Bell Transit Co.

National Labor Relations Board - Board Decisions

Aug 29, 1984

271 N.L.R.B. 1272 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bell Transit Company and Teamsters Local Union
No. 175, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 9-CA-
18919-1
29 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 6 July 1983 Administrative Law Judge Ste-
phen J. Gross issued the attached decision. The
General Counsel filed exceptions, a supporting
brief, and an answering brief. The Respondent filed
cross-exceptions, a supporting brief, and an answer-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The facts are set out more fully in the judge's
decision. The Respondent, Bell Transit Company
(Bell), is a labor broker. Bell hires, supervises, and
compensates the truckdrivers at several facilities
operated by Union Carbide. In return, Union Car-
bide pays Bell a management fee and reimburses
Bell for the drivers' direct labor costs. The Charg-
ing Party, Teamsters Local 175 (the Union), repre-
sents the 19 Bell drivers at Union Carbide's Insti-
tute, West Virginia facility. Bell was a party to the
Teamsters' National Master Freight Agreement
that expired on 31 March 1982.
During 1981 Union Carbide warned Bell that it
had received offers' from other labor brokers to
staff Union Carbide facilities with less expensive
drivers. Bell responded by seeking to negotiate a
new collective-bargaining agreement with lower
wage rates. Bell continued to abide by the provi-
sions of the existing National Master Freight
Agreement until it expired2 on 31 March 1982. On
28 September 1981, however, Bell timely revoked
the authority of Trucking Management, Inc. to
represent it in the upcoming negotiations for a new
National Master Freight Agreement. Then, on 25
January 1982 Bell requested local contract bargain-
Bell's president, Max Rein, testified that Union Carbide actually re-
placed Bell with a less costly labor broker at one of its facilities.
2 On 26 March 1982 Bell and the Union adopted an interim agreement
providing for a continuation of the expiring contract's $12.68 hourly
wage rate pending execution of the new local agreement.
271 NLRB No. 184
ing3 with the Union for the Institute unit. Bell and
the Union held a preliminary bargaining meeting
on 5 March 1982. A contract proposal drafted by
one of Bell's managers was unacceptable to Bell's
president, Max Rein, so Bell did not offer a propos-
al at that meeting. Contrary to the judge, we find 4
that Rein informed the Union on 5 March that Bell
wanted to reduce its drivers' wage rates in order to
retain Union Carbide's business. The parties met
again5 on 5, 6, and 7 April 1982. Bell presented its
contract proposal on 5 April. During the course of
bargaining, the union representatives told Bell that,
while they were authorized to negotiate, only the
Teamsters Eastern Conference had authority to ap-
prove any contract proposal. On 7 April, Bell pro-
posed a wage rate of $9.71 per hour with a reopen-
er in the second and third years of the contract.
The Union responded with a counterproposal of
$13.15 per hour.6 The parties scheduled another
meeting for 4 May 1982. At that session Bell of-
fered two revised wage proposals. Bell offered
either a wage rate of $10 per hour with an annual
reopener, or a wage rate of $11 per hour with no
reopener. The Union stuck with its prior $13.15 per
hour proposal. On 7 May 1982, immediately prior
to a union membership meeting, Bell offered an-
other revised wage proposal. This offer provided
for an $11.25 per hour wage rate with a reopener
in the third year. At the meeting, the union leaders
explained Bell's most recent proposals to the union
members. The leaders took a straw poll in order to
assess the proposals' support. The poll showed an
even split among the members, so the leadership
decided to submit the proposals, including the 7
May wage proposal, to the Eastern Conference. 7 A
few days after the union meeting, union officer
Dan Forwood telephoned Max Rein. Forwood
told Rein of the split in the membership over Bell's
proposals. The conversation then proceeded sub-
stantially as follows:
Rein: Well, what does that mean?
Forwood: Well, they didn't reject your con-
tract; we'd need a two-thirds vote for that.
3 Bell's letter requesting local bargaining noted that "competitive con-
ditions require this action."
4 We base this finding on undisputed testimony by union official
Daniel Forwood.
' We correct the judge's inadvertent finding that these meetings took
place on 4, 5, and 6 April 1982.
s This counterproposal corresponded to the rate payable as of I April
1982 under the Teamsters' National Master Freight Agreement As noted
above, the parties operated from 1 April 1982 under an interim local
agreement providing for a S12.68 wage rate
7 After some delay, the Union sent Bell's proposals, with an internal
memo recommending rejection, to the Eastern Conference on 11 June
1982. This memo noted that Bell's proposals "do not meet the hourly and
mileage rates as was negotiated in the new National Master Freight
Agreement." The Eastern Conference eventually rejected the proposals
by letter dated 10 August 1982.
1272
BELL TRANSIT CO.
Rein: Well, then we've got a contract.
Forwood: You know I have to have that ap-
proved by the Eastern Conference.
Rein: Well, as long as the men didn't reject
it, we have a good chance.
On 14 May 1982 Rein telephoned Forwood and
notified him that Bell intended to implement its
most recent contract proposals, including the
$11.25 wage rate, as of 16 May 1982. Forwood re-
sponded by saying, "Well, go ahead and see what
happens. You take your best hold and we'll get
ours later." Bell implemented the proposals on 16
May 1982. The Union filed a charge alleging that
Bell violated Section 8(a)(5) and (1) by reducing its
drivers' wages from $12.68 per hour to $11.25 per
hour on 16 May. In his attached decision, the judge
concluded that, absent any agreement, acquies-
cence, or impasse, Bell's 16 May wage reduction
constituted a unilateral change in violation of Sec-
tion 8(a)(5). We disagree and dismiss the complaint.
In our view, the parties were at impasse on 16 May
as to the wage rate proposal. Accordingly, Bell's
wage reduction did not violate Section 8(a)(5).
It is well settled that:
Whether a bargaining impasse exists is a
matter of judgment. The bargaining history,
the good faith of the parties in negotiations,
the length of the negotiations, the importance
of the issue or issues as to which there is dis-
agreement, the contemporaneous understand-
ing of the parties as to the state of negotiations
are all relevant factors to be considered in de-
ciding whether an impasse in bargaining exist-
ed.
Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
petition for review denied 395 F.2d 622 (D.C. Cir.
1968). In our judgment, the Taft factors herein
clearly support a finding of impasse on 16 May
1982 on the wage rate issue. The parties' extensive
bargaining history lends support to a finding of im-
passe. Bell and the Union have developed a good
bargaining relationship over their 26 years8 of con-
tract administration and grievance processing.
Moreover, it is undisputed that the parties' instant
negotiations were conducted in good faith. Finally,
Bell faced compelling pressure from its only cus-
tomer, Union Carbide, to cut the drivers' wages or
face replacement by other labor brokers. As noted
above, Union Carbide heightened this pressure by
canceling Bell's contract at another location in
favor of a less costly labor broker. Bell repeatedly
cautioned the Union about its precarious position.
a Bell and the Union have maintained a contractual relationship since
1956.
The overriding importance of the wage issue to
Bell's continued corporate existence lends very
strong support to an impasse finding. Accordingly,
based on the parties' extended amicable relationship
and on the supreme importance of the wage issue,
we find9 that the parties had bargained to impasse
on wages before Bell unilaterally changed them.
The Union was afforded the bargaining opportuni-
ty °' to which it is entitled under the Act." We
therefore concluded2 that Bell's wage reduction
did not violate Section 8(a)(5) and (1).
ORDER
The complaint is dismissed.
MEMBER ZIMMERMAN, dissenting.
My colleagues find that the parties had reached
impasse on wages in this case even though at the
time of the alleged impasse Respondent President
Rein believed there was a good chance that an
agreement would be forthcoming. I cannot agree
that in these circumstances there was an impasse.
The meaning of impasse has long been defined as
a stalemate that occurs "after good-faith negotia-
tions have exhausted the prospects of concluding
an agreement."' No interpretation of the facts in
this case can support a finding that the prospects of
concluding an agreement were exhausted at the
time the Respondent implemented its wage reduc-
tion. Only three bargaining exchanges had oc-
curred at which wage proposals and counterpro-
posals were made. At two sessions, the Union stuck
with its counterproposal of $13.15 per hour. At the
third session, the Respondent offered another wage
proposal of $11.25 per hour with a reopener in the
· Rein testified that he felt he had an agreement subject to Eastern
Conference approval at the time he reduced the drivers' wages. The
judge concluded that Rein's contemporaneous understanding of tentative
agreement precluded any finding of impasse. We disagree. An under-
standing of final agreement would preclude an impasse finding. An un-
derstanding of tentative agreement may, however, be consistent with an
impasse finding. An impasse may exist simultaneously with a tentative
agreement. This situation frequently occurs when a union's negotiators
accept the employer's final offer subject to ratification by the union's
members. If the tentative agreement is accepted, then the impasse breaks.
If the tentative agreement is rejected, then the impasse endures. We con-
clude that the parties herein were at impasse at the same time that Rein
felt he had an agreement subject to Eastern Conference approval.
'O 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 after only
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 entirely consistent with an impasse finding. The parties
need not bargain interminably over issues before an impasse is evident.
" See generally E I. du Pont & Co., 268 NLRB 1075 (1984).
is We reach this conclusion irrespective of whether there was some
movement in Bell's position after it implemented the change, or whether
the parties ultimately agreed to a contract, since neither of these facts
would show intrinsically that no prior impasse existed
I Taft Broadcasting Co., 163 NLRB 475, 478 (1967)
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
third year. Immediately after this proposal was
made, the Union explained the proposal in a mem-
bership meeting. After a poll, there was an even
split among the members as to whether to accept
the proposal. The leadership decided to submit the
proposal to the Eastern Conference which had to
approve any final agreement. Union officer For-
wood informed President Rein about the split vote
and explained that the union members did not
reject the proposal. (A two-thirds vote was re-
quired for rejection.) When Rein said, "Well, then
we've got a contract," Forwood answered that he
had to get approval by the Eastern Conference.
Rein responded, "Well, as long as the men didn't
reject it, we have a good chance." As the judge
pointed out, nothing happened between this con-
versation and 16 May when the Respondent imple-
mented the wage reduction.
It is clear that the Respondent implemented the
wage reduction at a time when it knew that half
the union members had approved its last proposal
and when it thought there was a good chance that
the Eastern Conference would approve a final
agreement. As the situation stood on the day the
Respondent implemented the wage reduction, there
was no basis for concluding that negotiations had
exhausted the prospects of reaching an agreement.
Indeed, at that time it appeared as if negotiations
had very nearly produced an agreement. There
simply was no impasse on 16 May.
Although my colleagues refer to the extended
amicable relationship of the parties and the extreme
importance of the wage issue as support for their
finding of impasse, they are forced to rely on subse-
quent events to make this finding. As the judge
noted, the position of the Eastern Conference on
wage levels was firmer than the Respondent
thought and ultimately no agreement (based on the
Respondent's wage proposal) was possible. My col-
leagues hint at this position when they state that an
understanding of tentative agreement may be con-
sistent with an impasse finding, for example, im-
passe is broken if a tentative agreement is accepted
by union members, whereas an impasse endures if
that tentative agreement is rejected.
This argument makes no sense. Section 8(a)(5) of
the Act imposes a duty upon employers to bargain
in good faith. The Supreme Court has stated that
collective bargaining "is not simply an occasion for
purely formal meetings between management and
labor . . . it presupposes a desire to reach ultimate
agreement, to enter into a collective-bargaining
contract." NLRB v. Insurance Agents, 361 U.S. 477,
485 (1960). Questions of impasse must be viewed in
light of the central obligations imposed by the Act.
In the midst of negotiations, neither party can
know the future. Therefore neither the good-faith
character of their negotiations nor the determina-
tion that those negotiations have stalled can rest
upon unknown future events. Whether agreement
ultimately proves to be impossible is irrelevant.
The central and only determining factors must be
the stance of negotiations at the time unilateral
action is taken. Here, there was every reason to
think negotiations would reach fruition and no
reason to assume they had exhausted prospects of
reaching agreement. For these reasons I, like the
judge, would find that the Respondent violated
Section 8(a)(5) by implementing the wage reduc-
tion.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The
sole business of Respondent Bell Transit Company is
providing truckdrivers for several of Union Carbide and
Carbon Corporation's facilities. (Bell hires the drivers,
directs them, and pays them. Union Carbide pays Bell an
amount equal to Bell's labor costs plus a management
fee.) This case involves the Bell drivers who work out of
Union Carbide's facility in Institute, West Virginia.
There are 19 such drivers. They are represented by
Teamsters Local Union No. 175 (hereafter Local 175 or
the Union). On May 16, 1982, Bell reduced the wage
rate it pays the Institute, West Virginia drivers from
$12.68 an hour to $11.25. The question is whether, in
doing so, Bell violated Section 8(a)(5) of the National
Labor Relations Act (the Act).'
Bell's wage reduction was not unlawful if it was un-
dertaken pursuant to agreement with Local 175; or if
Local 175 acquiesced in the wage change; or if Bell
acted at a time when the parties were at an impasse. But
my conclusion is that there was neither agreement be-
tween the parties, nor acquiescence by the Union, nor
impasse, and that Bell accordingly violated Section
8(a)(5) of the Act when it reduced employees' wages.
An Overview of the Negotiations
From 1956 through March 1982 Bell, through an em-
ployer association, was a party to the various National
Master Freight Agreements in effect during that period.
But Bell withdrew from the employer association in
order, in the words of a Bell letter to the Teamsters, to
be able "to negotiate [an] individual contract responsive
to the needs of our operation." Collective bargaining be-
tween Bell and Local 175 ensued. Bell President Max
Rein invariably represented Bell in the bargaining ses-
sions. The lead negotiators for Local 175 were its busi-
ness agents. However, Local 175's representatives ad-
vised Rein, and Rein understood, that while Local 175's
I Local 175 filed a charge on November 8, 1982 alleging that the wage
reduction violated the Act. A complaint dated December 16, 1982 fol-
lowed. Bell admitted the complaint's jurisdictional allegations but denied
any wrongdoing. The case went to hearing in Charleston, West Virginia,
on April 5 and 6, 1983. Briefs have been filed by the General Counsel, by
Bell, and by Local 175.
1274
BELL TRANSIT CO.
officials were authorized to negotiate, they had no au-
thority to accept any contract proposal. Only the Team-
sters' Eastern Conference could do that.
Rein and Local 175 representatives met in an abortive
negotiating session on March 5. (Except where otherwise
specified, all events mentioned in this decision occurred
in 1982.) Wages were not mentioned. The next session
took place on April 4 through 6. The subject of the 3-
day session was a proposed contract that Bell had draft-
ed. The wage rate proposed in the contract was $9.71
per hour, down from the $12.68 Bell employees were
then being paid. 2 Rein explained that Bell's sole custom-
er, Union Carbide, was insisting on lower wage rates on
the ground that competitors of Bell were offering Union
Carbide the same services then being provided by Bell at
contract prices reflecting wages even lower than Bell's
proposed $9.71. The Union's negotiators responded that
Bell should increase wages to, at a minimum, $13.15 an
hour.
The April session was followed by one on May 4. Bell
raised its wage proposal to $11 per hour. Again the
Union representatives urged a raise in wages to $13.15.
On May 7 Rein raised the Company's wage offer to
$11.25 per hour. After a straw poll of Bell's employees
showed that they were evenly split over whether to
accept that proposal, the Union determined that Bell's
proposed contract should be considered by the Eastern
Conference. Local 175 did send the proposed contract to
the Eastern Conference, but not until June 11, and ac-
companied it with a letter urging rejection. The Eastern
Conference rejected Bell's contract proposal, and noti-
fied Local 175 and Bell of that decision by letter dated
August 10.
In the meantime on May 14 Bell notified Local 175
that on May 16 it was going to implement new terms of
employment reflecting Bell's contract proposal of May 7,
including the $11.25 wage and the modifications to the
proposed contract that the parties had agreed upon
during that session.
Notwithstanding Bell's actions of May 16, Rein and
representatives of the Union held a negotiating session
on May 17. Various matters, including wages, were dis-
cussed. Nothing was resolved, and the parties did not
meet again until July 9. At the July 9 session a variety of
issues were again considered, including wage levels.
Then by letter dated July 25, Rein proposed making cer-
tain work rule changes wanted by the drivers if the
Union would sign the contract that Bell had implement-
ed on May 16. The Union refused.
The next negotiating session was held on August 20.
The Union's position remained that Bell should pay at
least $13.15 an hour. A deadlock resulted, and the parties
agreed to seek the services of a mediator. The mediator
met with the parties on September 9. While various con-
tract provisions were discussed, the main issue was
wages. At the mediator's suggestion Bell offered what it
considered a major concession-$11.75 an hour (up from
2 Actually Bell pays wages on a mileage basis as well as on an hourly
rate. Bell proposed reductions in the mileage rates as well as in hourly
rates. Hereafter this decision will refer only to hourly rates. But it should
be understood that each change in proposed or actual hourly rates was
accompanied by a comparable change in mileage rates.
the $11.25 then in effect, but still down from the $12.68
that Bell had paid its drivers until May 16).
Bell's offer was unacceptable to the employees, and
they went out on strike on September 18. Bell promptly
withdrew its $11.75 offer. The strike lasted 4 months.
Bell's employees returned to work in January 1983 under
a contract providing for a wage of $11.50 an hour.
The Union Did Not Agree to the Pay Reduction
As outlined above, on May 7 Bell raised its wage offer
to $11.25. Later that same day Union Business Agent
Daniel Forwood met with 16 of the 19 employees in the
bargaining unit. After discussing the terms of the collec-
tive-bargaining agreement proposed by Bell, including
the $11.25 hourly wage, Forwood put the matter to a
vote. (Forwood considered the vote an informal one. He
called it a "feeler vote," that is, one designed to let him
know about the feelings of the employees.) Eight em-
ployees voted in favor of accepting the contract propos-
al; eight voted against it. Forwood thereupon called Rein
to advise Rein of the results of the vote. After Forwood
told Rein of the 8-to-8 tie, the conversation proceeded as
follows:
Rein: Well, what does that mean?
Forwood: Well, they [the employees] didn't
reject your contract, we'd need a two-thirds vote
[opposing the contract] for that.
Rein: Well, then we've got a contract.
Forwood: You know I have to have that ap-
proved by the Eastern Conference [of the Team-
sters].
Rein: Well, as long as the men didn't reject it, we
have a good chance.
Forwood called Rein again on May 11, again referred to
the fact that the authority to approve the contract lay
with the Eastern Conference, not Local 175, and stressed
that the vote on May 7 was an informal "opinion poll."
At this point, clearly, Local 175 had agreed neither to
Bell's proposed contract in general nor, in particular, to
the $11.25 hourly wage rate. Rather, all that had hap-
pened in response to Bell's offer was: (1) Rein was told
of an evenly split opinion poll among Bell's employees;
(2) the Union's officials had agreed only to have Bell's
proposal considered by the Eastern Conference; and (3)
Bell was told that, as it already knew, only the Eastern
Conference could "approve" Bell's contract proposal.
Rein called Forwood on May 14 to say that Bell was
going to implement the $11.25 wage proposal starting
May 16. Forwood's response will be discussed later in
this decision in connection with the question of whether
the Union acquiesced in the wage cut. For now it is
enough to note that Rein did not then ask Forwood to
agree to the wage change, and that it is clear that For-
wood did not say anything during that conversation that
could be construed as the acceptance on behalf of the
Union of an offer by Bell.
On May 17 Rein met with several representatives of
Local 175. Rein gave them copies of the "contract" that
Bell implemented as of May 16. The Union's representa-
tives neither signed the contract nor otherwise indicated
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Union was willing to become a party to it. Rein
was again reminded of the requirement of Eastern Con-
ference approval.
On August 12 both Bell and Local 175 received letters
from the Eastern Conference advising that the Confer-
ence had "rejected the Company's proposal." Accord-
ingly, even assuming that acceptance of Bell's proposal
by the Eastern Conference could have retroactively
cured Bell's implementation of the $11.25 wage rate on
May 16, that did not occur.
The Union Did Not Acquiesce in the Wage Change
Rein called Local 175 Business Agent Forwood on
Friday, May 14, to say that starting on May 16 Bell was
going to implement the Company's $11.25 wage proposal
because "we just couldn't wait any longer." Forwood re-
sponded by saying something on the order of: "Well, go
ahead and see what happens. You take your best hold
and we'll get ours later."
The question is whether the Union could thereby be
said to have "acquiesced" in Bell's unilateral action.
Rein's statement about implementing the wage reduc-
tion came soon after a series of collective-bargaining ses-
sions. And one issue is whether, in that circumstance, an
acquiescence theory applies at all. Cases finding union
acquiescence to unilateral employer action seem always
to deal with situations in which the parties had not been
in the midst of bargaining: See, e.g., Merillat Industries,
252 NLRB 784 (1980); Austin-Berryhill, Inc., 246 NLRB
1139 (1979); Citizens National Bank of Willmar, 245
NLRB 389 (1979); City Hospital of East Liverpool, Ohio,
234 NLRB 58 (1978); Clarkwood Corp., 233 NLRB 1172
(1977); Medicenter, Mid-South Hospital, 221 NLRB 670
(1975). And at least one Board case suggests that where
a proposal has been the subject of bargaining, an employ-
er may implement the proposal only upon actual agree-
ment by the union or impasse. Servis Equipment Co., 198
NLRB 266, 268 (1972).
I will nonetheless assume that under proper circum-
stances a union that did not agree to an employer's pro-
posed action can be found to have acquiesced in that
action even though the action had recently been the sub-
ject of negotiation. I will further assume that, since For-
wood did not explicitly demand that Bell refrain from
implementing the wage change, under some circum-
stances Local 175 could be held to have acquiesced in the
change. 3
But here: (1) Rein stated, unequivocally, that the Com-
pany was going to implement the wage reduction; (2) the
Union was given very little notice-Rein told Forwood
on a Friday that the change would be implemented start-
ing Sunday; 4 (3) Rein knew that neither Forwood nor
a Cases such as Austin-Berryhill, supra, indicate that, in order to impose
a duty to bargain on the employer, a union must both protest the pro-
posed change and request bargaining. Bell and Local 175, however, al-
ready were bargaining about wage rates. Thus the latter requirement is
inapplicable.
4 Servis Equipment Co., supra, held a comparable notice period to be
insufficient.
any other Local 175 official had the authority to approve
a contract proposal by Bell; and (4) both Rein and For-
wood contemplated that the $11.25 proposal was to be
put before the Teamsters' Eastern Conference for its
consideration.
Under those circumstances the only reasonable conclu-
sion Rein could have drawn from Forwood's response
was that it was simply an expression by Forwood of the
realities of the situation-that the next action in the
matter was the Eastern Conference's to make, that Bell
was gambling that the Conference's action would be a
favorable one for Bell, and that if the Conference's deci-
sion was to disapprove the $11.25 proposal, Bell would
be in trouble.
That does not amount to acquiescence. 5
Impasse
The Company implemented the $11.25 wage rate on
May 16. Rein had first proposed that figure on May 7.
As of May 7 Rein knew that the proposal was going to
be put before the Eastern Conference for its consider-
ation. And in Rein's own words, he believed that there
was "a good chance" that the Eastern Conference would
accept the Company's offer. Nothing happened between
May 7 and May 16 to cause Rein to change his view.
Moreover for all Rein knew, even if the Eastern Confer-
ence did not accept Bell's contract proposal, it would ac-
company the rejection with a counterproposal that Bell
would find acceptable. Nothing about the prior negotia-
tions suggested that they were exhaustive. And subse-
quent negotiations between Bell and Local 175 made it
clear that Bell would have accepted a counteroffer that
included a variety of changes in the terms that Bell im-
plemented on May 16.
As it turned out, the position of Local 175 and the
Eastern Conference on wage levels was firmer than Rein
thought it was. In fact no agreement between Bell and
the Union was possible. Because of Union Carbide's de-
mands, Bell was clear that it had to reduce wages below
its then current $12.68 level. Yet at least until sometime
after September 18-when the employees went out on
strike-the minimum wage the Union was willing to
accept was $13.15. There was simply no way to square
the Company's insistence on a wage decrease with the
Union's demand for a wage increase.
The question, then, is whether the fact that the parties
held irreconcilable positions at the time Bell reduced
wages justifies Bell's action, even though Bell mistakenly
thought that there was "a good chance" that agreement
was at hand. My conclusion is that since Bell thought, at
the time it acted, that an agreement might be imminent,
it is irrelevant, for Section 8(a)(5) purposes, that the par-
ties' positions were in fact irreconcilable. At bottom the
demand placed on employers by Section 8(a)(5) is one of
5 On June 3 the Union instituted grievance proceedings against Bell re-
garding the wage reduction The General Counsel argues that that is evi-
dence of the Union's lack of acquiescence. But acquiescence hinges on a
union's response to an employer proposal prior to implemention of the
proposal. Generally union action after implementation by the employer of
the proposed change is irrelevant to whether the union acquiesced in the
change. (The grievance ultimately was dismissed on procedural grounds.)
1276
BELL TRANSIT CO.
intent. NLRB v. Insurance Agents (Prudential Insurance
Co.), 361 U.S. 477, 485 (1960). Thus an employer ought
to be able to act unilaterally without violating Section
8(a)(5) on the basis of its reasonable belief that negotia-
tions are at an impasse, even though facts unavailable to
the employer later show that the apparent impasse was
not a real one. Similarly, where an employer that unilat-
erally changes terms of employment does so without any
belief in the existence of an impasse, the employer's
intent remains antithetical to the purposes of Section
8(a)(5) even if the employer later discovers that, fortu-
itously, a deadlock had existed after all. And when
viewed in that manner, there was no impasse, for Section
8(a)(5) purposes, when Bell unilaterally reduced wages
on May 16.
CONCLUSIONS OF LAW
1. Bell Transit Company is an employer engaged in
commerce within the meaning of Section 2(2) and (6) of
the Act.
2. Teamsters Local Union No. 175 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All truckdrivers employed by Bell at the Institute,
West Virginia facility of Union Carbide and Carbon Cor-
poration, excluding office clerical employees, profession-
al employees, guards and supervisors, as defined in the
Act, constitute an appropriate unit for purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act.
4. At all material times Local 175 has been the exclu-
sive representative of the employees in the unit described
above for purposes of collective bargaining.
5. By unilaterally reducing wage rates during negotia-
tions and before impasse was reached, Bell engaged in a
refusal to bargain in violation of Section 8(a)(5) and
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7, in viola-
tion of Section 8(a)(1).
THE REMEDY
Since Bell unilaterally reduced wages without bargain-
ing to impasse, Bell will be ordered to make whole all
affected employees by paying to them amounts equal to
the difference between (1) what the employees would
have earned but for Bell's violation of the Act, and (2)
what they did earn at the unlawfully reduced wage rates.
Bell will further be required to pay interest on such
amounts6 as computed in Florida Steel Corp., 231 NLRB
651 (1977).
Given the facts of this case, however, that backpay
formulation raises two additional issues: (1) what is the
duration of the backpay period? and (2) what should the
employees have been earning at the time Bell unlawfully
reduced wages?
What Wage Rate Should Bell Have Been Paying
As noted earlier, Bell was party to a collective-bar-
gaining agreement-the National Master Freight Agree-
ment-that expired March 31, 1982. Under the NMFA
6 See Isis Plumbing Co., 138 NLRB 716 (1962).
the wage rate for the period immediately prior to the
contract's expiration was $12.68. Bell did pay its employ-
ees $12.68 during that period. The NMFA provided,
however, that the employer parties to the agreement
would pay a cost-of-living adjustment to their employees
beginning on April 1, 1982 (i.e., beginning on the day
after the contract expired.)7 Under the COLA provision
wages were supposed to increase to $13.15, and employ-
ers were to make comparable increases in their payments
to the Teamsters' health and welfare fund and pension
fund.
On March 26 Forwood and Rein agreed that while
Bell would increase its fund payments in accordance
with the about-to-expire contract, Bell "will continue to
apply the [wage] rates currently in effect"-i.e., $12.68.8
It was on that basis that Bell refrained from increasing its
wage rate to $13.15 on April I and instead retained the
$12.68 wage until the May 16 wage reduction. (Forwood
and Rein also agreed that if negotiations between Local
175 and Bell led to a wage increase, Bell would make the
increase retroactive to April 1, 1982. That aspect of the
agreement, of course, became moot.)
Rein had previously been told that, in the upcoming
negotiations, new contract terms could be approved only
by the Eastern Conference and not by anyone in Local
175. Moreover the union signatory to the NMFA was
the Teamsters National Freight Industry Negotiating
Committee, not Local 175. Arguably, therefore, For-
wood had no authority to enter into any agreement of
that kind, and Rein should have known that. That, in
turn, suggests that Bell should have increased its wage
rate to $13.15 an hour on April 1, and backpay should be
based on the difference between $11.25 and $13.15,
rather than between $11.25 and $12.68.
But my recommendation is that backpay be based on
the $12.68 rate. For one thing, neither the charge nor the
complaint alleges that Bell did anything wrong by con-
tinuing the $12.68 rate after March 31. For another, the
March 26 agreement became effective on April 1, which
was after Bell's bargaining relationship with the Team-
sters National Freight Industry Negotiating Committee
ended. Thirdly, Forwood said nothing to Rein to indi-
cate that he could not bind the Union to an interim
agreement of the kind that Rein and Forwood purport-
edly entered into on March 26. And finally, Rein sent
the Eastern Conference a copy of his letter confirming
the agreement. He received no response from the East-
ern Conference. Under the circumstances Rein could
have reasonably concluded that while the Eastern Con-
ference had to approve final agreements, the Local
could, on its own, enter into interim agreements of the
kind he negotiated with Forwood.
7 It is not unusual for collective-bargaining agreements to provide that
employers will make COLAs after the expiration date of the contract.
See Meilman Food Industries. 234 NLRB 698 (1978). The failure of an
employer to abide by such a provision may amount to a violation of Sec-
tion 8(aX5). Id.
I Rein letter to Forwood of March 26, 1982
1277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duration of the Backpay Period
The backpay period began on May 16, 1982, the date
Bell implemented the wage rate reduction. That much is
clear.
It is also clear that the backpay period ended no later
than September 18, 1982. On September 9 Bell offered
$11.75, a figure that was as high as Rein felt Bell could
possibly go. The Union's leadership, still claiming that
Bell should pay at least $13.15, put the matter to a vote
of the employees-strike, or accept Bell's offer. On Sep-
tember 18 the employees voted 14 to 5 in favor of a
strike. The strike began that day. It ended 4 months later
when the employees returned to work under an agree-
ment providing for a wage rate of $11.50.
The more difficult question issue is whether the back-
pay period should be deemed to have ended sometime
prior to September 18. As may be recalled: (1) Bell had
but one customer, Union Carbide; (2) that corporation
had demanded that Bell promptly reduce the $12.68
wage rate that Bell had been paying its drivers (for
which wages Union Carbide reimbursed Bell), so that
Bell was under considerable pressure to reduce its wage
levels; and (3) the Union, at all times from the start of
bargaining on into the strike, was insistent on a wage
well above anything Bell believed that it could afford.
Given those facts, had Bell not reduced wages on May
16 further bargaining would likely have led to impasse
well before September 18. Thus it might well be that re-
quiring Bell to pay backpay for the period May 16 to
September 18 would be giving Bell's employees a wind-
fall rather than simply restoring to them the amounts
they would have received but for Bell's violation of the
Act.
One possibility, under these circumstances, would be
to require Bell and Local 175 to bargain about the back-
pay amounts. See Atlantic International Corp., 246 NLRB
291, 292 (1979), enfd. 664 F.2d 1231 (4th Cir. 1981). But
it is hard to see how that would resolve anything. My
recommendation, instead, is that the question of what
date Bell and the Union would have reached impasse
(had Bell not acted unilaterally) be resolved in a compli-
ance proceeding. See Wellman Industries, 222 NLRB
204, 208 (1976).
[Recommended Order omitted from publication.]
1278