Brannan Sand & Gravel Co.

National Labor Relations Board - Board Decisions

Jul 11, 1994

314 N.L.R.B. 282 (N.L.R.B. 1994)

282
314 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In agreeing that the Respondent violated Sec. 8(a)(5) by bypass-
ing the Union and dealing directly with unit employees, we find it
unnecessary to rely on the judge’s discussion of E. I. du Pont &
Co., 311 NLRB 893 (1993). Instead, we find sufficient evidence of
direct dealing in the survey and discussion of employees’ compensa-
tion, taken overall, to find that the Respondent bargained in bad faith
under Sec. 8(a)(5) and (1).
2 Without passing on whether Stone Container Corp., 313 NLRB
336 (1993), was correctly decided, Member Browning concurs with
the result reached by her colleagues, because she agrees that the Re-
spondent did not provide the Union with timely notice and a mean-
ingful opportunity to bargain before implementing changes in health
benefits.
1 The name of the Union has been changed to reflect its new
name.
Brannan Sand and Gravel Company and Inter-
national Brotherhood of Teamsters, Local 13,
AFL–CIO. Cases 27–CA–12223 and 27–CA–
12223–2
July 11, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On October 26, 1993, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
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, and con-
clusions1 and to adopt the recommended Order.2
In adopting the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilater-
ally implementing changes in its health care plan, we
distinguish Stone Container Corp., supra, which issued
after the judge’s decision. In Stone Container, the em-
ployer notified the union in March during negotiations
for a collective-bargaining agreement that it could not
afford to give employees the annual April wage in-
crease. The Board found that the employer made its
proposal in time to allow for bargaining over the mat-
ter, but the union made no counterproposal concerning
the April wage increase and did not raise the issue
again during negotiations. The Board concluded that
the employer satisfied its bargaining obligation regard-
ing the April wage increase and was not required to
refrain from implementing the change until an overall
impasse had been reached on bargaining for a collec-
tive-bargaining agreement as a whole. The Board rea-
soned that the annual April wage review was a discrete
event that just simply happened to occur while contract
negotiations were in progress.
The health plan changes at issue here are similar to
the annual wage increase involved in Stone Container
because the record shows that since the inception of
the health care plan, its costs and benefits have been
reviewed and adjusted annually to control the Re-
spondent’s expenditures. Therefore, in accordance with
Stone Container, we find, contrary to the judge, that
the Respondent was not obligated to refrain from im-
plementing its proposed changes until an impasse was
reached on collective-bargaining negotiations as a
whole.
However, unlike the situation in Stone Container,
we find here that the Respondent did not satisfy its ob-
ligation to provide the Union with timely notice and a
meaningful opportunity to bargain over the change in
employment conditions. Rather, the record shows that
the Respondent presented the health plan changes to
the Union as a fait accompli. In this connection, we
rely on the fact that by the time the Union was ap-
prised of the contemplated changes, the Respondent
had already announced them to the employees. Further,
the Respondent’s own witness testified that the Union
was advised that any discussion over the health plan
changes would have been ‘‘fruitless’’ because the Re-
spondent had no intention of doing anything other than
what it planned to do. Accordingly, for these reasons,
we agree with the judge that the Union did not waive
its right to bargain and that the Respondent violated
Section 8(a)(5) and (1) by unilaterally implementing
the health plan changes. See Ciba-Geigy Pharma-
ceuticals Division, 264 NLRB 1013, 1017 (1982),
enfd. 722 F.2d 1120 (3d Cir. 1983).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Brannan Sand and Gravel
Company, Denver, Colorado, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Barbara E. Greene, Esq., for the General Counsel.
S. Lorrie Ray, 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 the Board) alleges that Brannan Sand and Gravel
Company (Respondent or the Company) violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act)
by: (1) unilaterally changing the terms of its health insurance
plan applicable to employees represented by the International
Brotherhood of Teamsters, Local 13, AFL–CIO (the Union)1
283BRANNAN SAND & GRAVEL CO.
2 All dates are in the 1992 calendar year unless otherwise indi-
cated.
3 At the hearing, the General Counsel amended the complaint to
expand and clarify the agency allegations. In her brief, counsel for
the General Counsel moved to amend the complaint further. Re-
spondent opposes that motion. The General Counsel’s pending mo-
tion to amend the complaint is addressed below.
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.
on or about April 1, 1992;2 and (2) bypassing the Union and
dealing directly with its represented employees concerning its
health insurance plan, and other wages and working condi-
tions since on or about March 17.
The Union filed Case 27–CA–12223 on May 28; it filed
the second case on June 4. On July 9, the Regional Director
for NLRB Region 27, acting on behalf of the General Coun-
sel, issued a consolidated complaint and notice of hearing
(complaint).3 Respondent timely answered the complaint on
July 23 denying that it engaged in the unfair labor practices
alleged. Thereafter, the scheduled hearing was postponed in-
definitely pending consideration of another charge. On March
4, 1993, these cases were rescheduled for hearing.
I heard these cases on July 13 and 14, 1993, at Denver,
Colorado. Having now carefully considered the record, the
demeanor of the witnesses while testifying, and the parties’
posthearing briefs, I conclude that Respondent violated the
Act based on the following
FINDINGS OF FACT
I. BACKGROUND
Respondent, a corporation with an office and place of
business in Denver, Colorado, is engaged in the asphalt pav-
ing and sand and gravel business.4 Its operations are seasonal
lasting generally from about the beginning of April to about
mid-December. During this seasonal period, Respondent em-
ploys about 210 employees.
Among other benefits, Respondent’s employees can elect
coverage under its health, dental, and vision care program.
This program is a self-insured, contributory plan adminis-
tered by Consolidated Administrators, Inc. (CAI). Since its
inception, the program costs and benefits have been reviewed
and adjusted annually to control the Company’s health ben-
efit expenditures.
On November 15, 1990, the Union was certified as the
bargaining representative for Respondent’s drivers, oilers,
and tiremen, about 60 employees in all. Thereafter, eight bar-
gaining sessions were held throughout the 1991 calendar year
in an unsuccessful effort to conclude a collective-bargaining
agreement. At several of these sessions the parties’ nego-
tiators discussed the health benefits applicable to the unit em-
ployees and the Union’s proposal to supplant the existing
health benefits with a plan administered by the Teamsters
benefit trust. The company negotiators repeatedly and ada-
mantly rejected the Union’s health plan proposal.
As detailed below, 1992 bargaining sessions were held on
January 13 and April 16. Thereafter, there was a hiatus in
negotiations until the 1993 calendar year when additional
bargaining sessions were held. During this hiatus, Respond-
ent filed a representation petition claiming that it had objec-
tive considerations to establish a good-faith doubt of the
Union’s majority status. The Board dismissed that petition on
September 22 based on the outstanding complaint in these
cases. Brannan Sand & Gravel, 308 NLRB 922 (1992).
For some time prior to 1992, Respondent’s office, admin-
istrative and managerial employees held team meetings for
the purpose of discussing office problems and formulating
solutions. Until 1992, none of Respondent’s construction em-
ployees participated in the team meetings.
The central questions posed by this case arise from the
changes made in Respondent’s health plan in 1992, and the
claims made that Respondent bypassed the Union and dealt
directly with its employees in connection with the 1992
health plan changes and the implementation of the team
meeting program involving the unit employees.
II. RELEVANT FACTS
A. Matters Pertaining to the Pleadings
Appended to the General Counsel’s posthearing brief is a
motion to amend the complaint to allege that Respondent un-
lawfully bypassed the Union in January 1992 by surveying
unit employees concerning health insurance. The General
Counsel argues that the amendment is closely related to other
allegations of the complaint dealing with bypassing the
Union and that the matter was fully litigated at the hearing.
Respondent opposes the motion on the ground that the
subject matter of the proposed amendment is not closely re-
lated to other complaint allegations and was not fully liti-
gated. For these reasons, Respondent claims that the amend-
ment is barred by Section 10(b).
In view of the other bypassing allegations in the com-
plaint, I find this added matter concerning the January survey
to be closely related and, hence, not barred by Section 10(b).
Additionally, I find the matter was fully litigated at the hear-
ing. Indeed, Respondent’s simultaneously filed posthearing
brief, contains a separate section arguing that the survey at
issue ‘‘was not in derogation of the Act.’’ Accordingly, the
amendment is allowed.
Paragraph 7 of the complaint alleges that the Union has
been the 9(a) representative of the unit employees at all
times since its certification in November 1990. The essence
of this allegation is that the Union has been designated or
selected for collective-bargaining purposes by a majority of
the unit employees.
In its answer, Respondent admits paragraph 7 but alleged
that it has a good-faith doubt of the Union’s majority status.
No evidence was offered at the hearing in support of its
good-faith doubt claim. Accordingly, I find the Union was
the majority representative at all material times.
B. The 1992 Health Plan Changes
By a letter dated December 1, 1991, a CAI representative
provided Respondent with a compilation of the anticipated
health plan costs for the 1991 calendar year and projected
costs for the 1992 calendar year, including comparative costs
of selected alternative health plans. A month later the same
representative wrote to the Company outlining a variety of
proposals designed to minimize increased health plan costs
anticipated for 1992.
On January 13, the parties met for a previously scheduled
bargaining session. Near the end of the meeting, Kermit
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 At some subsequent time, this meeting was postponed for a
week.
6 Marvel said that he approved the changes in late March. Based
on other evidence, it is reasonable to presume that the late March
approval was pro forma.
7 Parker admits that he received notice of the changes but was un-
certain as to when the notice was received. Melissa Nankervis, an
administrative assistant at the Company, testified about faxing a
copy of the March 1 notice to employees to Parker on March 6. To
the extent that the General Counsel continues to assert doubt that
this notice was provided to the Union on or about March 6, that as-
sertion is rejected.
8 The implication in most of Parker’s testimony is that he did not
respond to the facsimile but, nonetheless, he did testify that he sent
a letter to the Company in response. Despite its critical significance,
no such letter was ever produced nor was testimony elicited con-
cerning its substance. Accordingly, I discount any claim that he re-
sponded to the notice he received on March 6 concerning the
planned changes in the health benefits program prior to the April 16
bargaining session.
Darkey, the Company’s principal negotiator, told Jack
Parker, the Union’s chief negotiator, that the Company was
studying changes in its health plan. Darkey told Parker that
several changes were being considered including increasing
the deductibles, copayments, and the amount of the employ-
ees’ contributions. Parker inquired about the cost of the plan
and Curt Marvel, Respondent’s vice president and general
manager who attended all the sessions, responded that it was
about one-half million dollars a year. The discussion then
ended and arrangements were made for another meeting on
April 9.5
Later that month, the CAI representative mailed a survey
to a representative sample of the Company’s employees—in-
cluding some unit employees—asking, essentially, if they
would be interested in a ‘‘managed care’’ health plan. An ac-
companying memorandum from Marvel explained the pur-
pose of the survey and asked employees to return the com-
pleted survey form to their supervisor or Chris Nast, one of
the Company’s managers. The Union was never told about
the survey.
About 60 employees, including 19 unit employees, re-
sponded to the survey. Based on the survey, company offi-
cials determined that a managed care plan was unpopular so
that alternative was dropped from consideration. Thereafter,
Nast and a CAI agent worked out the details of the adjust-
ments in the existing plan which Marvel eventually ap-
proved.6
In a March 1 memorandum, Marvel notified the Com-
pany’s health plan participants that, effective April 1, ‘‘there
will be changes to your [health] benefits.’’ Marvel went on
to explain a variety of adjustments to the existing health plan
benefits, and several changes in the required deductible pay-
ments, copayments, and employee contributions. He also an-
nounced meetings on March 17 and 19 to explain the plan,
and alluded to the fact that the ‘‘managed care’’ concept had
been dropped following the ‘‘mixed response to our survey.’’
A copy of Marvel’s March 1 memo was faxed to the Union
on March 6.7 The Union did not respond to Marvel’s March
1 memo until the April 16 bargaining session.8
The Company implemented the announced changes on
April 1 after holding the meetings with employees (including
the unit employees) on March 17 and 19 to explain the forth-
coming changes referred to in the March 1 memo.
At the previously scheduled bargaining session on April
16, Parker told Darkey that he had learned ‘‘from some of
the employees’’ that there had been changes made in the
health in surance plan and asked why the Company had not
negotiated with the Union concerning the changes. John Hen-
derson, a Mountain States Employers’ Council staff member
who took notes at all the bargaining sessions to that point,
testified that Darkey (who did not testify) told Parker, in ef-
fect, that the March 6 facsimile was intended to inform the
Union about the planned changes and that the Company
would have discussed the changes with the Union if Parker
had responded before April 1. According to Henderson,
Darkey added in a parenthetical manner that such a discus-
sion would have been ‘‘fruitless.’’ Henderson explained that
Darkey’s ‘‘fruitless’’ remark alluded to the fact that the par-
ties had disagreed throughout negotiations over establishing
separate benefits for unit employees.
Parker’s account is not appreciably different. He explained
that he anticipated the health plan changes would be dis-
cussed at the April 16 bargaining session. When he learned
at that session that the changes had already been imple-
mented, Parker questioned whether the Company was bar-
gaining in good faith. In response, Darkey told Parker that
‘‘he [Darkey] could have called a meeting to discuss it, but
. . . the answer would still be the same’’ because the Com-
pany was unwilling ‘‘to change the entire plan for a group
of 50 to 60 truck drivers so . . . they would have insisted
on making the changes.’’
Union Business Agent Chuck Connor attended the April
16 bargaining session and provided a similar account about
the exchange between the negotiators that day. He testified
that Parker asked Darkey if the health plan changes had been
implemented and that Darkey responded affirmatively. By
Connor’s account, Marvel then outlined the changes and,
after Marvel finished, Parker asked why the changes had not
been negotiated. Darkey, Connor said, replied, ‘‘[I]t really
didn’t make any difference because they were going to do
it anyway.’’
C. The New Teams
Early in 1992, three project managers, with Marvel’s ap-
proval, devised a plan to expand the team concept beyond
the office and administrative staff. Five new teams consisting
of 10 or 11 individuals, each chaired by a foreman or super-
visor, were established. At least two of the teams included
unit employees.
The managers overseeing the operation of the team pro-
gram prepared a two-page memorandum in March which set
forth the goals and strategies of the Company’s teamwork
concept. The announced goals for the new teams included:
(1) promoting better employee relations; (2) establishing an
employee feedback and suggestion mechanism; and (3) get-
ting employees involved in all aspects of the Company.
On March 30, Marvel faxed a 10-page packet of materials
to Parker concerning the team program including a cover
sheet reflecting that the topic for the first team meeting ‘‘was
salary increases.’’ In fact, the first meeting of the teams oc-
curred on March 26.
Kenneth Mefford, a former company driver, attended the
March 26 meeting of the team to which he was assigned.
When he arrived for the meeting, Mefford was provided with
a packet of written materials which included the team ap-
285BRANNAN SAND & GRAVEL CO.
pointments, the agenda for the first team meeting, and two
other documents concerning the Company’s wage committee
and its merit pay scale.
The agenda, distributed at the March 26 session, set forth
the team meeting ground rules. It states that the general pur-
pose of the hour-long team meetings was ‘‘to promote a feel-
ing of cooperation and to build a spirit of winning perform-
ance’’ by meeting ‘‘the first and third Thursday of each
month to discuss a specific topic and . . . come up with
ideas that might streamline or improve overall company per-
formance in that area.’’ Supervisors’ meetings were to be
held on the second and fourth Thursday of the month ‘‘to
discuss and implement solutions developed in the prior
[team] meetings.’’ Agenda topics not fully exhausted at one
meeting could be continued to the next meeting. Attendance
at team meetings, the agenda document states, was ‘‘vol-
untary, with no payment for your time.’’
The specific discussion topic planned for the first team
meetings was detailed as follows in the agenda document:
Problem—How should field (hourly) [e]mployees be
evaluated and rewarded with salary increases. This
topic was chosen as a direct result of comment made
on the recent employee surveys.
A. Should employees be evaluated based on perform-
ance?
B. If so, who should evaluate, when, based on what?
C. What should be the format be for evaluations?
D. How many evaluations per year and when?
E. Are there any other criteria which raise[s] should
be based on? If so, what are they?
Supervisor Bill Langen chaired the March 26 team meet-
ing attended by Mefford. Mefford testified that Langen only
briefly alluded to the performance evaluation system referred
to in the agenda but ‘‘[n]obody discussed it.’’ This cursory
reference gave Mefford the impression that ‘‘[t]hey basically
already had their minds made up on that.’’ The bulk of the
first meeting, according to Mefford, was spent on a discus-
sion about adding another person to each of the paving crews
and getting the asphalt out faster.
Mefford attended the next scheduled team meeting but he
had little recollection of the matters discussed. He then quit
attending the meetings until June when the policy about pay
for time in attendance at the meetings was changed. Mefford
recalled that at one of the later meetings he attended, he sug-
gested that the drivers’ safety program could be improved.
Langen, Mefford testified, agreed to discuss the implementa-
tion of regular driver safety meetings with the drivers’ super-
visor.
According to Marvel, interest in the team meeting program
‘‘fizzled out’’ by August so they were discontinued entirely.
III. FURTHER FINDINGS AND CONCLUSIONS
A. The 1992 Health Plan Changes
The General Counsel argues that the March 6 notification
to the Union concerning the health plan changes was not de-
signed to provide the Union with an opportunity for mean-
ingful bargaining but rather was notice to the Union of a fait
accompli. This conclusion, the General Counsel asserts, was
reinforced by Darkey’s comments to Parker at the April 16
session.
Respondent contends that the 1992 health plan changes
were minor and that it satisfied its bargaining obligation by
the March 6 notice to the Union. The Union’s failure to re-
quest bargaining over the course of the next 3 weeks prior
to the April 1 implementation date, the Respondent argues,
amounts to a waiver of the Union’s right to bargain about
the proposed health plan changes. In this respect, Respondent
asserts that the bargaining-to-impasse rule discussed below is
inapposite to ‘‘matters outside the purview of the ongoing
negotiations’’ such as minor or annual changes in its oper-
ations-like annual wage increases, changes in employee uni-
forms, and annual minor changes to the insurance plan. In
support of this proposition, Respondent relies on NLRB v.
Pinkston-Hollar Construction Services, 954 F.2d 306 (5th
Cir. 1992).
Section 8(a)(5) obliges an employer to ‘‘bargain collec-
tively with the representatives of his employees.’’ Section
8(d) defines that obligation to include ‘‘the mutual obligation
of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions of em-
ployment.’’
In general, if its employees are represented by a labor or-
ganization, an employer may not change any employment
term which falls within the statutory penumbra of ‘‘wages,
hours and other terms and conditions of employment’’ with-
out providing the employee representative with prior notice
of a proposed change and an opportunity to bargain con-
cerning it. NLRB v. Katz, 369 U.S. 736 (1961). If the parties
are not engaged in the process of negotiating a complete col-
lective-bargaining agreement, the unilateral implementation
of a proposed change may be lawful if the employer provides
the employee representative notice of the change under con-
sideration and the representative fails to make a timely re-
quest for bargaining. Associated Milk Producers, 300 NLRB
561 (1990).
On the other hand, where the parties are engaged in nego-
tiations for a collective-bargaining agreement involving bar-
gaining over numerous proposals, no need exists for the em-
ployee representative to request additional bargaining as a
waiver will be found in that setting only if the employee rep-
resentative manifests an expressed intent to consciously relin-
quish its right to bargain about the subject at issue. Inter-
mountain Rural Electric, 305 NLRB 736 (1991), enfd. 984
F.2d 1562 (10th Cir. 1993). Absent such a manifestation, 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.’’ Id.
Here I cannot agree with Respondent’s characterization
that the 1992 health plan changes were incidental to the on-
going negotiations. Both sides had previously presented pro-
posals on the subject along with numerous other proposals.
The Union was vigorously seeking to substitute it own health
plan for unit employees on the ground that its plan cost less.
Respondent resisted splitting off the unit employees from its
existing health plan because of the adverse cost effects on
the existing health plan for its unrepresented employees. The
Union countered this argument by offering to arrange cov-
erage under its plan for all Respondent’s employees but Re-
spondent declined to consider that alternative. Moreover, the
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Although unit employee Mefford testified that the planned dis-
cussion concerning the pay system did not take place at the meeting
he attended, he did acknowledge receipt of the agenda document
outlining the planned discussion. Whether that agenda was followed
in other team meetings is unknown.
1992 changes here were hardly minor as nearly every health
plan benefit was affected and employee contributions in-
creased substantially. Contrary to Respondent’s contention, I
find that issues pertaining to health coverage for unit em-
ployees as well as the cost of that coverage were among the
significant issues on the bargaining table at the time.
Notwithstanding, Respondent implemented its 1992 health
plan changes at a time when negotiations for a complete col-
lective-bargaining agreement were in progress and when no
impasse in those negotiations had occurred. Respondent does
not contend that the Union expressly waived its right to bar-
gain concerning these changes and the exchange at the April
16 meeting precludes any such finding. Instead, Respondent
contends, in effect, that a waiver should be inferred from the
Union’s failure to timely request negotiations or otherwise
respond to the March 6 notice prior to the April 1 implemen-
tation date established in that notice.
In my judgment, Respondent unlawfully implemented the
complex 1992 health plan changes based on a misapprehen-
sion that it was entitled to do so because the Union failed
to respond by the April 1 implementation deadline which
was set forth in the notice sent to the Union on March 6.
In the circumstances here, Respondent did not satisfy its bar-
gaining obligation merely by providing notice of the pro-
posed changes.
As noted above, the Union was under no obligation to re-
quest ‘‘additional’’ bargaining and the Respondent was not
privileged to implement the changes with respect to the unit
employees absent an impasse in negotiations or an express
waiver from the Union. For its part, the Union was entitled
to treat the March 6 notice from Respondent as another pro-
posal to be considered together with all pending proposals.
In these circumstances, the waiver defense implied from the
Union’s conduct, or lack thereof, is not available to Re-
spondent. Instead, the Union ‘‘had a right to play an active
role in determining whether such changes were desirable dur-
ing negotiations or whether they should have been bargained
for in exchange for other benefits.’’ M. A. Harrison Mfg.
Co., 253 NLRB 675 (1980).
Respondent’s reliance on the Pinkston-Hollar case and
other similar cases is misplaced. As the Fifth Circuit made
clear in Pinkston-Hollar, it applied a narrow exception to the
‘‘bargain-to-impasse’’ rule applicable to situations where the
employee representative engages in dilatory and evasive bar-
gaining tactics to the peculiar facts of that case. Here, the
only evidence of delay on the Union’s part is that it chose
to wait until the next regularly scheduled bargaining session
to address the health plan changes. Applying this exception
in these circumstances would be highly irrational and would
serve to eviscerate the usual rule entirely especially where,
as here, Respondent concedes that the changes in its self-
funded plan can be made when ever it chooses to do so.
Moreover, the Union cannot be held to have waived bar-
gaining over a change that is presented as a fait accompli.
Gulf State Mfg. v. NLRB, 704 F.2d 1390, 1397 (5th Cir.
1983). The objective evidence here supports the General
Counsel’s contention that the notice to the Union concerning
the 1992 health plan changes was a mere announcement of
a fait accompli. Thus, by the time the Union was apprised
of the contemplated changes, Respondent had already noti-
fied employees that the changes would be effective April 1
and it scheduled employee meetings to explain what changes
would take place. This evidence indicates an intent to make
the changes without bargaining with the Union. S & I
Transportation, 311 NLRB 1388 (1993). Only Respondent’s
self-serving assertions that it would have been willing to
meet and bargain with the Union had it responded to the
March 6 notice counter the evidence that Respondent was on
a predetermined course of unilateral action and even those
assertions are greatly diminished by Darkey’s statement at
the April 16 bargaining session.
Accordingly, as Respondent implemented the 1992 health
plan during the course of negotiations for a complete collec-
tive-bargaining agreement which had not reached an impasse
and without the Union’s express agreement or waiver, I find
Respondent violated Section 8(a)(1) and (5) as alleged.
B. Bypassing the Certified Representative
The General Counsel contends that Respondent also vio-
lated the Act when it bypassed the Union and dealt directly
with employees in order to survey employees about their
health care preferences in January, announced changes in the
health care plan in mid-March, and treated with bargainable
subjects at the team meetings.
Respondent contends that no unlawful ‘‘dealing with’’ em-
ployees occurred on any of these occasions. In this regard,
Respondent contends that the January survey was designed
merely to elicit information from employees, that the mid-
March meetings about the health care changes served only to
provide information to employees, and that no evidence
shows changes in wages, hours, or working conditions re-
sulted from the 1992 team meetings involving the unit em-
ployees. In addition, Respondent contends the team meeting
issue is moot because the meetings have ceased.
Viewed in isolation, some of these incidents appear not to
be serious. However, when viewed together and when con-
sideration is given to the limited period over which these
events occurred and the background of the negotiations for
an initial collective-bargaining agreement, I find that the di-
rect dealing complained of is of consequence.
As noted above, the survey was conducted at or near the
time Respondent announced at the January bargaining ses-
sion that it was considering changes in its health plan. No
disclosures were made at the time concerning Respondent’s
desire for input from the unit employees. Similarly, the mid-
March meetings to advise employees about the upcoming
changes in the health plan, although conducted after notice
was given to the Union, could reasonably lead unit employ-
ees present to conclude that Respondent intended to take
such action—as it ultimately did—without negotiating the
changes with their representative. Within another 2 weeks
thereafter the first of the team meetings was held with no
prior notice to the Union and with the announced agenda of
obtaining employee input concerning Respondent’s pay eval-
uation system, clearly a bargainable subject.9
I cannot agree with Respondent that at least some of this
conduct does not fit within the parameters of ‘‘dealing with’’
as articulated by the Board in E. I. du Pont & Co., 311
287BRANNAN SAND & GRAVEL CO.
10 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
recommended Order are denied.
11 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.’’
NLRB 893 (1993). The scheme established for the team
meetings specifically contemplated that the supervisors
would ‘‘discuss and implement the solution’’ developed in
the employee team meetings. This alone indicates that Re-
spondent contemplated a system beyond merely an informa-
tion gathering or providing exercise, or ‘‘brainstorming.’’
And even though the such a clear-cut intent may not have
been present when the January survey was initiated, it is ob-
vious that employee sentiment played a significant role in the
formulation of the 1992 health plan changes and that another
employee survey prompted the placement of Respondent’s
pay evaluation system on the agenda for the first team meet-
ing.
Taken together, I find that these events demonstrate a pat-
tern through this period which served to undermine the
Union’s representative status by dealing directly with em-
ployees concerning matters which were appropriate subjects
for bargaining. Concluding, as I have, that a pattern of con-
duct is evident, I reject Respondent’s assertion that the team
meeting issue is moot because the team meetings were dis-
continued for lack of interest. For these reasons, I find that
these activities by Respondent violated Section 8(a)(1) and
(5) of the Act as alleged.
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 and is the exclusive representative
under Section 9(a) for the following appropriate collective-
bargaining unit:
All asphalt drivers, field service drivers, oilers
(fuelmen), and tiremen, at the Respondent’s facility; ex-
cluding all office clerical employees, dispatchers, heavy
equipment operators, helpers, mechanics, welders, com-
bination mechanic-welders, mechanic helpers, asphalt
laborers, general laborers, flag persons, guards and su-
pervisors as defined in the Act.
3. By unilaterally implementing changes in its health care
plan on April 1, 1992, and by bypassing the Union and deal-
ing directly with unit employees between January and April
1992, Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that it engaged in certain unfair labor prac-
tices, Respondent will be ordered to cease and desist there-
from and to take certain affirmative action designed to effec-
tuate the policies of the Act.
As 1992 health plan changes applied to all employees, and
as Respondent was obviously at liberty to make changes ap-
plicable to unrepresented employees, ordering recission of
the changes would be inappropriate. Accordingly, in order to
dissipate the effects of the unfair labor practice found con-
cerning those changes, Respondent will be required to make
the unit employees whole for all losses resulting from the
changes in benefits and contributions on April 1, 1992, until
such time as the Union expressly agrees to those changes in
the health plan, or a collective-bargaining agreement or an
impasse is reached in negotiations between the parties as pro-
vided in Ogle Protection Service, 183 NLRB 682 (1970),
and New Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, Respondent will be required to post the attached
notice to employees in order to apprise them of their rights
and the outcome of this matter.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Brannan Sand and Gravel Company,
Denver, Colorado, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with International Brotherhood of
Teamsters, Local 13, AFL–CIO as the exclusive collective-
bargaining representative under Section 9(a) of the Act for
the following appropriate unit of employees:
All asphalt drivers, field service drivers, oilers
(fuelmen), and tiremen, at the Respondent’s facility; ex-
cluding all office clerical employees, dispatchers, heavy
equipment operators, helpers, mechanics, welders, com-
bination mechanic-welders, mechanic helpers, asphalt
laborers, general laborers, flag persons, guards and su-
pervisors as defined in the Act.
(b) Unilaterally changing its health plan benefits and em-
ployee contributions for health plan coverage insofar as such
changes are applicable to employees in the above unit.
(c) Bypassing International Brotherhood of Teamsters,
Local 13, AFL–CIO as the representative of employees in
the above unit and dealing directly with such employees
about matters concerning their wages, hours, and other terms
and conditions of employment.
(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 or the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse employees employed in the above unit in
the manner specified in the remedy section of the administra-
tive law judge’s decision in Cases 27–CA–12223 and 27–
CA–12223–2 for all losses they incurred by reason of Re-
spondent’s changes in its health plan benefits and employee
contributions for health plan coverage on April 1, 1992.
(b) Post at its Denver, Colorado facility copies of the at-
tached notice marked ‘‘Appendix.’’11 Copies of the notice,
on forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceipt 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, de-
faced, or covered by any other material.
(c) 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 with International Brother-
hood of Teamsters, Local 13, AFL–CIO as the exclusive col-
lective-bargaining representative under Section 9(a) of the
Act for the following appropriate unit of employees:
All asphalt drivers, field service drivers, oilers
(fuelmen), and tiremen, at the Respondent’s facility; ex-
cluding all office clerical employees, dispatchers, heavy
equipment operators, helpers, mechanics, welders, com-
bination mechanic-welders, mechanic helpers, asphalt
laborers, general laborers, flag persons, guards and su-
pervisors as defined in the Act.
WE WILL NOT unilaterally change our health plan benefits
and employee contributions for health plan coverage insofar
as such changes are applicable to employees in the above
unit.
WE WILL NOT bypass International Brotherhood of Team-
sters, Local 13, AFL–CIO as the representative of employees
in the above unit and deal directly with such employees
about matters concerning their wages, hours, and other terms
and conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 or the Act.
WE WILL reimburse employees employed in the above unit
for the losses they incurred as a result of the April 1, 1992
changes in health benefits and employee contributions for
health plan changes with interest.
BRANNAN SAND AND GRAVEL COMPANY