James Heavy Equipment Specialists

National Labor Relations Board - Board Decisions

Mar 19, 1999

327 N.L.R.B. 910 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
James Heavy Equipment Specialists, Inc. and Inter-
national Union of Operating Engineers, Local
No. 9. Cases 27–CA–15017 and 27–CA–15117
March 19, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On July 23, 1997, Administrative Law Judge Albert A.
Metz issued the attached decision. The Respondent filed
exceptions. 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We note that the judge, in finding that the Respondent violated Sec.
8(a)(1) of the Act by instigating employee Dennis Bensavage’s anti-
union petition and by awarding him bonus pay and offering to purchase
equipment from him as considerations for his circulating the petition,
relied in part on hearsay testimony. However, we also note that the
Respondent did not object to this testimony at the hearing, and that no
party excepts, on hearsay grounds, to the judge’s reliance on this testi-
mony.
Member Hurtgen notes that, as to the violations found by the judge
involving the activities of Caroline Hake and Charles Zeitz, the Re-
spondent’s exceptions raise only the issue of agency. Member Hurtgen
agrees with the judge that Hake and Zeitz acted as the Respondent’s
agents, and he would therefore adopt pro forma the judge’s findings
that their conduct was unlawful.
Member Hurtgen also notes that the Respondent excepts to the re-
quirement in the judge’s remedy that it remit all fringe benefit amounts
which have become due since October 31, 1997, and any additional
amounts. The Respondent argues that since about January 1, 1997, it
has paid premiums for coverage of all of its employees under benefit
plans sponsored by the Respondent, and that its employees have not
suffered any loss of benefits. Member Hurtgen would allow the Re-
spondent to make this “windfall” argument at the compliance stage of
this proceeding with respect to the Union’s health plan but not with
respect to the Union’s pension plan. As to the health plan, Member
Hurtgen would leave to compliance the details of the Respondent’s
contribution requirement, if any. But he would hold that, if the Re-
spondent has provided comparable health benefits, it would at most be
obligated to make payments to the Union’s plan reflecting that plan’s
fixed expenses shown to be necessary for its administration. There is
no showing that, during the period of the violation, the health plan was
required to cover the employees involved herein, Indeed, it is undis-
puted that these employees were covered by a plan of Respondent. If
Respondent can show, in compliance, that its plan was comparable to
the Union’s plan, there would have been no need to cover them under
the Union’s plan. In that event, once the fixed costs are reimbursed, it
would appear that the health plan fund would be as viable as it was
before the violation, and the fund will be able “to provide for future
needs” of the employees. See Stone Boat Yard v. NLRB, 715 F.2d 441,
446 (9th Cir. 1983).
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders the Respondent, James Heavy
Equipment Specialists, Inc., Denver, Colorado, its offi-
cers, agents, successors, and assigns, shall take the ac-
tions set forth in the Order as modified.
1. Substitute the following for paragraph 2(j).
“(j) Pay to the appropriate contract benefit funds the
contributions required to the extent that such contribu-
tions have not been made and continue such payments
until Respondent negotiates in good faith with the Union
to an agreement, or to good-faith impasse, or until the
Union refuses to bargain.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights:

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT withdraw recognition from, or refuse
to bargain with, the International Union of Operating
2 Respondent withdrew recognition from the Union on December 16,
1996. There are no exceptions to the conclusion that this conduct vio-
lated Sec. 8(a)(5). However, the Respondent excepts to the judge's
imposing a bargaining order. For the reasons set forth in Caterair
International, 322 NLRB 64 (1996), we do not find merit in this excep-
tion. We note that the employee petition of February 7 was engendered
by the Respondent, and there is no evidence that the decline in union
support among employees resulted from anything other than the
Repondent’s unlawful conduct as found by the judge. Thus, that
tainted expression of employee disaffection cannot be a basis for a
denial of a bargaining order.
In an erratum dated August 1, 1997, the judge added a par. 2(j) to his
Order, relating to payments by the Respondent to contract benefit
funds. In this paragraph, he included a proviso pertaining to whether
employees had otherwise been made whole for their expenses. We find
such a proviso inappropriate in this remedial context, and we have
therefore deleted it. See Stone Board Yard v. NLRB, supra (Board
properly required payment of past due contributions to union benefit
funds even if the employer’s substitute plans met the present needs of
the employees; “the diversion of contributions from the union funds
undercut[s] the ability of those funds to provide for future needs”).
327 NLRB No. 162
JAMES HEAVY EQUIPMENT SPECIALISTS 911
Engineers, Local No. 9 as the exclusive bargaining repre-
sentative of our employees in the following appropriate
bargaining unit:

All full-time and regular part-time maintenance, service
and parts employees employed by us at our 2150A
South Valencia Street, Denver, Colorado, location, ex-
cluding all other employees, professional employees,
guards and supervisors as defined in the Act.

WE WILL NOT unilaterally change your wages,
hour,s or working conditions and WE WILL NOT by-
pass the Union and deal directly with you on such mat-
ters.
WE WILL NOT stop paying your employee benefit
funds as required by the expired collective-bargaining
contract with the Union.
WE WILL NOT constructively discharge Michael
Cardenas because he supports the Union.
WE WILL NOT coercively question you about your
union sympathies or your opinions of our proposed bene-
fit plans.
WE WILL NOT threaten you that the Respondent will
cease business because the Union represents you.
WE WILL NOT threaten you that we will no longer
recognize the Union as your collective bargaining repre-
sentative and that you will receive only the benefits that
we determine.
WE WILL NOT coercively accost union representa-
tives.
WE WILL NOT sponsor, initiate, or pay for efforts to
get employees to renounce the Union as their collective-
bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s
Order, notify the Union in writing that: (1) we now re-
scind our December 16, 1996, withdrawal of recognition
from the Union, (2) we now recognize the Union as the
exclusive collective-bargaining representative of our unit
employees, and (3) at the Union’s request, we will re-
scind all or any part of the unilateral changes we made to
our unit employees’ terms and conditions of employ-
ment.
WE WILL, on request, bargain with International Un-
ion of Operating Engineers, Local No. 9 as the exclusive
representative of the employees in the appropriate unit
concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement.
WE WILL within 14 days from the date of the Board’s
Order, offer Michael Cardenas full reinstatement to his
former job or, if his job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Michael Cardenas whole for any loss
of earnings and other benefits resulting from his con-
structive discharge, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful constructive discharge of Michael
Cardenas, and WE WILL, within 3 days thereafter, no-
tify him in writing that this has been done and that his
constructive discharge will not be used against him in
any way.
WE WILL, at the Union’s request, rescind all or any
part of the changes we unilaterally implemented to the
employees terms and conditions of employment, and WE
WILL make our unit employees whole, with interest, for
any losses they may have incurred as the result of our
unilateral implementation of terms and conditions of
employment.
WE WILL pay to the appropriate contract benefit funds
the contributions required to the extent that such contri-
butions have not been made and continue such payments
until we negotiates in good faith with the Union to an
agreement, or to good-faith impasse, or until the Union
refuses to bargain.
JAMES HEAVY EQUIPMENT SPECIALISTS, INC.

A. E. Ruibal, Esq. and Cynthia Blasingame, Esq., for the Gen-
eral Counsel.
Timothy J. Parsons, Esq., for the Respondent.
J. William McCahill, Esq., for the Charging Party.
DECISION
ALBERT A. METZ, Administrative Law Judge. This case
was heard at Denver, Colorado, on May 5–6, 1997.1 The Inter-
national Union of Operating Engineers, Local No. 9 (the Un-
ion) has charged that James Heavy Equipment Specialists, Inc.
(Respondent) violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act (the Act).
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. BACKGROUND
The Respondent operates a construction equipment and vehi-
cle repair service in Denver, Colorado. The Respondent and the
Union have a collective-bargaining relationship dating from
1990. Their most recent collective-bargaining agreement was
effective from November 1, 1993, to October 31, 1996.2 That

1 All dates refer to the time period September 1996 through February
1997 unless otherwise stated.
2 The unit covered by the contract is:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
contract provided for Respondent’s payments to various benefit
funds including medical and pension plans.
III. INITIAL BARGAINING
Starting in October 1996 the Respondent and the Union had
four meetings to discuss a new collective-bargaining contract.
Fred M. James, Respondent’s president, and Jerry E. Dout, the
Union’s business manager, were the sole negotiators. At the
first meeting held October 21 James said he needed to be com-
petitive and wanted a change from the existing contractual
benefit funds. James said he had been investigating a Kaiser
health fund and a 401(k) retirement fund administered by Prin-
cipal Financial Group. The only information James gave to
Dout about the plans was a spreadsheet showing a comparative
cost analysis that had been prepared by a benefit consultant.
Dout asked for a detailed description of the plans but none was
ever supplied to the Union.
Employee James Heylmann testified that in mid-October he
received a copy of the benefit comparative cost spreadsheet in
his pay envelope. The Government alleges that this act by the
Respondent was unlawful direct dealing with employees. Spe-
cifically it is alleged that the Respondent “was proposing dif-
ferent employee benefit plans prior to proposing those plans to
the Union.” It has not been shown that Heylmann was given the
spreadsheet prior to its presentation to the Union. I find that the
Government has failed to prove by a preponderance of the evi-
dence that Respondent violated Section 8(a)(1) and (5) of the
Act by giving, without comment, the same document to Heyl-
mann that it had provided the Union.
A second bargaining meeting was held on October 30. Again
a central topic of discussion concerned the Respondent’s pro-
posed benefit plans. Dout noted that the one-page spreadsheet
was inadequate to use as a comparison with the existing plans.
Dout also wanted to know what would happen to the $1.60-per-
hour contribution currently being paid to the employees’ plans
that would be saved under the Respondent’s proposal. James
stated he had recently lost $43,000 in the business, he had to be
competitive and he thought the employees should share his
losses. Dout offered to create a proposal that would provide the
Respondent with some relief as to the rates paid “new-start”
mechanics.

IV. RESPONDENT DISCUSS NEW BENEFIT PLANS WITH
EMPLOYEES

On October 31 the Respondent posted a notice at its facility
telling employees that meetings would be held on November 1
and 4. The meetings were to be conducted by a benefits con-
sultant and would discuss the Kaiser medical plan and the
401(k) pension plan. The Union was not notified of these meet-
ings. At both meetings James and plan representatives dis-
cussed the advantages of these plans. James was asked at one of
the meetings when the plans would go into effect. He told the
employees they would be implemented on January 1, 1997.
James also stated that if he was to stay with the Union for an-
other year he would probably be out of business.
The Respondent’s attempt to sell its benefit proposals to the
employees was direct dealing. The employees were told the
benefit plans would go into effect on January 1. The Union was

All full-time and regular part-time maintenance, service and parts em-
ployees employed by the Respondent at its 2150A South Valencia
Street, Denver, Colorado, location, excluding all other employees,
professional employees, guards and supervisors as defined in the Act.
never told the Respondent was meeting with the employees. I
find that the Respondent did deal directly with its employees
when it announced the meetings, met and gave employees de-
tailed information about such plans without first discussing the
matter with the Union. Additionally, James told the employees
the plans would go into effect on January 1. I find that such
conduct violates Section 8(a)(1) and (5) of the Act. I further
find that James’ threat that he would probably be out of busi-
ness in a year if he continued to deal with the Union was a vio-
lation of Section 8(a)(1) of the Act.
V. JAMES’ DISCUSSIONS WITH HEYLMANN
Following the early November meetings mechanic James
Heylmann voiced his opposition to fellow employees about the
Respondent’s benefit plans. On November 13 James sought out
Heylmann and angrily told him that he was not going to profit
from having the new benefit plans. James complained that the
Respondent had lost $40,000 in the previous quarter and he
would not be in business in a year if he did not start making
some money. Heylmann asked James what was going to hap-
pen to the $1.60 that was presently being contributed towards
the employees’ benefit plans. James had no answer for Heyl-
mann’s question. James said he was a strong union man and he
was not trying to get rid of the Union. I find that James’ angry
threat that the Respondent would be out of business was unlaw-
ful and made in an effort to coerce employees into accepting his
benefit plans proposal. I find that the threat is a violation of
Section 8(a)(1) of the Act.
VI. FINAL NEGOTIATIONS
A third negotiation session was held on November 15. At
this meeting James protested that he was paying too much for
benefits under the existing contractual benefit plans. He was
concerned that he was not competitive with other area union
companies. Dout offered a 3-year contract that included a
freeze in wages for the first year, and many other concessions.
James ultimately agreed to the proposal and Dout said he would
prepare the contract with the changes and fax a copy to James
for his approval. Dout then returned to his office, drafted the
contract, and faxed it to James.
On November 18 Dout received a fax from James stating
that he wanted to hold off any discussions with the employees
of the contract draft until James returned from out of town.
James said, “On reviewing our discussion and tentative agree-
ment I wish a change in some areas of which we will discuss on
my return.” In a reply letter dated November 22, Dout said he
was prepared to resume discussions with James on his desired
changes at his earliest convenience.
In late November James conducted another employee meet-
ing to discuss the Kaiser medical and 401(k) retirement benefit
plans. The advantages of the plans were emphasized to the
employees. Again the Union was not informed of these discus-
sions with the employees or given details of the plans. I find
that this meeting was direct dealing with employees in violation
of Section 8(a)(1) and (5) of the Act.
On December 6 Dout and James met for their final negotia-
tion meeting. James stated that he had assessed their tentative
agreement and the Respondent’s financial condition. He told
Dout that he could not acquiesce in their tentative agreement.
James said he was not sure that he was going to be in business
within a year and thus he was proposing a 1-year extension of
the existing contract. Dout said he was not sure the employees
would accept such a proposal but agreed to present the matter
JAMES HEAVY EQUIPMENT SPECIALISTS 913
to them. On December 9 Dout sent James a letter confirming
that the Union would present the Respondent’s 1-year exten-
sion proposal to the employees for a vote on December 13.
VII. THE EMPLOYEES’ VOTE ON
RESPONDENT’S CONTRACT PROPOSAL
On Friday evening, December 13, Dout met with the unit
employees at the Respondent’s shop and told them of the con-
tract proposal. The employees voted against accepting the 1-
year extension. Dout concluded the meeting by telling the em-
ployees that he would contact James and resume bargaining.
VIII. RESPONDENT WITHDRAWS RECOGNITION FROM
THE UNION
On Monday morning, December 16, Dout called the Re-
spondent’s office and asked to speak to James. He was not able
to talk to James but learned from the office manager and James
son, Jeff, that James had held an employee meeting that morn-
ing. In the meeting James had told the employees that he was
implementing the benefit plans he had been discussing with
them. Dout finally was able to talk to James that morning and
explained to him the employees had rejected his 1-year exten-
sion proposal. Dout said he wanted to meet again and bargain
further. James told Dout, “I am open shop . . . and this is my
damned business; I can run it the way I want.” Dout said that
James should seek legal advice and that what he was instituting
as a benefit package had not been agreed to by the Union.
James retorted, “It’s my god-damned business; I’ll run her as I
see fit; I am open shop; I am non-union.”
The Respondent relies on the employees’ vote against the
contract extension as a referendum rejecting further union rep-
resentation and justifying its withdrawal of recognition of the
Union. James withdrawal of recognition can at best be de-
scribed as wishful thinking. Dout’s December 9 letter to James
made clear that the only issue the employees would be voting
on was Respondent’s offer to extend the contract for 1 year.
The employees voted only on this single question. After the
vote Dout told the employees he would immediately contact
James to continue bargaining. In sum, nothing that was said or
done in connection with the vote suggested that the employees
no longer desired to be represented by the Union. James seized
on the vote as an excuse to rid himself of the Union. I find on
December 16 the Respondent did not have a reasonably based
doubt that the Union no longer represented a majority of the
unit employees. I further find that the Respondent violated
Section 8(a)(1) and (5) of the Act when it withdrew recognition
from the Union, refused to meet with the Union and told the
employees it was implementing its own benefit plans. L & L
Wine & Liquor Corp., 323 NLRB 848 (1997); T.L.C. St. Pe-
tersburg, 307 NLRB 605 (1992).
IX. THE UNION’S DECEMBER 16 MEETING WITH
EMPLOYEES
Dout conferred with the Union’s legal counsel, J. William
McCahill. They decided that a fax would be sent to James in an
attempt to continue bargaining. Dout’s fax to James stated in
part, “I am requesting a meeting to continue discussions for a
replacement collective bargaining agreement. I believe that we
can resolve the issues which caused the company proposal to be
rejected.” Dout sent the fax and then called James. James again
stated he was now a nonunion, open shop, and he was not inter-
ested in bargaining with Dout. Dout asked James to permit him
a meeting with the employees at the shop to inform them of
what had taken place. James agreed.
At noon on December 16 Dout, McCahill, and Union Busi-
ness Agent Jerry Smart went to the Respondent’s offices and
met with the unit employees. James was also present and told
the employees that the Union no longer represented them.
James at one point noticed Union Attorney McCahill. He ag-
gressively approached McCahill and stood closely to him.
James then yelled in McCahill’s face, “You’re a fucking ass-
hole attorney.” McCahill, who is much smaller physically than
James retreated. James said, “Do I scare you?” McCahill said
he was just doing his job. At this point Respondent’s corporate
attorney, Charles Zeitz, restrained James and moved him away
from McCahill. Unit employees witnessed James’ actions to-
wards McCahill. Dout addressed the employees telling them
that the Respondent was claiming to be a nonunion operation
and had rejected the Union’s request to continue bargaining.
Dout said the Union would be filing unfair labor practice
charges against the Respondent. I find that James’ coercive
action toward McCahill in the presence of unit employees was
a violation of Section 8(a)(1) of the Act. Horton Automatics,
289 NLRB 405, 410–411 (1988). I further find that James’
remark that the Union no longer represented the employees was
an unlawful threat in violation of Section 8(a)(1) of the Act.
X. QUESTIONING OF EMPLOYEE CARDENAS
Later in the day of December 16, employee, Michael Carde-
nas, was approached by Respondent’s office manager, Caroline
Hake, and asked if he intended to participate in the new Kaiser
medical plan. Cardenas said that he would not sign up for the
Kaiser plan. The Government alleges that Caroline Hake was
acting as the Respondent’s agent when she asked Cardenas if
he was agreeing to accept the new benefits and that this is an
unlawful interrogation. Hake is the Respondent’s office
manager and part of her job was to coordinate the Respondent’s
participation in the various benefit plans. Hake testified the
Respondent was trying to get everyone signed up in the new
benefit plans by January 1, 1997. I find that Hake was acting as
the Respondent’s agent when she questioned Cardenas as to his
participation in the unlawfully implemented benefit plans. Un-
der all the circumstances, her interrogation of Cardenas was a
coercive effort to learn if he would support the Respondent’s
unlawful implementation of the new benefit plans. I find that
such action by Respondent’s agent was a violation of Section
8(a)(1) of the Act. Medical Center v. NLRB, 723 F.2d 1468,
1475 (10th Cir. 1983).
Shortly after Cardenas spoke to Hake he was approached by
James and questioned why he did not want to sign up for the
401(k) and Kaiser plans. Cardenas told James that he thought
the Union’s plan was better. I find James’ interrogation of
Cardenas as to why he did not want to join the Respondent’s
unlawfully implemented benefit plans was coercive and a viola-
tion of Section 8(a)(1) of the Act. Medical Center v. NLRB,
supra.
XI. JAMES’ DECEMBER 17 EMPLOYEE MEETING
On December 17 James held an employee meeting and again
told the workers the new benefit plans would be going into
effect on January 1. He also said that if any of the employees
wanted to quit he would not hold it against them. On the same
date James distributed a memo to the employees regarding the
Respondent’s position on the Union and employee benefits.
The memo reads in pertinent part:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914

The results of the election regarding the union is [sic]
complete. The union is no longer associated with James
Heavy Equipment Specialists, Inc. The company looks
forward to a healthy and prosperous relationship with you,
its employees.
Our discussions on previous occasions indicated you
would have new health and pension benefits. You do. As
of January 1, 1997, you will have health benefits through
Kaiser Permanete and have received a brochure describing
the benefits. We are expecting soon and will distribute a
brochure from the Principal Financial Group, the 401 pen-
sion plan trustee. These benefits will also begin January 1,
1997. At the present time wages will remain at the pre-
vote level. [G.C. Exh. 12.]3

When parties are engaged in negotiations for a collective-
bargaining agreement, an employer’s obligation to refrain from
unilateral changes extends beyond the mere duty to provide
notice and an opportunity to bargain about a particular subject
matter; rather it encompasses a duty to refrain from implemen-
tation at all, absent overall impasse on bargaining for the
agreement as a whole. NLRB v. Katz, 369 U.S. 736 (1962);
Bottom Line Enterprises, 302 NLRB 373 (1991). It is settled
law that an employer violates its duty to bargain when it insti-
tutes changes in employment conditions without first consulting
with the employees’ collective-bargaining representative.
McDaniel Ford, Inc., 322 NLRB (1997). Here the Respondent
implemented its own benefit programs without notice to, or
good-faith bargaining with, the Union. I have already found the
Respondent unlawfully withdrew recognition from the Union.
The Respondent asserts as an alternative defense that be-
cause negotiations were at an impasse it was free to implement
changes. Respondent’s impasse defense is frivolous. Dout
sought to continue bargaining, even in the face of the Respon-
dent’s unlawful actions of direct dealing with employees and
repudiating the Union’s representative status. These unfair
labor practices were unremedied at the time the Respondent
asserts the impasse occurred. Additionally, even assuming there
was an impasse, the Respondent ignored its legal significance.
It is axiomatic that if an impasse occurs after good-faith bar-
gaining the employer is permitted to implement its last offer.
Taft Broadcasting Co., 163 NLRB 475 (1967). The Respondent
did no such thing in this case but rather put into effect terms
and conditions of employment that were not in its last offer.
That offer was for a 1-year extension of the existing contract
and did not mention changing benefit plans. What the Respon-
dent unilaterally implemented had nothing to do with its last
offer. The Respondent’s impasse defense is without merit. I
find that the Respondent violated Section 8(a)(1) and (5) of the
Act when it unilaterally implemented its own benefit programs.
Gondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 886 (D.C.
Cir. 1997); T.L.C. St. Petersburg, 307 NLRB 605 (1992). I
further find that on December 17 the Respondent made unlaw-
ful threats to unit employees that the Union no longer repre-
sented them and they would be receiving unilaterally imposed
benefits. I find that this conduct was a violation of Section
8(a)(1) of the Act.

3 On January 1, 1997, the Respondent unilaterally implemented its
benefit plans as announced.
XII. ZEITZ’ QUESTIONING OF CARDENAS
On December 17 Respondent’s attorney, Zeitz, asked
Cardenas about his opinion of the Kaiser and 401(k) plans.
Cardenas told him that he felt the union benefit plans were best
for himself and he had too much to lose by not being covered
by the union plans. The Government alleges that Zeitz is Re-
spondent’s agent and that his asking Cardenas his opinion of
the Respondent’s new benefit plans is an act of unlawful inter-
rogation. Zeitz was equivocal when he testified as to whether
James had asked him to interrogate employees about the sub-
ject. He testified: “I don’t know—I can’t really answer that. I
know that both of us—I had the concern and he had the con-
cern, and we talked, and if he didn’t instruct me, he didn’t tell
me not to.” I find that Zeitz was the Respondent’s agent when
he questioned Cardenas about his intentions towards the Re-
spondent’s unlawfully implemented benefit plans. Under all the
circumstances I find that Zeitz’ questioning of Cardenas was
unlawful interrogation and direct dealing in violation of Section
8(a)(1) and (5) of the Act.
XIII. CONTRACT FUND CONTRIBUTIONS
Starting in December the Respondent ceased paying contri-
butions to the union benefit funds.4 The Respondent returned a
delinquency notice from the trust funds with a note that, “As of
10/96 we are no longer under union contract.” (G.C. Exh. 14.) I
find that the Respondent was not privileged to stop paying the
contractual benefit funds. An employer is required to continue
benefit payments under an expired contract until such time as a
new agreement is reached, a good-faith impasse in bargaining
has occurred or the union waives its right to bargain. Stone
Boat Yard, 264 NLRB 981–982 (1983). None of these events
occurred in this case. I find that the Respondent’s cessation of
contractual benefit payments was a violation of Section 8(a)(1)
and (5) of the Act.
XIV. RESIGNATION OF MICHAEL CARDENAS
On December 20 Michael Cardenas gave the Respondent 2
weeks’ notice that he was quitting his employment. Cardenas
then terminated his employment as planned. He testified that
his quitting was motivated by the Respondent’s rejection of the
Union and the implementation of the new benefit funds which
were detrimental to his union pension. Respondent unsuccess-
fully attempted to persuade Cardenas to stay employed with the
Respondent. Cardenas told Supervisor Fred D. James (son of
the Respondent’s president, Fred M. James) that he was resign-
ing. Fred D. asked Cardenas if his resignation was because of
the Union and Cardenas said it was. The Government alleges
that Fred D’s question was an unlawful interrogation. Under all
the circumstances, I find that such a question was not threaten-
ing or coercive. I find that the Respondent did not violate Sec-
tion 8(a)(1) of the Act by such action.
The Government alleges that when Cardenas quit his em-
ployment because of the Respondent’s unlawful actions con-
cerning collective bargaining, he was constructively dis-
charged. The Respondent argues that Cardenas’ termination
was simply his free will decision to quit employment.
4 These funds include (1) Operating Engineers Health and Welfare
Trust Fund of Colorado; (2) Central Pension Fund of the International
Union of Operating Engineers and Participating Employers; (3) Colo-
rado Journeyman Apprentice Training for Operating Engineers; and (4)
Colorado Operating Engineers Vacation Fund.
JAMES HEAVY EQUIPMENT SPECIALISTS 915
In Goodless Electric Co., 321 NLRB 64, 67–68 (1996), the
Board reiterated the standard for constructive discharges which
arise in the context of an employer’s unlawful actions concern-
ing collective bargaining:

Employees who quit work as a consequence of an employer’s
unlawful withdrawal of recognition from their collective-
bargaining representative and unilateral implementation of
changes in their terms and conditions of employment have
been constructively discharged in violation of Section 8(a)(3)
and (1). White-Evans Co., 285 NLRB 80, 81 (1987); Superior
Sprinkler, Inc., 227 NLRB 204 (1976). The theory of this vio-
lation is that employees have the statutory right to union rep-
resentation as well as the contractual benefits negotiated by
their representative. They may not be forced to make the
Hobson’s choice of leaving their jobs or forfeiting their statu-
tory rights in order to remain employed under the working
conditions unlawfully set by their employer. Noel Corp., 315
NLRB 905, 909 (1994); RCR Sportswear, Inc., 312 NLRB
513 (1993).

Cardenas quit his employment as a result of the Respon-
dent’s unlawful actions and particularly because of the adverse
effect they had on his union pension. I find that Cardenas was
constructively discharged and that the Respondent thus violated
Section 8(a)(1) and (3) of the Act. NLRB v. Tricor Products,
Inc., 636 F.2d 266, 271 (10th Cir. 1970).
XV. BONUS PROGAM
On December 27 James held another employee meeting
where he discussed the Respondent’s plans for the future. He
told the employees that he was instituting a bonus plan but did
not give details of how the plan would be applied. Subsequently
certain employees were paid bonuses. I find that the Respon-
dent’s announcement of the bonus program was direct dealing
with the employees in violation of Section 8(a)(1) and (5) of the
Act.
XVI. ANTIUNION STATEMENT FORMS
On about February 12 the Respondent placed blank forms in
the Respondent’s lunch area. These documents were statements
that were to be filled in by employees and expressed their with-
drawal of support for the Union. In sum, the forms state that the
employee had discussed his dissatisfaction with the Union with
James, that the vote rejecting the 1-year contract extension was
intended to terminate the Union’s representation rights, and
concluding that the signer no longer wanted the Union to repre-
sent them. The statements had been prepared using language
drafted by the Respondent’s lawyers. There was no showing
that the statements were prepared in response to specific em-
ployee requests.
In Eastern States Optical Co., 275 NLRB 371, 372 (1985)
the Board set forth the following standard concerning an em-
ployer’s involvement with decertification petitions:

[I]t is unlawful for an employer to initiate a decertification pe-
tition, solicit signatures for the petition, or lend more than
minimal support and approval to the securing of signatures
and the filing of the petition. In addition, while an employer
does not violate the Act by rendering what has been termed
“ministerial aid,” its actions must occur in a situational con-
text free of coercive conduct. “In short, the essential inquiry is
whether the preparation, circulation, and signing of the peti-
tion constituted the free and uncoerced act of the employees
concerned.”

Against the background of the Respondent’s unfair labor
practices it is apparent that the antiunion statements were of-
fered to the employees in order to buttress the Respondent’s
efforts to rid itself of the Union. By gratuitously preparing the
statements and making them available to its employees the
Respondent was unlawfully attempting to further its campaign
to undermine the Union’s representative status. I find that such
action was a violation of Section 8(a)(1) of the Act.
XVII. CIRCULATION OF ANTIUNION PETITION
On February 7, 1997, employee Dennis Bensavage circulated
an antiunion petition among the unit employees which stated
the signers no longer wanted to be represented by the Union.
The Government alleges that Bensavage’s efforts were a quid
pro quo for the Respondent’s purchase of some service equip-
ment that he was attempting to sell the Company. The Govern-
ment also argues that Bensavage was paid a bonus for his anti-
union efforts. The Respondent denies it had anything to do with
Bensavage’s petition.
Bensavage had worked in Pennsylvania before his employ-
ment with the Respondent and he owned a large amount of
service equipment that was compatible with the Respondent’s
operations. That equipment was stored in Pennsylvania. Ben-
savage offered to sell the equipment to James shortly after he
started employment with the Respondent in July 1996. James
expressed an interest in the machinery but the sale has not yet
taken place. Bensavage confirmed that he had been told by
James subsequent to the Respondent renouncing the Union that
he would be receiving a bonus for certain work in the future.
He also had recently received a promotion to a foreman posi-
tion.
On February 7 Bensavage circulated the antiunion petition
among the employees and solicited their signatures. He later
sent the petition to the NLRB. Employee James Heylmann
testified that on February 12 he had a conversation with Ben-
savage about the petition. Bensavage said James had wanted to
buy his machine shop equipment but said that if “the deal didn't
go through with the union, that he wouldn't be able to buy that
machine shop equipment.” Heylmann recalled that he also
talked later that day to Bensavage. They agreed that Bensavage
was caught between the NLRB and James. Heylmann told Ben-
savage that he should tell the truth to the NLRB. Heylmann
recalled that Bensavage told him that: “[I]f anybody important
found out about this, what was happening, that Fred would fire
him, and at that time, Dennis needed to sell his machine shop
equipment . . . . He said that . . . Fred had told him if he could
make this deal work, that he'd get a bonus.” Bensavage could
not recall any such conversations with Heylmann. James denied
that he had anything to do with Bensavage’s antiunion petition.
Considering the demeanor of the witnesses I credit Heyl-
mann’s version of events. I find that the Respondent instigated
Bensavage’s antiunion petition and that he was acting as the
Respondent’s agent in circulating that petition. Respondent’s
sponsorship of the petition is a violation of Section 8(a)(1) of
the Act. Eastern States Optical Co., 275 NLRB 371, 372
(1985). I further find that the Respondent’s awarding of bonus
pay to Bensavage and its offer to purchase his equipment were
considerations for circulating the antiunion petition and were
unlawful coercion in violation of Section 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
CONCLUSIONS OF LAW
1. The Respondent, James Heavy Equipment Specialists,
Inc., is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, International Union of Operating En-
gineers, Local No. 9, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union is the Section 9(a) representative of the Re-
spondent’s employees in the following unit:

All full-time and regular part-time maintenance, service and
parts employees employed by the Respondent at its 2150A
South Valentia Street, Denver, Colorado, location, excluding
all other employees, professional employees, guards and su-
pervisors as defined in the Act.

4. Respondent violated Section 8(a)(1) of the Act by engag-
ing in the following conduct:
(a) Interrogating employees about their union sympathies
and opinions of Respondent’s proposed benefit plans.
(b) Threatening employees that the Respondent would cease
business because of their union representation.
(c) Threatening employees that the Respondent no longer
recognized the Union as their collective-bargaining representa-
tive and that they would only receive benefits determined by
the Respondent.
(d) Coercively accosting union representatives in the pres-
ence of employees.
(e) Sponsoring, initiating and paying for efforts to get em-
ployees to renounce the Union as their collective-bargaining
representative.
5. Respondent violated Section 8(a) (1) and (3) of the Act by
constructively discharging Michael Cardenas.
6. Respondent violated Section 8(a) (1) and (5) of the Act
by:
(a) Bypassing the Union and dealing directly with employ-
ees.
(b) Unilaterally implementing changes in terms and condi-
tions of employment of employees.
(c) Withdrawing recognition from, and refusing to meet and
bargain with, the Union.
(d) Ceasing to pay employee benefit funds as required by the
expired collective-bargaining contract with the Union.
7. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. Respondent has not violated the Act except as herein
specified.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having constructively discharged Michael
Cardenas it must offer him reinstatement to his former position,
without prejudice to his seniority or other rights and privileges
or, if any such position does not exist, to a substantially equiva-
lent position, dismissing if necessary any employee hired to fill
the position, and to make him whole for any loss of earnings
and other benefits he may have suffered, computed on a quar-
terly basis, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondent shall expunge from its records all ref-
erences to the unlawful constructive discharge of Michael
Cardenas and notify him in writing that this has been done, and
that Respondent will not rely on the constructive discharge as a
basis for future discipline of him.
Having found that the Respondent, is in violation of Section
8(a)(1) and (5) of the Act, the Respondent shall cease and desist
from dealing directly with employees, making unilateral
changes and refusing to recognize and bargain with the Union.
Further, the Respondent shall make whole its employees for
any loss of pay or other benefits they may have suffered as a
result to such unlawful conduct, in the manner prescribed in
Ogle Protection Service, 183 NLRB 682 (1970), with interest
as prescribed New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondent shall also reimburse its unit employees
for any expenses ensuing from the Respondent’s unlawful fail-
ure to make the required benefit payments as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981), with interest as prescribed in New
Horizons for the Retarded, supra. The Respondent shall also
remit all fringe benefit amounts which have become due. Any
additional amounts due the employee benefit funds shall be as
prescribed in Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). See Hilton’s Environmental, 320 NLRB 437,
439 (1995).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended5
ORDER
The Respondent, James Heavy Equipment Specialists, Inc.,
Denver, Colorado, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees about their union sympathies
and opinions of Respondent’s proposed benefit plans.
(b) Threatening employees that the Respondent would cease
business because of their union representation.
(c) Threatening employees that the Respondent no longer
recognized the Union as their collective-bargaining representa-
tive and that they would only receive benefits determined by
the Respondent.
(d) Coercively accosting union representatives in the pres-
ence of employees.
(e) Sponsoring, initiating, and paying for efforts to get em-
ployees to renounce the Union as their collective-bargaining
representative.
(f) Constructively discharging Michael Cardenas.
(g) Bypassing the Union and dealing directly with unit em-
ployees.
(h) Unilaterally implementing changes in terms and condi-
tions of employment of unit employees.
(i) Withdrawing recognition from, and refusing to meet and
bargain with, the Union as the exclusive bargaining representa-
tive of the unit employees.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommend
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
JAMES HEAVY EQUIPMENT SPECIALISTS 917
(j) Ceasing to pay employee benefit funds as required by the
expired collective-bargaining contract with the Union.
(k) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Michael
Cardenas full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Michael Cardenas whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of
this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful constructive discharge of
Michael Cardenas, and within 3 days thereafter notify the em-
ployee in writing that this has been done and that the construc-
tive discharge will not be used against him in any way.
(d) Make whole unit employees for any loss they may have
incurred as a result of the unilateral changes made as set forth
in the remedy section.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(f) Within 14 days from the date of this Order, notify, in
writing, the Union that the Respondent rescinds its withdrawal
of recognition from the Union, that the Respondent recognizes
the Union as the exclusive collective-bargaining representative
of the employees in the bargaining unit and that, at the Union’s
request, the Respondent will rescind all or any part of the bene-
fits package, bonus program or other changes it unilaterally
implemented.
(g) On request, bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the fol-
lowing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:

All full-time and regular part-time maintenance, service and
parts employees employed by the Respondent at its 2150A
South Valentia Street, Denver, Colorado, location, excluding
all other employees, professional employees, guards and su-
pervisors as defined in the Act.

(h) Within 14 days after service by the Region, post at its fa-
cility in Denver, Colorado, copies of the attached notice marked
“Appendix.”6 Copies of the notice, on forms provided by the
Regional Director for Region 27, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately 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. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since December 16, 1996.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(j) Pay to the appropriate contract benefit funds the contribu-
tions required to the extent that such contributions have not
been made or that the employees have not otherwise been made
whole for their ensuing medical and other expenses, and con-
tinue such payments until Respondent negotiates in good faith
with the Union to an agreement, or to good-faith impasse, or
until the Union refuses to bargain.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”