Association Of D C Liquor Wholesalers And Its Members Forman Bros , Inc And/Or Leon'S Leasing Co , Inc , Washington Wholesale Liquor Co , Inc , And Beitzell & Co

National Labor Relations Board - Board Decisions

Feb 21, 1989

292 N.L.R.B. 1234 (N.L.R.B. 1989)

1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Association of D C Liquor Wholesalers and its
Members Forman Bros , Inc and/or Leon's
Leasing Co, Inc , Washington Wholesale Liquor
Co, Inc , and Beitzell & Co and International
Brotherhood of Teamsters , Chauffeurs, Ware
housemen and Helpers of America , Local No
639, AFL-CIO i Case 5-CA-18743
February 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 17, 1988, Administrative Law Judge
Thomas R Wilks issued the attached decision The
Respondents and the Charging Party filed excep-
tions and supporting briefs, and the General Coun
sel filed a cross exception
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
The National Labor Relations Board has consid
ered the decision and the record in light of the ex
ceptions and briefs and has decided to affirm the
1 On November 1 1987 the Teamsters International Union was read
mn[ed to the AFL-CIO Accordingly the caption has been amended to
reflect that change
2 The Respondents have excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
tive law judge s credibility resolutions unless the clear preponderance 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 re
versing the findings
The Respondents have requested oral argument The request is denied
as the record exceptions and briefs adequately present the issues and the
positions of the parties
3 We do not rely on the judge s conclusion that the Respondents en
tered bargaining with an appraisal of what the Union probably would not
ultimately accept and appears to have formulated its position according
ly We also do not rely on his remarks suggesting that a prebargaining
determination of a party s ultimate bottom line wage offer is required
We note however that the Respondents admitted failure to make this
determination until shortly before they declared impasse is consistent
with our conclusion that their bargaining position on the wage issue was
not arrived at in good faith but was proffered as a means of subverting
the collective bargaining process
Member Cracraft agrees with the judge s and her colleagues decisions
insofar as they find that on February 27 1987 the parties negotiations
had not exhausted the prospects of concluding an agreement and
therefore no valid impasse existed Taft Broadcasting Co 163 NLRB 475
478 (1967) petition for review denied 395 F 2d 622 (D C Cir 1968) For
this reason she concurs in her colleagues findings that the Respondent
violated the Act by unilaterally implementing their final offer on March
2 1987 by conditioning further bargaining on the Union s acceptance of
the unlawfully implemented final offer and by engaging in a lockout in
support of the unlawfully implemented final offer In these circumstances
Member Cracraft notes it is unnecessary to pass on the question of
whether the Respondents alleged bad faith bargaining provides an addi
tional basis for concluding that no valid impasse existed on February 27
1987 Moreover she finds the lawfulness of the Respondents declaration
of impasse to be a close factual issue She would not equate this declara
don of impasse and the subsequent events in reliance thereon as tanta
mount to engaging in surface bargaining Accordingly she dissents from
her colleagues conclusion that the Respondents engaged in bad faith bar
gaining
judge s rulings, findings,2 and conclusions3 and to
adopt the recommended Order, as modified 4
In adopting the judge's conclusion that the Re
spondents failed to bargain in good faith with the
Union on and after February 27, 1987, we do not
rely on comments by the judge suggesting that the
Respondents lacked good faith throughout the ne
gotiations Our examination of the totality of the
evidence convinces us, however, that the acts of
the Respondents on that final day of bargaining
(and their action that followed therefrom) provide
ample evidence of their bad faith and lack of intent
to reach agreement with the Union 5
The Act requires that the parties bargain in good
faith until agreement is reached or until any realis-
tic possibility of reaching agreement is exhausted
Taft Broadcasting Co, 163 NLRB 475 (1967), peti-
tion for review denied 395 F 2d 622 (D C Cir
1968) An impasse exists in the latter situation,
which gives rise to a variety of options for both
parties This case turns on whether a lawful im
passe existed on February 27, 1987 The answer to
that question ultimately determines the legitimacy
of the lockout and replacement of employees after
February 27, 1987 We find, in agreement with the
judge, that impasse had not been reached
After having bargained for 11 sessions over
largely noneconomic subjects, the parties first took
up the wage issue at the 12th session The Re
spondents' first wage proposal-a wage cut of
$2 77 per hour-came as part of a package tying
together the remaining open items That proposal
was rejected by the Union The Union's counter-
proposal was in turn rejected by the Respondents
The parties continued to bargain and caucus until
late in the afternoon, when a sidebar meeting with
the chief negotiators and the Federal mediator was
held Although the judge determined that it was
agreed at the sidebar to exchange final offers, he
also found that the Respondents, by continuing to
accept counteroffers from the Union after they
4 We find merit in the cross exceptions filed by the General Counsel
and the Charging Party regarding the judge s failure to provide specifi
cally that the Respondents make contributions to the pension fund pursu
ant to the terms of the collective bargaining agreement Accordingly we
are amending the recommended Order to cover such contributions
5 As in Reichhold Chemicals 288 NLRB 69 (1988) and the more recent
case of Prentice Hall Inc 290 NLRB 646 (1988) although we decline to
evaluate the sufficiency or acceptability to the Union of the Respondents
proposals we consider the substance of the proposals as one element in
the overall finding of bad faith The holdings in these cases do not repre
sent a sharp departure from past precedent thus their application to this
case would not violate the Respondents due process rights as they con
tend in their brief In any event the Board s usual practice is to apply
new policies and standards to all pending cases in whatever stage John
Deklewa & Sons 282 NLRB 1375 1389 (1987) enfd 843 F 2d 770 (1988)
quoting Deluxe Metal Furniture Co 121 NLRB 995 1006-1007 (1958)
There is no compelling reason here to depart from that practice Member
Johansen dissented in Reichhold Chemicals and evaluates bargaining pro
posals as they relate to bargaining tactics
292 NLRB No 132
D C LIQUOR WHOLESALERS
gave their own final offer, "acquiesced in giving
the impression that the Association final offer'
might not be final, depending on the revised union
offer" When the Union failed to come down far
enough in its proposals, the Respondents declared
impasse
The judge credited the union representative's tes
timony that he strongly disagreed that impasse had
been reached, and that he told the Respondents he
had more movement to make The Respondents
nevertheless held fast They announced plans to
continue operations in the event of a strike, and de-
clared that the employees had 5 days to come to
work under the final offer, after which time the
Respondents reserved the right to replace strikers
permanently Even though no strike materialized,
the Respondents locked out their employees on
their arrival at work the following Monday, they
have used replacements to perform bargaining unit
functions ever since The Respondents have main-
tained that these replacements are temporary
Under these circumstances, the judge concluded
that there was no bona fide impasse because "the
parties did not have adequate opportunity to have
exhausted all reasonable expectations of compro-
mise in view of the very brief opportunity that was
unilaterally imposed by Respondents to fully ex-
plore and negotiate Respondents' finally revealed
full hard core economic position " We agree At
the time the Respondents declared that an impasse
existed, the Union had barely had enough time to
digest the news that they desired a wage cut, much
less to determine if such an idea would be accepta-
ble to its membership The fact that the Union in-
sisted and continued to insist for days and weeks
afterward that it had further movement to make is
consistent with our finding that there had been no
exhaustion of the possibility of compromise The
Respondents gave the Union no meaningful oppor-
tunity to explore, evaluate, and respond to their
offer before they aborted the negotiation process
The Respondents' final offer, whether arrived at
just prior to the sidebar as they claim, or just after
ward, was reached with a minimum of deliberation
The Respondents' chief negotiator, Tisch, testified
that in the "very brief' discussion, there was no in
dication "how they arrived at [the wage figure]
logically or scientifically " From the testimony of
the other management team members, it is also
clear that they did not even determine that a wage
cut demand would be made until February 27, the
very day impasse was declared Prior to that time,
the Respondents had no clear picture of what kind
of wage proposal they wanted to present By the
time they did decide, they had become aware that
the Union would find a wage cut unacceptable In
1235
fact, Tisch testified that at the time the final wage
offer was being drafted, it was expected that the
employees would not at that time agree to a wage
cut We do not suggest that management is re-
quired to forgo bargaining on a wage cut merely
because the Union finds it unpalatable, it is an en-
tirely different matter, however, when an employer
formulates such a demand specifically to avoid its
obligation to bargain in good faith
The Respondents assert that their pronounce-
ments about the state of the industry at the outset
of negotiations and thereafter, put the Union on
notice that a wage cut proposal would be forth
coming The facts belie this assertion As noted, ac-
cording to their own witnesses, the Respondents
had not even decided on proposing a wage cut
until the last day Although they claim that they
announced on February 25 that they would be
seeking substantial wage concessions, the judge did
not believe this to be the case Even if they did
make such an announcement, the Union, without
knowing what "substantial" might mean, was not
in a position to react intelligently or prepare itself
in the 2 days before the Respondents finally re
vealed their wage proposal and immediately de-
clared impasse
The Respondents also contend that Union Nego
tiator Ross' statements of adamancy and inflexibil-
ity were as much responsible for the impasse as any
of the Respondents' actions 6 The record shows
that for all the Union's posturing, progress was
being made at virtually every session, albeit
slowly 7 Ross also took time out around February
17 to encourage Tisch privately "not to get upset,"
that he was "trying to work with his guys, too,
after Tisch had complained of Ross' intransigence
on certain key issues Consequently, as the judge
found, the Respondents had reason to believe,
before the events of February 27, that many of
6 The Respondents make much of the fact that from the outset of ne
gotiations the Union declared it was going to recapture those concessions
it had made during bargaining for the expiring contract and that
throughout the negotiations the Union maintained that it would not
accept anything less than restoration of those concessions as well as
maintenance of current benefit levels (The Union also indicated it would
strike in support of that position) The Union s declarations however
amounted to little more than bargaining table strategy or rhetoric This
observation is borne out by the Union s eschewing a strike as a weapon
to force its demands even after the Respondents had declared an impasse
and suspended further bargaining in any event considering the realities
of bargaining in general it is not surprising that the Union did not an
nounce a willingness to surrender to lower wages and terms of employ
ment at the beginning of negotiations or that later in the course of bar
gaining when for the first time it was presented with proposed reductions
in pay and benefits it did not readily assent to the Respondents propos
als merely because the latter said it needed such reductions In the ab
sence of demonstrated need which the Respondents did not produce the
Respondents could not have expected the Union to accept its offer imme
diately
7 At the very last session in fact the Union agreed to the Respond
ents proposal on the legal aid plan
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ross' pronouncements indicating intransigence
were merely for public consumption and should
not be taken as gospel 8 In other words, the Re
spondents had reason to believe that if they could
make a convincing case for their offer, the Union,
despite its expressions of refusal to depart from its
positions on certain subjects, might be willing to
give the offer serious consideration
We find the Respondents attempt to blame the
Union for the lack of progress disingenuous 9 The
Union did not declare impasse and suspend negotia
tions The Union did not go on strike and force the
Respondents to shut down or hire replacements In
fact, the record evidence shows that the Union vo
ciferously disputed the existence of impasse and
viewed it as a means of breaking the Union
The Respondents nevertheless argue that further
negotiations would have been futile because the
Union had made clear by February 27 that it
would not accept any cut in wages Although the
Union had asserted that position in response to the
Respondents economic proposals, under the cir
cumstances of this case the Respondents could not
justifiably conclude that the Union's position as
then expressed was its final word on the subject
Indeed, the Union continued to seek to bargain
beyond the contract's expiration date and instruct
ed the unit employees to report to work while ne
gotiations continued Even after its members were
locked out, the Union wrote to the Respondents
several times proposing that negotiations contin
ue Io
Similarly, because of the Union's efforts to con
tinue or resume negotiations, and its willingness to
allow the unit employees to keep working while
negotiations proceeded we find no merit to the
Respondents assertion that the Union had imposed
a deadline on negotiations Ross, on February 26,
merely stated he could not meet beyond 6 p in on
8 The Respondents argue that early on and throughout the negotia
tions the Union identified as non negotiable and strike issues the
elimination of the two tier pay system and the 150 caseload limit imposed
by the old contract Although continuation of the two tier pay system
and a modified case limit were retained in the Respondents final offer
rejected by the Union it is clear that the parties disagreement on Febru
ary 27 focused on the Respondents proposed wage cuts and that it was
the Union s rejection of such cuts that primarily led to the Respondents
declaring an impasse Thus it is immaterial that the two tier pay system
and a caseload limit might have subsequently led to negotiations founder
mg had bargaining continued beyond February 27 without the interven
tion of a declared impasse
A similar conclusion with respect to the Respondents claim that the
Union placed a time limit on negotiations is warranted See infra
1° In light of this conduct by the Union had bargaining continued or
resumed after the parties had had further time to reflect on and reassess
their positions a workable basis for a compromise might have been forth
coming Circumstances change sometimes dramatically as a result of
which the bargaining positions of the parties are altered-especially if the
parties are in good faith committed to trying to reach an agreement
Here the Respondents summary declaration of an impasse foreclosed
these possibilities
February 27, and not at all on February 28, the last
day of the expiring contract (on which day, he had
indicated on February 26, the Union would take a
strike vote among the employees) We fail to see
how Ross' statements indicating when he would
and would not be available for further bargaining
set a deadline in view of his disputing, the very
next day, that the parties were at impasse
Nevertheless, the Respondents appear to claim
that the asserted deadline forced them to impose a
lockout of their employees on the first working
day after the contract's expiration in order to avoid
a potential strike During the intervening weekend,
however, Ross, on February 28, and Union Presi
dent Feaster, on March 1, advised the Respondents
through Tisch that the employees would report for
work on Monday, March 2, and that the Union
wanted to continue negotiations Although both
union representatives, in their conversations with
Tisch, indicated that the employees were reporting
to work under the terms of the expired contract,
they did not state that the employees would not
work under the terms of the Respondents' final
offer, and the Respondents did not test the employ-
ees' willingness to do so i i When they arrived at
work that Monday, they found themselves locked
out and their jobs taken by replacements Two
things became clear from these events there would
have been no impediment by the Union to the Re
spondents' allowing the employees to continue to
work while the parties kept on negotiating, i 2 and
the Respondents, regardless of the assurances of
the Union that the employees would report for
work and the fact that employees actually did so,
had decided to lock out and replace their employ
ees In these circumstances, we find as did the
judge, that the Respondents' lockout and replace
ment of employees were measures taken in bad
faith because they were taken in support of the
bad-faith effort to abort the bargaining process
through the false claim of impasse
The Respondents' behavior demonstrates an
intent to deprive their employees of any opportune
ty to bargain meaningfully over changes it planned
to make in their working conditions As in Prentice-
Hall, this "simply [is] not the behavior of an em
ployer who is trying to achieve a collective-bar-
gaining agreement " Above op at 646 We there-
fore conclude, as did the judge, that the Respond
ents' conduct on February 27, 1987, and thereafter
11 None of the employees was informed they could work under the
terms of the last offer and none of them stated they would refuse to do
so if offered the chance
12 Indeed in a conversation between Ross and Tisch on February 28
Ross informed Tisch that the Union would strike only if the parties failed
to reach an agreement
D C LIQUOR WHOLESALERS
in failing to bargain in good faith and in unilateral-
ly implementing changes in terms and conditions of
employment, violated Section 8(a)(5) and (1) of the
Act
We also agree with the judge that the lockout
and replacement of employees, having been moti-
vated by the same bad faith as the declaration of
impasse, were similarly unlawful They were part
and parcel of a pattern which leads us to find that
it was the Respondents' intent to avoid their bar-
gaining obligations in violation of Section 8(a)(5)
and (1) These actions also constitute discrimination
against the employees in violation of Section
8(a)(3) and (1) of the Act 13
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Association of D C Liquor Wholesalers
and its members Forman Bros, Inc and/or Leon's
Leasing Co, Inc, Washington Wholesale Liquor
Co, Inc, and Beitzell & Co, Washington, D C,
their officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified
1 Insert the following as paragraph 2(e) and re-
letter the subsequent paragraphs accordingly
(e) Make payments to the existing pension fund
in accordance with article XXXII of the collective
bargaining agreement in force prior to the unlawful
declaration of bargaining impasse on February 27,
1987, sufficient to reinstate each employee member
so that coverage is resumed immediately as of the
first day of reinstatement In addition, reimburse
employees for any losses attributable to the failure
to make such payments as set forth in Kraft Plumb
ing & Heating, 252 NLRB 891 fn 2 (1980), enfd
661 F 2d 940 (9th Cir 1981), with interest as pre-
scribed in New Horizons for the Retarded, 283
NLRB 1173 (1987) "
2 Substitute the attached notice for that of the
administrative law judge
13 See Clemson Bros 290 NLRB 944 (1988)
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 ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
1237
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT refuse to meet and to bargain in
good faith with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local No 639, AFL-CIO as the ex-
clusive bargaining representative of employees in
the bargaining unit by presenting and insisting on
acceptance of our February 27, 1987 collective bar-
gaining agreement negotiations final offer prior to
having reached a good-faith bargaining impasse,
nor by implementing and refusing to rescind the
implementation of the terms and conditions of em-
ployment unilaterally effectuated prior to good
faith impasse under the terms of that final offer,
nor by predicating and conditioning continued bar-
gaining on the Union's unqualified acceptance of
that final offer The appropriate collective bargain
ing unit is
All truck drivers, tow motor operators, check
ers, helpers and warehousemen employed by
the Employers, excluding all other employees,
guards and supervisors as defined in the Act
WE WILL NOT lock out or otherwise discriminate
against our employees because of the bargaining
position of their designated bargaining agent and in
furtherance of our own unlawful bargaining con
duct calculated to frustrate the bargaining rights of
employees, as mandated by the Act
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer
cise of the rights guaranteed them by Section 7 of
the Act
WE WILL, on request, bargain in good faith with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union No 639, AFL-CIO as the exclusive
representative of the employees in the appropriate
unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody
the understanding in a signed agreement
WE WILL, on request of the Union, reinstate any
term and condition of employment of bargaining
unit employees that was unilaterally changed after
the unlawful declaration of bargaining impasse of
February 27, 1987
WE WILL offer each and every employee on our
payrolls on March 1, 1987, whom we unlawfully
locked out on March 2, 1987, full and immediate
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights or privileges previously enjoyed, dis
charging, if necessary, employees hired from other
sources to make room for them, and make them
whole, with interest, for any loss of wages, holi
days, including personal days and vacations, any
expenses incurred to retain andor secure replace
ment health and welfare and pension coverage, and
any disbursements made by them for all medical
expenses that would have been covered by the ex
isting health and welfare coverage, all of which
were caused by our unlawful March 2, 1987 lock
out and/or our unlawful unilateral change in work
ing conditions effectuated after February 27, 1987
WE WILL make payments to the existing health
and welfare and pension plans sufficient contribu-
tions in order to reinstate each employee member
so that coverage is resumed immediately as of the
first day of reinstatement of employment
ASSOCIATION OF D C LIQUOR
WHOLESALERS AND ITS MEMBERS
FORMAN BROS , INC AND/OR LEON'S
LEASING CO, INC, SUCCESSOR TO
FORMAN BROS , INC, WASHINGTON
WHOLESALE LIQUOR CO, INC, AND
BEITZELL & CO
Harvey A Holtzman Esq for the General Counsel
Benjamin E Goldman Esq (Graham & James) of Los
Angeles California for the Respondents
Hugh J Berns Esq (Berns Axelrod & Osborne) of Wash
ington D C for the Charging Party Union
DECISION
STATEMENT OF THE CASE
THOMAS R WILKS, Administrative Law Judge The
original charge in this case was filed on March 26, 1987
Amended charges were filed on April 22 and June 18 a
complaint was issued May 8, and an amendment to com
plaint issued on June 27 1987 Answers were timely
filed, respectively on May 22 and July 1 1987 This
matter was tried before me in Washington, D C, on 14
different days commencing on July 9 and ending on
August 11, 1987
The issues alleged in the complaint, as amended and
litigated at the trial, were whether Respondents, in viola
tion of Section 8(a)(5) and (1) of the Act, bargained in
bad faith with the Union in the negotiation of a succeed
ing contract by unilaterally instituting its last contract
offer prior to impasse, and by refusing to negotiate there
after, and whether Respondents violated Section 8(a)(5)
(3), and (1) of the Act by locking out and replacing their
employees on March 2, 1987
Pursuant to an extended date for brief filing written
posttnal briefs were received from all parties on Novem
ber 2 1987 Attached to the General Counsels brief was
an 11 page motion to correct transcript which was un
opposed and which is granted On March 31, 1988 Re
spondents moved to reopen the record for receipt of a
dismissal letter issued by the Regional Director in a dif
ferent case, involving a different employer but with re
lated issues On April 15, 1988, I denied that opposed
motion
On the entire record in this case, including my obser
vation of the demeanor of the witnesses I make the fol
lowing
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
Association of D C Liquor Wholesalers (Respondent
Association) has been and is an organization composed
of employers engaged in liquor and wine wholesaling,
distribution and warehousing and exists for the purpose
inter aria of representing its employer members in nego
tiating and administering collective bargaining agree
ments with various labor organizations including the
Union At all times material, Respondent Employers
have been and are now employer members of Respond
ent Association described above and have delegated Re
spondent Association to represent them in negotiating
and administering collective bargaining agreements
At all times material Forman Bros, Inc and/or its
successor, Leon s Leasing Co Inc (Respondent
Forman/Leon s), a District of Columbia corporation
with an office and place of business in the District of Co
lumbia, has been engaged in the wholesale sale distribu
tion and warehousing of liquor, wine and related prod
ucts During the past 12 months prior to the issuance of
the complaint, a representative period Respondent
Forman/Leon s in the course and conduct of its business
operations purchased and received at its District of Co
lumbia facility products, goods and materials valued in
excess of $50,000 directly from points located outside the
District of Columbia Respondent Forman/Leon s is
now, and has been at all times material an employer en
gaged in commerce within the meaning of Section 2(2)
(6) and (7) of the Act
At all times material Washington Wholesale Liquor
Co Inc (Respondent Washington) a District of Colum
bia corporation with an office and place of business in
the District of Columbia, has been engaged in the whole
sale sale, distribution and warehousing of liquor, wine
and related products During the past 12 months prior to
complaint issuance, a representative period, Respondent
Washington, in the course and conduct of its business op
erations, purchased and received at its District of Colum
bia facility products goods, and materials valued in
excess of $50,000 directly from points located outside the
District of Columbia Respondent Washington is now,
and has been at all times material an employer engaged
in commerce within the meaning of Section 2(2) (6) and
(7) of the Act
At all times material, Beitzell & Co (Respondent Beit
zell), a District of Columbia corporation with an office
and place of business in the District of Columbia, has
D C LIQUOR WHOLESALERS 1239
been engaged in wholesale sale, distribution, and ware
housing of liquor, wine and related products During the
past 12 months prior to the issuance of the complaint
Respondent Beitzell, in the course and conduct of its
business operations, purchased and received at its Dis
trict of Columbia facility products goods and materials
valued in excess of $50,000 directly from points located
outside the District of Columbia Respondent Beitzell is
now, and has been at all times material, an employer en
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
II LABOR ORGANIZATION
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No 639 (the Union) is now, and has been at all times
material, a labor organization within the meaning of Sec
tion 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
Under a series of 3 year term collective bargaining
agreements negotiated through the Association, the
Union had represented the employees of Respondents
Washington, Beitzell , and Forman/Leon s and the em
ployees of Milton S Kronheim & Co (an employer en
gaged in the same business in the District) and other
similar employers who have since departed the District
The term of the last contract expired February 28 1987
Kronheim participated in the negotiation of the 1984
contract either as a member of the Association or as a
cobargainer nonmember In 1987, Kronheim bargained
separately with the Union for a succeeding contract
while the three Respondent Employers adhered to Asso
ciation bargaining Precontract settlement strikes have
occurred in 1975 and 1984 The former lasted only 7
days, but the 1984 strike against all Association members
endured for 7 weeks and ended with the Union s agree
ments to requested concessions on the threat of hiring re
placements, primarily with respect to caseload and two
tier wage system employer proposals, and secondarily re
ductions or elimination of certain benefits The caseload
issue arose from Respondents objective to remove previ
ously agreed on restrictions as to the numbers of cases
loaded on the truck a driver was obliged to deliver unas
listed by a helper The 1981-1984 contract prescribed a
minimum of 30 cases considered by the Respondents to
result in an obligatory helper assignment in virtually all
deliveries After the strike, the Union agreed to increase
the caseload minimum to 150 cases per truck and it also
agreed to the initiation of a two tier wage structure
whereby newly hired employees were paid pursuant to a
lower scale of wages
Phil Feaster the 1984 chief union negotiator and union
president, testified credibly without contradiction, that,
on finalization of the 1984 contract, Association Negotia
tor Benjamin Goldman its counsel here stated to Feast
er Phil, I can't believe you all gave up so much But
you got me the last time The next time will be your
time
B The 1987 Negotiations
1 Meeting-January 21
Business Agent Ronald Ross led the Union s negotiat
ing team of shop stewards Ronald Thomas, Clarence
Blaylock, and James Davis Respondents' chief negotia
tor, Attorney Ronald Tisch was assisted by a representa
tive of each Employer-Forman Vice President Harold
Munter, Beitzell Secretary Treasurer J W Colson, and
Washington Vice President Raymond Gold The union
headquarters provided the site of the first session and
several thereafter The meeting was initiated by Tisch s
opening remarks Tisch asserted that the industry had
been adversely impacted by the reversal in consumption
trends between spirits and wine, i e the consumption of
less profitable wine was displacing the former higher
spirits sales Thus, although the bulk delivery did not de
crease because of the replacement of spirits by wine
products, the latter was less profitable and caused an un
specified decline in general profits Tisch testified with
out contradiction and corroborated by Munter, that he
provided Ross with data revealing consumption levels
for 1970 through 1985 with predicted future delivery
levels through the coming 5 years Ross testified that
such a statement was common to prior negotiations, but
he did not challenge it, and concessionary bargaining had
been the thrust of the last 1984 negotiations Ross testi
fled that he responded that the employees expect their
negotiators not only to reject a wage cut, but also to
obtain some increases Ross testified that in his opening
remarks he stated that the Union's position was that all
1984 concessions be restored Despite his preference to
exchange simultaneous proposals, Ross acceded to
Tisch s insistent request that the Union first submit a
written proposal He did so by photocopying a working
draft paper, which he gave to Tisch because Tisch
wanted to have some idea of the Union s demands and
its "real concerns Ross further identified the Union s
"real concerns as the caseload and two tier pay scale
issues, and the vacation benefit package as a somewhat
less priority issue The draft proposal called for the
elimination of the two tier system and the 150 caseload
minimum obtained by the Association in 1984 An
agenda of meeting dates was arranged and it was agreed
that the hard economic issues, i e , wages, would be de
ferred to the end of negotiations as was done in 1984
when wages were deferred to the eleventh hour
According to Tisch Ross stated that there would be
no contract if the Association insisted on retention of
the 1984 two tier pay system and caseload helper conces
sions, and that there was no way that he would agree
to continue a two tier system Recourse to his notes
prompted Tisch's testimony that Ross characterized the
load issue as a `strike issue' Munter and Gold recalled
that Ross characterized both issues as ` strike issues
Gold added that Ross also characterized them as non
negotiable issues Ross did not explicitly contradict
Tisch Munter and Gold
Tisch requested a copy of the Union s health and wel
fare plan and pension plan inasmuch as the Association
was considering proposing an alternative less costly plan
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The union plan is jointly administered by Employer and
union representatives Tisch suggested that a drug testing
program be discussed dunng negotiations In direct ex
amination, Ross merely testified that during the course of
negotiations he only referred to two items as nonnegotia
ble, i e, at random drug testing and the contribution
costs necessary to maintain level 4 benefits of the Team
stern health and welfare plan, which are determined by a
joint Employer union trustee Ross did not testify as to
the substance of this meeting I credit the more detailed
and certain testimony of Munster Gold, and Tisch
2 Second meeting-January 26
Because of a 15 inch snowfall only Tisch Colson and
Ross attended the brief January 26 meeting at the
Union s office Ross gave Tisch descriptive booklets of
the Union s health and welfare plan and pension plan,
which at the time he thought were current with respect
to the benefit levels He also submitted a Teamsters pro
totype drug testing program Ross testified that he also
outlined the prospective target rates for the current
and coming 3 years and pursuant to his erroneous as
sumption of how the trust fund operated, he told Tisch
that he was locked into' those numbers, i e , the sub
stantially increased costs needed to maintain the same
level of benefit for the health and welfare fund Tisch
and Colson testified without clear contradiction that
Ross stated that there was nothing he could do about it
and that the current benefit level had to be maintained,
and that the two tier system and load limit were strike
issues It is conceded that the Union could have negotiat
ed that the collective bargaining agreement incorporate
actual costs from year to year, rather than projected
costs Respondents however made no proposal to incor
porate actual yearly costs to be adjusted annually
Tisch and Colson testified that Ross stated that he could
accept the pre 1984 30 case nonhelper (solo driver) load
limit but that anything up to the post 1984 150 case
limit would result in a strike Ross recollection of this
meeting was extremely weak and uncertain He could
not recall any reference to strike issue characterizations
on 26 January but conceded that he had done so later
on probably at the next meeting Ross did deny the testi
mony of Tisch and Colson with respect to the caseload
issue i e, that any Employer arguments may just as well
be addressed to his self photograph which hung on the
wall in that conference room Tisch testified credibly
and without clear, explicit contradiction that in response
to Ross statements of adamancy that the Association
would have to make preparations to protect itself to
which Ross retorted, I respect your right to protect
yourself for what s coming
3 Third meeting-January 28
At this meeting all negotiators met at the Union s
office where written proposals were formally exchanged,
reviewed and discussed in a full day s session The
Union s formal proposal was virtually identical to the
draft that Ross had tendered to Tisch on January 21
Essentially the Union s proposal reflected an attempt to
recoup important 1984 concessions most particularly
with respect to the two tier pay system and caseload
helper requirement but also with respect to certain bene
fits A $1 50 per hour wage increase was sought for each
year of the 3 year contract which was immediately char
acterized by the Association as an insult
The Association proposal deferred wages to a subse
quent session It incorporated a proviso that managerial
assignment of helpers be totally discretionary a drug
testing program reductions in rate of pay for casual em
ployees and further reduction in several benefits
Ross admitted in cross examination that he stated at
this session that the two tier pay issue and the caseload
issue are a strike issue and if the Association sought to
exceed a more than 30 caseload delivery nonhelper (solo
driver) limit then the Union would have to fight and
that if the Association demand has to be for 50 cases or
more, then we can take it right off the table now Ross
explained that although the union demands as to vaca
tions and holidays were biggies, they were not of the
same intensity as for caseload and two tier Ross ac
knowledged that his notes reflected Tisch s statement
that the Association considered itself boxed in by the
union proposals With respect to the health and welfare
plan and pension plan, the Association proposed to sub
sequently submit alternative plans following its review of
suitable possibilities With respect to an alternative to the
current Teamsters pension plan Ross said the Union s
position was a hard no
Ross also testified credibly, without effective contra
diction, that Tisch said that the Associations proposal
was just its opening proposal i e that it would be subse
quently negotiated but that because of general economic
adversity which caused several competitors to go out of
business over the years the Association must look
down the road ' for cutbacks Munter confirmed that,
at least with respect to the solo driver caseload issue
Tisch characterized it as a big problem but that it was
merely the Associations opening position on which it
was flexible
Tisch testified that at the conclusion of the meeting
Ross stated that the two tier pay system the minimum
caseload helper requirement, and the acceptance of the
increases in the 1984 agreed on class 4 level health and
welfare plan were non negotiable strike issues and
that there was no chance of the Union s agreement to
agree to the somewhat less costly class 3 level of the
same plan According to Tisch, Ross did state that he
would consider a less costly health plan for new hires
Munter testified that he asked Ross to define strike
issue, and that Ross explained that it meant that it is
non negotiable i e specifically the two tier wage
structure and the maximum solo driver caseload helper
issue According to Munter Ross further explained that
the Union wanted restoration of the 1984 concessions
and that any alternative health and welfare plan must be
as good as the existing class 4 coverage In the
course of this explanation, according to Munter s testi
mony Ross referred to the 1984 strike which had
become progressively longer than past strikes as an indi
cation of a toughening management stance and that if
the company has to brace itself we understand ' Ross
D C LIQUOR WHOLESALERS 1241
did not deny this statement, but merely claimed a lack of
recollection but conceded its possibility
Ross testified, I don t think at no point, I said we
would strike if we did not have class 4 benefits' He
denied that he set a deadline for a strike for the accept
ance of any proposal and gave his definition of a strike
issue, i e one of such significance as to warrant a strike
in the event of nonagreement He did not clearly testify
as to whether he explicitly defined that phrase in negoti
ations He admitted that he stated in negotiations that
unlike prior union negotiations, he was going to be up
front and not wait until the contract expired to identify
a strike issue He denied that he defined a strike issue to
be non negotiable or that he said that there was no
chance of acceptance of less than class 4 level of health
and welfare plan benefits He testified that he considered
that a strike issue might lose its status as such, dependent
on subsequent bargaining, but he admitted that he did
not state this understanding in those precise words at the
negotiations Unlike Tisch and particularly Munter, Ross
did not testify with any detail as to what was discussed
nor what he did say nor did he give context for his de
nials, which I find I cannot credit
4 Fourth meeting-February 4
At' this full session, in depth discussion dealt with vari
ous issues, including the definition of grounds for dis
charge, retention of seniority rights on shift transfer as
signment of regular employees to position vacancies, the
prorating of sick leave, reporting time, funeral leave sick
leave daily overtime and caseload Virtually no agree
ment was reached
During the discussion a reference was made to the
two tier wage system Ross admitted that, when Munter
suggested that retention of the two tier system be accept
ed as a means of helping the Association save money, he
responded, No two tiered is a strike issue Ross fur
ther admitted that with respect to a proposed tradeoff in
corporating the elimination of daily overtime he re
sponded that he had no intention to concede the daily
overtime issue
Munter testified that with respect to a reference to the
two tier wage structure as related to its impact on the
employment of casual employees Ross stated there
will not be a two tier wage structure Ross did not con
tradict him
5 Fifth meeting-February 6
Ross testified that Tisch accused the unit employees of
warning the customers that there would be a strike Ac
cording to Ross, he denied the accusation and, in turn
accused the Association members of historically whip
ping up a frenzied spurt in sales by circulating such
rumors He conceded that in order to quell customer
fears Tisch proposed and he agreed to the publication of
a joint statement to the customers wherein they were to
be advised that the parties were far apart but were
bargaining in good faith and desired a contractual agree
ment and that Tisch proceeded to draft a statement a
copy of which was not shown nor given to him
The Association did distribute a written message to its
members customers which, however, not only contained
that message but also the statement
In fact the Union has vowed to strike us if it does
not win back key concessions it gave up three years
ago
It also advised the customer to plan accordingly That
the purpose of such a statement was to squelch any
strike rumors, as testified to by Tisch, is patently disin
genuous The clear purpose of such a message was quite
the opposite Moreover Ross denied that he had given
prior approval to any language suggesting that the Union
had vowed to strike Colson testified that the parties
agreed to come up with some sort of statement which
was drafted separately in subsequent caucus and which
was presented to the Union he believed, at a subsequent
session He did not describe on what language the Union
agreed Even Munter in cross examination, declined to
accept Tisch s characterization of the purpose of the
message Munter in direct examination described it as a
status report Further Munter also declined to testify of
firmatively that the Union had approved of the verbage
as Tisch had testified In his testimony, Munter corrobo
rated Ross not Tisch I credit Ross version of the cus
tomer message colloquy
At this meeting a wide variety of nonwage issues were
discussed and proposals exchanged in a full day session
at which only a few minor agreements were reached
With respect to a discussion of the caseload helper issue,
according to Munter and Colson, Tisch begged Ross
not to strike over that issue Munter testified that Tisch
set forth a series of factors which caused an increase of
costs and/or actual or potential loss of sales of some of
the Association members products Munter, corroborat
ed by Tisch and somewhat by Colson testified that in a
colloquy with Ross on the helper issue on a negative re
sponse to a suggested approach he asked Ross Is this a
principle with you guys that you re saying that a man
should not go out [on delivery] solo [without a helper],
or is it a problem that we can resolve? He testified that
Ross responded ` It s a principle and it s a problem
Tisch however, testified, with respect to the caseload
helper issue in his response to Munter Ross answered
that he could not see his way clear on it, and that
when Tisch begged him to do so Ross replied,
You re beating a dead horse there s nothing we can do
about this Tisch testified also that during the Ross
Munter colloquy Ross stated No we cant compro
mise on this issue
As with many of the early bargaining sessions after
January 26 Ross did not testify in direct examination
with respect to the February 6 meeting On cross exami
nation , he conceded in his slow uncertain vague recol
lection that the general discussion was as testified to by
Respondents witnesses He denied that he said there
would be no contract unless the Union prevailed on the
caseload helper issue He testified that when asked by
Munter whether he would compromise, he responded
that there was a caseload number he could live with
but that Tisch interjected that the number in mind was
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the 30 case maximum solo driver load (i e in effect a
helper on all loads) and that he answered that yes, that
30 was the figure Ross admitted that when asked by
Munter he answered that the caseload helper require
ment was a matter of principle as well as a problem
He gave no further contradiction nor elucidation of this
meeting Because of the more detailed and certain testa
mony of Respondents corroborated witnesses particu
larly Munter, I must credit them
6 Preparation of hiring replacement employees
Robert D Arscott, a witness who was called by the
General Counsel and whom I credit, testified to the fol
lowing sequence of events Arscott is president of an en
terprise titled, Sting Security which provides security
and investigation services and which also engages in the
procurement, investigation and hiring of employees
Sometime during the first week of February, he was con
tacted by and met with a Joe Peters of Respondent
Forman Peters told Arscott of an ongoing labor dis
pute and of the possibility of a strike and that tempo
rary employees might be needed and he solicited infor
matron as to the nature of services Sting might provide
On about February 9, Tisch telephoned Arscott and
arranged a subsequent meeting with him, held on Febru
ary 10 in the afternoon Present with Tisch was his
junior associate Attorney Scharman who was later
joined by Munter A contract for Stings services was
agreed on that afternoon and subsequently executed by
the Association members on February 10 The services
Sting agreed to provide were the recruitment, interview
ing and hiring of temporary replacement employees in
the eventuality of a walkout Thereafter, Arscott solicit
ed employment applications for drivers and warehouse
men through blind (anonymous) newspaper advertise
ments on February 15-18 The driver wage rate offered
of $8 per hour was stated pursuant to Munter s instruc
tion The phraseology of the advertisement was left to
Arscott s discretion The pending Association proposal
for new hire wage rate was 65 percent of the incumbent
driver rate which then was $11 87, i e , $7 27 per hour
7 Sixth meeting-February 11
Another full day (9 a in to 5 p m) negotiation session
was held at which proposals were exchanged discussed
and some agreed to be disposed of in a side letter or
agreed to in whole or in part including the acceptance
of the Union s proposal for political action committee
checkoff contributions known as DRIVE the union pro
posal regarding redeliveries which was referred to a side
letter for subsequent language drafting, the union funeral
leave proposed for extension to nonparents withdrawal
of pay period change proposed by Union and other
minor items Discussion, but no agreement also encom
passed the other proposals of which were included the
union proposal with respect to litigation of the grounds
for immediate discharge the Association drug testing
proposal that had been agreed to by the Union in con
cept only, and the minimum caseload helper requirement
issue
Colson, corroborated by Munter, testified that at the
end of the meeting the following sequence occurred
Ross took in hand the Associations written proposal and
stated, See this9 There aren t going to be any changes
in this ever Union Negotiator Davis interjected and ap
parently tried to correct Ross by stating You mean
many [changes] Ross appeared to start to agree but
checked himself and said, No, I said any Tisch s
recollection was at variance i e , Ross allegedly stated
111 not agree to anything in your proposal except some
thing we would work out on drug testing, 111 agree to
nothing else Tisch's bargaining notes mirror his testa
mony except that he originally wrote we will not make
many changes ever and crossed out many to insert
any In testimony he insisted that Ross had said any
changes but he could not explain the altered notes
Munter s notes had the following reference Ross Don t
expect to see any/many? changes ever Munter ex
plained that Ross stated any and that on Davis inter
jection, which suggested many Ross first agreed, and
then Munter wrote the entry as many Then Ross
stated No I mean any Therefore Munter expiained
he wrote any over the many Munter s demeanor re
vealed certitude and conviction His testimony was de
tailed and highly responsive Colson s notes had no refer
ence to the statement
In Ross only testimony as to this meeting given in
cross examination he denied the foregoing, that he made
any statement to the effect that he was not going to
agree to any changes in the company s proposals With
respect to the alleged statement regarding contract expi
ration, Ross testified No I don t think I said that He
thought he may have made some such statement in the
context of a reference to health and welfare benefits
Neither Davis nor any other witness was called to cor
roborate Ross denials Ross testimony as to this meeting
was limited in nature and not detailed His demeanor re
vealed a hesitancy uncertainty, and lack of conviction I
must credit Respondents witnesses
Respondents argue that after February 11 the Union
did not agree to any futher proposals as set forth in the
written document referred to by Ross on that date The
General Counsel argues that in subsequent sessions the
Union did change its position to accommodate Associa
tion counterproposals which however were not con
tamed in the earlier written Association proposal
8 Seventh meeting-February 12
This meeting was held at Tisch s office All negotia
tors were present at the session which lasted from 1 p in
to 4 or 5 p in Nonhardcore economic issues were dis
cussed and proposals exchanged for subjects including
the replacement of discharged employees the Union's
proposal for elimination of mandatory overtime the se
niority status for incapacitated employees, duration of
the probationary period that the Association had asked
to be extended but had now modified to a lesser period,
the Associations proposal for reduced sick leave as
modified from its original request and guidelines for dis
charge criteria, particularly as to nonjob related conduct
that the Union agreed should be irrelevant
D C LIQUOR WHOLESALERS 1243
Ross testified that around the 11th, 12th meeting
period he engaged in a private conversation with Tisch
alone, away from the bargaining table in a hallway out
side the meeting room in which Tisch answered his ques
tion as to why there was no further progress with an as
surance that everything is going to be all right and
asked for patience Tisch in generalized testimony
denied having had any private side bar conversations
with Ross prior to a later one on February 25 regarding
procedural matters
In cross examination, Ross doggedly adhered to his ac
count of this side bar meeting He explained, without
contradiction that in past negotiations such frank private
conversations between chief negotiators out of earshot of
their constituents were accepted and common procedure
often resorted to for the purpose of cutting across cus
tomary and accepted posturing He was certain and con
fident in his recollection Most significant however is
the testimony of Colson regarding a side bar conversa
tion between Ross and Tisch which he overheard at the
February 17 meeting wherein Ross similarly tried to as
suage an impatient Tisch by answering him that he too
had to work with his guys and that he also was
trying to soften their position Such verbiage clearly im
plies a reference to similar earlier statements by Tisch I
therefore credit Ross
9 Eighth meeting-February 17
Another full day bargaining session was held at the
union offices Essentially noncore economic issues but
also some secondary economic or economic related
issues were discussed and proposals were exchanged
e g a variety of proposals were exchanged on the leave
of absence limitation period a mutual withdrawal of the
union nonmandatory overtime proposal and the Associa
tion elimination of a 40 hour workweek guarantee ad
vanced by the Association, an Association proposal for
mutual withdrawal of the union request for a nonafter
dark delivery driver obligation and the Association pro
posed deletions of the current business transfer provision
(which was accepted) the unilateral modification of the
Association proposal to reduce the current proviso as to
doubletime pay for Saturdays and Sundays by limiting it
to replacement holidays the replacement of employ
ees i e, the period of time to be effectuated and circum
stances of replacement by either a casual or regular full
time employee the Associations reduction of its origi
nally requested 90 day probation period to 45 days plus
15 more if needed (a second such reduction) the Union s
suggestion of mutual deletion of mandatory overtime ref
erences, i e continuation of the current contract, and the
40 hour workweek guarantee
Discussion was addressed to the issue of mandatory
overtime elimination and the funeral leave enhancement
proposed by the Union With respect to the pension cov
erage, Tisch testified that in response to his question
Ross stated that he could not live with the freezing of
the pension contribution at the current level Ross did
not recall discussing either the pension plan or the health
and welfare plan despite the fact that his bargaining
notes indicate some reference to these issues in discussing
the Associations response to union proposals I credit
the more certain testimony of Tisch
Further arguments were made with respect to the two
tier rate of pay system Tisch testified that Ross had been
so persistent on seeking its removal that after a morning
caucus Tisch tried to smoke him out by interjecting a
more direct economic issue whereby he offered to in
crease the newly hired employee wage rate percentage
from the initially proposed 65 percent of current incum
bent rate to that of 75 percent Tisch testified that he
wanted to see if Ross would take the bait and agree to
live with current levels, 75, 85, 95 percent He de
scribed the offer of 75 percent as a negotiating ploy to
see how [Ross] would react to that Ross was adamant
Tisch denied that it had any relationship to the Associa
tion s employment advertisements i e , it was not inter
jected into apparently unrelated issue discussions merely
to conform Respondents new hire rate offer with the
higher advertised rate
Also admittedly discussed were the Associations pro
posal to reduce the 6 or 7 hours guaranteed minimum
pay for Saturday and Sunday to 4 hours which it with
drew on February 17 Further discussed was the Union s
request for a uniform starting time that the Association
had calculated would increase its operating costs The
parties further argued that the Union s proposal to
remove the restriction on use of a personal leave day
that the Association contended would open the possibili
ty of very short workweeks during holiday season that
would also impinge on its operational efficiency and re
quire the payment of not only holiday pay but also
doubletime for the personal leave taken concurrently in
the same week
During the lunch recess of the meeting Tisch s junior
associate, Clifford Scharman arrived and met with Ross
for several purposes one of which was to submit to him
the Associations initial proposal for an alternative health
and welfare benefit package that had been devised by the
Associations specially hired consultant Scharman testi
feed that the incumbent Teamsters plan administrator
had supplied him with a booklet describing the pension
plan and he had sent it to the consultant who in turn
had requested further actuarial information as to the
beneficiaries i e age years of credit service date of par
ticipation, divesting percentage monthly accrued benefit
and existence of surviving dependent Scharman testified
that on February 11 he had attempted to obtain the in
formation from the administrator of the incumbent plan
who deferred a response pending consultation with the
trustees The administrator also expressed a possible con
fidentiality problem Scharman testified that shortly
thereafter he told Ross that he needed the information
that could be expunged of personal identities to avoid
confidentiality objections and asked Ross for his help
but that Ross answered that he was aware of no union
officials who had that type of information He testified
nevertheless, that Ross agreed to request it from Phil
Feaster, the union president who is also the president of
the board of pension fund trustees Ross recollection of
his dealings with Scharman was vague and uncertain He
recalled that Scharman had requested information
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
around February 11 or 12 and that subsequently he did
receive the alternative Association health and welfare
plan proposal He recalled that Scharman stated that the
Association was shopping for a pension plan and
needed certain beneficiary information to devise a pro
posed alternative plan He conceded that he assured
either Tisch or Scharman that he would help in obtain
ing information Ross testified that he relayed the request
to Feaster who responded that Scharman and the Asso
ciation knew well enough how to obtain that information
directly from the plan without the Unions help Ross
response to the request was made at a subsequent meet
ing
Colson testified without corroboration, but without
contradiction to the following conversation between
Ross and Tisch at the February 17 meeting In response
to the numerous responses of no change that Ross had
been uttering regarding the critical issues, Tisch retorted
Give us something we can work with tell us what the
problems are let s have more communication here so we
can work together to get things solved At that point or
shortly after Ross spoke to Tisch in a private conversa
tion wherein Ross told Tisch not to get upset, and
that he was trying to work with his guys too, that it
warn t that easy to get them to change on some
ideas also Thus according to this significant credible
testimony of Respondents witness, Ross had revealed to
the Association his posturings of adamancy were made in
deference to his constituency and implied that real flexi
bility existed and concessions may come but not without
tedious patient bargaining and responsible leadership by
the chief negotiators
10 Ninth meeting-February 18
At Tisch s request this meeting was held at the offices
of the Federal Mediation and Conciliation Services
(FMCS) It started at or about 9 a in and evolved into
another full negotiation session and ended at or about 6
p in At least one half if not most of the time was spent
in face to face negotiations during which proposals were
exchanged on such issues as holiday pay eligibility new
employee probationary period preservation of unit
work holidays substitute holiday leave and daily and
mandatory overtime When not meeting face to face the
parties were caucusing The Federal mediator had not as
yet become involved
Agreement had been reached on funeral leave by the
Associations acceptance of modification requested by
the Union With the modification the Union accepted the
Association proposal Agreement was reached on the As
sociation s response to a union proposal on the employee
replacement issue A side letter agreement was reached
with respect to the redelivery afterdark issue The Asso
ciation proposed to withdraw its request for deletion of
the article XXIII incumbent contract prohibition on su
pervisory and salesperson performance of bargaining unit
work in return for the agreement to continue past prac
tice A great portion of the time spent by the parties was
expended in attempting to lump issues together and
trade off for what they could withdraw or agree to
Tisch described a random drug testing program uti
lized in the railroad industry Ultimately agreement was
reached on a random drug testing system With respect
to the Associations request for employees to give back
certain holidays, it offered to withdraw its give back re
quest in return for the managerial option to substitute
those holidays with other days because of workload or
delivery requirements The Association offered to with
draw certain proposed changes to the managerial rights
clause in return for the Union s withdrawal of its request
for a no mandatory overtime proviso The Union accept
ed on condition that the Association agrees to an addi
tional withdrawal of its proposal regarding obligatory
weekend overtime
Ross testified credibly that as of February 18, agree
ment by acceptance concession or withdrawal had been
reached on the following items of the Union s 22 propos
als 1(a) seniority re shift bid transfer 1(b) employee re
placement 5 pay period, 6 Paid for times 8 restric
tions on redeliveries 9 proposed removal of limitation on
certain leave of absence duration, 11 proposed extension
of funeral leave 12 proposed night delivery prohibitions
18 duration of contract and 22 Association contribution
to DRIVE (apac)
Left in dispute were the following union proposals 2
sick leave proration and payment on termination, 3
workweek (mandatory overtime prohibition), 4 proba
tionary and casual employee shift determination and pro
posed wage increase 7 criteria for discharge (called the
seven cardinal sins ) restricted solely to on duty con
duct, 10 additional two holidays and eligibility interpre
tation, 13 maintenance of current level health and we]
fare benefit plan 14 20 cent per hour pension fund con
tributions increase for each contract year 15 wage in
crease of $1 50 per hour for each of 3 years 16 increase
of legal aid cost contribution to 5 cents per hour 17 inter
alia elimination of the use of a single driver for any de
livery and deletion of the current maximum caseload for
a solo driver assignment 19 addition of job descriptions
20 a deletion of the restriction on a personal day in
September and 21 a probation on the split workweek
and institution of a uniform starting time
With respect to the Associations proposals Ross cre
dibly testified that as of February 18 there was an agree
ment, concessions or withdrawal on the following of the
Associations 20 proposals 1 deletion of checker from
the unit description 2 deletion on the transfer of business
proviso 4 reduction of seniority retention for sick em
ployees from 3 to 1 year 6 language change regarding
sick leave 7(b) reduction on guaranteed time for week
end reporting to 4 hours 7(d) reduction of Sunday and
holiday overtime pay rate from double to half time 9(a)
increase from 9 to 12 months the duration effect of a
warning notice and reduction from 4 to 3 warnings to
warrant a discharge of suspension 11 suspension without
bumping privileges on driving license suspension or rev
ocation 12 reduction of maximum permissable leave of
absence from 12 to 9 years 14 a funeral pay limit to 3
days and 17(b) minor language change in management
rights clause
Of those unresoh ed Association proposals Ross listed
the following 3 the probation period increase to 90 days
5 elimination of the guarantee of 40 hours weekly em
D C LIQUOR WHOLESALERS 1245
ployment 6(a) concession of crediting unused sick leave
at the beginning of each year, 6(b) reduction of sick
leave entitlement to 8 days from 12 6(c) accumulation of
sick leave to 18 days from 11 days ( in lieu of nonyearly
carryover), 7(a) elimination of daily overtime in return
for only that in excess of 40 hours per week 7(c) manda
tory weekend overtime, 8 elimination of daily overtime
compensation for casual (extra) employees and the reduc
tion of this rate from $8 50 to $6 50 per hour as original
ly proposed, 9(b) a mandatory drug testing program
(agreed to by the Union if randomly applied but actually
resolved by a side letter on February 25 according to
Ross) 10 removal on prohibitions of unit work by super
visors and salespersons, 13(a) elimination of four holi
days 13(b) a 20 year instead of a 14 year employment re
quirement to a fourth week of paid vacation entitlement,
and a 10 year instead of a 50 year requirement for a third
such week, 15 an alternative health and welfare plan 16
an alternative to the incumbent pension plan 17(a) dele
tion of the limitation of managements disciplinary rights
to periods exclusive of Saturdays, Sundays and holidays
18(a) wages as yet not proposed 18(b) a reduction of the
$1 08 per hour night differential pay to 88 cents, 18(c)
new hire rate originally proposed as 65 percent of the
current contract rate but, as seen above, subsequently in
creased according to the General Counsel for ulterior
motives, 19 elimination of legal aid benefits, and 20 the
elimination of any requirement for helpers assigned to
truck except on the discretion of management
11 Tenth meeting-February 25
This meeting commenced the final trilogy of sessions
during the final week of the expiring contract Again a
full day of direct face to face bargaining transpired Ini
tially Ross testified that at some meeting prior to Febru
ary 27 he again approached Tisch alone in the hallway
but this time at the FMCS offices, and asked him when
the Associations wage proposal would be submitted and
he was told to be patient and that everything is going
to be all right His notes are silent on this private con
versation as also are four affidavits he had submitted
during the Board investigation In cross examination
Ross testified that this occurred at the meeting of Febru
ary 25 When asked, he failed to give a cogent explana
tion as to why he made a private wage proposal request
rather than a public one at the bargaining table itself
Concededly no request for an Association wage propos
al was then made at the bargaining table Ross conceded
that on Feburary 25 the parties continually sat at the
table made proposals and counterproposals and tie ins,
but caucused for very short periods of time, to try and
wrap up most of the contract language He admitted
that near the end of negotiations that day he stated that
he had a little flexibility on holidays and vacations, and
some but not much flexibility on the health and wel
fare plan With respect to a proposed alternative pension
plan Ross also testified in cross examination that he had
some questions to ask in the event that one was pro
posed, i e specific application problems Ross conceded
that early in negotiations it had been agreed to defer
wage proposals to the end and that he was surprised
when a new hire rate was proposed on February 17 He
conceded that the negotiation on February 25 consisted
of trading on non economic issues so we could try and
get them off the table or agreeing to noneconomic
issues A result of this effort is that a mutual withdraw
al and reversion to the incumbent contract was agreed
on with respect to the Associations proposals 3 (90 day
probation), 5 (guaranteed 40 hour week) 7(c) (weekend
overtime) 9(b) (mandatory drug testing) 10 (nonunit
working supervisors and salespersons), 17(a) (disciplinary
rights as to weekend conduct) and the Union s proposals
3(b) (nonmandatory overtime) 7 (limitation of discharge
criteria to on duty conduct) 17(b) (nonassignment of
truck maintenance to the driver) 19 (job description),
and 21 (prohibition on split workweek and starting
times)
Ross testified in cross examination that despite the
tradeoff not all language matters were resolved prior
to February 27 and that the agreed bargaining agenda
was to defer wage proposals until completion of agree
ment on all language I do not credit Ross that he pri
vately pressed Tisch for a specific wage proposal on
February 25 In any event it is clear from all accounts
that on February 25 all parties agreed that hard core
economic issues be deferred, i e, wages caseload helper
requirement and contribution rates for the health and
welfare plan and the pension plans There is a dispute as
to whether Tisch stated, as he and other witnesses with
less certainty testified that the Association would be
looking for substantial wage cuts Ross did not recall
it Clearly even had he said it Tisch gave no indication
of what the Association considered to be substantial
Nor could he have done so, because as Tisch conceded
in cross examination, the Association had not arrived at
any proposed figure Despite his earlier testimony as an
adverse witness to the effect that he believed Tisch s re
marks at the January 21 meeting conveyed the mes
sage of a wage cut objective Munter admitted in cross
examination as a Respondent witness that at the outset
of negotiations on January 21, the Association had not
even conceptualized any intent to obtain wage conces
sions for current employees but rather entertained a
broad objective of obtaining concessions generally-
someth ing that would cost the companies less money
overall He testified that the very decision to ask
for a wage concession for current employees was made
on February 27 although he claimed vaguely it had ear
her become apparent as a likely objective Munter testi
fled that nonwage issue concessions were looked to by
him at least if not by a formal Association consensus, as
a possible cost savings that would have voided the bar
gaining objective of a current employee wage cut, i e,
reduction of health benefits and a 3 year or more freeze
on benefit plan contributions, or an alternative less costly
plan that did not entail the same spiraling health care
costs, elimination of holidays sick leave benefit curtail
ment legal aid contribution reduction etc With respect
to the union demands for a low helper/load ratio it
would have obliged his business to assign more helpers
on deliveries He estimated the total hourly costs, includ
ing wages and benefits for a driver, were $28 and $16 to
$18 for a helper Thus an elimination of or a reduction in
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the use of a helper would have netted a significant cost
savings Munter admitted, however that neither when it
submitted its January 28 proposals nor thereafter did the
Association present the Union with a statement of cost
savings that its proposals would effectuate Further, he
admitted that at no point prior to February 27 did the
Association establish an objective as to how much
money it wanted to save per man hour, nor did it estab
lish how much it wanted to save per contract year nor
did it fix in specific terms its objective cost savings He
admitted that it was not expected that the Union would
have accepted the Associations initial proposal but that
prior to February 27 the Association had never deter
mined its own bottom line as to its cost savings objec
tive Munter stated
I knew the cost savings involved in certain ele
ments, but I didn't attempt to calculate the entire
cost savings So, there wasn t-hypothetically, there
wasn t an effort to effect a cost savings worth $5
per man hour and then, now figure out how we
achieve that Let s do this and this and this
Even on the 27th [of February]
Clearly according to Munter s own testimony the As
sociation entertained only a vague, unspecified inchoate
cost savings bargaining objective that had, as of Febru
ary 25, not resolved itself into a decision to make a cur
rent employee wage cut or objective Tisch s testimony,
although corroborated by the weak uncertain, hesitant
testimony of Colson and Munter cannot be credited to
the extent that he clearly announced substantial wage
cuts as the Association bargaining goal on February 25
Also discussed at the February 25 meeting was the Re
spondents health and welfare plan and pension plan pro
posals Tisch solicited the Union s reaction to the health
and welfare plan alternative he had submitted to it earli
er Ross rejected it The alternative health and welfare
benefits plan had been crafted to parallel the benefits
provided by level 4 of the incumbent plan However the
benefits of level 4 of that plan had been changed i e in
creased by action of the plan s joint board of trustees on
January 7 effective retroactive to January 1 i e , pay
ments to beneficiaries were increased The alternative
plan was premised on the old pre January 1 benefit level
and was not comparable and thus rendered inoperative
By March 1 all participants would have become notified
of the changes Tisch expressed his exasperation to Ross
for the wasted effort expended in the alternative health
plan Ross testified that he had not become aware of the
changes until on or about January 19 or 20 but took no
steps to advise Tisch or Scharman until January 25
when he gave Tisch the new benefit levels
Next at the meeting Tisch referred to the Associa
tion's interest in devising a less costly but comparable al
ternative pension plan and he explained that it was meet
ing reluctance from the administrator of the plan to its
request for necessary actuarial data Tisch asked Ross for
his assistance Ross said he had no access to that data
Tisch asked Ross to ask Feaster (who was trustee presi
dent) for assistance in obtaining the data and Ross prom
ised to do so Tisch then made reference to the pension
plan incorporated into the profit sharing plan maintained
as part of a bargaining agreement between non Associa
tion member Kronheim and the Union covering its driv
ers Ross claimed that he had no copy of it despite its
incorporation by reference to the labor agreement, but
he promised to look for it
Tisch testified that in relation to the pension actuarial
data request Ross stated that he had no intention of
withdrawing from the Teamsters pension plan Tisch s
bargaining notes reflect a somewhat different statement
attributed to Ross
Even if you come up w/a profit sharing program
we wouldn t accept
The notes do not reflect an absolute refusal to consider
any other kind of pension plan as an alternative to the
Teamsters plan Munter s recollection of the pension
issue discussion did not allude to such statement Instead
he recalled and his notes reflected, that although Ross
expressed a lack of understanding of what kind of alter
native pension plan was being proposed he raised par
ticular questions about its operations This recollection
does not suggest an image of the quick dismissal of the
subject as narrated by Tisch Furthermore Munter s
notes reflect that Ross stated with respect to the health
and welfare issue that he had some flexibility but not
much Colson s bargaining notes also fail to corroborate
Tisch Instead they reflect the entry attributing to Ross
the statement
I don't think my guys would go for a profit sharing
plan
Colson s testimony did not corrobrate Tisch I credit
Ross denial of Tisch s attribution of fixed adamancy and
dismissal of any consideration of an alternative pension
plan
12 Eleventh meeting-February 26
This bargaining session was held again at the offices of
the FMCS and was the first occasion that Federal Medi
ator Charles Scott became involved It lasted from about
9 30 am to about 5 or 6 p in In addition Attorney
Scharman attended with the Association team
In response to Tisch s inquiry Ross told him that
Feaster s response to the request for pension fund data
assistance was a refusal, and also that the Union had no
copy of the Kronheim plan Tisch complained that with
out the requested data from the Teamsters pension fund
trustees he was unable to devise an alternative plan
Scharman testified that shortly after February 19 he was
notified by the Teamsters pension fund administrator that
the trustees had instructed her not to authorize release of
the information He admitted that he did not directly
convey to the administrator the fact that he would have
accepted the information expunged of beneficiary identi
ty but instead had relied solely on Ross to do so pursu
ant to his request of him in their earlier side bar conver
sation on February 17 Scharman made no further effort
to communicate with the administrator
D C LIQUOR WHOLESALERS
According to undenied , if not totally admitted testimo
ny which I credit, Tisch offered and Ross rejected a
continued acceptance of the Teamsters pension plan but
at a frozen current contribution level Ross admitted that
he may have stated something to the effect that at that
point he had no intention of withdrawing from the
Teamsters health and welfare and pension plans, and also
that he stated that he was seeking an increase in pay
ments which would necessitate an increase in contribu
tions
Ross testified that at this point he and Mediator Scott
talked privately and he told Scott that the case load
issue is a serious issue, but he insisted that he did not
use the words strike with Scott Immediately after
ward , Scott met privately with the Association negotia
tors Shortly thereafter , face to face bargaining renewed,
at which point the Association made a proposal with re
spect to sick leave, i e , unused sick leave could be car
tied over to future years to a total of 24 days It was re
jected The issue of sick leave occupied a great deal of
time That issue was also tied into the holiday and vaca
tion issues that were included by the Association as a
package proposal under which the 1984 number of sick
leave days could be retained but, however , to be accrued
rather than automatically earned in the second year of
the contract The Union s position was to continue the
1984 contract language as to sick leave and also holi
days, except without the September restriction With re
spect to vacations , the Union had dropped its fifth week
proposal but now insisted on an increase to 4 weeks and
3 days on 20 years service (The fourth week had been
conceded by the Union i e a take back in the 1984
contract )
With respect to legal aid the Association, as part of a
package, offered a freeze at the 1984 3 cent level The
Union insisted on a restoration of the 5 cent contribution
which was also a 1984 takeback , and it did not change
from that position With respect to vacations, the Asso
ciation offered the current level The Union insisted on
an increase
Respondent witnesses testified as to Ross expressions
of adamancy as to the issues discussed In his testimony
he either did not recall these statements did not deny
them conceded them partially or denied them with such
uncertainty and lack of conviction that I must credit Re
spondents witnesses At the very least Ross admitted
that he stated that he had very little flexibility However
I find that he stated with respect to the health and wel
fare plan that his back was up against the wall and
that his aim in negotiations was to get back what the
Union had given up 3 years ago in the prior negotiations
to which Tisch responded that Ross did not appear to be
giving the negotiations much of a chance for success
with that kind of attitude " With respect to the issue of
daily overtime Ross characterized it as a `dead horse "
The Association negotiators offered to meet on Satur
day, February 28 the date of the contract expiration
Ross refused on the grounds that he had pre planned
meetings for Saturday and he would not be available
1247
13 Twelfth meeting-February 27
The final meeting prior to contract expiration again
started early in the morning at the FMCS but now with
more active participation by Mediator Scott who fre
quently caucused privately with each side After individ
ual caucuses , at their initial direct confrontation Tisch
commenced by stating without challenge that the parties
appeared to be at loggerheads over the issues of vaca
tions, sick leave and holidays Ross then proceeded to
list the open issues so that Tisch could corroborate this
impression of what remained unresolved They agreed
on that listing and also agreed that language remained to
be decided on for the redelivery issue and a side letter
The open issues included sick leave, holidays vacations
casual employee rates health and welfare plan pension
plan, daily overtime (agreed on but subject to acceptance
of side letter language), legal aid, caseload helper assign
ment drug testing the two tier wage structure, night dif
ferential pay, and the as yet to be proposed wages
After the enumeration of open issues, the Association
caucused and about 11 30 am returned with a proposal
that Ross testified was offered as a package which re
sponded to almost all open issues and that the Union re
jected as a package That counteroffer contained the first
Association wage proposal, i e a wage cut of $2 77
below the current contract rate, i e , $9 10/$9
$9 35/$9 25, and $9 60/$9 50 for drivers/helpers for each
of 3 years With respect to the two tier structure the As
sociation offered a dollar rate of $8/$7 50 $8 10/$7 60
and $8 20/$7 70 for each of 3 years for new drivers/
helpers instead of the previously offered percentage of
regular rates The $8/$7 50 figure coincided with the ad
vertised rates for solicited replacement drivers the appli
cants for which had commenced being interviewed by
the Association members on February 26 after having
been screened by Sting A rate of $7 50/$7 was pro
posed for casual driver/helper, the first advance from
the initial proposal and which was substantially less than
the current $8 50 but without fringe benefits There was
no change from daily overtime for casual or regular em
ployees no change on night differential and no change
on caseload helper Also submitted with this package
was a revised alternative health and welfare plan devised
on levels of benefits comparable to the newly changed
level of benefits in the incumbent plan The Association
also proposed to accept the incumbent pension plan but
with a freeze at the current level of contribution for 3
years and on condition that the Association could at its
discretion replace that plan with an alternative plan sub
jective to arbitration of its comparability According to
the testimony of Ross a continuation of legal aid contri
bution but at 5 cents was also included The Union re
jected the Association counterproposal
While the Union was in caucus according to Respond
ents witnesses, the Association received word from the
mediator to the effect that even a 1 cent wage cut would
cause a strike When the union bargaining team returned
to the table it presented its counterproposal at about
12 15 p m It retained its position on daily overtime for
regular and casual employees at 8 and 10 hours, respec
tively It offered a reduction from its original request for
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a 20 cent yearly pension fund contribution increase to
that of 20 cents for each of the first 2 years but 15 cents
for the third year The Union held fast at the demand for
class 4 level health and welfare Teamsters plan benefits
It accepted the 5 cent legal aid contribution offered as
part of the Association counterproposal package The
union wage proposal was $13 37/$13 27, $14 87/$14 77
$16 37/$16 27 per hour per driver /helper , respectively a
3 year progression which was not a change from itS
prior position i e, $1 50 raise per driver/helper per hour
per year There was also no change in its position on the
two tier wage structure nor on any of the other issues
Tisch and Scharman (who also attended the meeting) tes
tified that Ross stated that the Union was seeking a wage
increase and that it was pointless to continue negotiations
if the Association demanded a wage cut Colson s bar
gaining notes also indicate that Ross stated that there s
no way in the world he would accept the proposed cuts
or any cut in wages , but that he was willing to coun
terpropose a lower wage increase Munter s notes are
similar to Colson s except that they have Ross stating a
wilingness to reduce the Union s wage demand substan
tially Munter recalled that Ross did express adamancy
with respect to the wage cut just prior to a later side bar
conversation held with Tisch, Scharman , and Ross
The Association caucused and returned with a coun
terproposal directed to a single issue, health insurance
The Association put aside its proposal for an alternative
to the incumbent health plan and offered to retain that
plan but rather at the class 3 lower level of benefits Ross
testified that the maintenance of class 4 level of benefits
would have in the third year raised the Association s
contribution to 50 percent more than what it had been
under the 1984 contract at about $1 64 per hour Tisch
and Scharman testified that Ross responded that he
could not concede class 4 level of benefits and that his
back was to the wall whereupon Tisch asked him to
enumerate the other areas where his back was also
against the wall Tisch testified that Ross listed sick
leave health and welfare vacations and holidays and
stated further that he was close to final on the night dif
ferential , near zero on caseload but had some flexi
bility on pension contribution rates but that there would
be no withdrawal from the incumbent pension plan on
the class 4 health and welfare level Munter and Schar
man testified that Ross listed those issues where his
back was against the wall Colson s notes corroborated
this testimony although he did not independently recall
it
Ross only detailed testimony as to this phase of the
February 27 meeting was elicited on cross examination
He conceded that Tisch asked him to then identify the
area where the Union did not have much flexibility to
which he responded that he wanted to retain the old
contract provisions for sick leave daily overtime holi
days vacation, retention of level 4 Teamsters plan health
and welfare benefits, and casual rates of pay He also
stated that increases in pension contributions and reten
tion of night shift differential were areas of little flexi
bility He admitted that he also said he had very little
flexibility regarding the caseload helper issue Ross did
not without evasion convincingly and effectively deny
that he used the phrase back against the wall during
this verbal exchange As to whether he used that phrase
in the entire negotiations , at best he simply did not
recall
In cross examination Ross was directed to the se
quence after the discussion of open issues and the ex
change of counterproposals The following testimony
ensued
Q And at that point, isn t it a fact that you said
you wouldn t agree to any wage cut at all?
A I think at that point, I said I didn t have any
intentions of agreeing to a wage cut at all
He refused to concede, however, that he also stated that,
if a wage cut remained as the Association bargaining ob
jective, any further negotiations should be terminated
He did so without confidence and assurance and an
swered after a long pause while he stared at the court
room ceiling I don t think I said that Ben ' I must
credit the corroborated, more detailed more certain tes
timony of Respondent witnesses as to the expressions of
adamancy used by Ross up to this point in the February
27 meeting However, I must also credit the uncontra
dicted testimony of Ross that with respect to the wage
cut demand discussion, the Association did not contend
that it was suffering economic adversity but rather con
ceded that they were making plenty of money He fur
ther testified again without contradiction that the Asso
ciation only expressed a vague concern about future
earnings and contended that the employees were over
paid and could be replaced by persons willing to accept
lower pay
The Association led the second sequence of proposals
with its second proposal on that day That proposal con
tained a wage decrease of 25 cents less per hour for each
of the yearly wage than decreases sought in the last
offer the abandonment of the prohibition of the use of a
personal day holiday from September (the Association
having abandoned its demand for the elimination of a
personal day holiday) an improvement of the last pen
sion offer increasing the second and third year contribu
tion and retention of night shift differential but limited
to incumbent employees There was no change with re
spect to the proposed two tier wage structure and the
caseload helper assignment issues
Ross testified that at this point he made note of their
proposal and requested time to review and make a
counterproposal Respondents witnesses whom I credit
elaborated in detail on Ross generalized testimony
Tisch testified that for the second time Ross protested
that it was futile to negotiate further if wage cuts were
demanded His bargaining notes and the testimony and
notes of Scharman and Munter corroborate Tisch How
ever the union team did not suspend negotiations
Rather they caucused for 30 minutes and returned with
a counterproposal that included a reduction of pension
contributions to 15 cent yearly increases for the 3 year
contract retention of the night shift differential as old
i e, abandonment of the enhancement requested, no
change on current contract holidays 5 cents less per
hour per driver wage increase requested for the first
D C LIQUOR WHOLESALERS
year but same raise previously requested for the second
and third years, and no change on the two tier and case
load helper issues
At this juncture while in caucus , according to Re
spondents witnesses , Mediator Scott represented that
Ross desired a private side bar meeting According to
Ross the mediator told him that Tisch requested the
meeting A private meeting was held in a separate room
among Ross , Tisch and Scharman The bargaining posi
tions and forthcoming objectives of the parties were so
licited, reviewed, and discussed Tisch and Scharman tes
tified as to statements of adamancy by Ross and that
they agreed each to make final proposals as had been mi
tially requested by Ross in that side bar meeting Ross
admitted that he agreed to receive the Associations final
proposal, but he denied that he suggested it or that he
agreed to submit a final proposal for the Union or that
the Union was prepared to do so During the colloquy
Ross is alleged by Tisch and Scharman to have said that
his back was up against the wall on the class 4 plan,
and that two tier had to be out, ' and that, although he
had consistently demanded universal helper assignment
to every truck, he would now agree to a 60 caseload
maximum solo driver requirement When asked whether
a wage increase was a necessity he purportedly respond
ed that the Union s final offer on a wage increase would
be an hourly increase of 25 cents per hour per year or
perhaps 2 percent and he asked for and reviewed the
Association s final wage demand that was a $10 25 per
hour rate for all incumbents According to Tisch and
Scharman Ross expressed a conclusion of futility i e
no hope or no way and he and Tisch agreed to ex
change final proposals
According to Ross direct testimony, in that confronta
tion a different sequence occurred He testified as fol
lows Scharman came in after Tisch but admittedly was
present for all the significant discussion Ross accused
Tisch of jerking him around by submitting insulting
proposals at the bargaining table while giving him pri
vate assurances in the hallway Tisch said he could not
improve the Association offer and asked for a union final
proposal which Ross refused to do so Rather Ross
promised a proposal but did not promise to give his
bottom line proposal and refused to do despite Tisch s
hectoring accusation that Ross was kidding around
Ross then said that with respect to the caseload helper
issue, he told Tisch that the caseload helper ratio was
negotiable that with respect to wages he was looking
for something like $ 30 $ 40 increase per hour per year
per 3 year contract and that with respect to pension
contributions he gave no numbers but wanted to main
tarn class 4 Teamsters plan health and welfare benefits
Tisch however was kind of vague and really didn t
give me specific numbers
In cross examination Ross testified that the mediator
approached him and asked whether the Union was pre
pared to make a final offer and then told him that the
Association was prepared to submit its final offer, at
which point he apparently responded by accompanying
the mediator to the side bar meeting Although he insist
ed that he did not ask for a final offer and he did not
agree to submit one he testified in cross examination
1249
Q You told Mr Tisch that you needed a
$ 35 or $ 40 increase per year?
A I was looking for that, yes
Q And you told him, at that time that was your
bottom line, isn t that correct?
A In the side bar?
Q Correct?
A Yes
Q Did you have authority to negotiate a wage
decrease?
A At that point no
Q Your bottom line was that you had to go to
100% [i e a progression to an ultimate universal,
non two tier rate]?
A My bottom line on the two tier system was,
yes I had to eventually get to 100%
Ross further admitted that he responded to Tisch that he
needed pension fund contribution increases of 10 cents,
10 cents, 5 cents, respectively for 3 years As to whether
he stated a caseload figure of 60 in that meeting, he said,
I don t think so
Because of the inconsistency in Ross uncorroborated
testimony his generalization his hesitant, uncertain de
meanor, and his tendency to nonresponsive evasion, I
must credit the more detailed, certain mutually corrobo
rated testimony of Tisch and Scharman
After the side bar conversation the Association bar
gaining team caucused and returned at 5 18 p in with its
third proposal It was presented by Tisch who accord
ing to Ross testimony stated at the open meeting that
he was presenting the Associations final proposal in ac
cordance with the mediators request of both parties to
present their respective final offers The significant modi
fication to its position in that offer was a first year
driver/helper wage rate per hour of $10 35/$10 25
which reduced the wage cut to $1 52 per hour The offer
also proposed a casual rate of $8/$7 50 per hour for
driver/helper and a discretionary assignment of helpers
in proportion to caseload subject to a referral of disputes
arising therefrom to the safety committee which accord
ing to the Union s interpretation does not appear to of
fectuate binding arbitration Tisch testified that the Asso
ciation determined on its bottom line wage proposal for
current employees in the brief caucus prior to making
the Association s final offer He testified that the decision
did not involve much discussion and no real discussion
as to how it was arrived at, i e through neither a logi
cal nor scientific nor other rationale
Tisch explained, and Munter also similarly testified
that the Associations objective had been a general cost
savings derived from a variety of concessions and that
they were unable to perceive a clear picture of the
kind of wage package they wanted to make until it
became apparent what other cost impactive concessions
might be made i Thus they explained no determination
1 In further examination Tisch corrected himself to say that he meant
to say wage proposal and not wage package
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as to a wage cut demand nor extent of it was made until
February 27 Given that explanation any earlier warning
of an impending wage cut demand, if it had been made
at all, would appear to be disingenuous unless it was ex
plicitly conditioned on the lack of progress in other cost
saving concessions It is clear, however that the Asso
ciation made its initial wage demand without having had
any clear idea of what dollars and cents cost savings it
wanted or needed If that is the case, then it had never
fixed a precise or even generalized dollars and cents non
wage cost savings that would have deterred a wage cut
demand Then in a few brief moments of deliberation on
February 27 the Association, for no logical or other ap
parent economic ratiocination, decided on a wage cut to
constitute its final wage demand which fell sufficiently
below the Union s then bottom line Tisch testified in
cross examination that on both occasions when the Asso
ciation determined on its initial and , very quickly there
after, its final wage demand, it did so with the expecta
tion based on the context of the total economic posi
tion that the employees would not accept a wage cut
Ross rejected the proposal However he caucused and
returned with the Union s third proposal of the day He
testified I responded by telling them what my final po
sition was
The Union s offer proposed the current contract for
sick leave no change as to the last position on casuals
current contract on holidays and vacations (i e accept
ance of the Association vacation proposal) health and
welfare class 4 Teamsters plan Teamsters pension plan
contribution yearly increase to 85 cents, 95 cents and
$1 05 wages for driver/helper for 3 years of the contract
$12 87/$12 77, $13 87/$13 77 $14 87/$14 77 (an increase
of $1 per hour per year, less than the last formal
demand but still much larger than what Ross had stated
was the bottom line on wages) current contract on night
differential a two tier progression to 100 percent on the
third contract year after new rates of 80 and 90 percent
of incumbent rate for the first and second year, legal aid
contribution of 3 cents daily overtime of 8 and 10 hours,
and a maximum caseload for required solo drivers of 20
or 30 (also far from his expressed bottom lire)
After a brief caucus, the Association rejected the
union proposal Ross insisted that he had more move
ment He testified that he stated, [ f]his warn t my final
position Tisch testified, with corroboration and without
contradiction that Ross also stated that although he had
more movement that he was dangerously close to
final' By all accounts, Tisch demanded that if Ross had
more movement to make he ought to show where he
would move He then agreed to await another offer from
Ross and if not explicitly he thus acquiesced in giving
the impression that the Association final offer might
not be final depending on the revised union offer
After a brief caucus the Union returned with an offer
the significant movement of which consisted in a wage
proposal of a 3 year sequence for driver/helper as
$12 62/$12 52 $13 37/$13 27, and $14 12/$14 02 and a
minimum caseload helper requirement of 40 Tisch testi
fled he asked Ross, Is this your final to which Ross
responded that is all I have now and, further Tisch
asked Well do you have movement and Ross re
sponded, That s all I have Ron ' In direct examination,
Ross testified, and Tisch admitted in cross examination,
that when Tisch asked him to show me your move
ment , he responded Ross Id already made two pro
posals to your last proposal and I want you to respond
to my last proposal He testified that Tisch stated that
his final was his final and that he would not respond
In cross examination Ross admitted the sequence de
scribed by Tisch except that his response twice was,
that is the best I can do now Ron With vivid detailed
recollection, Munter s testimony as an adverse witness
and as a Respondent witness corroborated Tisch as to
language and precise sequence as did that of Colson and
Scharman and their bargaining notes with respect to Ian
guage Therefore, I credit Tisch that Ross stated That
is the best I can do, Ron, preceded, however, by That
is the best I can do now Thereafter, Tisch declared im
passe
There is divergent testimony as to whether Ross re
sponded further Tisch testified in direct examination that
Ross did not respond, nor did he mention impasse at all
Ross testified that he did respond further by denying that
there was an mpasse by stating that he would consult
with the Union s attorney as to whether impasse was
reached, and by accusing the Association of tr} ing to
bast the Union which Tisch immediately denied Inas
much as Ross is corroborated closely by Muster and
Scharman I credit Ross testimony i e he strongly dis
agreed that impasse had been reached In cross examina
tion, Ross testified further
Q All of your last moves as you ve testified
what your bottom line was could not reach his
final offer, isn t that correct?
A Of the numbers I gave you earlier today [in
testimony as to his bottom line entering the Febru
ary 27 meeting], you re right, you re absolutely
right
Respondents argue that although Ross may have indeed
had room to descend from his last proposal to his bottom
line it would have been futile to have done so because
the Association was serious that its last offer was final
Ross refused to accept that it was a final offer therefore
he protested that impasse had not been reached, appar
ertly in the belief that good faith oargaining obligated
the Association to offer more than it had quickly deter
mined on February 27 would be its maximum offer, or at
least to discuss it further and respond to further union
offers However when the Association determined its
final offer, i e, its bottom line it had decided that it had
already been fairly well advised by Ross of the Union s
minimum demand as of that stage in negotiations, albeit
Ross had not as yet descended fully to that point in his
formal proposals In effect the Associations position on
February 27 was that it arrived at its final or bottom line
and was aware that the Union's minimum demands
would not reach that level so there was no point to fur
ther discussions
The February 27 meeting ended after some discussion
related to strike activity Ross stated that the Union
would conduct a membership meeting the following day
D C LIQUOR WHOLESALERS
to obtain strike authorization from them Ross testified
corroborated by Scharman that if the Union did strike
it would be against only one Association member Tisch
stated that the Association members are party to agree
ment whereby if one member is subjected to a strike the
others would lock out their employees Tisch further
stated that if the employees did strike , the Association in
tended to continue operations with temporary replace
ments but that employees would be given to the coming
Wednesday March 4 , to report to work under the terms
of the final offer and that , thereafter it would reserve
the right to commence permanent replacement of strik
ers
14 Saturday February 28-strike authorizations
According to the testimony of Ross and Union Presi
dent Feaster the following occurred Ross had previous
ly set in motion on February 25 arrangements for a
union membership meeting At the end of the February
27 negotiation session he intended to present to the mem
bers, for their approval or rejection the Association s
last offer and also to obtain strike authorization from
them As of this point Ross clearly unprepared for an
impasse had not taken any of the usual internal union
steps required before strike action The Union s executive
board however, concluded that the Associations last
offer did not constitute a good faith final offer achieved
on impasse and should not be presented for a member
ship vote Although strike authorization was obtained
from the members, they were instructed to report to
work Monday March 2 and told that negotiations
would continue Ross was instructed to communicate
these developments to Tisch During the afternoon of
February 28 at or shortly after 2 p in Ross telephoned
Tisch He informed Tisch that the Union s executive
board prohibited a membership vote on the last offer be
cause it did not see the last offer as a final offer and
that they found it as an insult Ross told Tisch that the
Union intended to continue to work and to continue to
negotiate that all employees would report at all three
employers facilities Tisch asked Ross at what rates
would they be reporting to work and Ross replied they
expected to perform work at the current rates and that if
the Association implemented its final offer the Union
would file unfair labor practice charges Ross also ad
wised him that strike authorization had been approved
but that the Union desired to continue negotiating but
would strike only on failure of agreement Tisch prom
ised to call Ross later in the day He telephoned Ross
home but Ross was absent
Robert Walker the warehouse manager for Respond
ent Washington was told by Association Negotiator
Gold on Wednesday before contract expiration well
before wages were initially discussed that the Union
identified several issues on which they would strike and
that negotiations weren t going anyplace He was told
that if there was a strike there would be strike replace
ments hired On Thursday February 26 at noon Walker
commenced interviewing employee applicants at the
Sting agency as prospective temporary strike replace
ments He interviewed applicants on Thursday and on
Friday February 27 whom he told would be paid $8
1251
and $7 50 for warehousemen/helpers Walker told them
that they would be notified on Saturday or Sunday if
needed At about 2 pm Saturday contemporaneous
with the Ross Tisch conversation, Walker was told by
Gold that there had been no negotiation progress and
that the contract was expiring and that he should start
summoning the applicants About 3 p m Walker com
menced his telephone calls to the applicants and told
them that if they were still interested to meet him at the
place of business at noon Friday
Earlier on Friday night, Walker and a representative
of each of the other two Association members had a]
ready met and divided up the applicants for respective
Association members Colson testified that the decision
to commence calling in the Sting applicants on Saturday
was made by the Association Friday night, thus well
before receiving the Union s formal response to the
final offer The Beitzell warehouse manager was or
dered Friday evening to report for work on Saturday for
the purpose of calling in strike replacements due to the
possibility of not settling this labor dispute
15 Sunday March 1-Tisch Feaster
communications
Before noon of Sunday March 1 Union President
Feaster telephoned Tisch and reiterated what Ross had
communicated and engaged in a dialogue over whether
Tisch s objective was to bust the Union Tisch said the
final offer would be implemented Feaster told him that
the Union did not consider that offer as a good faith final
offer, nor did it believe that impasse had been reached
Feaster credibly testified without contradiction
I said Ross reported to me that he has a lot of
movement to make and [Tisch s] response to that
was Well we haven t made much movement be
cause Ross hadn t made much movement and I
said Well Ross tells me he has movement to
make He made the last two moves I believe and
we are ready to continue negotiations
Tisch thereupon refused to gi ie Feaster a final answer,
and thereupon Feaster stated
Well Ron we will-we will be at work tomorrow
The people have been instructed to report to work
and we d like to continue negotiations
In cross examination Feaster admitted that he told Tisch
that the employees were reporting to work under the
terms of the expired contract and that he did not tell
him that the employees were willing to come to work
under the terms of the final offer However he ex
plained that he told Tisch that if the offer were imple
mented unfair labor practice charges would be filed He
did not testify that he told Tisch that employees would
refuse to work under the terms of the last offer He ad
witted that he told the employees that they would be re
turning under the terms of the old contract while negoti
ations continued Tisch promised to call back and to let
Feaster know his client s position He did not do so
The credible testimony of Feaster and Ross as to these
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
communications with Tisch is virtually, for the most
part, uncontradicted or not clearly and effectively rebut
ted
Feaster explained in cross examination that the Union
refused to accept the Respondents most recent offer as a
serious offer tendered after good faith bargaining, nor
did it consider that impasse had been reached in light of
the Union s willingness to make further movement He
testified that numerous factors are considerd when the
executive board determines whether a final offer is in
fact a serious good faith last offer to be presented to the
membership He testified credibly without contradiction,
that with respect to the Associations 1987 bargaining
some factors considered were the alleged promise of the
Associations chief negotiator in the 1984 negotiations to
substantially restore concessions in the future and that,
given that promise the 1987 demand for additional sig
nificant concessions and wage cuts was considered a ri
diculous proposal that could not be serious
16 Monday, March 2-strike/lockout
It is undisputed that the employees reported for work
on Monday, March 2, and were met by a representative
of each Association member and explicitly informed that
they were locked out, pursuant to a joint Association
member decision made at a meeting on March 1 None
of the arriving employees were explicitly informed that
they could work under the terms of the last offer None
of them stated a refusal to do so The Respondents argue
in their brief that the Union on their behalf had already
refused employment under the terms of the last offer
There is no evidence for this assertion other than the
foregoing telephone communications with Tisch The
Association asserts in its brief without elucidation or
record citation, that the term lock out was told to the
employees to avoid any violence or confrontation for
the Association was implementing its final offer Re
spondents do not explain why it is less provocative for
employees who allegedly are presumed to be strikers to
be told on their arrival that they are locked out than
to be told that they cannot work because they are on
strike It would appear that calling a worker a striker
when he is not on strike, might indeed give rise to an un
predictable reaction
In the morning as they attempted to enter their respec
tive facilities, the employees were stopped and pursuant
to the Association members joint Sunday decision were
read the following statement
Your contract has expired There is no agreement
between the Union and management on a new con
tract No contract no work You are locked out
Clearly the employees were not permitted or al
lowed to work as Gold, Munter and Collins explicitly
conceded when directly asked in cross examination de
spite some hesitant unconvincing almost incoherent
equivocation by some of them
Contrary to the assertion in its brief as to the motiva
tion of its use of the verbage locked out at the trial in
its opening statement Respondents counsel asserted
inter alia
Obviously the employees were physically locked
out because they refused to work under the terms
of the final offer If they had come into work and
accepted the final offer, they would have been al
lowed to work Our position therefore is since
they would not work under the final offer, they
were on strike You can call it-the contract had
expired They could not come into work under the
terms of the expired contract because that was not
agreed upon They could only come into work
under the terms of our final offer Their refusal to
work under the terms of our final offer is a strike
and not a lock out
In its brief the Respondents assert
The evidence clearly establishes that the employees
would only work under the terms of the expired
contract and refused to work under the terms of the
Associations final offer It should be noted that
not one employee offered to work at the terms of
the last offer nor did the Union The concerted re
fusal by the employees to work under the terms of
the Associations last offer was a strike
Respondents thus appear to argue that the only conceiv
able alternative to working under the terms of the last
offer, given the refusal of the Association to effectuate
those terms was a strike Respondents ignore the obvi
ous alternative i e, to physically engage in work tasks,
while concurrently pressing a legal claim to the terms
and conditions of the expired contract Contrary to Re
spondents the above evidence of real world bargaining
reveals that the Union on behalf of employees stated
that they would appear for work that they intended to
claim the effectuation of the old terms and conditions of
employment and that if not effectuated, an unfair labor
practice would be filed The employees thereafter ap
peared and sought access to their jobs but admittedly
were not permitted or allowed access to their work
They were not proffered access to work under the last
offer conditions then or at any time prior to the trial
They were not given any options No employee refused
to perform any work task under last offer conditions but
on the contrary the employees were refused access to
work and told No contract-no work-you are locked
out
The first reference by any party to the nonworking
employees as strikers occurred in a letter of March 10
from Tisch to the Union wherein he stated
This is to advise you that the Association of D C
Liquor Wholesalers composed of Beitzell, Wash
ington Wholesale Liquor and Forman Bros assert
that since the union refused to work under the
terms of the Associations final offer and since the
parties had reached an impasse Local 639 has been
on strike against the Association since the expiration
of the Collective Bargaining Agreement
In the event that it is ultimately determined by
the National Labor Relations Board and/or after
the appellate process is exhausted in relations to
D C LIQUOR WHOLESALERS
such decision that the parties had not reached an
impasse prior to the expiration date of the Collec
tive Bargaining Agreement then we have instituted
a lockout at expiration
The very language of that letter suggests if it suggests
anything at all, that even if the employees were advised
that they had been somehow mistakenly perceived by
the Association as strikers it would be fruitless for them
to again proffer themselves for work, or to engage in a
ritualistic verbal word dance and deny that status be
cause the Respondents would consider them as locked
out anyway
Subsequently, Respondents unsuccessfully attempted
to convince an appeals examiner for the District of Co
lumbia Department of Employment Services Appeals Di
vision that its employees, who had been refused access to
work and who had been told that they were locked
out were really strikers
17 Subsequent meeting
Pursuant to an encouragement from the Federal medi
ator representatives of the parties met on March 26 In
response to the mediator, Tisch testified that he accepted
the invitation to meet, i e, I said yes, we d meet for the
purpose of listening to what the Union had to say
Present for the Union were its Attorney Hugh Beins,
Ross, and the union bargaining group The Association
team and Scharman were present Beins confronted
Tisch with accusations of unfair labor practices and the
service of the instant charge During the following dis
course without recalling the context, Tisch testified that
he was called by Ross or union negotiator Blaylock a
f-g liar (Ross admitted using a somehwat different
scatological characterization) Tisch testified that he
became indignant after having come to the meeting to
hear what the Union had to say only to get sand
bagged with an unfair labor practice charge He arose
and instructed the Association negotiators to leave Ac
cording to Tisch therefore it was the pique over the
sandbagging and not the alleged verbal abuse that
caused the Association departure without further attempt
to listen to any bargaining overture nor to make any
itself
By letter dated March 27 1987 Beins informed Tisch
inter alia that the Union remained flexible in its bar
gaining demands and invited him to sit down and
engage in good faith negotiations and stop your histrion
ics [i e walking out of the last meeting]
By letter dated June 23, 1987, to Respondents current
counsel of record Beins inter alia advised of the avail
ability of Beins or Feaster for negotiations and he re
quested immediate and continuous collective bargaining
negotiations and face to face meetings No accept
ance was forthcoming to these overtures
At the trial of this matter in the context of a discus
sion of the relevancy of Ross testimony elicited in cross
examination with respect to his bargaining objectives,
Union Attorney Beins initially objected that the possi
bility still exists that the [Association] may agree to ne
gotiate pursuant to our request and he s trying to get po
1253
sitions from Ross, at this time which will affect those
negotiations In response , Respondents counsel stated
I will state on the record that the company [Asso
ciation] does not intend to bargain with the Union
until so ordered by the last Court of highest resort
as a result of the decision in this case
Thus the Respondent Association had indicated an ada
mant refusal to bargain further with the Union irrespec
tive of any other event, including major and significant
bargaining concessions presumably short of the accept
ance of the terms and conditions effectuated by its final
offer It is not entirely clear however from that unquali
fled refusal to bargain, whether even total union capitula
tion would restore the bargaining relationship as it was
not mollified or explained in Respondents brief
C Analysis
1 Lockout/strike
The above factual findings leave little for discussion of
the status of nonworking employees unless one is tempt
ed to become enmeshed in the gamesmanship of cynical
Orwellian newspeak The Employees did not withhold
their services in support of the Union s bargaining posi
tion Thus there was no strike Had they been put to the
test and allowed to report for work under the terms of
the last offer, they may or may not have engaged in a
strike as Respondents apparently expected and presumed
that they would despite the assurances of the union lead
ership to the contrary However they were never given
that option They were as the Association witnesses cor
rectly ultimately testified, not allowed or permitted
access to their work They were locked out The lawful
ness of their lockout will be discussed below following
an evaluation of the bargaining context in which the em
ployees were locked out
2 Impasse-uniltaral changes
The complaint does not allege a course of bad faith
bargaining from the outset of negotiations Rather it is
limited to conduct occurring on and after February 27
1987 Specifically it is alleged that Respondents failed to
meet and bargain with the Union on or about that date
by presenting the Union with and insisting on its final
offer prior to impasse by thereafter refusing to rescind
terms and conditions of employment unilaterally effectu
ated on or about March 2 and by predicating and con
ditioning continued bargaining with the Union on the
acceptance of the final offer and its effectuation and thus
failed to bargain in good faith in violation of Section
8(a)(1) and (5) of the Act
The complaint next alleges that by the prebargaining
impasse implementation of changes in terms and condi
tions of employment of bargaining unit employees on or
about March 2 which are mandatory bargaining sub
sects Respondents violated Section 8(a)(1) and (5) of the
Act It states that those terms and employment condi
tions are including but not limited to the following
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Reduction of the wage rate for regular and casual
employees
(b) Reduction of health and welfare benefits
(c) Reduction in pension benefits
(d) Tightening the rules regarding when helpers would
be placed on delivery trucks
(e) Elimination of daily overtime pay
Third the complaint alleges that lockout commencing
on March 2 also violated Section 8(a)(1) and (5) of the
Act It also alleges that the lockout was effectuated be
cause of the employees union membership support, or
assistance and/or their other concerted protected activi
ties and thus violative of Section 8(a)(1) and (3) of the
Act
Unilateral effectuation of terms and conditions of em
ployment that constitute mandatory bargaining subjects
prior to bargaining impasse is proscribed by the defini
tion of good faith bargaining NLRB v Katz, 369 U S
736, 745 (1962) The Board evaluates several factors in
determining whether negotiations have exhausted the
prospects of concluding an agreement , and whether
stalemate was reached prior to the implementation of
unilateral changes that are reasonably comprehended
within pre impasse proposals , including such fac
tors as length of negotiations, the bargaining history of
the parties the good faith of the parties in negotiations,
the importance of the issue, and the understanding of the
parties of the state of negotiations Taft Broadcasting Co'
163 NLRB 475 478 (1967) petition to review the
Board s Order denied 395 F 2d 622 (D C Cir 1968) an
impasse thus exists where the party asserting impasse is
justified in concluding that continued bargaining would
be fruitless E I du Pont & Co, 268 NLRB 1075 (1984)
and cases cited This is so despite the fact that the par
ties at the time of declared impasse, were closer than
they had been previously Taft Broadcasting Co supra
In Du Pont the Board found impasse to have been
reached after 17 sessions despite the fact that the Union
had indicated that it might continue to make counterpro
posals and despite the fact that other issues remained
open inasmuch as it was found that the Union would
never accede to the Company s positions over the cen
tral issue and the Union gave no indication of a possible
concession on that issue in return for a favorable tradeoff
in other areas The Board found that where the parties
had adequate opportunity to discuss their differences,
the employer bargained hard but in good faith, re
mained firm and the Union indicated nonacceptance of
the employers position , that the parties had exhausted
the realistic possibility of reaching agreement
Also as stated by the Board in Western Publishing Co,
269 NLRB 355 (1984)
Furthermore , after an impasse has been reached on
one or more subjects of bargaining an employer
may implement any of its pre impasse proposals
even if no impasse has occurred as to those particu
lar proposals which are put into effect [Taylor Win
field Corp 225 NLRB 457 ( 1976) Taft Broadcasting
Co supra]
Furthermore impasse may be reached even after a few
bargaining sessions where the subject of the change e g
wages was of supreme importance to the employer
with respect to its ability to compete Bell Transit Co
271 NLRB 1272 (1984) The Board stated there at 1273
fn 10
The parties bargained over the wage issue on 7
April and 4 and 7 May 1982 In some cases we
would hesitate to find an impasse only after three
bargaining exchanges The Board does not apply a
rigid formula however to determine how many
bargaining sessions are required before an impasse
might exist Under these circumstances, where the
wage issue assumed critical importance we find
that the abbreviated extent of the negotiations is en
tirely consistent with an impasse finding The par
ties need not bargain interminably over issues before
an impasse is evident
See also Lou Stechers Super Markets 275 NLRB 475
(1985) In that case after a few meetings the Board
found impasse in light of a long history of bargaining,
and also in light of the union s negotiators statements of
adamancy and futility but coupled with a mutual lack of
desire to meet further
In addition to Du Pont, the Respondents cite Hamady
Bros Food Markets, 275 NLRB 1335 (1985), in which im
passe was found after five sessions where the union had
rejected proposed concessions and insisted on restoration
of prior bargaining concessions In that case as in Bell
Transit the Board noted that economic relief was crucial
to the employers viability It noted that the employer
advised the Union of its perilous financial situation as
serted to the union a need to reduce costs to avoid fur
ther losses and explained that because of a financial
crisis it required further reductions beyond the earlier
concessions and it further noted that the Union never
questioned or disputed the Respondents financial situa
tion and refused to recognize Respondents need for
further reductions The Board stated that firmness in
insisting on further reductions in existing benefits was
not indicative of bad faith citing Atlanta Hilton & Tower
271 NLRB 1600 (1984) Although course of conduct bar
gaining was not specifically the issue in Hamady, supra
it is noteworthy that the Board and the administrative
law judge in apparent compliance with the Taft criteria
both evaluated the good faith context of the employer s
bargaining stance The judge distinguished Bell Transit
from the facts in his case and found that the employer s
position of intransigence precluded a conclusion of good
faith bargaining found in Bell Transit As noted the
Board disagreed and in applying the test of good faith
course of bargaining to the impasse issue it relied on At
lanta Hilton in which case it stated
Under Section 8(d) of the Act an employer and
its employees representative are mutually required
to meet at reasonable times and confer in good
faith with respect to wages, hours and other terms
and conditions of employment but such obli
gation does not compel either party to agree to a
D C LIQUOR WHOLESALERS
proposal or require the making of a concession
Both the employer and the union have a duty to ne
gotiate with a sincere purpose to find a basis of
agreement , but the Board cannot force an em
ployer to make a concession on any specific issue
or to adopt any particular position The employer
is, nonetheless, obliged to make some reasonable
effort in some direction to compose his differences
with the union if § 8(a)(5) is to be read as imposing
any substantial obligation at all
It is necessary to scrutinize an employers overall
conduct to determine whether it has bargained in
good faith From the context of an employer s
total conduct, it must be decided whether the em
ployer is lawfully engaging in hard bargaining to
achieve a contract that it considers desirable or is
unlawfully endeavoring to frustrate the possibility
of arriving at any agreemert " A party is entitled to
stand firm on a position if he reasonably believes
that it is fair and proper or that he has sufficient
bargaining strength to force the other party to
agree NLRB v Advanced Business Forms Corp, 474
F 2d 457, 467 (2d Cir 1973)
An analysis of impasse accordingly enmeshes necessar
ily an analysis of the good faith context wherein it was
declared, as the General Counsel argued in the opening
statement and to which the Respondents alluded in their
defense Forming this context necessarily are the bargain
ing positions of the Unions and the Respondents In Chev
ron Chemical Co 261 NLRB 44, 46 (1982), the Board
stated that it would not directly or indirectly compel
bargaining concessions or otherwise sit in judgment on
the substantial terms of collective bargaining agreements
Increasingly regressive bargaining prosposals howev
er within the same course of negotiations, had earlier
been found to be inimical to good faith bargaining where
they were made without a proffered rational basis Pacif
is Grinding Wheel Co 220 NLRB 1389 (1975) Carpen
ters Local 1780 244 NLRB 277 281 (1979) However
even in that context, the Board has taken a more restric
tive overview of the motivational probity of an employ
er s regressive bargaining posture i e whether it is so
harsh vindictive, or otherwise unreasonable so as to
warrant a conclusion that they were offered in bad
faith, Barry Wehmiller Co 271 NLRB 471 (1984) quot
ing Hickinbotham Bros Ltd, 245 NLRB 96, 102 (1981)
This case does not involve regression in current bar
gaining It does involve a regression in the sense that the
Respondents sought concessions beyond that achieved in
1984 but, as the Board noted in Hamady, that in itself is
insufficient to infer bad faith The Board very recently
however, indicated that the bargaining positions of the
parties are not to be misconceived to be exempt from the
analytical process In Retchhold Chemicals, 288 NLRB 69
(1988) the Board took care to note that although it
would not judge the acceptability of a proposal to a
party it would apply its 'cumulative institutional experi
ence' and examine bargaining proposals when appropri
ate as 'evidence of an intent to frustrate the collective
bargaining process ' The Board stated at 70
1255
Each party to collective bargaining has an en
forceable right to good faith bargaining on the part
of the other 7 Enforcement of that right is one of
the Board s most important responsibilities Indeed
the fundamental rights guaranteed employees by the
Act-to act in concert, to organize and to freely
choose a bargaining agent-are meaningless if their
employer can make a mockery of the duty to bar
gain by adhering to proposals which clearly dem
onstrate an intent not to reach an agreement with
the employees selected collective bargaining repre
sentative The Board will not have fulfilled its obli
gation to look at the whole picture of a party s con
duct in negotiations if we have ignored what is
often the central aspect of bargaining, i e , the pro
posals advanced by the parties 8
' Eastern Maine Medical Center v NLRB 658 F 2d 1 (1st Cir
1981)
8 As the court in Eastern Maine Medical Center supra at 10
observed
There is indeed a tension created by asking the Board to
judge the reasonableness of the bargainers but not to supervise
the substance of their bargaining The major resource making
this tension tolerable is the agency s accumulated institutional
experience in making precisely those sorts of judgments We
thus do not lightly disregard the Board s informed judgment in
the especially delicate task of judging whether in context a
strategy of bargaining is more likely calculated to obstruct
agreement than to bring about the best compromise possible
Not only has the Board recently taken care, as it has
in Reichhold, to explain that the nature and context of
bargaining proposals are not beyond its ken of analysis
but it also has taken opportunity to caution against an
overextension and the assumption of continued viabili
ty of its past rationale in Bell Transit In Powell Electra
cal Mfg Co, 287 NLRB 969 (1987) the Board found
that no impasse had been achieved in five bargaining ses
sions and an ongoing strike It stated at 969
In urging reversal on the issue of impasse the
Respondent relies on Lou Stechers Super Markets
275 NLRB 475 (1985) and Bell Transit Co 271
NLRB 1271 (1984) revd 788 F 2d 27 (D C Cir
1986) Assuming the continued viability of Stechers
and Bell Transit we find these cases factually distin
guishable
In Stecher s the finding of impasse was based on
the parties contemporaneous understanding of the
state of the negotiations Their statements of no
way' to get together coupled with the subse
quent failure to meet were found to establish that
each acknowledged the futility of further bargain
ing Here on the contrary, the judge found and the
record supports that the parties were not yet at the
stage of bargaining where either could reasonably
believe that impasse had occurred The Respondent
relies on the superficial similarity of statements in
Stecher's and the instant case while ignoring the dif
ferent contexts which lead us to conclude that sera
ous bargaining on substantial issues was still possible
in the instant case
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Bell Transit the Board found that the parties
having negotiated over the critical issue of wages
understood that they were either at impasse or had
an agreement over wages, a core issue of a collec
tive bargaining agreement The case involved a
unique set of facts and the Board analysis in Bell
Transit was rejected by the court of appeals See
Teamsters Local 175 v NLRB, 788 F 2d 27 (D C
Cir 1986)
Here although the union representative indicated
the parties were far apart he clearly intended to
continue bargaining and saw room for movement
This is evidenced by his solicitation of Mediator
Chandlers assistance in arranging further bargain
ing sessions The parties had yet to bargain exhaus
tively over core economic issues The relatively
limited discussions engaged in do not provide a
basis for the Respondents alleged belief that futher
bargaining would have been futile See McCormick
Shires Millwork 286 NLRB 754 fn 2 (1987)
In this case Respondents argue that the Association
bargained in good faith and that impasse was reached on
Friday, February 27 Respondents first cite past bargain
ing history and point to the past practice of withholding
negotiations of key economic issues to the end of ne
gotiations It points out however that there had been
discussion of economic issues or at least issues that im
pacted on costs during the entire course of bargaining
e g, the caseload and two tier wage system Respondents
cite Ross expressions of apparent intransigence as to
these and other important issues It cites the Union s ob
jective of seeking restoration of 1984 concessions in the
face of Respondents objective of further cost conces
lions as items of central importance to the parties akin
to that in the Hamady case Respondents argue that their
attempts to obtain cost savings in nonwage areas prior to
February 27 were frustrated by union adamancy and
that it had warned the Union of substantial wage cuts
prior to the presentation of its wage offer, and that con
tinued union obstinacy with respect to cost savings pro
posals and the rigidity of the mutual wage positions re
sulted in a deadlock in the economic bargaining which
telescoped on February 27 Respondents argue that even
though there may have been some room for union move
ment on significant issues like the Du Pont case that
room was not sufficient for the parties to have a reasona
ble expectation of agreement
With respect to the past bargaining history it is true
that the parties most recent confrontation is a direct out
growth of past bargaining That is to say that this bar
gaining context is unlike that encountered when an initial
contract is being sought The issues and positions in mi
tial bargaining take longer to evolve and to harden
Here the Union did enter bargaining with the objective
of retrieving past concessions which the president had
been given the impression in 1984 was not an unreal ex
pectation The Union did immediately set forth apparent
ly rigid positions and did reiterate them However as the
Associations own counsel its own prior chief negotia
tor put in cross examination to Ross and elicited from
him the recognition that in past bargaining the parties
frequently took initial rigid positions and did engage in
posturing which ultimately gave way to a give and take
negotiation Although the facts reveal that Ross took
hard positions it also reveals that, as in the past bargain
ing history, the chief negotiators took respite from the
formal bargaining table posturing and reassured and en
couraged each other to have patience and implied that
concessionary movement was a real expectation though
not to be achieved without difficult and impliedly
lengthy bargaining Thus Tisch reassured Ross at mid
point and Ross assured Tisch as late as the eighth bar
gaining session Moreover, the foregoing facts reveal that
despite his utterances Ross subsequently did negotiate
and often conceded ground
I fail to perceive how the parties traditional practice
of deferring core economic issues enhances the conclu
sion that impasse had been reached If anything it sug
gests that the full intensity of meaningful economic bar
gaining could not be expected until the presentation of
Respondents full economic package, including wages
The give and take of noneconomic or lesser economic
issues could not have been expected to have become crit
ical until the parties fully mutually realized and explored
what was at stake The Union could not be expected to
have reached its truly unalterable position on nonwage
issues until it realized what it might lose or gain with re
spect to serious and good faith conceived core economic
proposals particularly wages
Factual findings fail to support Respondents conten
tion that it clearly advised the Union that its hardcore
economic proposal, including substantial wage cuts
hinged on its prehardcore economic package of cost bar
gaining concessions This is so because the Association
itself admittedly had not even a preconceived notion of
what amount of general or specific cost savings it needed
or even wanted Its initial and briefly reiterated claim of
the need for cost savings and its pessimistic accounts of
changes in public consumption habits general business
trends and a competitors adversity not unlike its histor
is initial bargaining table entrances were palpably insuf
ficient to support the conclusion that it represented to
the Union that it or any of its members were in immedi
ate or even proximate perilous economic difficulty or
even in serious need of economic relief It made not even
the pretense to the Union that quick agreement on imme
diate cost savings was necessary by the expiration date of
the contract At most, it referred to long term trends and
what it expected to achieve down the road and assert
ed that their excessively paid employees could be re
placed by others willing to work for less i e no doubt
having in mind the ready supply of Sting applicants
The Respondents approached the February 27 session,
still without any fixed idea of what cost savings were
needed or wanted and had as yet made no decision to an
ultimate wage concession An approximate wage conces
sion was not decided on until shortly before the event
Even with respect to nonwage cost proposals it entered
bargaining 1 month prior to the expiration of the con
tract with the vague idea that perhaps it might propose
an alternative health and/or welfare plan without having
done any prenegotiation preparation or investigation into
D C LIQUOR WHOLESALERS
such a complex proposal Respondents entered bargain
ing with an appraisal of what the Union probably would
not ultimately accept and appears to have formulated its
position accordingly Respondents concurrently made ar
rangements for strike replacements to be hired and con
formed its bargaining proposal to the hiring rates already
promised to those replacements It clearly expected its
proposals to be rejected and fully expected the Union to
strike The Board has cautioned against the evaluation of
economic positions as to their substantive acceptability
An employer may choose to take positions from what
ever economic motivation it wishes to espouse The Act
however, requires that those positions be economically
motivated or rather, that they not be formulated for the
purpose of frustrating the bargaining process The con
cept of good faith bargaining implies that a party enter
the bargaining process with some serious concept of
what it wants or needs and some serious preparation to
support its contention Otherwise, the other party cannot
be expected to make a serious and meaningful response
But if it enters negotiation with such inchoate objectives
a party ought not suddenly slam the door for further dis
cussion once it makes up its own mind
The evidence in this case compels the conclusion that
Respondents formulated their economic bargaining posi
tion at a point where they could safely presume they
would be unacceptable to the Union This is most clearly
revealed with respect to the formulation of its final
wage offer That offer had been decided on after a very
brief sequence of face to face bargaining confrontations
and at the very moment replacements were being read
ied The specific wage proposal was fixed at a wage cut
a point sufficiently below which it was reasonably sure
the Union would find unacceptable having drawn out
the union chief negotiator in a side bar conversation
That wage proposal was admittedly not arrived at pursu
ant to any economical logical, or other rational calcula
tion of need or desire It must necessarily be inferred
from the context of the negotiations and the speed of its
determination on the final proposal the Respondents'
proposals were calculated to frustrate bargaining and
were not the result of economic need or desire or serious
prebargaining economic self evaluation and preparation
Despite Ross prior hard bargaining posture I con
clude that because of the unexpected level of Respond
ents total economic proposal, the Union was not provid
ed with sufficient opportunity to react evaluate and in
telligently bargain further, particularly in light of the
wage cut demand There had been no prior agreement
practice or understanding demonstrated or present need
demonstrated that hardcore economic proposal bargain
ing must be effectuated and concluded within the con
fines of one meeting
The Board precedent on which Respondents relies is,
as it was in the Powell case factually distinguishable The
resemblances to the Bell Transit, Du Pont, and Hamady
cases are superficial Ross statements of adamancy
drawn out in negotiations and carefully noted and relied
on so much by Respondents, are not dispositive The
Union proffered and promised further movement on Feb
ruary 27 and thereafter but Respondents would not
agree to negotiate further having aborted a confronta
1257
tion on March 26 arranged for the purpose of listen
ing but apparently not negotiating with the Union
Clearly the refusal of the Union and employees to strike
the request for further negotiations, and the reporting for
duty of employees on March 2 confounded Respondents
calculations and thus resulted in its decision to lock out
the employees and to adhere to its claim of impasse and
thereafter resort to the disingenuous characterization of
the lockout as a strike I conclude that its characteriza
tion of the lockout as a strike is as accurate as its charac
terization of the negotiations as having reached good
faith impasse I conclude that the parties did not have
adequate opportunity to have exhausted all reasonable
expectations of compromise in view of the very brief op
portunity that was unilaterally imposed by Respondents
to fully explore and negotiate Respondents finally re
vealed full hardcore economic position I find further
that by entering and continuing bargaining without
having a fixed notion of what is needed or desired for
cost savings, by determining on a final unalterable posi
tion on hardcore economic issues without relation to
economic or other rational motivation, but only in rela
tion to what it has studiously elicited as the Union s
bottom line by concurrently and with determined alacri
ty preparing for employee replacements while conform
mg bargaining proposals to what conditions are predeter
mined for those replacements, by refusing to discuss fur
ther its suddenly fixed wage demand, and by refusing to
engage in subsequent bargaining even after a lockout (or
strike) which might have broken an impasse Respond
ents engaged in conduct which demonstrates bad faith
and a predetermination to abort the collective bargaining
process Accordingly, I am compelled to find that no
good faith bargaining impasse had been reached on or
after February 27 1987 I therefore further find that the
effectuation of all changes in terms and conditions of em
ployment that constitute mandatory bargaining subjects
that were unilaterally instituted on or after February 27
1987 pursuant to the implementation of Respondents
last offer violated Respondents bargaining obligations
under the Act and constitute violations of Section 8(a)(1)
and (5) of the Act as alleged in the complaint I also find
that Respondents subsequent refusal to bargain with the
Union unless it capitulate to that unlawfully instituted
last offer constitutes a violation of Section 8(a)(1) and (5)
of the Act as alleged in the complaint
3 Replacement of employees
With respect to the issue of the lawfulness of the lock
out and replacement of permanent employees the Re
spondents defense is chiefly that even if the work stop
page was the result of a lockout, it was privileged be
cause of the attainment of an impasse Further, without
elaboration in its brief, it asserts that the Association
had the lawful right to lock out employees at the expi
ration of the contract It cites in support Harter Equip
ment 280 NLRB 597 (1986) enfd 829 F 2d 458 (3d Cir
1987) In the Harter case the Board characterized the
issue before it as
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether the Respondent ,iolated Section 8(a)(3)
and (1) of the Act by hiring temporary replace
ments after lawfully locking out permanent employ
ees for the sole purpose of bringing economic pres
sure to bear in support of a legitimate bargaining
position
The Board held that in the absence of specific antiunion
motivation there is no 8(a)(3) and (1) violation commit
ted by the hiring of such replacements during an other
wise lawful lockout In formulating its decision the
Board found in the Harter case an absence of either an
tiunion motivation or an absence of evidence that the
employer had engaged in bad faith bargaining before or
after the lockout The Board noted the decisions of the
Supreme Court in American Ship Building Co P NLRB,
380 U S 300 (1965), and NLRB v Brown Food Store 380
U S 278 (1965), where the Court found respectively that
the 8(a)(3) and (1) violation neither occurs after a bar
gaining impasse is reached when employees are tempo
rarily locked out for the sole purpose of bringing eco
nomic pressure to bear in support of a legitimate bargain
mg position, nor does such violation occur in response
to a whipsaw strike It noted the Court s finding that the
lockout served the legitimate business end of pressing
good faith bargaining demands The Board noted the
Court s reasoning that the impact of such economic pres
sure on employees rights was comparatively slight
rather than inherently destructive Subsequently of
course the Court delineated the concept of conduct so
inherently destructive of employee rights that requires
no proof of antiunion motivation but in so doing it reaf
firmed the American Ship Building and Brown Food Store
principles NLRB v Great Dane Trailers 388 US 26
(1967)
In the Harter case the Board stated at footnote 6
The Board has held that the absence of impasse
does not of itself make a lockout in support of bar
gaining demands unlawful Darling & Co, 171
NLRB 801 (1968), enfd sub nori Lane v NLRB
418 F 2d 1208 (D C Cir 1969) neither does the ab
sence of any reasonable fear of strike We likewise
find that these factors are not dispositive with re
spect to the postlockout use of temporary employ
ees They may, however be relevant in a case
where the employers professed business motivation
is challenged as pretextual
These cases are all factually distinguishable from the
issues presented to me In this case there had been bad
faith bargaining, both before, during, and after the hiring
of replacements The economic pressure brought by Re
spondents by the lockout was not in support of a legiti
mate bargaining position but, rather, was in support of
coercing the Union to accept its unlawfully implemented
last offer The lockout and hiring of replacements
formed an integral, if impromptu part of a preconceived
bad faith plan to arrive at an apparent bargaining im
passe, given the refusal of employees to strike The coer
cive effect on employees rights is palpable As a subor
nation of the collective bargaining process it violates the
concept of good faith bargaining and thus Section 8(a)(5)
and (1) of the Act, as alleged in the complaint As a co
ercion and punishment of employees resulting from the
conduct of their bargaining agents who refused to accept
the last offer and who demanded the employees rights
to good faith bargaining as reiterated in the Reichold
case, the lockout and hiring of replacements violated
Section 8(a)(3) and (1) of the Act as alleged in the com
plaint
CONCLUSIONS OF LAW
1 Respondent Forman Brothers Inc and/or Leon s
Leasing Co, Inc is now, and has been at all times mate
rial an employer engaged in commerce within the mean
ing of Section 2(2) (6) and (7) of the Act
2 Respondent Washington Wholesale Liquor Co, Inc
is now and has been at all times material , an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
3 Respondent Beitzell & Co is now, and has been at
all times material , an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
4 Respondent Association has been and is an organiza
tion composed of employers engaged in liquor and wine
wholesaling, distribution, and warehousing, and exists for
the purpose inter alia, of representing its employer mem
bers in negotiating and administering collective ba-gain
ing agreements with various labor organizations, includ
mg the Union
5 At all times material, Respondent Employers ex
cluding Leon s Leasing Co Inc have been and are now
employer members of Respondent Association described
above, and have delegated Respondent Association to
represent them in negotiating and administering collec
tive bargaining agreements Subsequent to the dates of
the litigated events, Leon s Leasing Co , Inc succeeded
Respondent Forman Brothers Inc as an Association
member
6 The Union International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helpers of America
Local Union No 639 is now and has been at all times
material a labor organization within the meaning of Sec
tion 2(5) of the Act
7 The following employees of Respondents constitute
a unit appropriate for the purposes of collective bargain
ing within the meaning of Section 9(b) of the Act
All truck drivers tow motor operators, checkers,
helpers and warehousemen employed by Respond
ent Employers excluding all other employees
guards and supervisors as defined in the Act
8 The Union is and at all times material has been the
designated exclusive collective bargaining representative
of the unit and has been recognized as such representa
tive by Respondents
9 At all times material , the Union, by virtue of Sec
tion 9(a) of the Act, has been and is the exclusive repre
sentative of the employees in the unit for the purpose of
collective bargaining with respect to rates of pay wages
hours of employment and other terms and conditions of
employment
D C LIQUOR WHOLESALERS
10 Respondents violated their bargaining obligations
under the Act and engaged in conduct which constituted
v'olations of Section 8(a)(1) and (5) of the Act which
constitute unfair labor practices that interfere with the
free flow of commerce by the following acts engaged in
prior to good faith bargaining impasse by
(a) On and after February 27, 1987 failing and refus
ing to bargain in good faith with the Union by present
ing and insisting on acceptance of its final offer and by
thereafter refusing to rescind the implementation of the
terms and conditions effectuated pursuant to that final
offer, and by predicating and conditioning continued bar
gaining with the Union on the Union's unqualified ac
ceptance of that final offer
(b) On and after March 2, 1987, making and imple
menting various changes in the terms and conditions of
employment ffom the terms and conditions of employ
ment for the unit that existed under the collective bar
gaining agreement that expired by its terms on February
28, 1987 which relate to wages, hours and other terms
and conditions of employment of the unit and are manda
tory subjects for the purpose of collective bargaining, in
eluding but not limited to
(1) Reduction of the wage rate for regular and casual
employees
(2) Reduction of health and welfare benefits
(3) Reduction in pension benefits
(4) Elimination of daily overtime pay
(c) On and after March 2 1987, engaging in a lockout
of the unit employees in furtherance of its unlawful bar
gaining conduc* set fo'th above
I1 Respondents have discriminated and are discrimi
nating, in regard to the hire, tenure, or terms or condi
tions of their employees, thereby discouraging member
ship in a labor organization, and Respondents thereby
have been engaging in unfair labor practices ithm the
meaning of Section 8(a)(1) and (3) of the Act and which
interfere with the free flow of commerce by locking out
its employees because of the bargaining position of their
designated bargaining agent and in ft rtherance of Re
spondents own bad faith bargaining strategy calculated
to frustrate the bargaining rights of employees as man
dated by the Act
THE REMEDY
I recommend that Respondents be ordered to cease
and desist from their unfair labor practices to bargain in
good faith with the Union and to post an appropriate
notice and mail to each of its locked out employees a
copy of that notice
I also recommend that Respondents be ordered to take
certain additional affirmative action to remedy the conse
quences of the unlawful lockout of employees and its un
lawful unilateral changes of terms and conditions of em
ployment
Also applying the standard for broad cease and desist
orders established in Hickmott Foods 242 NLRB 1357
(1979), I find that the Respondents misconduct was suf
ficiently egregious to demonstrate a general disregard for
the employees fundamental statutory rights A broad
cease and desist order is recommended
1259
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed2
ORDER
The Respondents, Association of D C Liquor Whole
salers and its members Forman Bros, Inc and/or
Leon's Leasing Co Inc, its successor Washington
Wholesale Liquor Co, Inc, and Beitzell & Co, Wash
ington , D C their officers agents successors and as
signs, shall
1 Cease and desist from
(a) Refusing to meet and bargain in good faith with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No 639, as the exclusive bargaining representative of
employees in the bargaining unit by presenting and insist
ing on acceptance of their February 27, 1987 collective
bargaining agreement negotiations final offer prior to
having reached a good faith bargaining impasse and im
plementing and refusing to rescind the implementation of
the terms and conditions of employment unilaterally of
fectuated prior to good faith impasse under the terms of
that final offer and, further, predicating and conditioning
continued bargaining on the Union s unqualified accept
ance of that final offer
The appropriate collective bargaining unit is
All truck drivers, tow motor operators checkers,
helpers and warehousemen employed by Respond
ent Employers, excluding all other employees
guards and supervisors as defined in the Act
(b) Locking out or otherwise discriminating against
their employees because of the bargaining position of
their designated bargaining agent and in furtherance of
their own unlawful bargaining conduct calculated to
frustrate the bargaining rights of employees as mandated
by the Act
(c) In any other manner interfering with restraining
or coercing employees in the exercise of the rights guar
anteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request bargain in good faith with International
Brotherhood of Teamsters Chauffeurs Warehousemen
and Helpers of America, Local Union No 639 as the ex
elusive representative of the employees in the appropri
ate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the under
standing in a signed agreement
(b) On request of the Union, reinstate any term and
condition of employment of bargaining unit employees
that was unilaterally changed after the unlawful declara
tion of bargaining impasse of February 27 1987
2If no exceptions are filed as provided by Sec 102 46 of the Board
Rules and Regulations the findings conclusions and recommended
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 sor all pur
poses
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) Offer each and every employee on Respondents
payrolls as of March 1, 1987 whom they unlawfully
locked out on March 2 1987, full and immediate rein
statement to their former positions or if those positions
no longer exist to substantially equivalent positions
without prejudice to their seniority or other rights or
privileges previously enjoyed, discharging, if necessary
employees hired from other sources to make room for
them and make them whole for any loss of wages, holi
days, including personal days and vacations, any ex
penses incurred to retain and/or secure replacement
health and welfare coverage and any disbursements
made by them for all medical expenses that would have
been covered by the existing health and welfare cover
age, all of which were caused by the unlawful March 2,
1987 lockout and/or the unlawful unilateral change in
working conditions effectuated after February 27 1987
and all of which is to be calculated as prescribed in
F W Woolworth Co 90 NLRB 289 (1950) with interest
to be computed in the manner prescribed in New Hori
zons for the Retarded 283 NLRB 1173 (1987)
(d) Make payments to the existing health and welfare
plan sufficient contributions in order to reinstate each
employee member so that coverage is resumed immedi
ately as of the first day of reinstatement of employment
(e) Preserve and on request make available to the
Board or its agents, for examination and copying all
payroll records social security payment records, time
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay and
other monies due under the terms of this Order
(f) Post at their Washington, D C facility and mail to
each employee on its payroll as of March 1 1987, copies
of the attached notice marked Appendix s Copies of
the notice on forms provided by the Regional Director
for Region 6 after being signed by Respondents author
ized representative shall be mailed to each employee and
be posted by the Respondents immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to its employ
ees are customarily posted Reasonable steps shall be
taken by the Respondents to ensure that the notices are
not altered defaced or covered by any other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
9 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 Nation
al 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