Bottom Line Enterprises

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 373 (N.L.R.B. 1991)

BOTTOM LINE ENTERPRISES 373
Master Window Cleaning, Inc., d/b/a Bottom Line
Enterprises and Service Employees Union
Local No. 18 and Building Service Employees
Pension Trust Local No. 18, affiliated with
Service Employees International Union, AFL—
CIO. Cases 32—CA-10041 and 32—CA-10088
March 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 15, 1989, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge's rulings, findings,' and con-
clusions and to adopt the recommended Order, as
modified.2
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilater-
ally implementing its final proposal on August 23 and
discontinuing certain benefit contributions on August
20, 1988,4 prior to impasse.
The Respondent excepts to the judge's decision pri-
marily on three grounds. First, the Respondent asserts
it was justified in unilaterally discontinuing its con-
tributions to the Union's health and welfare and pen-
' sion trust funds (the trust funds) because the parties
had reached impasse on or before August 1. Alter-
'Inatively, the Respondent' contends its actions were jus-
tified because the Union bargained in bad faith.
the Respondent argues that the Union waived its
.:!The Respondent has excepted to some of the judge's credibility findings.
i'The Board's established policy is not to overrule an administrative law judge's
dedibility resolutions unless the clear preponderance of all the relevant evi-
q'ddlice convinces us that they are incorrect. Standard Dry Wall Products, 91
1111..-BB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
tinned the record and find no basis for reversing the findings.
2 As part of his remedy, the judge recommended that the Respondent be or-
dered to reinstate the wages and terms and conditions of employment that ex-
. _isted before its unlawful changes, and to make whole unit employees for any
.:losses suffered as a result of its unlawful action. In addition, we shall order
the Respondent to reimburse the trust funds provided for in the collective-bar-
agreement for those contributions the Respondent failed to make on
?behalf of unit employees. Any additional amounts that the Respondent must
pay into the benefit funds shall be determined in the manner set forth in
LAferoweather Optical Co., 246 NLRB 12/3 (1979). In addition, we shall
..Order the Respondent to make the employees whole by reimbursing them for
expenses ensuing from the Respondent's unlawful failure to make the re-
...,,-quired benefit fund contributions, as set forth in Kraft Plumbing, 252 'NLRB
.18914a 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). Interest on all such sums
'-'Stialr,be paid in the manner prescribed in New Horizons for the Retarded, 283
1.11141 1173 (1987).
Although the Respondent's president, Richard Scott, testified that the Re-
spondent did not implement its proposals on August 2, Scott's testimony was
:generally discredited by the judge. We therefore do not rely on this testimony.
;W.;All dates are 1988 unless otherwise indicated.
302 NLRB No. 63
right to bargain over the termination of the trust fund
contributions by failing to request bargaining after ade-
quate notice. We find no merit in the Respondent's ex-
ceptions.
On the morning of August 1, 1988, at the parties'
sixth bargaining session,5 the Respondent presented its
final proposal which incorporated, in typewritten form,
certain proposals it presented at the 'previous session
on July 13. The parties broke for a long lunch during
which the Union promised to prepare "serious coun-
terproposals" for submission to the Respondent that
afternoon. The Union's sole negotiator, Robert Russell,
testified that he returned to his office6 and began draft-
ing the counterproposals when the Union's president,
Henry Acevedo, instructed him to attend an unrelated
union meeting in the place of a business agent who
was ill. When Russell informed Acevedo that the Re-
spondent expected him to continue negotiations 'that
afternoon, Acevedo said he would talk to the Respond-
ent and try to postpone the session to a later date.
Russell returned from the union meeting at approxi-
mately 3 p.m. to learn that the Respondent's chief ne-
gotiator, H., Sanford Rudnick, was upset by the
Union's abrupt cancellation of the afternoon bargaining
session, that Rudnick had demanded that Acevedo con-
tinue negotiating in Russell's place, and that, when
Acevedo refused, the Respondent stated, "If you're
not going to negotiate, fine. We are at impasse."
Shortly thereafter the Union ,received a letter dated
August 1 from Rudnick, which, after a preliminary
recitation of background, stated:
At 1 p.m. after the Employer returned from
lunch, we found out by your secretary and Mr.
Azevedo [sic], that you had to cancel negotiations
due.to Union business. You stated you would get
back to the Employer at some future time. I be-
lieve Mr. Azevedo could have handled this matter
for you since we have been trying to obtain a
contract for months and we were about to make
some progress. At . that timej told Mr. Azevedo
we would still continue negotiations that same
evening. However, we were going to implement
on August 1st at 12 midnight unless we reached
a contract.
Nevertheless, your conduct can only be viewed
as bargaining in bad faith , by stalling, delaying
and cancelling negotiations: You were not even
going to take our Proposal to the employees to
vote or ratify.
Therefore, due to your delaying, the Employer
has no choice but to implement its August 1,
'The multiemployer agreement to which the Respondent was a party ex-
pired on July 1, 1988. The parties commenced negotiations for a successor
agreement on May 10 after the Respondent timely withdrew from the multiem-
ployer bargaining association.
6The parties conducted all the negotiations at the Union's headquarters.
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1988 Proposal at 12 midnight since we are at im-
passe and your conduct can only be viewed as re-
jecting our Final Proposal. Your Union can only
be blamed for not reaching a fair and equitable
contract.
On August 22 the Respondent sent the Union an-
other letter which stated:
As of August 20, 1988 Master Window Clean-
ing will no longer be contributing to the General
Employees Trust Fund and the Building Service
Employees Pension Plan on behalf of its employ-
ees by virtue of the fact that Master Window
Cleaning Service Inc., and Union Local 18 are at
impasse. See enclosed letter of August.
As stipulated, the Respondent's contributions were due
September 10, 1988; they were not made when that
date came to pass or at any time material thereafter.
It is undisputed that the Union did not respond to
either the August 1 or 22 letters.
As noted above, the Respondent first contends that
it was privileged to discontinue its trust fund contribu-
tions because the parties had reached impasse in their
negotiations. We. disagree. The record amply supports
the judge's finding that the parties were, in fact, poised
for movement when the negotiations broke for lunch
on August 1. Indeed, the Respondent's own negotiator,
Rudnick, stated in his August 1 letter that "we were
about to make some progress" when the negotiations
recessed, and the Respondent had granted the Union
additional time to prepare its counterproposals. Thus,
for the reasons set forth in the judge's decision, we
find that the parties had not reached impasse in their
negotiations on August 1 or at any time thereafter.
We also find no merit in the Respondent's conten-
tion that the Union failed to bargain in good faith, thus
justifying the Respondent's unilateral action. While the
record discloses that both parties were engaged in hard
bargaining, the record is devoid of evidence that the
Union conducted its negotiations in bad faith or to
frustrate agreement.7
Finally, we reject the Respondent's contention that
the Union waived its right to complain about the Re-
spondent's unilateral termination of its mist funds con-
tributions by failing to request bargaining after notice
of the Respondent's intent to implement in its August
1 letter. Absent exceptional circumstances, an em-
ployer may not justify a unilateral implementation of
a proposal on a particular subject, submitted during ne-
gotiations for a labor agreement to succeed an expired
one, on the ground of a union's failure to request bar-
gaining on that subject. When negotiations are not in
progress, we can find a waiver of a union's statutory
7 The Union's isolated cancellation of the bargaining session on the after-
noon of August 1 for legitimate busines reasons does not indicate that it bar-
gained in bad faith. See SCA Services of Georgia, 275 NLRB 830, 834 (1985).
right to bargain over a change in the unit employees'
terms and conditions of employment on the basis of
the union's failure to request bargaining if the union
had clear and unequivocal notice of the proposed
change and was given that notice sufficiently in ad-
vance of implementation to permit meaningful bargain-
ing.8 However, when, as here, the parties are engaged
in negotiations, an employer's obligation to refrain
from unilateral changes extends beyond the mere duty
to give notice and an opportunity to bargain; it encom-
passes a duty to refrain from implementation at all, un-
less and until an overall impasse has been reached on
bargaining for the agreement as a whole.9 The Board
has recognized two limited exceptions to this general
rule: "[w]hen a union, in response to an employer's
diligent and earnest efforts to engage in bargaining, in-
sists on continually avoiding or delaying bargain-
ing,"1° and when economic_e_xigencies compel prompt
action." Such extenuating circumst c-how-
_ever,present in this case.
First, the parties had been meeting regularly at ap-
proximately 2-week intervals and had, at the meeting
just prior to August 1, actively bargained over the Re-
spondent's health and welfare and pension proposals.12
Further, as noted above, both parties anticipated the
Union's counterproposals with an expectation toward
reaching agreement. The Union's cancellation of the
afternoon session did not terminate bargaining; rather
the Respondent effectively cut off bargaining by de-
claring impasse when no impasse existed and by noti-
fying the Union of implementation as of midnight on
August 1.
Second, the Respondent proffered no evidence of
circumstances requiring that it cease its contributions
to the trust funds at the time it took this action. It sim-
ply took this action because that was its proposal on
the subject and it did not wish to wait for further bar-
gaining toward agreement or impasse.
The Union's cancellation of the afternoon bargaining
session on August 1 does not, of itself, amount to evi-
dence of bargaining intransigence sufficient to justify
the Respondent's unilateral implementation of its pro-
posals.13 Furthermore, the Respondent's precipitous
'E.g., Clarkwood Corp., 233 NLRB 1172 (1977).
9 See NLRB v. Katz, 369 U.S. 736 (1962); NLRB v. Auto Fast Freight, 793
F.2d 1126, 1129 (9th Cir. 1986), enfg. 272 NLRB 561 (1984); Winn-Dixie
Stores, 243 NLRB 972 (1979); Taft Broadcasting Co., 163 NLRB 475, 478
(1967), enfd. sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C.
Cir. 1968).
M & M Contractors, 262 NLRB 1472 (1982), citing MA Motor Lines,
215 NLRB 793 (1974).
Winn-Dixie, supra, 243 NLRB at 974 and fn. 9, citing Katz, supra, 369
"Indeed, the record indicates that on July 13 the Respondent modified its
proposal in response to the Union's demand and agreed to pay a portion of
the vested retirement funds to existing employees. Prior to July 13, the Re-
spondent had offered no payment of any part of the vested contributions.
" In M & M Contractors, the union refused, over a 7-month period, to give
the employer a date on which it would meet to bargain. In AAA Motor Lines,
the union similarly refused, over a 2-1/2-month period, to meet and bargain
BOTTOM LINE ENTERPRISES 375
declaration of impasse and notification of implementa-
tion as of midnight that night effectively precluded any
test of the Union's intentions.
In short, when the Respondent reacted to the
Union's cancellation of the afternoon bargaining ses-
sion by declaring impasse and threatening implementa-
tion as of midnight, it absolved the Union from follow-
ing through on its stated intention of "get[ting] back
to" the Respondent by making it appear that there was
no point in further meetings—that the Respondent was
committed to what it was planning to do. By that very
announcement, the violation was committed.
Having found that the parties were not at impasse in
their negotiations on August 1 and that no extenuating
circumstances existed, we conclude that the Respond-
ent violated Section 8(a)(5) and (1) by unilaterally im-
plementing its contract proposals and terminating its
contributions to the Union's health and welfare and
pension funds.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Mas-
ter Window Cleaning, Inc., d/b/a Bottom Line Enter-
prises, Hayward, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order, as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
"(c) Make whole the employees in the appropriate
unit by transmitting the contributions owed to the
Union's health and welfare and pension funds pursuant
to the terms of its collective-bargaining agreement with
the Union, and by reimbursing unit employees for any
medical, dental, or any other expenses ensuing from
the Respondent's unlawful failure to make such re-
quired contributions, in the manner set forth in this de-
cision."
2. Substitute the attached notice for that of the ad-
ministrative law judge.
with the employer about the terms for a new contract. By contrast, there is
nothing in the record here to show that the Union was continually avoiding
or delaying bargaining.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local No. 18,
affiliated with Service Employees International Union,
AFL–CIO as the exclusive bargaining representative of
our employees in the unit describedtelow, by unilater-
ally implementing changes in wages and terms and
conditions of employment of these employees at a time
when no impasse in bargaining with the Union has oc-
curred.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time window clean-
ers and maintenance employees employed at our
Hayward, California facility; excluding office
clerical employees, guards, and supervisors as de-
fined in the Act.
WE WILL, on request, reinstate the wages and terms
and conditions of employment that existed before the
unlawful unilateral changes, and WE WILL make whole
our unit employees, transmit the contributions owed to
the Union's health and welfare and pension funds pur-
suant to the terms of our collective-bargaining agree-
ment with the Union, and reimburse unit employees,
with interest, for any medical, dental, or any other ex-
penses ensuing from our unlawful failure to make such
required contributions. This shall include reimbursing
employees for any contributions they themselves have
made for the maintenance of the Union's health and
welfare and pension funds after we unlawfully discon-
tinued contributions to those funds; for any premiums
they may have paid to third-party insurance companies
to continue medical and dental coverage in the absence
of our required contributions to such funds; and for
any medical, dental, or other such bills they have paid
directly to health care providers that the contractual
policies would have covered.
MASTER WINDOW CLEANING, INC.,
D/B/A BOTTOM LINE ENTERPRISES
Ariel Sotolongo, for the General Counsel.
Steven Thomas Davenport Jr., of Walnut Creek, California,
for the Respondent.
Paul Supton, of San Francisco, California, for the Union.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was tried at Oakland, California, on February 27, 1989.
Charges on which the proceeding was based were respec-
tively filed on November 30, 1988, by Service Employees
Union Local 18, jointly with Building Service Employees
376
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pension Trust, and on January 4, 1989, by Local 18, affili-
ated with Service Employees International Union, AFL—CIO
(the Union). A consolidated complaint was issued January
25, 1989. The primary issue is whether Master Window
Cleaning, Inc., d/b/a Bottom Line Enterprises (the Respond-
ent), implemented a final offer prior to lawful impasse being
reached in collective-bargaining negotiations between the
parties and, relateclly, whether it then impermissibly ceased
making certain fringe benefit trust fund contributions on be-
half of bargaining unit employees as previously provided by
an expired agreement, in violation of Section 8(a)(1) and (5)
of the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by General Counsel and Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a California corporation with an office and
place of business in Hayward, California, has been engaged
in providing window cleaning and exterior building mainte-
nance services to customers located in Northern California.
It annually provides such services or sells and ships goods
valued in excess of $50,000 directly to customers or business
enterprises which themselves meet one of the National Labor
Relations Board's_ jurisdictional standards, other than the in-
direct inflow or indirect outflow standards. On these admitted
facts I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that
Service Employees Union Local 18 is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Outline of the Situation
The parties have had a collective-bargaining relationship
since approximately July 1984, for which the appropriate unit
is one including all full-time and regular part-time window
cleaners and maintenance employees at Respondent's Hay-
ward, California facility. The most recent collective-bargain-
ing agreement between the parties was one of 3 years' dura-
tion, effective until July 1, 1988.
A course of bargaining negotiations for contract renewal
commenced on May 10, 1988, and continued during several
more sessions spread over succeeding months.' All these
meetings took place at the Union's Oakland, California hall.
At all negotiating sessions the Union's bargaining official
was Representative Robert Russell, while Respondent was
principally represented by Labor Consultant H. Sanford
Rudnick, with company owner and President Richard Scott
also present each time.
Respondent produced a series of progressively varied writ-
ten proposals, keying every one of them by sequence and
subject matter to the actual contract. Each of these typed
documents tendered during the course of negotiations con-
tained the following preliminary language:
The Company reserves the right to add, to alter, amend,
modify or withdraw any proposal at any time during the
'All dates and named months are in 1988, unless otherwise indicated.
Negotiations. Further, all contract provisions are ten-
tative until there is a final acceptance in writing of the
entire Contraci
Following a meeting on August 1, Rudnick declared the
parties to be at impasse. Based on this declaration, Respond-
ent promptly implemented new terms and conditions of em-
ployment. No meetings have been held or requested since
that date.
B. Principal Findings
The first session on May 10 was typical as an opening col-
lective-bargaining episode. Respondent delivered a thorough
proposal running to 4 typed pages, with proposed changes to
12 of the contract's 16 sections. The Union's contribution at
this first meeting consisted of a handwritten sheet signed by
Russell, in which an annual 4-percent wage rate increase was
proposed along with maintenance of health and welfare bene-
fits plus modestly increased pension contributions over a de-
sired 3-year term.
This exchange left the parties considerably apart as to eco-
nomics alone, because Respondent's opening proposal called
for an immediate "across-the-board" wage decrease of 15
percent, reduced holiday and vacation benefits, substitution
of an employer health and welfare plan, deletion of pension
benefits, and other changes in phraseology designed to cut
labor costs. Respondent's opening proposal would delete the
existing 31-day union-security clause, while subcontracting
by the employer, as expressly prohibited in the contract, was
sought to be completely reversed in meaning as a stated
management right when "the need wises." Predictably, the
Union flatly rejected all significant portions of Respondent's
opening proposal.
When the parties negotiated again on May 20, movement
appeared mainly by Respondent reducing the proposed wage
decrease from 15 percent to 12 percent. The respective posi-
tions remained essentially unchanged at this second bargain-
ing session, save only for the Union's agreement to delete
a prior requirement for furnishing and cleaning work clothes
at employer expense.
The third bargaining session occurred on June 8. Respond-
ent's series of progressively changing proposals include a
document admitted into evidence as General Counsel's Ex-
hibit 7. While a dispute exists from the testimony as to
whether this document actually surfaced in the negotiating,
discussion on June 8 revolved around its terms plus the
Union's proposed shortening of contract language covering a
referral system. By this time Respondent's wage proposal
sought only an across-the-board decrease of 8 percent.
With only scattered and inconsequential tentative agree-
ments in hand, the parties bargained on June 28 when con-
tract expiration was only 3 days away. For this meeting the
Union presented specific counterproposals, its first com-
prehensive written expression of position since the opening.
exchange. In this an across-the-board hourly wage increase
of 35 cents was sought with immediate effect, and a mod-
estly increased schedule of minimum hourly rates from the
third step up was proposed. Additionally, employees to be
newly hired after July 1 were proposed to have only limited
holiday benefits, and the Union's original proposal on in-
creasing pension contributions was cut back. For Respond-
ent's part it presented new economic terms by offering a
377 BOTTOM LINE ENTERPRISES
wage freeze for existing employees, coupled with a reduced
starting hourly rate for new hires of $6.66. Additionally it of-
fered to provide, in principle, its own private retirement plan.
The document embodying these changes ran to five typed
pages, and was headed as fourth in the series but specifically,
and for the first time, prominently labeled a "Final Pro-
posal." The Union again mainly rejected Respondent's pack-
age, but agreement was reached on June 28 to continue the
union-security clause and make other minor changes in con-
tract language. Another meeting was routinely scheduled,
without apparent concern for contract expiration occurring in
the interim.
When the parties met on July 13, Respondent offered a
wage increase for present employees, and a separate schedule
of progressive hourly wage rates for those to be hired in the
future culminating at a journeyman rate of $12.77 per hour.
Additionally Respondent proposed a buy-back of the vested
pension benefits enjoyed by employees, and for the first time
offered a contract term of 2 years rather than only 1. This
configuration of changes resulted after Respondent twice
caucused during the course of this meeting, and returned
with handwritten proposals representing a progressive sweet-
ening of its offer. The Union rejected ultimate content of Re-
spondent's aggregate proposal on July 13, however in the
process Russell had verbally countered with a proposal that
new hires be paid on the $7.66 to $12.77 hourly rate scale
of the expired contract. In consequence the parties remained
in disagreement on major topics. After inconclusive discus-
sion about whether the Union would conduct a vote among
employees on the pending offer, the parties agreed to meet
again on July 25. At Russell's request this meeting date was
changed to August 1. Rudnick's assent to this was contained
in his confirming letter to Russell dated July 22, in which
he made the point that postponement also demonstrated Re-
spondent's "good faith" in delaying a previously expressed
intention to "implement our final proposal on July 25."
When the parties met on August 1, Respondent presented
a wage schedule for employees to be newly hired, under
which their progression to journeyman wage rate was inad-
vertently shown as completing in only four steps rather than
five as previously proposed. Russell expressed pleasure with
such apparent movement by Respondent, and stated that the
Union would offer counterproposals after a lunchbreak. As it
eventuated Russell was directed by Acevedo to cover another
meeting that afternoon on an emergency basis, while
Acevedo would return to the instant negotiations for what-
ever purpose could be served. Being unprepared to do so,
Acevedo made no attempt to deliver the expected postlunch
counterproposals. Upon arriving back Acevedo was advised
by Rudnick that unless negotiations continued through the
afternoon, Respondent would implement its existing compos-
ite proposal. Acevedo responded that he was not equipped to
conduct negotiations about which Russell was fully familiar.
Scott, the only percipient witness to these events, testified
that Acevedo said the Union would "get back" to the nego-
tiations as a seemingly final remark. Rudnick remained ada-
mant about making an implementation, and the meeting con-
cluded on that note. Rudnick immediately wrote to Russell
by letter dated August 1. After a preliminary recitation of
background, Rudnick's letter continued to a conclusion as
follows:
At 1 p.m. after the Employer returned from lunch,
we found out by your secretary and Mr. Azevedo [sic],
that you had to cancel negotiations due to Union busi-
ness. You stated you would get back to the Employer
at some future time. I believe Mr. Azevedo could have
handled this matter for you since we have been trying
to obtain a contract for months and we were about to
make some progress. At that time I told Mr. Azevedo
we would still continue negotiations that same evening.
However, we were going to implement on August 1st
at 12 midnight unless we reached a contract.
Nevertheless, your conduct can only be viewed as
bargaining in bad faith by stalling, delaying and cancel-
ling negotiations. You were not even going to take our
Proposal to the employees to vote or ratify.
Therefore, due to your delaying, the Employer has
no choice but to implement its August 1, 1988 Proposal
at 12 midnight since we are at impasse and your con-
tract can only be viewed as rejecting our Final Pro-
posal. Your Union can only be blamed for not reaching
a fair and equitable contract.
By subsequent letter dated August 22, Rudnick advised the
Union, specifying attention of Acevedo, that Respondent's
cessation of contributions to the previously applicable em-
ployee trust fund and pension plan was effective August 20
because the parties "are at impasse."
The only known communication after this was a letter
dated October 13 from Russell to Rudnick grieving Respond-
ent's failure to make "payroll deduction of union dues" for
the past 3 months. Russell's letter took the position that
members of the Union were no longer liable for those dues,
and demanded an immediate employer remittance of $300 to
cure the lost revenue. Whether viewed at the conclusion of
discussions on July 13 or August 1, and irregardless of the
labelings appearing from June 28 onward, Respondent had
soon reached a point following expiration of the contract
from which it claimed there would be no yielding. After
reading in a correction to General Counsel's Exhibit 13 at
the bottom of page 3, by substituting the intended amount
"$11.49" for "$12.77" and assuming the higher hourly rate
to apply only after passage of a stated 180 days, Respond-
ent's wage offer had finally stalled from one session to the
next at two 25-cent hourly increases for existing employees
during a 2-year contract term, and a wage schedule for new
hires that would commence economically low and progress
only to the recently expired top journeyman rate. The bar-
gaining subjects of both health and welfare benefits and a
pension plan had surfaced, in principle and evolving detail,
as employer provided features in place of the Union's pro-
grams. Finally, Respondent's desire for virtually unfettered
subcontracting rights had appeared consistently and without
any change of proposed wording in the entire series of pro-
posals. Thus Respondent's final bargaining position of July
13 continued as one and the same thing to August 1, when
a new typed proposal intendedly summarized the several
modifications made on July 13.
C. Credibility
I generally credit the testimony of Russell on observed de-
meanor and impression grounds. While loose or halting at
times, I am satisfied that generally he was consistently sin-
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cere and attemptedly truthful. In keeping with this assess-
ment I find, as claimed by Russell, that no negotiating ses-
sion took place between the parties on the date of June 17.
Scott failed to persuade that he was possessed of an accu-
rate recollection or inclined to be candid in what he offered
as testimony. Aside from subjective factors in assessing his
credibility, I identify three distinct reasons for giving only
slight weight to his recollections. First he demonstrated a
particular tendency to be fanciful in clinging to a belief that
the parties had met for negotiations on June 17. Nothing in
the surrounding facts, nor even what is available from his
labor consultant's writings, would remotely establish that
claim. Second, he was argumentative and evasive about the
role of Acevedo in the course of bargaining. Again the entire
context shows this individual had little or no role in the ne-
gotiations, wholly contrary to what Scott would have it be-
lieved. This infirmity in Scott's version is best exemplified
by his inherent self-contradiction in saying that from and
after June 8 Acevedo would "be involved" in negotiations,
without any explanation about why Acevedo's absence dur-
ing the morning portion of a crucial meeting on August 1
was not remarkable (Tr. 187, 227). Third, Scott was blatantly
mistaken in testifying that Russell had not offered to make
an inviting counterproposal during the intended afternoon
portion of negotiations on August 1. All persuasive evidence
is that Russell did exactly this. He emphatically so testified,
and most importantly Rudnick's own writing, found in Gen-
eral Counsel's Exhibit 16, plainly tells of this intention by
his union counterpart.2 This array of contradicting evidence
provides ample basis to reject the major thrust of Scott's tes-
timony.
There is, however, one notable exception to the discredit-
ing of Scott. I am satisfied that he has correctly complained
that the typed proposal advanced by Rudnick on August 1
did in fact contain an error as to proposed wage progression
for new hires. Nothing about the theory or bargaining pattern
of Respondent would suggest a proposed rise in wages for
new hires from start to journeyman rate in only the 10-month
span that is literally shown in the faulty schedule. This de-
parts both in theme and format from Respondent's obvious
intent, regardless of whether Russell took it to show a wel-
come change. Furthermore, minor inadvertencies in the series
were not unprecedented, as with omission of an intended 25-
cent-per-hour pay raise on January 1, 1990, and the mistaken
word "some" for "same" as once applied to holidays.
D. Contentions
General Counsel contends generally that no impasse ex-
isted between the parties as of August 1 which would war-
rant any implementation of the employer's existing bargain-
ing proposals. Several anticipated defenses are traced and
discussed, with General Counsel arguing in all instances that
they lack merit.
Respondent contends that a bona fide impasse in negotia-
tions was reached on July 13, and this was not broken on
August 1 'because no new wage proposal actually emanated
2 As a statement of position made authoritatively on behalf of Respondent
subsequent to filing of the charge, a document such as this is commonly ad-
missible in evidence. Steve Aloi Ford, 179 NLRB 229 (1969); V & W Cast-
ings, 231 NLRB 912 (1977); Florida Steel Corp., 235 NLRB 1010 (1978);
Thriftway Supermarket, 276 NLRB 1450 (1985); Massillon Community Hos-
pital, 282 NLRB 675 (1987).
from the employer during that session. Additionally Re-
spondent contends that Russell did not indicate the Union
would make a counterproposal at any time during, or in con-
nection with, the negotiations of August 1. Relatedly, Re-
spondent contends that even upon a finding that Russell had
intended to make a counterproposal, controlling law would
require it to have been specific and substantial in its expected
nature. Respondent also argues that failure of the Union to
protest discontinuance of trust fund contributions legitimizes
such action as taken on August 22. Finally, Respondent con-
tends that the Union's failure to bargain in good faith by fail-
ing ,to complete the negotiation on August 1 precludes hold-
ing the employer in violation of the Act.
E. Analysis
Both parties point to Taft Broadcasting Co., 163 NLRB
475 (1967), enfd. sub nom. Television Artists AFTRA v.
NLRB, 395 F.2d 622 (D.C. Cir. 1968), as the bench mark
ruling in terms of issues here. In Taft Broadcasting, the
Board held that a claim of impasse requires the evaluation
of several factors. These involve bargaining history, good
faith, length of negotiations, importance of issues, and con-
temporaneous understandings. Here, the factor of bargaining
history was neutral in significance from anything known,
good faith was generally present in dealings up to July 13,
the negotiations had not been of an excessive length as to
suggest futility, important economics issues remained for res-
olution, and no contemporaneous understanding existed that
would justify a leap to the conclusion of impasse. The basic
nature of these negotiations from Respondent's standpoint
was to break down the densely worded contract having a fa-
vorable slant in language toward the Union, and simulta-
neously succeed in concession bargaining as to economics.
But a mere five sessions had narrowed the parties' dif-
ferences on the important matter of wages to the point that
improvement for at least existing employees was offered, and
the proposal of a two-tiered approach for the compensation
of new hires was reasonably related to what the Union might
predictably accept.
Both the subjects of a health and welfare plan and a pen-
sion plan were only embryonically described in Respondent's
proposals, and each subject provided ample room for modi-
fication, refinement and agreement as to details. As to sub-
contracting, the fourth and final major issue between the par-
ties as they bargained during July and August, it is true that
Respondent had steadfastly maintained a "tough" stance
from the start and that even Russell admitted to the "in
depth" discussions of the subject at both the last two meet-
ings. However, this does not mean that the subject appeared
so intractable as to make the possibility of a compromise
seem futile. Indeed the very fact that Respondent was pro-
posing its own sponsored benefit plans for employees would
weaken any claim that the near-absolute right to make sub-
contracting arrangements was that important to it. To the ex-
tent that subcontracting might greatly reduce Respondent's
complement of employees at a future time, this would leave
progressively lessened reason for it to obtain and administer
comprehensive benefit plans.
The most important evidence of all regarding the factor of
"contemporaneous understanding" between the parties is the
credited testimony- of Russell that an intent was present to
counterpropose boldly after only a standard lunchbreak on
BOTTOM LINE ENTERPRISES 379
August 1. The understandable fact that a business emergency
prevented this does not justify Respondent's demand that the
promise be immediately fulfilled at risk of having impasse
successfully declared. The parties had been meeting regularly
at approximately 2-week intervals. This isolated instance of
Russell pulling out as he did for good reason, provided no
basis to really believe the bargaining momentum would be
significantly impaired. See Colfor, Inc., 282 NLRB 1173,
1174 (1987). Cf. Hotel Roanoke, 293 NLRB 182, 184-185
(1989). Thus none of the factors specified by Taft Broadcast-
ing operate to support Respondent's course of action. Addi-
tionally, there is insufficient showing that further bargaining
might not have been productive as matters stood on August
1. The Union had just generally demonstrated a willingness
to weigh and consider all prospects of overall contract agree-
ment. While Respondent correctly emphasizes that its pro-
posal to allow subcontracting had been resolutely opposed
from the beginning, this does not, as suggested above, mean
that it was an absolutely inviolate demand. Movement by the
Union on basic economics, wages in particular as once done
before, could readily have brought a compromise on the
topic of subcontracting. This holding squares with recent ra-
tionale of the Board to the effect that only when ."impasse
on a single or critical issue creates a complete breakdown in
the entire negotiations" can an employer be freed to imple-
ment its last, best, and final offer. Sacramento Union, 291
NLRB 552 (1988). This reasoning is also found in the sum-
mary of case law made in Patrick & Co., 248 NLRB 390,
393 (1980). That opinion reads, in part:
In short, "the negotiations were not sufficiently exhaus-
tive to find that an impasse had already been reached."
Carpenter Sprinkler Corp. v. N.L.R.B., 605 F.2d [60,
651 (2d Cir: 1979). For the very nature of collective
bargaining presumes that, while movement may be slow
on some issues, a full discussion of other issues, which
as in the instant case have not been the subject of
agreement or disagreement, may result in agreement on
stalled issues. "Bargaining does not take place in isola-
tion and a proposal on one point serves as leverage for
positions in other areas." Korn Industries, Inc. v.
N.LR.B., 389 F.2d 117, 121 (4th Cir. 1967). Thus,
"had the respondent been willing to bargain further,
much more might have been accomplished through the
give and take atmosphere of the bargaining table."
N.L.R.B. v. Sharon Hats, Inc., 289 F.2d 628, 632 (5th
Cir. 1961)1
As comparably decided in D.C. Liquor Wholesalers, 292
NLRB 1234 (1989), the instant case involved a failure to ex-
haust "all reasonable expectations of compromise." D.C.
Liquor Wholesalers is also instructive in pointing out that
resolution of a key impasse issue must look beyond rhetoric,
posturing and sharp dealing. Here a series of final offers
tends to diminish the sincerity of whether any of them were,
while repeated announcement of imminent implementation
comes to be seen only as a bargaining tactic. Teamsters
Local Union 175 v. NLRB, 788 F.2d 27, 31 (D.C. Cir. 1986);
Louisville Plate Glass Co., 243 NLRB 1175, 1181 (1979).
Accordingly, the declaration of impasse and associated two-
stage implementation of Respondent's final offer constituted
a violation of the Act as alleged.
Respondent relies on Alsey Refractories Co., 215 NLRB
785 (1974), in its alternate contention that the impasse of
July 13 was not broken. 1 disagree with Respondent's assess-
ment. The posture of negotiations on July 13 no more justi-
fied a claim of impasse than it did on August 1, and for the
same reasons as to both points in time. See Patrick & Co.,
supra at fn. 4. NLRB v. U.S. Sonics Corp., 312 F.2d 610 (1st
Cir. 1963), also cited by Respondent, is highly distinguish-
able on its facts, and not truly supportive of the point being
urged.
F. Respondent's Other Defenses
Pepsi-Cola-Dr. Pepper Bottling Co., 219 NLRB 1200
(1975), a case relied on by Respondent for its contention that
any last-ditch counterproposal must be specific and substan-
tial, turned only on an evidentiary point. As correctly de-
scribed in Respondent's brief, it was that content of another
labor agreement, not received in evidence, left it impossible
to determine whether a union's reference to such contract as
the formula for a new bargaining position "constituted any
change, much less a substantial change" from its prior posi-
tion in negotiations. Here General Counsel's burden of proof
was well fulfilled through Russell's detailed and persuasive
testimony about the Union's options. Webb Furniture Corp.,
152 NLRB 1526 (1965), also relied on by Respondent, is
similarly unavailing.
Respondent's claim that a waiver of rights occurred be-
cause the Union failed to directly protest discontinuance of
trust fund contributions is also unavailing. There was no le-
gally cognizable waiver, nor do several cases cited support
the proposition in this context, and the Union's protest was
embodied in the unfair labor practice charge soon filed. Cf.
Laborers Health & Welfare Trust Fund v. Advanced Light-
weight Concrete Co., 779 F.2d 497, 504 (9th Cir. 1985).
Other collateral defenses are without merit. The delay in
bargaining which changed the second July date to August 1
was a routine cancellation and rescheduling of business af-
fairs. I give no weight to Scott's suspect testimony that Rus-
sell agreed to a July 25 meeting date with such finality that
it could not be safely changed. As to the role of Acevedo,
it is simply unreasonable for Respondent to expect or de-
mand that he step into the place of a chief negotiator for his
organization after the course of bargaining has matured over
several sessions.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act. '
3. The following constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
All full-time and regular part-time window cleaners and
maintenance employees employed by Respondent at its
Hayward, California facility; excluding office clerical
employees, guards, and supervisors as defined in the
Act.
4. At all times material the Union has been the exclusive
representative for purposes of collective bargaining of the

380

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees in the above-described appropriate unit within the
meaning of Section 9(a) of the Act.
5. By unilaterally implementing its final contract offer on
or about August 2 and 20, 1988, thereby effecting changes
in unit employees' wages and terms and conditions of em-
ployment, at a time when no impasse in bargaining with the
Union had occurred, the Respondent refused to bargain col-
lectively with the Union in violation of Section 8(a)(1) and
(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall order it to cease and desist to take certain
affirmative action designed to effectuate the policies of the
Act.
Specifically, having found that Respondent unilaterally im-
plemented its final contract offer at a time when no impasse
had occurred, I shall order the Respondent, on request, to
bargain collectively in good faith with the Union on terms
and conditions of employment of unit employees and, if an
understanding is reached, to embody the understanding in a
signed agreement.
I shall order the Respondent, if requested by the Union,
to reinstate the wages and terms and conditions of employ-
ment that existed before its unlawful changes, and to make
whole unit employees for any losses suffered as a result of
its unlawful action in the manner prescribed in Ogle Protec-
tion Service, 183 NLRB, 682, 683 (1970), with interest to be
computed in the manner set forth in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Finally, to the extent that the unlawful unilateral changes
implemented by Respondent may have improved the terms
and conditions of employment of unit employees, I note that
no provision of my recommended Order shall in any way be
construed as requiring the Respondent to revoke such im-
provements.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Master Window Cleaning, Inc., d/b/a
Bottom Line Enterprises, Hayward, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
3 If no ,exceptions are filed as provided by Sec. 102.46 of the Board's 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 objec-
tions to them shall be deemed waived for all purposes.
(a) Refusing to bargain with Service Employees Inter-
national Union Local 18 as the exclusive bargaining rep-
resentative of its employees in the unit described below, by
unilaterally implementing changes in wages and terms and
conditions of employment of unit employees at a time when
no impasse in bargaining with the Union has occurred.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively in good faith with the
Union as the exclusive bargaining representative of the em-
ployees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached, em-
body the understanding in a signed written agreement:
All full-time and regular part-time window cleaners and
maintenance employees employed by Respondent at its
Hayward, California facility; excluding office clerical
employees, guards, and supervisors as defined in the
Act.
(b) On request, reinstate the wages and terms and condi-
tions of employment that existed before the unlawful unilat-
eral changes, arul make whole unit employees for any loss
suffered as a result of these unilateral changes, with interest.
However, no provision of this Order shall in any way be
construed as requiring the Respondent to revoke 'Unilaterally
implemented improvements in terms and conditions of em-
ployment to unit employees.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Hayward, California premises, copies of the
attached notice marked "Appendix."4 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
°If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading "Posted by Order of the National Labor Rela-
tions Board" shall read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board."