Construction Service, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1990

298 N.L.R.B. 1 (N.L.R.B. 1990)

CONSTRUCTION SERVICES 1
Pinkston-Hollar Construction Services, Inc. d/b/a
Construction Services , Inc. and United Union of
Roofers, Waterproofers and Allied Workers,
Local Union No. 116 , AFL-CIO. Case 23-CA-
10838
March 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRAcRAFT AND DEVANEY
On June 22, 1989, Administrative Law Judge
Karl H. Buschmann issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief.
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, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Union waived its right
to bargain over the Respondent's implementation
of its own benefit plans on September 1, 1987,1 be-
cause the Union failed to act with due diligence
following the Respondent"s notice of its intention
to implement its plans. Accordingly, he dismissed
the complaint alleging that the Respondent had
unilaterally implemented the plans in violation of
Section 8(a)(5) and (1). For the reasons set forth
below, we reverse the judge's finding that the
Union waived its rights and find that the Respond-
ent's actions violated the Act. '
The record establishes that the Respondent was
a member of a multiemployer bargaining associa-
tion that had a collective-bargaining agreement
with the Union. That agreement required, inter
alia, that the Respondent make contributions into
certain pension, welfare, and other benefit trust
funds administered by the Union. On January 13,
the Respondent notified the Union that it was with-
drawing from the multiemployer association and
that it intended to open' its collective-bargaining
agreement for modification or termination when
that agreement expired on March 31. The parties
held several bargaining sessions beginning in
March in which the Respondent indicated that it
wished to make certain changes in the existing
agreement and the Union indicated that it wanted
to extend the existing agreement for another year.
' All dates hereafter are in 1987.
In an April 9 letter to the Union, the Respondent
indicated that it was contemplating changes in the
pension and benefit plans administered by the
Union and requested the Union to provide it with
certain financial information related to the pension
plan. Following further negotiations, the Respond-
ent informed the Union through a July 22 letter
that it intended to cease participation in the
Union's benefit funds on September 1 and to imple-
ment its own plan for employees on that date. The
letter further indicated that if the Union wanted to
meet and bargain over the Respondent's cessation
of participation in the funds, it should contact the
Respondent. The Union replied by letter of July 30
that it "certainly does wish to meet and bargain
over [the] Company's proposal to cease participa-
tion in the Trust Funds" and offered three dates in
August on which the parties could negotiate over
the matter. The parties had a brief meeting on
August 14 during which they -did not discuss the
benefit plans proposal, but did agree to meet again
on August 20. The Respondent confirmed the
agreement to meet on August 20 in a certified
letter of August 17 in which it informed the Union
that its attorneys would be present for that and
future negotiation sessions.
The Union's business agent, Banks, appeared at
the August 20 meeting, stated that the Union's at-
torney was unable' to attend because he was in San
Antonio, and that Banks was not prepared to nego-
tiate without his attorney.- Banks also indicated that
his attorney would be available to meet, for the
purpose of bargaining on September 14, 20, and 28.
The Respondent's representatives replied that they
would discuss a - subsequent meeting with the
Union's attorney if he should call, that they were
prepared to bargain that day, and that they still in-
tended to implement their own plan and cease pay-
ments into the union funds on September 1. Banks
replied, "Fine, I will tell him [the Union's attor-
ney]."
The Respondent ceased payments into the
Union's funds and implemented its own benefit
plans on September 1. The parties next met on Sep-
tember 23 and discussed the entire contract, includ-
ing benefits. The Union stated that it believed that
the Respondent's unilateral implementation of the
benefit program was an unfair labor practice and
that it intended to file charges with the Board. The
Respondent denied that it had committed an unfair
labor practice. Thereafter, the parties agreed to
suspend negotiations on a new contract until the
unfair labor practice charge had been resolved by
the Board.
On the basis of the foregoing events, the judge
found that the Union's bargaining performance ap-
298 NLRB No. 1
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
peared "superficial and indifferent." Consequently,
he concluded that the Union had failed to act with
due diligence and had therefore waived its right to
bargain over the Respondent's changes. We dis-
agree. -
An employer has a statutory obligation to con-
tinue to follow the terms of an expired collective-
bargaining agreement until it has bargained to im-
passe with the union representing the employees,
unless the union fails to request bargaining in a
timely fashion following the employer's notice of
an intention to modify the agreement. Cisco Truck-
ing Co., 289 NLRB 1399 -(-1988). Once an employer
notifies a union of proposed changes in terms and
conditions of employment, a union must act with
due diligence in requesting bargaining. Jim Walter
Resources, Inc., 289 NLRB 1441 (1988); Clarkwood
Corp., 233 NLRB 1172 (1977). When a union fails
to request bargaining, the Board has found that the
union has waived its right to bargain even though
it has received only a few days' notice of the pro-
posed changes. See generally Jim Walter Resources,
A union may relinquish a statutory right during
contract negotiations, however, only by clear and
unmistakable waiver. Tritac Corp., 286 NLRB 286
(1987); Communications Workers Local 1051 v.
NLRB, 644 F.2d 923, 927 (1st Cir. 1981). There
must be a conscious relinquishment by the union,
clearly intended and expressed to give up that
right. WCCO Radio v. NLRB, 844 F.2d 511, 516
(8th Cir. 1988) (quoting Procter & Gamble Mfg. Co.
v. NLRB, 603 F.2d 1310, 1318 (8th Cir. 1979). The
finding of a waiver depends on the circumstances
of each case. Meharry Medical College, 236 NLRB
1396, 1408 (1978). Reviewing the circumstances of
the present case, we find that, the Union's actions
do not establish a clear and unmistakable waiver of
its statutory rights.
Initially, we note that the Union did make a
timely request to bargain once it received notice of
the Respondent's proposed changes in the July 22
letter.- The Union clearly indicated that it wished
to bargain over the proposed changes and suggest-
ed several dates on which to negotiate. It did not
merely protest the proposed actions or file unfair
labor practice charges. Consequently, the decisions
in Kentron of Hawaii, 214 NLRB 834 (1974), and
Kansas Education Assn., 275 NLRB 638 (1985),
which the_ judge cited in his decision, are inappo-
site because those cases involved situations in
which the union failed to make a timely request to
bargain. 2 - -
2 For the same reason, the Respondent's reliance on various other cases
such as Jim Walter Resources, supra, and Whirlpool Corp., 281 NLRB 17
(1986), to support its argument that the Union waived its rights is mis-
placed.
Furthermore, the Union's subsequent actions
were consistent with its expressed intention to bar-
gain over the matter, and inconsistent with a find-
ing of a clear and unmistakable waiver on the
Union's part. Thus, the parties scheduled a meeting
on August 20 in which the benefit funds would be
discussed. Although the Union was not prepared to
bargain because its attorney was unavailable, the
Union suggested alternative dates on which its at-
torney would be available to bargain on its behalf
with the Respondent.3 Indeed, the parties met
again on September 23 and discussed the Respond-
ent's implementation of its proposal. The facts,
therefore, do not establish a situation in which the
Union was continually avoiding the Respondent's
earnest efforts to sit down and bargain over the
matter. Cf. AAA Motor Lines, 215 NLRB 793
(1974). Accordingly, we conclude that the Union
acted with due diligence in timely requesting bar-
gaining that the evidence does not support the,
judge's finding that the Union's bargaining efforts
were superficial and indifferent.
Nor does the Union's failure to protest the Re-
spondent's announcement at the August 20 meeting
that the Respondent still intended to implement its
proposal on September 1 compel a contrary con-
clusion that the Union consciously relinquished its
statutory right to bargain. In this regard, Banks re-
plied merely that he would tell his attorney what
the Respondent had said, and Martin, the Respond-
ent's attorney, specifically testified that he under-
stood that statement as an acknowledgement of the
Respondent's position, not as the Union's assent to
it. Thus, the Respondent cannot claim that it rea-
sonably believed that the Union had rescinded its
earlier expressed intention to bargain over the
matter. This is particularly true in light of Banks'
other statement at the August 20 meeting that the
Union wished to pursue bargaining on alternative
dates. Thus, we find that the Union's, actions do
not establish its acquiescence in, or conscious relin-
quishment of, its right to bargain over the Re-
spondent's proposed implementation of its plans,.
In light of our conclusion that the Union did not
waive its statutory rights to bargain, we find that
the Respondent was not privileged to act unilater-
ally. Accordingly, we conclude that the Respond-
ent violated Section 8(a)(5) and (1)-when it unilat-
erally ceased making payments into the Union's
benefit plans and implemented its own benefit plans
on September 1.
2 We note, moreover, that the Respondent did not present the Union
with any justification why the proposal had to be implemented by Sep-
tember I and why delay of the proposed implementation date until after
the parties had met in September was not feasible. ' -
CONSTRUCTION SERVICES 3
CONCLUSIONS OF LAW
1. By unilaterally discontinuing payments into
the Union's trust funds and pension and fringe ben-
efit funds on behalf of its unit employees, the Re-
spondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
2. By unilaterally implementing its own group
health plan, profit-sharing plan, and vacation plan
on behalf of its unit employees, the Respondent has
engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.We shall order the Respondent to pay to the
Union's trust funds and pension and fringe benefit
funds the contributions it has failed to make since
its unlawful cessation of payments `on September
1.4 We shall also order the Respondent to make
whole unit employees for any losses caused by its
failure to make the required fund payments and to
reimburse employees for any expenses ensuing
from the Respondent's unlawful failure to make
such payments as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981). Interest on, such expenses shall
be computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that
the Respondent, Pinkston-Hollar Construction
Services, Inc. d/b/a Construction Services, Inc.,
Humble, Texas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the
United Union of Roofers, Waterproofers and
Allied Workers, Local Union No. 116, AFL-CIO
4 Because the provisions of employee benefit fund agreements are vari-
able and complex , the Board does not provide for the addition of a fixed
rate of interest on unlawfully withheld fund payments at the adjudicatory
stage of a proceeding . We leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. Depending on the
circumstances of each case, such additional amounts may be determined
by reference to provisions in the documents governing the funds at issue
and, when there are no governing provisions , by evidence of any losses
directly attributable to the unlawful withholding , winch might include
the loss of return on investment of the portion -of the funds withheld, ad-
ditional administrative costs, etc., but not collateral losses . Merryweather
Optical Ca, 240 NLRB 1213, 1216 fn 7 (1979). '
as the representative of its employees in the follow-
ing appropriate unit:
All roofers, damp and waterproof workers, in-
cluding apprentices, helpers, and allied work-
ers employed by Respondent at its Humble,
Texas, facility excluding" all other employees,
including guards, watchmen and supervisors as
defined in the Act.
(b) Unilaterally ceasing to, make required pay-
ments on behalf of its employees in the unit de-
scribed above since September 1, 1987, to the
Union's trust funds and pension and fringe benefit
funds.
(c) Unilaterally instituting its own group health
plan, profit-sharing plan, and vacation plan with re-
spect to employees in the unit described above.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them, by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain collectively with the
Union as the exclusive representative of employees
in the unit described above and, if an understand-
ing is reached, embody that understanding in a
signed agreement.
(b) Make whole unit employees. by paying on
their behalf all contributions to the Union's trust
funds and pension and fringe benefit funds, as pro-
vided in the collective-bargaining agreement that
expired on March 31, 1987, that have not been paid
since September 1, 1987, and continue such pay-
ments until the Respondent negotiates in good faith
to a new agreement or to, an impasse. ,
(c) Make unit employees whole for any losses or
expenses they may have incurred as a result of the
unilateral discontinuance of fund payments, in the
manner set forth in the remedy section of this deci-
sion.
(d) On request, rescind its own group health
plan, profit-sharing plan, and vacation plan that it
instituted on September 1, 1987.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social 'security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its facility in Humble, Texas, copies of
the attached notice marked "Appendix."5 Copies
5 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-
Continued
4 DECISIONS OF THE NATIONAL" LABOR RELATIONS BOARD
of the notice, on forms provided by the Regional
Director for Region 16, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately. upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the -Regional' Director in writing
within 20, days from the date of this Order what
steps the Respondent has taken to comply.
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."
APPENDIX
WE WILL make unit employees whole by paying
on their behalf all contributions to the Union's trust
funds and pension and fringe benefit funds, as pro-
vided in the collective-bargaining agreement that
expired on March 31, 1987, that have not been paid
since September 1, 1987, and WE WILL continue
such payments until we negotiate in good faith to a
new agreement or to an impasse.
WE WILL make unit employees whole for any
losses or expenses they may have incurred as a
result of our unilateral discontinuance of fund pay-
ments, with interest.
WE WILL, on request, rescind our own group
health plan, profit-sharing plan, and vacation plan
that we instituted on September 1, 1987.
PINKSTON-HOLLAR CONSTRUCTION
SERVICES, INC. D/B/A CONSTRUC-
TION SERVICES, INC.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
the United Union of Roofers, Waterproofers and
Allied Workers, Local Union No. 116, AFL-CIO
as the representative of our employees in the fol-
lowing appropriate unit:
All roofers, damp and waterproof workers, in-
cluding apprentices, helpers, and allied work-
ers employed by the Employer at its Humble,
Texas, facility excluding all, other employees,
including guards, watchmen and supervisors as
defined in the Act.
WE WILL NOT unilaterally cease making required
payments on behalf of our unit employees to the
Union's trust funds and pension and fringe benefit
funds.
WE WILL NOT unilaterally institute our own
group health plan, profit-sharing plan, and vacation
plan on behalf of unit employees.
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, bargain collectively with
the Union as the exclusive representative of our
unit employees and, 'if an agreement is reached,
embody that agreement in a signed contract.
Robert Levy, Esq., for the General Counsel.
David M. Thomas, Esq. (Fulbright & Jaworski), of Hous-
ton, Texas, for the Respondent.
Ted B. Kuhn, P. C. (Buttrill & Kuhn), of Houston, Texas,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN , Administrative Law Judge.
This case was tried at Houston, Texas, on June 21, 1988.
The charge was filed by the Union on November 20,
1987, and the complaint was issued on April 20, 1988.
The primary issue is whether the Company, the Re-
spondent, violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) by unilaterally and with-
out bargaining with the Union implemented a group
health plan, profit-sharing plan, and vacation plan and
ceased its payments into the Union's benefit plans.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
The Company, a Texas corporation located at 1245 In-
diana Street, Humble, Texas, is engaged in commercial
construction. Having purchased and received goods and
products in excess of $50,000 from points outside the
State of Texas, it is admittedly- engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
The Union, United- Union of Roofers, Waterproofers
and Allied Workers, Local. Union No. 116, AFL-CIO; is
a labor organization within the meaning of Section 2(5)
of the Act.
Since 1980, the Company has had a bargaining rela-
tionship with the Union. On March 18, 1987, the Union
was certified as the exclusive collective-bargaining repre-
CONSTRUCTION SERVICES 5
sentative of the employees pursuant to, an RM petition
filed by the Respondent. (Case 23-RM-431) in the fol-
lowing unit:
All' roofers, damp and waterproof workers, in-
cluding apprentices, helpers, and allied workers em-
ployed by Respondent at its Humble, Texas, facility
excluding all other employees, including guards,
watchmen and supervisors as defined in the. Act.
Until March 31, 1987, the Company, as a member of
the Houston Roofing and Waterproofing Contractors As-
sociation, had a collective-bargaining agreement with the
Union (G.C. Exh. 2, p. 9). That agreement provided for
certain pension, welfare, and other benefit trust funds
into which the Employer was required to make contribu-
tions. By letter of January 13, 1987, the Company in-
formed the Union that the Contractors Association no
longer represented the Company and that it intended to
open the contract for purposes of termination or modifi-
cation (R. Exh. 1). The Union replied by letter of Janu-
ary 27, 1987, acknowledging the Company's request and
expressing its readiness to meet with the Company to ne-
gotiate a new collective-bargaining agreement (R. Exh.
2). The parties held several bargaining sessions beginning
in March. The parties were represented by Bill Ferem,
the Company's vice president, and Robert C. Banks, the
Union's business agent. The Company expressed its
desire to make certain changes in the existing contract,
and the Union wanted an extension of the contract for
another year.
By letter of April 9, 1987, the Company first indicated
that it contemplated a change in the pension and benefit
plans administered by the Union. Ferem also requested
the Union to furnish it certain financial information relat-
ing to the Union's pension plan (R. Exh. 3). The Compa-
ny's first proposed contract dated April 24, 1987, in arti-
cle VII-Benefits and Funds, did not contain any provi-
sions , but stated only "To be negotiated" (R. Exh. 4).
Following further negotiations, Ferem informed the
Union by letter of July 22, as follows (G.C. Exh. 3):
This is to inform you that it is the intention of Pink-
ston-Hollar Construction Services Inc. on Septem-
ber 1, 1987 to cease participation in the National
Roofing Industry Pension Fund, the Roofers .. .
Welfare Trust Fund, the Roofers . . . Vacation
Trust Fund, and the Roofers . . . Apprentice Trust
Fund. In lieu of participation in these funds, the
Company intends to utilize its own group health
plan, profit sharing plan, and vacation plan for its
employees. If you wish to meet and bargain over
the Company's cessation of participation in the
funds, please contact me.
The Union responded with a letter, dated July 30, advis-
ing that the Union "certainly does wish to meet and bar-
gain over [the] Company's proposal to cease participa-
tion in the Trust Funds" (G.C. Exh. 4). At a meeting on
August 14, 1988 , the date for a next meeting was set for
August 20, 1987, at 9 a.m. (Tr. 22). The date was con-
firmed by letter of August 17, 1987, from Ferem to
Banks (R. Exh. 10). The letter also stated that the Com-
pany's attorney would be present at the meeting:
The parties met on August 20. Banks testified that he
arrived shortly before 9 a.m. and noticed that the Com-
pany was represented by Ferem and two attorneys. At
that point he told Ferem that he "would like to postpone
the meeting since their attorneys were, there" and he was
not represented by counsel (Tr. 37, 120). Banks testified
that he had not received Respondent's letter of August
17, 1987, in which Ferem e had informed Banks that the
Company would be represented by counsel at the meet-
ing. Banks testified that after "some general conversation
... it was basically agreed that [he] would get with [his]
attorney and the two attorneys wouldget together and
set up a date for meeting"' (Tr. 38). Banks could not
recall during his testimony whether the Company in-
formed him during the August 20 meeting that it would
stop paying into the union benefits programs.
Respondent's testimony, as it relates to the August 20
meeting , differed from that of Banks' account. According
to Ferem's testimony, Banks appeared for the meeting
stating "that his attorney was not able to be there for the
meeting . . . [that] he was in San Antonio, and that he
wasn't prepared to talk without his attorney . . . ." (Tr.
23.) Ferem further testified that the Company's repre-
sentatives told Banks at that meeting that they were
going ahead and "implement what .[they] had said in the
letter," namely, the proposed cessation of payments into
union benefits programs (Tr. 23-24, 59). Ferem stated
that Banks acknowledged the Company's position, and
that he voiced no objection to it (Tr. 23, 42). The parties
departed with an agreement to have the respective attor-
neys contact each other to set up a future meeting.
The Company ceased its payments into the union
funds effective September 1, 1987. A new meeting for
September 111, 1987, was confirmed by a letter dated
September 2, 1987, from the Respondent to the Union, as
was the- Company's action of ceasing the payments as of
September 1, 1987 (R. Exh. 5). The meeting in Septem-
ber was held on September 23, attended by Ted Kuhn,
an attorney representing the Union, and Neil Martin as
the attorney for the Company, The parties discussed the
entire contract, including benefits, crew composition, and
the broad spectrum of the contract (Tr. 25). As to the
Company's discontinued participation in the Union's ben-
efit programs, Banks recalled that the Union expressed
its intentions to file charges with the National Labor Re-
lations Board. Letters to that effect were exchanged be-
tween the parties (G.C. Exhs. 5-10).
The question to be resolved on this record is whether
the Company's cessation of the payments into the
Union's benefit programs -violated Section 5 of the Act.
The General Counsel ' argues that the Company's unilat-
eral action in this- regard, absent an impasse, amounted to
a failure to bargain in good faith. The Respondent, on
the other hand, submits that the Union waived its right
to bargain' over' the Company's withdrawal from the
Union's benefits funds because it failed to act with due
diligence.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Analysis
It is well settled that an employer's unilateral change
during the course of a collective-bargaining relationship
concerning mandatory subjects of bargaining is unlawful.
Recognized exceptions to an employer's unilateral action
are those instances where an impasse was reached or
where a waiver can be established.
Because the parties are in agreement that an impasse
was not reached, the issue here is one of waiver. A union
may waive its statutory right to be consulted about
changes in terms and conditions of employment, but such
a waiver may not be lightly inferred but must be clear
and unmistakable. Metropolitan Edison Co. v. NLRB, 460
U.S. 693 (1983). There is no dispute that the employees'
pension and benefit plans under the expired contract are
considered mandatory subjects of bargaining. Moreoever,
there is also no suggestion that the Respondent failed to
notify the Union of its intention to change the terms of
the expired contract as it related to the pension and ben-
efit plan administered by the Union. Indeed, the Compa-
ny formally informed the Union not only by letter of
July 22, 1987, but also indicated in its letter of April 9,
1987, that it contemplated a change in those provisions.
The Board has held in the past that when an employer
notifies a union of proposed changes in terms and condi-
tions of employment, it is incumbent on the union to act
with due diligence in requesting bargaining. Kenton of
Hawaii, 214 NLRB 834, 835 (1974); Kansas Education
Assn., 275 NLRB 638, 639 (1985).
Here, it is clear that the Union did not consciously
plan to waive its bargaining rights. Once the Company
informed the Union by letter of July 22, 1987, that it in-
tended to implement the changes, Banks responded by
letter of July 30, 1987, clearly advising the Company
that it did wish to meet and bargain. But the Union may
have failed to act with due diligence in pursuing its bar-
gaining rights. Both parties argue that the events during
the August 20 meeting were crucial to the determination
of this issue. On that day, the Respondent was prepared
to bargain. Ferem had notified the Union by' letter of
August 17 that its attorneys would be present. That
letter was received by the Union on August 18, 1987 (R.
Exh. 10). Banks testified that he never saw the letter (Tr.
120). However, the record shows that the letter was cer-
tified, and that Harold Warren, the Union's secretary,
had signed for the receipt of the letter (Tr. 115). On
August 20, Ferem was accompanied by two attorneys,
but Banks arrived at the meeting without his attorney.
Banks testified that when he walked into the meeting and
saw Ferem with his two lawyers, he "asked them that
[he] would like to postpone the meeting because their at-
torneys were there until [he] could have legal counsel"
and that "it was basically agreed" that he could get his
counsel to set up another meeting (Tr. 37, 38). Ferem, on
the other hand, recalled that Banks appeared at the meet-
ing with the explanation "that his attorney was not able
to be there for the meeting . . . and that he wasn't pre-
pared to talk without his attorney ...." (Tr. 23.) The
Respondent's attorney, Neal Martin, similarly testified,
stating that Banks remarked that his attorney, Ted Kuhn,
was unable to attend the meeting because he was in San
Antonio, and that he wanted to wait until he could be
present to represent him in September (Tr. 59). Accord-
ing to the Respondent 's witnesses , Banks was told that
the Company would implement its own plans effective
September 1. Banks acknowledged the Respondent's
message by saying "fine, I will tell [our]" attorney (Tr.
60).1 As announced at the meeting and in its letters to
the Union, the Respondent effectuated its own benefit
plan and ceased its participation in the union plans for
the employees on September 1, 1987.
The parties met for purposes of bargaining on Septem-
ber 23, 1987, and thereafter when on November 16, 1987,
the parties agreed to postpone further negotiations be-
cause of the Union's position that the Respondent's uni-
lateral action constituted an unfair labor practice (G.C.
Exh. 10).
These facts present the rare situation where the Union
has waived its bargaining rights because of its failure to
act with due diligence. Initially it is not clear when, if
ever, the Union had even suggested to the Company that
it postpone or cancel its decision, including the imple-
mentation of its own benefit plans. Indeed, the record
shows the contrary, namely, that Banks had never for-
mally demanded that the Company refrain from effectu-
ating its announced intentions pending bargaining with
the Union. The Union's failure to do so may not have
been "the green light" for the Respondent to implement
the proposal on September 1, 1987, after it gave the
Union notice by letter of July 22, 1987, but it certainly
made it easier for the Respondent to act unilaterally.
Considering the bargaining process in its entirety, I find
that the Union's performance in this regard appeared su-
perficial and indifferent, particularly since there is no
evidence that the Respondent employed dilatory meth-
ods to avoid bargaining over this issue; to the contrary,
the Respondent was prepared on August 20, 1987, to
meet and bargain with the Union, but Banks declined be-
cause he did not have his attorney. Moreover, there is
also no suggestion that the Respondent was motivated by
discriminatory reasons to cease its participation in the
union-sponsored benefits programs. The,evidence sug-
gests that the Company implemented its own programs
for economic reasons . Finally, instead of attempting to
bargain about the issue with the Respondent even after it
had implemented its own plans on September' 1, the
Union merely informed the Respondent that it would file
charges with the Board. On the basis of the foregoing I
find that the Union failed to act with due diligence in
this instance and thereby waived its bargaining rights.
CONCLUSIONS OF LAW
1. Pinkston-Hollar Construction Services, Inc. d/b/a
Construction Services, Inc. is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
1 Because Banks appeared uncertain and hesitant during his testimony,
and in view of the fairly consistent testimony by Ferem and Martin, I
have credited Respondent's scenario of the meeting on August 20.
CONSTRUCTION SERVICES 7
3. The Respondent did not violate Section 8(a)(5) and [Recommended Order for dismissal omitted from pub-
(1) of the Act. lication.]