Bituminous Roadways of Colorado

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 1010 (N.L.R.B. 1994)

1010
314 NLRB No. 167
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by unilaterally discontinuing the den-
tal and vision care insurance coverage, we rely specifically on his
finding that the Respondent announced the termination to the Union
and the employees in such a confusing way that the Union could
reasonably have concluded it was a fait accompli, with no basis for
bargaining. Therefore, the Union could not be said to have waived,
by inaction, any opportunity to bargain. In view of that finding, we
find it unnecessary to pass on the judge’s additional reasoning that
the Respondent’s refusal to pay for such coverage after CCT discon-
tinued it as part of the basic plan was tantamount to abrogating a
statutory duty to maintain the status quo.
1 All dates are in the 1992 calendar year unless otherwise indi-
cated.
2 The name of the Charging Party has been changed to reflect its
new name.
3 The charge was amended on July 17.
4 Respondent’s direct inflow annually exceeds the dollar volume
established by the Board for exercising its statutory jurisdiction over
nonretail enterprises. Accordingly, the exercise of the Board’s juris-
diction here is appropriate.
5 The other sessions were held on October 29, November 12 and
25, and December 17, 1991, and February 3 and 20, April 17, and
May 22, 1992.
Bituminous Roadways of Colorado and Inter-
national Brotherhood of Teamsters, Local 13,
AFL–CIO. Case 27–CA–12224
August 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On July 27, 1993, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed a brief answering the Re-
spondent’s exceptions and supporting the judge’s deci-
sion.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bituminous Roadways of
Colorado, Lakewood, Colorado, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
William J. Daly and Diane J. Munkel, Esqs., for the General
Counsel.
John L. Reiter, Esq., Mountain States Employers’ Council,
Inc., of Denver, Colorado, for the Respondent.
Frank L. Frauenfeld, Teamsters Joint Council No. 3, of Den-
ver, Colorado, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Here,
the General Counsel of the National Labor Relations Board
(NLRB or Board) alleges that Bituminous Roadways of Col-
orado (Respondent or Company) violated Section 8(a)(1) and
(5) of the National Labor Relations Act (Act) by: (1) unilat-
erally changing insurance coverage for represented employ-
ees on or about January 15, 1992;1 (2) unilaterally granting
pay increases to the same employees on or about April 2;
and (3) refusing to provide wage rate information requested
on or about April 17.
The International Brotherhood of Teamsters, Local 13,
AFL–CIO (Union)2 initiated this proceeding by filing an un-
fair labor practice charge on May 28.3 Thereafter, the Re-
gional Director for Region 27, acting on behalf of the Gen-
eral Counsel, issued a complaint and notice of hearing on
July 22. Respondent timely answered the complaint on July
29 denying that it engaged in the unfair labor practices al-
leged.
I heard this case on February 25, 1993, at Denver, Colo-
rado. Having now carefully considered the record, the de-
meanor of the witnesses while testifying, and the parties’
posthearing briefs, I conclude that Respondent violated the
Act as alleged based on the following
FINDINGS OF FACT
THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, a corporation with an office and place of
business in Lakewood, Colorado, is engaged in the asphalt
paving business.4 Its operations are seasonal lasting generally
from the beginning of April to about mid-December. During
this seasonal period, Respondent employs about 110 to 130
employees, including approximately 70 workers engaged in
construction operations. Typically, 8 to 15 of Respondent’s
construction workers are drivers and fuelers who have been
represented by the Union since its certification on July 18
following a Board-conducted election. From time to time it
also employs a large number of independent contractors who
haul asphalt.
Negotiations for a collective-bargaining agreement cov-
ering the drivers and fuelers commenced on September 19.
Between that date and the final session on January 28, 1993,
the parties held eight additional sessions in an unsuccessful
effort to conclude an agreement.5 William Lauer, the Com-
pany’s vice president and operations manager, and Kermit
1011BITUMINOUS ROADWAYS OF COLORADO
6 Lauer was uncertain as to when he received the CCT notices. At
first, he seemed to suggest that he had not received the notices be-
fore the February 3 meeting. Later, however, he alluded to a tele-
phone call he made to the trust administrator after receiving the first
CCT notice during which he was informed that the January 29 no-
tice would be forthcoming. As Respondent’s version of the bargain-
ing session exchanges involving the health benefits matter revolve
around this professed lack of information at the February 3 meeting
which I find to be unreliable, I have credited Parker’s account of
what occurred. I further note that Parker’s account appears to con-
form in general to Darkey’s notes taken at the February 3 session.
Darkey, president of the Mountain States Employers’ Coun-
cil, represented Respondent at all the bargaining sessions.
Union President Jack Parker represented the Union at all ses-
sions. Frank Frauenfeld, an organizer for Teamsters District
Council No. 3, assisted Parker at most of the sessions. Driv-
ers Ed Schweers and Sally Campbell were present at two
critical sessions on February 3 and 20.
This case relates to changes made in Respondent’s health
benefits plan in early 1992 and the wage increases Respond-
ent granted to the unit employees on April 3, at the start of
the 1992 season.
B. 1992 Changes in Respondent’s Health
Benefit Program
Since April 1991, Respondent has provided its hourly paid
employees with a health benefit plan that it purchases from
the Colorado Contractors’ Trust (CCT). In addition to stand-
ard medical benefits, the plan included an added dental and
vision benefit program (DV benefits) as well as an ‘‘hour
bank’’ feature designed to provide insurance coverage during
the off-season. Apart from the drivers and fuelers involved
here, none of Respondent’s employees covered under the
CCT health plan are represented.
Early in the negotiations, the parties discussed the mainte-
nance of health benefits by the Company. According to
Parker, the Company agreed to maintain the existing health
benefits for a year. Darkey disputes that claim; he testified
that the Company only agreed to maintain the existing health
benefit plan until its renewal date. When the Union presented
its economic proposals later, it sought to have the unit em-
ployees covered under the Teamsters health and welfare pro-
gram. The company negotiators repeatedly rejected that pro-
posal in the early meetings. The Company’s written proposal,
submitted during one of the 1991 sessions, provided for the
continuation of the CCT plan for the unit employees. Not-
withstanding, no one claims that the parties had reached an
impasse over the health benefit issue.
By separate notices dated January 21, 1992, CCT notified
both the participating employers and employees that it
planned changes in its health plan. In its letter to the partici-
pating employers, CCT said that, following a review of its
1991 operations, ‘‘we resolved to modify benefits as well as
adjust the monthly rates to spread the increased costs to both
the employer and the employee.’’ Among other changes,
CCT notified the participating employers that the premium
cost would increase by 10 cents per hour worked by each
employee. Attached to the notice was a description of the
modifications that were to become effective March 1. The
notice called specific attention to the fact ‘‘that dental and
vision benefits for Plan B (hourly) employees are terminated
effective January 31, 1992’’ but stated that the employer
could make arrangements for ‘‘either or both coverages’’
through The Segal Company.
The notification sent to employees called attention to
changes in the deductible amounts, copayment requirements,
coinsurance provisions, and the mental health and substance
abuse benefits. More importantly, CCT notified employees
that there would be a ‘‘moratorium’’ on the dental and vision
benefits effective February 1, 1992. The notice explained that
dental and vision procedures preauthorized prior to January
14 would be paid for if completed during the authorization
period but otherwise ‘‘only those dental and vision services
completed by January 31, 1992, will be considered eligible.’’
(Emphasis in the original.)
On January 29, CCT sent another notice to the partici-
pating employers dealing with ‘‘the recent notification to
eliminate dental and vision benefits.’’ In this notice, CCT
stated that it was ‘‘agreeable to offering dental and vision
coverage on a Company-selected basis.’’ The notice con-
tinues by specifying the conditions under which dental and
vision benefits would be available in the future months. The
salient requirements included: (1) DV benefits would not be
available separately; (2) employers selecting DV coverage
had to agree to participate for a minimum period of 2 years;
(3) an added premium of 20 cents per hour was required for
all hourly employees beginning March 1; (4) coverage could
not be selected individually by employees; (5) DV rates for
future years were subject to increases; (6) benefits would
begin ‘‘again’’ on May 1 for employees of employers who
began contributions on March 1; (7) employers desiring cov-
erage as of March 1 were required to pay $75 per employee
shown on the Employer’s January reporting form as well as
the 20 cents per hour; and (8) employees eligible for March
and April coverage under CCT’s ‘‘hour bank’’ provision
would be eligible for coverage under the ‘‘Prepayment Provi-
sion.’’ The notice concludes with a recitation of complicated
rules applicable to employees who change employers.
At the beginning of the February 3 bargaining session,
Lauer informed the union negotiators that CCT planned to
make changes in the health plan. Admittedly, Lauer did not
have the notices described above with him at the session.6
According to Parker, Lauer said that CCT planned to termi-
nate the DV benefits, increase the deductible, and make other
changes effective April 1. Lauer also told the union commit-
tee that if the Company wanted to keep the basic CCT health
plan, the per-employee premium would increase by 10 cents
per hour and that the DV benefits would cost an additional
20 cents per hour.
When Parker asked if the Company intended to keep the
CCT plan, Lauer said they did but when he asked if the
Company planned to pay for the now separate DV benefits,
Lauer said, ‘‘No, definitely not.’’ This response led Parker
to ask, in effect, how the Company squared that response
with its assurance early in the negotiations that it would
maintain benefits for at least a year. Lauer disputed Parker’s
claim that such an assurance had been given; instead, Lauer
asserted that the Company had only agreed to maintain the
plan at the existing rate and that it had never agreed to main-
tain benefits. At approximately this point in the exchange,
one of the employees present asked to caucus with the union
negotiators and a brief break followed.
During the caucus, Schweers and Campbell told Parker
about the notices they had received from CCT and reported
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Apparently, the employees believed that other changes had al-
ready occurred but neither employee had a copy of the CCT notice
to confirm their assertions.
8 More specifically, this document (G.C. Exh. 5) reflects that one
employee was increased 25 cents per hour, four employees were in-
creased 50 cents per hour, one employee was increased $1.25 per
hour, and one employee was increased $1.50 per hour.
9 In his testimony, Lauer conceded that the new rates shown on
the document furnished to the Union on April 17 are inaccurate.
However, as he also testified that pay increases were granted in
April and May, it is unclear whether they were inaccurate when
given to the Union at the April 17 session.
that the dental and vision care had already ceased.7 After re-
turning to the bargaining table and questioning the company
negotiators concerning the effective date of the changes,
Parker then reported the information provided by the em-
ployees during the caucus. Campbell confirmed that CCT’s
notice to employees stated that the DV benefits had already
been eliminated and that the health plan deductible would be
increased. The company negotiators promised to check into
that claim and report back at the next session.
Sometime prior to the February 20 session, both Schweers
and Darkey furnished Parker with a copy of CCT’s January
21 notice to employees. Never having been privy to the em-
ployer notices from CCT, Parker concluded that the continu-
ance of the DV benefits was a ‘‘done deal’’ because Re-
spondent refused to pay the 20 cents per hour to maintain
that benefit. Consequently, Parker did not revisit the DV
benefit issue on February 20.
C. The 1992 Pay Increase
Respondent had no pattern or practice concerning peroidic
wage adjustments for the drivers and fuel men. Thus, Lauer
said very few wage adjustments were made in either 1990
or 1991. Before that, the wage adjustment pattern followed
the prior owner’s whim. Parker asserted that the Union had
information indicating that some employees had not received
increases in 5 years; Lauer stated that some inequities existed
in the unit employees pay rates.
At the December 17, 1991 bargaining session, the com-
pany negotiators rejected the Union’s economic proposal
made at the previous session. At the same time, however,
Lauer told the union representatives that Respondent was re-
viewing its wage structure with an eye toward granting in-
creases around April 1—the start of the new season—in
order to remain competitive.
At the February 3 session, Parker inquired about the pre-
viously mentioned wage review. Lauer reported that the re-
view was not yet finished. During the ensuing discussion,
Lauer told Parker that the wage adjustment criteria included
the employee’s work ethic, attendance record, and produc-
tion.
At the February 20 session, Parker inquired again about
the progress with the wage review. According to Parker,
Lauer responded that ‘‘they had pretty well come to a con-
clusion that they would like to put in a 50-cents-per-hour in-
crease . . . on approximately April 1.’’ Lauer recalled that
he told Parker at this meeting that the Company would in-
crease wages ‘‘[p]robably somewhere around 50 cents an
hour.’’ However, Lauer said that was before they had com-
pleted their evaluation of everyone.
Following Lauer’s response, Parker said that he turned to
Darkey and asked if that was a proposal. Everyone agrees
that Darkey responded ‘‘I wouldn’t have a problem making
it one.’’ This response, Parker said, led him to believe that
he would likely receive a written wage increase proposal.
Parker said that in his 15 years of experience in bargaining
with Darkey, the latter always put wage proposals in writing,
‘‘usually in hand-written form.’’ Darkey essentially con-
curred that this had long been his approach in discussing
whether or not one exhibit (G.C. Exh. 5) amounted to a pro-
posal or was merely information. However, Darkey proffered
no written wage proposal at the February 20 meeting.
Shortly after the start of the April 17 bargaining session,
Darkey handed Parker a document containing the names of
seven unit employees and the changes made in their hourly
wage rates effective April 3. This list reflects pay increases
ranging from 25 cents per hour to $1.50 per hour.8 These
specific increases had never been proposed before their im-
plementation nor had any agreement ever been reached on
increases of any kind.
Parker angrily accused Respondent’s negotiators of not
bargaining in good faith and ‘‘treating us like we weren’t
there.’’ In a private caucus, Parker told Darkey and Attorney
Reiter who was at that meeting that he probably would be
forced to file an unfair labor practice charge. Darkey re-
sponded that although the Company had ‘‘done it,’’ he
would ‘‘take the blame.’’
When the negotiators returned to the bargaining table,
Parker continued his protest. At this time, Darkey asked if
the Union wanted the Company to roll the increases back.
Not surprisingly, Parker declined that proposal. Subsequently,
Parker noted that the list provided did not contain the names
of all unit employees who had worked in the prior year.
After Darkey and Lauer conferred privately, they agreed that
the list was incomplete and told Parker that they would fur-
nish with a complete list. Parker asked to have it faxed to
him.
As Parker had not received the revised list by the next bar-
gaining session on May 22, he asked the company nego-
tiators for it at the table. They told him that they forgot to
bring it with them. Subsequently, the revised list of wage in-
creases was faxed to Parker on June 2. This list shows the
wage rates for 13 unit employees as of June 1, including 6
of the employees shown on the list provided to the Union
on April 17. Of those six employees shown on both lists, ei-
ther five received further increases by the time the June 2
list was prepared, or the wage rates shown for them on the
April 17 list were inaccurate. Assuming the latter is true but
the pre-increase hourly rates shown on April 17 list are accu-
rate, then the original increases on April 3 ranged from 50
cents per hour to $2 per hour. Regardless, no evidence shows
that the parties discussed or agreed upon additional increases
at or after the April 17 session.9 However, at the May 22
session, the Company did present its proposal for minimum
or beginning wage rates. No agreement was reached con-
cerning this proposal.
Darkey, in effect, testified that as the Union had long been
on notice that the Company contemplated a pay increase
around April 1 and as Respondent had discussed a potential
50-cent-per-hour increase at least at the February 20 meeting
without receiving any objection or protest from the Union,
1013BITUMINOUS ROADWAYS OF COLORADO
10 NLRB v. Katz, 369 U.S. 736 (1962); NLRB v. Borg-Warner
Corp., 356 U.S. 342 (1958); Intermountain Rural Electric Assn., 305
NLRB 783 (1991), enfd. 984 F.2d 1562 (10th Cir. 1993), in which
the Board discusses the waiver concept at some length; and Good-
man Holding Co., 276 NLRB 935 (1985), and the cases cited therein
concerning discretionary pay increases.
11 In its brief, the General Counsel makes no contention that other
CCT-initiated changes in the basic health plan—such as increased
deductibles and copayments—are unlawful. As no showing was
made that Respondent played any part in CCT’s actions or possessed
authority to alter these other changes, the conclusion ultimately
reached here applies only to the elimination of the DV benefits.
he believed that the Company was justified with imple-
menting increases of any amount over 50 cents per hour.
D. Further Findings and Conclusions
Section 8(a)(5) requires an employer ‘‘to bargain collec-
tively with the representatives of his employees.’’ According
to Section 8(d), the term ‘‘bargain collectively’’ means, inter
alia, ‘‘the mutual obligation of the employer and the rep-
resentative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other
terms and conditions of employment.’’
An employer violates the duty to bargain by changing the
terms and conditions of employment, including increasing
pay rates by amounts within its discretion or altering medical
insurance benefits, applicable to represented employees ab-
sent agreement with, or a waiver by, the employee bar-
gaining representative, or an impasse in negotiations.10 The
resolution of the primary issues presented here lies within the
framework of these legal principles.
1. The insurance changes
General Counsel argues that Respondent had a duty to
maintain the specific terms of the employee health insurance
plan rather than merely an insurance plan. Where, as here,
Respondent had ‘‘at least two options for continuing the [DV
benefits],’’ General Counsel contends that Respondent failed
to present those options to the Union ‘‘in such a way as to
allow meaningful negotiations.’’11 Instead, the General
Counsel claims, Respondent presented the CCT-initiated
changes to the Union in such a manner as to lead to the rea-
sonable conclusion that they were a fait accompli. In these
circumstances, the General Counsel in effect argues, no
waiver of the right to bargain on the Union’s part can be in-
ferred.
Respondent contends that the Union was aware that DV
benefits were discontinued as of February 1 and, after
ascertaining that Respondent would not agree to pay for add-
ing separate DV benefits, it ‘‘abandoned any efforts at fur-
ther negotiations that might result in the availability of that
coverage for the employees it represented.’’ Here, Respond-
ent argues, the Union was obliged to diligently pursue bar-
gaining about the DV benefits and its ‘‘efforts fall far short
of [the required] diligence.’’
Prior to February 1, Respondent provided DV benefits on
a noncontributory basis to its employees. The Board’s deci-
sion in the Intermountain Rural Electric case, supra at 785,
clearly establishes this central feature as the status quo cir-
cumstance, or the ‘‘term or condition of employment’’ that
must be maintained until new terms are negotiated or an im-
passe is reached in negotiations. Everything else aside, plain-
ly no agreement was reached with the Union to discontinue
DV benefits for the unit employees nor does this record sup-
port a conclusion that an impasse existed at the time the DV
benefits were discontinued. Instead, I find Respondent effec-
tively discontinued the existing DV benefits by refusing to
pay the increased premium sought by CCT.
By contending that the Union failed to diligently pursue
bargaining after it announced that it would no longer pay for
DV benefits, Respondent exposes its misperception about its
statutory duty to maintain the status quo. After CCT an-
nounced the new terms for continuing DV benefits under its
program, Respondent fundamentally faced a choice of either
paying the increased premium cost, negotiating with the
Union about securing DV benefits for the unit employees
from another source, or negotiating the discontinuance of this
benefit for the unit employees in order to satisfy its statutory
obligations.
To the extent that Respondent’s announcement on Feb-
ruary 3 that it would not pay the added premium cost for DV
benefits can be construed as a proposal by Respondent to
discontinue the DV benefits, I find, in agreement with the
General Counsel, that Respondent failed to present that pro-
posal in a manner designed to elicit meaningful negotiations.
Hence, the evidence here shows that the February 3 session
became bogged down in confusion about the true state of af-
fairs. On the one hand, CCT had notified employees that the
DV benefits were discontinued as of February 1 but later no-
tified the participating employers of an option to continue
those benefits. Respondent’s negotiators agreed to clear up
this confusion for Parker but, by subsequently providing him
only with the CCT notice sent to employees, they in fact re-
inforced the notion advanced at the February 3 session that
the DV benefits already had been discontinued and led him
to believe that the matter was a ‘‘done deal.’’ In these cir-
cumstances, I cannot conclude that the Union ever waived its
right to bargain over the discontinuance of the DV benefits.
More importantly, in the context of the parties’ negotia-
tions for a complete collective-bargaining agreement, Re-
spondent’s refusal to pay the increased DV benefit premium
without the union acquiescence is tantamount to abrogating
its statutory duty to maintain the status quo. On this point
the following summary by the Board in Intermountain Rural
Electric is both instructive and dispositive of this issue:
It is important first to set forth the rights of parties in
a collective-bargaining relationship. In a nonnegotiation
setting, it is incumbent upon a union to request bar-
gaining when it receives sufficient notice to permit
meaningful bargaining over an employer’s proposal to
change terms or conditions of employment. If a union
fails to act diligently in seeking bargaining, it may be
found to have waived its right and it is not unlawful
for an employer to implement the change unilaterally.
What period of time is found sufficient for a union to
request bargaining will depend upon the facts of each
case.
When parties are engaged in negotiations for a col-
lective-bargaining agreement, however, their obligations
are somewhat different. Because the parties are in fact
bargaining on various proposals, there is no need for
additional requests for bargaining on those proposals.
During negotiations, a union must clearly intend, ex-
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
press, and manifest a conscious relinquishment of its
right to bargain before it will be deemed to have
waived its bargaining rights. Absent such manifestation
by the union, an employer must not only give notice
and an opportunity to bargain, but also must refrain
from implementation unless and until impasse is
reached on negotiations as a whole. [Emphasis added;
footnotes omitted.] [305 NLRB at 786.]
As the parties here were far from an impasse in their ne-
gotiations as a whole at the time Respondent discontinued
the DV benefits for the unit employees, I conclude that, by
doing so, Respondent violated Section 8(a)(1) and (5), as al-
leged. Holding otherwise would encourage a collective-bar-
gaining landscape littered with individual, time-constrained
proposals to change this term or that and inhibit accord on
complete collective-bargaining agreements.
2. The pay increases
The General Counsel contends that the April 1992 pay in-
creases were put into effect before the Union was ever ad-
vised of the particular increase amounts. As the evidence es-
tablishes that these increases were in no way part of any
automatic schedule established by some prior practice, the
General Counsel argues Respondent violated the Act by uni-
laterally implementing the 1992 increases.
Respondent argues that ‘‘the Union knew that a wage in-
crease was proposed to occur ‘automatically’ by the 1st of
April.’’ Moreover, Respondent’s argument continues, since
the Union was informed at the February 20 meeting that the
proposed increase was to be 50 cents per hour and, as the
Union neither objected, protested, nor sought another meet-
ing before April 1 to submit a counterproposal, Respondent
was at liberty to implement the increases. This is so, Re-
spondent contends, because ‘‘the Union . . . avoided bar-
gaining over the issue.’’
I find that the April 1992 pay increase was in no sense
automatic so that agreement by the Union prior to its imple-
mentation was unnecessary. On the contrary, the evidence es-
tablishes clearly that these wage adjustments were essentially
designed to eliminate pay inequities and reward meritorious
employees. Similarly, the increases were in no sense an
across-the-board adjustment as suggested by Respondent’s
negotiators at the February 20 meeting. Even assuming that
Darkey actually made an increase proposal at the February
20 meeting, the increases actually granted a month and a half
later cannot be reasonably construed as an implementation of
that proposal. Consequently, I find that the Union had no
prior notice of the increases actually granted in April 1992
and, hence, no opportunity to bargain concerning those in-
creases. Accordingly, I find Respondent violated Section
8(a)(1) and (5) of the Act, as alleged. Goodman Holding Co.,
supra.
3. The information issue
On this question, the General Counsel argues that informa-
tion requested by the Union at the April 17 meeting con-
cerning an accurate listing of the wage increases unilaterally
granted by Respondent in April was presumtively relevant
and the Respondent’s delay for over 6 weeks in furnishing
that information was unlawful. Respondent is silent on this
issue.
A bargaining agent’s right to wage information about unit
employees ‘‘cannot be seriously challenged.’’ Woodworkers
v. NLRB, 263 F.2d 483, 484 (D.C. Cir. 1959), and the cases
cited at fn. 2. Respondent has advanced no justification for
the delay in furnishing the accurate information concerning
the April wage increases. In view of this fact, and as Re-
spondent acted unilaterally with respect to those wage in-
creases, I can perceive of no justification for Respondent’s
failure to timely furnish the requested information. This is
especially true in light of the parties’ interim bargaining ses-
sion on May 22. Accordingly, I conclude that Respondent’s
delay in furnishing the Union with accurate information con-
cerning the April 1992 wage increases violated Section
8(a)(1) and (5). International Credit Service, 240 NLRB 715,
718–719 (1979).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act which is the exclusive representa-
tive of the following appropriate unit of employees under
Section 9(a) of the Act:
All truck drivers and fuel men employed by Respond-
ent; excluding all office clerical employees, dispatchers,
heavy equipment operators, helpers, mechanics, weld-
ers, asphalt laborers, general laborers, guards and super-
visors as defined in the Act.
3. By unilaterally terminating the dental and vision care
insurance program applicable to unit employees after January
1992; unilaterally increasing the wage rates of unit employ-
ees in April 1992; and by failing to timely furnish the Union
with accurate information concerning the April 1992 wage
rate increases granted to unit employees, Respondent en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
4. The unfair labor practices found affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it will be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent will be required to reimburse unit employees
for all losses they incurred by reason its discontinuance of
the CCT dental and vision care insurance program after Janu-
ary 31, 1992, except to the extent that the CCT dental and
vision care insurance program may have been interrupted
from action taken solely by CCT. Such sums shall be com-
puted in the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970). Interest on all amounts owing will be
paid in accordance with the formula set forth in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Respondent’s
obligation to reimburse hereunder shall cease after it (1) se-
cures reinstatement of the CCT dental and vision care insur-
ance program, or the successor thereto, for unit employees
and any applicable waiting periods thereunder expire; (2)
reaches agreement with the Union for an alternate dental and
vision care insurance program applicable to unit employees
1015BITUMINOUS ROADWAYS OF COLORADO
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes. All pending motions inconsistent with this
Order are denied.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and any applicable waiting periods thereunder expire; or (3)
reaches an agreement with the Union to discontinue dental
and vision care insurance benefits.
As the Union has already declined to request the recission
of the wage increases granted in April 1992 no further op-
portunity to do so is deemed necessary. Accordingly, Re-
spondent will be required to maintain the wage rate increases
unlawfully granted in April 1992 until an agreement is
reached with the Union concerning different rates of pay.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Bituminous Roadways of Colorado,
Lakewood, Colorado, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally discontinuing insurance benefits applicable
to employees represented by the International Brotherhood of
Teamsters, Local 13, AFL–CIO (Union).
(b) Unilaterally changing rates of pay for employees rep-
resented by the Union absent an agreement or waiver by the
Union, or an bona fide impasse in negotiations for a collec-
tive-bargaining agreement.
(c) Failing to timely furnish the Union with information it
requests which is necessary for it to discharge its function as
the exclusive representative of Respondent’s employees in
the appropriate bargaining unit described below.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All truck drivers and fuel men employed by Respond-
ent; excluding all office clerical employees, dispatchers,
heavy equipment operators, helpers, mechanics, weld-
ers, asphalt laborers, general laborers, guards and super-
visors as defined in the Act.
(b) Reimburse employees employed in the unit specified
above in the manner specified in the remedy section of the
administrative law judge’s decision in Case 27–CA–12224
for all losses they incurred by reason of Respondent’s dis-
continuance, on or after January 31, 1992, of the dental and
vision care insurance program applicable to them.
(c) Post at its Lakewood, Colorado place of business cop-
ies of the attached notice marked ‘‘Appendix.’’13 Copies of
the notice, on forms provided by the Regional Director for
Region 27 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain, on request with Inter-
national Brotherhood of Teamsters, Local 13, AFL–CIO
(Union) as the exclusive representative of our employees em-
ployed in the following appropriate unit:
All truck drivers and fuel men; excluding all office
clerical employees, dispatchers, heavy equipment opera-
tors, helpers, mechanics, welders, asphalt laborers, gen-
eral laborers, guards and supervisors as defined in the
Act.
WE WILL NOT discontinue insurance benefits nor alter
wage rates for employees in the above unit without the prior
agreement or waiver by the Union, or a bona fide impasse
in negotiations for a collective-bargaining agreement.
WE WILL NOT fail to timely furnish the Union with infor-
mation necessary to perform its function as the exclusive bar-
gaining representative for the employees in the above unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL reimburse employees employed in the above unit
for all losses suffered by reason of our discontinuance to the
dental and vision care insurance program on and after Janu-
ary 31, 1992, together with interest on the sums.
BITUMINOUS ROADWAYS OF COLORADO