Garman Construction Co.

88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Garman Construction Company and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , Local Union No. 325, AFL-CIO and Local Union No. 150, International Union of Operating Engineers, AFL-CIO. Cases 33-CA-5672 and 33-CA- 5673 14 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 29 September 1983 Administrative Law Judge Arline Pacht issued the attached decision. The General Counsel filed limited exceptions and a supporting brief, and a brief in support of part of the judge's decision. The Respondent' and Local 150, International Union of Operating Engineers, filed exceptions and supporting briefs. The General Counsel and the Respondent filed reply briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 only to the extent consistent with this Decision and Order. The Respondent is "an employer engaged pri- marily in the building and construction industry" within the meaning of Section 8(f) of the Act. In John Deklewa & Sons, 282 NLRB 1375 (1987), the Board overruled R. J. Smith Construction Co., 191 NLRB 693 (1971), enf denied sub nom Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned the conversion doctrine, and modified unit-scope rules in 8(f) cases. As set forth I The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and po- sitions of the parties The Respondent has made a motion to reconsider denial of the request for review in Cases 33-RM-199, 33-RM-200, and 33-RM-202 and a motion to consolidate review of ' RM" proceedings with the appeal in Cases 33-CA-5672 and 33-CA-5673 The General Counsel filed an oppo- sition to the Respondent's motions The Respondent filed a response to the General Counsel's opposition The Respondent's motions are denied 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative 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 reversing the findings 3 In sec II,C,2, Allegations of restraint, coercion, and interference, par 22, the judge inadvertently stated that the Respondent could file and had filed decertification petitions Sec 9(c) of the Act gives an employer the right to file a representation petition and employees the right to file a petition for an election to decertify a union Certain other minor errors in the judge's decision have been noted and corrected in Deklewa (above at 1377-1378), the Board decid- ed to apply the following principles in 8(f) cases: (1) a collective-bargaining agreement permit- ted by Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employ- ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- ry union will enjoy no presumption of majori- ty status, and either party may repudiate the 8(f) bargaining relationship. Applying Deklewa to the instant case, we conclude that the Respondent did not violate Section 8(a)(5) and (1) of the Act with respect to the International Union of Operating Engineers, Local No 150, La- borers Local Union No. 727, or the Northwestern Illinois District Council of Carpenters, Local No. 790. In 1970 the Respondent joined the Northern Illi- nois Building Contractors Association (NIBCA), a multiemployer group, which negotiated agreements on behalf of its members and area trade unions, in- cluding the Operating Engineers, the Laborers, and the Carpenters. In 1975 NIBCA delegated its bar- gaining authority to a multistate organization, the Mid-America Regional Bargaining Association (MARBA). MARBA subsequently negotiated three master agreements with the Operating Engineers, the Laborers, and the Carpenters.4 In December 1975 the Respondent's president, Tom Garman, no- tified NIBCA, in writing, of the Respondent's deci- sion to withdraw from NIBCA. The withdrawal did not take effect until the expiration of the master agreements in 1978. As the judge found, by June 1978 the Respondent was no longer formally bound by any agreement. 1. After June 1978 the Respondent did not enter into any bargaining relationship with the Laborers or the Carpenters. Thus, under the fourth Deklewa principle, as of the expiration of the 1975-1978 bar- gaining agreements, the Unions did not enjoy a presumption of majority status, and the Respondent was free to repudiate the 8(f) bargaining relation- ships. 4 The agreement with the Operating Engineers ran from 1 July 1975 to June 1978 The agreement with the Laborers ran from I May 1975 to 30 April 1978 The agreement with the Carpenters ran from 17 June 1975 to 31 May 1977 The Respondent's president then signed a 1-year agreement with the Carpenters which expired on 31 May 1978 287 NLRB No. 12 GARMAN CONSTRUCTION CO 89 The judge concluded that the Respondent violat- ed Section 8(a)(5) and (1) with respect to the La- borers and the Carpenters by refusing to recognize and bargain collectively with these Unions.5 As the judge's conclusions turned on whether the Re- spondent owed bargaining or contractual obliga- tions to the Unions after June 1978, which under Deklewa it did not, we will reverse the judge and dismiss these allegations in the complaint. 2. After June 1978 the Respondent did enter into a bargaining relationship with the Operating Engi- neers. In 1978 Tom Garman signed a memorandum agreement which bound the Respondent to the Op- erating Engineers' master agreement.6 Since 1978, however, the Respondent had employed only one member of the Operating Engineers, employee Jerry Simler, and had made regular, monthly con- tributions to the Union's fringe benefit funds on his behalf. The Respondent stopped its contributions on 3 September 1981, when it sent a letter to the Operating Engineers stating that the master agree- ment "is null and void as of the present date." The complaint alleged that the Respondent vio- lated Section 8(a)(5) and (1) by repudiating the contract and withdrawing recognition from the Operating Engineers. The judge found that the Re- spondent had not merged into the multiemployer unit and that the Respondent was bound by the 1981-1984 master agreement, but dismissed the al- legation in the complaint because-of the "one-man unit" rule. This rule holds that the Board will not find that an employer has violated Section 8(a)(5) when the refusal to bargain involves a single-em- ployee unit. Foreign Car Center, 129 NLRB 319 (1960). We agree with the judge that under the facts of this case, the allegation of an 8(a)(5) violation con- cerning the Operating Engineers should be dis- missed. We find that the Respondent was party to a binding 8(f) contract under Deklewa and that under the third Deklewa principle, the Respond- ent's operation was a single-employer unit that had not merged into the multiemployer unit.7 Because s The judge found that the Respondent had adopted the Laborers' and Carpenters' master contracts through its actions in following numerous provisions of the master contracts We do not find this adoption-by-con- duct doctrine to be applicable in 8(f) cases 8 In March 1981 the Respondent signed another agreement with the Operating Engineers which was substantially identical to the 1978 memo- randum The master agreement ran'from July 1978 to June 1981 and con- tained a provision which stated that it would continue in effect unless timely notice of termination was given The Respondent did not provide timely notice of termination and thereby became bound by the next master agreement , which ran from 1 July 1981 to 31 May 1984 7 Member Stephens notes that the third Dek/ewa principle actually refers to the unit that will normally be regarded as appropriate for the purpose of processing election petitions under Sec 9(c) and (e) of the Act, and we have no petition pending before us here It is conceivable that the third Deklewa principle would not necessarily govern all deter- minations of the unit to which an employer was bound pursuant to its there had never been more than a single member of the Operating Engineers in the Respondent's employ during the 3 years prior to the Respond- ent's repudiation, however, we find that the "one- man unit" rule is the proper rule in this case.8 We agree with the result reached by the judge and dismiss the 8(a)(5) and (1) allegations in the complaint concerning the Operating Engineers. 3. The judge found five 8(a)(1) violations. The judge found that the Respondent engaged in the following conduct: interrogated the employees about their support of the Unions;9 created the im- pression that the- employees' recall to work was conditioned on their withdrawal from union mem- bership; implied to the employees that their job status was conditioned on withdrawing from the Unions; assisted in the preparation of a decertifica- tion petition regarding Carpenters' Local 790; and promised the employees improved benefits. We affirm the judge. In conclusion, we affirm the judge's finding of the five 8(a)(1) violations and we dismiss the alle- gations of 8(a)(5) violations concerning the Operat- ing Engineers, the Laborers, and the Carpenters. AMENDED REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order the Respondent to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. signing of a collective-bargaining agreement However, given our adop- tion of the judge's finding that the Respondent had not merged its oper- ation into the multiemployer unit when it signed the separate memoran- dum agreement in 1981, Member Stephens concludes that we can appro- priately find that the Respondent's own operating engineer work force was the unit in which the Respondent was bound, by its agreement, to recognize the Operating Engineers 8 We note that had the facts been different and had the unit of operat- ing engineers been subject to fluctuations in size, only temporarily de- creasing in size to a single employee unit, the Respondent's actions would have violated Sec 8(a)(5) of the Act See Dek/ewa, above at fn 62 9 In Rossmore House, 269 NLRB 1176 (1984), affil sub nom Hotel & Restaurant Employees Local 11 v NLRB, 760 F 2d 1006 (9th Cir 1985), the Board stated that the proper analysis is whether, under all the cir- cumstances, the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act See also Sunnyvale Medical Clinic, 277 NLRB 1217 (1985) Member Stephens notes that because it was not unlawful for the Re- spondent to repudiate its bargaining agreement with the Unions after the contracts expired, and because the Respondent could therefore lawfully operate without a union agreement thereafter , mere questions to employ- ees whether they would object to working without a union agreement would not, standing alone, be unlawful under Sec 8(a)(1) To the extent that the Respondent coupled questions about union sympathies with ref- erences to stacks of applications from nonunion employees, however, the questions could reasonably have tended to coerce its previously union- represented employees, most of them now on layoff status, into believing that abandonment of union membership was the price of a job On that basis, he joins the majority in upholding the unlawful interrogation find- ing 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent. Garman Construction Co., Free- port, Illinois, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Interrogating employees about their member- ship in or support of labor organizations or ask em- ployees if they will work with nonunion employees or what they think about going nonunion. (b) Creating the impression that the employees' recall to work is conditioned on their withdrawal from membership in or support of the Union. (c) Implying to employees that their jobs are de- pendent on their withdrawing from union member- ship. (d) Initiating or assisting in the preparation of a decertification petition. (e) Promising the employees improved insurance benefits if they withdraw from union membership. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its Freeport, Illinois place of business copies of the attached notice marked "Appen- dix."10 Copies of the notice, on forms provided by the Regional Director for Region 33, 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. (b) 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 allegations not specifically found are dismissed. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interrogate our employees about their membership in or support of labor organiza- tions or ask employees if they would work with nonunion employees or what they think about going nonunion. WE WILL NOT give employees the impression that their recall to work is conditioned on with- drawing from- membership in or support of any union. WE WILL NOT imply to employees that their jobs are dependent on their withdrawal from union membership. WE WILL NOT initiate or assist employees in the preparation or circulation of any petition, nor spon- sor any movement to decertify Carpenters Local 790, or any other labor organization. WE WILL NOT promise employees improved in- surance benefits or other benefits if they withdraw from membership in or support of any 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. GARMAN CONSTRUCTION COMPANY 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the 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 " Richard Simon, Esq, for the General Counsel. Gerard C. Smetana, Esq (Arvey, Hodes, Costello & Burman), of Chicago, Illinois, for the Respondent. Lorraine Schmall and Lewis Sigman, Esqs. (Baum, Sigman & Gold, Ltd.), of Chicago, Illinois, for Operating Engi- neers Local 150. GARMAN CONSTRUCTION CO. 91 DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge. This case was heard in Rockford , Illinois, over a 6-day period be- ginning October 13 and concluding on November 5, 1982, pursuant to charges filed on October 5, 1981, against Garman Construction Company (Respondent or Garman). A consolidated complaint and notice of hear- ing issued on February 19, 1982, and was amended on August 25 and November 1, 1982. The Respondent filed its answer to the complaint and amended complaint on April 6 and September 7, 1982, respectively. Subsequent- ly, on May 10, 1982, the Respondent filed a motion for partial summary judgment and request for review of the Regional Director's decision and order, which was denied by the Board.' On these pleadings, the principal questions presented by the complaint are whether the Respondent : (1) violat- ed Section 8(a)(5) and (1) of the Act by repudiating its collective-bargaining agreement with the International Union of Operating Engineers Local 150 (Operating En- gineers or Local 150); unlawfully withdrew recognition and refused to bargain collectively with the Operating Engineers and with the Laborers Local 727 (Laborers or Local 727) and the Northwestern Illinois District Coun- cil of Carpenters Local 719 (Carpenters or Local 719);2 and unilaterally altered the terms and conditions of its employees' employment; (2) whether the Respondent violated Section 8(a)(1) of the Act by coercively ques- tioning employees about their membership in and support of the respective Unions; promising benefits to employ- ees who withdrew from union membership, threatening i On September 9 and October 1, 1981, the Respondent filed four peti- tions seeking representation elections , on a claim that unions, three of which are involved in this proceeding, did not represent a majority of its employees in an appropriate unit of all of its construction workers. A representation hearing began on October 5 and ended on November 3, 1981. On March 30, 1982, the Regional Director issued a decision and order in which he took administrative notice that a consolidated com- plaint had issued with respect to the Laborers, Carpenters, and Operating Engineers Consequently, he determined that the petitions in the repre- sentation cases affecting those unions should be dismissed, subject to re- consideration on final disposition of this unfair labor practice proceeding After the Board denied Respondent's request for review , Garman filed a motion for reconsideration, which the Board also denied by telegraphic order dated October 8, 1982. z In August 1982, Carpenters Local 719 , the organization that initially represented Respondent 's employees, merged into Carpenters Local 790. After notifying the approximately 15 members of Local 719 and 50 mem- bers of Local 790 of the forthcoming merger vote , a meeting was held where separate balloting took place among the two groups Approximate- ly 12 to 15 men belonging to Local 719 voted unanimously by secret ballot in favor of the merger Thus, the merger was accomplished pursu- ant to procedures that provided sufficient guarantees for free choice and due process. See NLRB Y Commercial Letter, 496 F.2d 35 (8th Cir 1974) Further, four of Local 719's officers continued holding office with the merged Local 790. Although a new business agent now services the area that encompasses the Respondent , the collective-bargaining agreements that Local 719 had with various employers prior to the merger remained in effect Where, as here, two sister locals merge, where the affected em- ployees approve of the merger, and where there is no disruption of pre- existing collective-bargaining relationships, it is clear that substantial con- tinuity of representation from one local to another is retained Because "there is no change in the essential identity of the bargaining unit," (Montgomery Ward & Co., 188 NLRB 551 , 552-553 (1971)), I conclude that Local 790 has lawfully replaced Local 719. job loss to those who did not, and encouraging the distri- bution of a decertification petition. On the entire record, including the demeanor of the witnesses and after due consideration of the briefs filed by counsel for the General Counsel (General Counsel), the Respondent,3 and the Operating Engineers, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a contractor in the business of residential and commercial building construction , is, and has been at all times material, an Illinois corporation with its office and principal place of business in Freeport, Illinois. During the past 12 months, a representative period, in the course and conduct of its business operations, Re- spondent has purchased and caused to be transferred and delivered to its Freeport facility goods and materials valued in excess of $50,000 which was transported di- rectly from States other than the State of Illinois. Based on the foregoing admitted facts, I find that Respondent is now, and has been at all material times , an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Operating Engineers, Carpenters Local 719, Car- penters Local 790, and Laborers Local 727 are labor or- ganizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Background The Respondent's longstanding relationship with orga- nized labor can be traced to the early 1960s when it en- tered into its first collective-bargaining contract with the Operating Engineers . In 1970, Respondent joined the Northern Illinois Building Contractors Association (NIBCA), a multiemployer group that negotiated agree- ments on behalf of its members with various trade unions including the Operating Engineers, Laborers, and Car- penters. In 1975, NIBCA delegated its bargaining author- ity to a multistate organization, the Mid-America Re- gional Bargaining Association (MARBA). In that year, MARBA negotiated 3-year master agreements with the Operating Engineers and Laborers , which expired in June and April 1978 respectively, and a 2-year contract with the Carpenters. In December 1975, Tom Garman, then Respondent's president, advised NIBCA in writing of the Company's decision to withdraw from the Association. Because this notification was given during the term of NIBCA's out- standing contracts with the respective Unions, the with- 8 Respondent submitted a motion for leave to file a reply brief dated May 15, 1983, to which the General Counsel objected . The Board's Rules and Regulations make no provision for reply briefs, suggesting they are not favored Moreover, Respondent's counsel offered no compelling reason justifying such a bnef Because the matters he sought to address were or could have been raised at the hearing and in his brief, another document added to the plethora of paper already filed in this case is un- warranted . Accordingly, Respondent's motion is denied. 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD drawal did not take effect until those contracts expired' On May 31, 1978, a contract, which Respondent inde- pendently executed a year earlier with the Carpenters adopting the NIBCA master agreement for the balance of its term, also expired. Thus, by June 1978, Respondent was no longer formally bound to collective-bargaining agreements with any of the Unions party to this proceed- ing Respondent's Relationship with the Unions Since 1978 Respondent's present dispute with the Charging Par- ties stems from events occurring since 1978 In May of that year, Garman Construction Company was pur- chased by Harry Johnson and William Nample. Since the transfer of ownership did not significantly alter the way in which the Company functioned, the Respondent is, by admission, a successor. The Respondent's relationship with the Unions since the sale have been far more prob- lematic Because the operative facts that govern Re- spondent's legal obligations to the Operating Engineers differ somewhat from those affecting the Laborers and Carpenters, the issues affecting each Union will be exam- ined separately below A. The Operating Engineers In 1978, MARBA entered into a new master agree- ment with the Operating Engineers effective from July of that year to June 1981 Jerry Shepardson , the Operat- ing Engineer's business agent, testified that shortly after the agreement was executed , and he learned that Garman no longer belonged to NIBCA, he visited Tom Garman (then Respondent's president) at his Freeport, Illinois office on 12 North Commercial Street, and obtained his signature on a memorandum agreement . As Shepardson explained, such memoranda agreements bind the signer to the master contract and typically are presented to in- dividual employers who do not belong to the Associa- tion. At the representation hearing, although Garman denied having executed such a document and the Operat- ing Engineers was unable to produce a copy of the signed memorandum, there is other evidence that sug- gests that Garman did execute such an instrument.5 I refer to a booklet Shepardson produced that contained a computerized listing of every company that had signed a memorandum agreement with the Operating Engineers as of March 28, 1979. Garman was among the companies so listed at the Commercial Street address Three years later, Shepardson again found it necessary to obtain a signed memorandum from Respondent. She- 4 See Charles D Bonnano Linen Service v NLRB, 454 U S 404 (1982), Retail Associates, 120 NLRB 388 (1958) 5 Garman failed to appear at the unfair labor practice proceeding, thereby preventing any resolution of the credibility conflict in his favor on the basis of demeanor However, I note that he was willing to enter into at least one other similar agreement with the Carpenters in 1977 Further, at the time he withdrew from NIBCA, he indicated to the Asso- ciation's executive secretary that he contemplated further bargaining by stating that "it would be far better to negotiate on a separate basis with those two or three unions we would be pressured by " These circum- stances fortify my conclusion that Garman did sign a memorandum in 1978 pardson related that he met with Johnson on March 20, 1981, and after explaining that union officials were unable to locate a copy of the 1978 agreement, requested that another memorandum be executed so that Respond- ent could lawfully continue to contribute to the Union's fringe benefit funds on behalf of its employee, Jerry Simler. Semler was the only member of theOperating Engineers on Respondent's work force. Johnson read and signed the document. With the exception of then-current dates, the 1981 memorandum agreement was substantially similar to its 1978 predecessor The pertinent provisions of the memo- randum were as follows 1. The Employer recognizes the Union as the sole and exclusive representative for and on behalf of the employees of the Employer within the terri- torial and occupational jurisdiction of the Union 2. The parties agree that the Employer is a part of a single bargaining unit made up of all employers parties to the master agreement adopted herein. 3. The parties do hereby adopt the master agree- ment dated July 1, 1978 entered into by and be- tween the Union and the mid-America Regional Bargaining Association . . . and the parties do hereby mutually agree to be bound by the terms and conditions of that master agreement and the agreement and declaration of trust of the mid-West Operating Engineers pension plan. . . . 4. This agreement and the adoption of the master agreement and the agreements and declaration of the trust referred to in paragraph 3 above, shall be effective as of March 20, 1981 and remain in effect to and including the expiration date of the master agreement adopted herein . This agreement shall continue in effect from year to year thereafter and specifically adopt any master agreement entered into between the Union and mid-America Regional Bargaining Association 5 Either Party desiring to amend or terminate this Memorandum of Agreement must notify the other in writing at least three (3) calendar months prior to the expiration of the master agreement adopted herein In substance, then, the agreement provides for recogni- tion of the Union as the exclusive bargaining agent for employees performing operating engineers' work within the Union's jurisdiction; for merger of the Respondent into the multiemployer bargaining unit, for adoption of the terms of the master agreement between the Union and MARBA, for payments into the Operating Engi- neers trust funds and for continuation of the agreement from year to year unless either party notifies the other within 3 months prior to expiration of the master agree- ment of an intent to amend or terminate Thus, by virtue of the memorandum, Respondent was required to pro- vide written notice of a desire to terminate its contrac- tual arrangements with the Operating Engineers 3 months prior to the June 30, 1981 expiration of- the master contract It did not do so. Instead, by letter dated September 3, 1981, Respondent notified the Union that GARMAN CONSTRUCTION CO. the master agreement "is null and void as of the present date." Concurrently, Respondent notified the trustees of the Operating Engineers' fringe benefit fund that it was discontinuing payments. Since at least 1978, when Simler was admitted to full membership in the Operating Engi- neers,6 until September 1981 when Respondent sent the above-mentioned letters to the Union and trustees, it made regular, monthly contributions to the various Oper- ating Engineers' fringe benefit funds on Simler's behalf. The payments were accompanied by report forms, most of which Johnson signed, which indicated that the con- tributions were made pursuant to the Company 's collec- tive-bargaining agreement with the Union.' In addition, from 1978 until the summer of 1981 , Respondent paid Simler wage rates that conformed with those set forth in the MARBA-Operating Engineers master agreement. Re- spondent also assigned Simler to work that involved the use of heavy equipment traditionally falling within the craft lines of the Operating Engineers. In mid-September 1981, the Operating Engineers nego- tiated another master contract with MARBA retroactive to July 1, 1981 and expiring May 30, 1984. However, in September 1981, Respondent ceased making payments to the fringe benefit funds for Simler and failed to grant the increased wage rates specified in the new master agree- ment. 1. The parties' contentions The General Counsel and the Operating Engineers argue that by signing the memorandum agreement in March 1981, Respondent agreed that it would be bound to the 3-year master contract between MARBA and the Union, effective from July 1981 through May 1984. They further submit that by virtue of language in the memo- randum stating that the Employer agrees to be part of a single bargaining unit, the Respondent was merged into the multiemployer association . Because the Operating Engineers had majority support among the employees who worked for employers in the multiemployer unit, the Union's status as bargaining representative may not be challenged for the life of the contract. Counsel rea- sons that because Respondent is included within the mul- tiemployer unit and because the Union's majority status is determined within the framework of that unit, it is ir- relevant that the Respondent employs only one member of the Operating Engineers. Under their theory of the case, Garman's execution of the 1981 memorandum agreement makes the Respondent a party to a mature and fully enforceable contract under Section 9(a) of the Act. Consequently, they assert that Respondent's repudi- ation of that contract and its withdrawal of recognition from the Operating Engineers in September 1981 violate Section 8(a)(5) and (1) of the Act. The Respondent raises numerous defenses , not all of which need be examined to resolve those allegations in the complaint bearing on the Operating Engineers. At this juncture, it will suffice to outline the following 6 Prior to his becoming a full union member in 1978 , Simler's status with the Operating Engineers was as a "temporary referral " I Instruction cards sent to the Respondent , together with the report owed pursuant to the collective -bargaining agreement 93 points in Respondent's argument. First, the Respondent contends that Johnson did not sign the memorandum agreement in March 1981 with any intention of binding the Respondent to the terms of the MARBA contract. Rather, he merely complied with the business agent's re- quest for his signature in order to legitimize fringe bene- fit payments into the funds for Simler . Respondent next maintains that the memorandum was a prehire contract under Section 8(f) of the Act and, therefore, voidable, unless the Union can establish that it obtained majority support in an appropriate unit comprised solely of Garman employees. Alternatively, the Respondent urges that even if the Respondent is bound to a contract other- wise ripe under Section 9 (a) of the Act, it is unenforce- able because a one-man unit is inappropriate. For the rea- sons discussed below, I am constrained to conclude that under prevailing Board precedent, a union does not have majority status in an appropriate unit, when, as here, the unit is comprised of a single employee. Consequently, the Respondent's repudiation of its contract with the Operat- ing Engineers does not constitute conduct that will be remedied under the Act. 2. Discussion As found above, Respondent's attempted withdrawal from NIBCA in 1975, during the term of the extant col- lective-bargaining agreement, did not take effect until the expiration of that agreement in 1978. At that time, how- ever, and even without specific notice to the affected unions, the Respondent ceased being a member of the multiemployer association . Thereafter, in 1978, and again in 1981 , Respondent's representatives signed memoran- dum agreements that bound it to the terms and condi- tions of the collective-bargaining agreements negotiated between MARBA and the Operating Engineers. The memorandum agreement signed by Johnson in 1981 con- tains explicit language adopting the master agreement. When the provisions of a document, such as those at issue here, are clear and unambiguous on their face, the Board has rejected parole evidence that would alter or modify their terms. See R. J. E. Leasing Corp., 262 NLRB 373, 379 (1982). Moreover, Johnson admitted reading the memorandum prior to signing it and , there- fore, can hardly claim he was unaware of its provisions. It is impossible to believe that Johnson , who currently is president of the Company and primarily responsible for its financial management and who was its bookkeeper and vice president for at least 10 years prior to his acqui- sition of the business, could fail to appreciate the signifi- cance of signing such an instrument. Further, by contrib- uting to the trust funds and by observing the Operating Engineers' traditional craft lines, Respondent 's objective conduct demonstrated an awareness that it was obligated to adhere to the master agreement. Accordingly, I find that by executing the memorandum agreement in March 1981, and by failing to give timely notice of an intent to amend or terminate the agreement before the next con- tract was renegotiated , the Respondent bound itself to the 1981-1984 contract between MARBA and the Oper- ating Engineers. 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A separate legal question exists whether by signing the memorandum agreement the Respondent was merged into the multiemployer unit. The test used by the Board and approved by the courts in determining whether such a merger has occurred turns on whether the employer has indicated an unequivocal intention to be bound by group bargaining. NLRB v. New York Typographical Union No. 6, 632, F 2d 171, 183 (2d Cir 1980). The Board's position on this issue is succinctly stated in Ruan Transport Corp., 234 NLRB 241, 242 (1978). "[T]he essential element warranting the establish- ment of multiple- employer units is clear evidence that the employers unequivocally intend to be bound in collective bargaining by group rather than by individual action. The correlative standard for excluding an employer from such a unit is evidence of an intent to pursue an individual course of action with respect to labor relations." As a general rule, the Board has found that an employer does not become a part of a multiemployer bargaining group .. where it merely adopts a collective-bargaining agreement in the negotiation of which it did not ac-, tually participate and which it did not authorize an- other to negotiate on its behalf. Under the standards articulated in Ruan, the record es- tablishes that the Respondent merely adopted a contract that it had in no way authorized others to negotiate on its behalf. There is no question that Respondent did not partici- pate in the negotiations between MARBA and the Oper- ating Engineers either in 1978 or 1981. Neither can it be said that Respondent directly authorized NIBCA to engage in group bargaining in its behalf. To the con- trary, Respondent attempted to withdraw from the mul- tiemployer association as early as December 1975. The Operating Engineers did not receive notice of Respond- ent's intent to withdraw in 1975, but by 1978 the Local clearly knew that Garman was not represented by the Association because, as Shepardson acknowledged, memoranda of agreement are not presented to member- employers. In these circumstances, it would be incorrect to presume from Respondent's past participation in the multiemployer group that subsequent to its withdrawal, it continued to assent to group bargaining. Cf. New York Typographical Union 6, 236 NLRB 317 (1978) Indeed, by withdrawing from NIBCA, the Respondent demonstrat- ed the opposite intent as of that point in time-that is, to abandon group action and pursue an independent course of bargaining. The General Counsel and the Operating Engineers do not rely on Respondent's past history, however, to prove that it bound itself to group bargaining in 1981. Rather, they contend that by executing the memorandum of agreement, the Respondent agreed to become a "part of a single bargaining unit made up of all employers to the master agreement." Notwithstanding a commitment such as this, the Board has indicated that such language is in- sufficient to merge an employer into a multiemployer bargaining unit. The above-quoted language in the memorandum of agreement signed by Johnson in 1981.is virtually identical to language contained in the contract described in Ruan Transport. Yet, the Board held in Ruan that similar language was insufficient to "clearly demonstrate that the Respondent delegated authority to the Council to represent it in future negotiations." Ruan Transportation Corp, supra at 242. See also New York Ty- pographical Union, supra Thus, delegated authority even if clearly implied in the memorandum agreement does not meet the Board's standard of "clear evidence of an unequivocal intent on the part of an employer to be bound by group bargaining."8 Id. There is nothing in the record of this case that evidences Respondent's un- equivocal delegation of authority to NIBCA to bargain in its behalf as required by Ruan. The General Counsel and the Operating Engineers rely principally on Amado Electric, 238 NLRB 37 (1978), and Authorized Air Conditioning Co., 236 NLRB 131 (1978), enfd. 606 F.2d 899 (9th Cir. 1979), to support its contention that by signing the memorandum of agree- ment, the Respondent merged into the multiemployer bargaining unit These cases are clearly distinguishable on their facts. Although the employer in Amado Electric was not a member of the association, it had signed letters of assent specifically authorizing the group to represent it in collective bargaining. In Authorized Air Conditioning, the employer voluntarily applied for membership in the association and was accepted. See also Custom Colors Contractors, 226 NLRB 851, 853 (1976), enfd. sub nom. NLRB v Beckham, Inc., 564 F 2d 190 (5th Cir. 1977), in which the employer attended almost all the multiemploy- er negotiating sessions and never indicated an intent not to be bound by the contract These cases suggest that if a single employer is to merge into a larger multiemployer unit, its intent must be expressed to the larger unit and not to the union alone Compared to the actions of the employers in the above-cited cases, it cannot be said that Garman mani- fested the intent requisite to inclusion in the bargaining group. It merely signed a memorandum of agreement as a single employer acting on its own behalf Accordingly, the conclusion that must be drawn is that although the Respondent bound itself to the terms of the MARBA contract, it did not thereby merge into a multiemployer unit . Consequently, the Operating Engineers' majority status must be examined within the confines of a single business entity. See Hageman Underground Construction, 253 NLRB 60, 68 (1980) There is no dispute that Simler was the only member of the Operating Engineers in the Respondent's employ. In this regard, the Board's position on one-man units is well settled- the Board will not certify such a unit, nor will it find that an employer has violated Section 8(a)(5) when the refusal to bargain involves a single-employee unit. Crlspo Cake Cone Co, 190 NLRB 352, 363 (1971); Foreign Car Center, 129 NLRB 319, 320 (1960); Al & Dick's Steak House, 129 NLRB 1207, 1208 (1961); Louis Rosenberg, Inc., 122 NLRB 1450, 1452 (1959) It is true s But see NLRB v New York Typographical Union 6, 632 F 2d 171, 183-184 (2d Cir 1980), in which the court held that the individual em- ployer who had signed an agreement in advance of negotiations was bound by a master contract when it was reached GARMAN CONSTRUCTION CO. 95 that "the Act does not preclude bargaining with a union on behalf of a single employee, if an employer is will- ing." Foreign Car Center, supra at 320. See also Teamsters Local 115 (Villa-Bar Ca), 157 NLRB 588 (1966). At the same time, the Board has "never held that an employer's refusal to bargain with a representative on behalf of a one-man unit is a refusal to bargain within the meaning of Section 8(a)(5)." Foreign Car Center, supra at 320. The rationale for this position is as follows: The Board has held that it will not certify a one- man unit because the principal of collective bargain- ing presupposes that there is more than one eligible person who desires to bargain . The Act, therefore, does not empower the Board to certify a one-man unit. By parity of reasoning, the Act precludes the Board from directing an employer to bargain with respect to such a unit. The Board's policy as expressed in Foreign Car Center dictates the outcome of the instant situation and compels the conclusion that the Operating Engineers does not enjoy majority status in an appropriate unit of Respond- ent's employees. Accordingly, the Respondent's repudi- ation of the contract and refusal to recognize and bargain with the Operating Engineers do not constitute conduct that the Board will redress under Section 8(a)(5) and (1) of the Act. Therefore, the allegations in the instant com- plaint addressed to that conduct must be dismissed. B. The Laborers and Carpenters In 1978, NIBCA renegotiated 3-year master agree- ments with the Laborers and Carpenters effective to May 31, 1981. However, as mentioned above, Respond- ent's contracts with these Unions terminated in May and June 1978, respectively. Since that time Respondent has not signed a written agreement with either labor organi- zation. However, from 1978 to September 3, 1981, Respond- ent chose to follow a number of the provisions in the La- borers and Carpenters master contracts. Thus, the record shows that Respondent continued to employ union mem- bers exclusively and with some exceptions, assigned them to tasks that fell within the jurisdiction of the employees' respective craft unions . There is also evidence that the Respondent utilized the services of the Unions' hiring halls to obtain the services of Laborers and Carpenters on at least several occasions.9 In addition, Respondent continued to pay wages in accordance with contractual pay scales. In fact, when the master agreements provided for increased wage rates for Laborers from $10.45 to $11.40 in June 1980 and from $11.93 to $12.83 for Car- penters, Respondent followed suit with identical rate in- creases for employees belonging to each Union. More- 9 Employee Reichart stated that he was referred to Respondent by the Laborers business agent. In addition, I credit the testimony of Carpenters Business Agent Herb Hayen, who recalled that he received occasional telephone calls between 1978 and 1981 from the Respondent requesting that carpenters be referred . Johnson denied that he utilized the services of the hiring hall, but he acknowledged that his superintendents, who were members of the Carpenters, also hired employees. Therefore, it is possible that he might be unaware any of them had called the hiring hall. (See also infra, fn. 21.) over, Respondent paid wage rates to certain of its super- intendents that were consistent with requirements in the Carpenters contract. Thus, the 1978- 1981 master agree- ment provided that Carpenters foremen were to receive not less than 7 percent per hour over journeymen's scale or .835 cents from 1979 to 1980 and .898 cents over scale the following year. In compliance with this provision, Senior Carpenters Foremen Jacobs, Kehl, and Seefeldt received $ 1 an hour over the contractual rate for jour- neymen. Similarly, Respondent made regular contribu- tions to the Laborers and Carpenters fringe benefit funds (welfare, health, pension, and vacation) on behalf of its employee-members. The Respondent also paid to each Union a working dues assessment based on a small per- centage of each employee's hourly rate as provided by the collective-bargaining agreements. Respondent's last working dues assessments or payments into the funds was in September 1981. The record further establishes that Respondent paid staff carpenters and laborers over- time rates in accordance with the master agreements; Carpenters received double time ; laborers, time and one- half. Employees also received showup pay as provided in the contract; that is, several hours pay for appearing on the job when conditions, such as inclement weather, pre- vented them from working a full day . t ° In addition, car- penters received special shift pay for hours worked other than the regular 8-to-4 :30 daytime shift as specified in the contract. Another indicator of adherence to the terms of the master agreement stems from Respondent's participa- tion in a June 1981 meeting with Carpenters Business Agent Hayen and Laborers Business Agent Planthaber, at which a dispute was resolved involving a Carpenters employee usurping work that rightfully fell within the Laborers jurisdiction.) t Respondent's conduct during the summer of 1981 sheds further light on its subjective intent regarding its collective-bargaining obligations . As will be discussed in greater detail below, between May and September 1981, Johnson commented to employees on various occasions that the Company was either going or thinking of going nonunion . He asked employees how they would react to this and also inquired whether they would agree to work with nonunion personnel. The Respondent explained that its comments came during a bleak economic period when it was losing jobs in competitive bidding to nonunion contractors. Respondent decided that to make ends meet it had to hire employees at wages lower than the rates paid to its current work force. During the same time period, Johnson met with union representatives in part to explore entering into new collective-bargaining arrange- ments. Finally, on September 3, 1981, Respondent noti- fied the Union that they no longer represented a majori- ty of Garman employees and, in effect, withdrew recog- nition from the Laborers and Carpenters. 10 Respondent implied that it was unaware that its employees received showup wages. Because someone in authority had to release the employ- ees for the day and because Johnson had intimate knowledge of the eco- nomic aspects of the business, I find Respondent's attempt to deny knowledge of the showup pay practice not worthy of belief. I I Respondent's denial of this incident will be discussed below. 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I The position of the parties The General Counsel acknowledges that the Respond- ent effectively withdrew from NIBCA in 1978 when the Association negotiated new collective-bargaining agree- ments with the Carpenters and Laborers. However, based on the employment practices described above, the General Counsel submits that the Respondent impliedly adopted the 1978-1981 Laborers and Carpenters master collective-bargaining agreements with NIBCA There- fore, when these contracts expired in 1981, Respondent had a continuing duty to recognize and bargain with the Unions Instead, the General Counsel maintains that be- ginning in late spring 1981, the Respondent embarked on a course of conduct designed to induce the employees to withdraw their membership in and support of the Unions to which they belonged The Respondent's summer-long antiunion campaign culminated with its September 3 let- ters announcing that it was withdrawing recognition. It was at this point in time that Respondent ceased making payments to the Unions' trust funds, began hiring non- union employees, and assigned workers to tasks without regard to their former craft jurisdictional lines The Gen- eral Counsel contends that these and other unilateral al- terations in the terms and conditions of employment, as well as the Respondent's withdrawal of recognition and refusal to bargain, violate Section 8(a)(5) and (1) of the Act. Respondent denies that it adhered to or was bound by the terms of the collective-bargaining agreements with the Laborers and Carpenters. Instead, Respondent main- tains that its conduct demonstrated the reverse proposi- tion; that is, that its actions negated a collective-bargain- ing relationship with either Union. Respondent further contends that neither the Carpenters nor the Laborers represented a majority of employees in their respective craft areas.12 However, in an effort to resolve its contro- versies, Respondent claims it met and bargained with representatives of the Carpenters and Laborers in the summer of 1981, but that these negotiations resulted in an impasse so that the issuance of a bargaining order in this case would be futile. In light of the parties' conflicting positions, the out- standing issues in this case are as follows (1) Whether the Respondent followed a course of conduct which manifested its intent to be bound by the terms of collec- tive-bargaining agreements with the Carpenters and La- borers; (2) whether the Carpenters or the Laborers en- joyed majority support among Respondent's employees and (3) whether the Respondent and the Unions bar- gained to impasse. 2. Adoption of the union contracts In support of the position that the Respondent's con- duct gave rise to agreements implied by law, the General Counsel relies principally on Vin James Plastering Co., 226 NLRB 125 (1976); Haberman Construction Co., 236 12 Respondent also asserted in the representation proceedings that a single-bargaining unit composed of all its employees was the only appro- priate one The Regional Director found that the evidence warranted a different conclusion and, accordingly, held in his Decision and Order that separate craft units were appropiate NLRB 79 (1978), 13 and Remodeling by Oltmanns, 263 NLRB 1152 (1982) Although the factual patterns in these cases vary, they follow a uniform analytic ap- proach Each case starts with the premise that the exist- ence of a labor agreement does not turn on strict common law contract principles or on a reduction of an agreement to writing. Rather, in determining if there is a binding contract, the Board asks whether the employer has manifested an intention to adhere to the collective- bargaining agreement in question and then looks to the employer's conduct to determine whether it manifests that intention. If it does, the terms of the contract have binding effect and the employer is estopped to assert the absence of a formally executed agreement Vin James Plastering Co., supra at 131, Haberman, supra at 86 With these principles in mind, the administrative law judge found in Vin James that the following conduct gave rise to an implied agreement: (1) Wages were paid according to the contract scale, (2) Trust fund and other benefit contributions were made in the amount and manner set forth in the contract. Further, these payments were made on forms stating "this report is evidence of an intention to comply with Article 11 of the collective- bargaining agreement." (3) The employer adhered to the dues-checkoff provisions in the contract, (4) The em- ployer usually called on the union representative; (5) With one exception; the employees were union members; (6) The employer implied to the union that it would sign a collective-bargaining agreement; (7) Although the em- ployer was never a member of a multiemployer associa- tion, it was identified as an employer in contracts prior to the one at issue; (8) The employer was familiar with the terms of the contract and was present during the ne- gotiation of an earlier contract between the multiemploy- er association and the union, (9) In attempting to_ with- draw recognition, the employer acknowledged that it had voluntarily abided by the terms of the agreement. On this record, the administrative law judge concluded that Vin James "manifested an intention to adopt and be bound by the agreement and, consequently, is estopped" from asserting as a defense the fact that it had not en- tered into a formal written agreement with the union Although the term estoppel is relied on in Vin James, the traditional common law principles of equitable estop- pel need not be present for the Board to find an employ- er bound to the terms of an agreement.14 Rather, an in- spection of the case law suggests that the Board applies the estoppel principle in situations where it finds that an employer had derived some benefit from its adherence to a labor agreement.15 In the Board's view, when an em- 13 Affil 618 F 2d 288 (5th Cir 1980), modified on rehearing 641 F 2d 351 (5th Cir 1981) 14 See NLRB v J D Industrial Insulation Co, 615 F 2d 1289 (10th Cir 1980), in which the court observed that the formal doctrine of equitable estoppel requires a showing by the party claiming the benefit of the es- toppel of (1) lack of knowledge and of the means to obtain knowledge of the true facts, (2) good-faith reliance on the misleading conduct of the party to be estopped, and (3) detriment or prejudice from such reliance is Cf FML Supply, 258 NLRB 604, 614 (1981), in which the admin- istrative law judge found purposeful deception by the employer as a ground for invoking the traditional estoppel doctrine However, the ad- ministrative law judge made clear that deception was only one among a number of factors that the Board may consider in contract adoption cases GARMAN CONSTRUCTION CO 97 ployer obtains an advantage by virtue of a contractual relationship, he should thereafter be foreclosed from de- nying that relationship when it entails burdens as well For example, in Vin James, supra at 129, the administra- tive law judge cites Marquis Elevator, 217 NLRB 461, 466 (1974), in which the Board stated that "here as in Manner Research, Inc the continued utilization of the welfare, pension and educational funds, the use of the Union as a source of employees and for the settlement of grievances, `demonstrate the existence of a continuing re- lationship between the Respondent and the Union "' In an earlier case, Lewis et al. v. Cable et al., 107 F Supp. 196, 197-198 (W D. Pa. 1952), the District Court stated: "Defendant cannot by his acts and declarations pretend to be bound by the agreement so as to prevent strikes and repercussions and then, when full liability under said agreement is asserted seek to disaffirm it." Similarly in Haberman, supra, 618 F.2d at 294-295 fn. 2, the court found persuasive grounds to enforce a contract in "the fact that respondent both enjoyed the benefits of the con- tract and abided by its provisions." The Board found in Haberman, supra, 236 NLRB at 79, that although the employer's adherence to the con- tract was not as extensive as that identified in Vin James, in its totality it was sufficient to show compliance with the terms of an outstanding collective-bargaining agree- ment There, the employer (1) contributed to the union's pension funds, (2) used the union as a source of employ- ees; (3) maintained job stewards ; (4) paid union scale wages and abided by the holidays set forth in the con- tract, (5) stated that it had decided to go "open shop" thereby implying that it considered itself a union con- tractor; (6) used union members exclusively, and (7) sought the union's consent to start the working day an hour earlier than mandated under the contract. Remodeling by Oltmanns, 263 NLRB 1152 (1982), pre- sents facts strikingly similar to those present in the in- stant case. In affirming the administrative law judge, the Board agreed that even where the employer had never seen the collective-bargaining agreement and his knowl- edge of the contract was limited to that derived from his union employees, he nevertheless created a bargaining relationship by complying with a number of provisions in the agreement over a 6-year period For example, the employer paid contractual wage and fringe benefits not including travel expenses or showup wages; hired only union members and turned to the union hiring hall on at least one occasion. Additionally, the work shift and holi- days to which the employer adhered were those set forth in the contract. The conduct outlined above was suffi- cient to support the administrative law judge's conclu- sion that Oltmanns adherence to contractual terms dem- onstrates (id. at 1160) . . . "the existence of a continuing relationship be- tween Respondent and the union." . . . Also, at all times, Respondent considered itself to be a union contractor. In this regard, I note that Respondent never disavowed its bargaining relationship with the Union and do not accept Oltmanns' less than candid explanation-that he meant only that Respondent paid the Union's prevailing wages and fringe bene- fits and nothing more Finally, the fact that Olt- manns had no contact with union officials subse- quent to June 30, 1971, is of little significance inas- much as, by Oltmanns' own admission, Respondent honored virtually all consequential provisions of the Union's contracts with the Association and institut- ed all requested changes in fringe benefits contribu- tions. Parallels between Remodeling by Oltmanns and the present case abound As in Oltmanns, Garman honored many of the "economic and several of the non-economic provisions of the Union's successive collective-bargaining agreements with the Association" manifesting an intent to be bound thereto. Ibid. As noted above, Garman con- tributed to the Unions' pension funds, used union mem- bers exclusively in accord with recognition clauses in the collective-bargaining agreements, obtained referrals, albeit infrequently, from the Unions, paid union wage scales, including overtime and special rates for job super- intendents, paid showup wages, working dues assess- ment, and overtime rates as called for in each Union's collective-bargaining agreement. Garman's assignment of employees to work along craft lines, its exclusive use of union employees in accordance with the recognition clause, its observation of the working hours provided for in the agreement, and its resolution of a jurisdictional dispute in accordance with the grievance provisions of the contract all signify compliance with the collective- bargaining agreements' noneconomic provisions The conclusion in Remodeling by Oltmanns that "Respondent considered itself to be a union contractor" and that "it never disavowed its bargaining relationship with the Union" is equally applicable to the circumstances of this case. Ibid. It is apparent that Garman would not tell its employees that it intended to go nonunion, would not identify its competitors as nonunion contractors, and would not withdraw recognition from the employees' bargaining representatives unless it considered itself to be a union contractor Moreover, here, as in Oltmanns, Re- spondent never affirmatively disclaimed a collective-bar- gaining relationship with either Union until issuing its September 3 letters In this regard, I note that Nampel did not contradict Business Agent Collier's testimony that they often met at jobsites Significantly, there is no suggestion in the record that during such encounters, Nampel clarified Respondent's position concerning the cessation of its collective-bargaining obligations. The fact that the Respondent failed to sign and return participa- tion agreements sent by the Laborers does not indicate, as Respondent contends, a repudiation of a collective- bargaining relationship. In spite of its failure to execute those agreements, the Respondent continued to make monthly contributions to the Unions' fringe benefit funds. In these circumstances, Respondent's implementa- tion of many terms in the master agreements between MARBA and the Carpenters and Laborers demonstrates the existence of a continuing relationship between Garman and those Unions. 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. Respondent's Defenses The Respondent's principal argument is that aside from paying wages comparable to area union rates and making contributions to the Unions' fringe benefits funds, it observed none of the other provisions of the multiem- ployer agreement; it neither intended to nor did it in fact conform its behavior to any collective-bargaining agree- ment . Thus, Garman points out that it did not utilize the Union's hiring hall, did not hold prejob conferences with union representatives, did not have onsite job stewards, and subcontracted to nonunion firms. The Respondent further contends that the Union abandoned its members by failing to police the agreement or holding the Re- spondent accountable for its breaches. The Respondent's first contention-that its only adher- ence to the contract was the payment of union scale wages and fringe benefit contributions-is flatly contra- dicted by a record which demonstrates implementation of numerous key provisions. Further , it is not critical that an employer follow every condition of a labor con- tract in order to conclude that a collective-bargaining re- lationship is established. It is sufficient that the Respond- ent honored many of the economic and several of the noneconomic terms in the Unions' collective-bargaining agreements with MARBA. See Remodeling By Oltmanns, supra at 1160. Respondent's contention that the Union abandoned its employees also has no merit The Laborers field repre- sentative, Collier testified without contradiction that he frequently visited Garman jobsites where he often en- countered Respondent's vice president, Nampel. Carpen- ters Business Agent Hayen also testified credibly that he spoke with Johnson on several occasions between 1978 and 1981 .16 Neither does the fact that grievances were not processed prove abandonment. Both the Laborers and Carpenters business agents testified that no griev- ances were filed by Garman employees during the time period in question when a problem affecting the assign- ment of an employee arose. Because the Respondent was paying wages according to union scale, forwarding timely and proper contributions to the fringe benefits funds, and in the absence of employee complaints, "there really was no need for contact between the parties to ef- fectuate the bargaining 'relationship." Remodeling by Olt- manns, supra at 1160-1161. Thus, although the record may show some evidence of neglect and less than assidu- ous attention to the enforcement of their agreements, the Unions' conduct falls far short of abandonment. The Respondent further contends that it paid union wages and contributed to the trust funds solely to retain the services and loyalties of competent employees. By 16 Johnson generally denied having any contacts with either Union other than acknowledging receipt of four letters received from Laborers Business Agent Planthaber However, Johnson also denied having ob- tained the services of any employees through the Laborers Local, testi- mony that was convincingly refuted by several employees If the Re- spondent contacted the Laborers for referrals it is equally likely that simi- lar contacts were made with the Carpenters, just as Hayen alleged Fur- ther, employee Ken Hudson, who impressed me by his demeanor as a trustworthy witness, testified that Hayen occasionally visited Garman jobsites Given corroboration of Hayen's testimony in this regard, there is no reason to disbelieve his testimony regarding other contacts with Re- spondent this statement, Respondent, perhaps inadvertently, ac- knowledges that it obtained an advantage in adhering to the terms of the union contract: it understood that it had to comply with the labor agreement to attract and retain skilled union craftsman in its employ. Where, as here, an employer clearly benefits from its partial adoption of a contract, there is good reason to estop him from denying that he is not a party to the entire agreement. See Vin James, supra; Haberman, supra at 86 Respondent also asserts that no legal consequences should attach to its payments to fringe benefit funds be- cause such contributions were unlawful in the absence of a signed agreement as required by Section 302(c)(5)(B) of the Act. 17 Respondent's argument is premised on Moglia v. Goeghegan, 403 F.2d 110 (2d Cir. 1968), cert. denied 394 U S. 919 (1969), in which the court held that a written agreement is necessary before payments may be made under that section. The same argument was consid- ered and rejected in Vin James Plastering Co., supra at 131. There, the administrative law judge held that the requisite written agreement-the contract between a con- tractors association and the charging party union-did exist and satisfied the requirements of Section 302. In Vin James, as here, the administrative law judge noted that counsel for Respondent was arguing not so much that there was no writing rather than that employer was not a signatory to or bound by the writing in question. How- ever, as in Vin James, I conclude that the Respondent adopted the written master contract and is bound by its terms. It is that agreement and related documents that fulfill the requirements of Section 302(c)(5)(B). If the Respondent's compliance with the contractual wage scales or payments to the trust funds were the only indicia of its adherence to the master agreement, such conduct would not, standing alone, suffice to demon- strate the existence of a collective-bargaining relation- ship. See Haberman Construction Co., supra at 86. But as the record evidence in this case clearly establishes, Re- spondent's adherence to the terms of the master agree- ments with the Laborers and the Carpenters went well beyond a bare minimum. Based on the foregoing, I con- clude that the Respondent engaged in a course of con- duct from 1978 to May 31, 1981, which manifested an adoption of collective-bargaining agreements with the Carpenters and Laborers Consequently, when these agreements expired, Respondent was obliged to continue recognizing and bargaining with those Unions and to maintain the terms and conditions of employment that were in effect on September 3, 1981, unless, as the Re- spondent contends, the Unions did not represent a major- ity of Respondent's employees in their respective craft units or the parties reached impasse in bargaining i Sec 302(c)(5) states It shall be unlawful for any employer to pay any money [to a trust fund] (c) The provisions of this section shall not be applicable with re- spect to money paid to a trust fund specified in a written agree- ment with the employer and employees GARMAN CONSTRUCTION CO 1 The Laborers majority Respondent contends that it had reason to doubt the representative status of the Laborers Union, based on its belief that three employees, Richart, Lott, and Farrar, had withdrawn from the Local at the time it sent its Sep- tember 3 letter stating the Union no longer had majority support from Garman employees 18 On the expiration of a contract, an employer may refuse to bargain with a union that it reasonably believes no longer represents a majority of the employees. Lehigh Lumber Co, 230 NLRB 1122, 1128 (1977), affd 577 F.2d 727 (3d Cir. 1978), cert denied 439 U.S. 928 (1978), Cre- ative Engineering, 228 NLRB 582 (1977). This is true, however, only if the assertion of a reasonably grounded doubt of the union's continued majority status arises in a context free of unfair labor practices, where the loss of majority status does not arise from the employer's own unfair labor practices,19 and where the objective facts on which the employer relies are known at the time the doubt is asserted 20 See Frank Bros., 321 U.S. 702, 704- 705 (1944); NLRB v. Superior Fire Proof Door, 289 F.2d 713, 719 (2d Cir. 1961); Impressions, Inc, 221 NLRB 389, 403 (1978). Thus, as a threshold matter, it is necessary to determine whether the Respondent engaged in the mis- conduct giving rise to allegations of 8(a)(1) violations 2 Allegations of restraint, coercion, and interference A number of allegations in the complaint concern comments made by Johnson and Nampel to various em- ployees that the Company was going "non-union," or thinking of going nonunion or inquiring of the men whether they would be willing to work together with nonunion labor. One such discussion took place in late May or early June with employees Moore, Lemayer, and Simler together with a laid-off employee, Larry Watson. Johnson admitted asking these employees how they would react to working together with nonunioh person- nel. Simler responded, "I don't think there's any way I'm going to drop my [union] card It took me too long to get it " Moore raised a question about how the employ- ees would be covered by insurance, to which Johnson replied that there were plenty of insurance plans avail- able He added, "I'm sure we could get equal or better than what we are paying into the funds now." Nampel mentioned that he had "a stack of applications from non- union men and we're going to give serious consideration to hiring some of them " Watson, who had been out of work for 9 months by this time, commented that the Union had failed to place him. Johnson rejoined, "Right, what does the Union really do for you?" On another occasion in early June, Johnson made simi- lar comments to employees Timm and Lott in the pres- 's The Respondent continues to claim that the appropriate unit is one comprised of all its construction employees The Regional Director re- jected this argument, ruling instead that craft units were appropriate I rely on the Regional Director's decision as law of this case 19 Computer Sciences Corp, 236 NLRB 266, 279 (1978), affd 598 F 2d 613 (4th Cir 1979), Pioneer Inn Associates, 228 NLRB 1263, 1265 (1977), affd 578 F 2d 835 (9th Cir 1978) 20 Dayton Motels, 212 NLRB 553, 556 (1974), affd 525 F 2d 476 (6th Cir 1975) 99 ence of Supervisor Kehl. Kehl and Lott both testified that Johnson told them that the Company wanted to go "non-union"; and that a program with fringe benefits, pension, and insurance funds would be established as good or better than those that the Union was offering At some point during this exchange, Johnson asked Timm what the Union had done for him. Hudson, a carpenter employed by Respondent from 1976 to August 1981, reported taking part in a similar conversation with Johnson and Nampel in mid-June. Hudson recalled that Johnson said the Company was going nonunion; "that it was up to us [the employees] if we wanted to go along and that they would pay us key men . . . union scale and a better health and welfare plan than we had now." Nampel again alluded to the fact that he had a stack of applications in the office sub- mitted by nonunion carpenters. Moore, Simler, and Lott were involved in still another of these conversations in mid-July On this occasion, Bill Nampel told them that Respondent would have to go nonunion, and added once again that he had applications stacked high from carpenters who were out of work The Respondent submits that its consideration of hiring nonunion labor and its inquiries to its employees whether they would accept such a situation came about because the Company was in financial difficulty having lost a few contracts to nonunion competitors. Conse- quently, Respondent believed that it had to effect cost savings by hiring nonunion labor at low wages. Howev- er, the Respondent insists that its, decision to hire non- union employees posed no threat to the union member- ship of its current employees. In fact, Johnson testified on several occasions that he assured employees he had no interest in whether they retained their union member-, ship and guaranteed that their wages would remain the same. The Respondent's disclaimers of any intent to interfere with its employees' support for or membership in the unions to which they belonged are unconvincing. On considering the numerous discussions which Johnson and Nampel initiated, it becomes clear that their -comments about the Company going nonunion were designed to bring about the employees' abandonment of union mem- bership.21 Johnson had 12 years' experience, first as a bookkeeper, then as vice president, and finally as presi- dent of Garman. For much of this time, Respondent was affiliated with a multiemployer bargaining association, had collective-bargaining relationships with five craft unions and employed union members exclusively. Nampel had even more exposure to union requirements 21 The true measure of Respondent's intentions with respect to its em- ployees retaining their union affiliation is revealed in a letter that Johnson sent on July 12, 1982, to an organization , Americans Against Union Con- trol He wrote, inter alia "the National Labor Relations Board in Wash- ington have the cases and as you can see we need support in any way possible We feel that we have contributed both monies and information that can be used for future contractors to break away from union organi- zations " Johnson testified under oath that he wrote this letter merely to respond to a request for a political contribution His attempt to disguise the antiunion purpose of this letter merely confirms the conclusion he was a biased witness who tailored his testimony to serve Respondent's interests 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD than did Johnson, for until several years before he became an owner of the Company, he was a member of the Carpenters Union In light of their experience, they had to know that their union employees were not permit- ted to work on the same job with nonunion labor. There- fore, asking their present personnel if they would be willing to work with nonunion labor hardly had an inno- cent purpose The real question they were posing was whether the current employees would rather forfeit their union membership or forfeit their jobs. If Respondent's officers had no reason to believe that working with non- union labor would have adverse consequences for union members, then there was no reason to ask their ques- tions The employees certainly had little difficulty in per- ceiving the thrust of Respondent's inquiry. When the matter was put to Simler, his immediate response was that he would not drop his union card His reaction was a non sequitor unless it was understood that by employ- ing nonunion labor, union members were being asked to forgo union membership. Another employee, Lott, testi- fied that while he was not an expert on the Union's regu- lations, he at least knew that "a nonunion worker can't work beside union workers." It is inconceivable that Johnson and Nampel were unaware of a fundamental fact known to all of their employees Johnson and Nampel also were well aware that all current staff mem- bers belonged to one union or another. In raising the specter of hiring nonunion labor, they were, at the very least, implying that the Unions' majorities would be di- luted if not destroyed, thereby jeopardizing their repre- sentative status. Under any circumstance, Respondent's remarks exercised undue interference with and, restraint and coercion of the employees in violation of Section 8(a)(1) of the Act. It is equally clear that Johnson' s assurances that the Company could provide insurance and health plans equal to or better than those currently covering the employees were tantamount to promises of benefits offered in an ob- vious effort to woo the employees away from the Unions Conversely, the employees could hardly misun- derstand the portent of Nampel's references to stacks of employment applications on hand. Taken in context, such comments implied that if the employees chose not to acquiesce to the Respondent' s plan to become a non- union shop, they could be readily replaced By juxtapos- ing threats to the employees' job security with induce- ments to repudiate the Unions, Respondent violated Sec- tion 8(a)(1) of the Act. See NLRB v. Exchange Parts Co., 375 U.S 405, 409 (1964) I do not agree with the Gener- al Counsel, however, that Johnson's remark to Watson, "what has the Union done for you" rises to the level of impermissible interrogation. It was simply an offhand re- sponse to Watson's observation that the Union had been unable to place him. However, when Johnson repeated this same comment to Timm in a subsequent exchange, it was gratuitous and unlawful. Paragraphs 10(b) and (c) of the consolidated complaint allege that Johnson unlawfully asked an employee if he was dropping out of the Union and conveyed the impres- sion that his recall from layoff status was conditioned on his cessation of union membership. In support of these allegations, Michael Richart, who was in Respondent's employ at the time of the instant hearing, testified that in early September 1981, while on layoff status, he heard rumors that the Company was going nonunion and learned that new nonunion employ- ees were hired recently. Acting on this information, he sought out Johnson and asked why he was still laid off. Johnson told him there was a lack of work but that he might be coming back within a week or so. At this, Ri- chart volunteered to Johnson that he might drop out of the Union Not more than 30 minutes after his meeting with Johnson, Richart received a telephone call from Garman's secretary asking that he return to the office. Richart returned and met with Johnson who asked him what his plans were. When Richart again said he was thinking of dropping out of the Union, Johnson asked to see proof of his withdrawal. He then mentioned that he had a new job and that Richart could start to work the following Monday. In response to the General Counsel's question of whether his submitting proof to Johnson had any bearing on his return to work, Richart answered, "At the time, it just kind of seemed that maybe that would . reflect whether I came back to work or not but I can't say for sure." Richart did return to work shortly thereafter and explained to Johnson that he forgot to bring a copy of the letter with him regarding his withdrawal from the Union. The matter was not raised again . In fact, at the time of his rehire, Richart was 3 months in arrears with his union dues payments. However, the Union advised him that he need do noth- ing about his payments until the instant unfair labor prac- tice proceedings concluded The General Counsel submits that Johnson's inquiry about Richart's plans was designed to elicit his intentions regarding his union membership and that the entire inci- dent conveyed to Richart the impression that his rehire was contingent on repudiating that membership. The Re- spondent counters that Richart volunteered the informa- tion that he failed to pay his union dues. Further, be- cause Richart was paid his former wage rates on his return and rehired subsequent to the date the Respondent sent the September 3 withdrawal letter to the Union there was little reason for Respondent to be concerned whether Richart retained his affiliation with the Labor- ers. An employer is, of course, free to make reasonable in- quiries Section 8(c) of the Act, implementing the consti- tutional guarantee of free speech, guarantees that no ex- pression of any view shall be evidence of an unfair labor practice so long as such expression contains no threat of reprisal or promise of benefit. But the Supreme Court has recognized that balancing the right of employees to associate freely against the employer's right of free speech, "must take into account the economic depend- ence of the employees on their employers and the neces- sary tendency of the former, because of that relationship, to pick up intended implications of the latter that might more readily be dismissed by a more disinterested ear" NLRB v. Gissel Packing Co, 395 U S. 575, 617 (1969). Within this framework, a trier of fact would have to be extremely naive to accept the gloss that Respondent GARMAN CONSTRUCTION CO attempts to put on Johnson 's remarks to Richart . Richart did not simply spontaneously offer information about his union membership as Respondent contends . Rather, he had good reason to believe that a lapsed union member would be far more acceptable to the Respondent than would one whose adherence to the Union was unshakea= ble, since he knew from a coworker, Lott, of Respond- ent's interest in going nonunion and was aware that sev- eral nonunion men had just been hired. When Johnson asked him about his plans, Richart understood precisely what Johnson meant, responding immediately with infor- mation about his intent to withdraw from the Union. Ri- chart's somewhat reluctant admission that he perceived a relationship between his forfeiture of union membership and his rehire is particularly persuasive because at the time that he gave his testimony he was in Respondent's employ 22 Further, the rapidity with which Richart was offered reemployment, only 30 minutes after he assured Johnson that he would abandon the Union, gives rise to a strong inference of a causal effect between that aban- donment and his return to work. Johnson's explanation why he requested documenta- tion from Richart is more than suspicious; it is so implau- sible as to cast doubt on his entire testimony . It strains credulity to believe that Johnson simply wanted such proof for his office records. It must be born in mind that, at this time, the Respondent was on the verge of litiga- tion in which its claim that the Laborers no longer repre- sented a majority of employees was a critical issue. A withdrawal letter from Richart clearly would have evi- dentiary value. Thus, rehiring Richart at his former wage rate was a small price to pay in return for his withdrawal from the Union. 23 In sum, I do not believe that John- son's dialogue with Richart was innocent . In the confines of the employer-employee relationship present here, Johnson clearly engaged in a variety of coercive tactics including subtly relaying to Richart that his rehire was a reward for withdrawal from the Union. By such con- duct, Respondent violated Section 8(a)(1) of the Act The complaint alleges that the reinstatement of an- other employee, Farrar, also was conditioned on his withdrawal from the Laborers Union.24 Farrar testified that he was called back to work from layoff during the week of September 23. On his first day back to work Johnson asked Farrar if he belonged to the Union. Farrar replied that he had not paid any dues and there- fore assumed he was no longer a member. On hearing this, Johnson laughed and told Farrar to go to work Based on these facts, the General Counsel asserts that Respondent unlawfully interrogated Farrar and led him to believe that his employment was a consequence of his having dropped out of the Union. 22 See, e g , Parkview Acres Convalescent Center, 255 NLRB 1164 (1981), Motz Poultry Co, 244 NLRB 573, 575 fn 7 (1979) 23 Respondent hoped to reap economic advantages not only by retain- ing its staff at current wages while pay scales in the collective-bargaining agreements rose , but also by hiring nonunion labor at greatly reduced rates of pay 24 Farrar was first employed in 1978 when he was referred to theRe- spondent by the Laborers business agent During periods of layoff, Farrar worked for himself and returned to Garman when he saw fit 101 No explication is needed in order to conclude that Re- spondent's questioning Farrar about the status of his union membership was impermissible interrogation. However, the record does not support the General Counsel's contention that the Respondent led Farrar to believe that reemployment was a consequence of his having dropped out of the Union. There is no evidence that Farrar's recall was in any way related to his union status, for he was recalled before his conversation with Johnson occurred. Moreover, I draw no inference from the ambiguous fact that Johnson smiled and sent Farrar to work when told of his lapsed dues payments Paragraphs 10(i) and (k) of the amended complaint ac- cused the Respondent of encouraging , preparing or spon- soring the circulation of two decertification petitions. Carpenters Cliff Jacobs and Ken Hudson testified about one such petition circulated by a carpenter-superintend- ent, Harry Seefeldt Both Jacobs and Hudson recalled that they were working with Seefeldt at a jobsite when Johnson drove up and summoned Seefeldt to his car. After speaking privately with Johnson for several min- utes, Seefeldt rejoined Jacobs and Hudson and showed them a letter he had in hand that stated in substance that the signer no longer desired representation by the Car- penters Local. In a pretrial affidavit dated November 12, 1981, See- feldt, who is now deceased, offered a different version of this incident. According to him, sometime in June 1981, Johnson spoke to him of the Company's difficulties with nonunion competition and of his interest in hiring non- union workers. After assuring Seefeldt that his wages would be unaffected, Johnson asked him whether he would work with nonunion personnel. Seefeldt said he would do so, notwithstanding the fact that he considered himself a card-carrying carpenter in good standing who had held various offices with the Local. When Johnson asked how the other workers might feel, Seefeldt alleg- edly offered to prepare and circulate a letter that would assess their views, but told Johnson he had no way to go about it Seefeldt next attested that he asked Johnson's secretary to type a petition for him. She did so and gave it to him. He recalled vaguely that the message on the petition was that the signer would agree to work with nonunion personnel. He showed the petition to his fellow carpenters but neither of them chose to sign it. Seefeldt denied in his affidavit that he told anyone else that John- son had given him the petition. Seefeldt's denial as to the source of the letter was un- convincing It was perfectly clear to Jacobs and Hudson that only Johnson could have been responsible for deliv- ering it to Seefeldt at the worksite. Jacobs, who de- scribed himself as a very close buddy of Seefeldt for 40 years, was certain that Seefeldt received the letter from Johnson He maintained that if Seefeldt had the letter with him prior to Johnson's arrival, he undoubtedly would have shown it to them Moreover, Jacobs was certain, based on his lengthy association, that Seefeldt could neither have initiated nor carried out the prepara- tion of such a document I am persuaded not only by Jacobs' friendship with and intimate knowledge of See- feldt's traits but also by the forthright manner in which 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he testified that his and Hudson's testimony should be preferred to Seefeldt's affidavit or Johnson's denial of in- volvement with the petition. Accordingly, I hold Re- spondent liable for the preparation and distribution of the decertification petition under the auspices of its agent, Seefeldt.25 Such activity, of course, violates Section 8(a)(1) of the Act See Lehigh Lumbering Co, supra, 230 NLRB at 1128; Federal Pacific Electric Co, 203 NLRB 571 (1971), enfd. and remanded 499 F.2d 542 (D C. Cir 1974) The General Counsel also charges that the Respondent encouraged an employee, Lott, to prepare.and circulate a second decertification petition. Lott, who was initially employed as a laborer, testified that in early June 1981, Johnson mentioned to him that he might be hiring non- union help and asked whether he and other laborers would complain about this. Lott replied that it made no difference to him but offered to get the opinion of his co- workers noting he could not make such a decision on his own. Thereafter, Lott asked the office secretary to type a letter that stated that the workers whose signatures he intended to collect on the letter were willing to work with nonunion employees. Lott testified that he did not believe Johnson knew anything about the letter. Al- though Lott intended to present the letter to each of the laborers then employed by Respondent-Richart, Behl and Farrar, he in fact presented it only to Farrar 'a few days later. Farrar explained that he agreed to sign the document because he did not want to lose his job over the matter. Lott stated that he mailed the letter to the Board but that it was returned to him for want of a cor- rect address, whereon he simply destroyed it. Lott added that several weeks later he mentioned to Johnson that Farrar had signed a petition, but that the letter had been returned to him. In reliance on Kit Mfg. Co., 142 NLRB 957, 964 (1963), enfg. in part and setting aside in part 335 F.2d 166 (9th Cir 1964), the General Counsel submits that the Respondent is liable for setting in motion the process that led to the preparation and circulation of the petition His reliance on that case is misplaced. In Kit, the em- ployer expressly authorized and encouraged an employ- ee's circulation of a decertification petition. Here, Lott's testimony is uncontroverted that Johnson neither sug- gested that such a letter be drafted nor knew of Lott's efforts until after the petition had become a dead letter. Therefore, although Johnson acted improperly in asking Lott whether he would work with nonunion labor, I do not find on the basis of this record that he can be held responsible for encouraging Lott's subsequent course of conduct. In the latter part of September 1981, Johnson and Nampel, together with Respondent's counsel, Gerard Smetena, called a meeting of all current employees During the course of the meeting, Johnson explained the Company's actions with respect to filing decertification petitions with the Board, discussed the forthcoming hear- 25 Whether Seefeldt was a statutory supervisor or employee need not be determined here, for it is clear in this instance that his coworkers re- garded him as Respondent's agent See Airborne Air Freight Corp, 263 NLRB 1376 (1982) [enf denied 728 F 2d 357 (6th Cir 1984)], Aircraft Plating Co, 213 NLRB 664 (1974) rags, and then described the benefits the Company would offer in place of those that the Union previously provid- ed. Thus, he assured the workers they would continue to be covered by insurance, a dental program, health care, and retirement programs that would match or improve on the benefits that the employees currently had through their Unions. Respondent does not deny having made such state- ments. Rather, it argues that under the Act's guarantees of free speech, it was entitled to present to its employees valid reasons for rejecting union representation. Re- spondent further argues that at the meeting, assurances were given to the employees that no reprisals would be taken and no adverse consequences imposed based on their union membership or lack thereof. In contending that it was simply comparing union versus nonunion ben- efits to enable the employees to make a rational choice, Respondent relies on Dow Chemical Co., 250 NLRB 756 (1980), enforcement denied 660 F 2d 637 (5th Cir. 1981). There, the Board held that where decertification pro- ceedings were imminent, the employer could legitimately draw a comparison between wages and fringe benefits that it currently paid to its union as opposed to nonunion employees. Reliance on Dow Chemical is misplaced for Respondent misses a critical distinction between the facts in that case and those that obtain herein. In Dow Chemi- cal, the Board was addressing a situation in which the employer referred to preexisting, established practices in place for unrepresented employees on its payroll, where- as here, Respondent was merely engaged in speculation about what might become available. Eastern Washington Distributing Co., 216 NLRB 1149, 1154 (1975), correctly states an employer's obligation in these circumstances. Even if this had been an initial organization effort and there had been no union demand for recogni- tion or negotiations, Respondent would be under a legal obligation to refrain from using its economic power to influence the choice of its employees . . . The offer of the [new insurance] plan patently was intended to and did carry with it the clear message that the employees could avoid the necessity of paying union dues. It must also be recalled that prior to this meeting, the Respondent had engaged in a protracted campaign to un- dermine the employees' support for the Unions Re- spondent culminated its antiunion efforts by filing decer- tification petitions and by withdrawing recognition and refusing to bargain with the Unions to which its employ- ees belonged. Respondent's decision to test its bargaining obligations was made at its peril It could simply have filed decertification petitions without dangling before its employees the lures of increased benefits By its conduct, Respondent ran the risk of and did, in fact, violate the Act. Accordingly, I find that Johnson's and Smetana's descriptions of benefits that were unilaterally offered should the employees repudiate their Unions violated Section 8(a)(1) of the Act 26 26 Because no evidence was adduced to support par 8(g) of the com- plaint, that allegation shall be dismissed Some other allegations of 8(a)(1) Continued GARMAN CONSTRUCTION CO Respondent's misconduct, as described above, is not simply a series of isolated unfair labor practices Rather, as a whole, they created an atmosphere of insecurity in which employees understood full well that it was better to abandon the Union than lose their jobs The Respond- ent's course of conduct was by its very nature calculated to undermine the employees' support for the Union. Within this context, any loss of majority support for the Laborers must be traced directly to Respondent's unfair labor practices. Three laborers-Lott, Richart, and Farrar were immediate targets of Respondent's impor- tuning In these circumstances , Respondent cannot rely on its own misconduct to sustain its assertion that man- agement's professed doubt of the Union's majority rested on valid grounds. See Computer Sciences Corp, supra at 281; Lehigh Lumber Co., supra at 1128 Further, the Board insists that reasonable grounds for assertion of a good-faith doubt must be known to the em- ployer at the time the refusal to bargain occurred. See NLRB v. Tahoe Nugget, Inc., 584 F.2d 293, 301 fn. 25 (9th Cir. 1978), cert. denied 442 U.S. 921 (1979) Because Respondent withdrew recognition before it had certain knowledge of Farrar's or Richart's views toward mem- bership, their withdrawal cannot be relied on by the Re- spondent to support its professed doubt of the Union's majority status . It follows that the Respondent , having failed to demonstrate that the Laborers did not enjoy majority support among Garman employees, is obliged to recognize and bargain with the Local as its employ- ees' collective -bargaining representative. 3. The Carpenters majority By early September 1981, the number of Respondent's employees who belonged to the Carpenters Local was reduced to three-Seefeldt, Jacobs, and Moore 27 The Respondent contends that Seefeldt and Jacobs were su- pervisors as defined by the Act and, therefore, must be excluded from the bargaining unit. Consequently, the Re- spondent argues that because only one nonsupervisory member of the Carpenters remained on its staff, the unit was inappropriate and it was thereby released from any duty to bargain. The General Counsel maintains that Seefeldt and Jacobs did not exercise supervisory powers. However, even without including them in the unit, coun- sel submits that the reduction of force among Respond- ent's regular complement of carpenters was a temporary phenomenon. Therefore, the Union's majority is a con- tinuing one and the Respondent could not lawfully with- draw recognition It is well settled that the burden is on the Respondent to prove that the depletion in its ranks was permanent in nature. See Crispo Cake Cone Co., 190 NLRB 352 354 (1971), affd 464 F.2d 233 (8th Cir. 1972); National Dairy Products Corp., 127 NLRB 313, 314-315 (1960). In the circumstances of this case , it is clear that the Respondent violations set forth in the amended consolidated complaint may have been inadvertently omitted from the foregoing discussion -However, I do not believe it is critical to resolve additional allegations of misconduct be- cause to do so would be cumulative and would not materially affect the relief that I propose below 27 Kehl , a fourth member of the Carpenters Union, is an admitted su- pervisor 103 has not met its burden of proving that the reduction in its ranks was permanent. Putting aside the question of whether Seefeldt and Jacobs met the Act's criteria for supervisors, the record establishes that the Respondent's work force was always composed of more than one nonsupervisory carpenter prior to September, each of whom belonged to the Car- penters Union Indeed, so far as the records reveal, the only time that Respondent's work force fell to a single carpenter was during this brief and volatile period in September.28 Thus, in 1980, the Respondent had a stable work force, which averaged 10 carpenters, excluding the alleged supervisors In 1981, this number gradually dwin- dled from a high of nine in January to a low in August of three-Hudson, Timm, and Moore.29 Prior to the lay- offs of Hudson and Timm, the record evidence estab- lishes that these three had been in Respondent's employ on a steady basis since at least 1978 However, the Re- spondent insists that its employees were terminated, not laid off, so that when Timm and Hudson were dismissed with no expectation of recall, only one nonsupervisory employee, Moore, remained. The evidence shows that this low-water mark was of short duration. By the latter part of September and early October, at least two new workmen had been hired who were performing carpen- ters duties. It is irrelevant that these two had not been employed previously by the Respondent because the Board does not insist that the existence of a unit depends on the employment of particular employees, but on their classification. See National Dairy Products Corp., supra at 315 fn. 5. Over the next several months, even more em- ployees were added, at least one of whom, Timm, was a member of the Carpenters. Contrary to Respondent's contention, most of its em- ployees could expect to be rehired. Thus, as a practical matter, employees generally were laid off, not perma- nently dismissed . It is true that on cross-examination, em- ployee Hudson testified that he felt free to look for other work when a job was completed and no further,work re- mained for him . But job hunting in such circumstances is not incompatible with a layoff status. More significantly, he also testified that when he was ready to return to work for Respondent, he simply indicated his availability and was readily rehired. Other carpenters, Watson and Timm for example, also had brief periods of interrupted employment, but like Hudson, were rehired by the Re- spondent within a short period of time after their layoffs Respondent insisted that it was keenly interested in main- taining a stable and skilled work force. It could hardly accomplish this end if it permanently terminated employ- ees whenever work grew slack. If any further evidence was needed to convince the skeptical that Respondent's carpenter crew was com- prised of more than one employee, it would lie in the number of persons, whom Respondent claimed were su- 28 The General Counsel does not contend nor does the evidence estab- lish that the termination of any employee prior to September 1981 was for discriminatory reasons 29 To be precise, the record shows that Hudson was dismissed on Sep- tember 2, 1981, just l day before Respondent claimed that the Carpenters Union did not have majority support 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pervisors It defies credulity to believe that Garman would have three superintendents on its payroll (Kehl, Jacobs, and Seefeldt), supervising the work of a single carpenter. Moreover, Nampel, who exercised principal authority over field operations, also regularly toured the jobsites, adding still another level of supervision For the foregoing reasons, I find no merit-to Respond- ent's claim that it experienced a permanent depletion of its carpenter crew 30 If Respondent 's position was ac- cepted, it would mean that employers could terminate their collective-bargaining relationships at will merely by briefly laying off entire bargaining units. The public's in- terest in stability and peace in labor relations prohibits such a possibility Accordingly, the Respondent had no legal basis to challenge the Carpenters majority and was under a continuing duty to recognize and bargain with the Local as the lawful collective-bargaining agent of its employees in an appropriate unit 4 Stability of the work force Having concluded that both the Laborers and Carpen- ters enjoyed majority support among Respondent's em- ployees in appropriate craft units, I next turn to the ques- tion of whether Respondent employed a permanent work force If it did, then Respondent's de facto contracts with these Unions are mature collective -bargaining agree- ments within the meaning of Section 9(a) of the Act, thereby making it unnecessary to determine whether the Unions' majorities must be demonstrated from one job- site to another. An examination of numerous documents entered into evidence in this case, including employee timecards and contribution forms to the fringe benefit and working dues assessment funds, establishes that there was a high degree of continuity in Garman's employee complement. From at least 1978 to August 1981, the Respondent's business records demonstrate that Garman employed a core group of workers Admittedly, the total number of employees fluctuated from time to time depending on the amount of work on hand However, the identity of those who were retained seldom varied Moreover, as noted previously, when new jobs were obtained, members of the core who were laid off, generally were among the first to be recalled Thus, the records show that between September 1980 and August 1981, 13 Carpenters were employed by the Respondent. Of these 13, 9 worked 7 or more months during the 12-month period. In the next year, the corp group of nonsupervisory employees de- creased from a high of nine in January to three in August. These three, as well as two other Carpenter al- leged supervisors, worked for Respondent since at least 1978. Further, Respondent moved its employees from job to job; it did not hire new employees for each new project and terminate them when that job was complet- ed - As noted elsewhere in this decision, the Respondent conceded that it was interested in retaining a stable work force. The record clearly demonstrates that it succeeded so In view of the above findings, it is unnecessary to reach the ques- tion of whether Seefeldt, who is now deceased, and Jacobs were supervi- sors within the meaning of Sec 2(2) of the Act in doing so Only after proclaiming that it had no duty to bargain with the Unions in September 1981 did Respond- ent hire a number of new workers who belonged to no union Prior to that date, however, from at least 1978 through August 1981, employee turnover was relatively slight. Accordingly, I find that Respondent employed a permanent and stable work force at all relevant times prior to September 1981 and that the Carpenters and La- borers had virtually unanimous support among the em- ployees performing tasks within their respective crafts. Therefore, the de facto agreements between the Re- spondent and the Unions that expired in 1981, were not prehire agreements under Section 8(f), but rather were ripe, collective-bargaining agreements within the mean- ing of Section 9(a) of the Act See Construction Erectors, 265 NLRB 786 (1982), Precision Striping, 245 NLRB 169 (1979) The Impasse Issue The final issue to be considered in this case concerns the allegation that the Respondent refused to bargain with the Unions in violation of Section 8(a)(5) of the Act. The General Counsel asserts that the few meetings between the Respondent and the Unions did not consti- tute bargaining sessions , but rather were preliminary meetings at which the parties engaged in exploratory dis- cussions. In support of this assertion , the General Coun- sel points to the fact that only three relatively brief meet- ings were held and to the fact that no written proposals were exchanged. He further submits that if these meet- ings are treated as negotiations, then the Respondent's bad faith precludes finding that an impasse occurred Re- spondent counters that it voluntarily and in good faith engaged in collective -bargaining with the Laborers and Carpenters by participating in three bargaining sessions in the summer of 1981 and another in the fall of 1982. Respondent claims that impasse was reached at the third meeting when the Carpenters walked out in the belief that it had no written contract with Garman. Similarly, Respondent argues that impasse was reached with the Laborers when Business Agent Planthaber insisted that he could not offer terms or conditions that varied from those in the master agreement The record concerning the exchanges among the par- ties at the three meetings in early June and July 1981 and at a fourth meeting on November 2, 1982, leaves much to be desired . Because the witnesses ' descriptions of what transpired were hazy and confused, it is difficult to de- termine precisely what transpired . However, a careful review of the record persuades me that the Respondent did not approach these meetings with an open mind or with the intent to reach agreement Neither did the meet- ings conclude with hard lines drawn and positions carved in stone. a The first meeting The first meeting came about after Seefeldt advised Carpenters Business Agent Hayen in early June of Re- spondent's stated intent to hire nonunion employees A week or so later, Hayen met with Johnson in his GARMAN CONSTRUCTION CO office 31 When Johnson described the Company's finan- cial woes, Hayen mentioned the possibility of several dif- ferent types of contracts including residential and mainte- nance agreements. Johnson indicated that a residential agreement was inappropriate for the work being done by his firm, but asked for further information about mainte- nance contracts.32 Hayen stated that he would contact representatives for the Carpenters International and Dis- trict Council to see if something could be worked out in Respondent's interest. According to Johnson, Hayen told him that he could not go forward with negotiations alone but would have to work cooperatively with the Laborers and promised to get back to him. Hayen acknowledged telling Johnson that he would have to look into the question of different types of contracts by contacting others in his Union. As he explained at the hearing, he was powerless to engage in independent negotiations that would bind the Carpen- ters for the Union proceeds by team bargaining. Howev- er, Hayen denied stating that he would have to coordi- nate Carpenters efforts with Laborers Business Agent Planthaber. It may be that Respondent suggested to Hayen that Planthaber be involved in future meetings be- cause it would have been in Garman's interest to insist on inclusion of the same terms in contracts with each Union. But it is most unlikely that Hayen would suggest that any contractual undertaking of the Carpenters was dependent on Laborers acquiescence. Each Local was, of course, an independent organization having different terms and conditions of employment in separate con- tracts applicable to their respective bargaining units.33 Given these considerations, I find it far more likely that Hayen simply raised the necessity of involving other Carpenters functionaries but did not make any future agreement contingent on the presence of the Laborers b. The second meeting Hayen arranged another meeting with Johnson a week later at which Collier and Planthaber were present. All three union agents maintained that the meeting was called to resolve a jurisdictional dispute involving a car- penter, Jacobs, who Collier had observed performing unit work that came under Laborers domain. This dis- pute was resolved with Johnson agreeing to employ a la- borer rather than Jacobs to perform the job.34 3 i Nampel testified that he was present at this initial meeting, but both Johnson and Hayen agreed that they met alone 32 No witness satisfactorily explained what a maintenance contract is As best I can discern, it covers carpentry work that is necessary for the maintenance of industrial equipment or factories 33 It is interesting to note that a Carpenters official did not require the presence of a representative from the Laborers in a meeting with Johnson in November 1982 34 Respondent maintains that the parties did not discuss a jurisdictional dispute involving Jacobs at this meeting To support its contention, Re- spondent alleges that Jacobs denied having any encounter with Collier In fact, the record discloses that Jacobs simply testified that he did not recall having seen a Laborers business agent on a jobsite in recent times No question was posed to him that might have tested his recollection about a specific incident involving his performance of laborers' work The mutually corroborative accounts of this'meeting provided by Hayen, Collier, and Planthaber convince me that their version is correct 105 Planthaber confirmed that he came to the meeting with the understanding that it was to resolve a jurisdic- tional dispute. Only toward the end of the session did Johnson allude to the firm's financial plight. Other than this, Planthaber does not remember having engaged in negotiations. Johnson testified to the contrary that Hayen asked Planthaber if the Laborers would give the Respondent a lower wage rate than the one set in the master contract and that Planthaber's response was negative. Hayen denied having asked such a question, noting that what the Laborers might be willing to do was out of his baili- wick. Planthaber had no recollection whatsoever of being asked whether he would acquiesce to a contract for Garman which differed from those applying to other employers. However, he acknowledged at the instant proceeding that if he had been asked such a question, he would not have agreed to ""a wage rate that varied from one employer to the next . Planthaber's candor in this regard leads me to believe that he did not make the com- ment that Johnson attributed to him . If he had no hesita- tion in expressing his view on the matter at the hearing before me, I find no reason why he would deny having made the same remark to Johnson. However, even if Planthaber had made his position known to Johnson at their meeting, it would have little effect on continuing negotiations because he had no authority to bind the La- borers to a collective -bargaining agreement through his individually expressed view. Accordingly, I credit Planthaber's assertion that he was not asked and did not respond to a question regarding the Laborers' position on variations from the master agreement. As this meeting ended, Hayen assured Johnson again that he would try to work something out and get back to him. c. The third meeting In late June or early July, Johnson and Nampel met with Hayen who was accompanied by representatives from the Carpenters International, and District Coun- cil.35 Once again, Johnson complained of the Company's difficulties in competing with nonunion firms. A discus- sion ensued about the applicability of maintenance con- tracts and the possibility of obtaining Federal funds. Johnson and Nampel testified that , at one point, Inter- national Representative Jahnke asked Hayen whether the Carpenters had a signed contract with the Respondent. When Hayen answered that they did not, Respondent's witnesses claim that Jahnke stated abruptly that there was no sense in pursuing the situation further and left Jahnke and Hayen deny that any such exchange oc- curred. Logic compels me to conclude that Jahnke and Hayen should be credited in this matter. Hayen knew in advance that the Carpenters had no written contract with the Respondent and surely would have advised Jahnke of that prior to the meeting. Further, the fact that Respondent had no contract would in no way bar nego- tiations between the parties . In fact, the absence of a ss District Council Member Valesquez' recollection of this meeting was so contradictory to that of every other participant that I am con- vinced he confused Garman with some other company Therefore, I do not rely on his testimony about what occurred at this meeting 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD written executed contract is the very reason why the Carpenters were meeting with Respondent's principals in the first place. The parties parted company amicably after an hour, with Nampel uttering these final words to Hayen: "Keep working on something. See if you can do something for us." It is improbable that Nampel would make such entreaties if Jahnke had just ruled out the pos- sibility of further discussions. d. A fourth meeting A month or two after this third meeting , the Respond- ent filed its representation petitions with the Board. The parties made no further effort to meet until shortly before this hearing commenced when by letters dated October 21, 1982 , to the Laborers and Carpenters, the Respondent proposed to meet and negotiate collective- bargaining agreements . Subsequently , Carpenters Repre- sentative Frey and Johnson met on November 2, 1982. Johnson then took the position that he could not afford to pay his employees more than they currently were re- ceiving.36 Frey suggested that if Respondent signed the, current Carpenters agreement for the balance of its term, a period of 7 months, the Union would forgo a demand for back wages owed and past contributions to the fringe benefit funds and also would withdraw the charges in this proceeding. 37 Johnson made no counteroffer. In- stead, he ended this exchange by stating , "I think we have agreed to disagree." Johnson also raised the matter of assigning employees to work across craft lines. Frey took a moderate position on this issue assuring Johnson that there would be no problems if Carpenters did some Laborers work and vice versa Johnson also stated that he could not compel his workers to join the Union which would be required by the union security clause in the contract . No other terms were discussed and neither party presented any formal written proposals . The meet- ing concluded with Frey indicating that he would be willing to engage in further negotiations with the Re- spondent Analysis The term "bargain collectively" is defined in Section 8(d) of the Act as requiring a mutual obligation by an employer and the representative of the employees "to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment . . but such obligation does not compel either party to agree to a proposal or require the making of a concession." When an employer is obligated to bar- 36 G C Exh 12 reveals that Respondent had hired a number of new employees bringing the total to 18 as of September 1982 Of these, five persons who formerly belonged to the Carpenters Union and six to the Laborers' Local continued to receive wages close to the union scales that prevailed in June 1981 Most others received wages well below contrac- tual rates 37 At the hearing, I sustained General Counsel's objection to the ad- mission of evidence concerning the Carpenters' offer to withdraw its charge on the theory that Federal Rule of Evidence 408 proscribes the admissibility of evidence concerning efforts to compromise a claim I re- verse this ruling, sua sponte, because on further consideration, I am con- vinced that the rule does not exclude evidence "offered for another pur- pose " Here, Frey's testimony was adduced to reveal the parties' posi- tions in a negotiating session, and not to show liability on a claim gain, impasse must occur before any unilateral changes in the terms of employment may be made. Wayne's Dairy, 223 NLRB 260, 264 (1976). An employer or employee representative may be released from bargaining obliga- tions only if the impasse occurs at a time when the par- ties have irreconcilable differences reached after exhaus- tive good-faith negotiations. See Carpenter Sprinkler Corp., 238 NLRB 974, 982 (1978), affd. and modified in part 605 F.2d 60 (2d Cir. 1979). In Taft Broadcasting Co., 163 NLRB 475 (1967), the Board suggested that the following criteria be used to determine whether a bargaining impasse exists: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations are all relevant factors to be considered. On applying these factors to the case at bar, I find, in agreement with the General Counsel, that no impasse oc- curred. Whether the Respondent or the Union met with a sin- cere willingness to enter into negotiations looking toward the consummation of an agreement or merely en- gaged in surface bargaining, giving only an appearance of complying with its statutory obligation, is a difficult issue at best and involves plumbing the subjective states of mind of the parties. In attempting to define the illusive concept of good faith, the Board stated in M System, Inc., 129 NLRB 527, 547 (1960): Good faith or the want of it, is concerned essential- ly with a state of mind. . . . That determination must be based upon reasonable inference from the totality of conduct evidencing the state of mind with which the employer entered into and partici- pated in the bargaining process The employer's state of mind is to be gleaned not only from his conduct at the bargaining table but also from his conduct away from it-for example, conduct re- flecting a rejection of the principal of collective- bargaining or an underlying purpose to bypass or undermine the union manifests the absence of a gen- uine desire to compose differences and to reach agreement in the manner the Act commands. All as- pects of the Respondent's bargaining and related conduct must be considered in unity not as separate fragments each to be assessed in isolation. Further guidance in detecting the subtle manifestations of bad faith was provided early in NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134, 135 (1st Cir. 1953), cert. denied 346 U S. 887 (1953): If the Board is not to be blinded by empty talk and by the mere surface motions of collective bargain- ing, it must take some cognizance of the reasonable- ness of the positions taken by an employer in the course of bargaining negotiations. . . Thus, if an employer can find nothing whatever to agree to in GARMAN CONSTRUCTION CO an ordinary current-day contract submitted to him, or in some of the union's related minor requests, and if the employer makes not a single serious pro- posal meeting the Union at least part way, then cer- tainly the Board may be able to conclude that this is at least some evidence of bad faith. Assesing the evidence in light of the foregoing princi- ples, I conclude, based on the totality of the Respond- ent's conduct both at and away from the bargaining table, that its officers did not bargain in good faith. It is apparent that by mid-June 1981, the Respond- ent had decided to go nonunion. Consequently, it could have no serious interest in meaningful bar- gaining with its employees' representatives. Proof of its decision is found in Johnson's comments to em- ployees that he was going nonunion or thinking about it and inquiring whether they would work with nonunion workers. Although the dates on which such remarks were delivered cannot be fixed with precision, it may be safely inferred that they came on or about the same time as the initial bar- gaining meeting in early June and continued throughout the period of time in which the next two meetings took place The record also shows that the Respondent failed to give a wage increase to its employees in June in conformance with the collective-bargaining agreements, although in past years wage increases paralleling those in the con- tracts were implemented routinely. The foregoing evidence provides convincing proof that at the same time that the Carpenters representatives were dis- cussing whether economic relief could be provided, the Respondent had decided that the only way it could compete was to become a nonunion contrac- tor. Consequently, Respondent went through the motions of meeting with the employees' representa- tives all the while holding a preformed intent incon- sistent with good-faith collective bargaining. Where, as here, an employer engages in a course of conduct designed to jettison the employees' support for their collective-bargaining agent at the very time negotia- tions are taking place, claims of good faith will not be countenanced See M System Inc., supra at 549; Imperial Machine Corp, 121 NLRB 621 (1958). Still another indicator of Respondent's resistance to meaningful bargaining lies in its failure to offer counter- proposals to the Unions. While it is true that neither party is required to make concessions, a willingness to compromise is often regarded as an essential ingredient of good-faith bargaining See NLRB v. Reed & Prince Mfg. Co., supra at 134. At no time did Respondent offer a single concession or suggest reasonable alternatives to the Unions' propositions. Johnson's resistence to reaching agreement was more obvious at his fourth meeting with the Carpenters than at the previous three. While it is clear that Frey felt wedded to the master contract, he did display consider- able flexibility by offering significant concessions. Thus, he suggested that the Carpenters would waive any duty to pay backpay and fringe benefits for the past 2 years and drop the charges in the case at bar if the Respondent 107 would accept the master contract for dust 7 more months. Although the Respondent had no duty to yield to this proposal, Johnson's instant rejection reveals a wholly closed mind Surely Frey's proposition had to signal to Johnson, as it does to me, that the Union was ready to engage in the give and take of genuine bargain- ing. Frey's willingness to compromise also was manifest- ed by his agreeing that employees could work across craft lines to some extent . Clearly, given Frey's concilia- tory position, no impasse was reached on this issue. Again, Johnson offered not a single counterproposal. Rather, he continued to insist, as he had throughout the previous three meetings, that the Respondent did not have the economic wherewithall to comply with the Unions' demands. Even assuming that the Respondent experienced the same financial difficulties in November 1982 as it did in the summer of 1981, its failure to move from its initial economic proposals in the face of some union movement provides further proof of surface bar- gaining. See Neon Sign Corp., 229 NLRB 861 (1977), [enf denied 602 F.2d 1203 (5th Cir. 1979)] As a matter of fact, by the time of the fourth meeting, Respondent's business affairs apparently had taken a turn for the better, as evidenced by the number of new-employees it had added to its payroll and the pay raises granted to them. It is noteworthy that although the Respondent continued to claim fiscal hardship, it made no effort during bargaining, or at this hearing, to establish that the Company was unable to afford any part of the Unions' wage package. See Orion Tool & Die Machine Co, 195 NLRB 1080, 1088 (1972) Johnson's conduct at this meet- ing is not characteristic of a negotiator with an open mind and a genuine interest in finding common ground. Rather, his apparently orchestrated statement that he and Frey have "agreed to disagree" discloses that he came to the bargaining table "with a predetermined resolve not to budge from an initial position " NLRB v. Truitt Mfg Co., 351 U.S. 149, 154-155 (1956). Respondent's conduct during this fourth meeting leads me to conclude that Johnson was engaged in a meaningless charade simply to make a record for this, litigation Even apart from the issue of good or bad faith, I am not persuaded that the first few meetings between the parties qualify as collective-bargaining negotiations. The parties met only three times. The Laborers were in- volved in only one of these meetings Thus, even accord- ing to the Respondent's best estimates, the meetings with the Carpenters consumed approximately 4 hours and with the Laborers, a maximium of 1-1/2. This is hardly sufficient time to have exhausted the possibilities for meaningful exchange. The first meeting was exploratory in nature, with Hayen listening to the Company's plight and then sug- gesting various contract options that might be available There was no serious consideration of any given con- tract. The second meeting was the only one that in- volved the Laborers but it can hardly be characterized as a bargaining session because its principal purpose was to dispose of the jurisdictional dispute I also found above that Planthaber did not insist on adherence to a master contract but even if he had, one such statement does not 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD put an end to further discussion . Impasse is not reached with a single offer and rejection of proposal See Inter- Roto, Inc, 252 NLRB 764, 768 (1980) [modified 267 NLRB 1026 (1983)] Respondent's next meeting with a few representatives of the Carpenters Union was almost as inconclusive as the first between Johnson and Hayen alone. The discus- sion was generalized , no written proposals were present- ed by either side . Although it is clear that the Respond- ent was principally concerned about the wage issue and sought some way to reduce its costs , it did not identify any part of the union contract that was more or less ac- ceptable . Thus it is fair to say with respect to all three meetings that there was "no continuous give and take in the form of negotiating over specific proposals " See Carpenter Sprinkling Corp, supra 605 F.2d at 65. More- over, Nampel's final request to the Carpenters represent- atives that they "keep working on something," makes it is clear that further meetings were anticipated . Based on this record of brief and inconclusive meetings , it is fair to state that the parties had neither "exhausted bargaining possibilities nor reached the stage where further meetings would have been fruitless " NLRB v. Way Cross Machine Shop, 283 F.2d 733, 740 (5th Cir 1960). The Respondent blames the purported impasse on the Union's obstinacy in clinging to their master agreements However, having found that the Respondent approached collective-bargaining negotiations with ' a preconceived determination to rid itself of any obligation to engage in collective bargaining, and that it bargained in bad faith from the outset, it is not possible to determine whether the Unions bargained in good or bad faith nor to con- clude that the parties bargained to impasse . See Mine Workers Local 1854, 238 NLRB 1583, 1632 fn. 93 (1978). Although the Unions apparently felt constrained by their area agreements, I do not find that either the Carpenters or the Laborers refused to continue to negotiate or lacked a sincere desire to reach agreement . Given their few meetings, and Respondent's bad-faith bargaining, it is difficult to predict whether they wculd have compro- mised eventually on at least some of the terms and condi- tions contained in their master contracts I also find no merit in the Respondent's contention that the Unions waived their right to bargain or to pro- test its unilateral changes in the workers ' terms and con- ditions of employment The Board and the courts repeat- edly have affirmed that a waiver of bargaining rights by a union will not be lightly inferred . This is particularly true, where, as here, the Union filed charges with the Board shortly after the Respondent repudiated its bar- gaining relationship and instituted unilateral changes. Thus, it cannot be said that the Laborers or Carpenters waived any rights by acquiescence or a failure to act See Caravelle Boat Co, 227 NLRB 1355, 1358 (1977).38 38 By date of February 25, 1983, Respondent filed a motion for leave to reopen the record for the limited purpose of receiving the affidavit of Garman Construction Company regarding posthearing bargaining, which was opposed by the General Counsel and the Operating Engineers In effect , Respondent seeks to introduce evidence based on an affidavit signed by Johnson as to alleged negotiating sessions conducted subse- quent to the hearing in this case Respondent contends that this affidavit would demonstrate the Company and the Union bargained to impasse I Assuming, arguendo, the parties had deadlocked, Re- spondent would not have been entitled to withdraw rec- ognition from the Unions. But clearly , no impasse existed here Thus, Respondent was not entitled to make unilat-- era] changes affecting the terms and conditions of the workers' employment . See NLRB v. Katz, 369 U S 736, 743 (1962) There can be little doubt that the Respondent did in fact make such changes . Thus the record shows that it failed to give pay increases to its employees as called for by their collective-bargaining agreements in June 1981 and after September 1, 1981, discontinued con- tributions to the employees ' fringe benefit funds, hired nonunion employees , and assigned personnel to tasks without regard to craft jurisdictional lines. By withdraw- ing recognition from the Unions and thereafter refusing to bargain about its unilateral changes much less a re- newal of its contracts , Respondent violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Garman Construction Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 The United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 790 and the Building and Common Laborers Union, Local No 727 of Laborers International Union of North America, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act. 3. The Carpenters Union is the exclusive representa- tive of employees in the following appropriate unit within the meaning of Section 9(a) of the Act All employees performing Carpenter craft work employed by Garman Construction Company within the geographical jurisdiction of Carpenters Local Union No 790 4 The Laborers Union is the exclusive bargaining rep- resentative of employees in the following appropriate unit within the meaning of Section 9(a) of the Act. All employees employed by Garman Construction Company at any of its jobsites or facilities who per- form work in the laborers' trade. 5 By interrogating employees about their membership in or support of the Unions, by giving employees the im- pression that their reemployment was conditioned on withdrawing from union membership; by implying to employees that their job status was conditioned on with- drawing their union membership; by sponsoring and as- sisting in the preparation and circulation of a petition to deny Respondent 's motion for the following reasons First , Respondent's post-hearing conduct cannot make moot questions regarding its alleged violations of Sec 8(a)(5) See Massillon Publishing Co, 215 NLRB 380 (1974) Such posthearmg attempts to remedy an alleged violation of the Act are of minimal relevance in determining whether the violation in fact occurred See J P Stevens & Co, 247 NLRB 420, 493 and 110 (1980) Second , it would be improper to admit into evidence a self-serving docu- ment that was not subject to cross-examination Lastly , to whatever extent such evidence may affect Respondent 's liability, it is more appro- priately introduced at the compliance stage of these proceedings GARMAN CONSTRUCTION CO. 109 decertify Carpenters' Local 719; and by promising em- ployees improved benefits such as insurance and health plans, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By negotiating in bad faith with no intention to arrive at an agreement, by unilaterally discontinuing giving wage increases in accordance with the union con- tracts; by ceasing contributions to the employees' fringe benefit funds; by hiring nonunion employees , and by as- signing work without respect to craft jurisdictional lines, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. The unfair labor practices set forth in paragraphs 6 and 7, above, effect commerce within the meaning of the Act. 9. The Respondent has not violated Section 8 (a)(1) and (5) of the Act by refusing to recognize and bargain col- lectively with Local Union No. 150, International Union of Operating Engineers, AFL-CIO as that labor organi- zation does not represent a majority of the Respondent's employees in an appropriate unit. 9. The General Counsel has failed to establish that the Respondent violated Section 8(a)(1) of the Act by engag- ing in the conduct described in paragraphs 10(f), (g), and (i) of the complaint. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the polices of the Act. As found above, Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from Carpenters Local 790 and Laborers Local 727 as the collective-bargaining representative of its employees. As a remedy, I shall direct the Respondent to recognize and bargain in good faith, on request, with these Unions . I also find that Re- spondent violated Section 8(a)(1) and (5) of the Act by unilaterally changing its employees ' terms and conditions of employment. Accordingly, Respondent shall be or- dered (a) to revoke, on the Union's request , any unilater- al changes implemented after September 3, 1981, unless the Unions request that a particular change not be re- scinded and (b) reinstate and give retroactive effect to the terms and conditions of the Carpenters and Laborers agreements with the Northern Illinois Building Contrac- tors Association that expired on May 31 , 1981, until such time as the Respondent reaches agreement or bargains in good faith to impasse with the Unions. If agreements are reached, they shall be embodied in signed contracts. In addition, Respondent shall be ordered to make whole the employees in the units found appropriate above, and to all employees hired after September 3, 1981, for any loss of wages or other benefits that they may have sustained as a result of Respondent's unilateral changes, including losses incurred by its assignment of work outside the employees' crafts in accordance with wage scales in the expired collective-bargaining agree- ments. Such backpay shall be computed with interest as described in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). More- over, Respondent shall be required to pay into the vari- ous Carpenters and Laborers fringe benefit funds as des- ignated in their expired contracts , contributions it has failed to make since September 1981 on behalf of all em- ployees on its payrolls since that date, whether or not they were union members . See Remodeling by Oltmanns, supra; Creative Engineering, 228 NLRB 682 (1977). The question of interest on sums owed to the Unions' trust funds will be left to the compliance stage of this pro- ceeding. See Remodeling by Oltmanns, supra. Further, the serious and pervasive unfair labor prac- tices committed by the Respondent strike at the heart of employees' rights safeguarded by the Act. Therefore, I shall recommend a broad cease -and-desist order that re- strains Respondent from in any manner infringing on those rights that are guaranteed by Section 7.