Hatch, R. A., Company

National Labor Relations Board - Board Decisions

Sep 20, 1982

263 N.L.R.B. 1221 (N.L.R.B. 1982)

R. A. HATCH COMPANY
R. A. Hatch Company and International Union of
Operating Engineers, Local No. 701, AFL-CIO
and Joint Council of Teamsters No. 37, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
Oregon, Southern Idaho, Wyoming and Utah
District Council of Laborers, Laborers Interna-
tional Union of North America, AFL-CIO.
Cases 36-CA-3667, 36-CA-3668, and 36-CA-
3669
September 20, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 23, 1981, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, Charging Party Oper-
ating Engineers and Charging Party Laborers filed
exceptions and supporting briefs, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
We agree with the Administrative Law Judge's
conclusion that an impasse had been reached be-
tween Respondent and the Charging Party Unions,
the Operating Engineers and the Laborers, 2 over
the signing of short-form memorandums of agree-
ment that would have bound Respondent to the
master labor agreement negotiated by the Unions
and the local chapter of the Associated General
Contractors of America (hereinafter A.G.C.). Ac-
cordingly, we further agree with the Administra-
tive Law Judge that Respondent was free, as a
result of the impasse, to implement its contract pro-
posals unilaterally, and that Respondent's doing so
on June 23, 1980,3 did not, therefore, violate
Section 8(a)(5) and (1) of the Act.
i Charging Party Laborers has excepted, and Charging Party Operat-
ing Engineers has implicitly excepted, to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
2 No exceptions were filed with respect to the Administrative Law
Judge's recommendation that the complaint, insofar as it pertained to the
Charging Party Teamsters, be dismissed Accordingly, Respondent's con-
tracts with that labor organization will not be discussed herein.
3 All dates herein are in 1980, unless otherwise indicated
263 NLRB No. 148
The facts, more fully set forth in the Administra-
tive Law Judge's Decision, are as follows.
In a letter dated August 15, 1979, the A.G.C. ad-
vised the Union that Respondent had terminated its
membership in that organization and that it was no
longer Respondent's bargaining agent. Respond-
ent's labor relations attorney, Bruce Bischof,
mailed to the Unions a letter dated January 15
which, inter alia, confirmed Respondent's with-
drawal from multiemployer bargaining and indicat-
ed that his office would be handling Respondent's
contract negotiations. Bischof sent another letter
dated February 27, which formally notified the
Unions of Respondent's intent to terminate the ex-
isting labor agreement when it expired on May 31,
and to reopen all of the existing contract provisions
for the purpose of negotiating successor contracts.
Although Respondent filed election petitions on
March 6 and 7,4 it advised the Unions through Bis-
chof that it still wanted to negotiate, and set aside 4
weeks at the end of April and the beginning of
May for doing so. The following is the text of Bis-
chof's letter to the Unions dated April I 1:
As you are aware, you have previously re-
ceived two certified letters from our offices
notifying you that R. A. Hatch Co. had with-
drawn all bargaining rights from the Associat-
ed General Contractors and that the employer
was terminating the existing agreement upon
its expiration.
Inasmuch as we have heard nothing from you
with respect to commencing negotiations for a
successor agreement, this letter shall serve as
the employer's formal request to commence
negotiations as soon as possible for a successor
agreement. On behalf of the employer, I am
prepared to meet with your authorized bar-
gaining representative in Bend, Oregon, during
the week of April 21, April 28, May 5, and
May 12. It is our intent to spend whatever
time is necessary to conclude these negotia-
tions prior to the expiration of the existing
contract.
The business manager and secretary-treasurer of
the Laborers, Neil P. Vermeer, responded to Bis-
chof in a letter dated April 21, in which he indicat-
ed, in pertinent part, that Bischors request for bar-
gaining was premature in view of the pending rep-
resentation proceedings.
Oil March 21, the Operating Engineels and the Teamsters filed unfair
labor practice charges which blocked any further processing of the elec-
tion petitions involving them The Lahborers, however, did not file
charges and, on April 10, a Decision and Direction of Election issued.
On April 28, with approval of the Regional Director, all of the petitions
and charges were withdrain.
-
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 2, Bischof and Paul Hays, the attorney
representing the Operating Engineers, had a tele-
phone conversation in which Hays suggested to
Bischof that "the short form would be the way to
go." Bischof, on the other hand, explained that Re-
spondent had experienced jurisdictional disputes
between unions in different States and that "it was
imperative that we sit down with . . . 701, and
make some attempt to negotiate agreements the
company can live with." Bischof made it clear to
Hays that Respondent would not have retained him
if it had been interested in signing short-form
agreements.
In a letter dated May 12, Bischof again contact-
ed the Operating Engineers about the commence-
ment of individual negotiations. It read as follows:
On April 11, 1980, our offices notified you by
certified letter that we were prepared to com-
mence bargaining on a successor agreement on
behalf of R. A. Hatch Co. In this letter, I set
out a number of dates which were available
for the purpose of commencing bargaining.
As of this date, I have heard nothing from
your union with respect to agreeing to com-
mence negotiations. Accordingly, if it is your
intent to merely force the company to sign a
"short form" agreement as negotiated by Asso-
ciated General Contractors, please advise me
and we will recognize that you do not intend
to bargain. Inasmuch as we have not heard
from you, it is logical to suppose this is your
position as demonstrated by past bargaining
history.
However, we are prepared to meet with you
on Thursday, May 15th at 1:00 p.m. at the of-
fices of the R. A. Hatch Co. in Bend. We will
expect to see you at that time unless you
notify us of your decision not to attend in ad-
vance of this meeting.
Hays responded on May 14. He called Bischof to
advise him that Jim Ridderbusch would be availa-
ble to meet with him on May 15.
When Ridderbusch arrived at the May 15 meet-
ing, he handed Bischof a copy of the Union's con-
tract proposal, which was the same one the Union
had submitted to the A.G.C. During the course of
this meeting, which lasted approximately 10 min-
utes, Ridderbusch indicated that he did not believe
the Union would be willing to enter into negotia-
tions with a separate employer. 5 Bischof gave Rid-
5 The dissent disputes that Ridderbusch indicated to Bischof at this
meeting that he "believed" that the Union would not be willing to
engage in separate negotiations. Instead, the dissent characterizes Ridder-
busch's comment on this key issue as one which conveyed only his lack
of familiarity with the Union's position.
derbusch Respondent's proposal, made it clear that
Respondent would not sign a short form, and
stressed the importance of reaching an agreement
by May 31. Ridderbusch, according to Bischof,
stated that "it would be better if the people from
Portland were really over here," and that he would
prefer to resume negotiations after June 1.
Although communication between Bischof and
Hays continued, nobody from the Operating Engi-
neers ever contacted Bischof, despite the assur-
ances of Hays that somebody from the Union
would do so. Therefore, Bischof gave the Union's
attorney a deadline of June 19 for another meeting.
On June 19, it was again Ridderbusch who ap-
peared on the Union's behalf. This time he suggest-
ed that the meeting be postponed until negotiations
on the A.G.C. contract were completed. He also
explained that July 19 would be the earliest date
that anyone from the Union could meet with Re-
spondent because the two men who would actually
be negotiating with Respondent were union offi-
cers who were currently involved in a reelection
campaign. In addition, Ridderbusch reiterated his
belief that the Union would be unwilling to sign
anything but a short form, since that was its prac-
tice.
The same pattern was established with respect to
the negotiations with the Laborers. Bischof called
Vermeer on May 12. He protested the failure of
the Laborers business manager to respond to his
correspondence and noted that Respondent was
particularly adamant about not binding itself to the
A.G.C. contract. Vermeer advised Bischof that
John Abbott would be handling the negotiations
for the Laborers. Bischof called Abbott at home on
May 13, explained some of Respondent's problems,
indicated that a short form was out of the question,
and established a meeting date of May 21. Bischof
asked to receive a copy of the Union's proposal
prior to the meeting, but Abbott told him he was
not in a position to send one. Abbott explained,
"We're engaged in A.G.C. negotiations, but I will
meet with you on the 21st." Bischof mailed a copy
of Respondent's proposal to Abbott on May 16. On
the afternoon of May 21, Abbott called Bischof to
Bischof, the record shows, explained to Ridderbusch that Respondent
was "not going to sign a boilerplate A.G.C. agreement" and, although
Ridderbusch said that "to his knowledge, he wasn't aware of where 701
would be willing to enter into negotiations with a separate employer," he
also said that "he would sit down and negotiate with us." According to
Bischof, "What he basically said was, he had no authority to bargain. But
he said he'd sit there, and go through the motions." Ridderbusch's state-
ment certainly did more than profess ignorance. Rather, it is evident from
the language of the statement itself that Ridderbusch knew the Union's
practice with respect to negotiating separate agreements, and, moreover,
from the context in which it was made, that Ridderbusch specifically ex-
pressed his belief that the Union would not negotiate with an individual
employer.
1222
R. A. HATCH COMPANY
tell him that he had gotten tied up, and they agreed
to meet on May 23.
On May 23, Bischof met with Abbott in what
appeared to Bischof at the time to be the first indi-
cation from the Laborers that some contract other
than a short form might be a possibility. On June 5,
however, Abbott left word that he was going on
vacation and that Vermeer would be taking over
the negotiations. On June 13, Vermeer told Bischof
that Abbott had never really been assigned to the
negotiations, and informed him in no uncertain
terms that "it was the short form or nothing." "I'm
not," he said, "going to sign anything but an inter-
im short form binding you to the A.G.C. contract."
Bischof asked Vermeer to send him something in
writing so that he would have something to show
his client for his 4 months of work in attempting to
get the Laborers to sit down at the bargaining
table. Vermeer obliged, sending him a letter dated
June 13 with several short forms enclosed.
Thus, despite Bischof's numerous attempts over a
period of several months to get both the Operating
Engineers and the Laborers to move from their
dogged adherence to their short-form proposals-a
position which the Unions communicated directly,
as well as implicitly, by attempting to postpone any
direct bargaining until they had concluded negotia-
tions on the A.G.C. contract-Bischof still could
not report any progress whatsoever in this regard
by June 23. With the Operating Engineers propos-
ing that further negotiations be delayed for at least
a month and the Laborers indicating that it would
be the short form or nothing, Respondent had
every reason to believe that it had come to logger-
heads with the Unions over the short-form issue,
and that it would be incapable of resolving its dif-
ferences with them in the foreseeable future." Ac-
cordingly, we agree with the Administrative Law
Judge that Respondent did not violate Section
8(a)(5) and (1) of the Act by unilaterally imple-
menting its contract proposals on June 23, and,
therefore, we shall adopt his recommended Order
that the complaint be dismissed in its entirety.
In our view, the record belies our dissenting col-
league's portrayal of Respondent as a company
intent on procrastination, long on unwarranted as-
sumptions, and eager to set the stage for unilateral
action. From the outset, it was Respondent's attor-
ney, not the Unions, who took the initiative in ar-
ranging for the parties to meet. Respondent, as pre-
viously noted, made it undisputably clear to the
Unions, certainly as far back as early April, that it
had no interest in signing short forms. Through
Bischof, Respondent repeatedly expressed its desire
to negotiate individual contracts with the Unions to
s See AAA Motor Line. InL., 215 NLRR 793 (1974).
succeed the master agreement which was set to
expire on May 31. The Unions, on the other hand,
repeatedly let Respondent know that it was unlike-
ly that they could ever come to terms on anything
other than short-form agreements. And, in sharp
contrast to Respondent, neither Union ever dis-
played any interest in accelerating the languid pace
of the negotiations, a factor militating decidedly in
Respondent's favor in terms of justifying its con-
clusion that impasse had been reached.
Member Jenkins' dissent makes much of the fact
that Respondent did not present its specific bar-
gaining proposals to the Unions until May 15 and
16. This, plus Respondent's March filing of election
petitions questioning the Unions' representative
status, Member Jenkins contends, not only caused
the commencement of negotiations to be delayed,
but also effectively undercut Respondent's claim
that it was vitally interested in negotiating succes-
sor agreements with the Unions in a timely manner.
Member Jenkins also emphasizes the limited
number of face-to-face bargaining sessions, noting
this in support of his conclusion that no exhaustive
negotiations between the parties ever occurred.
What our colleague fails to mention, however, is
that (1) the issue between the parties which led to
impasse was not specific bargaining proposals, per
se, but whether or not the Unions would be willing
to sign individual agreements rather than simply
short forms binding Respondent to the master labor
agreement; (2) the short-form issue was brought to
the Union's attention well before May 1980; (3) Re-
spondent made numerous attempts to resolve the
short-form issue, even during the pendency of the
election petitions; and (4) by June 23, even though
the parties had exchanged oral and written commu-
nications on numerous occasions over a period of
several months, and meetings had been held, there
was still no sign that the Unions were ready to
alter their position on the short-form issue. Accord-
ingly, Respondent was justified in concluding that
it had thoroughly exhausted the prospects of reach-
ing an agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
In adopting the Administrative Law Judge's dis-
missal of the complaint's allegations that Respond-
ent unilaterally changed terms and conditions of
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment in violation of Section 8(a)(5) and (1)
of the Act, my colleagues have accepted Respond-
ent's defense that there existed impasse in negotia-
tions with each of the three Charging Party
Unions7 which justified these changes. However, a
review of the record reveals that the impediments
to collective bargaining were largely of Respond-
ent's creation, and that, at the time Respondent lost
patience with honoring its obligation to bargain, no
exhaustive negotiations had occurred with the Op-
erating Engineers or the Laborers Unions. Accord-
ingly, Respondent's assertion of impasse is un-
founded and it was not privileged to make these
unilateral changes.
Although Respondent claims it was vitally inter-
ested in negotiating successor agreements with the
Unions prior to the expiration of the master agree-
ment on May 31, 1980,8 it failed to present any
bargaining proposals until May 15 and 16. Such
procrastination by a respondent seeking to deviate
from a previous adherence to multiemployer bar-
gaining, where it was aware that the Unions con-
tinued to desire uniformity in bargaining by the ex-
ecution of short-form agreements, obviously served
to delay negotiations.9
Bargaining with the Operating Engineers began
on May 15 when Respondent's attorney met for
the first time with an Operating Engineers repre-
sentative and each submitted to the other their ini-
tial proposals. At this brief meeting, lasting ap-
proximately 10 minutes, the Operating Engineers
representative accepted Respondent's proposal,
stated that he would review it, and noted that any-
thing he negotiated would have to be approved by
officials in Portland and that he did not know if his
Union would be willing to enter into negotiations
with a separate employer.' 0 From these statements,
which were at best ambiguous, t Respondent's at-
Charging Party Joint Council of Teamsters No. 37, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, has filed no exceptions to the dismissal of the complaint as it
affects them, and therefore Respondent's conduct with respect to this
Union will not be further discussed.
a All dates are 1980 unless otherwise indicated.
9 Respondent's delay in presenting any proposals, however, was con-
sistent with its earlier attempt to end its bargaining relationship with the
Unions through the February filing of election petitions questioning their
representational status. These petitions, which were not withdrawn until
late April, understandably distracted the Unions from doing anything
other than defending their status as bargaining representatives, to the det-
riment of any bargaining which otherwise may have occurred during this
period.
iO The majority overstates the record in finding that the Operating En-
gineers representative admitted in this conversation that he "didn't be-
lieve" his Union would engage in separate negotiations. Specifically, Bis-
chof testified being told that the representative "wasn't aware of' the
Union's position on this matter. Bischors further testimony set forth in
fn. 5 of the majority's Decision, regarding what the Operating Engineers
representative "basically said," is patently Bischofs interpretation of the
representative's comments, not the latter's actual words.
t t It is not unlawful for a union to seek to negotiate uniform terms for
employees represented in different bargaining units. See United Mine
torney testified that he assumed that the Operating
Engineers representative had no bargaining author-
ity and he additionally assumed that there would
not be any negotiations. These unwarranted as-
sumptions, drawn after only 10 minutes of bargain-
ing, highlight Respondent's temperament regarding
collective bargaining.
The second meeting occurred on June 19. Citing
a current intraunion election campaign and master
contract negotiations with the multiemployer asso-
ciation, the Operating Engineers representative re-
quested that bargaining be delayed for approxi-
mately a month. He also indicated that he thought
the Union would be unwilling to depart from the
practice of executing anything other than a short-
form agreement with individual employers. Re-
spondent's attorney testified that he understood no
ultimatum was being presented regarding the short
form and he replied he would let the Union's rep-
resentative know if Respondent was willing to
agree to the Union's request for a delay in negotia-
tions after he conferred with his clients. On June
23, without any further communication with the
Operating Engineers, Respondent sent a letter
claiming that the Union had refused to meet with
Respondent and announcing that Respondent was
implementing the terms of its May 15 offer.
Although the Administrative Law Judge correct-
ly cited Taft Broadcasting Co., WDAF AM-FM TV,
163 NLRB 475 (1967), for the standard by which
bargaining impasse will justify an employer imple-
menting the terms of a prior offer, it is manifest
from the foregoing review of the facts that at no
time had Respondent bargained to impasse with the
Operating Engineers. As of June 23, the Operating
Engineers had not rejected Respondent's proposal
or refused to meet with it, Respondent had not re-
sponded to the Union's latest request for delay in
negotiations, and the Union had not presented Re-
spondent with an ultimatum to sign a short-form
agreement. Although both parties had been dila-
tory at one time or another in proceeding with bar-
gaining, at no time did the parties exhaust their
prospects of concluding an agreement following
good-faith negotiations, the standard for impasse in
Taft Broadcasting, id. at 478. Rather than represent-
ing the exhaustion of negotiations, the two brief
meetings of the parties served only to define the
parties' initial positions from which negotiations
Workers of America v. Pennington, 381 U.S. 657, 665 (1965). Likewise, it is
not itself unlawful for a union to negotiate an agreement subject to the
approval of a higher governing body, particularly where this is clearly
understood by the parties. See The Standard Oil Company, 137 NLRB
690 (1962); Brotherhood of Painters, Decorators and Paperhangers of Amer-
ica, Local 850, AFL-CIO (Morgantown Glass and Mirror, Inc.), 177 NLRB
155 (1969).
1224
R. A. HATCH COMPANY
should have continued. 12 Indeed, even had the Op-
erating Engineers rejected Respondent's proposal,
this would not have created an impasse. 3s Thus, in
view of Respondent's prior history of adhering to
multiemployer negotiations, the parties' shared re-
sponsibility in the delay of negotiations, the brief
duration of the two meetings, and Respondent's
agreement on June 19 that it would consider and
respond to the Operating Engineers' request for a
further delay in negotiations, all factors relevant to
impasse,1 4 Respondent has not shown that further
negotiations would have been futile. Rather, by
drawing the unwarranted assumption at the first
meeting that there would be no negotiations and
then by prematurely terminating negotiations fol-
lowing the second meeting, Respondent has given
negotiations no chance to succeed. The majority
fails to recognize the importance of Bischof's ad-
mission that as of June 19 the Operating Engineers
had not given him an ultimatum to sign a short-
form agreement. Nevertheless, the majority ac-
knowledges that the Operating Engineers only in-
dicated it was unlikely they would depart from the
short form. This finding, however, shows that bar-
gaining prospects had not yet been exhausted.
Absent such exhaustion, no impasse exists. In this
context, I find that Respondent's unilateral imple-
mentation of its contract proposals violated Section
8(a)(5) and (1) of the Act.
Respondent's bargaining history with the Labor-
ers Union parallels events with the Operating Engi-
neers in many respects. In February, Respondent
filed an election petition challenging the represen-
tational status of the Laborers Union, did not with-
draw it until late April, and thereby impeded nego-
tiations during this period. Although Respondent
was aware that the Laborers also wanted Respond-
ent to sign a short-form contract, Respondent de-
layed submitting any proposals until May 16 (2
weeks prior to the expiration of the master con-
tract), when it mailed copies of its proposals to this
Union. At the only face-to-face meeting between
Respondent and the Laborers, the union repre-
sentative met with Respondent on May 23, dis-
12 The fact that the initial proposals of the Operating Engineers and
Respondent differed sharply is not an excuse to declare impasse. On the
contrary, this is precisely the reason why the National Labor Relations
Act imposes on the parties a duty to bargain in good faith, despite any
urge to lose patience at an early stage. As stated by the court enforcing
our Decision in Taft Broadcasting, supra:
It is indeed a fundamental tenet of the act that even parties who
seem to be in implacable conflict may, by meeting and discussion,
forge first small links and then strong bonds of agreement. [American
Federation of Television and Radio Artists AFL-CIO. Kansas City
Local v. N.LR.B., 395 F.2d 622, 628 (D.C. Cir. 1968.1
iJ See Inta-Roto, Incorporated, 252 NLRB 764, 768 (1980), where the
Board adopted the statement that "an impasse is not reached by the mere
exchange and rejection of proposals."
1a See Taft Broadcasting, supra at 478.
cussed Respondent's proposal, and the union repre-
sentative stated that Respondent's proposals would
be considered and that he would get back to Re-
spondent. To this extent negotiations with the La-
borers were not essentially different from those in-
volving the Operating Engineers.
The only distinguishing feature regarding negoti-
ations with the Laborers was that, in early June,
Respondent learned that the Union's negotiator ap-
parently had insufficient bargaining authority, had
departed on a vacation, and that another agent was
assigned responsibility for negotiations. On June 13,
in a telephone conversation with this agent, Re-
spondent was informed that the Laborers was not
prepared to do anything but sign an interim short-
form agreement pending master contract negotia-
tions and that "it was the short form or nothing."
However, this single statement by the Laborers
agent is no more than an opening gambit or a pre-
liminary sparring match 5and absent further meet-
ings between the Union and Respondent did not by
itself preclude further meaningful negotiations. It
can hardly be argued that the parties have made
their best efforts to achieve an agreement and that
the collective-bargaining process has been exhaust-
ed. Accordingly, Respondent also violated Section
8(a)(5) and (1) of the Act on June 23 by imple-
menting its earlier contract proposals without en-
gaging in further negotiations with or providing
notice to the Laborers Union. Respondent's unlaw-
ful conduct is further shown by its treatment of the
Laborers exactly as it had treated the Operating
Engineers, and its corresponding impatience with
negotiations past the stage of establishing initial
bargaining positions. I dissent, and would find the
violations of the Act.
"' See Blue Grass Provision Co. Inc. v. .V.L.R.B., 636 F.2d 1127, 1136
(6th Cir. 1980), enfg. 238 NLRB 910 (1978).
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: The
unfair labor practice charge in Case 36-CA-3667 was
filed on July 1, 1980, and was amended on August 20,
1980, by International Union of Operating Engineers,
Local No. 701, AFL-CIO. The unfair labor practice
charge in Case 36-CA-3668 was filed on July 1, 1980,
and was amended on August 20, 1980, by Joint Council
of Teamsters No. 37, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America. The unfair labor practice charge in Case 36-
CA-3669 was filed on July 2, 1980, by Oregon, Southern
Idaho, Wyoming and Utah District Council of Laborers,
Laborers International Union of North America, AFL-
CIO.
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel issued a consolidated complaint
on August 27, 1980, alleging violations of Section 8(a)(1)
and (5) of the Act by R. A. Hatch Company, the Re-
spondent herein.
The hearing was held on February 3, 4, 24, and 25,
1981, at Portland, Oregon. The time for filing post-hear-
ing briefs was set for April 1, 1981.
FINDINGS OF FACT
A. The Employer and the Unions
The Board's jurisdiction is not in issue in this proceed-
ing. The Employer is a contractor in the construction in-
dustry, primarily engaged in the construction of roads
and highways, and it meets the Board's indirect outflow
jurisdictional standard.
The status of all three of the Charging Parties as labor
organizations within the meaning of the Act was ad-
mitted.
B. The Witnesses
Nine persons were called as witnesses at the hearing of
this proceeding. In alphabetical order by their last
names, the witnesses are: John Abbott, who is the presi-
dent and the assistant business manager of the Charging
Party Laborers; Bruce Paul Bischof, who is one of the
attorneys for the Respondent, and who has been engaged
in the private practice of law since 1973 with his practice
basically involving labor relations on behalf of manage-
ment; Robert A. Hatch, who is the president and the
principal stockholder of the Respondent; Paul Hays, who
is an attorney in the law firm of Carney, Probst & Cor-
nelius, which firm represents the Charging Party Team-
sters and formerly represented the Charging Party Oper-
ating Engineers from December 1976 to the fall of 1980;
Gerald Bryce Johnston, who is the vice president and
the controller of the Respondent; Walt LaChapelle, who
is a representative of the Charging Party Teamsters; Jim
Ridderbusch, who is a field representative of the Charg-
ing Party Operating Engineers; Margaret Vandemarr,
who has been a switchboard operator, receptionist, and
bookkeeper for the Teamsters Building Association for
the past 15 years; and Neil P. Vermeer, who is the busi-
ness manager and the secretary-treasurer of the Charging
Party Laborers.
Considering the passage of time between the occur-
rence of the events which are relevant herein and the
time the witnesses gave their testimony, it is under-
standable that the witnesses recalled differently some
matters bearing on the issues in these cases. In addition,
consideration has been given to the fact that each wit-
ness was identified with one of the parties to the pro-
ceeding, and, therefore, the witness viewed these matters
as they occurred from his own perspective and from his
responsible position with that particular party. That fact
may have resulted in the differences in recollection when
these events subsequently were retold on the witness
stand. There were no truly disinterested witnesses who
lacked any interest in the outcome of this proceeding.
That is not said in any critical way of the witnesses. It is
just one observation because, in a case like this, the
events in question would be expected to involve attor-
neys, officers, representatives, and employees of the var-
ious parties. Thus, consideration has been given to those
factors, as well as other factors, in weighing and evaluat-
ing the testimony and in attempting to comprehend the
differences in the testimony about certain events. Other
factors used in arriving at credibility determinations in
this case have included the demeanor of the witnesses
while on the stand; the demonstrated ability of the wit-
ness to recall facts; the corroboration of testimony by
other witnesses; and the support for testimony found in
any documentary evidence introduced by the parties at
the hearing.
After considering all of the foregoing matters, I have
decided to rely upon the accounts given by Bischof in
making many of the findings of fact to be set forth
herein. He showed on the witness stand that he had a
good and detailed recollection of the numerous events
about which he testified. His testimony is supported in
some parts by documentary evidence, and in some parts
by the testimony of Johnston and Hatch, whose testimo-
ny also is credited. In accepting Bischofs testimony, I
have considered Charging Party Laborers' Exhibit 4 re-
garding his legal fees billed to the Respondent, and I
have also considered Respondent's Exhibit 25 regarding
the Respondent's statement of position given to field ex-
aminer Mary Nelson of Subregion 36 of the Board. In
particular, with regard to Respondent's Exhibit 25, the
circumstances under which that letter dated July 18,
1980, was prepared should be considered in fairness to
the witness.
Many findings of fact to be made herein will be based
upon documentary evidence. In particular, correspond-
ence between the parties shows the written communica-
tions which were exchanged by the parties at the rele-
vant times. There were, of course, verbal communica-
tions by telephone and in person at meetings. Those will
be described also. Several witnesses related numerous un-
successful attempts to contact the representatives of an-
other party by telephone. There was also some documen-
tary evidence on that subject. For one example, see Gen-
eral Counsel's Exhibit 16, which was introduced through
Vandemarr, and for another example, see Respondent's
Exhibit 20, which was introduced through Bischof.
Rather than relate all of the unsuccessful attempts by one
person to contact another person by telephone, I will
focus upon the contacts which were actually made and
the resulting conversations in making the findings of fact.
At the outset, I find to be credible the witnesses' testimo-
ny and the documentary evidence that there were nu-
merous unsuccessful attempts by one of the parties to
contact one of the other parties during the relevant times
by telephone, both long distance and local calls, and
both station-to-station and person-to-person calls. While I
find all such evidence to be believable, I find it to be
more significant to set forth the written and verbal com-
munications which actually took place between the par-
ties. That is not said in any way critical of the parties for
introducing such evidence regarding unsuccessful tele-
phone attempts in light of the fact that one of the several
issues raised by the pleadings was whether "Respondent
was dilatory in failure to return telephone calls."
1226
R. A. HATCH COMPANY
C. Certain Facts Admitted To Be True in the
Pleadings
In addition to the facts described above there were
certain others which were admitted to be true in the
pleadings. For convenience, I will set forth those facts
below according to the numerical designation they were
given in the General Counsel's consolidated complaint:
4.
(a) The following employees of Respondent in
Case 36-CA-3667 constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of R. A. Hatch Co. engaged in the
operation of heavy construction equipment in the
State of Oregon and 5-1/2 counties of S. W.
Washington as described in the contract between
Oregon-Columbia Chapter, Associated General
Contractors of America, Inc., (herein A.G.C.)
and the Engineers effective from June 1, 1975 to
May 31, 1980, but excluding all other employees,
office clerical employees, confidential employees,
professional employees, guards and supervisors as
defined in the Act.
(b) The following employees of Respondent in
Case 36-CA-3668 constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All drivers, helpers, mechanics and warehouse-
men of R. A. Hatch Co. in the State of Oregon
and 5-1/2 counties of S. W. Washington as de-
scribed in the contract between A.G.C. and the
Teamsters effective from June 1, 1975 to May 31,
1980, but excluding all other employees, office
clerical employees, confidential employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
(c) The following employees of Respondent in
Case 36-CA-3669 constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of R. A. Hatch Co. in the State of
Oregon and 5-1/2 counties of S. W. Washington
engaged in general labor as described in the con-
tract between A.G.C. and the Laborers effective
from June 1, 1975, to May 31, 1980, but exclud-
ing all other employees, office clerical employees,
confidential employees, professional employees,
guards and supervisors as defined in the Act.
5.
(a) Since 1972 Respondent, and its predecessor,
White Construction, has recognized Engineers as
the exclusive representative for the purpose of col-
lective bargaining of all its employees in the unit
described in paragraph 5(a) above; and at all times
since 1972, Engineers, within the meaning of
Section 9(a) of the Act, has been, and is, the exclu-
sive representative of said employees, for the pur-
pose of collective bargaining with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment.
(b) Since 1972 Respondent, and its predecessor,
White Construction, has recognized Teamsters as
the exclusive representative for the purpose of col-
lective bargaining of all its employees in the unit
described in paragraph 5(b) above; and at all times
since 1972, Teamsters, within the meaning of
Section 9(a) of the Act, has been, and is, the exclu-
sive representative of said employees, for the pur-
pose of collective bargaining with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment.
(c) Since 1972 Respondent, and its predecessor,
White Construction, has recognized Laborers as the
exclusive representative for the purpose of collec-
tive bargaining of all its employees in the unit de-
scribed in paragraph 5(c) above; and at all times
since 1972, Laborers, within the meaning of Section
9(a) of the Act, has been, and is, the exclusive bar-
gaining representative of said employees, for the
purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
6.
(a) Respondent, by virtue of its membership in
and delegation of bargaining authority to A.G.C.,
was a party to A.G.C.'s collective bargaining agree-
ment with Unions from June 1, 1975 until May 31,
1980.
(b) On or about August 15, 1979, Respondent re-
signed from A.G.C. thereby withdrawing its collec-
tive bargaining authority from that organization.
(c) On or about January 15, 1980, Respondent
notified Unions of its withdrawal from A.G.C.
(d) Respondent, in February 1980, opened the
labor agreement referred to above in subparagraph
(a).
(e) On March 6 and 7, Respondent filed petitions
with the Board in Case 36-RM-989 (Engineers),
36-RM-990 (Teamsters), and 36-RM-992 (Labor-
ers). Blocking charges were filed in Cases 36-CA-
3614 (Engineers) and 36-CA-3615 (Teamsters) on
March 21, 1980. On April 10, 1980, a Decision and
Direction of Election issued in 36-RM-992. Finally,
on April 28, 1980, all of the above charges and peti-
tions were withdrawn with approval of the under-
signed. [i.e., the Regional Director of Region 19 of
the Board.]
(f) After the withdrawal of the charges and peti-
tions indicated above, Respondent agreed to bargain
with Unions.
* * * . *
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(i) Laborers and Respondent met briefly on May
23, 1980, without agreeing to any substantive terms
of a new agreement.
In connection with the facts admitted in paragraph
6(b) from the General Counsel's consolidated complaint,
which is quoted above, see General Counsel's Exhibits
2(a), (b), and (c). Those documents are copies of letters
dated August 15, 1979, from the A.G.C. to each one of
the Charging Parties. The letters notified the Charging
Parties that the A.G.C. was no longer the bargaining
agent for the Respondent.
In connection with the facts admitted in paragraph
6(c) from the General Counsel's consolidated complaint,
which is quoted above, see General Counsel's Exhibits
3(a), (b), and (c). Those documents are copies of letters
dated January 15, 1980, from Bischof to each one of the
Charging Parties. The letters advised, inter alia, that the
Respondent had retained Bischof for the purpose of rep-
resenting the employer in labor relations matters, and the
letters requested copies of any agreements between the
Respondent and the Unions involved.
In connection with the facts admitted in paragraph
6(d) from the General Counsel's consolidated complaint,
which is quoted above, see General Counsel's Exhibits
4(a), (b), and (c). Those documents are copies of letters
dated February 27, 1980, from Bischof to each one of the
Charging Parties. The letters gave notice of Respond-
ent's intention to terminate the existing collective-bar-
gaining agreements at their termination dates, and the
letters advised of the Respondent's intention to reopen
all of the existing contract provisions for negotiations.
In connection with the facts admitted in paragraph
6(c) from the General Counsel's consolidated complaint,
which is quoted above, see Charging Party Laborers'
Exhibit 5, which is a copy of a Decision and Direction
of Election issued on April 10, 1980, in Case 36-RM-992
by the Acting Regional Director of Region 19 of the
Board. The representation case was withdrawn prior to
the holding of an election.
D. The Meetings in December 1979 and February
1980
The Respondent holds meetings annually with its su-
pervisors where problems, including labor relations mat-
ters, are discussed. Such a meeting was held in Decem-
ber 1979. The meeting lasted all day; various topics were
discussed, and certain persons spoke to the group during
the day. One of the speakers was the Respondent's attor-
ney Bischof.
About 15 to 20 persons were present in the meeting
room during the 30 minutes that Bischof was present. He
answered questions from five or six persons as to what
was going to happen as a result of the Respondent's
withdrawal from the A.G.C. Bischof indicated that the
Respondent would be commencing negotiations shortly
to resolve a number of problems which the Respondent
had been experiencing. Bischof expressed the hope that
there would be new contracts agreed to before May 31,
1980. He stated that the number one priority was to
ensure that there would be no work stoppages. Bischof
then departed before the discussion of other topics re-
sumed.
Another speaker at the December 1979 meeting was a
representative of the State Accident Insurance Fund who
discussed how to handle and how to report job-related
injuries. Another person from the Respondent's liability
insurance carrier spoke regarding how to handle acci-
dents on the job or a car accident. A representative of
Respondent's health insurance carrier, O.P.S. Blue
Shield, explained the benefits and the coverage limits of
the Respondent's health insurance policy.
In late February 1980, Bischof met with two or three
of the Respondent's employees near Interstate 5 south of
Salem, Oregon. The meeting was held at the request of
the employees and after their working hours were over
that day. Bischof's purpose was "To advise them what
their rights were in terms of seeking an election." Bis-
chof had earlier given the telephone number of the
NLRB Subregional Office in Portland, Oregon, to John-
ston and other supervisors so that they could give that
telephone number to employees if they had any ques-
tions. However, the two or three employees of the Re-
spondent who contacted Bischof informed him that they
did not understand the petition forms, and they did not
want to drive to Portland, so they asked Bischof to meet
with them to find out what their rights were.
E. The Events Pertaining to the Respondent and the
Operating Engineers
Because attorney Hays represented both the Charging
Party Operating Engineers and the Charging Party
Teamsters at the times related herein, some of the find-
ings of fact to be made in this section regarding the Op-
erating Engineers also have applicability to section 6 re-
garding the events pertaining to the Respondent and the
Teamsters. Also, some documentary evidence to be relat-
ed herein pertains to more than one section of this Deci-
sion. To avoid unnecessary repetition, some of the find-
ings of fact made in this section should also be consid-
ered when reading the later sections of this Decision.
Introduced into evidence as Respondent's Exhibit 11
was a copy of a letter dated January 23, 1980, from
George Campbell, field representative of the Operating
Engineers, to attorney Bischof. That letter was sent in
reply to Bischof's letter dated January 15, 1980, which
was introduced into evidence as General Counsel's Ex-
hibit 3(a). (See sec. 3 herein regarding G.C. Exh. 3(a).)
Introduced into evidence as Respondent's Exhibit 10 was
a copy of a letter dated March 11, 1980, from Charlie
Gilbert, business manager and financial secretary of the
Operating Engineers, to Bischof. That letter was sent in
reply to Bischof's letter dated February 27, 1980, which
was introduced into evidence as General Counsel Exhibit
4(a). (See sec. 3 herein regarding G.C. Exh. 4(a).) Both
Respondent's Exhibits 10 and 11 forwarded copies of the
then-current collective-bargaining agreement between
the Respondent and the Operating Engineers.
General Counsel's Exhibits 5(a), (b), and (c) are copies
of letters dated April 11, 1980, from Bischof to each one
of the three Charging Parties in this proceeding. Bischof
requested in his letters that negotiations commence for
1228
R. A. HATCH COMPANY
new collective-bargaining agreements. He stated that he
was prepared to meet with the Unions' authorized bar-
gaining representatives in Bend, Oregon, during the
weeks of April 21, April 28, May 5, and May 12, 1980.
He also stated in each letter, "It is our intent to spend
whatever time is necessary to conclude these negotia-
tions prior to the expiration of the existing contract."
Charging Party Operating Engineers' Exhibit I is a
copy of a letter dated April 24, 1980, from Bischof to
Hays, as the attorney for both the Operating Engineers
and the Teamsters, regarding the proposed withdrawal
of the representation petitions by the Respondent in
return for the withdrawal of the unfair labor practice
charges by the two Unions. (See sec. 3 herein and par-
ticularly par. 6(e) from the General Counsel's consoli-
dated complaint which is quoted therein.) In his letter
Bischof also stated, "Finally, I will be prepared to sit
down on behalf of the employer as soon as possible for
the purpose of reaching a new contract for both Local
701 and the Teamsters."
On May 2, 1980, there was a telephone conversation
between Bischof and Hays. Bischof had initiated that
call. Bischof told Hays that the Respondent had encoun-
tered problems with jurisdictional disputes between
unions in different States. Bischof said, ". . . it was im-
perative that we sit down with the Teamsters, and 701,
and make some attempt to negotiate agreements the com-
pany can live with." Hays responded that the Teamsters
would be doing their own bargaining, and that someone
from the Operating Engineers also would be doing the
bargaining with the Company. According to Bischof,
Hays suggested to Bischof that ". . . the short form
would be the way to go." Bischof replied that the Re-
spondent had retained him to negotiate agreements with
which the Company could live, and, if the Respondent
had just wanted to sign short forms, there would have
been no need for the Respondent to retain Bischof.
During their telephone conversation, Bischof indicated
to Hays that the Respondent's "most critical problems"
were with the Laborers. While Bischof also said that the
Respondent had problems with the Operating Engineers
and the Teamsters, Bischof expressed the view that ". ..
those problems could probably be worked out." Because
of the Davis-Bacon Act, Bischof said that money was
not a problem for the Respondent because the Company
was going to pay the same amount of money whether
the Respondent signed the A.G.C. agreement or negoti-
ated its own agreement with the Unions. Bischof testi-
fied, "So economics were not the problem; it was work-
ing conditions."
Introduced into evidence as General Counsel's Exhib-
its 7(a) and (b) were copies of letters dated May 12,
1980, from Bischof to the Operating Engineers and the
Teamsters. In pertinent part, the letters stated:
On April 11, 1980, our offices notified you by certi-
fied letter that we were prepared to commence bar-
gaining on a successor agreement on behalf of R. A.
Hatch Co. In this letter, I set out a number of dates
which were available for the purpose of commenc-
ing bargaining.
As of this date, I have heard nothing from your
union with respect to agreeing to commence negoti-
ations. Accordingly, if it is your intent to merely
force the company to sign a "short form" agree-
ment as negotiated by Associated General Contrac-
tors, please advise me and we will recognize that
you do not intend to bargain. Inasmuch as we have
not heard from you, it is logical to suppose this is
your position as demonstrated by past bargaining
history.
However, we are prepared to meet with you on
Thursday, May 15th at 1:00 p.m. at the offices of
the R. A. Hatch Co. in Bend. We will expect to see
you at that time unless you notify us of your deci-
sion not to attend in advance of this meeting.
On May 14, 1980, Hays telephoned Bischof and in-
formed him that Jim Ridderbusch would meet with Bis-
chof on May 15, 1980, at Bend, Oregon. Hays also said
that the Teamsters was very concerned, but that they
could not meet on May 15. Hays said that someone from
the Teamsters would contact Bischof later that week.
On May 15, 1980, Ridderbusch met with Bischof and
Johnston. Ridderbusch brought with him a document
which was introduced at the hearing as Respondent's
Exhibit 5. That document had a cover letter on it, and
that cover letter was introduced as General Counsel's
Exhibit 17(a). Ridderbusch informed the Respondent's
representatives that Respondent's Exhibit 5 was the same
proposal which the Operating Engineers had given to
the A.G.C. Bischof testified:
The meeting was scheduled for I o'clock. To the
best of my recollection, Mr. Johnston and I were at
the meeting. I think Bob Hatch had indicated, or
told me, that he had gone to high school with Mr.
Ridderbusch, and thought he would be there to in-
troduce himself, say hello to him-this type of
thing.
Mr. Ridderbusch came in. We sat down. He indi-
cated he had just come from the bus depot-he'd
picked up the union's proposal. He obviously had
run over to try to make this meeting. He was carry-
ing it with him, and I think one of the first things
he said was, I feel like a messenger boy. I've just
picked up the union's proposal from the bus station,
and I'm bringing it to the meeting.
So we had probably a ten-minute conversation
with Mr. Ridderbusch. Mr. Ridderbusch, obviously,
was trying to work with the company. I think he
was-well, I won't draw any conclusions. He asked
then, at that time, if we would wait to commence
negotiating until after the first of June.
At the meeting, Bischof gave the Respondent's propos-
al for a contract to Ridderbusch. (See Resp. Exh. 9.) Bis-
chof told him ". . . that it was imperative we start to ne-
gotiate, and try to determine where we were prior to the
expiration date of our existing agreement." Bischof then
mentioned the problems the Respondent had concerning
jurisdictional disputes "between different unions in differ-
ent states," and the fact that Bischof had represented
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other contractors in central Oregon over the years, and
he had been in litigation concerning these same types of
A.G.C. agreements. Bischof reiterated his view "...
that it was imperative we determine where we were
prior to the expiration date of that contract." Bischof
further testified:
He said he'd really like to wait until after June I
in order to resume negotiations. I asked Mr. Ridder-
busch-point-blank-I said, do you have the author-
ity to sit down and negotiate an agreement for R.
A. Hatch? And he said, well, I have the authority
to meet with you. But anything that I negotiate, ba-
sically, would all have to go back to Portland. And
it would be better if the people from Portland were
really over here.
He indicated to me-by the terminology of "mes-
senger boy"-he had obviously not read the pro-
posal that he gave us-whether it's Government
Counsel 17(b), or R-5-he hadn't seen it, and it was
clear he was not prepared to sit down and negoti-
ate.
So, with that, we indicated whoever he could
bring over to meet with us-who did have the au-
thority to bargain-give us a call, and we'd sched-
ule some meetings. That meeting lasted about 10 or
12 minutes.
It was agreed that Ridderbusch would review the Re-
spondent's contract proposal, and Bischof would review
the Operating Engineers' proposal. However, Bischof
stated ". . . we made it clear, we were not going to sign
a boilerplate A.G.C. agreement." Bischof also testified:
He said, to his knowledge, he wasn't aware of
where 701 would be willing to enter into negotia-
tions with a separate employer, although Mr. Rid-
derbusch said that he would sit down and negotiate
with us. He did make that representation. What he
basically said was, he had no authority to bargain.
But he said he'd sit there, and go through the mo-
tions. That's basically what he said.
With that kind of statement, we just assumed
there was not going to be any negotiations with
701. That was the first meeting.
Ridderbusch and Bischof exchanged their home tele-
phone numbers, and Ridderbusch said that he would talk
to the people in Portland (Russell and Campbell), and
then contact Bischof. Ridderbusch said that Russell and
Campbell were tied up in A.G.C. negotiations at that
time.
Notes made by Bischof of the foregoing meeting were
introduced into evidence as Respondent's Exhibit 23.
After the meeting on May 15, 1980, Bischof had a
series of telephone calls with Hays. Bischof informed
Hays that Bischof had not been contacted again by the
Operating Engineers, and Bischof set another deadline of
June 19, 1980, for a meeting. Hays assured Bischof that
he would have Ridderbusch or somebody there to meet
with Bischof on that date.
On June 19, 1980, there was a second meeting among
Ridderbusch, Bischof, and Johnston at the Respondent's
offices. Ridderbusch said that he would appreciate it if
they would not meet that day, but that he would be will-
ing to meet with them after the A.G.C. contract had
been negotiated. Ridderbusch said that July 19 was the
earliest date the Union could meet with them. Bischof in-
quired as to why the July 19 date was given. Ridder-
busch explained that the whole slate of officers of the
Operating Engineers was up for reelection, and that the
negotiating team consisted basically of Russell and
Campbell, who would not be available until after July
19. He said those two persons would be the ones repre-
senting the Operating Engineers in negotiations with the
Respondent. Bischof also testified:
Well, he indicated that he thought the Union 701
would be unwilling to sign anything other than a
short form. That was the practice. But he did not
state that that was an ultimatum, that it would be
the short form or nothing else. He basically said
they would not be able to commence bargaining
until after July 19.
We indicated to him-of course, again, it was a
short meeting-you know, that I didn't think we
were prepared to go ahead and just indefinitely wait
until the union elections were over, until the
A.G.C. agreements had been negotiated. But I said,
I will confer with my clients. We'll get back to you,
and I'll let you know whether or not we're willing
to go ahead, and-per your request-just wait in-
definitely, or whether or not we're going to take
some action. This was on the 18th. [Actually, June
19.]
I think I called. I had his home phone number.
He indicated to me his mother was in the Bend
Hospital. I called two times, I think on Monday the
21st or 22nd-was unable to reach him, so I wrote
the letter that day that went to 701, that indicated
that we were unilaterally implementing our offer
that we had given to 701 in May.
Notes made by Bischof of the foregoing meeting were
introduced into evidence as Respondent's Exhibit 22.
F. The Events Pertaining to the Respondent and the
Teamsters
As indicated in section E herein, some of the findings
of fact made in that section should be borne in mind in
reading this section. Since attorney Hays was represent-
ing both the Charging Party Operating Engineers and
the Charging Party Teamsters at the times related herein,
some of the facts pertain to both sections. Furthermore,
as previously indicated, Bischof sent similar letters on oc-
casion to more than one of the Charging Parties. Thus,
the documentary evidence previously referred to in
section C and section E should be considered also, where
it is applicable to more than one of the Charging Parties.
With regard to his conversations with Hays concern-
ing the Teamsters, Bischof said that Hays made it clear
that he personally would not be handling the negotia-
1230
R. A. HATCH COMPANY
tions for the Teamsters. However, Bischof stated that
Hays assured him that Hays would have someone from
the Teamsters contact Bischof. Bischof recalled that he
asked Hays when a Teamsters official could meet with
him. According to Bischof, Hays explained that the
Teamsters were "tied up in the beer strike;" tied up in
A.G.C. negotiations, and that one of the negotiators was
out of the State. In one of their subsequent conversa-
tions, Bischof informed Hays that no one from the
Teamsters had contacted him. According to Bischof,
Hays said, ". . . you mean, nobody from the Teamsters
has called you yet, Bruce? And I said, that's right, Paul."
Bischof testified at the hearing that prior to June 23,
1980, he had no contact with anyone from the Teamsters
with the exception of attorney Hays.
Introduced into evidence as Respondent's Exhibit I
was a copy of a letter dated May 14, 1980, from Hays to
Bill Diltz, contract coordinator for the Charging Party
Teamsters. In pertinent part, the letter states:
As we discussed on the phone, the NLRB case
regarding Hatch Construction Company is settled.
The Company has withdrawn its petition for an
election and I have withdrawn the unfair labor
practice charge against them.
The net result of this maneuvering is that the
Teamsters still represent those drivers employed by
Hatch and Hatch is bound to negotiate regarding a
new labor agreement with the Teamsters.
At one point, the attorney for Hatch, Bruce Bis-
chof, had indicated that Hatch might be interested
in a short form AGC agreement. I discussed this
matter with Bischof yesterday and he indicated that
Hatch wants to sit down and negotiate a new agree-
ment rather than simply sign a short form.
It appears from my discussion with Bischof that
Hatch wants more freedom to switch his employees
between craft jurisdictions.
Please contact me when you return to town and
we will discuss more fully what Bischof has in mind
regarding negotiations.
Introduced into evidence as General Counsel's Exhibit
8 was a copy of a letter dated May 15, 1980, from Hays
to Bischof. The letter has reference to their telephone
conversation on that same date. In pertinent part, it
states:
I am writing this letter to confirm our telephone
conversation of May 15, 1980.
As you will recall, my telephone call to you was
prompted by a letter received by the Joint Council
of Teamsters No. 37 indicating that you had not re-
ceived any word from them regarding bargaining.
As we discussed during our telephone conversa-
tion it is agreed that our discussion regarding the
various recent NLRB proceedings and the possibil-
ity of Hatch Construction Company signing a short-
form agreement puts you on notice that the Team-
sters are the collective bargaining representatives of
Hatch Construction Company drivers and are pre-
pared to bargain with Hatch regarding a collective
bargaining agreement.
Furthermore, during our conversation, I in-
formed you that the key Teamsters' representative
regarding Hatch negotiations was out of town this
week. Also, you indicated that your only concern is
that someone contact you in the near future regard-
ing collective bargaining with the Teamsters.
We also agreed during our telephone conversa-
tion that there had been no waiver of any kind re-
garding collective bargaining.
Thank you for your cooperation in clearing up
any confusion which may have existed.
Introduced into evidence as General Counsel's Exhibit
9(a) was a copy of a letter dated May 16, 1980, from Bis-
chof to the Charging Party Teamsters. In pertinent part,
it states:
Please find enclosed the employer's original propos-
al for a successor labor agreement effective June 1,
1980.
We have had numerous indications that it is the
union's intent to compel the employer to sign AGC
"short form" and "compliance" agreements. If this
is not true, we will expect to receive written union
proposals no later than May 20th with negotiations
to commence May 21st. If not, we have no alterna-
tive other than to assume that you expect full com-
pliance with the AGC-short form and compliance
agreements.
Introduced into evidence as General Counsel's Exhibit
10 was a copy of a letter dated May 30, 1980, from Hays
to Bischof. That letter was prepared during the morning
of May 30, 1980, and prior to the time that Bischof tele-
phoned Hays that afternoon. In pertinent part, it states:
Joint Council of Teamsters No. 37 has received
your proposal of May 16, 1980. Your letter was re-
ceived on May 19, 1980. I note in your letter that
you expected to receive a Union proposal no later
than May 20th with negotiations to commence no
later than May 21st as a result of your letter. As a
result of your limited time guidelines, we have been
attempting to telephone you regarding negotiations
since receipt of your letter. We have had no luck
contacting you by telephone. Please write or tele-
phone me at your earliest convenience to discuss
dates for negotiations.
G. The Events Pertaining to the Respondent and the
Laborers
As indicated previously, certain findings of fact in ear-
lier sections should also be considered with regard to the
events pertaining to the Respondent and the Laborers.
Introduced into evidence as Respondent's Exhibit 2
was a copy of a letter dated March 4, 1980, from Ver-
meer to Bischof. Vermeer acknowledged the receipt of
the Respondent's letter of termination of the contract,
which letter was dated February 27, 1980. Respondent's
Exhibit 3 was a copy of another letter from Vermeer to
Bischof at another address. That letter is dated March 6,
1980, and in addition to acknowledging receipt of Re-
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's letter, Vermeer stated, "We will be in touch
with you in the near future regarding negotiation of a
new agreement."
General Counsel's Exhibit 6 was a copy of still an-
other letter from Vermeer to Bischof. It is dated April
21, 1980, and it is in reply to General Counsel's Exhibit
5(c), which has been previously referred to. In part, Ver-
meer stated, "Your request for bargaining is premature in
view of the binding representation proceedings. Upon
conclusion of the representation election, we shall be
glad to negotiate with you at the appropriate time."
On May 12, 1980, Bischof telephoned Vermeer, who
advised him that John Abbott would be handling the
matter for the Laborers. Bischof asked for, and received,
Abbott's home telephone number. Bischof also gave his
own home telephone number to Vermeer. Bischof testi-
fied, "I was very upset when I got hold of Mr. Vermeer
the first time." Bischof said that he asked Vermeer why
there had been no response from the Laborers to Bis-
chof's previous two letters. Bischof emphasized that the
Respondent did not intend to sign a short-form agree-
ment with the Union. Bischof pointed out that the Re-
spondent had hired him to negotiate agreements which
would speak to the problems which the Respondent had.
On May 13, 1980, Bischof was successful in contacting
Abbott by telephone at his home. Bischof testified, "I
spoke with John, very amicably, on the phone-and we
established a meeting date of May 21." Bischof told
Abbott about the problems which the Respondent was
having, and, in particular, about some jurisdictional dis-
putes. Bischof told him that ". . . we did not want to
sign the short form. We want to negotiate." Bischof
asked Abbott to send him a copy of the Laborers' con-
tract proposal prior to their meeting scheduled for May
21, 1980, so that both sides could examine each other's
proposals. Abbott said that he was not in a position to
mail a copy of a contract proposal to Bischof. According
to Bischof, Abbott explained, "We're engaged in A.G.C.
negotiations, but I will meet with you on the 21st."
On May 16, 1980, Bischof mailed a copy of the Re-
spondent's contract proposal to Abbott. (See the cover
letter introduced into evidence as G.C. Exh. 9(b).)
On May 21, 1980, Bischof and Johnston waited for
Abbott to appear for their scheduled meeting, but
Abbott did not show up on that day. However, later that
afternoon Abbott telephoned Bischof, and he explained
that he had gotten tied up and could not make the meet-
ing that day. They then agreed to meet on May 23, 1980,
at Bischof's law office in Sunriver, Oregon.
On May 23, 1980, Abbott met at 10 a.m. with Bischof,
Hatch, Johnston, and Foreman Rod Welch. Abbott in-
formed the Respondent's representatives that he had read
the Respondent's contract proposal, but he did not have
a contract proposal to present from the Union. The par-
ties discussed the Respondent's contract proposal, but the
majority of the time spent at that meeting pertained to
the problems which Hatch and Welch related about the
Laborers' dispatching and Dutch Van Cleve's shutting
down jobs. Bischof also testified, "We indicated we were
working on what we felt was a May 31 deadline. I also
indicated, to John, the problems I'd had with the union
and prior clients once the contract expires. And I said
we are prepared to meet anytime between now and the
contract expiration to work this thing out." At the end
of the meeting, Bischof suggested that another meeting
be scheduled, but Abbott said that he was not in a posi-
tion to schedule another meeting at that time. However,
Abbott said that he would contact Bischof, and that he
would consider the things which Hatch and Welch had
told him about at that meeting, as well as the Respond-
ent's contract proposal.
On June 5, 1980, Bischof received a telephone message
that Abbott had called and said he was going on a vaca-
tion for 3 weeks. The message said that Vermeer would
be handling the negotiations from that point forward.
On June 13, 1980, Bischof had a telephone conversa-
tion with Vermeer. Bischof testified:
Basically, I was concerned again-and I asked
Vermeer again, why'd you pull John Abbott off our
negotiations? He said, well, I never really assigned
John to those negotiations, but he was going to
Sunriver for a convention. So I thought we'd have
him come by. So Neil and I went around a little bit,
and I was very upset about this whole program.
Basically, I went through and I said, Neil, we've
laid out-for almost an hour-some problems we
were having with Dutch Van Cleve, and various
numbers of your dispatchers-the jurisdictional
things. We thought we had something going on
this.
Neil said-well, the thrust of the conference
was-Neil said, we're not prepared to do anything
but sign an interim short form agreement with you.
And I said, Neil, are you saying, then, that you
won't come down and try to work out some of
these things that John Abbott indicated he'd work
out with us?
Neil said, I'm not going to sign anything but an
interim short form, binding you to the A.G.C. con-
tract. I said to Vermeer, I said, if that's your posi-
tion-we've never received anything from you
people in writing yet-here it was June 14, or the
13th-we had received nothing in terms of the con-
tract proposal from the Laborers.
I said, I want something to take back to my
client. If it's a short form-if that's your bottom
line-if that's what you're going to insist on-I said,
then, set it up as a proposal, so we can make a deci-
sion as to what we're going to do. But I said, all my
letters and all my phone calls, obviously-we've in-
dicated from day one-we're not going to sign a
short form.
Also, twice during that conversation, Vermeer
made some threats with respect to a strike. He said,
you know, we can shut you down. You're working
without a contract. You know, you ought to sign
that for some protection. I said, you're right, Neil,
you can shut us down; you've done it to me before,
and I'm aware of that.
But I'd at least like to have something in my pos-
session, to take back and show my client. That for
four months I've been trying to get you guys, to the
table, and I don't even have anything in writing yet.
1232
R. A. HATCH COMPANY
So, with that phone call, that was it. He said,
well, it's the short form, or nothing. It came in the
mail two days later, and on his letter-which is in
evidence-it said, pursuant to my request,-trying
to indicate that I requested the short form.
Introduced into evidence as General Counsel's Exhibit
11 was a copy of a letter dated June 13, 1980, from Ver-
meer to Bischof. In pertinent part, the letter stated:
Enclosed are several blank Laborers Compliance
Agreements per your request during our phone con-
versation today.
If you have any questions, please do not hesitate
to contact me.
A memo prepared by Bischof of his telephone conver-
sation with Vermeer on June 13, 1980, was introduced
into evidence as Respondent's Exhibit 24.
H. The Respondent's Decision on June 19, 1980, and
the Action Taken on June 23, 1980
Following the meeting on Thursday, June 19, 1980,
among Ridderbusch, Bischof, and Johnston at the Re-
spondent's office, Hatch made the decision to implement
the Respondent's offers to the Unions.
On Monday, June 23, 1980, Bischof mailed letters to
each one of the three Charging Party Unions. (See G.C.
Exhs. 12(a), (b), and (c).) Most of the wording in the let-
ters is the same, but there are some differences especially
in the third paragraph of each letter. The letter to the
Operating Engineers was introduced into evidence as
General Counsel's Exhibit 12(a). In pertinent part, it
states:
As you are aware, this office made numerous and
diligent attempts to negotiate a successor labor
agreement with your union on behalf of R. A.
Hatch Company prior to the expiration date of May
31, 1980. In fact, you received certified letters dated
January 15, 1980; February 27, 1980; April 11, 1980
and May 12, 1980 relating to bargaining for a suc-
cessor contract.
Our letter to you dated April 11, 1980 stated in
part:
Inasmuch as we have heard nothing from you
with respect to commencing negotiations for a
successor agreement, this letter shall serve as the
employer's formal request to commence negotia-
tions as soon as possible for a successor agree-
ment. On behalf of the employer, I am prepared
to meet with your authorized bargaining repre-
sentative in Bend, Oregon, during the week of
April 21, April 28, May 5, and May 12. It is our
intent to spend whatever time is necessary to
conclude these negotiations prior to the expira-
tion of the existing contract.
Despite our April 11th letter setting out the above
dates as well as a plea to conclude negotiations
prior to May 31, we received absolutely no re-
sponse from you. As a last resort, we sent a letter
on May 12th which resulted in a meeting wherein
we were informed that your negotiators would not
be available until after July 19th at which time it
was hoped Local 701 had ratified its agreement
with the Associated General Contractors.
It has been obvious from your conduct that Interna-
tional Union of Operating Engineers, Local 701
never intended to negotiate a separate agreement
with R. A. Hatch Company despite the employer's
timely withdrawal from the Associated General
Contractors as bargaining agent.
Neither the National Labor Relations Board nor the
Courts have ever required an employer to idly
stand by beyond the expiration date of a contract
while the union refused to meet with the employer.
Accordingly, the Company has implemented its
offer submitted to you prior to the expiration of the
old agreement.
The third paragraph of General Counsel's Exhibit
12(b), which was addressed to the Teamsters, states:
Despite our April 11th letter setting out the above
dates as well as a plea to conclude negotiations
prior to May 31, we received absolutely no re-
sponse from you. As a last resort, we sent a letter
on May 12 which still failed to produce any negoti-
ations.
The third paragraph of General Counsel's Exhibit
12(c), which was addressed to the Laborers, states:
Despite our April I 1th letter setting out the above
dates as well as a plea to conclude negotiations
prior to May 31, we received absolutely no re-
sponse from you. As a last resort, we sent a letter
on May 12th which resulted in a meeting wherein
we were informed that your union was still bargain-
ing with the Associated General Contractors. This
meeting resulted in your asking R. A. Hatch Com-
pany to sign another compliance or short form
agreement binding us to your A.G.C. agreements.
I. The Events Subsequent to June 23, 1980
On June 24, 1980, a letter was sent from Hatch to his
employees. A copy of that letter was introduced into evi-
dence as General Counsel's Exhibit 14. A copy of that
document is attached hereto as Appendix A.
Introduced into evidence as General Counsel's Exhibit
13 was a copy of a letter dated June 24, 1980, from Ver-
meer to Bischof. In pertinent part, it states:
It has come to our attention that R. A. Hatch has
unilaterally made a decision to put the fringe bene-
fits on the mens' paychecks and pay directly to
them.
We have never refused to meet and bargain with
you and this is an unfair labor practice.
Please reply immediately.
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As of June 23, 1980, the A.G.C. negotiations had not
been completed with the three Charging Parties to this
proceeding. The Operating Engineers and the A.G.C.
concluded their negotiations on or about July 21, 1980.
The agreed-upon contract was ratified by the union
membership on or about September 24, 1980.
On or about July 21, 1980, the Laborers ratified the
A.G.C. master contract to which those parties had tenta-
tively agreed about I week earlier. After the ratification
of that new contract, the Laborers mailed out a form
letter to employers who did not have a contract with the
Union. See Respondent's Exhibit 4 which had a blank
"Laborers Compliance Agreement" attached to it.
Among other things, the letter stated, "We will have to
notify the Administrator of our Trust Funds not to
accept contributions on Health & Welfare and Pension
on behalf of your employees unless we have a new
agreement with you."
The contract between the Teamsters and the A.G.C.
was ratified by the union membership on August 6, 1980.
Subsequently in November 1980, Hatch met informally
with Bill Diltz and LaChapelle. Hatch testified:
The conversation was very informal, it was very
friendly, I've been friends with these people for a
long time. I indicated to them and they indicated to
me that we're sorry that we parted company. Bill
Diltz said, I guess we blew it, and I said well, I'm
sorry that we could never get together with you.
At that time he indicated that they were busy with
the A. G. C. negotiations and that they weren't [in]
any position to talk to us. He said that I hope we
can get together in the future, and I said I feel the
same way. The unions were something we felt that
it did us some good, too.
The Respondent has not withdrawn recognition from
any one of the three Charging Party Unions.
J. Conclusions
In its decision in Taft Broadcasting Co., WDAF AM-
FM TV, 163 NLRB 475, 478 (1967), the Board has de-
scribed a bargaining impasse as follows:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
In enforcing the Board's Order in Taft Broadcasting,
the United States Court of Appeals for the District of
Columbia stated:
It is indeed a fundamental tenet of the act that even
parties who seem to be in implacable conflict may,
by meeting and discussion, forge first small links
and then strong bonds of agreement. But some bar-
gaining may go on even in the presence of dead-
lock. Here the continued meetings and occasional
progress-facts by no means immaterial-were
overborne in the Board's view by the conceded im-
passe on the critical issues of staff assignment on
which the progress had been "imperceptible" and,
indeed, had led in some aspects, each party claimed,
to a widening of the gulf between them. As we see
it, the Board's finding of impasse reflects its conclu-
sion that there was no realistic possibility that con-
tinuation of discussion at that time would have been
fruitful. The Board was justified on the record in
concluding that, as of December 4, the prospects of
reaching an agreement had been exhausted, and the
Company had discharged its statutory obligation to
conduct full and fair discussions with the Union.
[Footnotes omitted.]
The court's opinion is reported in American Federation
of Television and Radio Artists, AFL-CIO, Kansas City
Local v. N.L.R.B., 395 F.2d 622, 628-629 (1968).
Further guidance regarding the definition of an im-
passe was given by the Board in its decision in Hi-Way
Billboards, Inc., 206 NLRB 22, 23 (1973):
A genuine impasse in negotiations is synonymous
with a deadlock:' 5 the parties have discussed a sub-
ject or subjects in good faith, and, despite their best
efforts to achieve agreement with respect to such,
neither party is willing to move from its respective
position. When such a deadlock is reached between
the parties, the duty to bargain about the subject
matter of the impasse merely becomes dormant until
changed circumstances indicate that an agreement
may be possible. 1 6 Once a genuine impasse is
reached, the parties can concurrently exert econom-
ic pressure on each other: the union can call for a
strike;' 7 the employer can engage in a lockout,' 8
make unilateral changes in working conditions if
they are consistent with the offers the union has re-
jected,' 9 or hire replacements to counter the loss of
striking employees.20 Such economic pressure usu-
ally breaks the stalemate between the parties,
changes the circumstances of the bargaining atmos-
phere, and revives the parties' duty to bargain.
Thus, a genuine impasse is akin to a hiatus in ne-
gotiations. In the overall ongoing process of collec-
tive bargaining, it is merely a point at which the
parties cease to negotiate and often resort to forms
of economic persuasion to establish the primacy of
their negotiating position. Moreover, the occurrence
of a genuine impasse cannot be said to be an unex-
pected, unforeseen, or unusual event in the process
of negotiations since no experienced negotiator ar-
rives at the bargaining table with absolute confi-
dence that all of his proposals will be readily and
completely accepted. Therefore, it is clear that an
impasse is but one thread in the complex tapestry of
collective bargaining, rather than a bolt of a differ-
1234
R. A. HATCH COMPANY
ent hue. In short, a genuine impasse is not the end
of collective bargaining.
'i Newspaper Drivers & Handlers' Local Union No. 372. Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind. (Detroit Newspaper Publishers Association]
v. N.LR.B., 404 F.2d 1159 (C.A. 6, 1968), cert. denied 395 U.S.
923 (1969).
'6 Transport Company of Texas, 175 NLRB 763, 768, enfd. 438
F.2d 258 (C.A. 5, 1971).
1 N.L.R.B. v. Erie Resistor Corp.. 373 U.S. 221, 223 (1963).
18 N.L.R.B. v. Truck Drivers Local Union No. 449, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. AFL [Buffalo Linen Supply Co.]., 353 U.S. 87 (1957);
N.L.R.B. v. Brown. et at d/b/a Brown Food Stores, 380 U.S. 278
(1965); American Ship Building Company v. N.L R.B, 380 U.S. 300
(1965).
iS Eddies Chop HIouse. Inc., 165 NLRB 861.
20 .L.R B v. Mckay Radio d Telegraph Co., 304 U.S. 333
(1938); N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F.2d 393 (C.A.
2, 1953), cert. denied 347 U.S. 953.
The foregoing Board and court decisions are helpful in
analyzing the particular facts in this case in order to de-
termine whether an impasse in negotiations existed be-
tween the Respondent and any one of the three Charg-
ing Parties as of June 23, 1980.
Without repeating the findings of fact set forth in earli-
er sections, I conclude from those facts that the Re-
spondent maintained a firm and adamant position that the
Respondent was not going to sign a "short form" agree-
ment, which would bind the Respondent to the terms
and conditions of master agreements negotiated by the
A.G.C. and the Charging Parties. The written and verbal
communications from the Respondent to the Charging
Parties clearly and repeatedly made known the Respond-
ent's firm position against signing a short-form agree-
ment. That position signaled to the Unions a change in
the Respondent's past collective-bargaining history with
the Unions. Thus, this was not simply a situation where
the Respondent had withdrawn its membership in the
A.G.C. Instead, this was a situation where the Respond-
ent at the outset made known to the Unions its desire to
negotiate individually for separate collective-bargaining
agreements with terms and conditions, which the Re-
spondent believed would ameliorate the problems that
the Respondent had encountered. In these circumstances,
I conclude that negotiating individual contracts was an
issue which the Respondent perceived to be of impor-
tance, and an issue on which the Respondent was ada-
mant.
The Respondent also expressed, both in writing and
verbally, its sense of urgency about the contract negotia-
tions, and its desire to conclude new collective-bargain-
ing agreements prior to the expiration of the then-exist-
ing agreements. That also was a firm position which the
Respondent indicated was "imperative" from its view-
point. In these circumstances, I conclude that promptness
in negotiating new collective-bargaining agreements with
the Unions was an issue of importance to the Respond-
ent, and an issue on which the Respondent was adamant.
The Respondent initially set aside several weeks for
negotiations with the Charging Parties, and later the Re-
spondent also sought to have bargaining sessions on
other dates. The Respondent met with union representa-
tives on the three occasions that face-to-face negotiations
took place, and the Respondent submitted written and
complete contract proposals to all three of the Charging
Parties. While the length of time of the actual negotia-
tions was relatively short, I conclude that the Respond-
ent made known to the Unions its availability to meet
and its desire to meet and bargain with the Unions' nego-
tiators.
In contrast to the positions taken by the Respondent,
the written and verbal communications from the three
Charging Parties evidenced a desire to have the Re-
spondent sign short-form agreements. Their actions also
indicated that the Unions did not share the Respondent's
sense of urgency about negotiations with the Respond-
ent. The position taken by the Charging Party Laborers
was the most clearly expressed and the most firm posi-
tion of the three Charging Parties. According to Bischof.
Vermeer told him on June 13, 1980, ". .. I'm not going
to sign anything but an interim short form, binding you
to the A.G.C. contract." Once again, according to Bis-
chof, the Laborers' representative told him in the same
telephone conversation, ". . . it's the short form or noth-
ing." (See sec. G herein.)
The Operating Engineers' position regarding a short-
form agreement was not stated as an "ultimatum," ac-
cording to Bischof, but it seems clear that the Operating
Engineers also maintained consistently their bargaining
position in favor of the Respondent's signing a short-
form agreement. (See sec. E herein.)
With regard to the Respondent and the Laborers and
the Operating Engineers, I conclude that the facts show
that those parties had reached an impasse in their negoti-
ations over the signing of a short-form agreement, and
that the Respondent was free to implement its contract
proposals.
There were never any actual contract negotiations be-
tween the Respondent and the Teamsters, even though
the Respondent had sought such meetings and had
mailed a written contract proposal to that Union. In that
sense, the Respondent gave notice to the Teamsters of its
contract proposals; gave the Teamsters an opportunity
on several occasions to bargain, but the Teamsters did
not avail themselves of those opportunities. Diltz made a
realistic assessment of the situation when he commented,
with candor, to Hatch in November 1980, ". . . I guess
we blew it .... " (See sec. I herein.) Instead of an im-
passe in negotiations with the Teamsters, I conclude that
the facts show that there were no contract negotiations,
and that the Respondent was free in these circumstances
to implement its contract proposals: (1) after the Re-
spondent gave notice to the Teamsters of its proposals,
and (2) after the Respondent afforded the Teamsters op-
portunities to bargain about those proposals.
After considering the foregoing and the arguments ad-
vanced by the attorneys for all of the parties, I further
conclude that a preponderance of the evidence does not
support the allegations of the General Counsel's consoli-
dated complaint, which alleges that the Respondent vio-
lated Section 8(a)(1) and ;(5) of the Act. Accordingly, I
must recommend to the Board that the General Coun-
sel's consolidated complaint be dismissed.
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Charging Parties are labor organizations within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the General Counsel's consolidated
complaint in this proceeding for the reasons which have
been set forth above.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
It is hereby ordered that the complaint in this proceed-
ing be dismissed in its entirety.
I In the event that no exceptions are filed, as provided by Sec. 102.46
of the Board's Rules and Regulations, the findings, conclusions, and rec-
ommended Order herein shall, as provided in Sec. 102.48 of the Board's
Rules and Regulations, be adopted by the Board and shall become its
findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
APPENDIX A
R. A. HATCH CO.
GENERAL CONTRACTORS
POST OFFICE Box 201
BEND, OREGON 97701
(503) 382-8418
June 24, 1980
Dear Employee:
As you are aware, all labor agreements between the
Company and the various construction trade unions ex-
pired May 31, 1980. Since that time, you have asked, it is
important that you be informed of the following facts.
Last year, the Company made a decision that it was
withdrawing its membership from the Associated Gener-
al Contractors and would negotiate with the various
unions on an individual basis for new contracts to begin
on June 1, 1980. In the past, the unions would ask us to
sign a "short form" for "compliance" agreement binding
us to the master labor contracts negotiated in Portland
between A.G.C. and the various unions; however, I felt
it was important for the economic well-being of the
Company to negotiate individual contracts with the
unions which would address specific working conditions
and problems unique to R. A. Hatch Co. and our em-
ployees.
Despite numerous requests by our attorneys asking the
various unions to come to the bargaining table, none of
the unions were willing to negotiate individual agree-
ments with us prior to May 31st. In fact, our attorneys
sent several certified letters to each union asking them to
negotiate with the Company during the months of April
and May so new agreements could be reached prior to
the expiration of the old agreements on May 31st. The
Laborers and Operating Engineers have indicated they
were interested only in having the Company sign new
"compliance" agreements negotiated with A.G.C.
In view of the unions' unwillingness to negotiate new in-
dividual agreements, we are implementing the contract
proposals given to the Laborers, Operators and Team-
sters by us on May 15th and 16th. It is important to note
that federal labor law restrict us from implementing any
proposal other than what was offered the unions. In sum-
mary, the wage proposal consist of a 10% across-the-
board wage increase for each employee effective June 1,
1980. In addition, the following benefits will be paid ef-
fective June 1, 1980:
BENEFITS:
Health & Welfare
The amount of $1.00-Operators; $0.78-Teamsters;
$1.07-Laborers per hour worked will be paid to
the employee as a part of his benefits payment.
The employee may choose to participate in the
Company's group health and dental insurance
coverage, which is presently provided by OPS-
Blue Shield (Group No. 39745-00). Premium
payment will be either direct from the employee
to the Company or, with the employee's concur-
rence, through a payroll deduction.
Vacation
The amount of $0.50-Operators; $1.00-Teamsters;
$0.80-Laborers per hour worked will be paid the
employee as a part of his benefits payment.
Pension
The amount of $1.47-Operators; $1.05-Teamsters;
S1.23-Laborers per hour worked will be paid the
employee as a part of his benefits payment.
Training
The amount of $0.05-Operators; $0.05-Teamsters;
$0.10-Laborers per hour worked will be paid the
employee as a part of his benefits payment.
CIAF
The amount of $0.05 per hour worked will be
paid the employee as a part of his benefits pay-
ment.
Attached to this letter are two checks reflecting the ad-
ditional 10% wage increase from June I as well as a
benefit check from June 1. I have not attached a copy of
the contract proposals submitted to the unions; however,
they are available for your review if you desire a copy.
Also attached is a copy of the OPS-Blue Shield group
health and medical plan which you and your family are
eligible to enroll in. We will assist you in enrolling in
this plan and an application is attached. You may use any
portion of your benefit checks to pay the premiums by
directly mailing them to R. A. Hatch Co. If you prefer,
we will provide a payroll deduction. We recommend
1236
R. A. HATCH COMPANY
you sign up for this medical plan. Incidentally, this is the
same plan all Company supervisors and office staff have.
I feel it is an excellent plan for you and your family and
we will insure there is no break in coverage from the
union trust plan to the new OPS-Blue Shield plan.
The Company will no longer enforce a union security
agreement or dues deduction provision. I want to make
it very clear that the Company is not anti-union in any
respect. All employees who desire to remain members of
the union are free to send their dues directly to the re-
spective unions. However, the Company will no longer
require employees to join or be members of a union in
order to work for R. A. Hatch Co. It is an individual
choice and the Company will remain totally neutral.
IF any union should call a strike, I would genuinely
hope you would continue working for the Company. It
is against the federal laws for any union representative to
blackball, threaten or coerce you in your decision to
work for the Company. The unions cannot take away
any trust fund benefits to which you are presently enti-
tied. If you are threatened or told you will be black-
balled, please obtain the individual's name and immedi-
ately call the National Labor Relations Board in Port-
land at 221-3085. The N.L.R.B. will quickly move to
stop any form of union intimidation. You may also
inform your supervisor who will contact our Company
attorneys for immediate action.
In conclusion, you as an employee are very valuable to
the Company. Without your services, the Company's
ability to operate would be impaired. Accordingly, I will
do everything possible to guarantee fair treatment and
benefits to you and your family. My door or that of our
supervisors is always open for questions and complaint.
Please feel free to contact me at any time concerning
questions you might have.
Sincerely,
R. A. HATCH CO.
Bob Hatch, President
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