Allen W. Bird II

National Labor Relations Board - Board Decisions

Jan 24, 1977

227 N.L.R.B. 1355 (N.L.R.B. 1977)

ALLEN W. BIRD II ; CARAVELLE BOAT CO. 1355
Allen W. Bird II, Receiver for Caravelle Boat Compa-
ny, a Corporation, and Caravelle Boat Company
and International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW) and its Local Union No. 1000.
Case 26-CA-5617
January 24, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
Upon a charge duly filed by International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW) and its Local
Union No. 1000, on June 5, 1975, as amended on July
21, 1975, and October 2, 1975, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 26, issued a complaint on July
22, 1975, as amended on October 10, 1975, against
Allen W. Bird II, Receiver for Caravelle Boat
Company, a Corporation, and Caravelle Boat Com-
pany, hereinafter referred to jointly as Respondents,
and individually as Respondent Bird and Respon-
dent Caravelle. Such complaint alleges that Respon-
dents have engaged in, and are engaging in, unfair
labor practices within the meaning of Section 8(a)(1)
and (5) of the National Labor Relations Act, as
amended. The Respondent filed an answer on July
31, 1975, as amended on October 17, 1975, denying
the commission of unfair labor practices.
On February 9, 1976, the parties executed a
stipulation of facts, waived a hearing before an
Administrative Law Judge and the issuance of an
Administrative Law Judge's Decision, and submitted
the case to the National Labor Relations Board for
findings of fact, conclusions of law, and an order
based upon a record consisting of the charges, the
complaint and notice of hearing, amended complaint
and notice of hearing, answer and amended answer to
the complaint, and the stipulation of facts.
On March 24, 1976, the Board rejected the stipula-
tion of the parties and remanded the proceedings to
the Regional Director for appropriate action. There-
after, on April 12, 1976, the General Counsel filed a
motion to reopen and reconsider and a supplemental
stipulation of facts entered into by the parties on
April 9, 1976.
On May 21, 1976, the Board granted the General
Counsel's motion, approved the stipulation and
supplemental stipulation of facts, ordered that the
proceedings be transferred to the Board, and granted
permission and time for the filing of briefs. Thereaf-
ter, the General Counsel and Respondents filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the basis of the original and supplemental
stipulations, the briefs, and the entire record in this
proceeding, the Board makes the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent Caravelle is an Arkansas corporation
engaged in the manufacture of pleasure boats. During
the past 12 months, Respondent Caravelle sold and
shipped products valued in excess of $50,000 to, and
purchased and received products valued in excess of
$50,000 directly from, points outside the State of
Arkansas.
The parties stipulated and we find that Respondent
Caravelle is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. We also find that it
will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and we find that Internation-
al Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW) and
its Local Union No. 1000 is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
At all times since September 28, 1968, and continu-
ing to date, the Union has been the representative for
the purposes of collective bargaining of the following
appropriate unit of employees:
All production and maintenance employees, in-
cluding truckdrivers, employed at Caravelle Boat
Company's Jacksonville, Arkansas, location, ex-
cluding office clerical employees, professional
employees, salesmen , guards, and supervisors as
defined in the Act.
On July 21, 1975, all production ceased at Respon-
dent Caravelle's Jacksonville, Arkansas, facility. On
September 23, 1975, a petition for voluntary bank-
ruptcy was filed by Respondent Caravelle in the
United States District Court for the Eastern District
of Arkansas, Western Division. On September 23 and
October 21, 1975, Respondent Bird was appointed
receiver and trustee in bankruptcy, respectively.
Since September 23, 1975, Respondent Bird has
227 NLRB No. 162
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercised control over the assets of Respondent
Caravelle. On October 27, 1575, the principal assets
were sold to Marquis Boats, Inc.
Prior to the expiration of the most recent collective-
bargaining agreement, on November 1, 1974, Re-
spondent Caravelle advised the Union by letter dated
August 30, 1974, that "it is terminating, at its
expiration date, November 1, 1974, the collective
bargaining agreement dated February 10, 1972." By
letter also dated August 30, 1974, the Union notified
Respondent Caravelle of its intent to "modify and
amend our collective bargaining agreement for the
purpose of negotiating proposed changes such as
wages, hours of work, and other conditions of
employment." In its letter, the Union advised that it
would be in touch at a later date in order to work out
a mutually satisfactory time to begin contract negoti-
ations.
Thereafter, the parties entered into contract negoti-
ations on October 10, 1974. Other negotiating ses-
sions were held on October 17, 25, and 30; November
1, 8, 12, 18, 21, and 25; and December 2, 6 and 10,
1974, and January 3, 1975. Unable to agree to the
terms of a collective-bargaining agreement, Respon-
dent Caravelle, by letter at the January 3, 1975,
meeting, notified the Union that it was "giving
consideration to discontinuing its woodshop, canvas,
upholstery and tooling operations at Jacksonville." It_
further advised that, if there should be a discontin-
uance of an operation or department, it was consider-
ing permitting affected employees to move, on the
basis of seniority, to another classification in which
the particular employee had previously proven him-
self qualified. In addition, the Company was consid-
ering giving employees, laid off as a result of any
discontinuance, preferential hiring over applicants
not currently working for Caravelle or not holding
seniority. The letter invited the Union to discuss any
aspect of the matter. During this January 3 meeting,
the Union protested implementation of a wage
increase and an incentive pay plan without further
bargaining. The Union also requested the details of
the incentive plan.'
Respondent Caravelle, by letter dated January 14,
1975, notified the Union of its intention to ph,,se out
the woodshop, upholstery, and canvas operations at
Jacksonville and restated its position regarding the
employees' right to move into other job classifications
and employees' rights regarding preferential hiring.
On January 31, 1975, Respondent Caravelle moved
its woodshop and upholstery operations from its
I Respondent Caravelle had notified the Union by letter dated December
16, 1974 , that it was contemplating implementation of wage proposals and an
incentive pay plan made during previous negotiating sessions By letter dated
January 14, 1975, Respondent Caravelle furnished the Union the informa-
tion it requested regarding the incentive pay plan and informed it of its intent
to implement the wage proposals and incentive pay plan On January 19,
Jacksonville, Arkansas, facility to its subsidiary's
facility in Conway, Arkansas. This resulted in the
layoff of various employees.2
On or about the dates set out hereinafter, Respon-
dent Caravelle made the following changes in the
terms and conditions of employment of its employees
without prior notice to, or bargaining with, the
Union:
(a) Prior to January 3, 1975, Respondent Caravelle
recalled employees according to seniority. Such recall
was accomplished by certified letter to the employee
in question , with a copy to the Union. After January
3, 1975, recalls were based on seniority, work
performance, and past attendance records rather
than seniority alone; and, after March 6, 1975,
employees were notified of their recall by telephone
without notice to the Union.
(b) During the week of March 17, 1975, Respon-
dent Caravelle's supervisors announced to employees
that it would no longer grant a paid holiday on
March 28, 1975, Good Friday, as theretofore. Em-
ployees were required to work on March 28, 1975,
and were paid at their regular rate of pay rather than
as called for in the collective-bargaining agreement.
(c) On May 21, 1975, Respondent Caravelle posted
a notice at its Jacksonville, Arkansas, facility notify-
ing its employees that May 26, 1975, Memorial Day,
would be a scheduled workday. Memorial Day had
previously been a paid holiday pursuant to the
recently expired collective-bargaining agreement.
Employees were required to work on May 26, 1975, at
their regular rate of pay rather than as called for in
the collective-bargaining agreement.
(d) Prior to May 19, 1975, Respondent Caravelle's
Conway facility closed and all work previously
performed at Conway was Transferred to the Jackson-
ville facility. On May 19, 1975, Respondent Caravelle
transferred eight employees from the wood and
upholstery shops at its subsidiary's Conway facility to
the wood and upholstery shops at its Jacksonville
facility. Employees on layoff from the Jacksonville
wood and upholstery shops were not recalled.
(e) As of January 20, 1975, the rate of pay for
Respondent Caravelle's employees in its woodshop
was $2.99 per hour and for employees in its uphol-
stery and canvas shops was $2.84 per hour. Employ-
ees transferred from the Conway facility to the
Jacksonville wood and upholstery shops on May 19,
1975, retained the $3.06 per hour rate of pay they had
received at Conway. On May 26, 1975, the one
employee recalled from layoff to Respondent Cara-
1975, Respondent Caravelle implemented the wage increase and incentive
pay plan General Counsel does not allege , nor does he contend, the
implementation of the incentive pay plan violated the Act
2 General Counsel does not contend that the move of the operation is
violative of the Act
ALLEN W. BIRD II ; CARAVELLE BOAT CO. 1357
velle's woodshop was raised from the old rate of $2
per hour to $3.06 per hour. On May 26, 1975,
Respondent Caravelle increased the rate of pay of all
employees in its canvas shop from the old rate of
$2.84 per hour to $3.06 per hour in order to equalize
their rate of pay with that received by employees in
the wood and upholstery shops.
(f) On June 18, 1975, Respondent Caravelle laid off
five employees and recalled them on June 23, 1975.
No advance notice was given to the Union, as has
been the practice theretofore, regarding this layoff
other than posting a list of the laid-off employees on
the bulletin board. The layoffs were not made in
accordance with past practice, i.e., by seniority.
Following the January 3, 1975, negotiating session,
no request for further negotiations was made by
either party until May 19, 1975.3
Negotiations resumed on May 28, 1975. At this
meeting, the Union requested that employees trans-
ferred to Respondent Caravelle's Jacksonville facility
from the subsidiary's Conway facility be removed
and employees then on layoff at the Jacksonville
facility be recalled. Respondent Caravelle took this
request under consideration and on June 3, 1975,
advised the Union that it would not meet this request.
On June 30, 1975, at the request of the Union, the
parties met for negotiations. At this meeting, Respon-
dent Caravelle made various contract proposals
which were rejected by the Union. There have been
no further collective-bargaining sessions since that
date.
No proposals of any type were made by Respon-
dent Caravelle to the Union during negotiating
sessions concerning the unilateral changes in working
conditions set forth in paragraphs (a) through (f)
above.
The Union learned of the changes set forth in
paragraphs (a) through (f) shortly after the dates on
which the changes took place. The Union made no
protest over these changes other than at the negotiat-
ing session on May 28, 1975, when it requested that
the employees transferred to Respondent Caravelle's
Jacksonville facility from its subsidiary's Conway
facility be removed and employees on layoff at
Jacksonville be recalled.
B. Contentions of the Parties
The General Counsel contends that by unilaterally
changing the method of recalling employees , elimi-
nating two paid holidays (Good Friday and Memori-
3 The only contact between the parties from January 3 to May 19, 1975,
were various letters , copies of layoff notices, copies of warnings to
employees, and letters offering recall to certain employees
4 Hamilton Electronics Company, 203 NLRB 206 (1973)
5 Newberry Equipment Company, Inc, 157 NLRB 1527, 1528 (1966)
6 See , e g, Weltronic Company, 173 NLRB 235 (1968), The University of
Chicago, 210 NLRB 190 (1974).
al Day), transferring employees from its subsidiary's
Conway facility without recalling laid-off unit em-
ployees, granting a pay increase to employees in its
canvas, wood, and upholstery shops and laying off
employees without notice to, and consultation with,
the Union, Respondent Caravelle violated Section
8(a)(5) of the Act. Respondents argue that an impasse
had been reached in bargaining, therefore, Respon-
dent Caravelle was free to make unilateral changes as
to wages, hours, and working conditions. They
further contend that the Union waived its right to
bargain about the unilateral changes by its failure to
protest or request bargaining, despite knowledge of
the unilateral changes. In addition, Respondents
argue that because of the inaction of the Union
between January 3 and May 19, 1975, they had
reasonable ground to believe that the Union had
abandoned its representation of the unit.
C. Analysis and Conclusions
The parties hereto have stipulated that the actions
of Respondent Caravelle were unilaterally taken and
"without prior notice to or bargaining with the
Union." It is axiomatic that unilaterally changing the
method of recalling employees is violative of the Act.4
So, too, is the elimination of paid holidays,5 transfer-
ring employees without recalling those on layoff,6
granting a pay increase to employees,7 and laying off
employees without notice to the Union.8 Respondent
Caravelle defends its actions by asserting that the
parties bargained to impasse, thus freeing it to make
any unilateral changes.
The general criteria for determining impasse are set
forth in Taft Broadcasting Co., WDAFAM-FM TV,
163 NLRB 475, 478 (1967), enfd. 395 F.2d 622
(C.A.D.C., 1968), where the Board held:
An employer violates his duty to bargain if,
when negotiations are sought or are in progress, he
unilaterally institutes changes in existing terms
and conditions of employment. On the other
hand, after bargaining to an impasse, that is, after
good-faith negotiations have exhausted the pros-
pects of concluding an agreement, an employer
does not violate the Act by making unilateral
changes that are reasonably comprehended within
his pre-impasse proposals.
Whether a bargaining impasse exists is a matter
of judgment. The bargaining history, the good
faith of the parties in negotiations, the length of
7 Everbrite Electric Signs, Inc, 222 NLRB 679(1976), Massey-Ferguson,
Inc, 184 NLRB 640 (1970)
B Shamrock Dairy, Inc, Shamrock Dairy of Phoenix, Inc, and Shamrock
Milk Transport Co, 124 NLRB 494,498 (1959)
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the negotiations, the importance of the issue or
issues as to which tht re is disagreement, the
contemporaneous understanding of the parties as
to the state of negotiations are all relevant factors
to be considered in deciding whether an impasse
in bargaining existed.
The parties stipulated the dates of each bargaining
sessions , however, the stipulation includes none of the
factors enumerated in Taft Broadcasting Co., supra.
Indeed, the parties do not stipulate as the substance
of any of the negotiating sessions , the importance of
any issue or issues, or the understanding of the parties
as to the state of the negotiations.
The number of bargaining sessions , a hiatus, and
failure to reach agreement, without more, do not
indicate that an impasse has been reached. Moreover,
assuming arguendo the existence of an impasse, it is
well established that an employer can only make
unilateral changes in working conditions consistent
with its rejected offer to a union after bargaining has
reached an impasse. Royal Himmel Distilling Compa-
ny, 203 NLRB 370, fn. 3 (1973). It is clear that the
changes made by Respondent Caravelle had never
been bargained about with the Union. The parties
stipulated that "no proposals of any type were made
by Respondent Caravelle to the Union during the
negotiating sessions between such parties concerning
the unilateral changes in wages and working condi-
tions ...." Accordingly, we find Respondent's
defense of the existence of an impasse without merit.
Respondent Caravelle also argues that even if no
impasse existed its actions would not be violative of
the Act because the Union failed to protest its actions
or request bargaining, thereby waiving its right to
complain. The Union learned of Respondent Cara-
velle's unilateral changes shortly after they took
place. However, the Union did not protest these
changes other than at the negotiating session on May
28, 1975, when it requested that employees trans-
ferred from the Conway facility be removed and
employees on layoff at Jacksonville be recalled.9
Thereafter, on June 5, 1975, the Union filed the
instant charge, as amended on July 21 and October 2,
1975.
The Board and the courts have repeatedly held that
a waiver of bargaining rights by union will not be
lightly inferred and must be clearly and unequivocal-
ly conveyed.10 Here, the record does not establish
either a waiver or acquiesence by the Union. Silence
does not constitute a clear and unequivocal manifes-
tation of the Union's intention to waive its right to
complain about such action. J. H. Bonck Company,
Inc., 170 NLRB 1471, 1479 (1968); Bierl Supply
Company, 179 NLRB 741 (1969). Indeed, with respect
to Respondent's transfer of employees from its
Conway facility without recalling laid-off unit em-
ployees, the Union did protest this action at the
negotiating session of May 28, 1975. Furthermore,
^yhen the Union became aware of the contemplated
changes, the decision to make them had already been
reached and, in some cases, the changes had already
been implemented. Any protest by the Union would
therefore have been futile. See, e .g., Insulating Fabri-
cators, Inc., Southern Division, 144 NLRB 1325, 1332
(1963). And, finally, the original charge in this
proceeding was filed very shortly after most of the
changes occurred. Under these circumstances, the
inaction by the Union cannot be construed as a
waiver of its statutory right of prior consultation with
respect to changes in wages and working conditions.
The cases cited by our dissenting colleagues in
support of his contrary conclusion are, in our
opinion, distinguishable on their facts.
Lastly, Respondent argues that it had reasonable
grounds to believe that the Union had abandoned its
representation of the unit because of the hiatus in
bargaining between January 3 and May 19, 1975, a
period of approximately 4 months. Before January 3,
1975, meetings were held over a period of 3 months
on the following dates: October 10, 17, 25, and 30,
1974; November 1, 8, 12, 18, 21, and 25, 1974;
December 2, 6, and 10, 1974; and January 3, 1975.
On May 19, 1975, the Union requested resumption
of negotiating. Thereafter, a negotiating session was
held on May 28, 1975. The parties met again and
negotiated on June 30, 1975. There have been no
sessions since that date.
Since 1968, the Union has been the collective-
bargaining representative for Respondent Caravelle's
Jacksonville employees and has negotiated successive
collective-bargaining contracts. Between October
1974 and January 3, 1975, the Union had participated
in 14 bargaining sessions with Respondent Caravelle.
Furthermore, Respondent had corresponded with the
Union on matters of union concern at least until
March 6, 1975. It is unreasonable to infer in view of
the above facts that because of the 4-month hiatus in
bargaining between January 3 and May 19, 1975, the
Union had abandoned its representative status.
Moreover, that Respondent Caravelle did not con-
temporaneously construe the hiatus as having this
effect is evidenced by the fact that, upon receiving the
Union's May 19 request for resumption of bargain-
9 There was a further negotiating session held on June 30, 1975 The 10 The Timken Roller Bearing Co. v N.LR B, 325 F.2d 746, 751 (C.A. 6,
parties stipulated that at this meeting Respondent Caravelle made various 1963), cert. denied 376 U S 971(1964); Tide Water Associated Oil Company,
contract proposals which were rejected by the Union There is no indication 85 NLRB 1096, 1098 (1949); cf. American Buslines, Inc, 164 NLRB 1055
of the subject matter of these proposals (1967), KroehlerMfg Co, 222 NLRB 1269 (1976)
ALLEN W. BIRD II ; CARAVELLE BOAT CO. 1359
ing, Respondent Caravelle resumed negotiating ses-
sions with the Union on May 28 and June 30, 1975.
Cf King Radio Corporation, 208 NLRB 578, 579
(1974); Harpeth Steel, Inc., 208 NLRB 545, 546
(1974).
Inasmuch as we have rejected Respondents' defens-
es, we find that by unilaterally changing the method
of recalling employees, eliminating two paid holidays,
transferring employees without recalling those on
layoff, granting pay increases to employees, and
laying off employees without notice to the Union,
Respondents violated Section 8(a)(5) and (1) of the
Act.
5. By refusing on or about January 3, 1975, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of the
Respondent in the aforesaid appropriate unit, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondents set forth above,
occurring in connection with its operations as de-
scribed in section I, have a close, intimate, and
substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and
the free flow of commerce.
V. REMEDY
Having found that the Respondents have engaged
in unfair labor practices within the meaning of
Section 8 (a)(5) and (1) of the Act, we shall order that
they cease and desist therefrom, and take certain
affirmative action.
CONCLUSIONS OF LAW
1. Respondent Caravelle is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW) and its Local Union No. 1000 is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees,
including truckdrivers, employed by Respondent
Caravelle at Caravelle Boat Company's Jacksonville,
Arkansas, location, excluding office clerical employ-
ees, professional employees, salesmen, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since September 27, 1968, the above-named
labor organization has been, and now is, the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Allen W. Bird II, Receiver for Caravelle Boat
Company, a Corporation and Caravelle Boat Compa-
ny, Jacksonville, Arkansas, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW) and its Local Union No.
1000 as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees, in-
cluding truckdrivers, employed at Caravelle Boat
Company's Jacksonville, Arkansas, location, ex-
cluding office clerical employees, professional
employees, salesmen, guards, and supervisors as
defined in the Act.
(b) Unilaterally changing the method of recalling
laid-off employees without prior notice to, and
consultation with, the Union.
(c) Unilaterally suspending Good Friday and
Memorial Day as paid holidays without prior notice
to, and consultation with, the Union.
(d) Unilaterally transferring employees from its
Conway, Arkansas, location without recalling laid-off
unit employees who had previously performed such
work, without prior notice to, and consultation with,
the Union.
(e) Unilaterally granting wage increases to its
employees in its canvas, wood, and upholstery shops,
without prior notice to, and consultation with, the
Union.
(f) Unilaterally laying off employees without prior
notice to, and consultation with, the Union.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights protected under Section 7 of the Act.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the
Board finds is necessary to ;ffectuate the policies of
the Act:
(a) Upon request, bargain collectively with the
Union as the exclusive bargaining representative of
the Respondent Caravelle's employees in the appro-
priate unit with respect to wages, hours, and other
terms and conditions of employment.
(b) Make the employees whole for any loss of
earnings they may have suffered by reason of
Respondent Caravelle's unilateral change in the
method of recalling laid-off employees, by paying to
each a sum of money equal to the amount they would
have earned from the date they would have been
recalled, less their earnings during said period, to be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
(c) Make employees whole for any loss of earnings
they may have suffered by reason of Respondent
Caravelle's unilateral action in suspending two paid
holidays, Good Friday and Memorial Day, it had
previously granted, with interest at the rate of 6
percent per annum. Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
(d) Make whole any employees or former employ-
ees for any loss of pay or other benefits suffered by
them by reason of the transfer of employees from
Respondent Caravelle's Conway, Arkansas, facility
without recalling employees who had previously
performed such work at its Jacksonville, Arkansas,
facility, with interest. Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Mail a copy of the attached notice marked
"Appendix" I I to all individuals employed by Re-
spondent Caravelle at its Jacksonville, Arkansas,
facility from January 1, 1975, to July 21, 1975. Copies
of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representative, shall be mailed by the
receiver in bankruptcy for Respondent Caravelle to
such former employees immediately upon receipt
thereof.
(g) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
ii In the event that 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 "
what steps the Respondents have taken to comply
herewith.
MEMBER WALTHER, dissenting in part:
Contrary to my colleagues, I would find that the
Union waived its right to bargain regarding the
following unilateral changes: (a) altering the method
of recalling employees; (b) eliminating March 28,
1975, Good Friday, as a paid holiday; and (c)
eliminationg May 26, 1975, Memorial Day, as a paid
holiday.
With respect to the change in the method of
recalling employees, by letter dated January 14, 1975,
Respondent Caravelle notified the Union of its intent
to phase out the woodshop, upholstery, and canvas
operations at Jacksonville. In its letter, Respondent
Caravelle stated that if there should be a discontin-
uance of an operation or department it was consider-
ing permitting affected employees to move, on the
basis of seniority, to another classification in which
the particular employee had previously proven him-
self qualified. In addition, employees laid off as a
result of any discontinuance, would be given prefer-
ential hiring over applicants not currently working
for Caravelle or not holding seniority. On January 31,
1975, Respondent Caravelle moved its woodshop and
upholstery operations from its Jacksonville facility to
its subsidiary's facility in Conway. Employees were
laid off.
Prior to January 3, 1975, employees were recalled
according to seniority. Employee recalls were effect-
ed by a certified letter to the employee with a copy to
the Union. After January 3, 1975, recalls were based
on seniority, work performance, and past attendance
records.12 After March 6, 1975, the Union ceased to
receive copies of the recall notices. Employees were
notified of their recall by telephone.
During the week of March 17, 1975, Respondent
Caravelle's supervisors announced to employees that
it would no longer grant a paid holiday on Good
Friday, March 28, 1975. The Union learned of the
change shortly after it took place. There are approxi-
mately 11 days between the date of notification to
employees of the elimination of the holiday and
March 28, 1975. The Union did not lodge any protest
within that 11-day period nor did it lodge any protest
or request bargaining at any time thereafter. While
the timespan is different as to Memorial Day, May
26, 1975, Respondent Caravelle posted a notice on
May 21, 1975, that Memorial Day would be a
scheduled workday. Here, there were approximately
5 days between the announcement and the holiday
i2 The Union was furnished with copies of eight letters dated February
26, 1975, one letter dated March 5, 1975, and three letters dated March 6,
1975, notifying employees of their recall
ALLEN W. BIRD II ; CARAVELLE BOAT CO. 1361
within which the Union could have lodged a protest.
Again, no such protest occurred, nor did the Union
thereafter protest or request bargaining.
The above-described unilateral changes occurred
after 14 bargaining sessions , but before the final two
sessions on May 28 and June 30, 1975. At either of
the last two sessions, the Union could have protested
these unilateral acts. However, it did not do so. It is
clear that the method of recalling employees had
come to the attention of the Union after the recall
process started. Indeed, the parties stipulated that
after January 3, 1975, Respondent Caravelle recalled
employees based on a method not in accordance with
employees' seniority. The Union even received copies
of recall notices in February and March 1975.
Moreover, it was approximately 6 months after
Respondent Caravelle changed its method of recall
and approximately 3 months after the Union ceased
to receive copies of the notices of recall that it filed
unfair labor practice charges. Although the original
unfair labor practice charge alleged a general refusal
to bargain, the specific allegation with respect to
changing the method of recalling employees was not
included until the first amended charge of July 21,
1975. Similarly, the elimination of the two paid
holidays came to the Union's attention shortly after
the change took place, i.e., in March and May 1975.
Here, too, this specific allegation was not included
until the first amended charge. Despite this, the
Union made no request to bargain over the matter
nor did it protest Respondent Caravelle's actions. In
these circumstances, I would find that by failing to
protest or request bargaining the Union effectively
waived its right to assert that Respondents' conduct
constitutes unilateral action violative of Section
8(a)(5) of the Act. Motoresearch Company and Kems
Corporation, 138 NLRB 1490, 1492-93 (1962); Justes-
en's Food Stores, Inc., Justesen's Rosedale, Inc., and R.
J. Agerton, 160 NLRB 687, 688, fn. 2 (1966);
Hartmann Luggage Company, 173 NLRB 1254
(1968); and Coppus Engineering Corporation, 195
NLRB 595, 596 (1972).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning wages, hours, and other terms and
conditions of employment with International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW)
and its Local Union No. 1000.
WE WILL NOT unilaterally change the method of
recalling laid-off employees without prior notice
to, and consultation with, the Union.
WE WILL NOT unilaterally suspend Good Friday
and Memorial Day as paid holidays previously
granted employees without prior notice to, and
consultation with, the Union.
WE WILL NOT unilaterally transfer employees
without recalling laid-off unit employees who had
previously performed such work, without prior
notice to, and consultation with, the Union.
WE WILL NOT unilaterally grant wage increases
to employees in the canvas, wood, and upholstery
shops, without prior notice to, and consultation
with, the Union.
WE WILL NOT unilaterally lay off employees
without prior notice to, and consultation with, the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your rights protected under Section 7
of the Act.
WE WILL, upon request, bargain with the
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW) and its Local Union No. 1000 as
the exclusive representative of all the employees in
the bargaining unit described below with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment. The
bargaining unit is:
All production and maintenance employees,
including truckdrivers, employed at Cara-
velle Boat Company's Jacksonville, Arkan-
sas, location, excluding office clerical em-
ployees, professional employees, salesmen,
guards, and supervisors as defined in the Act.
WE WILL pay employees for any loss of earnings
due to our failure to recall them according to
seniority.
WE WILL pay employees for any loss of earnings
due to our unilateral suspension of Good Friday
and Memorial Day, as paid holidays.
WE WILL pay employees for any loss of earnings
due to our failure to recall them when we
transferred employees from our Conway, Arkan-
sas, facility to perform work they had previously
performed.
ALLEN W. BIRD II
CARAVELLE BOAT
COMPANY