Dependable Building Maintenance Co., Quality Building Maintenance Co., And Metropolitan Building Maintenance Co.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 27 (N.L.R.B. 1985)

DEPENDABLE MAINTENANCE CO 27
Dependable Building Maintenance Company, Qual
ity Building Maintenance Company , and Metro
politan Building Maintenance Company and
Service Employees International Union, Local
No 6 Case 19-CA-14961
27 August 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTsoN AND MEMBERS
HUNTER AND DENNIS
On 25 August 1983 Administrative Law Judge
Clifford H Anderson issued a decision The Re
spondents filed exceptions and a supporting brief,
and the General Counsel filed a beef in support of
the judges decision On 22 February 1985 the
Board issued a Decision and Order Remanding,'
which affirmed the judge's finding that the Re-
spondents violated Section 8(a)(1) and (5) of the
Act by implementing their final offers before an
impasse existed, but rejected the finding that the
issues of an alleged post August 1982 impasse and
the lawfulness of the Respondent's November 1982
and March 1983 reimplementations should be de-
cided at the compliance stage The Board remand
ed these issues to the judge for consideration and
for preparation of a supplemental decision On 6
May 1985 the judge issued the attached supplemen
tal decision The Respondents filed exceptions and
a supporting brief, the General Counsel filed a brief
in response to the Respondents' exceptions and in
support of a motion to strike, and a motion to
strike one of the Respondents' exceptions and the
Respondents filed a response to the General Coun-
sel's motion to strike
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the supplemental deci
sion and the record in light of the exceptions and
bnefs2 and has decided to affirm the judge's rul-
ings, findings, and conclusions as modified3 and to
adopt the recommended Order as modified
i 274 NLRB 216 (1985)
2 We deny the General Counsel s motion to strike the Respondents ex
ception to the judges order that the Respondents mail a copy of the
notice to each unit employee The General Counsel contends that this ex
ception is untimely filed because the Board affirmed this portion of the
judge s recommended Order in its original decision in this case and that
thus res judicata applies We note however that this issue was not
reached in our original disposition of this case and thus we deny the
General Counsel s motion
s We reject that portion of the judge s recommended Order which re-
quires the Respondents to mad a copy of the notice to all unit employees
As the issue of whether there is a central location where the notices
would be seen by all employees was not litigated at the hearing we will
not impose an additional requirement on the Respondents beyond posting
the notices in conspicuous places including all places where notices to
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondents, Dependable Building Maintenance Corn
pany, Quality Building Maintenance Company, and
Metropolitan Building Maintenance Company, Se
attle, Washington, their officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified
1 Delete the last sentence of paragraph 2(d),
which states, Further, copies of the appropriate
notice shall be mailed to all unit employees "
2 Substitute the attached notices for those of the
administrative law judge
employees are customarily posted If either party wishes to contest this
manner of posting the issue may be raised at the compliance stage
We note that Respondents Quality and Metropolitan reimplemented
their final offers on 18 March 1983 We correct the judges inadvertent
errors in his decision his recommended Order and his notice referring to
this reimplementation as occurring on 13 March 1983
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
Service Employees International Union, Local No
6 represents our employees in the following bar
gaining unit
All employees engaged in the work classifica
tions of janitor, traveling waxer/shampooer
and foreperson
WE WILL NOT unilaterally change unit employ
ees' terms and conditions of employment during
bargaining with the Union at a time when the par
ties have not reached an impasse or a new agree
ment
276 NLRB No 7
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
case of the rights guaranteed you by Section 7 of
the Act
WE WILL make unit employees whole for the
losses they incurred as a result of the unilateral
changes in working conditions we made in August
1982 extending to November 2, 1982, including ap
propnate fringe trust contributions, and WE WILL
pay appropriate interest on any sums due
WE WILL restore unit employees' terms and con
ditions of employment to the level in existence
before the August 1982 changes and continue them
in effect until impasse was reached and a new im
plementation announced
DEPENDABLE BUILDING MAINTE
NANCE COMPANY
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
Service Employees International Union Local No
6 represents our employees in the following bar
gaining unit
All employees engaged in the work classifica
tions of janitor, traveling waxer/shampooer
and foreperson
WE WILL NOT unilaterally change unit employ
ees' terms and conditions of employment during
bargaining with the Union at a time when the par
ties have not reached an impasse or a new agree
ment
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL make unit employees whole for the
losses they incurred as a result of the unilateral
changes in working conditions we made in August
1982 extending to March 18 1983, including appro
priate fringe trust contributions, and WE WILL ap
propriate interest on any sums due
WE WILL restore unit employees terms and con
ditions of employment to the level in existence
before the August 1982 changes and continue them
in effect until impasse was reached and a new im
plementation announced
QUALITY BUILDING MAINTENANCE
COMPANY
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through represents
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
Service Employees International Union, Local No
6 represents our employees in the following bar
gaming unit
All employees engaged in the work classifica
tions of janitor traveling waxer/shampooer
and foreperson
WE WILL NOT unilaterally change unit employ
ees terms and conditions of employment during
bargaining with the Union at a time when the par
ties have not reached an impasse or a new agree
ment
WE WILL NOT m any like or related manner
interfere with, restrain , or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL make unit employees whole for the
losses they incurred as a result of the unilateral
changes in working conditions we made in August
1982 extending to March 18 , 1983, including appro-
priate fringe trust contributions , and WE WILL pay
appropriate interest on any sums due
DEPENDABLE MAINTENANCE CO 29
WE WILL restore unit employees' terms and con
ditions of employment to the level in existence
before the August 1982 changes and continue them
in effect until impasse was reached and a new im
plementation announced
METROPOLITAN BUILDING MAINTE
NANCE COMPANY
Patti L Hunter Esq and Ronald J Knox Esq with her
on supplemental brief of Seattle Washington for the
General Counsel
Wayne W Hansen Esq (Lane Powell Moss & Miller) of
Seattle Washington for the Respondents
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
CLIFFORD H ANDERSON Administrative Law Judge
On 25 August 1983 I issued my decision in the above
captioned case Respondents filed exceptions and a sup
porting brief and the General Counsel filed a brief in
support of my decision On 22 February 1985 the Board
issued a Decision and Order Remanding' which sus
tained the decision below as all fmdmgs2 save for the
following
Contrary to the judge however we conclude that
the issue of an alleged post August 1982 impasse
and the propriety of the Respondents November
1982 and March 1983 reimplementation should be
decided now rather than at the compliance stage, as
this issue may affect the judge s order for a return
to the status quo ante as of August 1982 Accord
ingly, we remand this issue to the judge for consid
eration at this time and for preparation of a supple
mental decision The judge may, in his discretion
order a further hearing on this issue if he deems it
necessary to receive more evidence
Following receipt of the Board s remand I provided
opportunity to the parties to brief the issues remaining
for resolution Briefs have been received from the Gener
al Counsel and Respondents
Based on the original record in this proceeding the
Board s Decision and Order Remanding, and the postre
mand briefs of the parties a I make the following supple
mental findings of fact and conclusions of law ''
t 274 NLRB 216 (1985)
My decision held that Respondents had violated Sec 8 (a)(5) and (1)
of the Act in August 1982 by making unilateral changes in employee
terms and conditions of employment at a time when he parties were not
at a bargaining impasse
a While the Board s remanding order rspecifically provided that further
hearings could be held as deemed necessary no party has requested a fur
ther hearing
* The Board s Decision and Order Remanding sustained those findings
of facts and conclusions of law in my 25 August 1983 decision addressing
the events occurring through August 1982 Accordingly those facts and
conclusions are taken without modification as the predicate to the adds
tional findings and conclusions herein
ADDITIONAL FINDINGS OF FACT
I THE ISSUE REMAINING FOR DECISION
In the original unfair labor practice proceeding Re
spondents argued in the alternative that if the imple
mentation of their last offers in August 1982 were found
violations of the Act the unfair labor practices were
remedied by reimplementation in November 1982 and
again in March 1983 at which times the parties were
clearly at impasse in bargaining The General Counsel
argued that no impasse could exist where Respondents
unremedied August 1982 unfair labor practices hung
over the bargaining I made the following finding with
respect to these arguments
While the cases are not free from difficulty in this
area I am persuaded by Respondents cited case
NLRB v Cauthorne 691 F 2d 1023 (D C Cir
1982) that a restoration of the status quo ante is not
a necessary prerequisite to a subsequent bargaining
impasse in all situations I find therefore that an ex
animation of the post August 1982 bargaining
would be appropriate to determine if a subsequent
impasse occurred as contended by Respondents if
an unconditional remedial order requiring a restora
tion of the status quo ante to date were at issue
Accordingly and contrary to the General Counsels ar
gument I found post August 1982 events were relevant
to a determination of the final remedy in the case Thus
if the parties reached an impasse after August 1982 and
Respondents implemented their then last offers no status
quo ante remedy would be necessary to restore the par
ties to the pre August 1982 terms and conditions of em
ployment It is this issue the Board s order remanding
charges me to decide S
II EVENTS OCCURRING AFTER AUGUST 13 19826
Soon after the mid August implementation of Re
spondents last offers the Union protested the changes
Through exchange of correspondence the parties reiter
ated their earlier positions i e the Union claimed it
would be flexible on economic proposals and Respond
ents argued the Union must make compromises in critical
areas A bargaining session was conducted on September
28 While some discussion and movement concerning
collateral matters occurred Union Agent Earls took the
position that the Union was not prepared to make a new
proposal on economic questions until it was given an
update of the information previously requested and re
ceived from Respondents 7 Counsel Nielson on behalf of
° Counsel for the General Counsel in their supplemental brief again
challenge my reliance on the holding in Cauthorne supra. I construe the
Board s Decision and Order Remanding to constitute an approval of my
analysis of the Cauthorne decision at least for purposes of this proceed
mg Thus I reaffirm my original analysis here See also Eagle Express Co
273 NLRB 501 (1984)
s All dates hereinafter refer to 1982 unless otherwise indicated
r The information dealt with client building locations and staffing in
the area. The initial information had been delivered in August The new
information desired was thus merely an updating of this data
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents expressed disbelief of Earls statement
about the Union s future intentions to make economic
proposals and the meeting ended
Respondent Dependable delivered the requested up
dated information on or about October 8 Respondent
Metropolitan later in October and Respondent Quality
on November 2 On November 2 Nielson , on behalf of
Respondent Dependable wrote Earls stating that the
Union had had the requested data since August and yet
had made no movement on economic proposals Nielson
stated that whether or not the August implementation of
its last offer was proper the parties were as of that
moment at impasse and Dependable was reimplementmg
its August 5 offer on November 2 to be retroactive to
August 1
Earls met with Respondent Dependable s owner Wil
Liam Weitzel on November 12 and 16 Formal meetings
between all three Respondents and the Union occurred
on December 8 and on 15 While Earls made limited
economic proposals Respondents did not perceive the
Unions economic offers in the December sessions to be
inconsistent with their view that the Union would not
make economic proposals superior to those entered into
with the major contractor in the area which contract
contained a most favored nation clause
On March 18 1983 Nielson wrote to Earls on behalf
of all three Respondents announcing that they were
reimplementing the terms of their final offers of August
1982 to be retroactive to August 1982
III ANALYSIS AND CONCLUSIONS
The issue before me on remand is to determine when
if at all the parties reached a good faith impasse follow
ing the implementation of August 1982 Each party cites
the lead case of Taft Broadcasting Co 163 NLRB 475
(1967) enfd sub nom Television Artists, AFTRA 395
F 2d 622 (D C Cir 1968) The Board there stated at 478
Whether a bargaining impasse exists is a matter
of judgment The bargaining history the good faith
of the parties in negotiations the length of the ne
gotiations the importance of the issue or issues to
which there is disagreement , the contemporaneous
understanding of the parties as to the state of nego
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed
Considering the negotiations to August 1982 as de
scribed in my original decision as well as the undisputed
exchange of correspondence and the bargaining which
occurred through March 1983 I conclude that the par
ties were at impasse on November 2 1982 and on March
18 1983 I reach this conclusion because throughout the
period the Union failed and refused to make any sigmfi
cant economic proposals which went to the heart of the
dispute between the parties Respondents had oft coin
municated their view that the Union was not sincere in
its intentions to make economic proposals at significant
variance from its earlier agreement with the main mdus
try employer in the area which contained a most fa
vored nation clause In my original decision I made the
following finding about Respondents argument that this
rigidity justified the August 1982 unilateral implementa
tion of their last offers
Respondents simply acted too quickly in implement
mg the last offer to place their theory of the
Union s bargaining rigidity to the test The delivery
of the requested information was followed essential
ly without delay by the implementation of the final
offers Thus it is impossible to determine if the in
formation would in fact have been used by the
Union to modify its position
I also found and the Board in its Order Remanding ap-
proved my finding that the post August events were it
relevant to the issue of whether an unfair labor practice
occurred in August 1982 Considering these later events
now I find that Respondents were correct that the
Union was rigid in bargaining in that the Union did not
make the economic concessions which would have
avoided an impasse There is no compulsion that any
party make concessions The Union need not have done
so What I find here however is that under all the cir
cumstances there was sufficient disagreement and lack of
closing of differences to support a finding of bargaining
impasse in November 1982 and March 1983 I further
conclude for the reasons set forth above that Respond
ents properly re implemented their last offers on Novem
ber 2, 1982 and on March 13 1983
AMENDED REMEDY
Inasmuch as impasse occurred as found above and
Respondents properly re implemented their last offers I
shall modify the status quo ante order previously issued
to require restoration of pre August conditions only for
the period ending on November 2 1982 for Respondent
Dependable and to March 13 1983 for Respondents
Quality and Metropolitan 8
Upon the foregoing and the entire record herein I
make the following9
CONCLUSIONS OF LAW
1 Respondents and each of them are employers en
gaged in commerce within the meaning of Section 2(2)
(6) and (7) of the Act
2 The Union is a labor organization within the mean
mg of Section 2(5) of the Act
3 At all times material herein the Union has been and
is now the exclusive bargaining representative of Re
spondents employees in the following described single
employer units which are appropriate within the mean
mg of Section 9 of the Act
Dependable announced its re implementation in its November 2
letter but Quality and Metropolitan did not do so until March 13 1983
Respondents argue that their implementations were retroactive to August
1 1982 and hence no restorative order of any kind is necessary I dis-
agree I find the implementations effective to toll liability after their an
nouncement but not before I specifically find the legal effect of such in
plementations can be prospective only
9 These conclusions of law are identical to those previously adopted
by the Board inasmuch as the additional findings made herein address
only the issue of remedy
DEPENDABLE MAINTENANCE CO 31
All employees engaged in the work classifications
of janitor traveling waxer/shampooer and foreper
son
4 On or about August 10 1982 Respondent Dependa
ble unilaterally changed the terms and conditions of em
ployment in its single employer bargaining unit described
above at a time when no impasse had occurred in bar
gaining with the Union thereby violating Section 8(a)(5)
and (1) of the Act
5 On or about August 13 1982 Respondent Metro
politan unilaterally changed the terms and conditions of
employment in its single employer bargaining unit de
scribed above at a time when no impasse had occurred in
bargaining with the Union thereby violating Section
8(a)(5) and (1) of the Act
6 On or about August 13 1982 Respondent Quality
unilaterally cnanged the terms and conditions of employ
ment in its single employer bargaining unit described
above at a time when no impasse had occurred in bar
gaining with the Union thereby violating Section 8(a)(5)
and (1) of the Act
7 The unfair labor practices described above in para
graphs 4 5 and 6 are unfair labor practices affecting
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edio
ORDER
The Respondents Dependable Building Maintenance
Company Quality Building Maintenance Company and
Metropolitan Building Maintenance Company Seattle
Washington their officers agents, successors and as
signs shall
1 Cease and desist from
(a) Unilaterally changing unit employees terms and
conditions of employment during bargaining with the
Union at a time when the parties have not reached an
impasse or a new agreement
(b) In any like or related manner violating the provi
sions of the National Labor Relations Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Restore unit employees terms and conditions of
employment to the level in existence before the August
1982 changes and continue them in effect until impasse
was reached and a new implementation announced
(b) Make employees whole for the losses they incurred
as a result of the August 1982 unilateral changes in
working conditions to November 2 1982 for Respond
ent Dependable and to March 13 1983 for Respondents
Quality and Metropolitan including appropriate fringe
trusts with appropriate interest as described in the sec
tion of this supplemental decision entitled The Amend
ed Remedy and in the section of the original decision
entitled The Remedy
(c) Preserve and on request make available to agents
of the Board for examination and copying all records
necessary to analyze the amounts of money due under
the terms of this Order and otherwise necessary to insure
that the terms of this Order are complied with
(d) Post at its facility copies of the attached notice
marked Appendix A B or C as appropriate fore each
Respondent 111 Copies of the notice on forms provided
by the Regional Director for Region 19 after being
signed by the Respondents authorized representative
shall be posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in conspic
uous places including all places where notices to employ
ees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered defaced or covered by any other material
Further copies of the appropriate notice shall be mailed
to all unit employees
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
10 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 objections to them shall be deemed waived for all pur
poses
i i 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board