Chemung Contracting Corp. And Dalrymple Gravel And Contracting Co , Inc

CHEMUNG CONTRACTING CORP Chemung Contracting Corporation and Dalrymple Gravel and Contracting Co, Inc and Interna tional Union of Operating Engineers , Local No 832, AFL-CIO Case 3-CA-11872 November 22 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 17 1985 Administrative Law Judge Edwin H Bennett issued the attached decision The Respondent Joint Employers and the Charging Party Union filed exceptions and supporting briefs and each submitted an answering brief to the other party s exceptions The General Counsel has filed the brief that was submitted to the judge 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 t and conclusions only to the extent consistent herewith and to adopt the recommended Order as modified The judge found that the Respondent Joint Em ployers violated Section 8 (a)(5) and (1) of the Act by implementing unilateral changes in the terms and conditions of employment for employees who returned to work during a strike and by refusing to meet at reasonable times and bargain in good faith with the Union after the strike ended As discussed more fully below while we agree with the judge s finding of a violation in the Respondents refusal to meet and bargain we find merit in the Respond ent s contention that the filing of the charge re garding the unilateral changes was time barred by Section 10(b) of the Act The evidence shows that the Respondent and the Union have maintained a bargaining relationship I The Respondent has excepted to some of the judge s credibility find rags 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 Regarding the Respondents argument that it had a good faith doubt of the Union s continuing majority status the judge stated in his decision that striking employees Brown Roberts Stoddard and Voorhees ap proached Respondent on an individual basis and inquired about the posse bihty of returning to work during the strike Contrary to the judge the record clearly discloses that it was the Respondents admitted supervisor Lynwood Austin Sr who contacted these strikers and urged them to return to work This error does not affect our decision In agreeing with the judge s rejection of the Respondent s defense that the Union s pre sumption of majority had been overcome however we rely on the judge s finding that the loss of majority defense [was] not advanced in good faith and we do not rely on the judge s further discussion regard mg which employees constitute the core of the bargaining unit 773 for many years The parties most recent collective bargaining agreement expired April 1 1982 2 After the parties were unable to agree on a successor contract the unit employees commenced a strike on June 21 The next day the Union filed an 8(a)(5) charge alleging that the Respondent had re fused to bargain in good faith On July 7 the Re spondent filed an 8(b)(3) charge against the Union The Acting Regional Director dismissed both charges During the strike the Respondent ceased paying into fringe benefit and welfare funds estab lished by the contract and made changes in the em ployees fringe benefit and health insurance pro grams with the result in some instances that wages were increased to compensate for the absence of pension contributions The Respondent further ceased making payments to the supplemental unem ployment insurance benefit fund and the joint train ing fund although it had agreed to make such con tributions in May 1982 Richard Clark the Union s business manager testified that he knew at least by the end of 1982 of the Respondents failure to con tribute to the various funds The Union s picketing ceased in September although the Respondent never was formally informed that the strike was over On March 11 1983 having received notice that the General Counsels Office of Appeals had sus tained the Acting Regional Directors dismissal of the 8(a)(5) charge noted above the Union wrote the Respondent requesting further bargaining By letter dated March 22, 1983 the Respondent re quested that before contract negotiations resumed, the Union furnish them with a list of the alter ations and concessions that the Union had made in the spring 1982 negotiations and that the Acting Regional Director had relied on in dismissing the Respondents 8(b)(3) charge On April 22 1983 the Union replied to the Respondents request by spe cifically indicating that it had earlier presented (1) alternative forms of union security clauses (2) the Associated General Contractors contract together with proposed changes thereto and (3 ) the Union s residential contract for consideration The Union also requested negotiations suggesting several spe cific dates but inviting the Respondent to propose alternative dates if it preferred On May 6 1983 the Respondent replied by seeking more specific in formation about the alternative proposals and modifications that the Union was proposing The Union responded on July 29 1983 that it would not bargain through the mails and requested face to face negotiations On August 12, 1983 the Re spondent reiterated its refusal to engage in direct z All dates are in 1982 unless otherwise noted 291 NLRB No 123 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining until the Union had provided the re quested information The instant charge was filed on October 24 1983 The judge found based on the testimony of the Union s business manager that the Union clearly knew of the Respondents failure to contribute to the various funds before the 10(b) period coin menced on April 24 1983 As for the Respondent s alleged unlawful insistence on written proposals as a condition to bargaining the judge found that the initial refusal to meet occurred on March 22 1983 which was also outside the 10(b) period Neverthe less the judge found no meet to the Respondent s 10(b) argument He concluded citing inter alia Farmingdale Iron Works 249 NLRB 98 (1980) enfd mem 661 F 2d 910 (2d Cir 1981) that Sec tion 10(b) is inapplicable here [n]ot because the questioned conduct continued into the Section 10(b) period but because each act of prohibited conduct occurring within the 6 month period con stitutes a separate and distinct substantive violation in its own right While noting that pre Section 10(b) acts cannot constitute violations of the Act the judge here found that the Respondent should be held to any misconduct it engaged in within the limitations period On the merits the judge then found that the Respondents unilateral changes as well as its refusal to meet and bargain violated Sec tion 8(a)(5) and (1) of the Act Contrary to the judge we conclude that the complaint allegation concerning the Respondent s unilateral changes was time barred 3 We initially note that Section 10(b) of the Act provides that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board The intended purpose of this proviso is that in the absence of a properly served charge on file a party is assured that on any given day its li ability under the Act is extinguished for any activi ties occurring more than 6 months before 4 In Ma 3 While we adopt the judge s finding that the Respondent violated Sec 8(a)(5) and (1) of the Act by refusing to meet and bargain with the Union we find that the violation occurred on a later date than the judge found Thus contrary to the judge we do not conclude that this viola tion occurred on March 22 1983 when the Respondent sent a letter re questing that before contract negotiations resumed the Union provide it with it list of the alterations and concessions that the Union made in earlier bargaining We find that the Respondent was entitled to make this request since the Regional Director relied on evidence of the Union s bargaining concessions in dismissing the 8(b)(3) charge filed by the Re spondent However after the Union made a good faith effort to comply with the request the Respondent refused to accept this as a proper re sponse and sent another letter requesting more specific information con cerning the Union s concessions before the parties met We conclude that it was the Respondents conduct in sending this second letter that consti tuted the refusal to meet at reasonable times and bargain in good faith and that therefore the violation was established as of this date which was within the 10(b) period 4 Koppers Co 163 NLRB 517 (1967) chinists Local 1424 (Bryan Mfg Co) v NLRB 362 U S 411 (1960) the leading case on the meaning of this statutory provision the Supreme Court held that an unfair labor practice charge was barred where it was based on the illegality of a contract that was unlawful solely because of the circum stances of its execution-an event that occurred outside the 10(b) period In describing the essence of its holding the Court explained (Id at 422-423) [A] finding of violation which is inescapably grounded on events predating the limitations period is directly at odds with the purposes of the § 10(b) proviso [fn omitted] In any real sense, then the complaints in this case are based upon the unlawful execu tion of the agreement for its enforcement though continuing is a continuing violation solely by reason of circumstances existing only at the date of execution In short although the General Counsel can rely on evidence outside the 10(b) period as background without running afoul of that provision the Gener al Counsel is barred fi om bringing any complaint in which the operative events establishing the vio lation occurred more than 6 months before the unfair labor practice charge had been filed and served In the instant case it is clear that outside the 10(b) period the Respondent unequivocally repudi ated its obligation to make contributions into the trust funds and the Union knew of this action The Respondent at no time since has resumed making such payments Furthermore the Respondent has not engaged in any conduct nor have there been any intervening circumstances that can be con strued as inconsistent with the Respondents initial actions Thus, because the operative facts establish ing the violation occurred outside the 10(b) period we find that the applicable complaint allegations are time barred and that the Board is precluded from deciding the underlying substantive legal issues In so concluding we find that the judges reli ance on Farmingdale Iron Works above is mis placed In Farmingdale a charge was filed during the term of an existing collective bargaining agree ment regarding the cessation of contractually re quired periodic benefit fund payments Although the initial failure to make payments occurred more than 6 months before the charge was filed, the Board held that each failure to make the contrac tually required monthly benefit fund payments con stituted a separate and distinct violation of the Re spondent s bargaining obligation The remedy or CHEMUNG CONTRACTING CORP dered by the Board therefore was restricted to fund payments due after the commencement of the 6 month period before the filing of the charge A key to the Farmingdale separate violation holding is that the charge addressed a failure to make benefit payments while the contract was still running 5 Thus in order to make out a prima facie case of an 8(a)(5) violation the General Counsel did not need to reach beyond the 10(b) period for evidence the employers benefit payment obliga tion (i e the rates specified in the existing con tract) and its breaches of that obligation were all apparent from documentary and testimonial evi dence within that period In the instant case however the Respondent s breach of its statutory obligation could be estab lished only by producing evidence of its unequivo cal repudiation of its obligation to make benefit fund payments in 1982 (i e evidence of what the payment obligation was) and evidence of the Re spondent s unlawful repudiation of that obligation through ceasing payments at a time when it was not privileged to do so by virtue of a lawful im passe There is no such evidence within the 10(b) period on which to predicate the violation In short, although, absent waiver impasse or some legal impediment to making payments an empioyer has a continuing obligation to make contributions to contractual fringe benefit funds even after the expiration of the contract that defines the obliga tion,6 the question whether the Respondent breached such an obligation here cannot be reached because both the circumstances that cre ated the obligation and those that gave notice to the Union of its breach occurred more than 6 months before the Union filed its charge 7 Unlike Farmingdale this case presents no separate and distinct violations provable by evidence within 6 months of the filing of the charge Accordingly we reverse the judge s conclusions and dismiss the pertinent complaint allegations 5 In Farmingdale the Board cited Peerless Roofing Co 247 NLRB 500 (1980) enfd 641 F 2d 734 (9th Cir 1981) for the proposition that an em ployer is obligated to continue making fringe benefit plan contributions even after the expiration of the contract providing the basis for such con tnbutions We note however that the charge in Peerless Roofing was timely filed within the 10(b) period as the earliest alleged delinquent pay ment was due less than 6 months prior to the filing of the charge 8 Hen House Market No 3 175 NLRB 596 (1969) enfd 428 F 2d 133 (8th Cir 1970) Buck Brown Contracting Co 272 NLRB 951 (1984) ' As the Supreme Court recently explained in Laborers Health & Wel fare Trust Fund v Advanced Lightweight Concrete Co 108 S Ct 830 838 (1988) the injury for which such a charge would be filed is the injury to the collective bargaining process that occurs when an employer whose employees are represented by a union makes a unilateral change in their working conditions without having first bargained to impasse with the union (The Court contrasted this with the strictly contractual injury that could be remedied by courts under the Employee Retirement Income Se cunty Act ) The Court also noted that any such unfair labor practice charge must be filed within a 6 month period Id at 838 775 AMENDED CONCLUSIONS OF LAW Delete the judge s Conclusion of Law 7 and re number all subsequent Conclusions of Law accord ingly THE REMEDY Having found that the Respondent engaged in certain unfair labor practices within the meaning of the Act we shall order it to cease and desist there from and to take certain affirmative action de signed to effectuate the policies of the Act Specifi cally to remedy the Respondents refusal to meet and bargain with the Union we shall order that it cease its insistence on written proposals as a condi tion to meeting and that on request by the Union the Respondent meet and bargain and if an under standing is reached embody such understanding in a signed agreement ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Chemung Contracting Corporation and Dalrymple Gravel and Contracting Co, Inc Elmira New York its officers agents successors and assigns shall take the action set forth in the Order as modified 1 Delete paragraph 1(b) and reletter the subse quent paragraph accordingly 2 Delete paragraphs 2(b) and (c) and reletter the subsequent paragraphs accordingly 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to meet and bargain collec tively on request with International Union of Op erating Engineers Local No 832 AFL-CIO as the exclusive representative of the employees in the ap propriate unit by requiring the Union to provide written proposals as a condition to meeting with us for the purpose of negotiating a collective bargain ing agreement The bargaining unit is All operating engineers as defined in Article V of the parties 1979-82 collective bargaining 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement excluding laborers carpenters masons guards watchmen professionals office clericals and supervisors as defined in the Act WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL, on request meet and bargain with the Union as the exclusive representative of all the em ployees in the above appropriate unit with respect to rates of pay wages hours and other terms and conditions of employment and if an understanding is reached embody such understanding in a signed agreement CHEMUNG CONTRACTING CORPORA TION AND DALRYMPLE GRAVEL AND CONTRACTING CO INC Carl B Newsome Esq for the General Counsel Thomas J Grooms Esq (Bond Schoeneck & King) for the Respondent James R La Vaute Esq (Blitman & King) for the Charg ing Party DECISION STATEMENT OF THE CASE EDWIN H BENNETT Administrative Law Judge This case was tried before me in Elmira New York on 17 and 18 July and on 10 11 30 and 31 October 1984 The complaint which issued 23 December 1983 and which was amended on 14 May 1984 was predicated on a charge filed on 24 October 1983 The complaint alleges that Chemung Contracting Corporation and Dalrymple Gravel and Contracting Co Inc (Chemung and Dal rymple respectively or collectively Respondent) violat ed Section 8(a)(5) and (1) of the Act by (1) implementing and effecting unilateral changes in the terms and condi tions of employment of certain bargaining unit employ ees who worked during a strike (2) refusing to schedule dates to engage in contract negotiations unless the Union first provided it with a written listing of its proposed contract changes and modifications and (3) withdrawing recognition from the Charging party International Union of Operating Engineers Local No 832 AFL- CIO (the Union or Local 832) as the exclusive collec tive bargaining representative of the employees in the bargaining unit As to the third allegation Respondent denies that it ever withdrew recognition from the Union As to the first and second allegations regarding the unilateral changes and the imposition of a condition to bargaining Respondent does not dispute the factual accuracy How ever it raises a defense under Section 10(b) of the Act claiming that these allegations should be dismissed be cause the events took place more than 6 months before the filing of the charge Further with respect specifically to the allegation of unilateral changes Respondent argues that in any event the changes were permissible because they previously had been offered to the Union in bargaining and the parties were at impasse when the changes were implemented This defense gives rise to counterarguments that (a) the changes had not been offered previously (b) if of fered there was no impasse and (c) if there was an im passe it had no lawful force because the Respondent had bargained in bad faith Item (c) above in turn generates inter alia the response that whatever bad faith existed was on the part of the Union and in any event the entire question of bad faith is barred from consideration because earlier charges of bad faith bargaining by both sides under Section 8(a)(5) and Section 8(b)(3) had been administratively dismissed by the General Counsel Finally Respondent argues that the Union had lost its majority or at least the Respondent had entertained a good faith doubt of majority status either of which con dition requires dismissal of the complaint in its entirety The majority issue of course creates conflicts is such areas as scope and composition of the bargaining unit and the basis for the doubt of majority The General Counsel and Charging Party contend that any employee loss of support for the Union was the direct result of im permissible solicitation by Respondent and Respondent s overall unlawful conduct On the entire record i including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the parties I make the following FINDINGS OF FACT I JURISDICTION Chemung and Dalrymple subsidiaries of Dalrymple Holding Corporation are both corporations organized under the laws of the State of New York At the hearing it was stipulated for the purposes of this proceeding and for the time periods alleged in the complaint that Che mung and Dalrymple are joint employers in that both corporations are signatories to the same collective bar gaining agreement and the employees of both companies covered by that agreement constitute a single bargaining unit Chemung and Dalrymple maintain their principal offices and places of business in Elmira New York where they engage in construction work including the performance of heavy and highway construction serv ices Such work is performed at their main Elmira facili ty as well as at various other plants jobsites warehouses and places of business in the State of New York and generates gross revenues in excess of $50 000 annually In addition Respondent purchases transfers and delivers to its New York jobsites goods and materials valued in excess of $50 000 which goods and materials are shipped into New York directly from other States Respondent concedes and I find that it is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act and that it is subject to the jurisdiction of the Board ' Respondents unopposed motion to correct 21 errors in the transcript is granted CHEMUNG CONTRACTING CORP The complaint also alleges the Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II BACKGROUND The record establishes that Respondent and the Union have maintained a continuous collective bargaining rela tionship since the late 1950s or early 1960s The parties have executed a series of collective bargaining agree ments over the years and with the exception of a strike in 1977 their overall relationship appears to have been relatively serene The most recent contract became effective on 1 April 1979 and terminated on 1 April 1982 The parties stipu lated that during the term of this agreement they were engaged in a collective bargaining relationship in accord ance with Section 9(a) of the Act The territorial juns diction of the contract encompassed about 9 1/2 counties in the southwestern part of New York State The con tract covered five classifications within a unit of operat ing engineers which unit is defined in terms of type of work to be performed as set forth in article V of the contract as follows This Agreement shall apply to all Heavy and High way construction which terms are defined as being all work performed outside of building includ ing the installation operating maintenance and dis assembly of construction equipment and plants used in connection with and servicing the aforemen tioned work excepting repairs of such nature that they cannot be made by the Employees Such unit excludes laborers carpenters masons guards watchmen professionals office clericals and supervisors as defined in the Act The 1979-1982 contract provided inter alia that man datory contributions on behalf of the members of the bargaining unit be made directly to the following benefit funds (1) Engineers Supplemental Unemployment Insur ance Benefit Fund (2) Engineers Joint Training Fund (3) Engineers Joint Welfare Fund (4) Engineers Joint Pension Fund and Engineers Central Pension Fund Contributions to the above funds were calculated based on agreed on dollar amount to be paid for every hour actually worked by each individual employee in the bar gaining unit Thus the total fringe benefit contribution made on behalf of any given employee could differ from those made for other bargaining unit employees depend ing on the number of hours actually worked by the em ployee in question Respondent continued to make these mandatory contributions through June 1982 Respondent engages in two types of construction projects-large Government contracts and smaller pn vate jobs The parties in their 1979-1982 contract had agreed on certain contractual wage rates These rates were to apply on both types of work However on Gov ernment projects the parties had agreed to use the New York State prescribed prevailing or posted rate in lieu of the contract rates for 18 months even if such rates were less than the contract rate At the conclusion of the 18 month period the contract rate went into effect III THE UNFAIR LABOR PRACTICES 777 Article XVIII of the 1979-1982 collective bargaining agreement requires that notice of proposed changes in the terms of the contract by one party must be served on the other side on or before 1 February 1982 In accord ance with this provision the Union by letter dated 13 January 1982 served notice on Respondent that it wished to renegotiate the contract By letter dated 20 January 1982 Respondent declined to open negotiations as it saw no future demand for operating engineer em ployees Respondent had made several unsuccessful bids on projects in late 1981 and early 1982 and at the time of the Union s 12 January letter had no operating engi neers work available within the Union s jurisdiction Re spondent continued to bid on various projects however and in early March 1982 was awarded the contract on the Judson Street project in Elmira which required the employment of operating engineers and was within the jurisdiction of the Union A meeting for the purpose of renegotiating the con tract was scheduled for 30 March 1982 This meeting which was postponed to 8 April was the first of four bargaining sessions between the parties-two in April and two in May 1982 At all four bargaining sessions the Union s primary bargaining representatives were Richard Clark (Clark) business manager of Local 832 and its chief spokesman and Robert Sullivan (Sullivan) business agent 2 The Respondents bargaining committee consist ed of David Dalrymple (Dave) vice president of Che mumg and treasurer of Dalrymple and the chief spokes man Edward V Dalrymple (Ed) vice president of both Chemung and Dalrymple and Harry Dalrymple (Hank) president of Chemung 3 The initial bargaining session of 8 April 1982 was dominated by Respondents presentation of its views of the current nationwide economic climate and its negative effect on its business Dave testified that Respondent made no concrete proposals during the first meeting Rather it reviewed the 1979-1982 agreement emphasiz ing those clauses considered to be causing the greatest problems However it did not suggest any specific reme dial amendments except to propose elimination of the union security provision In this connection it spent con siderable time comparing its operations in right to work States where it functioned without union security clauses to its operations in New York In response to Respondents oral presentation the Union submitted a copy of the parties 1979-1982 con tract together with a list of changes that the Union had just negotiated in its contract with the Associated Gener al Contractors (AGC) 4 Because the parties 1979-1982 2 In addition to Clark and Sullivan a former business agent and a former business manager participated in the negotiations Neither individ ual testified at this hearing and the scope of their bargaining authority appears to be limited 9 Respondents representatives at times here shall be referred to by their first names simply to avoid any confusion that might be caused by their surname and not out of any lack of respect 4 Although Respondent is not a member of the AGC it had signed prior AGC contracts on an independent basis Further Respondent admits that the AGC contracts have been utilized in previous negotia tions with Local 832 as a starting point 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contract was not the same as the 1979-1982 AGC con tract the combination of the parties expired contract and the new AGC changes did not and could not result in a contract identical to the 1982 AGC contract Ac cordingly I reject Respondents assertion that the Union proposed only the AGC contract and was insistent on its adoption in toto In light of this finding both parties tes timony regarding the use of the AGC contract as a ne gotiating startoff point in prior negotiations and having considered the demeanor of the witnesses who testified about the bargaining sessions I credit Clark s recollec tion of what occurred at the bargaining table whenever it conflicts with that of Respondents witnesses 5 At the second meeting Respondent proposed several concrete changes to the 1979-1982 contract as follows 1 Elimination of oilers as extra men on machines 2 Ending the requirement of having master mechanics on every job where more than five operating engineers were working 3 Deleting from the definition of work the installa tion operation maintenance and disassembly of heavy equipment 4 Limiting the applicability of the contract to those projects that exceed the sum of $5 million 5 Reducing the contracts territorial jurisdiction by eliminating six counties 6 Removing the union security clause In response to these proposals the Union resubmitted the changes made in the 1919-1982 AGC contract and it also presented two additional contracts for Respondent s consideration These contracts were a simple residential contract and simple industrial maintenance contract Al though Respondent did not engage in work of the nature covered by these agreements the contracts were submit ted for possible modification to suit the Respondent s work on small private jobs thus salvaging the collective bargaining relationship on jobs under $5 million No agreement was reached on any proposals made during the second session The third meeting was held in early May It was at this session that Respondent raised the issue of altering the union pension plan Respondent devoted a goodly amount of time complaining about union pensions in gen eral It expressed the belief that its employees would be better served by a more direct form of pension and sug gested that individual retirement annunity accounts (IRAs) be established for each employee presently cov ered by the union pension plan Respondent in effect of fered to serve as a conduit by depositing the requisite amount of contributions directly into the IRAs rather than into the Union s pension fund Respondent did not suggest that this arrangement should be voluntary or op tional on the part of the employee No counterproposal was offered by the Union on this issue because Clark stated at the outset of this meeting that he could not alter the pension plan in any way Whether the Union would have moved from its position is speculative although Clark did testify that he knew nothing about IRAs and 5 As will be seen later resolution of the basic issues in this case rest largely on undisputed evidence This credibility resolution or to be more precise the acceptance of recalled events is to permit a coherent re counting of the framework on which this case hangs that he could not spontaneously make a counterproposal until he investigated the effect Respondents proposal ac tually would have on the employees Respondent also contends that an optional medical plan was discussed but Clark credibly testified he had no recollection of any proposal being presented by the Re spondent on this issue In addition the written proposal submitted by the Respondent makes no reference to any health insurance plan other than the existing Operating Engineers joint welfare fund Therefore I find that no clear precise or specific proposal regarding a different type of optional health insurance was proposed by Re spondent The final bargaining session was held some time later in May Basically the parties reiterated their prior pro posals with the Union stating that it wished to reach some kind of agreement at this session However the Union once again presented only the AGC changes and the residential and industrial maintenance contracts that it had previously offered Respondent rejected these two additional contracts stating that it wanted only one con tract with one rate It also continued to insist on the lim ited geographical jurisdiction and the change in the defi nition of work although they did amend the contract ap plicability proposal by reducing the dollar amount cutoff point to $2 million from the $5 million initially presented At the end of the fourth meeting-the Union still con sidered negotiations to be open to discussion though it is clear that a settlement was not in sight Respondent of fered to reduce its proposals to wasting (until this point all proposals had been presented orally) so that the Union could present them to the bargaining unit mem bers for their consideration and vote To this end on 25 May 1982 Respondent presented a written document to the Union which was labeled best offer In form the document was a complete collective bargaining agreement containing the majority of the pro visions found in the parties 1979-1982 contract with the following differences 1 Eliminated language protecting the employees right to honor picket lines 2 Eliminated six counties from the contracts geo graphical jurisdiction 3 Eliminated the union security clause 4 Eliminated from definition of work the installation operating maintenance and disassembly of construction equipment and plants used in connection with servicing the work 5 Eliminated master mechanic coverage 6 Eliminated manning maintaining and repairing of submersible pumps 7 Eliminated work of pile driving and sand crane 8 Substituted IRA for the pension fund (see infra for full relevant text) 9 Eliminated several wage classifications and caused a reduction in wages and contribution levels in each of the four wage classifications These proposals were presented to the operating engi neers bargaining unit and were unanimously rejected by the membership on 16 June 1982 The next day Hank Dalrymple was informed by Clark of the employees de CHEMUNG CONTRACTING CORP 779 cision On being asked by Clark to schedule a new date for the continuation of negotiations Hank stated that there would be no additional meetings as these proposals were the Respondents final offer and as far as the Re spondent was concerned a bargaining impasse had been reached 6 On 21 June 1982 the entire bargaining unit of the op erating engineers went on strike On 22 June 1982 the Union filed a charge against Respondent alleging failure to bargain in good faith On 7 July 1982 Respondent filed its own refusal to bargain charge against the Union Both charges were administratively dismissed by the Re gional Director for Region 3 The Union appealed the dismissal of its charge to the General Counsel which appeal was denied on 22 February 1983 A motion for reconsideration was denied on 14 July 1983 Respondent was informed of the Union s actions regarding the pend ency of this charge At the time of the strike the bargaining unit admitted ly consisted of nine employees 7 A 10th individual Lyn wood Austin Sr was conceded to be a statutory super visor by Respondent although until the strike he had been a member of the Union Of these unit employees four approached Respondent on an individual basis and inquired about the possibility of returning to work during the strike The four ndividuals were Frank Stod dard Gordon (Smokey) Roberts Kenneth Voorhees and Clarence Brown All four men began work at various times in July 1982 after submitting letters to the Union requesting withdrawal from membership Substantial tes timony was adduced at trial regarding the circumstances surrounding this event Although not alleged in the com plaint the General Counsel attempted to depict conduct on the part of the Respondent which if not barred by Section 10(b) of the Act allegedly would constitute vio lations of Section 8(a)(1) Included are statements alleg edly made by the Dalrymples and Supervisor Austin to the four strikers in an attempt to induce their abandon ment of the Union as the quid pro quo for a return to employment The credited testimony of the four men de picts a pattern of conduct by Respondent supporting the General Counsels position 6 The Local 832 newsletter of July 1982 which was written by Clark specifically stated that we reached an impasse in our negotiations with Respondent At the hearing Clark testified that he had never heard the term impasse before was unaware of its legal meaning and had merely employed Respondents word I cannot accept that an individual with 20 years of experience in negotiating collective bargaining agreements and who served as chief executive officer of a major labor union had never heard the term impasse before and therefore I must infer that Clark was indeed aware of the term and its meaning when he used it in the Union s newsletter It should be noted however that impasse is a legal concept not susceptible to easy definition and the parties use and under standing of the term may not necessarily reflect that of the Board But I do find that Clark s use of the word was his own not merely the mouth ing of Respondent s claim 7 The actual size of the bargaining unit at the time of the strike or thereafter is relevant to Respondents attempt to rebut the Unions pre slimed majority status which as discussed below I find lacks ment Re spondent does contend however that an additional four employees were on layoff status and they properly should be included in the unit It ap pears in any event that only seven employees actively were at work before the strike and constitute what is referred to in the construction trade as the core or stable work force Thus Brown was told by Austin that he had with drawn from the Union that he recommend Brown do the same and then there would be work for him There after Brown spoke to Ed Dalrymple who asked if he in tended to withdraw and if so his secretary would pre pare the necessary letter which then was done At the same time Ed Dalrymple told him he could return to work Stoddard had the same type of conversation with Austin who also told him that Respondent was going to operate nonunion Stoddard then spoke to Ed Dalrymple who again had his secretary prepare the withdrawal re quest Roberts spoke directly to Ed Dalrymple who told him that the Respondent did not intend to sign a union contract and that if he wanted to return to work he would have to withdraw from the Union On Roberts acquiescence Dalrymple s secretary prepared and typed the letter Voorhees experience was similar He was told by Austin and Ed that the company was going to become nonunion with Ed adding that he had to with draw from membership in order to work All the letters including Austin s are dated between 22 June and 2 July 1982 and contain identical language requesting the writer be allowed to honorably withdraw as a member of Local #832 The significance of the above evidence bears as noted on Respondents argument that it is relieved of any bar gaining order because it had at least a good faith doubt of the Union s continuing majority status after expiration of the contract At a management meeting held shortly after the com mencement of the strike Respondent decided to continue operations with replacements or returning strikers and to pay the same wage rates as had been paid the striking operating engineers However regarding fringe benefits it decided to cease making payments to the various funds established pursuant to the collective bargaining agree ment and to institute the same pension and health insur ance plans that were in effect for their other employees who were not covered by the Unions contract This change in fringe benefits was applicable to all employees performing operating engineers work including the re turning strikers and employees recalled from layoff Re spondent s nonunion pension plan was a totally voluntary arrangement in which each employee was given the option of having contributions made directly into an IRA by Respondent or having all or part of his benefit added to his salary If an employee elected to take the money in his pay it was subject to regular withholding taxes If the employee chose to establish an IRA then there was a dollar limit on the total annual deposit that could be made and still entitle the employee to a tax de ferred status This arrangement which Respondent main tains was consistent with its bargaining offer must be contrasted with the language of the actual written pen sion proposal submitted to the Union by Respondent in May 1982 and which states The Company shall make pension contributions for regular and full time employees beginning in the amount set forth in Article XXIII for each hour worked 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Such amounts shall be paid within the first thirty days of each calendar month for contributions due for the previous calendar month to an Individual Retirement Annuity Account (IRA) to be set up by each employee in a bank of his/her choice All contributions payable after shall be remitted directly to the individual IRA ac counts for each employee Separate records and accounts shall be kept for each employee on a monthly basis showing the hours worked and the amount remitted (by week) to his/her IRA Should the contributions for any employee equal the maximum allowable limit for an IRA account in any given year said employee shall be note feed and the additional hourly amount due shall be paid direct to the employee as wages Regarding health insurance benefits Respondent s written proposal provides for a continuation of payment of contributions to the engineers joint welfare fund which is located at 4325 South Salina Street in Syracuse Further the amount of contributions to be paid is direct ly tied to the number of hours worked by each employ ee At all times since the strike Respondent has ceased making contributions to the welfare fund on behalf of the nonstriking employees Instead it instituted a health in surance plan for these employees whereby it claimed to contribute a dollar an hour for each employee to a pn vate insurance carrier Actually it did not even follow through on that claim as the company records reflected that the plan actually was funded by a flat weekly amount that was the same for all employees regardless of the actual number of hours worked and which monthly amount fluctuated upward only as the overall cost of the plan increased There is absolutely no proof or even a claim that the benefits purchased remotely resembled the benefits obtainable through the welfare fund In addition Respondent ceased making any contributions whatsoever to the Operating Engineers supplemental unemployment insurance benefit fund (SUB) or the joint training fund (JTF) notwithstanding that Respondent had committed to continue these contributions in its written proposals of May 1982 The Union admits that it was fully aware of these changes by the end of 1982 In sum then Respondents poststrike wages to unit em ployees contrasted to prestrike conditions and to its own best or final offer in the following respects Wages were increased by about $3 an hour in lieu of fringe benefits although it is clear no such offer in the precise form was made to the Union Health benefits were funded by a payroll deduction (from this $3 figure) of a flat amount to cover the premium although Respondents offer was to continue in effect the union plan Pension was elimi nated and was substituted by a voluntary IRA by a pay roll deduction (from the $3 figure) In fact however IRAs were not established and the procedure actually implemented bore no resemblance to the written offer The wage increase of course was subject to income tax deductions which had not been the case with respect to fringe benefit payments Finally Respondent discontin ued totally without even the hint of a substitute arrange ment and contrary to its offer to the Union payments to SUB and JTF The wage increase is urged by the Gener al Counsel as an unlawful unilateral change in addition to the aforesaid changes in fringe benefits Although not specifically alleged in the complaint it was fully litigated as a component of the fringe benefit changes argued at the hearing and covered in the briefs Respondent con tenuously labeled this increase as the cash equivalent to health and pension benefits At various times before the strike Respondent em ployed about 14 employees in the unit depending on available work of which 9 were conceded to be in the unit just before the strike On resuming operations in July 1982 Respondent employed the four employees who had sent withdrawal letters to the Union and two of its employees on layoff Thereafter Respondent employed about an additional seven men who apparently had not been previously employed again hiring them at various times depending on available work The changes in terms of employment described above were made applicable to all the employees who worked for any period of time after the start of the strike In September 1982 the strike ended but there was no contact between the parties from the start of the strike in June 1982 until 11 March 1983 Throughout this period Respondent operated its business with former and new employees as described above none of whom paid union dues The returning strikers as noted above had with drawn from the Union had been fined by the Union for crossing the picket line and had been sued for failure to pay such fine Respondent had been aware of the Union s actions against the returning strikers In addition none of the strike replacements exhibited any interest in the Union In fact Ed Dalrymple testified about various conversations with replacements wherein they expressed actual antiunion sentiment Although Respondent has urged these foregoing circumstances as evidencing union loss of majority or at least supporting its doubt of major ity Ed testified that it was not until September 1983 that Respondent finally made an internal decision that the Union had lost its majority More specifically Ed admit ted that Respondent considered the Union to be the em ployees bargaining representative until the fall of 1983 and further that it never communicated to the Union its belief that the Union lacked majority status On 11 March 1983 on receiving notice of the denial of its appeal from the dismissal of the 8(a)(5) charge the Union wrote to Respondent and suggested several dates to continue contract negotiations By letter dated 22 March 1983 Respondent stated that it had no objec tions to continuing negotiations but before doing so it requested that the Union first furnish a list of the alter ations and concessions it had made during the spring of 1982 negotiations so that it would be better prepared to bargain in good faith toward a new agreement These union proposals apparently had served as the basis for the dismissal of Respondents 1982 8(b)(3) charge be cause the Regional Directors letter of dismissal quoted in the Respondents 22 March letter specifically referred to such movement by the Union in bargaining Respond ent s evidence was that it had no recollection that the CHEMUNG CONTRACTING CORP Union had softened its proposals and therefore it wished merely to know exactly where negotiations stood as of the last bargaining session in May 1982 On 22 April 1983 the Union replied to Respondents request by stat mg that it previously had presented alternative forms of union security clauses the AGC contract together with proposed changes thereto and the Union s residential contract for consideration The Union requested negotia tions on several dates or dates Respondent would pro pose By letter dated 6 May 1983 Respondent asked that the Union provide it in writing with I The actual alterna tive forms of Union security clauses you are proposing and 2 the specific modifications you are offering in both the current AGC and current Residential contracts The Union replied by letter dated 29 July 1983 stating it would not bargain through the mails and requesting face to face negotiations The Union suggested meet ing for negotiations on certain dates or any other con venient time The final correspondence between the par ties was a letter by Respondent dated 12 August 1983 Once more Respondent refused to engage in direct bar gaining until it received a written statement by the Union of its past proposals so that when we come to the bargaining table we will be prepared to respond to them II DISCUSSION A The 10(b) Defense Respondents first, line of defense is that the com plaint s, allegations of violation are barred by Section 10(b) of the Act It bases this contention on the fact that the decision to change the fringe benefits (pension we] fare funds etc) as well as the initial implementation of such changes occurred in July 1982 substantially more than 6 months before the filing of the charge on 24 Octo her 1983 Responding to the claim that the limitations period should be tolled because the Union did not have akctual notice of these changes when first effectuated Re spondent points to an admission by Clark that by the end of 1982 the Union fully was, aware of Respondents fall ure to contribute to the various funds Accordingly Re spondent argues the charge based even on that knowl edge would still be well outside the 10(b) period which commenced on 24 April 1983 8 Regarding the allegation that Respondent unlawfully insisted on written proposals as a condition to bargain Ing Respondent asserts that as the initial refusal oc curred on 22 March 1983 (its letter to the Union on that date) the October 1983 charge was untimely about this allegation as well The General Counsel of course does not contend that any acts of Respondent that occurred outside the 10(b) period constitute violations of the Act Rather the General Counsel asserts that the unlawful acts of Respondent that fell within the 10(b) period are a Although the complaint alleges that the unilateral changes that vio lated the Act commenced on 25 April 1983 the correct date for comput mg any violations with the 6-month period is 24 April 1983 Baltimore Transfer Co 94 NLRB 1680 (1951) 781 not barred as violations merely because such conduct commenced outside that period The law is settled that Respondents 10(b) defenses about both the unilateral changes and refusals to meet are without merit Not because the questioned conduct continued into the 10(b) period but because each act of prohibited conduct occurring within the 6 month period constitutes a separate and distinct substantive vio lation in its own right Abbey Medical/Abbey Rents 264 NLRB 969 (1982) enfd 709 F 2d 1517 (9th Cir 1983) and Farmingdale Iron Works 249 NLRB 98 (1980) enfd 661 F 2d 910 (2d Cir 1981) (failure to make monthly benefit contributions) Ocean Systems 227 NLRB 1593 (1977) enfd 571 F 2d 859 (5th Cir 1978) (refusal to rec ognize and bargain with the Union) Although the pre 10(b) acts cannot constitute viola tions of law and are not subject to remedial order they can in cases of this kind be considered as part of the background in assessing the validity of the post 10(b) conduct Machinists Local 1424 (Bryan Mfg Co) v NLRB 362 US 411 (1960) However in the instant matter the complained of conduct falling within the 10(b) period constitutes violations of the Act without necessarily having to find that Respondent committed the identical violations at an earlier time Proving the first violation is not a prerequisite to proving the last one and indeed the earlier violations can be ignored al together without doing damage to the General Counsel s case And furthermore it is not at all unusual in cases of this kind to consider relevant time barred events even when the charge is timely filed regarding the very first unlawful act The facts of this case fit neatly into the situation de scribed in Machinists Local 1424 where relevant but pre 10(b) events receive permissable evidentiary use to shed light on the true character of matters occurring within the limitations period 362 U S at 416 There are several areas of concern involving conduct that clearly does not constitute unfair labor practices but neverthe less we consider here And although there are legally de funct unfair labor practices also present proof of these violations is not essential to proof of the General Coun sel s case In other words the only stale evidence rele vant to finding a violation involves truly background ma terial that might be stale no matter when the charge would have been filed And while that stale evidence also would be material to the time barred violations it does not follow that we are precluded from considering it in proof of the timely violations That is because there simply is no need to revive the defunct violations in this case For example the nature and substance of the employ er s bargaining offer always would be examined for com panson to the change actually instituted Such evidence though clearly falls within the scope of background ma terial because it is the alleged change itself that consti tutes the violation not the evidence that proves that what was done actually was a change from earlier condi tions Whether other changes were implemented inside or outside the 10(b) period is of little consequence in testing the lawfulness of the specific change alleged as a 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD violation Moreover as this case demonstrates many of the time barred events e g impasse the bargaining offer are injected into the case by way of defenses to the violation and it would be anomalous to preclude a viola tion in such circumstance In any event as the cited authorities hold the viola tions here involved are not inescapably grounded on time barred unfair labor practices Each unilateral change and each refusal to bargain in a series of like acts are as the cases illustrate discrete violations which do not derive their legal character from the earlier viola tions Because the instant charge was filed timely regard ing any one of the acts in issue the complaint is not barred by Section 10(b) of the Act General Motors Ac ceptance Corp 196 NLRB 137 (1972) B The Union s Majority Status Respondent defends against the complaint allegations on the broad claim that the Union s presumption of con tinued majority status in the agreed on appropriate unit had been overcome Because this contention is applicable to all the substantive allegations it will be disposed of here for all purposes The rule of law is long settled and restated by the Board in Golden State Habilitation Center 224 NLRB 1618 (1976) as follows It is well settled that a certified union upon expi ration of the first year following its certification enjoys a rebuttable presumption that its majority representative status continues This presumption is designed to promote stability in collective bargain mg relationships without impairing the free choice of employees Accordingly once the presumption is shown to be operative a prima facie case is estab lashed that an employer is obligated to bargain and that its refusal to do so would be unlawful The prima facie case may be rebutted if the employer of firmatively establishes either (1) that at the time of the refusal the Union in fact no longer enjoyed ma jonty representative status or (2) that the employ er s refusal was predicated on a good faith and rea sonably grounded doubt of the union s continued majority status As to the second of these i e good faith doubt two prerequisites for sustaining the defense are that the asserted doubt must be based on objective considerations and it must not have been advanced for the purpose of gaining time in which to undermine the union [This second point means in effect the assertion of doubt must be raised in a context free of unfair labor prac tices ] It is also well settled that the existence of a prior contract lawful on its face raises a dual presume tion of majority-a presumption that the Union was the majority representative at the time the contract was executed and a presumption that its majority continued at least through the life of the contract Following the expiration of the contract the pre sumption continues and though rebuttable the burden of rebutting it rests on the party who would do so There is a fatal defect in Respondents defense which obviates the need to consider the factors purportedly relied on by Respondent in forming its good faith doubt or in having to indulge in a headcount of union support in a fluctuating unit Respondent admitted on the record that the Union was the bargaining representative until the fall of 1983 and further that it had an obliga tion to bargain until the spring of 1983 Indeed Respond ent could say no less in light of its series of letters up to 12 August 1983 (well within the 10(b) period) advising the Union of its willingness to bargain if only its condi tions would be met By that date of course whatever reasons existed for doubting majority or claiming loss of majority had become apparent to Respondent yet no such position was communicated to the Union then or for that matter at any time until it responded to the complaint There is a presumption that Respondent acted lawfully in continuing to acknowledge the Union s status as majority representative which is totally at odds with its attempt at trial to overcome that very presumption let alone the presumption of continuing majority status Therefore I conclude that the loss of majority defense is not advanced in good faith and it is rejected as an after the fact attempt to justify its conduct in issue a finding supported by Respondents other conduct that unlawfully contributed to the purported loss of union support in any event Respondent apparently rests both of its claims on the withdrawal letters sent to the Union by the four returning strikers and the hiring of striker re placements who supposedly did not want union represen tation Here Respondents problems are manifold The letters of withdrawal if in fact they amount to that are a nullity for that purpose in light of Respondents unlawful conduct in the inducement and preparation of them albeit Section 10(b) bars a finding of violation Medo Photo Supply Corp v NLRB 321 US 678 684 (1944) Having itself orchestrated the defections Respondent is barred from reliance thereon In addition to this unlawful conduct creating a coer cive atmosphere which would render any loss of union support legally meaningless is Respondents unilateral change in benefits and wages from the very outset of its hiring during the strike Although these early changes are precluded by Section 10(b) from a finding of viola tion they were as discussed below improper under Board law Accordingly there is absent in this the requi site condition for asserting a doubt of majority i e a context free of unfair labor practices In addition the letters of withdrawal from union mem bership do not constitute clear and unequivocal rejec tions of the Union s bargaining authority particularly in light of the long history (over 20 years ) of union repre sentation Further Respondent has not carried the heavy burden of persuasion to overcome the presumption that a majority in the unit continued its desire for union repre sentation The core of the unit appears to have consisted at all times of no more than about nine regular employ ees and possibly only seven The record is inadequate to determine a larger stable unit at any specific time al though as many as 14 different employees may have worked at various times after the strike Four of this CHEMUNG CONTRACTING CORP number consisted of the returning strikers whose defec tions were prompted by Respondents unlawful con duct Four others Donald Ross Billy Ward Alton McCaskill and Clifford Thomas previously worked under the union security contract and were considered by Respondent to be on layoff status It would appear that any antiunion sentiment by them arguably could have been attributed to the unlawful unilateral changes in wages and benefits Thus even a unit of 15 still would have majority support Finally replacement employees normally would be presumed to support the Union even assuming regular and specific periods of employment The evidence relied on to counter this presumption is in sufficient and vague and amounts to no more than an al leged failure by such employees to affirm their support for the Union However there is no reliable evidence that they rejected the Union either Accordingly I conclude that the Union s presumption of majority support continued into the 10(b) period be gining 24 April 1983 C The Unilateral Change It is well settled that absent a bargaining impasse or union waiver an employer violates Section 8(a)(5) and (1) of the Act when during the course of negotiations with its employees duly recognized bargaining repre sentative it institutes unilateral changes in the terms and conditions of employment of its unit employees NLRB v Katz 369 US 736 743-748 (1962) Thus absent an impasse in July 1982 (union waiver is not an issue) when Respondent first made unilateral changes in the fringe benefit plans and contributions with the resultant in crease in wages Respondent would have been engaged in violative conduct Using such conduct as background for the identical subsequent acts that occurred within the 10(b) period it is clear that Respondent violated Section 8(a)(5) and (1) of the Act as alleged Of course Respondent defends because as of the date of the initial changes in July 1982 an impasse in negotia Lions did exist between the parties Once again the law is clear that after bargaining to impasse an employer does not violate the Act by making unilateral changes as long as the changes are reasonbly comprehended by the em ployer s preimpasse proposals and the union has had an opportunity to discuss the specifications of the proposals before implementation NLRB v Crompton Highland Mills 337 U S 217 (1949) Peerless Roofing Co v NLRB 641 F 2d 734 735 (9th Cir 1981) Western Publishing Co 269 NLRB 355 (1984) Thus Respondents defense rests on three pillars (1) the existence of an impasse (2) the substantial similarity between the actual changes and the proposals made during negotiations and (3) a chance for the Union to discuss the proposals before the change is made Clearly if any pillar crumbles the entire structure of the defense dissolves For the following reasons I reject the defense as unsupportable by the record evi dence We begin by noting that fringe benefit payments start mg in July 1982 unquestionably were different conditions of employment than what had been paid to employees under the expired contract and Respondent does not argue otherwise But contrary to Respondent I con 783 elude that the changes instituted in July 1982 were sub stantially different from those proposed by Respondent in May 1982 and the Union never was afforded an op portunity to discuss the specifics of any of the changes In May Respondent proposed that it would continue to make contributions to the Union s welfare fund unem ployment insurance fund and joint training fund In July Respondent without any notice to the Union whatso ever totally discontinued contributions to all the above funds In May no proposals were submitted regarding the establishment of an employer run health insurance plan In July contributions were made on behalf of the bargaining unit employees to the Respondents own Blue Cross/Blue Shield plan Further the May proposal re garding welfare contributions to the union fund was mandatory whereas the July contributions to Respond ent s plan were optional Moreover the May proposal specified that contributions were to be based on actual hours worked while the July change called for a flat rate contribution In May Respondent proposed that pension contribu tions be made on behalf of bargaining unit employees based on the number of actual hours worked Such pay ments were to be made directly to IRAs to be opened by the employees From the language of the May proposal it is clear that these payments on the part of the Re spondent were mandatory The Company shall make pension contributions In July the Respondent estab fished a pension plan in which each bargaining unit em ployee had the option of opening an IRA if he did then the Respondent would make the appropriate contribu tions to his account if he did not open the IRA then Re spondent made no contributions at all to a specific pen sion fund or account Rather Respondent paid the requi site amount directly to the employee as wages This pay ment had the effect of increasing the employees rate of pay and subjected previously untaxed moneys to with holding taxes another change not contemplated in the May proposal at least as far as the base contributions went (Provision was made in the May proposal for pay ment directly as wages of the amount of pension contri buttons that exceed the maximum amount that could be deposited into an IRA and still receive the tax deferred status ) Thus it is abundantly clear that even had an impasse existed as of June 1982 such an impasse would not con statute a defense given the substantial and significant dif ferences between the proposals and the actual changes and the total lack of opportunity for the Union to discuss the details of the changes Moreover had an impasse ex isted on 17 June 1982 the date Respondent gave notice of the deadlock in negotiation the strike which corn menced on 21 June 1982 before the actual implementa tion of the changes for the returning strikers would have served to break the impasse Hi Way Billboards 206 NLRB 22 (1973) NLRB v Cold Storage Corp 96 NLRB 1108 (1951) enfd 203 F 2d 924 (5th Cir 1953) Based on the foregoing analysis I find that regardless of whether an impasse existed the independent and dis tinct implementation of these unilateral changes in fringe benefits and the resulting increase in wage rates within 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the 10(b) period constituted violations of Section 8(a)(5) and (1) 9 D Imposition of a Condition to Bargaining Negotiations By letters dated 22 March 6 May and 12 August 1983 Respondent refused to return to the bargaining table unless the Union first provided it with a written listing of alternatives and concessions which the Union supposedly had made during the 1982 negotiations Re spondent stated that it required this material before meet ing in order to adequately prepare for the present negoti ations The Union contends that Respondent was re questing a written listing of all proposals past and present In fact there is some documentary evidence of this as the Respondents 6 May letter specifically re quests alterations and modifications which the Union is proposing and offering Unquestionably if Respond ent in fact was demanding proposals not yet presented in previous bargaining sessions the imposition of this condi tion to the continuation of bargaining would constitute an unfair labor practice Respondents duty to bargain collectively under Section 8(d) includes the requirement to meet at reasonable times and confer in good faith and such requirement is not satisfied merely by inviting the Union to submit any proposal it contemplates making in writing where it requests face to face meetings US Cold Storage Corp 96 NLRB 1108 (1951) enfd 203 F 2d 924 (5th Cir 1953) Fountain Lodge 269 NLRB 674 (1984) Furthermore accepting that Respondent merely was demanding a written summary of previously made pro posals its action still constitutes a violation of Section 8(a)(5) Alle Arecibo Corp 264 NLRB 1267 (1982) (em ployer demand that union summarize proposals it had re vised during prior negotiating session and submit in writ ing in advance of further face to face negotiations ) What makes the Respondents intransigence in its pose tion all the more indicative of bad faith is that the Union attempted to comply with Respondents initial request in March by providing a general written listing of its previ 9 Although reserving judgment on the impasse issue from a review of the record it appears that apart from the question of bad faith an im passe may have actually existed between the parties In Taft Broadcasting Co 163 NLRB 475 (1967) the Board set forth the following factors to be considered in determining the existence of an impasse the parties bar gaining history the parties good faith during negotiations the length of the negotiations the importance of the issues discussed and the content poraneous understanding of the parties about the state of negotiations Here we have two parties who had survived at least 22 years of collec tive bargaining negotiations As noted above both sides charges of bad faith bargaining had been administratively dismissed with the Union s appeal from the dismissal of its charge being denied While only four bar gaining sessions were held each lasted from 2 1/2 to 4 1/2 hours with crucial and substantial issues being discussed Finally as noted above Clark s knowing usage of the word impasse in the Union s newsletter indicates that the Union concurred with the Respondents evaluation of the state of the negotiations Bell Transit Co 271 NLRB 1272 (1984) It should not be forgotten however that the Union argues that Respondent bargained in bad faith thus precluding a finding of lawful impasse Net ther this nor Respondent s counterclaim of bad faith by the Union need be considered in light of my reasons above for rejecting the defense The General Counsels failure to issue complaints however is not an impedt ment Hotel & Restaurant Employees Local 274 (Warwick Caterers) 269 NLRB 482 (1984) - ous proposals When Respondent refused to accept this as a proper response and altered its demand by request ing specific language changes the Union in its reply letter offered to meet and clarify its prior bargaining po sition Thus the Union s attempts to comply and get on with the bargaining process serve to highlight the viola tive conduct of the Respondent For its part Respondent was content to avoid direct meeting by taking refuge in a discredited position In doing so however it contra vened a basic statutory duty The Board long ago ob served It is elementary that collective bargaining is most effectively carried out by personal meetings and conferences of parties at the bargaining table Indeed the Act imposes this duty to meet US Cold Storage supra V WITHDRAWAL OF RECOGNITION In the complaint the General Counsel alleged that Re spondent withdrew recognition from the Union on 28 November 1983 Although Respondent admits that it made a management decision in or about September 1983 that the Union no longer enjoyed the support of the ma jority of the bargaining unit employees it never con veyed this decision to the Union There is absolutely no evidence whatsoever on the record that the Union was notified of or threatened with withdrawal of recogntion by Respondent Indeed Respondents failure to question the Union s representative status until it found itself in a litigation posture is indicative of its bad faith in this regard as found above The General Counsel s reliance on Respondents secret deliberations is insufficient to support the allegation here in issue Furthermore al though the allegation has not been formally withdrawn it has not been vigorously pursued or seriously briefed Nor would a finding of violation here materially add to the remedy imposed for the violations found For all these reasons this allegation is dismissed CONCLUSIONS OF LAW 1 Chemung Contracting Corporation and Dalrymple Gravel and Contracting Co Inc are employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Chemung Contracting Corporation and Dalrymple Gravel and Contracting Co Inc (Respondent) consti tute a joint employer to the extent that they are signato ries to the same collective bargaining agreement and the employees covered by that agreement constitute a single bargaining unit 3 International Union of Operating Engineers Local No 832 AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 4 The following employees of Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act All operating engineers as defined in Article V of the parties 1979-1982 collective bargaining agree ment excluding laborers carpenters masons guards watchmen professionals office clericals and supervisors as defined in the Act CHEMUNG CONTRACTING CORP 785 5 At all times material the Union has been and is now the exclusive bargaining representative of all the employees in the above described appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act 6 By requiring the Union to provide written proposals as a condition to meeting with it for the purpose of ne gotiating a collective bargaining agreement Respondent violated Section 8(a)(5) and (1) of the Act 7 By unilaterally discontinuing contractual benefit fund payments and changing wage rates and fringe bene fits Respondent violated Section 8(a)(5) and (1) of the Act 8 The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 9 Respondent did not engage in unfair labor practices other than those found here THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it be or dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act To remedy its refusal to meet and bargain with the Union I shall recommend that it cease its insistence on written proposals as a condition to meeting and that on request by the Union it meet and bargain and if an understanding is reached that it be embodied in a signed agreement I have also found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally ceasing to make contractually mandated payments to several benefit funds (welfare fund two pension funds supplemental unem ployment insurance fund point training fund) thereby changing employees terms and conditions of employ ment As a remedy I shall require Respondent to revoke on request such unilateral changes made on or subsequent to 24 April 1983 and to make contributions to the appropriate funds retroactive to that date These re medial actions shall be made only on behalf of those em ployees who were members of the bargaining unit at the time of the strike and who if they worked thereafter are thus designated as returning strikers Capitol Husting Co 252 NLRB 43 45 (1980) enfd 671 F 2d 237 (7th Cir 1982) As the Respondent has strenuously argued for the inclusion in the bargaining unit of the four employees who were on layoff status at the time of the strike (R Br 7) for the purposes of this remedy I accede to Re spondent s demand Specifically this remedy shall apply at least to the following individuals if they were em ployed subsequent to 24 April 1983 Ralph Clark Donald McIntosh Alfred Short Eldred Bortle Gordon Roberts Kenneth Voorhees Franklin Stoddard Clar ence Brown John Travis Alton McCaskill Clifford Thomas Donald Ross and Billy Ward all of whom are deemed to have been members of the bargaining unit at the commencement of the strike Further in the event any of the above named employ ees suffered any out of pocket loss as a result of Re spondent s unilateral changes in payment to fringe benefit funds including but not limited to medical expenses and losses due to the deduction of withholding taxes from salaries that are attributable to the mandated fringe bene fit contributions I shall recommend that Respondent re imburse such individuals in any amount not covered by other funds or insurance policies provided that such amount shall not exceed what the employee would have received under the Union s plans However in accordance with established practice whatever amounts are payable to the various benefit funds themselves shall not include interest at a fixed rate Rather the procedure to be followed is stated by Administrative Law Judge Steven B Fish and affirmed by the Board in Diplomat Envelope Corp 263 NLRB 525 fn 59 (1982) as follows Because the provisions of the employee benefit fund agreements are variable and complex the Board does not provide for interest at a fixed rate on fund payments due as part of a make whole remedy Therefore I leave to further proceedings the ques tion of how much interest Respondent must pay into the benefit funds in order to satisfy the make whole remedy These additional amounts may be determined depending on the circumstances of each case by reference to provisions in the documents governing provisions to evidence of any loss direct ly attributable to the unlawful action which might include the loss of return on investment of the por tion of funds withheld additional administrative costs etc but not collateral losses See Merry weather Optical Company 240 NLRB 1213 1216 at fn 7 (1979) Turnbull supra Finally I have found that while unilaterally discon tinuing and changing the fringe benefits Respondent concomitantly increased hourly wages It is customary in such cases of unilateral action to restore the status quo ante insofar as practical Accordingly I shall recommend that Respondent be ordered on the Union s request to reinstate the fringe benefits and wage rates that existed before 21 June 1982 but that such order not be con strued as requiring that any wage or benefit increase granted to unit employees be rescinded On these findings of fact and conclusions of law and on the entire record I issue the following recommend edio ORDER The Respondent Chemung Contracting Corporation and Dalrymple Gravel and Contracting Co Inc Elmira New York its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to meet and bargain collectively on re quest with International Union of Operating Engineers Local No 832 AFL-CIO as the exclusive representative io If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the employees in the appropriate unit by requiring the Union to provide written proposals as a condition to meeting with it for the purpose of negotiating a collec tive bargaining agreement The bargaining unit is All operating engineers as defined in Article V of the parties 1979-1982 collective bargaining agree ment excluding laborers carpenters masons guards watchmen professionals office clericals and supervisors as defined in the Act (b) Refusing to bargain with the Union by unilaterally discontinuing contractual benefit fund payments and by unilaterally changing wage rates and fringe benefits (c) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request meet and bargain with the Union as the exclusive representative of all the employees in the above appropriate unit regarding rates of pay wages hours and other terms and conditions of employment and if an understanding is reached embody such under standing in a signed agreement (b) On request from the Union revoke any unilateral changes in the payment of wages and of contractually mandated fringe benefits to various benefit funds that ex isted for bargaining unit employees prior to on or about 21 June 1982 and reinstate those terms and conditions of employment provided however that nothing here shall be construed as requiring recission of any wage or bene fit increases which previously have been granted to unit employees (c) Pay to the appropriate funds the contributions re quired as of and subsequent to 24 April 1983 on behalf of employees who were in the bargaining unit on or about 21 June 1982 and make whole such employees for any losses they may have suffered by reason of Respond ent s unilateral changes including unreimbursed ensuing medical and other expenses and reimbursement of moneys deducted from salaries which are attributable to the mandated fringe benefit contributions and continue to make such fringe benefit contributions until Respond ent negotiates in good faith with the Union to an agree ment or to a good faith impasse or until the Union re fuses to bargain (d) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (e) Post at its place of business in Elmira New York and jobsites where unit employees work copies of the attached notice marked Appendix 11 Copies of the notice on forms provided by the Regional Director for Region 3 after being signed by the Respondents author ized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply " 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