Prevost was not happy because he thought Del- monte was visiting employees at the Colorado Springs facility before first identifying himself to a representative of the Company at the Company' s main office. Under the circumstances, I am of the opinion that the General Counsel has failed to establish that on February 4, 1983, Prevost acted in derogation of the job admission provi- sion of the 1978-1981 Union Heavy Highway Con- tract.41 I therefore for this reason shall recommend that this allegation be dismissed. 5. The alleged 8(a)(3) and (1) violations42 a. Allegations that returning strikers who resigned from the Union were accorded preferential treatment The record establishes that Respondent immediately prior to the Union's June 18, 1981 strike employed ap- proximately 85 employees at its Colorado Springs facility who were represented by the Union and that all of these employees ceased work and supported the union strike. Thereafter when Respondent resumed operating its Colo- rado Springs facility in the first week of July 1981, and continuing thereafter, most of the strikers returned to work and were granted pay raises consistent with Re- spondent's preimpasse bargaining proposal.43 The record also shows that a substantial number of these returning strikers resigned their union membership prior to return- ing to work. The complaint alleges that Respondent gave preferential treatment to the returning strikers who re- signed from the Union by only allowing this group of strikers to return to work and by granting this group of strikers a pay raise, thus violating Section 8(a)(3) and (1) of the Act. I am persuaded that this allegation is without merit because the record fails to establish that it was only the group of strikers who resigned from the Union *1 In view of this conclusion I have not considered Respondent's argu- ment that a union visitation provision in a collective -bargaining contract is similar to a union-security provision that does not survive the expira- tion of the contract •s The General Counsel offered into evidence as G C Exh 7 all the resignation letters submitted to the Union by those strikers whom the record shows returned to work for Respondent after the start of the June 18, 1981 strike; a total of 29 letters There is no question about the au- thenticity of these letters or that they were sent and received by the Union. They were offered by the General Counsel to corroborate the tes- timony of those witnesses who testified that representatives of Respond- ent told them that if they resigned from the Union they could return to work In his posthearing brief the General Counsel further argues that these letters are also relevant because they establish that each one of the signers was told that they had to resign from the Union in order to return to work I rejected G.C. Exh 7 for the reason that union members who resume working after the start of a union strike at their place of em- ployment frequently resign from the Union before they resume working in order to avoid being disciplined by the Union for working during the strike, therefore it would be impermissible for me to draw the inferences from these letters which the General Counsel requests After reviewing the record as a whole I see no reason to change my ruling in this respect. However, I am now persuaded, as noted infra, that G.C. Exh. 7 is rele- vant to evaluate the parties contentions concerning the alleged violations of Sec 8(aX3) of the Act, and for this reason admit it into evidence 43 As I have found supra, at this point in time, the collective-bargain- ing negotiations between the Union and the Respondent for a contract covering the Colorado Springs facility were at an impasse and the pay raises granted to the returning stokers were consistent with Respondent's preimpasse bargaining proposal who were reinstated and granted pay raises. Rather, as described below, the record establishes that a significant number of the strikers who returned to work after the start of the strike and who received pay raises did not resign from the Union. The record, Joint Exhibit 3 and General Counsel's Ex- hibit 7, reveals that numerous strikers who returned to work across the picket line during 1981 and 1982 and who did not resign from the Union, were reinstated and granted pay raises comparable to the raises granted to the returning strikers who resigned from the Union. I note that included among this large group of returning strikers who did not resign, yet were reinstated with pay raises, there were several who returned to work in July 1981: Max Abeyta; Lewis Crippen; Lewis Crippen Sr., Jack Isenhart Jr., Melvin Pribble, Raymond Pribble Jr., Ronald Snook, and Jimmy Woods. I also note that an- other returning striker Glen Schroeder, was reinstated early in July 1981 before Respondent learned that he had resigned from the Union. Under the circumstances, the General Counsel has failed to establish, as alleged in the complaint, that Respondent gave preferential treatment to those strikers who resigned from the Union over those who did not resign. I therefore for this reason shall rec- ommend that this allegation be dismissed. b. Alleged constructive discharges As described in detail supra, on June 18, 1981, the ap- proximately 85 union represented employees employed at Respondent's Colorado Springs facility stopped work in support of the Union's economic strike against Respond- ent, thereby forcing Respondent to cease doing business at this facility until the first week of July 1981 when it resumed operations. On the resumption of operations a number of the strikers returned to work and additional ones returned in the days and weeks that followed.44 The General Counsel contends, as alleged in the com- plaint, that 10 of the strikers, who did not return to work for Respondent, were constructively discharged in viola- tion of Section 8(a)(3) and (1) of the Act because "Re- spondent refused to allow [them] to return to work by placing unlawful conditions upon their continued em- ployment, to wit, requiring them to resign from the Union and to show proof of their resignations to Re- spondent."45 The evidence pertinent to this allegation, insofar as it relates to each of the 10 alleged discrimina- tees, has for the most part been previously set forth in ** Although picketing ceased July 23, 1982, the Union has not in- formed Respondent that the strike had ended nor ,has the Union ever asked the Respondent to reinstate the strikers 45 The complaint actually named 13 alleged discnminatees in this alle- gation, but the General Counsel in his posthearing brief asked that the names of 3 of the alleged discriminatees-Frank Lukman, Leroy Van Cleave, and Harry Hubbard-be withdrawn because Lukman and Van Cleave testified that Respondent's conduct had no effect whatsoever on their action in not returning to work and , with respect to Hubbard, no evidence was presented concerning his case . The record supports the General Counsel's position. I therefore shall treat the General Counsel's request as a motion to strike the names of Lukman, Van Cleave, and Hubbard from the complaint and I grant the motion. 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD detail and, other than in the case of Herman Chavez,46 is briefly summarized as follows. (1) Jim Clementi Two days after the start of the June 18 strike Cle- menti, a striker who never returned to work for Re- spondent, phoned Truck Foreman Paradise and "asked him if [Clementi] was going to be able to go back to work." Paradise responded by stating that if Clementi wanted to return to work that he would have to "drop out of the Union" and gave him 1-1/2 weeks to decide. Clementi testified, "no," when asked, "[D]id you ever offer to return to work for [Respondent]?" (2) Gregory Nill During the second week of July 1981, Nill, a striker who never returned to work, spoke to Vice President and General Manager Prevost with four other strikers and one of the strikers asked "what [they] had to do to come back to work?" Prevost replied by stating "[they] would have to resign from the Union to come back." (3) Wayne Sell During the second week of the strike, Sell, a striker who did not return to work, met with Vice President and General Manager Prevost accompanied by two other strikers. One of the strikers told Prevost that the three strikers had come to speak to him to learn "what was going on." Prevost responded by stating that the Respondent intended to resume work and that if they wanted to return to work that they had to resign from the Union and show proof of their resignations. (4) Arthur Brautigam, Paul Forsett, Edward Mayo, and Eusaivo Leyba On July 10, 1981, Vice President and General Manag- er Prevost met with Brautigam, Forsett, Mayo, and Leyba, all of whom were strikers who never returned to work. When they asked what the working conditions would be like if they decided to return to work, Prevost told them that in order to return to work they would have to resign from the Union and submit proof of their resignations. (5) Donnie Burrell, Charles Trafton Jr., and James Machak On July 10, 1981, strikers Brautigam, Forsett, Mayo, and Leyba after their above-described meeting with Pre- vost returned to the picket line where they spoke with Burrell, Trafton and Machak, who were strikers that never returned to work. They told Burrell, Trafton, and Machak that Prevost had told them that in order for Brautigam, Forsett, Mayo, and Leyba to return to work that they would have to resign from the Union. Trafton responded by stating that he would not resign from the as For the reasons set forth supra, I have rejected Chavez' testimony on which this allegation is based I therefore for this reason shall recom- mend that this allegation be dismissed insofar as it names Chavez as a dis- cnminatee Union.47 Burrell responded by stating that he could not afford to resign from the Union because he would lose his union retirement benefits and that he would just have to go to work for a union contractor. The next day, July 11, 1981, Machak was told by Truck Foreman Paradise that unless Machak resigned from the Union and showed Respondent proof of his res- ignation by Friday of the next week, that Machak would be replaced by a striker replacement. Machak replied that he could not afford to resign from the Union be- cause of the amount of time he had accumulated in the Union's pension fund.48 Citing Hayden Electric, 256 NLRB 601, 605 (1981), the General Counsel argues that the above-named strikers were constructively discharged because they made un- conditional offers to return to work and in response the Respondent conditioned their reinstatement on an illegal condition. Citing Kamminga & Roodvoets Inc., 198 NLRB 208 (1972), the General Counsel further argues that even if these strikers did not make unconditional offers to return to work, that Respondent's conduct of informing them that their reinstatement was conditioned upon their resigning from the Union, constituted a con- structive discharge of those strikers who quit. In the al- ternative citing Eagle International, 223 NLRB 29 (1976), the General Counsel argues that even if the strikers did not make unconditional offers to return to work and were not otherwise constructively discharged that at the very least they became discriminatees as of the date they abandoned the strike because it would have been futile for them to have made offers to return to work because the only offer Respondent would have accepted was an offer accompanied by their resignation from the Union. Last the General Counsel contends that even though an agent of Respondent did not directly communicate to strikers Burrell and Trafton that their employment was conditioned on resigning from the Union, that Respond- ent is responsible for their receipt of this information be- cause striker Mayo who communicated this information to them had been speaking to Vice President and Gener- al Manager Prevost on behalf of all the strikers in his ca- pacity as union steward. For the reasons set forth herein- after I am persuaded that each of the General Counsel's arguments, in the circumstances of this case, are without merit. First, it is evident from the description of their conver- sations with representatives of the Respondent that none of the above-named strikers made an unconditional offer to return to work, thus cases such as Hayden Electric are inapposite. Second, there is insufficient evidence that any of the above-named strikers quit their employment,49 49 When asked on cross-examination why he never offered to return to work, Trafton testified, "because I would not resign from the Union " 48 In response to a question on cross-examination Machak testified that if there had not been a requirement that he resign from the Union that he would still be working for the Respondent, as the Respondent was a good company to work for. 19 Striker Lukman's testimony that he was picketing alone because "the other fellows got jobs" is not competent to establish that in fact any of the above-named strikers went to work for other employers and in any event fails to establish that they quit their employment with Respondent. Continued SCHMIDT-TIAGO CONSTRUCTION CO. 369 thus cases such as Kamminga & Roodvoets Inc. are also inapposite.50 Third, Eagle International, and the cases cited therein, are inapposite because they all involve em- ployees who, unlike the instant alleged discriminatees, were found to have been discharged while on strike. In any event there is no showing that it would have been futile for the alleged discriminatees in this case to have successfully offered to return to work without having to resign from the Union. Rather the record, Joint Exhibit 3 and General Counsel's Exhibit 7, reveals that of the ap- proximately 73 strikers who cross the picket line during the strike to return to work, approximately 60 percent did not resign from the Union. Last, there is no evi- dence, as contended by the General Counsel, that in speaking to Prevost with the other three strikers on July 10, 1981, that striker Mayo was speaking in his capacity as union steward on behalf of all the employees or that Prevost should have realized this. But more significant is the fact that Prevost could not have reasonably expected that his July 10, 1981 statements concerning union resig- nations made to Mayo and the other three strikers would be communicated to the other strikers inasmuch as Pre- vost's resignation statements, described supra, were di- rected to Mayo and the other three strikers personally and not to all of the strikers. Compare Martin Arsham Sewing Co., 244 NLRB 918 (1979) It is for all the foregoing reasons that I am persuaded that there is no merit to the General Counsel's conten- tion that strikers Clementi, Nill, Sell, Brautigam, Forsett, Mayo, Leyba, Burrell, Trafton, and Machak were con- structively discharged in violation of Section 8(a)(1) and (3) of the Act. I therefore shall recommend that these al- legations be dismissed. (6) The nature of the strike The strike which began on June 18, 1981, was motivat- ed by a desire of the Union and the employees whom it represented at Respondent's Colorado Springs facility to bring economic pressure to bear on Respondent to secure what the Union and the employees considered to be an acceptable contract. As such it was an economic strike. The General Counsel concedes this, but takes the Assuming Burrell's above-described spontaneous declaration that he would lust have to work for a union contractor rather than resign from the Union, constitutes evidence that he quit his employment with Re- spondent, his quit does not constitute a constructive discharge because as discussed infra, he was informed by other employees not by an agent of Respondent that resignation from the Union was a condition of reinstate- ment. Last, with respect to Machak's self-serving testimony that if there had been no requirement that he resign from the Union that he would still be working for the Company, this is not the type of evidence on which a finding may be based that Machak quit his employment I am of the opinion that such a finding must be based on objective evidence, i e., the conduct of the striker during the time in question, as evidenced by his words or actions 50 "A constructive discharge is not a discharge at all but a quit which the Board treats as a discharge because of the circumstances which sur- round it." Fred Lewis Carpets, 260 NLRB 1343, 850 (1982), citing Comgen- era! Corp, 251 NLRB 653, 657 (1980). Even in those cases involving the issue of whether strikers have been constructively discharged, other than the cases where the strikers have made unconditional offers to return to work, the General Counsel must establish that the strikers actually quit their employment as a result of the employers unfair labor practices See Kamminga d Roodvoets Inc, 198 NLRB 208 (1972), American Distilling Co, 245 NLRB 454, 460 (1979) position, as alleged in the complaint that Respondent's subsequent unfair labor practices converted the strike to an unfair labor practice strike. The law is settled that "[a]n unfair labor practice does not convert an economic strike to an unfair labor prac- tice strike unless a casual connection is established be- tween the unlawful conduct and the prolongation of the strike." Robbins Co., 233 NLRB 594 (1977). For the rea- sons set forth below, I am persuaded that the General Counsel failed to establish a casual connection between the unfair labor practices found herein and the continu- ation of the strike. An economic strike that is caused by an impasse in collective-bargaining negotiations may be prolonged by an employer's subsequent unfair labor practices if the strike is expanded to include a protest over the unfair labor practices or, if the unfair labor practices obstruct the collective-bargaining negotiations, thereby prolong- ing the strike and its settlement. The only evidence in the instant case that the strikers expanded the strike to include a protest over the Re- spondent's unfair labor practices is the testimony of 3 of the approximately 80 odd strikers-Trafton, Burrell, and Machak-to the effect that they did not return to work because of the Respondent's statement that their employ- ment was conditioned on their resigning from the Union. Obviously this is not sufficient to establish that the strik- ers as a group expanded the purpose of the strike to in- clude a protest over the Respondent's unfair labor prac- tices. Nor will I infer that the Respondent's illegal con- duct, telling approximately 17 strikers that their contin- ued employment was conditioned on their resigning from the Union, by its nature was calculated to obstruct the collective-bargaining negotiations or to cause the strikers to expand the purpose of strike to include a protest over this unfair labor practice. For the record reveals that Re- spondent did not in fact have a policy of conditioning continued employment upon the strikers resigning from the Union. There is no evidence that even one striker was refused reemployment because he or she refused to resign from the Union. Quite the opposite, at least 60 percent of the strikers crossed the picket line and re- turned to work without resigning from the Union, which included several strikers who returned to work in July 1981. Under the circumstances, I will not infer that Re- spondent's statements to less than 20 percent of the strik- ers that their continued employment was conditioned on resigning from the Union either expanded the purpose of the strike or obstructed the collective-bargaining negotia- tions. Regarding the issue of whether the remaining unfair labor practices by their very nature obstructed collec- tive-bargaining negotiations so as to have the necessary effect of prolonging the strike, the record, for the rea- sons I have found supra, reveals that Respondent's uni- lateral conducts' and its statement to four strikers that Respondent would never sign a contract with the Union, Si Of course, the only unilateral conduct relevant to this issue is the conduct that effected the Respondent's Colorado Springs employees. 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD did not contribute to the continuing deadlock in the ne- gotiations. Based on the foregoing, I find that Respondent's unfair labor practices did not prolong the June 18, 1981 eco- nomic strike. I therefore shall recommend that this alle- gation be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent's employees, excluding supervisors as defined in the Act, employed in the job classifications covered by the 1978-1981 highway, heavy engineering, utility and building construction agreement and em- ployed by Respondent at its Colorado Springs, Colorado facility, constituted an appropriate bargaining unit. 4. Respondent's employees, excluding supervisors as defined in the Act, employed in the job classifications covered by the 1978-1981 highway, heavy engineering, utility and building construction agreement and em- ployed by Respondent in the State of Colorado other than at Respondent's Colorado Springs facility, consti- tute an appropriate bargaining unit. 5. At all times material the Union has been the collec- tive-bargaining representative of all the employees in the aforesaid bargaining units for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by tell- ing employees represented by the Union at its Colorado Springs facility that Respondent would never sign a col- lective-bargaining agreement with the Union and that if the employees wanted to continue being employed by Respondent they would have to resign from the Union. 7. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by taking unilateral action without affording the Union an opportunity to bargain, as follows: Instituting a new health and welfare program, the Colorado contractors association health and welfare program, for its Colorado Springs employees represented by the Union; increasing the hourly wages of the strikers at the Colorado Springs facility who returned to work, by paying them an addi- tional 40 cents an hour that previously was contributed by Respondent on behalf of the employees to the vaca- tion trust fund established in the 1978-1981 highway, heavy engineering, utility and building construction agreement. 8. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by dealing directly with employees represented by the Union at its Colorado Springs facility about matters sub- ject to collective bargaining, thereby bypassing their ex- clusive collective-bargaining representative. 9. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by engaging in unilateral conduct without affording the Union an opportunity to bargain, as follows: Ceased making contributions on behalf of the employees in the unit described in paragraph 4 above, to the health and welfare, pension and vacation trust funds established by the 1978-1981 highway, heavy engineering, utility and building construction agreement; discontinued the health and welfare program under which these employees cov- ered by the aforesaid health and welfare trust fund had been receiving benefits and in its place substituted a new health and welfare program, the Colorado contractors association health and welfare program. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 11. Respondent has not otherwise violated the Act. THE REMEDY In order to effectuate the policies of the Act, I fmd it necessary that Respondent be ordered to cease and desist from the unfair labor practices found and from like or re- lated invasions of the employees ' Section 7 rights, and to take certain affirmative action. Regarding Respondent's illegal unilateral conduct committed in the Colorado Springs unit of instituting the Colorado Contractors Association Health and Welfare Program and increasing the wages of the returning strik- ers by paying them monies which previously were paid to the vacation trust fund, I have not provided for af- firmative relief in the form of directing the Respondent, at the Union's request, to discontinue these benefits and to reinstate the preexisting situation. The reason for this omission is that in the Colorado Springs unit the Re- spondent has not been found to have illegally discontin- ued the health and welfare program that the Colorado contractors association health and welfare program re- placed or that Respondent's cessation of contribution to the vacation trust fund was illegal. Iny any event, I note that there is a serious question of whether such affirma- tive relief would be appropriate where , as I have found supra, the Respondent after engaging in this unilateral conduct at the Colorado Springs facility bargained to a good-faith impasse. Compare NLRB v. Cauthorne, 691 F.2d 1023, 1025-1026 (D.C. Cir. 1982), with Allied Prod- ucts Corp., 218 NLRB 1246 (1975 ). See also J. D. Luns- ford Plumbing, 254 NLRB 1360, 1365-1366 (1981). Having found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing making contributions on behalf of the non -Colorado Springs unit employees to the pension, health and welfare , and vaca- tion trust funds as required by the 1978-1981 highway, heavy engineering, utility and building construction agreement and by unilaterally discontinuing the health and welfare program under which the non-Colorado Springs unit employees covered by the aforesaid trust fund had been receiving benefits and in its place unilater- ally substituting the Colorado contractors association health and welfare program, I shall recommend that Re- spondent make whole these employees by paying all pen- sion and vacation contributions to the trust funds that have not been paid and that would have been paid but for the unlawful conduct found herein' 52 and to continue 62 Since Respondent has provided the employees with alternative health and welfare coverage in the form of the Colorado Contractors As- Continued SCHMIDT-TIAGO CONSTRUCTION CO. 371 such payments until such times as the Respondent nego- tiates with the Union to a new contract or impasse. I shall also recommend that Respondent make whole the employees in the non-Colorado Springs unit, with inter- est,ss for any expenses or loss of benefits they may have incurred as the result of the Respondent's aforesaid unfair labor practices. 54 Respondent will also be re- quired to preserve and, on request, make available to au- thorized agents of the Board all records necessary or useful in determining compliance with the Order herein. sociation Health and Welfare program , they would not benefit from a re- quirement that Respondent now duplicate that coverage retroactively. Such a requirement would be punitive. Accordingly, the remedial order should not be construed to mcorporate such an order . See Wayne's Dairy, 223 NLRB 260, 266 (1976), and Hassett Maintenance Corp, 260 NLRB 1211 (1982). as Any interest due on trust fund payments shall be made in accord- ance with the criteria set forth in Merryweather Optical Co, 240 NLRB 1213 (1979) Interest on the remaining backpay sums shall be paid in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962) 64 In measuring actual damages, employees should be reunbursed for their actual costs For example, with respect to health and welfare ex- penses the employees shall be reunbursed for only those costs that would have been paid by the health and welfare program in existence under the contractual health and welfare trust fund , minus costs that were actually paid by Respondent's insurer, the Colorado contractors association health and welfare program. Having found the Respondent violated Section 8(aX5) and (1) of the Act by unilaterally substituting the Colora- do contractors association health and welfare program for the health and welfare program that previously cov- ered the non-Colorado Springs unit employees, I shall recommend that Respondent be ordered to restore, on the Union's written request, the health and welfare pro- gram that was in effect previously and its contributions on behalf of said program to the 1978-1981 highway, heavy engineering, utility and building construction agreement's health and welfare trust fund. In order to allow the Union ample opportunity to consider whether to request the reinstatement of the previous health and welfare program and the accompanying trust fund con- tributions, while not leaving the matter open indefinitely, I shall recommend that the Union be required to make its decision within 20 days of the date of the Board's de- cision. Respondent will have 40 days after the receipt of the Union's written request to replace the Colorado Con- tractors Association Health and Welfare Program with the previous program and to resume making its trust fund contributions on behalf of that program. If the Union makes no such request nothing contained herein shall be construed as requiring Respondent to revoke the Colorado contractors association health and welfare pro- gram. [Recommended Order omitted from publication.]