Lehigh Portland Cement Co.

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1366 (N.L.R.B. 1987)

1366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lehigh Portland Cement Company and Cement,
Lime, Gypsum and Allied Workers Division,
International Brotherhood of Boilermakers,
Blacksmiths, Iron Shipbuilders, Forgers and
Helpers , AFL-CIO. Case 4-CA-14604
30 November 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
CRACRAFT
On 30 January 1986 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
the General Counsel filed cross-exceptions, and the
General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record' in light of the exceptions and briefs and
has decided to affirm the judge' s rulings, findings,2
and conclusions,3 to modify his remedy,4 and to
adopt the recommended Order.5
i We deny the Respondent 's motion to take notice of an article written
by a Cement Workers official or, alternatively , to reopen the record for
the article's inclusion . We reject the article as irrelevant to this proceed-
ing We also deny the Respondent 's motion to strike portions of the Gen-
eral Counsel's answering brief.
2 The Respondent has implicitly excepted to some of the judge 's credi-
bility findings The Board' s established policy is not to overrule an ad-
muustrative law judge 's credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d
Cir 1951) We have carefully examined the record and find no basis for
reversing the findings
The General Counsel filed exceptions limited to the judge 's inadvertent
finding , in sec III,B , par. 7 of her decision, that the Respondent was ad-
vised in June 1985 of a memorandum concerning alleged procedural de-
fects in the merger between the Cement Workers and the Boilermakers.
The correct date is 31 January 1985, a date the judge cites earlier in her
decision.
8 The judge concluded that the Respondent is estopped from challeng-
mg the merger between the Cement Workers and the Boilermakers. We
agree Consequently, we need not pass on the judge 's findings concerning
the merger's procedural aspects Further, we do not pass on the judge's
reliance on the decision of another judge in Dundee Cement Co., Cases 7-
CA-23980 et al, which is currently pending before the Board on excep-
tions
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short- term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S.C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
5 We agree with the judge that a status quo ante remedy is warranted
Dependable Maintenance Co, 274 NLRB 216 (1985), on which the Re-
spondent relies to toll its liability, is distmguishable from the present case
In Dependable Maintenance the employer implemented bargaining propos-
als immediately after providing requested information to the union. Al-
though the Board found that the employer violated Sec . 8(ax5) by imple-
menting its offer before the union was able to formulate a bargaining po-
sition based on the information it received (and thus before impasse had
occurred), the Board rejected the judge 's conclusion that evidence of the
proposal should be resolved at the compliance stage Because the viola-
For the following reasons only, we adopt the
judge 's conclusion that the Respondent violated
Section 8(a)(5) of the Act. The parties held several
bargaining sessions in early May without reaching
agreement . The Union called a strike on 14 May
1984, and the parties did not resume negotiations
until 4 June 1984, while the strike was still in
progress . Considerable progress was made at the
bargaining table on 4 and 5 June. On 6 June the
Respondent offered what it termed its "close to
final" proposal, consisting of 27 contractual provi-
sions the Respondent had not previously proposed,
concerning , inter alia, management rights, union se-
curity, seniority, premium pay, overtime, transfer,
subcontracting, withdrawal of union grievances,
and abrogation of all prior mutual understandings.
Then, as the Union was reviewing the new propos-
als, the Respondent abruptly left the negotiations.
That evening the Union informed the Respondent
the strikers were willing to return to work uncon-
ditionally the next day. After accepting the Union's
unconditional offer that the strikers return to work,
the Respondent stated that it had decided to imple-
ment its 6 June proposal, and thereafter did so.
Thus the Respondent, after making an offer con-
taining proposals radically different from its former
proposals, precluded bargaining by withdrawing
from negotiations and implementing its new pro-
posals without further discussion. We therefore
agree with the judge that the Respondent violated
Section 8(a)(5) by unilaterally changing terms and
conditions of employment in the absence of im-
passe and by unilaterally implementing elements of
the 6 June close-to-final proposal that were not rea-
sonably comprehended within pre-close-to-final
proposal discussions. Taft Broadcasting Co., 163
NLRB 475, 478 (1967), enfd. sub nom. Television
Artists AFTRA Kansas City Local v. NLRB, 395
F.2d 622 (D.C. Cir. 1968).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Lehigh
Portland Cement Company, Allentown, Pennsylva-
nia, its officers , agents, successors , and assigns,
shall take the action set forth in the Order.
tion essentially turned on the employer's failure to afford the union time
to study the information, the employer could erase its effects by rescind-
ing the changes and allowing time to bargain to impasse before reimple-
menting the changes In contrast , the Respondent here, however, serious-
ly undermined the Union's bargaining position by unlawfully implement-
ing its proposals and maintaining the terms and conditions in these pro-
posals during subsequent bargaining with the Union Further negotiations
in this context could not erase the effects of the violation
286 NLRB No. 133
LEHIGH PORTLAND CEMENT CO.
Daniel Halevy, Esq., for the General Counsel.
Alan R. Kaye, Esq. and Paul R. Lewis, E'sq. (Kleinbard,
Bell & Becker), of Philadelphia, Pennsylvania, for the
Respondent.
Stephen B. Rubin, Esq. (Asher, Pavalon, Gittler & Green-
field, Ltd)., of Chicago, Illinois , for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. On a
charge filed on 11 September 1984 by the Cement, Lime,
Gypsum and Allied Workers' Division, International
Brotherhood of Boilermakers, Blacksmiths, Iron Ship-
builders, Forgers and Helpers of America, AFL-CIO
(the Union or Cement Workers), i a complaint issued on
26 October 1984 alleging that since 7 June 1984,2 Lehigh
Portland Cement Company (the Respondent or Lehigh)
has violated Section 8(a)(5) and (l) of the Act by unilat-
erally altering the terms and conditions of employment
of its bargaining unit employees without affording the
Union an opportunity to bargain.
On 31 October Respondent filed its original answer
admitting the Union's status as the designated collective-
bargaining representative of unit employees, but denied
the commission of any unfair labor practice. Subsequent-
ly, on 26 April 1985, Respondent amended its answer to
deny the Union's 9(a) status , alleging that the procedures
used by the Cement Workers in joining the Boilermakers
deprived the employees of their due-process rights.
Thereafter, on 24 April 1985, Respondent filed a
Motion for Summary Judgment With the Board arguing
that it was not obliged to bargain with the Union be-
cause of the alleged procedural defects in the Cement
Workers' affiliation with the Boilermakers. The General
Counsel and the Charging Party filed brief oppositions
thereto. By Order of 29 April 1985, the Board denied
Respondent's motion with leave to renew before the ad-
ministrative law judge.
The hearing commenced on 6 May, continued for 8
days, and concluded on 22 May 1985. On the first day of
trial, Respondent renewed its Motion for Summary Judg-
ment before me. I denied the motion finding that contro-
verted facts were in issue and that a heanng was needed
to provide a complete record. A motion for partial sum-
mary judgment submitted by the Charging Party also
was denied.
Following the hearing, Respondent again requested
that the Board reconsider its Motion for Summary Judg-
ment . This latest motion is pending before the Board.
Based on the entire record in this case, including ex-
tensive exhibits, 3 my observations of the, witnesses' de-
meanor, and consideration of the parties' thorough post-
trial briefs, I make the following4
1 The International will be referred to as the Boilermakers
2 Hereinafter, all dates refer to 1984 unless otherwise indicated
3 Exhibits introduced by the General Counsel , the Charging Party, and
the Respondent are cited as G.C Exh., C P Exh , and R Exh , respec-
tively Joint Exhibits will be referred to as Jt Exh
4 By letter of 23 October 1985 Respondent requested an opportunity to
submit a reply brief alleging errors in the bnefs of the Charging Party
FINDINGS OF FACT
1. JURISDICTION
1367
The Respondent, a Pennsylvania corporation with its
principal office located in Allentown, Pennsylvania, is
and has been at all times material engaged in the produc-
tion and distribution of cement and related products at
plants located throughout the United States, including
one at York, Pennsylvania. The complaint alleges, the
answer admits, and I find on the basis of the entire
record that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
A. Overview
Until recently, the parties enjoyed a longterm, general-
ly amicable relationship. Thus, the Respondent, the
fourth or fifth largest domestic producer of cement, has
recognized the Cement Workers as the representative of
its production and maintenance employees since 1936
and has entered into successive companywide contracts
with the Union, the last of which expired by its terms on
30 April 1984, but was extended to 25 May.5
On 14 March the Cement Workers joined the Boiler-
makers as a separate division.6 Several weeks later, on 29
March, the parties began negotiations for a new contract.
After meetings on 7, 8, and 9 May failed to produce an
agreement, the Union commenced a strike on 14 May.
While the strike was still in progress, negotiations re-
sumed on 4 June. On 6 June, the Respondent handed the
Union a new and far-reaching contract proposal contain-
ing terms admittedly more onerous than Lehigh's previ-
ous proposals. Management officials departed without
further negotiations taking place.
On the night of 6 June, the Union notified the Re-
spondent that the employees were prepared to return to
work unconditionally the next morning. When work did
resume on 7 June, the Respondent implemented the pro-
posal presented the previous day. Although the parties
continued to meet sporadically in 1984 and up to 27
March 1985, no agreement was reached.
These facts, as set forth in greater detail below, pose
two overriding issues: (1) Did the joinder of the Cement
Workers with the Boilermakers relieve the Respondent
of its duty to bargain with the postmerger Union, and (2)
did the Respondent unlawfully implement a contract
proposal without first bargaining to impasse.
and General Counsel By order of 4 November 1985, I denied Respond-
ent's request noting that the following findings of fact and conclusions of
law are based on an independent review of the record as well as on the
briefs submitted to me
5 At the time of the events alleged in the complaint, the Cement Work-
ers represented some 1200 employees at 9 Lehigh plants across the coun-
try
6 The Union consistently referred to its association with the Boiler-
makers as a merger while the Respondent contends that the relationship
is properly styled an affiliation. Because the designation used by the par-
ties may be influential but not necessarily dispositive (see Noesting Pin
Ticket Co, 270 NLRB 937, 939 (1984)), I shall continue to use the term
merger for convenience sake
1368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Evidence Regarding the Cement Workers' Joinder
with the Boilermakers
1. Background
Although the Cement Workers had considered the ne-
cessity of merger for a number of years, it was not until
1982 that its search for a compatible partner focused on
the Boilermakers . An International merger committee
was formed to pursue the matter under the following
guidelines : that the merger be with an industrial union;
that conditions , interests and objectives be shared; that
the Cement Workers not lose its identity , and that the
merger be ratified by the Cement Workers' member-
ship.7
2. Merger procedures
By 1983 , negotiations between the International
Unions culminated in a proposed merger agreement that
outlined the future relationship and commitments be-
tween the two organizations. Thereafter, the Cement
Workers made widespread efforts to inform the member-
ship about the terms and consequences of the merger.
Articles about the merger appeared in issues of the
Union's publication, The Voice , which was mailed to 60
percent of the membership individually and by bulk mail
to the locals for subsequent redistribution . In addition,
International officials attended each of the Cement
Workers' district conventions held in 1983 and 1984.8
They led discussions and answered questions regarding
the merger . In straw votes taken at these district meet-
ings, approximately 70 percent of the delegates registered
approval of the merger . The merger also was a frequent
topic of conversation at bimonthly meetings of the
locals.
In compliance with article V, section III of it constitu-
tion , the Cement Workers planned a special merger con-
vention to be held in Las Vegas on 14 and 15 March
1984 . By letter of 21 December 1983, Richard Northrip,
then secretary -treasurer of the Union , instructed each
local on the procedures to be followed in selecting spe-
cial convention delegates . Specifically , mailed notices
were to be sent to the unit members9 15 days in advance
of the local 's January meeting announcing that a speci-
fied number of delegates would be elected by secret
ballot to represent the local at the forthcoming merger
convention.
Officers of each of the Lehigh locals who were sub-
poenaed to testify at the hearing indicated that there was
less than perfect adherence to the procedural niceties de-
scribed in Northrip 's letter . 1 ° Thus, only one of the
locals sent mailed notices to its members . The other
Lehigh locals advertised the meeting by posting written
notices in the places where their meetings typically were
announced and where the employers were most likely to
r These guidelines were first approved at the Cement Workers Interna-
tional convention and reaffirmed at several subsequent conventions
8 Separate locals at each Lehigh plant were assigned to I of 10 admin-
istrative distracts.
All unit employees were members of the Union
10 The procedures set forth in the Northrip letter were not mandated
by the Cement Workers constitution
see them . Some of the local officers testified that remind-
ers also were issued by word of mouth and that tele-
phone notification was given to laid -off employees. For
the most part, less than a majority of the members at-
tended these meetings. Moreover , in no instance did the
number of nominees exceed the number of delegates al-
lotted to the respective locals . " Because the outcome of
these single slate elections was a foregone conclusion,
secret balloting was viewed as unnecessary . Consequent-
ly, voting for the delegates was accomplished by a show
of hands . t 2 The Cement Workers witnesses testified that
the Lehigh delegates attended the merger convention
with a good sense of how their fellow members viewed
the merger issue . Some went with authorization to
decide how they would vote at the convention while
two of the Lehigh locals took straw polls of their mem-
bership 's position . Of these two , Local 108 was the only
one to unanimously oppose merger while Local 42 voted
24 to 1 to support it.
Although only 171 of the 300 Cement Workers locals
sent delegates to the merger convention , each Lehigh
local was represented by at least 2 delegates . 13 Lively
debate over the pros and cons of merger consumed much
of the first day's proceedings . Secret ballot voting took
place on the following day with the merger approved by
more than the requisite two-thirds majority . 14 Later the
same day , the delegates elected Northrip as the Cement
Workers ' first International vice president at large and
John Bechtold , former secretary -treasurer of the Cement
Workers, as division director.
3. Effects of the merger
Prior to the merger, the Cement Workers had a three-
tiered organizational structure : at the plant level approxi-
mately 29,000 employees belonged to 300 locals; the 9
Lehigh locals had a total membership of 1200 . The locals
were grouped geographically into 10 administrative dis-
tricts . Ultimate legislative authority reposed in the Inter-
national convention , but between biannual sessions, an
executive committee , composed of an elected president,
secretary-treasurer, and financial secretary , managed the
Union's day-to-day activities . The effects of the merger
on the Cement Workers structure and operations are de-
scribed below.
a. The International level
The most notable effect of the merger was that the
Cement Workers International , previously a separate
entity, became a major and separate division of the Boil-
ermakers.16 The Boilermakers , like the Cement Workers,
11 The number of delegates designated for each local was in propor-
tion to its membership
12 The Cement Workers constitution did not provide for waste-in can-
didates.
13 Lehigh locals were numbered 30 , 31, 42, 69, 108, 109, 129, and 179.
14 The vote was 266 to 96 with I abstention and I absentee
15 International Vice President at Large Northnp testified that the
Cement Workers became the largest division or second largest depending
on the fluctuating size of the construction division.
LEHIGH PORTLAND CEMENT CO. 1369
was governed by an International Convention that met at
5-year intervals . In the interim , day-to-day management
rested with an executive council that was composed of
an International president and eight vice presidents, all of
whom were elected at the convention . 16 Under the
merger agreement , a ninth position was created for an
International vice president at large who , in addition to
serving on the executive council , was responsible for
overall administration and supervision of the Cement
Workers division . The merger agreement also provided
that the division 's first vice president at large would be
elected by the Cement Workers . Thereafter , that posi-
tion , like the other vice presidential posts , would be elec-
tive by all delegates at the International convention, on
condition that the candidate must come from the ranks
of the Cement Workers . No similar qualification attached
to the other eight International vice presidents and,
therefore , candidates from any division , including the
Cement Workers were eligible for theme . The merger
agreement also provided that the first director of the
Cement Workers division would be elected by division
delegates at the merger convention. Thereafter, in the
event of a vacancy , the International president could ap-
point the successor.
Although the Boilermakers ' constitution supplanted
that of the Cement Workers , its terms guaranteed a sub-
stantial degree of autonomy to the respective divisions.
For example , article 5 , section 2 , which describes the
general duties of the executive council , states:
The executive council shall have governing author-
ity over the international brotherhood and its subor-
dinate bodies when not in convention session to the
end of upholding the laws and policies of the broth-
erhood as expressed in this constitution provided,
however , that . . . the subordinate bodies of the
brotherhood shall have autonomy in the conduct of
their affairs including organizing activities , the ne-
gotiation and administration of collective -bargaining
agreements and engaging in economic activity to
that end.
Article 7, section 1(a) of the constitution , which outlines
the general duties of the International president , confers
in almost identical language the same broad independ-
ence to the "subordinate bodies of the Brotherhood."
Consistent with the guarantees contained in these quoted
sections, article 19 of the merger agreement promised
that "industry -wide negotiating and servicing policies of
the United Cement , Lime Gypsum and Allied Workers
International Union will not be changed as a result of the
merger." Further, in order to more effectively fulfill the
division's bargaining and service policies , conferences
were established to coordinate negotiations within the in-
dustries that comprise the Cement Workers division; that
is, cement ; building products allied , and kaolin . To this
same end , the International Policy committee was re-
tained with its title changed to Division Policy Commit-
tee.
With the formation of the Cement Workers division, a
special division fund was established that was initially fi-
nanced by contributions of up to $50 ,000 from each of
the Cement Workers district treasuries . Any district
funds over and above the original $50,000 contribution
was reserved in a special fund dedicated to that district's
own use . A portion of the per capita taxes paid by the
locals to the Cement Workers International was chan-
neled into the division fund on an ongoing basis to cover
only Cement Workers activities . The remainder of the
per capita taxes were apportioned to the various Boiler-
makers funds including the defense , publications , conven-
tion , and general funds, but the Cement Workers' pen-
sion fund remained separate.
b. The district level
Prior to the merger , each of the Cement Workers 10
districts had an International vice president appointed by
the Cement Workers president and District representa-
tives , whose primary functions were to coordinate serv-
ices and activities for the locals , handle grievances after
the initial steps , and coordinate bargaining within their
respective geographic area.
As a consequence of the merger , the districts were
styled areas . The former International vice presidents
were renamed International representative/coordinators
with their duties remaining exactly the same . The Inter-
national president was empowered to fill subsequent va-
cancies , but only with persons from the Cement Workers
division . Similarly , all incumbent district representatives
retained their positions with a new title of International
representative . Their duties within their respective areas
also remained unchanged. Prior to the merger, district
representatives were elected to their positions by mem-
bers of the locals within each given district. The merger
agreement specified that in 1987 , lodge delegates would
elect or reelect their area representatives to 5-year terms,
that is, until 1991 . Thereafter, they would be appointed
by the International president on the advice of the vice
president at large.
c. The local level
The merger agreement also provided that the 300
Cement Workers locals would remain intact. New Boil-
ermakers charters were issued , however, which retitled
the locals , "lodges" and affirmed their trade and territo-
rial jurisdiction . 117 All the lodge officers remained in
place as did the method of their election . The lodges
were required to revise their bylaws to conform with
those of the Boilermakers but the changes were negligi-
ble. Thus , hereinafter the lodge president would serve a
3- rather than 1-year term . Grievance committeemen
would be retitled stewards but the structure of the com-
mittees and method of selection , whether by appointment
or election , remained a matter of local option. The
method of processing grievances at the first and second
steps also was unaffected by the merger , as was the
degree of local responsibility for collective bargaining.
16 The vice presidents came from and had responsibility for one of
eight geographic sections in the United States and Canada
17 Each Lehigh local retained its same number preceded by the letter
1370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Prior to the merger, Cement Workers received $50 after
the first week of the strike and $80 a week if the strike
lasted more than 7 weeks . Postmerger strike benefits
were $55 per week beginning with the third week of the
strike . Further , in accordance with the Boilermakers
constitution , the local body retained principal control
over the decision to strike . After the affected members
made that decision , final approval rested with the Inter-
national president . Each lodge retained its own treasury
and other assets . The amount of initiation fees, dues, and
total per capita taxes were not affected by the merger.
Finally , meeting places and meeting dates remained the
same.
4. Respondent 's knowledge of the merger
The Respondent does not deny having learned of the
Cement Workers merger with the Boilermakers by
March 1984 at the latest . In fact , merger information
may have come to the attention of Respondent 's officials
before that time . Kratzer's notes taken at a January 1984
meeting of Cement Employer 's Association (CEA), indi-
cate that the merger was an agenda item. His notes for a
CEA meeting on 13 March suggests that the merger
again was a topic of discussion.
In all likelihood, Kratzer also read about the merger in
the Union 's trade publication . He acknowledged that he
read The Voice regularly and recalled glancing at sever-
al issues published in the early part of 1984 that con-
tained numerous articles about the merger . However, he
said he read only one such article with any care . In addi-
tion, the Respondent probably knew that the merger de-
cision would be by a vote of delegates because Lehigh
employees would have had to request leaves of absence
in order to attend the special convention . 18 Whatever in-
formation Kratzer may have obtained on his own was
supplemented by a letter that Granich sent to him short-
ly after the merger announcing the results of the vote.
For approximately a year thereafter, Lehigh did not
question the merger . Not only did Respondent continue
to bargain with the division officers with whom it had
previously negotiated , but it submitted several proposals
to the Cement Workers that referred to the Union by its
postmerger name . Kratzer acknowledged that he had no
reason to doubt the merger's validity for he observed no
change in the negotiation procedure nor in the identity
of the union representatives who engaged in bargaining
after 15 March.
Then, on 31 January 1985 , Kratzer attended a CEA
meeting at which an NLRB advice memorandum was
discussed and a citation was even given to the labor re-
porting manual in which the memo was reprinted.
Kratzer's notes of this meeting reveal that he mistakenly
assumed that the NLRB had approved the merger; con-
sequently, he did not pursue the matter further . None of
Respondent 's officials became aware of possible imper-
fections in the merger until April 1985 when Kratzer
was advised by an associate at another company that the
is A limitation on the number of union members permitted to take
leaves of absence to engage in union activities was among the Respond-
ent's collective-bargaining proposals.
merger might not be valid because it was not handled
properly.
Until the time Kratzer received this information, Re-
spondent had continued to check off employees' dues
owed to the merged union . Afterwards , the Respondent
canceled further meetings with the grievance and safety
committees at its local plants , discontinued dues check-
offs, and determined to cease bargaining with the Union.
However, Respondent at no time withdrew recognition.
Kratzer further testified that he knew of no employee
who has revoked his dues authorization card subsequent
to the merger . Moreover , Lehigh has never doubted that
the Union retained the majority support of its employees.
The record also shows that no employee has protested
the procedures used to effectuate the merger nor chal-
lenged the Union 's majority status by filing a decertifica-
tion petition.
C. Evidence Bearing on Respondent 's Implementation
of Contract Offer
1. Background
For over four decades the parties have entered into
companywide labor contracts . In the late 1960s, the
Union introduced "pattern bargaining," a shorthand term
used to describe a process in which the Union and a des-
ignated cement manufacturer negotiated an agreement
that then became the model or pattern that some 40 to
50 other organized cement manufacturers were expected
to adopt without major revision . Lehigh had been a con-
sistent partner to such pattern settlements , accepting the
last agreement in 1981 even before seeing its actual
terms . In addition to negotiating on an industrywide
basis, the parties also bargained over "conference pro-
posals" (issues affecting only Lehigh ) and local issues
concerning individual plants.
2. The 1983 wage concession
From 1979 to 1983, the cement industry experienced
severe economic distress caused by the importation of
less expensive foreign cement and by a downturn in con-
struction . Lehigh reacted to those problems by selling
$44 million of capital assets, reducing the size of its sala-
ried work force and , in 1983, freezing the salaries of non-
bargaining unit employees . In a further effort to improve
its fiscal posture, the Respondent also importuned the
Union to defer a wage increase due on 1 May 1984.
Thus, in early February , at Kratzer's request, Granich
met with Respondent's president , Peter Otto, and several
other Lehigh officials . After informing Granich of the
Company's prior and prospective financial losses, Otto
proposed that the 61 -cent-per-hour wage increase be de-
ferred with 25 cents of that sum to be contributed to a
supplemental unemployment benefit fund (SUB fund) for
laid-off employees and the remainder to be invested in
capital improvements. Granich insisted that such a con-
cession could be conferred only if a majority of Lehigh
locals voted to approve it. Subsequently , the Company
brought local union representatives to its Allentown,
Pennsylvania headquarters where officials described the
Company's economic plight and pleaded its case for the
LEHIGH PORTLAND CEMENT CO.
wage deferral even though it entailed an estimated $1500
wage loss per employee. Otto indicated that the German
parent company that had purchased Lehigh in 1977
would view this concession as proof of the employees'
loyalty. Sympathetic with the Respondent's situation,
Gramch personally endorsed and campaigned for the
concession both at the Allentown meeting and after-
wards. When the voting by the locals appeared to be
close, Granich personally lobbied for the deferral at a
Lehigh plant in his jurisdiction. The approval of that
local meant that the concession was granted, thereby ac-
cording to the Respondent a $1 million benefit.
Subsequently, other cement producers besieged the
Union with requests for comparable relief, but each em-
ployer had a different sort of concession in mind. In re-
sponse , the Union proposed to extend the current agree-
ment for 1 year for all employers. Although Lehigh was
willing to accept this proposal, other employers were
not. Therefore because negotiations for a new contract
were about to commence, the Union abandoned such dis-
cussions . Thus, Lehigh was the only employer to receive
this major midterm wage concession.i9
Having given Lehigh this advantage, the Union ex-
plained that they could not further irritate other industry
employers by entertaining the Respondent's request to
set the pattern in the forthcoming negotiations. Instead,
Lone Star, the largest domestic cement producer with 17
plants, was chosen to take the lead.
3. The 1984 negotiations
January. Before the 1984 negotiations officially com-
menced, Respondent arranged an informal and confiden-
tial meeting with Granich. Gramch testified that at this
time Kratzer assured him that although they were going
"to run some problem areas past you," he should not be
concerned because "it won't be of any consequence."
Otto then described the Company's fiscal losses over the
past several years, which amounted to $12 million. How-
ever, he noted with pleasure that contrary to expecta-
tion , Lehigh had realized a slight profit in 1983 and was
projecting a gain of close to $5 million in 1984 due to an
anticipated resurgence in the cement industry. Otto fur-
ther mentioned that the economic woes of the cement in-
dustry were due to unwise expenditures by manufactur-
ers and were not the Union's fault. Kratzer next read a
list of 23 proposals giving Granich a preview of the con-
cessionary terms Respondent would be seeking . Because
Granich did not regard this meeting as a bargaining ses-
sion , he took no notes nor did Respondent offer him any-
thing in writing at that time.
February. In compliance with their contract, the Union
sent a set of contract proposals to the Respondent on 10
February. On 23 February, the Company responded with
an outline of 25 proposals that closely tracked the items
previously described to Granich at the January meeting.
(See Jt. Exh. 4.)
March. The first on-the-record negotiating session was
held on 29 March. Because a pattern settlement had not
yet been reached, the parties met for no more than 1-1/2
19 Although midterm concessions may have been granted to one or
two other employers, the record fails to disclose their nature or value
1371
hours. At the outset, Ralph Bohman, vice president for
marketing and sales, made introductory remarks casting
the Company's fortunes into a somewhat brighter mold
than had been the case at the prior meetings with Gran-
ich. Thus, he mentioned a projected 10-percent improve-
ment in the cement business, but cautiously predicted
only a 5-percent increase for Lehigh. During this session,
the Company's itemized proposals were briefly reviewed.
The Company also proffered, without discussion, draft
language for the following items in its proposal: a recog-
nition clause reducing two monthly grievance meetings
to one; foremen working under specific circumstances;
bumping rights for incapacitated employees; awarding
jobs on factors other than strict seniority and identifying
job classifications that would require employees retain
their positions for a minimum of 4 years; elimination of
certain work-schedule penalties and job premium pay-
ments ; limitations on the length of vacations; straight
rather than percentage wage rates for second- and third-
shift employees; specific sums for safety shoes; bumping
rights requiring that employees be immediately qualified;
limitations on leaves of absence for a specific number of
union representatives; expanded subcontracting rights on
condition that the Company notify and bargain with the
Union in advance of any such decision; and lastly, elimi-
nation of benefits for laid-off employees.
Other than briefly reviewing the Union's conference
proposals little else was accomplished at this meeting be-
cause the parties agreed to await the outcome of the
Lone Star negotiations.
May. Subsequently, further meetings were arranged for
8, 9, and 10 May in St. Louis, both parties believing that
by that time the Lone Star negotiations would be com-
pleted. Just before this resumption, Kratzer attended a
meeting of the Cement Employers Association (CEA)
that was convened specifically to review the terms of the
Lone Star agreement . However, because those negotia-
tions had not quite concluded, precise details of the
agreement were not available to the CEA members.
Not until the early morning hours of 7 May was agree-
ment reached between the Union and Lone Star. Apart
from a 25-cent hourly wage increase in each of 3 years,
other provisions in the Lone Star contract were of a
concessionary nature which, according to Northrip,
more than offset the 75-cent wage increase. Specifically,
the Lone Star contract provided that a wage adjustment
would not be triggered unless the cost-of-living standard
exceeded 7 percent; that the maximum vacations for
longterm employees would be reduced from 6 to 5
weeks, and that in the first year of the contract, one holi-
day would be eliminated. As to health benefits, the Lone
Star agreement provided for a new $125 deductible, a
maximum $1000 per individual stop loss and a 90/10-per-
cent cost sharing between the Employer and the employ-
ee respectively. As a step toward mandatory cost con-
tainment , the Lone Star contract further provided that
the Employer's contribution would be reduced if em-
ployees did not obtain a second medical opinion.
Another significant concession in the Lone Star agree-
ment concerned the deletion of the transfer clause.
Under the expired agreement , that clause obligated an
1372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer to pay a penalty unless straight time and over-
time vacancies were filled by employees drawn from the
same classification in which the vacancy occurred. In the
Lone Star agreement , the transfer clause was eliminated.
In its place language was added that required the em-
ployer to fill only overtime openings from the same clas-
sification. Although the transfer clause affected only five
of the nine Lehigh bargaining units, the Company looked
on it as a costly administrative nightmare. In fact, on at
least one occasion, Northrip was told by company offi-
cials that they valued elimination of the transfer clause at
75 cents per hour.20 Finally, the Lone Star agreement
provided that no premium or penalty payment to an em-
ployee would exceed three times his regular straight-time
rate. Lehigh was concerned about reducing the accumu-
lation of penalties and premiums because under certain
circumstances, some of its employees were receiving as
much as five times their regular hourly rate.
On the evening of 7 May, the entire union negotiating
team met and with some misgivings , agreed to support
the Lone Star settlement.21 Later that night when Gran-
ich and Johnathan Wolfel22 had a chance meeting with
Kratzer and Morgan, Kratzer stated that based on his
early information, Lehigh was not prepared to accept the
Lone Star settlement.
That same evening Northrip advised Granich by tele-
phone that Lehigh's president, Otto, also had expressed
reservations about the Lone Star settlement. Before the
joint session began the following morning, Granich in-
formed the union representatives of the Company's initial
adverse reaction to the Lone Star agreement whereupon
all those present agreed to strike unless Lehigh altered its
position. According to Wolfel's notes, Granich then cau-
tioned the representatives that "we need to negotiate to
protect us legally, however we will not accept anything
less than the pattern settlement."
Later that day, the parties met in their first bilateral
session . Granich informed the Lehigh negotiators that
the Union was willing to bargain about local and confer-
ence issues , but that Lehigh would be struck if it did not
accept the Lone Star settlement. To demonstrate the
Union's resolve, Granich polled the union representa-
tives, each of whom stated that his local would strike
unless Lehigh accepted the Lone Star agreement.
Thereafter, representatives for each of the parties met
to review the terms of the Lone Star agreement. Neither
of the parties' notes indicates that Kratzer made any dis-
20 Kratzer testified that his comment to Northnp regarding the worth
of the transfer clause was made in jest. However , Northnp's detailed
recollection of the circumstances under which Kratzer 's statement was
made suggests that elimination of the transfer clause was indeed valuable
to the Company.
21 Some local leaders believed that in fight of the 1983 wage deferral
granted to the Respondent , further concessions provided by the Lone
Star agreement were not in order
22 Wolfel , formerly, a district representative and then an International
representative with the merged union had participated in the Lone Star
negotiations and consequently as assisting Granich by serving as the offi-
cud notetaker during the Lehigh bargaining sessions His contemporane-
ous notes of the various bargaining sessions were admitted into evidence
as R Exh . 43. Morgan served as Respondent 's official notetaker. Hs
handwritten notes were reviewed by various persons privy to the negoti-
ations and then typed up in final form . Only the typed version appears in
the record as Jt Exhs 5, 8, and 12
positive remarks about the Lone Star settlement at this
time. Nevertheless, Kratzer testified at the instant admin-
istrative hearing that this first exchange with the Union
confirmed his view that the Lone Star agreement did not
address Lehigh's problems.
Following the review of the Lone Star contract, the
parties turned to the Company's proposals. Granich re-
sponded to each of the 39 items in largely negative
terms.23 Briefly stated, Granich rejected a number of
proposals because the matters were addressed in the
Lone Star contract, and rejected other proposals that
would have required a revision in industrywide lan-
guage. As to Lehigh's proposals concerning foremen
working and the use of outside contractors, Granich of-
fered to discuss the purpose and intent of those clauses.
He responded more favorably to proposals that would
extend the pension funding period from 25 to 30 years as
permitted under ERISA and applying the pension pro-
gram to newly acquired plants.
The following day, 9 May, began with another brief
discussion of several Lone Star provisions. However, the
greater part of the meeting was devoted to local issues,
all of which were resolved in one manner or another. At
day's end, Kratzer informed Granich that Lehigh could
not accept the Lone Star contract because, from the
Company's perspective, it did not address the following
areas: foremen working, subcontracting, job transfers,
job scheduling penalties, vacations during plant shut-
down, and safety shoes. At the hearing, Kratzer testified
that also stressed job reclassifications as a company pri-
ority. However, no reference to this matter appears in
either parties' notes which were fairly consistent on the
other items Kratzer identified. In addition, Kratzer indi-
cated that the Company would have been willing to
offer 100-percent wage rate protection and extend health
benefits coverage to unemployed laid-off employees if
the Union had acceded to four of the Company's propos-
als.
While expressing these reservations, Kratzer also indi-
cated that he needed more time to consider the Lone
Star contract and wanted his absent colleague, Bohman,
to review it as well. He urged the Union to reconsider
its adherence to the Lone Star agreement and to forgo
striking until they could meet again on 20 May when
Bohman would be available. If agreement was reached at
that time, the Company pledged to make the contract
retroactive to 1 May. Granich rejected the Company's
request insisting that Lehigh would have to accept no
less than the pattern settlement and outstanding confer-
ence issues to avoid a strike.24 The negotiations termi-
nated at that point with Kratzer and Morgan leaving St.
Louis, although 10 May had been set aside for further
negotiations. No future date was set at that time for fur-
ther bargaining.
23 Although Lehigh's proposals were categorized into 25 subject areas,
a total of 39 subitems actually were included
24 Kratzer's testimony at the hearing that Grameh referred to the Lone
Star agreement as the Union 's final proposal was not reflected in the
notes of either party Given this lack of documentary support and the
length of time that elapsed between the operative events and the trial, I
prefer to rely here on contemporaneous records than on a more recent
statement that bear earmarks of self-serving afterthought.
LEHIGH PORTLAND CEMENT CO. 1373
Although the strike commenced on 14 May, virtually
closing the nine Lehigh facilities, communications be-
tween the parties continued. Thus, Northrip testified
without contradiction that he spoke with Peter Schu-
maker, president of the parent company, who expressed
pleasure when he heard about the Lone Star agreement's
treatment of the transfer clause. In another conversation,
Otto reacted enthusiastically to North rip' s suggestion
that the parties enter into letters of intent regarding the
subcontracting and foremen working issues, stating "Atta
boy-if you're willing to talk about that we can reach
agreement."
While these contacts were occurring, Kratzer was for-
mulating a far-reaching revision of the Company's con-
tract proposals. Kratzer explained that the decision to
pursue a new course of action came about when he
learned that a number of Lehigh's competitors were re-
fusing to accept the Lone Star settlement and either had
or were about to unilaterally implement concessionary
contracts. Therefore, "in order to remain competitive
and to put Lehigh in the best possible position from a
marketing standpoint," Kratzer prepared a new integrat-
ed document which, as he conceded, contained extensive
revisions of the expired agreement and was far more on-
erous than the Company's previous proposals.
In the latter part of May, Respondent notified the
Union that it was terminating the prior contract and ben-
efit plans. During this same period of time, various
Lehigh plants began to advertise for employee replace-
ments and also seek substitute manpower through sub-
contractors. Granich learned of these efforts and tele-
phoned Kratzer on 30 May to express his, concern. When
he asked about the Company's intentions, Kratzer agreed
not to replace the striking employees until after the par-
ties' next series of meetings which were scheduled to
resume on 4 June in Washington, D.C. under the auspic-
es of a Federal mediator. Granich also mentioned to
Kratzer that given a more amicable bargaining atmos-
phere, the employees might abandon the strike. Although
he made no firm commitment in this regard, in anticipa-
tion of an end to the strike, Grartich drafted telegrams on
3 June setting forth the Union's unconditional offer for
the employees' return to work.
June. The company negotiators arrived in Washington
on 4 June armed with the complete text of a new labor
contract as well as new proposals for a comprehensive
health plan, pension agreement, and supplemental unem-
ployment benefits package. (See A. Exh. 16.) However,
the Respondent chose not to disclose the existence of
these new proposals to the Union. Instead, the parties
turned to the Company's initial demands. Generally
speaking, the negotiations on 4 June were devoted to a
point-by-point review of the Respondent's proposal. The
Union used this occasion to elicit information as to the
precise nature of the Respondent's concerns, to identify
whether given problems were confined to one or more
plants, and to determine what cost savings were antici-
pated from certain proposals. For example, questions
from the Union revealed that bumping rights for inca-
pacitated employees, foremen working, and excessive
leaves of absence by union delegates constituted prob-
lems at only a few facilities. When asked about cost sav-
ings projected from Respondent's health insurance pro-
posal, Kratzer stated that he was in the process of gath-
ering that data. He further promised to supply cost-
saving information generated by certain pension propos-
als. In addition, the Union also asked about cost savings
anticipated from Respondent's proposals to eliminate pre-
mium payments, vacations, and temporary job transfers.
When Wolfel asked about the purchase price of safety
shoes, Kratzer acknowledged that he did not have that
information. During this session , the Respondent gave to
the Union for the first time an outline of a job reclassifi-
cation program that compressed job categories company-
wide from 120 to 7. Certain details of reclassification at
each plant, however, were left for future clarification. At
the same time , Respondent introduced a totally new
item-a two-tiered wage rate scheme that would provide
significantly lower hourly wage rates for new employees
while maintaining present rates for current employees.
Further, the Respondent provided the Union with a sum-
mary of proposed changes in its health insurance pro-
gram and withdrew proposal number 25 from its original
list.
Granich opened the bilateral session on 5 June by re-
marking that the Union intended to reach agreement but
that some of the items in the Company's proposal were
of such magnitude and had such an adverse impact on
the membership that he doubted they could reach agree-
ment. However, he added that in order to consider the
Company's proposals intelligently, more information
would be needed and several further rounds of negotia-
tions required. Thereafter, Granich outlined the follow-
ing counteroffer to the Company's proposals:25 (1) The
Union agreed to housekeeping changes to reflect the pur-
chase of two new plants and the Union's postmerger
name . (2) Retreating from its earlier rejection, the Union
accepted the Company's proposal to reduce monthly
grievance meetings from two to one. (3) During the 4
June discussion, the Respondent acknowledged that fore-
men working posed problems at just a few locations but
they wanted foremen to be able to instruct, demonstrate,
inspect, test, and perform various other tasks. When
Granich agreed that the Company should have greater
flexibility in those areas, Kratzer responded, "that is the
first time I have heard this. It is obvious you understand
the problem." On the following day, Granich went
beyond his previous suggestion to resolve this matter by
discussing purpose and intent and proposed defining the
scope of bargaining unit work in a manner that would
meet the Company's needs by a means of a letter of
intent. (5) The Union responded to two of three items in
the Company's job award proposal, agreeing to delete a
requirement affecting employees in grade 19 and above
and proposing that employees remain on the job 2-1/2
years rather than 4 years as the Respondent requested.
(6) The Union offered to eliminate posting and bidding
requirements for temporary jobs at grade 10 and above
in response to the Company's demand to eliminate such
procedures altogether. In discussing this issue, Granich
zs The numbers in parenthesis preceding each counteroffer refer to the
same numbers in Respondent 's proposal (See Jt Exh 4 )
1374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pointed out that the Union had agreed to waive this re-
quirement with respect to all jobs above grade 12 in the
previous contract. (7) In addressing the Company's pro-
posal to eliminate the penalty/premium rate obligation
for certain types of overtime work, the Union suggested
imposing a 3-1/2 percent ceiling on all such earnings. (8)
The Union agreed to eliminate any penalty when kiln
breakdowns caused work schedule changes if Respond-
ent withdrew language encompassing breakdowns of
kiln-related equipment . (12 a & c) The Union agreed to
limit maximum vacation time to 6 weeks and further pro-
posed that an employee could not revise a vacation
scheduled during plant layoffs or shutdowns. (16) The
Union agreed to limit attendance at panel negotiations to
only two union representatives, but did not extend this
limitation to attendance at conventions or plant meetings.
(17) As with the foremen working issue, Granich offered
to define the scope of the subcontracting clause so as to
guarantee the Respondent greater flexibility. (19) The
Union acquiesced to the Company's desire to use written
tests and test results in employee evaluations for the job
training program. (21) The Union agreed to three of five
proposed changes in the pension program pending re-
ceipt of formal language. (23) After receiving a summary
of the Respondent's health insurance proposals for the
first time on the previous day, the Union responded with
a three-part counteroffer that included a $100-deductible-
per-family membership with a maximum deductible for
two-family members, a 90/10-percent cost sharing after
the deductible was satisfied; an annual stop loss of $1000
per year per individual or $1500 per family, and agree-
ment in principle to the Company's cost containment
provisions.
At the conclusion of the Union's presentation , Kratzer
asked what the Union's position was with respect to the
proposals that had not been addressed. Granich made it
clear that when he alluded to the need for more informa-
tion and more time to study certain matters at the start
of the session, he was referring to those items that the
Union's counterproposal had not addressed. In Bohman's
opinion, the Union had shown an effort to make
progress. Less pleased than his colleague, Kratzer again
stated that the Union had not met "areas of major con-
cern."26
On the afternoon of 5 June, Granich and Kratzer met
privately to consider items that had not previously been
addressed in the Union's counterproposal. During this
sidebar session, Granich sympathized with the Respond-
ent's position on chain bumping by incapacitated employ-
ees and stated the Union's willingness to work something
out that would limit abuses in this area. Going beyond
the Union's offer made earlier that day, Granich showed
further movement by agreeing to extend the bar from 2-
26 Respondent asserts in its brief that Wolfel's notes revealed that the
Union had decided to reject the Company's proposals that had been
omitted from its counterproposal I do not draw the same inference as
does the Respondent for the word "No" after certain items in Wolfel's
notes could mean only that no response would be given on the morning
of 5 June The fact that Granich made further concessions on several of
these items in his after noon conference with Kratzer, supports the con-
clusion that the counteroffer on 5 June did not represent the Union's final
position
1/2 to 3 years on employees' bidding out of new job
classifications. He further assured Kratzer that they
could not only eliminate the transfer clause in accord-
ance with the Lone Star contract but could delete trou-
blesome substitute language in that clause if an overall
agreement was reached. Granich further suggested that
they could resolve vacation scheduling problems on a
day-to-day basis in an informal manner . By the time this
meeting concluded, the Union had either agreed to or
made significant counterproposals to each priority item
Kratzer identified on 9 May (with the exception of safety
shoes).27 When they parted at 5 p.m., Kratzer assured
Granich that he was in for a pleasant surprise.28 While
Kratzer and Granich were engaged in their one-on-one
meeting , a local union representative, Dennis Hardman,
inadvertently overheard Bohman stating on the tele-
phone that things were going well and the Company was
about to get what it wanted. Assuming that this was a
positive sign , Hardman related the conversation to his
cohorts. In reality, Bohman was speaking with Edward
Hyland, the Respondent' s general counsel , who acknowl-
edged at the hearing that Bohman's remarks were "to
the effect that we were getting close to the point where
we could put it [the close to final proposal] on the
table."
By the end of the day, Granich believed that substan-
tial progress had been made. Encouraged both by Hard-
man's comments and by Kratzer's parting remark, Gran-
ich was so convinced that negotiations were going to
conclude favorably that he made notes of several items
that he wished to pursue with the Respondent regarding
the employees' return to work. Contrary to Granich's as-
sumption , Kratzer testified that he and his associates de-
cided that they had exhausted the possibility of obtaining
agreement on their original proposals.
On the morning of 6 June, Kratzer met briefly with
Granich. He advised him that the Respondent did not
believe that the Union's counterproposals addressed Le-
high's problems; consequently, the Company was about
to submit a new "close to final proposal."29 Shortly
thereafter, the Company officials joined the union repre-
sentatives and distributed copies of the following docu-
ments : a companywide 42-page agreement together with
a multipage appendix covering an on-the-job training
27 The Respondent alleges that it identified other priority matters in
May including the award of jobs based on relative ability rather than
strict seniority, a reduction in job classifications, and two-tiered wage
rates However, I find no mention that these issues were identified as pn-
onty items in either parties' notes Because the notes are generally reli-
able in recording significant topics that were discussed , I am convinced
that Respondent did not alert the Union that it attached overriding im-
portance to proposals not specifically enumerated (See R Exh 43 and
Jt Exh 8 remeetings on 9 May)
28 I am persuaded that Kratzer made this comment because Granich
quoted it verbatim from his contemporaneous notes Moreover, Northnp
recalled that Granich repeated this remark to him during a telephone call
later the same evening
29 Kratzer testified that he also gave Granich one last chance to accept
the Company's proposals , but Gramch insisted on Lone Star as the
Union's final position Gramch denied that any substantive exchange oc-
curred at this time It is difficult to understand why Grancih would
revert to Lone Star when movement had been made beyond some of its
terms Perhaps Kratzer confused this date with 9 May when he attributed
virtually the same words to Gramch
LEHIGH PORTLAND CEMENT CO. 1375
program and a wage rate schedule (Jt. Exh. 16a); a pen-
sion plan of 20 pages with several appendices (Jt. Exh.
16b) and a supplemental unemployment benefit plan of
27 pages (Jt. Exh. 16c). Respondent provided no key or
index for the submissions that extensively altered the par-
ties' expired agreement. Perceiving that the materials
were of a new and far-ranging nature, the union repre-
sentatives became incensed and vented their anger in no
uncertain terms . After a brief discussion , management of-
ficials left the room to allow the Union an opportunity to
review the proposals.
Granich then telephoned Northrip to advise him of the
unhappy turn of events. Northrip promised to come to
Washington as quickly as possible and urged Granich to
persuade Respondent's agents to remain in Washington
until he had an opportunity to speak with them. Accord-
ingly, Granich requested that the company negotiators
remain on the scene. Rejecting this request, Kratzer
stated that they were compelled to return to Allentown
where they were expected by officials of their parent
corporation.
4. The employees return to work under the terms of
the close to final proposed
On the evening of 6 June, the Union sent a telegram to
the Company offering to return to work unconditionally
the following day. The next morning, allegedly much
surprised by the Union's offer, Respondent's chief offi-
cers met to frame the Company's response. Kratzer testi-
fied that the group decided they could not implement the
expired agreement while their competitors were unilater-
ally implementing less costly contracts. Because the Re-
spondent had sustained losses of $2 million a week
during the 3-week strike, a lockout also was rejected.
Thus, in the absence of viable alternatives, the Respond-
ent determined to implement its close to final offer and
notified the Union to that effect.
In the weeks following the employees return to work,
Wolfel analyzed the close to final proposal to determine
the extent to which it altered the parties' 1981 collective-
bargaining agreement and went beyond the Company's
previous bargaining positions. Based on his undisputed
testimony and a review of the relevant documents (see
Jt. Exh. 16a, G.C. Exh. 4, and R. Exh. 7), a summary of
major provisions in Respondent's implemented contract
that were not previously proposed to nor discussed with
the Union during the 1984 collective-bargaining negotia-
tions is set forth below:
(1) Lehigh withdrew its commitment to abide by all
prior mutual understandings. Although it did not identify
the various past practices to be abolished, the Respond-
ent proposed to reduce such practices to writing subse-
quently.
(2) The effective date of the union-security clause was
extended from 30 to 60 days. The probationary period
was similarly prolonged and, during that time, new em-
ployees would be denied resort to the grievance proce-
dure.
(3) A previous requirement to print the labor contract
and other negotiated documents under union label was
deleted.
(4) Language covering the circumstances under which
foremen would perform unit work was revised and, for
the first time , applied to lunch periods and other breaks
without regard to time limitations.
(5) The Company's prior obligation to request the
presence of a union representative during disciplinary
meetings was transferred to the Union.
(6) The Company abolished its duty to post notifica-
tion 7 days in advance of any layoff and to pay affected
employees if such notice was not given.
(7) Lehigh assumed sole authority for filling the 21st
shift by assignment rather than by bidding as was the
prior practice.
(8) Laid-off employees who heretofore accumulated
seniority for a maximum of 3 years or 50 percent of their
seniority would henceforth accumulate seniority for only
2 years or 50 percent of their seniority, whichever was
less.
(9) The Company eliminated the obligation to provide
premium pay for certain callout work.
(10) The Company assumed the exclusive right to
excuse employees from overtime work, whereas previ-
ously employees had a right to refuse such assignments.
Moreover, language was deleted that prohibited penaliz-
ing employees for refusing overtime. The Company also
abolished its prior duty to equalize overtime pay among
employees in the same classification. Instead, the imple-
mented proposal provided that the Company would at-
tempt to equalize overtime within a calendar year.
(11) Language in the implemented proposal regarding
employees working two or more jobs within 1 day or
during the course of a week, differed from the terms the
Company submitted previously.
(12) A provision was altered dealing with payments
for meals during overtime employment.
(13) The Company's obligation to furnish additional
personnel in the packinghouse under certain circum-
stances was terminated.
(14) The definition of a "plant shutdown" was broad-
ened. Further, employees selected to work during such
shutdowns would have to be "immediately qualified."
The concept of "immediate qualifications" was raised
during the 1984 contract negotiations, but only in refer-
ence to the Company's proposal regarding incapacitated
employees.
(15) Henceforth, employees would be ineligible to take
holidays until they had worked for 60 rather than 30
days. Employees who worked on a holiday would be
compensated at time and a half rather than at triple time
as was previously the case. In addition, a standard holi-
day would replace a 12th holiday which differed from
plant to plant.
(16) The implemented proposal extended the number
of working years required before employees were eligi-
ble for 3, 4, or 5 weeks of vacation. The maximum vaca-
tion period was reduced from the Company's previous
proposal of 6 to 5 weeks. The Respondent also assumed
the right to schedule vacations when an employee was ill
or injured.
(17) The proposal limited the number of grievance
committeemen and terminated Lehigh's duty to compen-
1376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sate them for nonscheduled time when they were not on
duty . An initial step in the grievance procedure would
be held only at the Company 's pleasure and several other
steps would be eliminated.
(18) The Company 's previous unqualified obligation to
transport employees for medical attention was eliminated
as was its duty to reimburse those employees for un-
scheduled lost working time.
(19) The implemented proposal also made a number of
revisions in the health and safety area : a provision in the
former agreement requiring immediate review of suspect-
ed health or safety hazards was deleted ; the Respondent
was no longer barred from discharging or disciplining an
employee who made such a complaint ; safety committee
members who previously were compensated for all time
spent working on such matters henceforth would be
compensated only for scheduled time spent ; and the
Company's previous obligation to provide safety gloves
for a variety of tasks would apply only where gloves
were needed for welding.
(20) Where an employee 's job status was affected by
automation or other major change , his former rate of pay
would be guaranteed for only 3 years or one-third of his
seniority , whichever was less, rather than for 5 years as
provided by the expired contract.
(21) In the event of a plant closure , an affected em-
ployee 's right to transfer to another facility was reduced
from 3 to 2 years ; if a facility reopened within 1 rather
than 3 years , employees on pension or SUB benefits
could elect to return and all employment rights of laid-
off employees would terminate after a 2 - instead of the 3-
year term provided in the expired contract.
(22) After taking a leave of absence , employees were
no longer permitted to return to a bargaining unit posi-
tion by bumping. Bumping restrictions were discussed
during the 1984 contract negotiations , but solely in the
context of the incapacitated employees clause.
(23) Another section of the leave-of-absence provision
dealing with bereavement leave was also redefined to ex-
clude certain family members such as step -parents. In ad-
dition , excused time off where bereavement leave was re-
quired to travel beyond 500 miles was restricted.
(24) The implemented proposal stipulated that all
pending grievances , with the exception of discharges,
would be treated as if they were resolved and withdrawn
by the Union with prejudice.
(25) A simple no-strike clause was replaced by a de-
tailed provision curtailing the right to strike under any
circumstances during the term of the agreement. Re-
spondent also reserved the right to discharge or disci-
pline instigators and participants in any strike. An em-
ployee could grieve whether he had been involved in the
strike, but could not contest the degree of discipline im-
posed.
(26) An entirely new management -rights clause was in-
troduced granting the Respondent the right , inter alia, to
discontinue operations in whole or in part or to dis-
continue their performance by employees of the
Company ; to determine the number of hours per
day or per week that operations shall be carried on;
to select and determine the types of employees re-
quired ; to assign work to such employees in accord-
ance with the requirements determined by manage-
ment ; to establish and change work schedules, work
shifts and assignments . . . to make and enforce
rules for the maintenance of discipline and safety
. . . (and) to contract out, subcontract or exchange
work.
(27) Supplanting more limited language proposed on
29 March , the implemented contract contained the fol-
lowing comprehensive subcontracting clause:
production and maintenance work customarily per-
formed by unit employees shall continue to be per-
formed [by them] . . . unless the Company deter-
mines it is more economical , efficient or expeditious
to do otherwise.
The close to final proposal , which Granich described
as the worst he had seen in his experience , has governed
the employees ' working conditions since their return on
7 June . Although the parties have met sporadically since
that date , at no time has the Company withdrawn the
unilateral contract or indicated that its terms were being
reimplemented . Rather , the Respondent has consistently
advised the Union that the implemented proposal repre-
sents its negotiating position. Thus, Kratzer explained
that while the Respondent was willing to discuss its
original 25 demands , it was "always with the understand-
ing . . . that the others had to be resolved in some fash-
ion."
II. DISCUSSION AND CONCLUSIONARY FINDINGS
A. The Cement Workers Merged with the
Boilermakers
1. The parties ' contentions
The General Counsel and Charging Party submit, in
substance , that the due-process requirements set forth in
Amoco Products, 262 NLRB 1240 (1982) (Amoco IV), are
inapplicable to the Cement Workers merger with the
Boilermakers for it caused no real change in the identity
and autonomy of the Union . Moreover , they argue that
whether the Amoco IV standards do obtain, the Respond-
ent is estopped from denying the validity of the Union's
status as the employees ' majority representative because
Lehigh continued bargaining with the Union after learn-
ing of the merger . The Respondent urges that the Amoco
IV due-process standards should govern every union
combination whether it is styled a merger or an affili-
ation. Alternatively , the Respondent contends that in the
event that the Board decides not to extend its Amoco IV
rule to mergers between international unions, the Cement
Workers alliance with the Boilermakers was, in fact, an
affiliation . Because procedural defects attended the affili-
ation, the Respondent maintains that it has no lawful
duty to bargain with the Union.
The threshold issue posed in this case is whether the
Respondent may challenge the validity of the Cement
Workers merger because the Union did not provide all
bargaining unit employees an opportunity to vote direct-
LEHIGH PORTLAND CEMENT CO. 1377
ly on the merger decision. For the reasons set forth
below, I conclude that the merger procedures relied on
by the Cement Workers were appropriate and, conse-
quently, that the Respondent's reliance on their alleged
invalidity offers no defense for its refusal to bargain. I
next find that the Respondent is estopped from challeng-
ing the merger.
2. The applicable case law
When an affiliation "takes place under circumstances
that do not indicate that the change reflected a majority
view,"30 the Board may find that a question concerning
representation (QCR) arises . In evaluating such ques-
tions, "the factor of primary importance is whether the
employees have had an opportunity to pass on the
change of representative.,, 31 The Board describes this
examination of employee support for a change of collec-
tive-bargaining representative through affiliation "a due
process" inquiry.32 If due process has been satisfied, the
Board will not demand that art election be conducted
under its own "laboratory conditions." See General Shoe
Corp., 77 NLRB 124, 127 (1948), enfd. 192 F.2d 504 (6th
Cir. 1951), cert. denied 343 U.S. 904 (1952).
Over the last few years, the case law reveals certain
fluctuations in the standards that the Board views as suf-
ficient to comply with due process. Compare North Elec-
tric Tool, supra; Jasper Seating Co., 231 NLRB 1025
(1977); and Amoco Production Co., 239 NLRB 1195
(1979) (Amoco III). In Amoco III, the Board decided that
the affiliation of an independent local with an Interna-
tional union may be by vote of union members only as a
purely internal union matter . Three years later, on
remand from the Fifth Circuit, the Board reversed its
earlier decision, reasoning that because a union's request
for certification (or a bargaining order) requires that it
place its imprimatur on the affiliation process, the Board
should first obtain a broadly based indication of the em-
ployees' views.33 Accordingly, the Board held that mini-
mal standards of due process require that all unit em-
ployees, not only union members, must have an opportu-
nity to vote on the affiliation decision. Amoco IV, supra
at 1241.34 As the Board stated, "it is inconsistent to
permit all union employees to vote in a representation
election, but when the question is one of affiliation, to
permit only union members the right to vote." Ibid. Be-
cause the nonunion member employees in the Amoco
unit were not provided with this opportunity, the Board
found that the employer did not violate Section 8(a)(5) in
refusing to bargain with the affiliated labor organization.
Thus, the Board found that even when no question con-
cerning representation arises and no doubt exists as to
continuity of representation, an affiliation may potential-
30 North Electric Co, 165 NLRB 942 (1967)
81 Newspapers, Inc, 210 NLRB 8, 9 fns 3-4 (1974), enfd. 515 F 2d 334
(5th Cir 1975)
32 Due process is not used in its constitutional sense, but, rather, as a
general description of procedures that the Board deems sufficient to
assure that a union's affiliation procedure was neither so lax or irregular
to invalidate the election. See Hamilton Tool Co, 190 NLRB 571, 575
ss The Amoco IV rationale adopts the dissenting position in North Elec-
tric.
s* Affd sub nom . Oil Workers Local 4--14 v. NLFB, 721 F.2d 150 (5th
Cir 1983).
ly affect the nature of the collective-bargaining repre-
sentative and alter its relationship to those whom it rep-
resents. Accordingly, the Board concluded that all em-
ployees in the unit must be permitted an opportunity to
participate in the affiliation decision.35
The Board's implicit view in Amoco IV that an affili-
ation , by its nature, has the likelihood of significantly af-
fecting the rights of all employees in the bargaining unit,
was next applied to mergers between locals of the same
International union. Thus, in F. W. Woolworth Co., 268
NLRB 805 (1984),38 the Board ruled that employees in
the affiliating local could not be disenfranchised for, as in
Amoco IV, "the certified union is replaced by a different
entity from that designated by union employees. In both
cases a factor of primary importance is whether the af-
fected employees had an opportunity to pass on the
change of representative." (Emphasis supplied.) Id. at 806.
In a more recent case, Insulfab Plastics, 274 NLRB 817
(1985), the Board affirmed an administrative law judge
decision approving an independent union's affiliation
with an international union where there was adequate
notice and an opportunity to discuss the proposed affili-
ation prior to a secret-ballot election among all unit em-
ployees.37 After finding that the election was properly
conducted in accordance with the Board's due-process
requirements, the administrative law judge next deter-
mined that the affiliation posed no threat to the continui-
ty of representation provided by the affiliated local. In
fact, he could identify only one change, which he de-
scribed as follows: "The Independent after affiliation re-
mains the same small platoon it always was but it now
can arrive at the bargaining table with newly acquired
reinforcements." Id. at 823.
In Noesting Pin Ticket Co., 270 NLRB 937 (1984), a
case on which Respondent heavily relies, the Board af-
firmed an administrative law judges decision to extend
the Amoco rule to an affiliation of two international
unions. Specifically, that case involved an affiliation be-
tween the International Production Service and Sales
Employees Union (IPSSEU) composed of only nine
as On the basis of its decision in Amoco IV, the Board reversed its pre-
vious position in First Bank Independent Employees Assn. (FIFA), holding
that since the affiliation election between the FLEA and the Retail Clerks
International Union was inadequate, the Union 's petition to amend certifi-
cation and a refusal-to-bargain complaint against the employer, Seattle-
First National Bank, 265 NLRB 426 (1982), must be dismissed. At the
same time , the Board recognized without comment a subsequent merger
between the Retail Clerks and the Amalgamated Meatcutters to form the
United Food and Commercial Workers Id. at 426 fn 2 On the Union's
petition for review, the Ninth Circuit Court of Appeals rejected the
Board 's Amoco IV rule Food & Commercial Workers Local 1182 (Seattle-
First National Bank) Y NLRB, 752 F 2d 356 (9th Cir. 1984), remanded
475 U S 192 (1986) The merger of the International unions is not at issue
before the Supreme Court
36 Vacated and remanded sub nom Food & Commercial Workers Local
568 Y. NLRB, 122 LRRM 2368 (D C Cir 1986).
37 As the Board has stated in Amoco IV, while it is not necessary that
affiliation elections "meet the standards the Board has enunciated for its
own election proceedings , there are certain due process requirements
which must be met in order to have a valid affiliation election " In gener-
al, the Board has indicated that among the other required due-process
procedures are adequate notice, time for reflection, discussion, an oppor-
tunity to vote, and reasonable efforts to preserve the secrecy of the
ballot See Williamson Co, 244 NLRB 953, 955 ( 1979) See also U.S. Steel
Corp v NLRB, 457 F 2d 660 (3d Cir 1972)
1378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
locals, with the Hotel Employees, Restaurant Employ-
ees' International Union. After the affiliation, IPSSEU
became a district council comprised of the same nine
locals. The administrative law judge accorded much
weight to the fact that the IPSSEU referred to its reor-
ganization as an affiliation . Noting that the Board applied
Amoco IV voting requirements to affiliations but not to
mergers of International unions , the administrative law
judge characterized the IPSSEU realignment as an affili-
ation. Consequently, because not all unit employees were
entitled to vote on the matter, he concluded that the em-
ployer's refusal to bargain was justified. 270 NLRB at
939-940.
In May Department Stores Co., 268 NLRB 979 (1984),
a case factually parallel to Noesting Pin, the Board held
that the Amoco IV due-process requirements applied to
the affiliation of the United Retail Workers, an independ-
ent union composed of four locals representing approxi-
mately 22,400 employees with the United Food and
Commercial Workers.38 As a consequence of that affili-
ation, the locals were converted into nonindependent ad-
ministrative units subordinate to the UFCW's constitu-
tion, with the officers of each unit elected on an at-large
rather than a unit-by-unit basis.
The Board adopted the administrative law judge's de-
cision in Noesting Pin with only one brief comment. By
way of clarification and citing F W. Woolworth, supra,
the Board noted that "this statement is no longer correct
when the merger involves union locals." Id. at fn. 1. Be-
cause the Board's footnote carefully avoids applying the
Amoco IV rule to all mergers at the international level, a
fair inference arises that, notwithstanding Noesting Pin,
certain types of mergers between international unions
remain internal union matters.
Texas Plastics, 263 NLRB 394 (1984), exemplifies the
standards that the Board has traditionally applied to
mergers of international unions. In that case, which
issued some 3 weeks after the Amoco IV decision, the
Board granted local 17l's petition to amend certification
following the merger of its parent, the Amalgamated
Meat Cutters and the Retail Clerks International union,
to form the United Food and Commercial Workers. Al-
though the unit employees did not directly participate in
the decision, and the merger was approved at a special
convention, the Board nevertheless granted the Union's
petition stating:
Thus, nothing but local 171's designation-i.e., that
it is chartered by UFCW rather than Meat Cut-
ters-changed. Indeed, the same personnel who
serviced local 17l's various shops continued doing
so after the merger of the International Union, the
jurisdiction of local 171 remained the same after the
merger and the rights and privileges of the employ-
ees represented by local 171 were unchanged by the
merger. Moreover, local 171 was given the oppor-
tunity to send delegates to the special convention,
but its executive committee exercised its discretion
to chose not to do so. Additionally, we note that
the employees, by their membership, were bound to
the terms and conditions of the Meat Cutters consti-
tution, which expressly authorized the Meat Cutters
International executive board to merge Meat Cut-
ters with other international unions.39
Texas Plastics follows a long line of cases in which the
Board has approved mergers between international
unions without the direct voting participation of unit em-
ployees. See, e.g., Warehouse Groceries Management, 254
NLRB 252 (1981); American Enka Co., 231 NLRB 1335
(1977); National Carbon Co., 116 NLRB 488 (1956). See
also Purnell's Pride, Inc., 265 NLRB 1190 (1982), in
which the Board reaffirmed its approval of the UFCW
merger.
From a synthesis of these cases, I conclude that when
international unions enter into a relationship with one an-
other that does not significantly change the way employ-
ees in the affected bargaining unit are represented, the
Board will not demand adherence to its Amoco IV rule.
If, on the other hand, a sufficient degree of change
occurs in the nature of the collective-bargaining repre-
sentative as a result of either an affiliation or merger,
then the Board will insist that every employee in the unit
is entitled to participate in deciding whether they shall
be represented by a changed labor organization.
3. Standards for distinguishing mergers from
affiliations
The Board has not yet expressly articulated the stand-
ards to be used in determining what sorts of changes in a
labor organization must occur before a unitwide vote
may be required. However, certain instructive criteria
can be culled by analyzing the facts involved in the af-
filiation cases and comparing them with those in merger
cases.
In Amoco IV, the affiliation was between an independ-
ent local comprised of 480 unit employees, of whom 382
were union members, with an international union of
some 200,000 members. In Insulfab, supra, a small, one-
plant local affiliated with a major international union.
Similarly, in the Seattle-First National Bank case, supra,
the FIEU, which represented 4790 unit employees, of
whom 2624 were union members, affiliated with the
much larger Retail Clerks International Union.40
In none of the above cases was the continuity of repre-
sentation afforded by the postaffiliation union at risk.
Rather, the real cause of concern seems to stem from the
relatively small membership of the affiliating body in
contrast to the much larger membership of the adopted
parent. This disproportion appears to have led the Board
and the courts to fear that the larger international body
could potentially dominate its smaller and theoretically
weaker affiliate and distort the balance of power in col-
lective bargaining. These fears were voiced in U.S. Steel
a9 263 NLRB at 394-395
10 In each of these cited cases, a substantial number of unit employees
38 Affil. sub nom . Food & Commercial Workers Local 881 Y. NLRB, 774 were not union members I gather that this is not a critical factor, howev-
F 2d 752 (7th Cir 1985) Although the Board viewed the matter as an er , for the Board indicated in Amoco IV that the fact that the number of
affiliation , the Seventh Circuit, without explanation , referred to the nonunion unit employees was insufficient to affect the outcome of the
United Retail Workers Association with the UFCW as a merger. vote was immaterial
L]EHIGH PORTLAND CEMENT CO. 1379
Corp. v. NLRB, supra ; reversing 189 NLRB 119 (1971).
In that case , the court of appeals pointed out that a local
labor organization of 330 members affiliated with the
Steelworkers whose membership numbered over 1 mil-
lion. In finding that the employer did not unlawfully
refuse to bargain , the court noted that due to the affili-
ation "the association has been supplanted by an interna-
tional union as the bargaining representative , and control
over the rights of its members has been transferred from
an independent body . . . to an international union." Id.
at 663-664. In overturning the Board 's finding of conti-
nuity of representation and holding that the affiliation
raised a QCR , the court concluded that the affiliated
local was "a far different organization " in part because
"the power of the unit 's members to control these agents
has radically changed ." Id. at 663.
In his dissent in Jasper Seating, supra, 231 NLRB at
1027, Member Pennello quoted extensively from the U.S.
Steel Corp . case and concluded that in the matter before
him, as in U. S. Steel Corp ., "the union is now subject to
the international 's constitution , the rights and obligations
of the parties have been altered and the local autonomy of
NOWU has been dismantled to the point of extinction."
(Emphasis added.) In a later Third Circuit case , Sun Oil
Co. v. NLRB, 576 F .2d 553 (1978 ), reversing 228 NLRB
1072 (1977), the court attached "particular significance"
to a substantial increase in the Union 's economic power
since as a consequence of the affiliation the employer
was ordered to bargain with an international of 200,000
members that could "flex considerably more bargaining
muscle" than could the unaffiliated local with its mem-
bership of 30 . Id. at 557 . 41 The administrative law
judge's observation in Insulfab Plastics, supra (at 823)
that the affiliated union "can arrive at the bargaining
table with newly acquired reinforcements" reflects these
same misgivings.
The circumstances that give rise to the concerns ex-
pressed in the above decisions are not present in interna-
tional merger cases. For example , in Warehouse Groceries
Management , 254 NLRB 252 (1981 ), the Retail Clerks
International and Amalgamated Meatcutters merged to
form the United Food and Commercial Workers. Neither
union was dissolved , terminated, or discontinued ; officers
were drawn from both of the constituent partners; and
all locals retained their charters . In recognition of the au-
tonomy of the chartered locals , their day-to-day oper-
ations remained the same . Similarly, American Enka Co.,
231 NLRB 1335 (1977), involved a merger between the
Textile Workers Union of America and the Amalgamat-
ed Clothing Workers of America , becoming the Amalga-
mated Clothing and Textile Union , ACTWU . Neither of
the merging unions was dissolved. Rather each survived
as components of one labor entity with officers culled
from both . None of the locals or joint boards merged, a
Textile Division was created with its field structure
intact . Id. at 1337. On these facts, the Board found that
the merger effected no substantial change in the repre-
sentation of Respondent 's employees.
To the same effect is Texas Plastics, supra, in which
the executive board of the merged union, United Food
and Commercial Workers, was comprised of officers
from each of the premerged International labor organiza-
tions; all standing committees remained intact ; geograph-
ic divisions continued unaltered; and each local contin-
ued as a charter member of the UFCW. The Board con-
cluded that the merger of the two Internationals "did not
affect representation at the local level." Id. at 395. See
also Lloyd A. Fry Roofing Co., 118 NLRB 587 (1957);
National Carbon Co., 116 NLRB 488 (1956), affd. 244
F.2d 672 (6th Cir. 1957).
Several persistent themes can be traced in the above-
cited cases . First, in each case in which the Amoco IV
rule was applied , it is fair to infer that the Board was
concerned with the disproportion in size between the af-
filiating body and its parent and the consequent loss of
independence and autonomy that the affiliating body
could have suffered . Because the restructured organiza-
tion had a potentially different relationship to all those
whom it was bound to represent, the Board insisted that
all the affected employees in the unit must be permitted
to voice their views on the proposed reorganization.
These central concerns are not present when internation-
al unions merge . In other words, when the merger does
not result in one international dominating the other, and
when the merger does not appreciably alter the identity
and autonomy of the union so that it may continue to
discharge its collective -bargaining obligations in the same
manner as before for all those in the unit, the Board has
not thus far insisted on adherence to the identical due-
process safeguards that it now requires for affiliations.42
The reason for this distinction is sound. When merger
occurs, the collective-bargaining representative remains
the same. Hence, there is no need to afford each employ-
ee a second opportunity to approve a reorganization
when no meaningful change has occurred . A second
vote for the same labor organization would simply be re-
dundant; no useful purpose is served by requiring em-
ployees to reelect the same representative that the major-
ity previously had designated.
4. Application of standards to the Cement Workers
merger
The next question to be resolved is whether the rela-
tionship between the Cement Workers and Boilermakers
should be considered an affiliation governed by Amoco
IV, or a merger under the Texas Plastics line of cases. On
applying the standards discussed above to the facts in
this case, I conclude that since the Cement Workers did
not materially alter its identity or forfeit its autonomy,
and continued to represent all the Respondent' s unit em-
ployees just as it had in the past, its alliance with the
Boilermakers should properly be considered a merger.
41 I recognize that the Third Circuit cases deny enforcement to Board
decisions by which I am bound The Boai d cases, however, were issued
prior to Amoco IV At this juncture, the reasoning of the court of appeals
is more in tune with the Board 's rationale in Amoco IV than tight have
been the case previously
42 To require that in a merger, an equal number of officers from each
component labor organization must serve as officers of the combined
entity, would involve the Board in a rigid counting game A more rea-
sonable approach would be to consider the number and rank of the re-
tained officers as one factor among many to be examined
1380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent contends that the Cement Workers ceased
to exist and surrendered much of its independence as a
result of its affiliation, while the Boilermakers forfeited
nothing.43 In support of its contention, Respondent
points out that the Cement Workers became one of six
divisions, whereas the Boilermakers experienced no
structural change at all. In fact, the Respondent contends
that the Boilermakers made only one concession to the
Cement Workers: a guarantee that the newly created po-
sition of international vice president at large would be
filled by a person from the cement division, with a per-
manent seat on the Boilermakers executive council. The
Respondent also submits as evidence of the Cement
Workers loss of independence that its constitution was
supplanted by that of the Boilermakers and that its locals
were not only rechartered as Boilermakers lodges but
were compelled to conform their bylaws to the Boiler-
makers constitution and model bylaws.
Respondent further relies on the fact that beginning in
1991, vacancies among International representatives pre-
viously elected to positions titled district representatives
will be filled by appointment. Division representative/-
coordinators (formerly International vice presidents) will
serve at the pleasure of the Boilermakers president who
will be entitled to appoint successors in the event of va-
cancies. Additionally, Respondent asserts that control at
the local level will be adversely affected because griev-
ance committeemen will become appointed rather than
elected positions. Consequently, Respondent argues that
"most importantly the former members of the Cement
Workers have, for the most part, lost the right to elect
their representatives whereas prior to the merger the au-
thority for collective-bargaining and grievance handling
rested with elected officials."
Respondent overstates and, in some instances , misstates
the actual effects of the merger. An objective appraisal
of the merger shows that the Cement Workers did not
cease to exist .44 To the contrary, it survived as a sepa-
rate autonomous division joining the Boilermakers as a
major ally with its structure virtually intact. It is true
that the Cement Workers were required to conform their
constitution to that of the Boilermakers. But that state-
ment without further analysis is not instructive for it says
nothing about the nature of the changes that came
4a Respondent submits that Administrative Law Judge Berard 's deci-
sion in Dundee Cement Co., JD-224-85 (Aug 7, 1985), controls the in-
stant case. In Dundee, Judge Benard relied on an advice memo in Allied
American Gypsum Co (Aug 8 , 1984), in which the Associate General
Counsel determined that the case was controlled by Noesting An, so that
merger between the Cement Workers and Boilermakers had to be as-
sessed under the Amoco IV line of cases. Applying the rationale of that
memo in Dundee, Judge Benard concluded that the Cement Workers
merger was an affiliation because each of the constituent unions did not
give up their separate identities and because the Union , as a division of
the Boilermakers was required to conform its bylaws to those of the
International However, by letter of November 15, 1984, the General
Counsel reversed the position in the ealier Advice meorandum and re-
manded the matter for a hearing in the 8 (a)(5) allegation Therefore, I do
not find the advice meorandum controlling
44 It would be incorrect to assume that the Boilermakers were not al-
tered by the joinder of a major new division, which will entail conform-
ing amendments to its constitution.
about.45 In fact, the Boilermakers constitution goes far
to preserve rather than diminish the Cement Workers as
a viable and independent entity. I find it particularly sig-
nificant that the Boilermakers' constitution expressly
guarantees an extraordinary degree of autonomy to its
component divisions. As noted above, the authority of
both the International president and executive council is
limited by language that expressly vests in the Brother-
hood's subordinate bodies, "autonomy in the conduct of
their affairs including organizing activities, the negotia-
tion and administration of collective-bargaining agree-
ments and engaging in economic activity." (See G.C.
Exh. 9, Boilermakers' constitution, art. V, sec. 2; art.
VII, sec. 1.) In other words, neither the International
president nor the executive council are involved in the
Cement Workers collective bargaining; they are not em-
powered to negotiate, ratify, or veto the Cement Work-
ers agreements . Thus, in the very matter that most af-
fects the interests of all employees, exclusive authority
for the negotiation and administration of collective-bar-
gaining agreements , complete control remains with the
Cement Workers. The Cement Workers International
Policy Committee, charged previously with formulating
collective-bargaining positions, continues to function ex-
actly as it had in the past as a divisional committee. The
same Cement Workers officials who were responsible for
collective-bargaining continued in their same roles after
the merger, with only their titles changed. Industrywide
bargaining continues with conferences formed to coordi-
nate bargaining in each of the Cement Workers trade
areas . Indeed, Kratzer acknowledged that he observed
no change after the merger in the persons who negotiat-
ed for the Cement Workers nor in the procedures to
which they adhered.
Moreover, the Boilermakers constitution vests pri-
mary, if not exclusive, authority for strike decisions in
the subordinate body involved. The International presi-
dent is authorized to approve a strike, but only after the
affected workers have made the initial decision. In no
event may the international president or executive coun-
cil dictate that a strike occur. The president must also
authorize the granting of strike benefits, but his approval
and subsequent recommendation to the executive council
is conditioned on a report prepared by the International
vice president at large. Inasmuch as the Board acknowl-
edged in Amoco IV that strike votes remain internal
union matters,46 it is difficult to comprehend how the
president's role in strike situations has any bearing on the
question of whether all unit members must be allowed to
vote directly on the Cement Workers merger.
The Respondent argues that the most serious outcome
of the merger is that the Cement Workers have lost the
right to elect some of their leaders. Undeniably, the
merger will affect the method by which the Cement
Workers top officials are selected. But unlike affiliation
votes, the Board has consistently posited that the selec-
tion of union officers is an internal union matter into
4a The fact that changes in a constitution might be required clearly did
not affect the Board in approving mergers in such cases as Texas plastics
in which entirely new constitutions surely had to be prepared.
4e See Amoco IV, supra at 1241.
LEHIGH PORTLAND CEMENT CO. 1381
which the Board generally will not intrude. See Amoco
IV, supra at 1242.
The Respondent's professed concern regarding the
union members' ostensible loss of control over the elec-
tion of its labor leaders is somewhat premature and artifi-
cial. The Cement Workers delegates to the special
merger convention elected the first International vice
president at large and division director from their own
ranks. Subsequently the International vice president will
be elected by all delegates to the convention, but he
must continue to be drawn from the Cement Workers.
Further, for the time being, all Cement Workers Interna-
tional vice presidents were retained in office as Interna-
tional representative/coordinators. District representa-
tives similarly were held over and will remain in office
until 1991 by virtue of an election among Cement Work-
ers in 1987. All staff personnel also were retained in their
positions. As Northrip suggested in his testimony at the
instant hearing, the future selection of Cement Workers
officials poses a problem only to those who view the
merger as a hostile takeover rather than a marriage of
allies who share compatible goals and concerns.
Even if the Cement Workers had never merged, it is
possible that it could have amended its own constitution
to provide for the appointment of officials who previous-
ly were elected. Moreover, it is conceivable that the
Boilermakers constitution could be amended to that end.
In fact, the Brotherhood's constitutions may be amended
more easily than could the Cement Workers. The Boiler-
makers constitution requires only a simple majority vote
of convention delegates, whereas the Cement Workers
constitution called for a two-thirds vote.'" Significantly,
the Cement Workers is assured a disproportionately
strong voice in the Brotherhood's deliberations. The
Boilermakers constitution allocates one delegate to each
lodge and additional delegates in proportion to the
lodge's total membership.48 Because Boilermakers have
something less than 400 lodges compared to the Cement
Workers 300, the division can exercise considerable influ-
ence at the International conventions. Indeed, the
Cement Workers has sufficient voting power to someday
elect the International president and additional vice
presidents from its own ranks . The Cement Workers may
not be in a position to dominate the Boilermakers. By the
same token, its voting strength is sufficient to ensure that
it cannot be absorbed or engulfed by the Brotherhood.
Thus, the fear expressed by Member Pennello in his
Amoco III dissent and by the Third Circuit in the U.S.
Steel Corp., that the affiliations in those cases could in-
volve "significant changes in the actual identity of the
representatives and the diminution in the rights of the
bargaining unit members " is not a danger in the Cement
Workers merger with the Boilermakers.
The record also fails to support Respondent 's claim
that the merger jeopardized the lodges' autonomy or in-
vaded its critical interests. To the contrary, the Boiler-
makers constitution and the merger agreement protect
47 Compare G C Exh 8, art. V, sec. 3, with G C Exh . 9, art III, sec.
.
2 48 Convention delegates are elected at the local level Moreover, the
constitution provides that expenses of one delegate per lodge shall be
paid by the International
the identity and functions of the lodges to a remarkable
degree. No Cement Workers lodge was consolidated
with any other as a consequence of the merger. Al-
though the Boilermakers issued new charters to the
Cement Workers lodges, the issuance was a mere formal-
ity that had no effect whatsoever on the retention of its
membership nor on its territorial and trade jurisdiction.
In other words, the charters involved a mere titular
change. The Respondent also noted that the lodges had
to conform their bylaws to the Boilermakers model
guidelines , but fails to identify what differences in those
bylaws would support a conclusion that the lodges' iden-
tity or autonomy was eroded thereby. Because the Boil-
ermakers constitution accords a high degree of local au-
tonomy to the lodges, the model guidelines in fact en-
tailed only a few revisions in the Cement Workers
bylaws-a 3- rather than 1-year term for officers and an
express statement of their salaries. These minor revisions
seem insignificant when contrasted to all that remained
constant. Local officers remained in place with the same
responsibilities; they continued to be elected by their
constituents; all committees survived including the safety
and grievance committee that continued to have respon-
sibility for processing grievances at the first two steps,
just as it had in the past. Contrary to the Respondent's
contention, the Boilermakers constitution provides that
stewards (former grievance committee persons) may be
elected or appointed at the option of the lodge. (See
G.C. Exh. 9 at 115.) Responsibility for the subsequent
stages of the grievance machinery remained in the hands
of the International representatives and representative/-
coordinators. Because the Cement Workers' initiation
fees and dues structure was very similar to that of the
Boilermakers, no revisions were required. Total per
capita taxes also remained the same. It is true that after
the merger these sums were forwarded to the Interna-
tional and the portion of them were commingled with
several Boilermakers' funds. It would be incorrect to
conclude from this, however, that the Cement Workers
were deprived of these funds. Instead, the funds are
more secure as part of a larger whole. More importantly,
not all the Cement Workers contributions was commin-
gled. Rather a special division fund was established that
was dedicated to the Cement Workers operations. Final-
ly, the lodges retained total control over their own treas-
uries and other assets.
In light of the above circumstances, the suggestion
that, by merging, the Cement Workers surrendered its
identity of autonomy, plainly skirts reality. Even in its
divisional form, the Cement Workers continued as the
same entity it was before the merger. Although the
merger arrangements here are not identical to those de-
scribed in mergers in other cases (see, e.g., Texas Plastics,
supra, and cases cited therein at fn. 4), perfect congru-
ence is not essential as long as the alliance preserves to a
high degree the identity and autonomy of the merging
partners. Because I find that the Cement Workers did
not surrender control to the Boilermakers, nor change its
status or role as the unit employees' collective-bargaining
representative, the merger did not impair the Union's
certification. Therefore, the procedures used to effectu-
1382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ate that merger were properly within the Union 's discre-
tion . In the exercise of that discretion , the Union lawful-
ly determined to submit the question of its merger with
the Boilermakers to a convention of its elected delegates.
As in other merger cases , the Union had no need to
submit the question of its continuing representative status
to a direct vote of each unit member.
Simply because the merger here was not accomplished
in accordance with the Amoco IV rule, it does not follow
that due process was abandoned . Representational rather
than participatory democracy has long been an accepted
institution in this nation 's political and industrial life.
Further , other procedural safeguards attended the
merger decision in this case . The proposed merger was
announced and publicized well in advance and was much
discussed at various meetings of the locals and district
councils for months prior to the special convention. No-
tices were posted at least a week in advance in promi-
nent places advising unit members of a meeting at which
delegates to the merger convention would be elected.49
Because nominees for convention delegates ran unop-
posed, secret balloting was properly regarded as unnec-
essary . Delegates attended the convention with a good
sense of how their fellow workers viewed the merger.
At the convention , lengthy and unstifled debate ensued
over the pros and cons of the merger before voting took
place . Delegates had an ample opportunity to make an
informed and reasoned decision before the vote. Secret
ballots were cast at the merger convention that resulted
in the merger being approved by more than the requisite
two-thirds plurality required by the Cement Workers
constitution.
Thus, the merger was accomplished without "substan-
tial irregularity" in accordance with the dictates of the
Cement Workers constitution. Since the convention no
employee has resigned from the Union and there is no
evidence that any employee has objected to the voting
procedures used . Although dissatisfied employees cer-
tainly have the right to seek decertification, no such peti-
tions have been filed . Given these circumstances, it is
safe to say that the merger reflected the employees' true
desires . Consequently Lehigh 's protestations that its em-
ployees were disenfranchised seems disingenuous if not
opportunistic. If anything , the Union may have gained
more rather than less support by virtue of the Respond-
ent's posture . An employer has no cognizable interest in
the manner in which a merger is accomplished when no
question concerning representation is raised . As the Su-
preme Court aptly observed several decades ago "the
underlying principle of the statute is industrial peace. To
allow employers to rely on employees' rights in refusing
to bargain with the formerly designated union is not con-
ducive to that end , it is inimical to it." Ray Brooks v.
NLRB, 348 U.S. 97, 103 (1954).
49 Because every Lehigh employee was a union member , it would
seem that the procedures for notification of meetings need not be as strm-
gent as in those situations when nonunion members had to be notified.
See, e.g., Insulfab Plastics, 274 NLRB 817 (1985)
B. The Respondent is Estopped from Challenging the
Merger
The General Counsel and the Charging Party further
contend that whether the Amoco IV rule applies to the
Cement Workers association with the Boilermakers, the
Respondent is estopped from denying the validity of the
merger . Although Respondent was fully aware of the re-
lationship between the two international unions, it con-
tinued to bargain with the Cement Workers for a year
after the merger took place. Accordingly, I conclude
that it is estopped from contesting the merger proce-
dures.
The following authoritative explanation of the estoppel
doctrine appears in McClintock' s classic treatise , Princi-
ples of Equity at 80 (2d ed. 1948):
The gist of equitable estoppel is that a party who
has by his statements or conduct, asserted a claim
based on the assumption of the truth of certain
facts, whereby he has obtained a benefit from an-
other party, cannot later assert that those facts are
not true if thereby the other party will be preju-
diced.
The treatise further states that "a party may be estopped
to deny representations even when he had no knowledge
of their falsity" or no "intent to deceive the party now
setting up the estoppel" for the gravamen of the harm
lies not in the original conduct , but in "the subsequent
inconsistent position for it is the latter position that oper-
ates to injure the other party." Id.
The principles of equitable estoppel have been adapted
to the labor law context expressly and by implication.
For example, in Pearl Bookbinding Co., 206 NLRB 834
(1973), the employer was not permitted to evade its bar-
gaining obligation either because its employees did not
participate in the merger decision or because the union
failed to notify the employer of its name change when
the respondent conceded that it "had read reports of the
proposed merger before it actually took place, yet took
no action and instituted no inquiries . . . until the institu-
tion of the present proceeding ." Id. at 836.
In Knapp-Sherrill Co., 263 NLRB 396 (1982) (Knapp-
Sherrill I), the Board found that the employer knew of
the merger and although it had reservations , recognized
and bargained with the merged local over a midterm
wage increase . The employer first challenged the merger
procedure several years later after the contract had ex-
pired. Given these facts, the Board found that the em-
ployer could not 2 years later, when the Union was at its
most vulnerable , challenge the procedures employed in
the merger, particularly when the employees relied on
the employer's apparent recognition. Id. at 398. The
Board further observed:
[A]s the Employer had but to question initially the
merger procedures rather than recognize local 171,
and as the Employer conducted business with local
171 in a manner fully consistent with its recognition
for 2 years thereafter, we find the Employer may
not now challenge the procedures employed in the
merger.
LEHIGH PORTLAND CEMENT CO.
Although the Board bottomed its decision on a waiver
theory,50 it noted that all the elements of estoppel-
knowledge, intent, mistaken belief, and detrimental reli-
ance-also were satisfied. Id. at 398 fn. 5. When the em-
ployer subsequently refused to bargain in spite of the
Board's amendment of certification, an unfair labor
charge issued. The Board found an 8(a)(5) violation
based squarely on a reaffirmation of its previous estoppel
ruling. See Knapp-Sherrill Co., 268 NLRB 800, 801
(1984) (Knapp-Sherrill Il).
An estoppel theory also formed the basis for the
Board's decision in Jolie Belts Co., 265 NLRB 1130
(1982). Several months after the employer in that case
executed a contract with a local union, it learned of the
union's merger into a district council of the parent inter-
national . Although the Respondent was not officially no-
tified of the merger, 8 months later it bargained with the
district council for a midterm modification of the con-
tract. On these facts, the administrative law judge relied
sub silentio on the estoppel doctrine to find that the re-
spondent had unlawfully refused to bargain with the dis-
trict council. Id. at 1136. See also Supak & Sons Mfg.
Corp., 192 NLRB 1228 (1971), enfd. 470 F.2d 998 (4th
Cir. 1973).
More recently in Dundee Cement Co., supra , Adminis-
trative Law Judge Benard, relying on the Knapp-Sherrill
cases and Jolie Belts, held that the employer was es-
topped from objecting to the affiliation procedures in-
volved there. Recognizing that the employer before her
was not aware of any alleged defect in the merger proce-
dure until nearly a year after it took place, the admin-
strative law judge nevertheless found that because the re-
spondent knew of the merger and continued to deal with
the union, it had relinquished any objection it might have
had to the merger (ALJD).
In the present case, as in Jolie Belts and Dundee,
Lehigh had advance knowledge of the impending merger
between the Cement Workers and Boilermakers. More
specifically, Respondent's officials knew by January 1984
that the merger decision would be considered at a special
convention and probably also knew that employee dele-
gates representing locals at its nine plants would attend
the convention. In June 1985, Kratzer was advised of a
memorandum issued by the General Counsel in the Allied
American Gypsum case that concluded that the merger
was procedurally defective. That Kratzer misunderstood
the thrust of the memo and failed to make further in-
quiry, does not prevent the application of equitable es-
toppel principles. Having been put on notice here, "the
Employer had but to question initially the merger proce-
dures." Knapp-Sherrill I, supra. Far more important than
the Respondent's misunderstanding of a change in law,
which provided an arguable legal defense, is its contin-
ued dealings with the Union. For a year after the merger
and even after the Respondent had access to information
that cast doubt on the merger procedures, it not only
bargained with the Cement Workers, it submitted a con-
tract proposal which accorded recognition to the merged
50 Unlike estoppel, which need not turn on a party's knowledge, a
waiver is the intentional relinquishment of a known right See Knapp
Sherrill I, supra at fn 4
1383
Union and continued to check off dues. Undoubtedly,
the Union relied on the Respondent's recognition of its
merger for it took no steps to deal with the alleged
defect.
In these circumstances equity requires that Respondent
be estopped from challenging the Cement Workers
merger. The Respondent argues that the estoppel doc-
trine is inapplicable, however, because it had no reason
to suspect the bona fides of the merger procedure until
shortly before the hearing. The assumption of the merg-
er's validity that led Lehigh to continue bargaining is not
at issue . As McClintock instructs, the estoppel doctrine
does not operate only when the party makes an assertion
or acts in accordance with a valid belief. Rather, the
greater weight of authority is that the employer's belief
is irrelevant for it is the inconsistent position taken by
the party to be estopped that invites reliance by the
party asserting the estoppel. If an employer could evade
the consequences of its actions simply by claiming a lack
of knowledge, then the doctrine of equitable estoppel
would rarely be invoked.
As in Dundee, the Respondent here was aware of the
merger between the two International unions and yet
continued to deal with the Cement Workers division as
the employees' collective-bargaining representative just
as it had before. As in Dundee, the Respondent "was not
aware of any defects in the procedures used to effectuate
the merger until a year later." The Respondent's lack of
knowledge on this matter is beside the point.point. What is
critical is that the Employer knew of the merger and be-
haved in a way which encouraged justified reliance by
the Union. Here, as in Knapp-Sherrill I, Lehigh "disrupt-
ed the bargaining relationship at a time when . . . [the
Union's] role as bargaining representative is most vital to
the employees." Id. at 398. Clearly, the employees were
at their most vulnerable-their contract had expired-
and when negotiations for a new agreement had stalled,
their employer had unilaterally imposed regressive terms
and conditions of employment. From the foregoing, I
conclude that the Respondent should be estopped from
denying the validity of the Cement Workers merger with
the Boilermakers.
C. Respondent Unlawfully Changed Working
Conditions Prior to Impasse
1. The parties' positions
The remaining issue is whether the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by implementing its
close to final contract offer without bargaining to a valid
impasse with the Union.
Simply stated, the General Counsel and the Charging
Party contend that no impasse ever existed. Lehigh's po-
sition is a bit more elaborate. Essentially, Respondent
submits that the parties reached impasse as early as 9
May and that it continued through 5 June. Therefore, on
the following day, when Respondent introduced a close
to final contract proposal that was even less favorable to
the Union than its original demands, the impasse could
only become more entrenched. Respondent further con-
tends that when the striking employees abruptly offered
1384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to return to work, economic necessity justified the imple-
mentation of its last offer.
2. The applicable principles
An employer circumvents the duty to bargain collec-
tively in violation of Section 8(a)(5) when, without con-
sulting with the Union and while conducting negotia-
tions, it unilaterally changes existing terms and condi-
tions of employment. NLRB v. Benne Katz, 369 U.S. 736
(1962). In the frequently cited decision, Taft Broadcasting
Co., 163 NLRB 475 (1967), enfd. 395 F.2d 622 (D.C. Cir.
1968), the Board restated the Katz holding in the follow-
ing terms:
[A]fter bargaining to an impasse, that is, after good-
faith negotiations have exhausted the prospect of
concluding an agreement, an employer does not
violate the Act by making unilateral changes that
are reasonably comprehended within his pre-im-
passe proposals. [Id. at 478.]
Impasse has been defined as "a necessary response to a
state of affairs in which the parties, despite the best of
faith, are simply deadlocked." NLRB v. Tex-Tan, Inc.,
318 F.2d 472, 482 (5th Cir. 1963).51 In deciding when a
genuine impasse exists, the Board examines:
The bargaining history, the good faith of the parties
in negotiations, the importance of the issue or issues
as to which there is a disagreement, the contempo-
raneous understanding of the parties as to the state
of negotiations. [Taft Broadcasting, supra at 478.]
Although the Board attaches no special weight to any
one of the above criteria, the good-faith factor has re-
ceived more attention and is more problematic than the
others. Countless definitions of good-faith bargaining
appear in the case law, all of which, in one form or an-
other, impose on the parties a duty to "make some rea-
sonable effort in some direction to compose their differ-
ences." NLRB v. Reed & Price Mfg. Co., 205 F.2d 131,
134-135 (1st Cir. 1953), cert. denied 346 U.S. 887 (em-
phasis in original). As the Supreme Court observed in
NLRB v. Insurance Agents, 361 U.S. 477, 485 (1960):
Collective-bargaining, then, is not simply an occa-
sion for purely formal meetings between manage-
ment and labor, while each maintains an attitude of
"take it or leave it"; it presupposes a desire to reach
ultimate agreement to enter into a collective-bar-
gaining contract. It requires active participation "in
the deliberations so as to indicate a present intention
to find a basis for agreement. . . . Not only must
the employer have an open mind and a sincere
desire to reach an agreement but a sincere effort
must be made to reach common ground."
Thus, while the duty to bargain in good faith "does not
require reaching an agreement," it does prohibit "mere
51 Similar definitions of impasse abound in the case law See, e g , Asso-
ciated Machine, 271 NLRB 367 (1984), citing Hi-Way Billboards, 206
NLRB 22, 23 (1973).
pretense at negotiation with a completely closed mind
and without [a] spirit of cooperation." 82 Because evasive
tactics can be well camouflaged, "bad faith is prohibited
though done with sophistication and finess." NLRB v.
Herman Sausage Co., 275 F.2d 229, 232 (5th Cir. 1960).
Because parties seldom make express declarations of
unlawful intent, "piercing through the formal litany to
detect a want of good faith must rest in great measure on
reasoned inferences,"53 and generally must be inferred
from circumstantial evidence.54
3. Application of principles to this case
Reciting the foregoing principles is a far less difficult
task than applying them to the facts of this case.55 While
recognizing that the matters under consideration here are
subtle and elusive and that the principles to be applied
are elastic, I am constrained to conclude that Respond-
ent's conduct during negotiations in early June discloses
an intent to frustrate rather than reach agreement.56
a. The parties' bargaining history
The parties' previous bargaining relationship had little
bearing on the negotiations at issue here, for, as the
record discloses, ground rules that had developed over
many years of bargaining were, in 1984, followed more
in the breach than the observance. If anything, the
Union's reliance on past practice, specifically Lehigh's
willingness to enter into pattern settlements, led it to
expect that the Respondent would once again endorse
the Lone Star agreement. Granting the Company a mid-
term wage concession also misled the Union into assum-
ing that the Respondent would reciprocate by endorsing
the pattern agreement in May. The Union's expectations
were quickly dashed when the Company expressed its
reluctance to readily adopt the Lone Star contract. Thus,
the parties' past dealings shed little light on their intent
to reach agreement in the 1984 negotiations. In fact,
hindsight reveals that the parties' 1984 negotiations fall
into two distinct periods: phase one includes the negotia-
tions up to and including May, during which time the
Respondent had not firmly resolved on a course of
action; phase two covers the meetings in early June
during which time the Respondent had decided it would
not engage in meaningful collective bargaining.
as NLRB v. Holmes Tuttle Broadway Ford, 465 F 2d 717, 719 (9th Cir.
1972), quoting NLRB v Wonder State Mfg Co., 344 F.2d 210, 215 (8th
Cir 1965)
as NLRB v. Big Three Industries, 497 F.2d 43, 46 (5th Cir. 1974).
a* NLRB v. Reed & Prince Mfg. Co, supra at 139-140
as Under different circumstances and before joining the Supreme
Court Justice Blackman wrote- "Because we are subject to the natural
and ever present judicial desire for absolute certainty , we might wish as
always that the evidence consisted entirely of positive blacks and whites
and was not flecked with some greys " Duskey v. U.S., 295 F.2d 743, 755
(8th Cir 1961). This candid expression of the desire for decisional certi-
tude is equally apt in the present case.
66 Respondent objects to an examination of its good faith because the
complaint contains no independent allegation of bad-faith bargaining. I do
not evaluate the Respondent's conduct here in the context of a separate
alleged violation of the Act, but rather as part of the analysis called for
by the Taft criteria to deter ime whether a bona fide impasse was
reached Moreover, the question of the parties' conduct was fully and
fairly litigated and addressed in the parties' briefs
]LEHIGH PORTLAND CEMENT CO. 1385
b. Phase one: The parties were not deadlocked in May
In support of its argument that impasse was reached
on 9 May, the Respondent points out that the Union was
rigidly insisting on wholesale acceptance of the Lone
Star agreement . However, for deadlock to occur, both
parties must refuse to yield. While Kratzer stated that
the pattern agreement was unsatnsfactory and did not ad-
dress the Company's needs, at the same time , he told the
Union that he needed more time to reevaluate the Com-
pany's position and confer with his absent colleague
about the Lone Star contract. Whatever private thoughts
Kratzer may have had, he did not overtly, adamantly, or
finally reject the pattern settlement on 9 May, or indicate
that further bargaining would be futile.57
The Respondent also cites the strike as further evi-
dence of an early deadlock. Given the fact that the Re-
spondent had not taken a hard and fast position on Lone
Star, and that bargaining had barely begun, the strike
seems to have been a device to pressui e the Company
into greater appreciation of the Union's bargaining pos-
ture. Therefore, at that juncture, the Union's use of eco-
nomic pressure did not constitute conclusive evidence of
impasse . See NLRB v. Safway Steel Scaffolds Co., 383
F.2d 273, 280 (5th Cir. 1967); Inta-Roto Inc., 252 NLRB
764, 769 (1980). In fact, throughout the strike the parties
communicated frequently and productively. Cf. Lou
Stecher's Super Markets, 275 NLRB 475 (1985) (parties'
"lapse in communications demonstrated that they consid-
ered their positions firmly entrenched").
Even if it could be fairly said that a deadlock did
occur on 9 May, it was short-lived for within several
weeks a second series of meeting dates was arranged for
early June. S 8 Other events occurred after 9 May that
were bound to affect the parties' original bargaining posi-
tions . On the one hand, the Respondent was sustaining
losses of $2 million weekly because of the strike. On the
other hand, the Union was finding it difficult to maintain
picket lines , learned that the Company was about to hire
replacements at some locations, and was confronting a
situation in which several other cement manufacturers
had or were about to impose unilateral contracts. In
these circumstances, it would be fair to assume that the
parties approached bargaining with changed frames of
mind.
c. Phase two: Impasse was not reached in June
The Respondent did change its bargaining strategy
during the strike, but the change was not designed to
produce agreement . Becoming more rather than less in-
tractable, the Respondent arrived at the 4 June negotia-
tions armed with a complete, integrated draft contract
that was far more onerous and regressive than its origi-
67 Kratzer also testified at the hearing that he had concluded as early
as 9 May that the Lone Star agreement was totally unacceptable Neither
the testimony of the witnesses nor notes of the negotiations reveal that
Kratzer communicated such an adamant position to the Union
69 The critical function of finding that a valid impasse has occurred is
so that thereafter an employer may legitimately institute unilateral
changes in terms and conditions of employment Because the Respondent
did not implement its bargaining proposals prior to the resumption of ne-
gotiations on 4 June, the question of whether impasse occurred on 9 May
seems largely academic
nal offer. It is less important to question why Respond-
ent did not disclose the existence of these materials to
the Union than it is to consider the effect possession of
such documents had on its willingness to reach agree-
ment. The record shows that after the parties discussed
the Company's original proposals in considerable detail,
the Union presented a counteroffer, accepting outright a
number of items, counterproposing in other areas, and
leaving the door open for continued bargaining. More-
over, Granich was even more conciliatory in his private
discussion with Kratzer. Most significantly, he went
beyond the Lone Star agreement and pledged further
compromise on the transfer clause, one of the provisions
that Respondent viewed as crucial. 59 It is true that the
Union did not agree to every one of the Company's de-
mands, but neither did it assert that its positions were
final. Because the Union expected to continue bargaining
on the items about which questions had been raised, and
further reasonably anticipated some movement from the
Respondent, it is not surprising that it did not at this
point convey its best counteroffer. It is equally true that
Granich's initial reaction to Respondent's two-tiered
wage plan was negative. At the same time it is important
to recognize that the wage proposal had just been intro-
duced, had not been identified previously as especially
significant, and had no immediate impact on Respond-
ent's current operation.80 However, given the Union's
showing of flexibility, its early hostile reaction need not
have resulted in impasse had the Respondent been will-
ing to bargain a bit and proposed some tradeoffs. Thus,
even the ill-timed proposal for two-tiered wages, togeth-
er with other subjects, could have been bartered in the
give-and-take of genuine bargaining.
However mistaken Granich might have been, based on
the Union's concessions, Bohman's reported telephone
remarks, and Kratzer's parting comment to expect a
pleasant surprise, he genuinely believed that the parties
had made substantial progress and that agreement was
near . Thus, in contrast to the situation in Lou Stecher's
Super Markets, supra, in which the parties acknowledged
they were far apart, the Union's contemporaneous under-
standing of the state of the Lehigh negotiations would
not warrant a finding of impasse on 5 June.
Respondent claims that the Union's counteroffer on 5
June showed no significant movement and dismisses
Granich's side-bar assurances as inconsequential. Howev-
er, an examination of the parties' relative positions on
that date reveals a different picture than the one that Re-
spondent presents. The truth of the matter is that Re-
spondent was the party who made no movement. The
Union had accepted certain of its proposals, made coun-
terproposals, and requested information and more time to
evaluate a number of significant items. By making it
clear that its 5 June counterproposal was not final, the
59 Respondent cites Lou Stecher 's Super Markets , supra, for the propo-
sition that the Board will not rely on informal remarks like those Granich
made to Kratzer during their private meeting The casual and vague
comment in Lou Stecher's differs vastly from commitments such as Gran-
ich made during negotiations Both sides clearly regarded the side-bar
conference as integral to the collective-bargaining process
80 Respondent acknowledged that reduced wage rates would apply
only to new employees and that there was little Employee turnover.
1386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union also signaled to the Respondent that revised coun-
teroffers would be welcomed. In contrast, with but one
exception, the Respondent held to each of 38 items in its
original proposals. By failing to modify its demands in an
effort to meet the Union at least part way, by refusing to
reveal its bottom line, and by interjecting a new and in-
flammatory condition just when the parties should have
been trying to narrow their differences, Respondent re-
vealed that it had little interest in reaching common
ground.81 Rather, the totality of the evidence supports
the conclusion that the Company intended to exact
agreement to a fixed set of demands, a number of which
it was certain would be objectionable to the Union. In
short, the Respondent's attitude was "take it or leave it";
an approach long condemned by the case law.
Under Section 8(d) of the statute, no party is required
to make any specific concessions or to yield any posi-
tions fairly maintained. But if the Board "is not to be
blinded by empty talk and by mere surface motions of
collective bargaining it must take some cognizance of the
reasonableness of the position taken by the employer in
the course of bargaining negotiations." NLRB v. Reed &
Prince Mfg. Co., supra at 134. Thus, an inference of bad
faith may attach to an employer's refusal to "make some
reasonable effort in some direction to compose his differ-
ences with the union." Id. Here, the Respondent's failure
to come forward with any constructive response to the
Union's June counteroffer, its unwillingness to modify an
inordinate number of sweeping concessionary demands
proposed without adequate justification, 82 its refusal to
disclose a bottom line and its interjection of a new, re-
gressive, and foreseeably offensive proposal separates this
employer from those in the Board and the courts have
found to be engaged in hard rather than bad-faith bar-
gaining . For example, in E. L DuPont & Co., 268 NLRB
1075, 1076 (1985), although both parties made accommo-
dations throughout numerous bargaining sessions, the
employer remained firm on one proposal to which both
sides clearly had attached the highest priority. After 17
bargaining sessions focused largely on this single issue,
the Union indicated it would never accede to the em-
ployer's position, even in return for favorable tradeoffs in
other areas. On these facts, the Board found a good-faith
impasse. In Hamady Bros. Food Markets, 275 NLRB 1335
(1985), the employer detailed its critical economic situa-
tion which the Union never disputed, and then presented
six concessionary proposals with the cost savings they
would bring. The Board found the employer engaged in
hard bargaining where, in a final bargaining session, it
withdrew one of the six demands, did not increase or
add others, but remained firm on the remaining five
which were responsive to its financial crisis. The court's
ruling in Gulf States Mfrs. v. NLRB, 579 F.2d 1298, 1326
(5th Cir. 1978), that an employer was engaged in nothing
more than hard bargaining also rested heavily on the fact
that the employer had made considerable concessions
and reached agreement with the Union on a number of
disputed issues throughout the negotiations. In the instant
61 During these June negotiations, Respondent failed to renew the
tradeoffs that it had offered to the Union in May.
62 Respondent 's economic defense is discussed infra
case , Respondent's intransigence in refusing to take posi-
tive steps to meet the Union at least part way indicates
that it lacked a "sincere purpose to find a basis of agree-
ment ." NLRB v. Herman Sausage Co., supra at 231. See
also NLRB v. Wright Motors, 603 F.2d 604, 609 (7th Cir.
1979).
At the very least, Respondent's assertion that impasse
was reached on 5 June was premature. Certainly, when
parties bargain in good faith, impasse may be reached
after only a few days. See, e.g., Hamady Bros., supra;
Bell Transit Co., 271 NLRB 1272 (1984). However, the
evidence in this case establishes that the few days of ne-
gotiations were insufficient and that further bargaining
would not have been futile. The Union was waiting for
the Respondent to submit specific language for certain
proposals; it had posed questions about other items and
indicated that more time was needed to consider the Re-
spondent's new job classification scheme as well as other
matters . In turn , Respondent agreed to supply certain
data and acknowledged that the job reclassification plan
was unfinished. In these circumstances, the Respondent's
declaration of impasse was much too hasty. See Dependa-
ble Building Maintenance Co., 274 NLRB 216 (1985);
Henry Miller Spring Co., 273 NLRB 472 (1984); Intra-
Roto, Inc., supra.
Respondent submits that the Union had no real interest
in the requested information; that questions were posed
merely as a stalling device. Yet, the Respondent did not
always take such a dim view of the Union's quest, for
Kratzer acknowledged that the very information the
Union sought was being compiled and would be deliv-
ered shortly. The evidence is simply insufficient to show
that the data requested was irrelevant in helping the
Union formulate counterproposals or that the requests
were posed solely to delay. See Dependable Building
Maintenance Co., supra.
Although refusing to engage in any give and take, the
Respondent had no hesitation in rejecting the Union's
compromise proposals on the vague and unsupported
grounds that they did not address the Company's needs.
But an employer must at least provide an honest and sen-
sible explanation for its position when it rejects propos-
als. See NLRB v. George P. Pilling & Son Co., 119 F.2d
32, 37 (3d Cir. 1941). In this regard, the Respondent's ra-
tionale for rejecting the Union's proposal to execute let-
ters of intent as a solution to the foreman working and
subcontracting issues is instructive. The parties had no
real substantive disagreement about settling those mat-
ters. Rather, their dispute was procedural, with the Re-
spondent insisting that any revisions had to appear in the
body of the contract because, as Kratzer alleged, no
precedent existed for using such letters to modify exist-
ing contract language . Documentary evidence contra-
dicts Respondent's assertion . General Counsel's Exhibit
18, a letter dated 18 January 1982, clearly modified the
contractual grievance provision, and cannot be viewed as
anything other than a letter of intent. General Counsel's
Exhibits 21, 22, and 23 also reflect midterm contractual
modifications accomplished through side-bar agreements.
During an arbitration proceeding Respondent itself in-
voked a manual (G.C. Exh. 16), which interpreted con-
LEHIGH PORTLAND CEMENT CO.
tract terms but was not incorporated into the collective-
bargaining agreements. The Company's contention that
these exhibits did not provide sufficient precedent for the
similar use of letters of intent as proposed by the Union
is, at best, nitpicking and, at worst, evidence of the Re-
spondent's intent to frustrate agreement by refusing to
treat seriously the Union's efforts to compromise.
In sum, the evidence shows that on 5 June, the date
the Respondent claims the parties were still at impasse,
the Union had made considerable progress toward ac-
commodating Respondent's original proposals. The Re-
spondent had not only resisted compromise, it also failed
to explain satisfactorily its rejection of two key counter-
proposals. And just 1 day before the Respondent now al-
leges impasse occurred, it supplied the Union with a first
draft of a reorganized job classification system, a summa-
ry of a revised health plan and added a new proposal for
two-tiered wages that significantly reduced rates of pay
for new employees. Injecting a significant new demand
at this stage of the negotiations, particularly one which
was predictably offensive to the Union, gives rise to an
inference of bad faith. See Yearbook House, 223 NLRB
1456, 1464-1465 (1976). Such an inference is warranted
here.
Given the above circumstances, the Respondent was
unjustifiably hasty in concluding that the parties were at
impasse. Contrary to Respondent's contention, I con-
clude that negotiations were not so deadlocked that fur-
ther bargaining efforts would have been futile. As the
court observed in affirming the Board's Taft Broadcasting
decision, "It is indeed a fundamental tenet of the act that
even parties who seem to be in implacable conflict may,
by meeting and discussion, forge first small links and
then strong bands of agreement." Television Artists
AFTRA, Kansas City Local v. NLRB, 395 F.2d 622, 628
(D.C. Cir. 1968).
Continuing to act with inappropriate haste, Respond-
ent delivered its close to final proposal and left the nego-
tiations shortly thereafter. The record suggests that Re-
spondent's decision to withdraw its original proposals
and substitute a far more regressive package as soon as
the stage had been set for that maneuver was made prior
to the June meeting . Evidence that this strategy was not
done in advance comes from the testimony of Respond-
ent's chief witness. Kratzer admitted learning in May
that a few of Respondent's competitors already had or
would soon unilaterally implement concessionary con-
tracts of their own. Kratzer also conceded that he com-
pleted the close to final proposal to ensure Respondent a
competitive advantage. Yet, Respondent"s negotiators did
not forewarn the Union at the start of 4 June negotia-
tions that they were armed with a new proposal that
radically revised the parties' expired agreement.63 In-
stead, Respondent merely went through the motions of
bargaining. Its conduct on 4 and 5 June reveals an intent
to evade agreement so that with some semblance of legit-
63 Although Respondent maintains that it withheld its close to final
proposal at the mediator 's request, it offered no explanation for its failure
to at least advise the Union of the document 's existence or of its intent to
present that contract offer if the Union failed to acquiesce to its demands
by 5 June.
1387
imacy, it could introduce its close to final proposal.64
The telephone conversation between Bohman and
Hyland confirms this strategy.
Respondent withheld presenting the Union with the
new contract package until the last possible moment
before its prearranged departure from the negotiations.65
Given the length of the proposal and the extensive
number and far-reaching nature of the regressive de-
mands contained therein that had never before been pre-
sented to or discussed with the Union, Respondent surely
knew that it was scuttling any hope of a prompt
accord.66 But the Respondent's interest then was in get-
ting its close to final proposal on the table, not necessari-
ly in bargaining about it.
A party who is bargaining in good faith may not
arrive at negotiations with a fixed position on a broad
range of far-reaching concessions. Nor may a party
remain intransigent despite compromises by the other
side, and then tender a set of new, more onerous propos-
als that are not prompted by substantially changed condi-
tions. Cf. Omaha Typographical Union 10 v. NLRB, 545
F.2d 1138 (8th Cir. 1976); NLRB v. Pacific Grinding
Wheel Co., 572 F.2d 1343, 1349 (9th Cir. 1978). An em-
ployer may approach the bargaining table with a firm
position, but not with a hidden agenda. Here, Respond-
ent came to the June negotiations intent on withdrawing
its original proposal; it pretended to bargain on certain
terms but just when the Union was showing greater
flexibility, it substituted a far more regressive contract
with no reasonable expectation that it could be accepted.
This was not bargaining, it was play-acting.
5. Implementation of the close to final proposal was
unlawful
Respondent does not claim that bargaining took place
prior to the time that it implemented its close to final
proposal. Rather, it asserts that because the parties were
at impasse on 5 June, the introduction of a more extreme
proposal widened the gulf between the parties thereby
reinforcing the impasse.
Under most circumstances, when a genuine impasse
occurs, an employer may unilaterally implement changed
terms and conditions of employment that were reason-
ably comprehended in its rejected final offer to the
union . See Brady-Stannard Motor Co., 273 NLRB 1434
84 Kratzer testified that the mediator was present while the Company
negotiators concluded that impasse was reached From this, the Respond-
ent implies that the mediator joined in and agreed with this conclusion
In deference to the Federal Mediation and Conciliation Service's policy
of impartiality, I quashed the subpoena that Respondent served on the
mediator Because he did not testify, I decline to draw any inferences
based on his attendance at these negotiations
65 Having a firm commitment to meet with and report to officials of
the parent company on a 6 June, contradicts Respondent's avowal on 4
June that it was willing to remain in Washington until agreement was
reached.
66 For example, although one of Respondent's new proposals eliminat-
ed all past understandings with the Union, Kratzer conceded that he did
not know how many practices were entailed thereby Thus, bargaining
about this matter alone could consume countless days if not weeks of bar-
gaining . Another proposal accorded the Respondent virtually unlimited
authority to subcontract Not until September 1984 did the Company
advise the Union that its desire to subcontract was limited to ,janitorial,
quarry, and packinghouse work
1388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1983), affd. sub nom. Auto Workers Local 259, 776 F.2d
23 (2d Cir. 1985). In this case, if a bona fide impasse was
reached on 6 June (and I expressly find it was not), the
Respondent's close to final proposal contained numerous
elements that went well beyond those matters that had
been discussed in prior negotiations. Without more, such
conduct violates Section 8(a)(5) and (1) of the Act.
Here, bargaining had not even begun, much less
reached stalemate, when Respondent implemented its
close to final offer. In Hedaya Bros., 277 NLRB 942
(1985), the Board cited NLRB v. Katz, supra, for the
proposition that an employer' s unilateral action taken
before impasse is reached often discloses "'an unwilling-
ness to agree with the union."' As in Hedaya, Respond-
ent's unilateral implementation of its close to final pro-
posal "itself violated Section 8(a)(5) and (1) and clearly
indicates bad faith." Id. at 946.
The Respondent acknowledges the general rule that an
employer may not unilaterally alter the terms and condi-
tions of employment without bargaining to impasse.
However, Respondent points out that in NLRB v. Katz,
supra at 748, the Supreme Court did not "foreclose the
possibility that there might be circumstances which the
Board could or should accept as excusing or justifying
unilateral action," quoted in NLRB v. Cone Mills Corp.,
373 F.2d 595, 599 (4th Cir. 1967). The Respondent con-
tends that just such circumstances are present in this
case. Faced with the striking employees' quick and unex-
pected return to work, Respondent submits that it was
compelled to implement its close to final proposal to
ensure its economic survival.
Before addressing the question of the Company's as-
serted fiscal instability, I note that its claimed surprise
about the employees' prompt return to work is some-
what suspect. Of course, the Respondent did not know
precisely when the employees would offer to return to
work. However, in light of Granich's earlier comment
alluding to just such an event and his expressed concern
about replacements, little prescience was required to pre-
dict that the employees would abandon the strike sooner
rather than later. Indeed, it is fair to infer that one of Re-
spondent's reasons for submitting its close to final offer
in such an abrupt manner on 6 June was because it did
foresee that the strikers would shortly return to work.
In support of its contention that unilateral action was
critical, the Respondent pointed to large losses sustained
in the early 1980s. It failed, however, to present any con-
crete evidence that might establish that its financial status
in 1984 or thereafter was in jeopardy. To the contrary,
the evidence shows that the "five year slide in cement
production and consumption in the United States bot-
tomed out in 1982" so that the industry projected a 10-
percent increase in consumption in 1983 over 1982 and
another 10-percent increase in 1984. (See R. Exh. 15.)
Paralleling these trends, Respondent realized a small
profit in 1983, and was projecting even greater returns in
1984. While the strike was undoubtedly costly,sv it is im-
87 The Respondent's claim of having lost $2 million a week during the
strike was uncontested But Respondent offered no evidence that would
show what that the relationship of this figure was to overall sales or to
profits for the year Thus, it would be error to conclude that any deficit
caused by the strike resulted in a net loss
portant to bear in mind that the Respondent entered the
1984 negotiations with a significant economic concession
granted by the Union to no other cement manufacturer.
As a result, Respondent enjoyed an advantage over its
competitors for more than a year before the strike began.
With new plant equipment purchased at the expense of a
wage increase for its employees and with predictions of a
resurgence in the cement industry, Respondent's eco-
nomic outlook in 1984 was far brighter than it had been
in 1981 when it endorsed the pattern settlement sight
unseen or in 1983 when it was willing to extend the cur-
rent agreement for another year. Thus, Respondent of-
fered no foundation for an asserted fear that it was in
dire economic circumstances.
Respondent's real concern was that if it continued to
function under the terms of the expired agreement, it
might not keep pace with those of its competitors who
had or were about to institute unilateral contracts. How-
ever, Respondent did not produce any evidence of actual
competitive disadvantage. Cf. NLRB v. Western Wire-
bound Box Co., 356 F.2d 88, 91 (9th Cir. 1966). An un-
supported prospective fear of losing some ground to
competition is far different than a documented, present
apprehension of financial peril.
Moreover, Respondent overstates its case regarding a
threat posed by its competitors' activities. As of 7 June,
only four employers had implemented unilateral con-
tracts. One of these firms, Ideal, did not compete with
Lehigh except in one geographic area, and its contract
did not include a two-tiered wage proposal. The other
three implemented contracts affected only single plants.
Respondent's implemented proposal gave it more than an
edge on its competitors; it gained an impressive advan-
tage over them for the close to final proposal contained
more regressive features than found in any of the others.
At the same time, Lone Star, apparently without going
out of business, was operating under a union contract at
17 plants since 7 May.
Thus, Respondent has failed to demonstrate any urgent
need to deviate from the Board's consistent holdings that
"economic expediency or sound business considerations
are insufficient defenses to justify unilateral changes in
terms and conditions of employment." Van Dorn Plastic
Machinery Co., 265 NLRB 864, 865 (1982). Respondent
had an alternative other than implementing its final offer:
it could have and should have maintained the status quo
while it renewed bargaining in good faith. Its failure to
do so violates Section 8(a)(5) and (1) of the Act.
D. The Status Quo Should be Restored
In cases such as this when a respondent has unilateral-
ly altered existing terms and conditions of employment,
the Board traditionally orders a restoration of the status
quo ante to the extent feasible . See Allied Products Corp.,
218 NLRB 1246 (1975), enfd . in part 548 F.2d 644 (6th
Cir. 1977). The Respondent argues, however , that the
Board 's customary remedial policy should not be ob-
served here. Instead , relying on Dependable Building
Maintenance Co., 274 NLRB 216 (1985), the Respondent
urges that even if no impasse obtained on 7 June, evi-
dence of bargaining since that date would establish that
LEHIGH PORTLAND CEMENT CO. 1389
impasse was subsequently reached , thereby limiting its
remedial liability . Respondent 's reliance on Dependable
Building Maintenance is misplaced.
The ruling in that case as well as in a supplementary
decision issued in the same matter (276 NLRB ( 1985))
persuade that evidence of postinplementation bargaining
is not only irrelevant to the issue of whether the Re-
spondent violated the statute , it also would be inappro-
priate to consider such matters given the facts in this
case.
In Dependable Building Maintenance Co., supra, the ad-
ministrative law judge relied on NLRB v. Cauthorne
Trucking , 691 F.2d 1023 (D.C. Cir 1982), in reasoning
that "restoration of the status quo ante is not a necessary
prerequisite to a subsequent bargaining impasse in all sit-
uations ." Although the administrative law judge was per-
suaded that evidence of postimpasse bargaining was rele-
vant , he concluded that it should be considered at the
compliance stage of the proceeding. The Board agreed
with the administrative law judge that the respondents
had failed to provide the union with information neces-
sary to formulate its bargaining position and therefore
they implemented their final offers prior to impasse.
However , observing that the Respondents had twice
reimplemented their final offers after additional bargain-
ing took place , the Board remanded the case so that the
administrative law judge might determine whether a
return to the status quo ante as of the date of the original
implementation was appropriate In his supplemental de-
cision , the administrative law judge reaffirmed his reli-
ance on Cauthorne as the basis for examining postimple-
mentation bargaining . But, both Cauthorne and Dependa-
ble Maintenance involved a narrow issue whether an em-
ployer had made a unilateral change in Wages . Neither of
those cases involved a question of the employer's good
faith in bargaining to impasse . In neither forum was there
a finding that the employer 's acted in bad faith by imple-
menting a final offer . Further , in Dependable Building,
the employer corrected the effects of its prior unlawful
failure to bargain by supplying the union with the re-
quested information . More importantly , by twice reim-
plementing its original wage offer , the employer cured
whatever taint rose from the original unlawful implemen-
tation . Here, the Respondent has never reimplemented its
close to final proposals . Rather, since their return, the
employees have consistently worked under the terms and
conditions of an unlawfully implemented and concededly
onerous contract. Thus , the Respondent entered into pos-
timplementation bargaining with what may be character-
ized as unclean hands . By "maintaining the fruits of its
unlawful conduct ," 68 the Respondent unjustifiably weak-
ened the Union 's bargaining position . Hence , the case at
bar is clearly distinguishable from both Dependable
Building Maintenance and Cauthorne . In the circum-
stances present here , consideration of negotiations that
took place after 7 June would reward the Respondent
for its unlawful behavior.
Where an employer has unlawfully insisted upon
preimpasse unilateral changes in working conditions, the
88 Talbert Mfg., 250 NLRB 174 , 183 (1980) See also SGS Control Serv-
ices, 275 NLRB 984, 987 (1985)
Board traditionally requires that the status quo ante be
restored until the parties bargain in good faith to a new
agreement or reach impasse . See NLRB v. Cauthorne,
supra at 105 . Here , where the Respondent did not in
good faith bargain to impasse and implemented a propos-
al with a number of terms which were so oppressive as
to suggest an intent to obstruct agreement , the Board's
traditional remedy is particularly appropriate.
As the Board stated in Allied Products Corp., supra, 218
NLRB at 1246:
[T]he fact that the Respondent presented the Union
with a fait accompli at the outset of negotiations
must necessarily have obstructed meaningful bar-
gaining . To hold that bargaining in such circum-
stances is an adequate substitute for remedial action
would unwarrantedly relieve Respondent of its stat-
utory obligation to maintain existing benefits during
negotiations and then justifiably ignore the rights of
the employees who may have been adversely affect-
ed by Respondent's breach of that duty . Further-
more , the record discloses no evidence establishing
that an order restoring the status quo ante here
would impose an unfair burden upon Respondent.
Accordingly , I shall not consider evidence of the parties
postimplementation bargaining for to do so would under-
mine rather than effectuate the purposes of the Act. In-
stead , I shall order the Respondent to restore and main-
tain the status quo ante until the parties negotiate in good
faith to a new agreement or to impasse.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices , I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act. Accordingly , I shall recommend that the Respond-
ent be directed to bargain in good faith with the Union
until reaching a new agreement or a valid impasse. I also
shall recommend that until such time as the parties have
bargained to agreement or impasse , the Respondent shall
maintain in effect the terms and conditions of employ-
ment set forth in the parties expired collective-bargaining
agreement . Further, the order shall propose that the Re-
spondent make whole its employees for any lost wages
or benefits incurred as a result of the unilateral changes
made in their terms and conditions of employment on 7
June 1984, as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
CONCLUSIONS OF LAW
1. Respondent Lehigh Portland Cement Company is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Cement, Lime, Gypsum and Allied Workers Divi-
sion , International Brotherhood of Boilermakers , Black-
smiths, Iron Shipbuilders , Forgers and Helpers, AFL-
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
1390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. At all material times, the Union has served as the
exclusive bargaining representative of all Respondent's
employees in appropriate units defined in article 1, sec-
tion 1 of the parties' 1981-1984 collective-bargaining
agreement (Jt. Exh. 1), as amended by article 1, section 1
of the Respondent's implemented contract offer (Jt. Exh.
16a).89
4. The Respondent has violated Section 8(a)(5) and (1)
of the Act by unilaterally implementing its last contract
proposals on 7 June 1984, thereby changing the terms
and conditions of employment set forth in the parties' ex-
pired collective-bargaining agreement, without first bar-
gaining to impasse with the Union.
5. Respondent's activities as described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed70
ORDER
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at each of its premises where employees repre-
sented by the Union are employed, as defined above in
paragraph 3 of the Conclusions of Law, copies of the at-
tached notice marked "Appendix."71 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(t) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
The Respondent , Lehigh Portland Cement Company,
Allentown , Pennsylvania , its officers, agents , successors,
and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with Cement,
Lime, Gypsum and Allied Workers Division , Interna-
tional Brotherhood of Boilermakers , Blacksmiths, Iron
Shipbuilders, Forgers and Helpers , AFL-CIO as the ex-
clusive representative of its employees in the appropriate
units set forth in paragraph 3 of the Conclusions of Law,
by implementing its last contract proposals on 7 June
1984, without reaching a valid impasse.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Bargain collectively in good faith with the Union
as the exclusive representative of all the employees in the
units described above in paragraph 3 of the Conclusions
of Law and embody any understanding reached in a
signed agreement.
(b) Maintain the terms set forth in the collective-bar-
gaining agreement that expired on 25 May 1984 until
such time as the parties have bargained in good faith and
reached agreement or a valid impasse.
(c) Make whole its employees , with interest, for any
losses they may have sustained by reason of the Re-
spondent's implementing unilateral changes in their terms
and conditions of employment since 7 June 1984.
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
69 Respondent no longer operates plants at Hannibal , Missouri, and
Northampton , Pennsylvania . However, it purchased a plant at York,
Pennsylvania , and agreed to extend the collective -bargaining agreement
to the represented employees there.
70 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
7 r If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
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 fail to bargain in good faith with
Cement, Lime, Gypsum and Allied Workers Division,
International Brotherhood of Boilersmakers, Blacksmiths,
Iron Shipbuilders, Forgers and Helpers, AFL-CIO as
the exclusive representative of our employees in the ap-
propriate units , by implementing our last contract pro-
posals on 7 June 1984, without reaching a valid impasse.
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 bargain collectively in good faith with the
Union as the exclusive representative of all the employ-
ees in the appropriate units and embody any understand-
ing reached in a signed agreement.
WE WILL maintain the terms set forth in the collec-
tive-bargaining agreement that expired on 25 May 1984
until such time as a good-faith agreement has been
reached or a valid impasse.
WE WILL make whole our employees, with interest,
for any losses they may have sustained by reason of our
implementing unilateral changes in their terms and condi-
tions of employment since 7 June 1984.
LEHIGH PORTLAND CEMENT COMPANY