Brown-Graves Lumber Co.

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 640 (N.L.R.B. 1990)

640
300 NLRB No. 71
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 After that date, the contract was extended on a day-to-day basis.
2 In 1986 the Respondent obtained the casual labor from Hours, Incor-
porated, a provider of temporary and casual help.
3 All dates are in 1986 unless otherwise indicated.
4 The record shows, as recognized by the judge, that the Union had not
agreed to implement this change before reaching, or independent of, a com-
plete successor contract with the Respondent.
5 The record shows that this change would amount to a labor-cost savings
of 9-1/2 cents per hour for the Respondent.
6 The record shows that the parties agree that a bargaining impasse was not
reached at this meeting.
7 The judge found that when this announcement was made, the Respondent
had already decided to retain the casuals regardless of the Union’s position.
8 In a November 26 letter to the Respondent, the Union renewed its objec-
tion to this extended use of casual labor.
9 The record indicates that about 9 or 11 casual employees were retained
after November 30 and worked several weeks for the Respondent.
Brown-Graves Lumber Company and Local Union
No. 1242, United Brotherhood of Carpenters
and Joiners of America, AFL–CIO. Case 8–
CA–19749
October 31, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On September 7, 1989, Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Charging Party filed exceptions and a supporting brief.
The Respondent filed an answering brief to the Charg-
ing Party’s exceptions.
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The Respondent is engaged in the wholesale and re-
tail sale of lumber and building products in Akron,
Ohio. It has had a collective-bargaining relationship
with the Charging Party Union since 1938. The Union
represents those employees who work in or about the
Respondent’s warehouse, yard, shop, and factory, but
excluding the warehouse hardware employees, truck-
drivers, and office employees.
The Union’s most recent collective-bargaining
agreement with the Respondent expired on August 31,
1986.1 Article XXX, section K, of this 3-year agree-
ment basically allowed the Respondent to use casual
labor to do certain unit work during the period March
15 through November 30 of each contract year.2 Ac-
cording to this provision, the Respondent, however, re-
quired the Union’s consent to extend the above dates.
As more fully discussed by the judge, the Respond-
ent and the Union were engaged in negotiations for a
successor agreement from July 31 through December
22, 1986.3 In these negotiations, the Respondent
sought a rollback of employee wages and benefits to
achieve savings of $2.09 per hour in labor costs. Early
in their negotiations, the Respondent and the Union
tentatively agreed to change article XXX, section K, of
the old contract4 to permit the Respondent to use cas-
ual labor year round.5 At their November 12 session,6
following the discussion on the selection of a date for
their next negotiation session, the Respondent told the
Union that it intended to retain the casual labor after
November 30.7 During this meeting, the Union ob-
jected to any extension beyond November 30.8 At their
next bargaining session held on December 8, the Re-
spondent presented a final contract offer, which was
subsequently rejected by the Union and its members.
The Respondent took the position that an impasse in
bargaining existed and, on December 22, essentially
implemented its December 8 final offer. Meanwhile,
after November 30, the Respondent retained the casual
labor to do unit work.9
In 1984 and 1985, the Union also refused permis-
sion to the Respondent to retain casual labor beyond
the contractual cutoff date. On those occasions, unlike
the situation in 1986, the Respondent responded by
hiring the casuals as regular unit employees.
The judge found that the Respondent’s continued
use of casual labor after November 30 was lawful be-
cause a material, substantial, and significant unilateral
change had not occurred. Although he found that, after
November 30, the casuals performed work that regular
unit employees would have done, thereby decreasing
work opportunities and possible overtime of regular
unit employees, he concluded on his review of similar
events in 1984 and 1985 that the retention of the cas-
uals in 1986 did not have a significant effect on the
bargaining unit. He reasoned that any loss in work op-
portunities for unit employees on the payroll prior to
November 30 was the same whether the casuals were
hired as additional unit employees (the 1984–1985
method) or continued to be supplied by an outside con-
tractor (the 1986 method). The judge also found that
the Respondent was justified in implementing its De-
cember contract proposals on December 22 because a
valid bargaining impasse existed as of December 8. In
light of the above findings, the judge dismissed the
8(a)(5) complaint allegations.
The Union excepts and argues that the judge’s find-
ings are erroneous. The Union first contends that the
retention of the casual labor in 1986 differed from the
Respondent’s past practices of 1984 and 1985 and,
thus, contrary to the judge’s findings, had a substantial
effect on the number of unit employees and on the
amount of work hours available to the unit after No-
vember 30. The Union thus argues that the retention
641BROWN-GRAVES LUMBER CO.
10 As an initial matter, we note that the casual-labor issue was litigated and
argued before the judge in regard to the resolution of questions of impasse,
waiver, and impact on the bargaining unit. The judge resolved this issue by
accepting the Respondent’s argument that the change had no significant impact
on the unit. The linchpin of the judge’s reasoning, which the Respondent does
not challenge in its answering brief, is the premise that the Respondent’s deci-
sion to retain casuals in 1986 constitutes a mandatory subject of bargaining.
Accordingly, in view of the manner in which this case was litigated and
briefed to the judge and to the Board, and in the absence of exceptions to
the judge’s decision by the Respondent, we conclude that the Respondent has
forgone any claim that the retention of the casual labor in 1986 is not a man-
datory subject of bargaining, and that this issue is not before us.
11 Cf. Mashkin Freight Lines, 272 NLRB 427 (1984) (the employer violated
Sec. 8(a)(5) and (1) by its increased use of nonunit employees because they
affected the work opportunities otherwise available to the unit).
12 ‘‘Absent a valid, preexisting impasse, or the consent of the union, an em-
ployer, during the course of contract negotiations, is not free to implement
proposed changes or those tentatively agreed to by the parties.’’ Marriott In-
Flite Services, 258 NLRB 755 fn. 2 (1981), enfd. 729 F.2d 1441 (2d Cir.
1983).
of casuals beyond November 30 was a unilateral
change in terms and conditions of unit employees’ em-
ployment. The Union further contends, inter alia, that
any purported bargaining impasse reached in Decem-
ber was tainted by the Respondent’s unlawful retention
of the casual labor after November 30.
In response to the Union’s first exception, the Re-
spondent’s defense of its actions focuses on the fol-
lowing two grounds: (1) the retention of the casual
labor in 1986 was not a material, substantial, or sig-
nificant change in the terms and conditions of the bar-
gaining unit employees;10 and (2) the Union had pre-
viously agreed to the use of casual labor after Novem-
ber 30 and never pursued bargaining over this issue
after November 12. In response to the Union’s second
contention, the Respondent claims that the judge cor-
rectly concluded that a good-faith bargaining impasse
was reached at least by December 8.
We find merit in the Union’s exceptions. For the
reasons set forth below, we conclude that the Respond-
ent violated Section 8(a)(5) and (1) when it unilaterally
retained the casuals after November 30. We addition-
ally find that this unfair labor practice tainted the par-
ties’ further bargaining in December. Consequently, we
conclude that the Respondent also violated Section
8(a)(5) and (1) when it implemented its contract pro-
posals on December 22 in the absence of a valid,
good-faith bargaining impasse.
Initially, we find that the judge’s analysis fails to
recognize a critical difference between the Respond-
ent’s practices of 1984 and 1985 and its action in 1986
and the full ramification of that difference. When the
casual employees were hired as unit employees after
November 30, in 1984 and 1985, the unit work which
had been temporarily removed from the unit between
March 15 and November 30 pursuant to article XXX,
section K of the contract, was returned to the unit on
expiration of the period specified by that contractual
provision. In contrast, when the casual employees con-
tinued to be retained as nonunit employees beyond the
contractually specified period, as was done in 1986,
the unit work assigned to them effectively was perma-
nently removed from the unit. Thus, the Respondent’s
retention of casuals as nonunit employees in 1986 had
a substantial effect on the unit employees as a group
because post-November 30 work opportunities for-
merly enjoyed by fellow unit employees (i.e., casuals
subsequently hired as regular unit employees) were no
longer available and would no longer be performed
under the unit’s own terms and conditions of employ-
ment.11 We therefore find that the 1986 retention of
the casuals as nonunit employees past November 30
represents a material, substantial, and a significant
change from the Respondent’s prior practices of 1984
and 1985.
In view of the above finding, we next address the
Respondent’s waiver argument. The Respondent argues
that the use of the casual labor after November 30 had
been previously agreed to by the Union during negotia-
tions and that the Union never pursued bargaining over
this issue after November 12. Initially, we find that the
parties’ tentatively agreed-on revision of article XXX,
section K of the contract is not indicative of a waiver
here because, as found by the judge, the parties always
negotiated a complete contract rather than imple-
menting their agreements piecemeal. Thus, the Union’s
agreement to the revision was part of the give and take
of collective bargaining and, as such, can only be
deemed tentative or conditional and dependent on the
ultimate outcome of negotiations.12 It is undisputed
that the Respondent’s announcement about the ex-
tended use of the casual labor occurred in the midst of
the parties’ ongoing bargaining over the Respondent’s
overall rollback plan. It is also undisputed that the
Union made clear its specific objection to the extended
use of the casuals, which constituted one component of
the Respondent’s overall rollback plan. Under these
circumstances, we do not find a clear and unmistakable
waiver by the Union. Accordingly, we find that the
Respondent violated Section 8(a)(5) and (1) of the Act
by its use of casual labor after November 30.
We now turn to the question of whether the parties
had reached a valid, good-faith bargaining impasse be-
fore or on December 22. The Union contends that, in
view of the Respondent’s unlawful unilateral retention
of casuals after November 30, no impasse existed. The
Union relies on Associated Machine, 271 NLRB 367,
374 (1984), enfd. mem. 782 F.2d 1051 (9th Cir. 1986),
in which the Board found that an employer’s earlier
unlawful wage reduction would so ‘‘poison’’ the bar-
gaining atmosphere as to prevent any finding of a
good-faith impasse. The Respondent argues that even
if the retention of casuals after November 30 con-
stitutes an unlawful unilateral change, it nevertheless
reached a good-faith bargaining impasse with the
Union before December 22. In support of the argument
that parties can bargain to a valid impasse even after
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 See Storer Communications, 297 NLRB 296 (1989). Member Cracraft
agreed with her colleagues in Storer Communications that the employer’s un-
lawful unilateral implementation of a revised drug/alcohol policy did not pre-
clude subsequent good-faith bargaining to impasse over the terms of a new
collective-bargaining agreement. However, unlike her colleagues in that case,
Member Cracraft would have required the employer to rescind the unlawfully
implemented policy revisions. In any event, she agrees with her colleagues
here that the bargaining subsequent to the Respondent’s unlawful unilateral re-
tention of casual workers did not lead to impasse.
14 See Associated Machine, supra at 374–375.
an unlawful unilateral change, the Respondent pri-
marily relies on NLRB v. Cauthorne Trucking, 691
F.2d 1023 (D.C. Cir. 1982).
Although we agree with the general proposition of
Cauthorne that there is no absolute rule that an unlaw-
ful unilateral change precludes a later good-faith im-
passe in negotiations,13 we find no valid, good-faith
impasse occurred here. It is true, as the Respondent
contends, that the Respondent and the Union resumed
their contract negotiations after the unlawful unilateral
change involving the casuals occurred. But following
the unilateral change there was no further discussion of
the casual labor issue in subsequent negotiations in De-
cember. In our view, the omission of what had been
an integral part of the economic package is critical.
As revealed by the record, the casual-labor issue
constituted just one component of the Respondent’s
general cost-cutting goal of $2.09 per hour, and, as
such, was inextricably tied to the other matters under
consideration throughout the parties’ concession bar-
gaining and, in particular, to those matters discussed
during the December sessions. When the Respondent
announced that it intended to retain the casuals past
November 30, it removed this issue, at least as it con-
cerned 1986, from the bargaining table and it clearly
deprived the parties of an element of flexibility, i.e., an
opporunity to change their minds thereafter and reach
the Respondent’s desired economic relief with a dif-
ferent combination of concessions. In fact, the judge
found that the Respondent was still intent on exploring
different ways to meet its $2.09 figure on costs at the
December 15 negotiation session. At the very least,
then, the unrescinded unilateral change involving the
retention of the casuals after November 30 reduced
bargaining flexibility and thus hampered the subse-
quent bargaining.14 Under these circumstances, we find
that the Respondent was not justified in implementing
its final contract offer on December 22 and thereby
unilaterally changed the wages, benefits, and other
terms and conditions of employment of the unit em-
ployees in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
1. By retaining the casual employees after Novem-
ber 30 and by unilaterally implementing its contract
proposals on December 22, thereby changing the
wages, benefits, and other terms and conditions of em-
ployment for bargaining unit employees, the Respond-
ent violated Section 8(a)(5) and (1) of the Act.
2. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
and is engaging in certain unfair labor practices, we
shall order that it cease and desist and take certain af-
firmative action designed to effectuate the policies of
the Act.
Specifically, we shall order that, on request, the Re-
spondent bargain with the Union and, if an under-
standing is reached, embody the understanding in a
signed agreement. We shall also order that, on request,
the Respondent specifically bargain with the Union
concerning that decision to retain casual employees
after November 30, 1986. We shall also order that, on
request, the Respondent restore the status quo ante and
rescind the unilateral changes made commencing De-
cember 1 and 22, 1986, and make all affected unit em-
ployees whole for any losses they incurred by virtue
of its unilateral changes from December 1 and 22,
1986, until it negotiates in good faith with the Union
to agreement or to a valid impasse. If the Union elects
to have previous conditions restored, calculations of
the sums and payments necessary to make employees
whole, with interest, shall be computed in accordance
with normal Board policy. See Ogle Protection Serv-
ice, 183 NLRB 682 (1970); New Horizons for the Re-
tarded, 283 NLRB 1173 (1987); Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979).
ORDER
The National Labor Relations Board orders that the
Respondent, Brown-Graves Lumber Company, Akron,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Local
Union No. 1242, United Brotherhood of Carpenters
and Joiners of America, AFL–CIO as the exclusive
bargaining representative of the employees in the bar-
gaining unit described below by unilaterally retaining
casual employees after November 30, 1986, and by im-
plementing its December 1986 contract proposals that
changed the wages, benefits, and other terms and con-
ditions of employment of bargaining unit employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with Local Union No. 1242,
United Brotherhood of Carpenters and Joiners of
America, AFL–CIO as the exclusive representative of
the employees in the following appropriate unit con-
643BROWN-GRAVES LUMBER CO.
15 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
cerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in
a signed agreement:
All employees employed in or about the Respond-
ent’s warehouse (excluding warehouse hardware
employees), yard, shop, and factory, and except-
ing truck drivers and office employees.
(b) On request, bargain in good faith with the Union
concerning the decision to retain casual employees
after November 30, 1986, rescind the unilateral
changes in the unit employees’ wages, benefits, and
other terms and conditions of employment that were
made commencing December 22, 1986, and make all
those unit employees whole, with interest, for any
losses they incurred by virtue of its unilateral changes
to their wages, benefits, and other terms and conditions
of employment from December 1 and 22, 1986, until
it negotiates in good faith with the Union to agreement
or to a valid impasse in the manner set forth in the
remedy section of this decision.
(c) 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
due under the terms of this Order.
(d) Post at its Akron, Ohio office copies of the at-
tached notice marked ‘‘Appendix.’’15 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent 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 Re-
spondent has taken to comply.
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 in good faith with
Local Union No. 1242, United Brotherhood of Car-
penters and Joiners of America, AFL–CIO as the ex-
clusive bargaining representative of the employees in
the bargaining unit described below by unilaterally re-
taining casual employees after November 30, 1986,
and by implementing our December 1986 contract pro-
posals that changed the wages, benefits, and other
terms and conditions of employment for bargaining
unit employees.
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 as the
exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All employees employed in or about our ware-
house (excluding warehouse hardware employees),
yard, shop, and factory, and excepting truck driv-
ers and office employees.
WE WILL, on request, bargain in good faith with the
Union concerning the decision to retain casual employ-
ees after November 30, 1986, rescind the unilateral
changes in the unit employees’ wages, benefits, and
other terms and conditions of employment that were
made commencing December 22, 1986, and WE WILL
make all those unit employees whole, with interest, for
any losses they incurred by virtue of our unilateral
changes to their wages, benefits, and other terms and
conditions of employment from December 1 and 22,
1986, until we negotiate in good faith with the Union
to agreement or to a valid impasse.
BROWN-GRAVES LUMBER COMPANY
Steven D. Wilson, Esq., for the General Counsel.
Gary W. Spring, Esq. and George W. Rooney, Esq. (Roetzel
& Andress), of Akron, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. Pursuant
to a charge filed on January 2, 1987, by Local Union No.
1242, United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL–CIO (the Union) and an amended charge filed on
January 22, 1987, by the Union, Region 8 of the National
Labor Relations Board (the Board) issued a complaint on
February 27, 1987. Brown-Graves Lumber Company (Re-
spondent) filed its answer to the complaint on March 13,
1987. The complaint alleges the following: (1) that Respond-
ent’s agent and supervisor, Harvey Graves, coercively told
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereafter unless otherwise indicated are 1986.
2 This allegation was dismissed at the hearing for lack of evidence. I renew
that dismissal here. 3 The Graves are apparently father and son.
employees on July 31, 1986,1 that Respondent would liq-
uidate its assets if the Union failed to accede to Respondent’s
bargaining demands; (2) that on or about August 20, Howard
Shoup, Respondent’s supervisor, informed employees that
Respondent would withdraw recognition from the Union if
the Union failed to accede to Respondent’s bargaining de-
mands;2 (3) commencing on or about November 30, Re-
spondent unilaterally changed the terms and conditions of
employees in the bargaining unit by retaining casual employ-
ees, also known as temporary summer employees, beyond
that date; (4) on or about December 22, Respondent imple-
mented changes in the terms and conditions of employment
of its employees in the bargaining unit by implementing its
final proposal prior to having reached a valid impasse in ne-
gotiations; (5) on or about December 22, Respondent imple-
mented a change in employee base rates which was different
from the employee base rate proposed by Respondent during
negotiations.
This case was heard before me at Akron, Ohio, on May
27 and 28, 1987. Both General Counsel and Respondent filed
briefs which have been carefully considered.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation with an office and place
of business in Akron, Ohio, is engaged in the wholesale and
retail sale of lumber and building products. The General
Counsel asserts, Respondent admits, and I find that Respond-
ent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. I find also that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background and July 13 meeting
Respondent and the Union have had a collective-bar-
gaining relationship since 1938, and they entered into a se-
ries of collective-bargaining agreements. The most recent
agreement was executed on September 1, 1983, and expired
on August 31. Prior to the expiration of the 1983 agreement,
the parties met on July 31 to begin negotiations for a new
contract.
The unit for which bargaining was conducted differed
slightly from that alleged in General Counsel’s complaint.
The parties agreed at the hearing, and I find, that the correct
unit description is as follows:
Said employees are those who are employed in or
about that warehouse (excluding warehouse hardware
employees), Yard, Shop, Factory, and excepting truck
drivers and office employees.
Harold Graves Jr., owner and president, appeared for Re-
spondent at the first bargaining session, on July 11. It had
not been Graves’ practice for many years to appear at bar-
gaining meetings, nor did he appear at any of the remaining
meetings of this series. Harvey Graves,3 president of a re-
lated firm, Empire Wholesale Products, also appeared. Pat
Compbell, Howard Shoup, and Glen Bole also appeared for
the Employer. Shoup, Respondent’s vice president of per-
sonnel, became Respondent’s chief spokesman at the suc-
ceeding meetings. Representing the Union were Union Presi-
dent Glen Lewis; Business Agent Ed Snyder; negotiating
committee member Don Thissen; warehouse employees Jim
Herold and Tom Fick; and mill employee Richard Eiseman.
After the first meeting, only Howard Shoup and Glen Bole
represented the Employer. The union representatives, with an
occasional absence by one or the other, attended substantially
all the meetings. The meetings took place on neutral ground
at the Holiday Inn on Interstate 77 in Akron, Ohio.
The union presented a contract proposal on July 31, but
the Respondent rejected it. It was at this meeting that Harold
Graves supposedly ‘‘coercively informed employees that Re-
spondent would liquidate its assets if the Union failed to ac-
cede to Respondent’s bargaining demands.’’
Don Thissen’s testimony about this alleged threat was that
after Harold Graves Jr. rejected the Union’s contract pro-
posal, ‘‘There was a small discussion on it.’’ When asked the
content of the discussion, Thissen testified:
They came in and, of course, the two parties are part
of the family that own the Company; and, as I recall,
the meeting was started off with Harold Graves, Jr.
making a statement that the company was not being
cost competitive and they would like very much to see
the union work with them and, as he put it, concessions
per se, were not what they were looking for, but they
were looking for a more competitive agreement with
the union. And before he left the meeting, he spoke
again before he left the meeting and, at that time, he
said the family intended to be firm but fair in negotia-
tions. . . . Also, Harvey Graves spoke, and he made
comparisons with the way business has been going and
the cost efficiency and everything, and he compared it
with something that happened back in 1959 with costs.
And at that time, in 1959, he made a comparison that
if the company couldn’t get the concessions they want-
ed they may end up going out of business; if they could
not sell the company, they would liquidate.
Following their remarks both Graves, father and son, left
the meeting.
The Respondent offered to open its books to the Union at
this first meeting for the purpose of corroborating its claim
of economic difficulties. The Union never took up this offer
despite Thissen’s testimony that he doubted that the Em-
ployer was in trouble.
Three sets of bargaining notes were placed in evidence.
The first are General Counsel’s witness Thissen’s notes. The
other two are by Glenn Bole and Union President Glenn
Lewis. All appear to corroborate, to some extent, Graves’
version of what he said at the first meeting. Graves’ testi-
mony is as follows:
645BROWN-GRAVES LUMBER CO.
4 I believe that Thissen, as is not uncommon, had arrived at a conclusion
from what he did hear at the July 31 meeting and, nearly a year later, testified
to his conclusion rather than to what was actually said by Graves.
5 The casuals’ question later divided the parties on November 12 and De-
cember 8, infra.
Well, in recent years, in the 19—1980 and ’81 the
Company lost substantial money, between $1,000,000
to $2,000,000 or more, and we’ve never made up that
loss.
And similarly, we find ourself in a tough predica-
ment financially in that our costs are exceeding profits
and our profits in the last few years are marginal, very
marginal. We aren’t getting our return on investment
that we should have.
So, as a result, we felt that after talking to consult-
ants and others and among ourselves that we should at-
tempt to see—should we sell, sell the business. And
after talking to consultants and other people, we de-
cided that the best thing and the advice we had was that
the best thing we should do is to liquidate, if this unfa-
vorable trend continues.
Subsequently, Graves was asked what message he conveyed
to the Union.
Q. At any time in that meeting, Mr. Graves, did you
tell the Union committee that the company would liq-
uidate its assets if the Union failed to accede to the
Company’s bargaining demands?
A. No No. What I said was that the Company may
have to liquidate, if this unfavorable trend continues we
may be forced to liquidate.
Thissen’s notes show Graves saying, ‘‘We might liquidate
if we cannot improve our profit line.’’ Lewis’ notes, as inter-
preted by his testimony, show that Graves testified that the
consultants had said to sell. ‘‘It all added up to liquidation
of said business.’’ Bole’s notes also refer to consultants’ rec-
ommendations to sell. When that was impossible, a consult-
ant told Respondent to liquidate.
Significantly, neither Graves’ testimony nor the three sets
of notes corroborate Thissen’s testimony, set forth above,
that Graves said if the Company couldn’t get the concessions
they wanted they may end up going out of business.’’4 In
light of this evidence, I credit Graves.
2. Subsequent negotiations
Subsequent meetings were scheduled on August 6, 20, 27,
and 28, September 2, 4, 16, 25, and 30, October 2 and 9,
November 6 and 12, and December 8, 15, and 18. The meet-
ings scheduled for November 6 and 16 did not take place be-
cause the Federal mediator failed to appear.
Considerable progress was made through the negotiating
session of September 30. Respondent earlier developed a ne-
gotiating goal of saving $2.09 per hour in costs. This goal
was communicated to the Union as early as the second ses-
sion on August 6, in connection with the Respondent’s sav-
ings of a similar amount on its Teamsters’ contract. The
Union never seriously contested the need for cost savings in
this amount. Indeed, as previously mentioned, it did not avail
itself of an offer to examine Respondent’s books. The fol-
lowing agreements and bargaining movement occurred
through September 30:
(1) Outside work on August 6.
(2) Winter casuals agreed upon with certain restric-
tions on their work activities5 on August 20.
(3) Respondent dropped original proposal on
rule/recall changes on August 20.
(4) Second tier agreement on August 20.
(5) Respondent agreed to union request to fill jour-
neyman classification through utility classification to
prevent attrition on August 21.
(6) The parties agreed to the diversion of insurance
trust funds to pension plan on August 27.
(7) Certain prospective retirees to be replaced by
second tier and casual employees. Agreement reached
on August 27.
(8) Union made proposal to give back total of 5 sick
days—two the first year, two the second and one the
third—or a three-year contract on 28 August 28.
(9) Some easing of machine restrictions proposed by
Union on August 28.
(10) When the old contract expired on August 31,
parties agreed to go day-to-day under terms of former
agreement.
(11) The parties agreed on Respondent’s hospitaliza-
tion terms on September 2.
(12) Respondent first proposed 8-1/2 hours work for
8 hours pay on September 2.
(13) Hospitalization rider agreed on September 4.
(14) Parties agree to use of federal mediator on Sep-
tember 4.
(15) Union counterproposes that it will work 8 hours
15 minutes for 89 hours pay on September 30.
(16) Union dropped previous proposal regarding se-
niority on shift changes on September 30 and pulled
back to 2 sick days give back.
Up to this point in the bargaining, the parties can fairly
be said to have been getting closer to agreement. At the Sep-
tember 30 session, the Employer costed out the Union’s con-
cessions at $1.8375 per hour. As the remaining sessions dem-
onstrated, however, this near approach to agreement was as-
ymptotic and not continue to a meeting of minds.
At the 11th and 12th sessions on October 2 and 9, respec-
tively, no progress toward further agreement occurred. The
session of November 6, like the September 16 meeting, was
canceled by virtue of the Federal mediator’s failure to show
up for the session.
3. The meetings of November 12 and December 8
At the bargaining session held November 12, the Union
made one further offer. It offered to give up one more addi-
tional sick day. The Union had originally offered to give
back 5 sick days (two the first year, two the second, and one
the third). The Union later reverted to a give back of 2 days.
The offer of November 12 therefore represented only a par-
tial return to its original proposal. This one sick day was the
last concession of any sort made by the Union. A sick day
costed out at 4.3 cents per hour.
Respondent, who had communicated only through the me-
diator up to this point, said it would like to talk directly to
the Union. The Employer thereupon offered a 1-year con-
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Snyder denied seeking a meeting after Christmas. I do not credit his denial
although I find that he did not renew this contention after the initial sugges-
tion.
7 I give no weight to this fact. This record shows that in the past the parties
had always negotiated a complete contract rather than implementing their
agreements piece by piece. Such a practice might impede bargaining if a party
wanted to withdraw a proposal and substitute another.
8 A vote took place on December 10. The Employer’s proposal was rejected.
9 The parties evinced some confusion about this but it seems a matter of
simple arithmetic.
10 The record shows that the Employer obtained the casuals every spring
from Hours, Incorporated, a provider of temporary and casual labor.
11 The evidence shows that they were laid off or let go in 3 to 5 weeks
after December 1. Thissen thought it to be 6 or 7 weeks.
12 The General Counsel puts great weight on Shoup’s admission that he be-
lieved Respondent privileged to implement changes agreed on between the
tract. In making this offer, the Employer noted that econom-
ics might be different at the end of a year giving the Union
an opportunity to negotiate a better settlement. The Union re-
fused this offer. The parties then turned to a discussion of
when they might have another meeting. Union negotiator
Snyder replied ‘‘after the holidays.’’ Upon being asked
which holiday, he answered ‘‘well, after the Christmas Holi-
days.’’ The Employer stated that that was entirely too long.
After discussion of Union President Lewis’ vacation plus an-
other vacation that might present a problem, the parties
agreed to meet on December 8.6
Following the discussion on the meeting date, Shoup told
the Union of the Employer’s plans for using casual employ-
ees past December 1. The Union asked for a recess to dis-
cuss the casual issue and returned to announce ‘‘No, we
don’t want to do that. We don’t agree to do that. We don’t
want that to happen.’’ At the time of this announcement, all
issues relating to casuals and their wintertime use had been
settled. The Employer was to use the casuals but there were
restrictions on what equipment they could operate. Both par-
ties agree that when the casual issue was settled, there were
no explicit statements conditioning use of the casuals on the
parties arriving at a complete contract.7
On December 8, Shoup presented the Union with Re-
spondent’s last offer. He suggested it be presented to the
membership for ratification.8 The Union agreed to take it to
the employees but said they would not promote it. The Em-
ployer at first intended to implement its proposal on Decem-
ber 15, but later pulled back to December 22. Shoup an-
nounced that the parties were at impasse, and none of the
union negotiators disagreed with him. Thissen testified that
the Union was not willing to make any concession beyond
those it had already granted. With reference to the Employ-
er’s $2.09 figure for cost savings, he stated: ‘‘We were try-
ing to avoid it. We were willing to negotiate.’’
4. The December 15 and 18 meetings, and Employer’s
implementation of its final offer
At the December 15 meeting, Shoup indicated that the
Employer was flexible about the method of meeting its $2.09
figure on costs. Union President Lewis testified that Shoup
said ‘‘he’d work anything out anyway we could work it out,
give the 20 minutes, take the wage reduction, or whatever.’’
Shoup had begun by suggesting a wage reduction instead of
20 minutes additional on the workday. The Union did not re-
spond to this proposal.
At a meeting on December 18, the Employer explained the
implementation aspects of its proposal, particularly the man-
ner in which the wage proposal was to be put in place. To
avoid problems with the Wage and Hour authorities, the ad-
ditional 20 minutes of work was treated as overtime, and the
nominal regular rate reduced to a point where it, combined
with the overtime, permitted an employee to take home a
check no smaller than that issued him under the previous
contract.9
B. Analysis and Findings
1. The alleged threat on July 31
I cannot find that on July 31 the Respondent threatened
the Union in violation of Section 8(a)(1) of the Act. Both
Graves, father and son, conditioned their remarks on the very
poor economic condition of the Company. An offer was
made to the Union to show the Employer’s financial records
which it did not accept. The written notes of three of the par-
ticipants, including some of General Counsel’s witnesses, do
not corroborate Thissen as to exactly what was said. On this
record I find that the Employer, faced with a poor economic
situation, was being frank with the Union about its situation.
Under these circumstances, the Employer’s remarks, bot-
tomed on economic fact, cannot be regarded as ‘‘threats.’’
See Gissel Packing Co. v. NLRB, 395 U.S. 575 (1969);
Kawasaki Motors, 280 NLRB 491 (1986). (‘‘We have many
problems and this plant has to become profitable if it is to
survive’’).
2. The Respondent’s use of casual workers after
November 30
If the Employer’s use of casuals is found to be an unfair
labor practice, that finding will prevent ab initio any finding
of impasse on December 8 or any later date because, under
well-established principles, an impasse cannot come into
being in the presence of unfair practices during the relevant
bargaining. This issue is also confused because other evi-
dence showed that the Employer, operating under the expired
collective-bargaining contract, had retained casuals in the two
previous years despite the Union’s refusal under article
XXX, section K to grant its permission for such extended
use. Employer negotiator Shoup testified that the Employer
had sought to retain the casuals in 1984 and 1985. The Em-
ployer had sought the Union’s permission pursuant to the
bargaining agreement and been refused. As Shoup stated:
‘‘So, as a result, we put the men on the Brown-Graves com-
pany payroll, at the rate of pay they were making at that par-
ticular time through Hours, Incorporated.’’10 This testimony
was not seriously contested by any of the General Counsel’s
witnesses. An exhibit also shows casuals on Respondent’s
payroll in December 1984. There is no evidence that these
short-term hires (as opposed to casual status) were ever con-
tested by the Union.11 One General Counsel witness (Lewis)
agreed that, in previous years, when casuals stayed on after
December 1, ‘‘They were supposed to be kept on ag regular
employees.’’
There is little doubt that when Shoup announced the Re-
spondent’s intentions concerning the casuals on November
12, he was giving voice to an intent to retain the casuals re-
gardless of the Union’s feelings about the matter.12 One as-
647BROWN-GRAVES LUMBER CO.
parties prior to the negotiation and execution of a complete contract. The ques-
tion here, however, is whether what Respondent did is a legally cognizable
unilateral act. If Respondent’s action is not such Shoup’s misunderstanding of
the law will not convert it to one.
13 Boles notes (R. Exh. 13). The notes are consistent with Shoup’s testimony
at Tr. 257–258. I find that the sequence of events occurred as set out in the
notes and Shoup’s testimony. I also find that the Union suggested meeting
after Christmas.
14 Assuming, but not deciding, that the Union sought to pressure Respondent
by letting the December deadline pass without the Respondent being able to
retain casuals, I do not consider the failure of this tactic to be any form of
material or substantial effect. In any event, it should be noted that Respondent
was considering only 3 weeks’ retention of casuals prior to the December 22
implementation.
pect which motivated Shoup was the fact that the discussion
about timing of the next negotiating session had just oc-
curred. The Union had suggested that the next session be
after the ‘‘holidays.’’ The final arrangement was for a meet-
ing (after Thanksgiving) on December 8. Shoup ‘‘then ex-
plained that if we go by the first of December, we have to
have an understanding, we will use the temporary people, or
casuals past the December 1st deadline.’’13
The Board has long held that to be violative of the Act,
unilateral changes must be material, substantial and signifi-
cant. See, e.g., Murphy Oil USA, 286 NLRB 1039 (1988).
I am unable to find that this change meets that standard.
General Counsel proffered evidence that the casuals, after
December 1, performed work which regular employees
would have done, thereby decreasing work opportunities and
possible overtime of regular employees. That is so, and I so
find. However, the same proposition would be true if the
Employer had retained the casuals for some weeks as their
employer, as it had done in 1984 and 1985, for presumably
the same pay and overtime. The work would have been the
same in amount and spread over an equal number of individ-
uals. That those individuals have differing abstract entries on
employer records would not affect the work available to any
of them. General Counsel, in his brief, seems impliedly to
have recognized this. He attempted to meet the problem by
an argument that relied on the bargaining unit status of the
casuals. Conceding that in the past the Employer had re-
tained the casuals by change of status, he argues as follows
in his brief at 12:
It is clear from the record that casuals perform work
which would otherwise be done by unit employees [ci-
tation omitted]. The record also reflects that had Re-
spondent not engaged in the unlawful implementation
of the proposal on casuals, these individuals would
have become bargaining unit employees [citation omit-
ted]. If not, then the hours of work for existing unit em-
ployees would have increased. Therefore, the effect of
Respondent’s action on the size of the unit or the num-
ber of hours of work available to unit employees was
clearly affected by this action.
The critical juncture in General Counsel’s argument is the
sentence beginning ‘‘If not . . . .’’ If the sentence means to
say that hours of work for regular employees would have
been affected if Respondent had not retained casuals in any
fashion, the statement is true but immaterial. Respondent had
retained casuals for the previous two years with no problem
as General Counsel impliedly admits. If the sentence is con-
strued to mean that some or all casuals might have left Re-
spondent rather than become regular employees, thus making
more work available, the argument is speculative because
there is no evidence in the record bearing one way or another
on that proposition. Finally, if the argument be that Respond-
ent should have used the 1984 and 1985 method of retaining
casuals and thus avoided any impact on its preexisting group
of employees, I cannot agree. As previously noted, additional
hires would obviously affect the amount of work available to
individual employees, and yet it is exactly these additional
hires which General Counsel admits could have been prop-
erly made. Indeed it would appear that Respondent would
have been following past practice (1984 and 1985) under the
expired contract had it hired casuals.
Under these circumstances, I do not find that Respondent’s
decision to retain casuals had any significant effect on the
bargaining unit. The effect on work opportunities for individ-
uals was the same whether the casuals were retained by one
method or the other.14
3. The implementation of Respondent’s
contract proposals
The lawfulness of Respondent’s implementation on De-
cember 2 depends on whether an impasse had occurred prior
to that date. I find that an impasse occurred on December
8, and that Respondent was privileged to implement its pro-
posals. E. I. Dupont & Co., 268 NLRB 1075 at 1076 (1984),
summarizes the relevant considerations in determining the
existence of impasse:
The issue before us, then is whether the parties had bar-
gained to an impasse at the time Respondent acted. For
if impasse had been reached, Respondent was free to
implement its pre-impasse proposal. Taft Broadcasting
Co., 163 NLRB 475, 478, 64 LRRM 1386 (1967), peti-
tion for review denied 395 F.2d 622, 65 LRRM 227
(D.C. Cir. 1968). The Board has defined impasse as a
state of bargaining at which the party asserting its exist-
ence is warranted in assuming that further bargaining
would be futile. Alsey Refractories Co., 215 NLRB 785
fn. 1, 88 LRRM 1071 (1974); Patrick & Co., 248
NLRB 390, 393, 101 LRRM 1437 (1980). More spe-
cifically, we continue to follow the guidelines set forth
in Taft Broadcasting, above in determining the exist-
ence of an impasse:
Whether a bargaining impasse is a matter of judg-
ment. 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 disagreement, the contemporaneous under-
standing of the parties as to the state of negotiations
are all relevant factors to be considered in deciding
whether an impasse in bargaining existed.
Finally, there need be no undue reluctance to find
that an impasse existed. Its occurrence ‘‘cannot be said
to be an unexpected, unforeseen, or unusual event in
the process of negotiations since no experienced nego-
tiator arrives at the bargaining table with absolute con-
fidence that all of his proposals will be readily and
completely accepted.’’ Hi-Way Billboards, 206 NLRB
22, 23, 84 LRRM 1161 (1973).
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 These are the alleged violations of Sec. 8(a)(1).
16 The complaint alleged that on December 22, Respondent implemented a
wage proposal different from the one made to the Union. As noted above else-
where in this decision, the Employer arithmetically converted its wage pro-
posal to one where the extra worktime was treated as overtime, and the regular
rate nominally dropped to a point where regular time combined with the over-
time resulted in the same take-home pay. This was done to avoid Wage-Hour
problems. The record shows that all parties were aware of this consideration,
and no evidence was presented to show that employees’ take-home pay was
affected. Accordingly, I find this complaint allegation to be without merit.
General Counsel also argues that the December 15 meeting opened up new
possibilities and, therefore, abrogated any existing impasse. I cannot agree. A
number of side issues—such as the length of a new agreement—were dis-
cussed. The Employer still stood ready to accept some combination of pro-
posals that would result in the desired savings. However, it is exactly here that
the meeting of December 15 illustrates the existence of impasse. While the
Union never stated it would not agree to $2.09 savings, it never moved in that
direction. To say that it would have another time is speculative.
Application of these standards to the instant case dem-
onstrates that an impasse had occurred as of December 8.
The bargaining history of these parties dates back a half-cen-
tury. During that time they have negotiated and executed a
large number of collective-bargaining contracts. General
Counsel offered no evidence that Respondent had a back-
ground of unfair practices in the negotiation or administra-
tion of these numerous agreements. General Counsel argues
in his brief that consideration of the long bargaining history
is vitiated to some extent by the fact that these negotiations,
involving as they did the Employer’s economic troubles, con-
cerned a rollback of employee benefits. He compares these
negotiations to those involving a new bargaining relationship.
I agree that this consideration justifies placing somewhat less
emphasis on this factor. However, a related factor—the
length of the negotiations—illustrates that these parties did
not rush headlong into a deadlock. The negotiations were
lengthy and fully explored the issues separating the parties.
The bargaining notes from all parties provide a clear illustra-
tion of that fact.
The complaint did not allege overall bad faith on the Re-
spondent’s part. Its allegations involve unilateral changes of
a per se nature and several comments allegedly made at the
bargaining table by Respondent. The chief of the unilateral
changes—that involving the casuals—has been found to be
not violative. No evidence was presented bearing on para-
graph 9(b) of the complaint. I have found paragraph 9(a) to
be without merit.15
In viewing the negotiations as a whole, I find that Re-
spondent was candid about its economic problems and con-
sistently sought contract terms that would enable it to deal
successfully with those problems. The chief issue that ulti-
mately separated the parties was the failure to arrive at a
contract that would allow the Employer $2.09-per-hour relief
on its expenses of doing business. This issue, concerning as
it did questions of the Employer’s survival in an operating
business, was certainly of the utmost importance to both par-
ties. That the parties could not arrive at agreement on these
questions, while regrettable, is not, per se, evidence of bad
faith on the Employer’s part.
The evidence relating to the bargaining session of Decem-
ber 8 shows that there was at least implied agreement, if not
more, that an impasse existed. No negotiator for the Union
indicated disagreement when Shoup asserted the existence of
an impasse.
Finally, it should be noted that progress in the negotiations
had slowed down almost to a crawl since the end of Sep-
tember. From September 30 to December 8, the Union’s only
movement had been to concede a single sick day. Even that
movement represented only a partial return to its August 28
position on the number of sick days.
Under all the circumstances, I find that an impasse existed
at least by the meeting of December 8. Accordingly, the Em-
ployer was justified, on December 22, in implementing its
proposals previously made to the Union.16 I will, accord-
ingly, dismiss the complaint in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has not violated Section 8(a)(1) of the Act
by informing the Union of its economic difficulties during
negotiations.
3. Respondent has not violated Section 8(a)(5) of the Act
by retaining casual employees on December 1 or by imple-
menting its contract proposals to the Union on December 22.
[Recommended Order omitted from publication.]