Nabors Trailers, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1989

294 N.L.R.B. 1115 (N.L.R.B. 1989)

NABORS TRAILERS
Nabors Trailers, Inc. and International Brotherhood
of Boilermakers Local Union 743 and Interna-
tional Association of Machinists and Aerospace
Workers , AFL-CIO. Cases 15-CA-10271 and
15-CA-10273
June 13, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On September 27, 1988, Administrative Law
Judge Philip P. McLeod issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Parties filed a brief
in response to the Respondent's exceptions.
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, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Nabors
Trailers, Inc., Mansfield, Louisiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
i The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 Respondent has also excepted to the judge's failure to pass on its
unopposed motion to correct transcript We grant the motion
2 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(5) and (1) by implementing a wage reduction without having bar-
gained in good faith to impasse, we do not find that the Respondent en-
gaged in bad-faith bargaining prior to implementing the unilateral change
Instead, we note that the judge's phrasing of his conclusion merely reiter-
ates the statutory language describing a party's bargaining obligation and
did not imply that the Respondent's conduct at the negotiating table fell
short of that standard prior to its precipitous alteration of wage rates
However, we do not adopt the judge's statement in the section entitled
"Analysis and Conclusions," that "[w]henever an employer wants to
make severe reductions in wages or benefits, it can be said that in a very
practical sense the parties are at impasse from the very start of negotia-
tions " This is not an accurate statement of the law and should not be
viewed as an appropriate point for analysis
Charlotte N. White, Esq., for the General Counsel.
Barry A. Hartstein, Esq. (Neal, Gerber, Eisenberg " and
Lurie), Chicago, Illinois, for the Respondent.
1115
Paul Schmidtlein, Esq. (Blake & Uhlig, P.A.), Kansas
City, Kansas, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
PHILIP P. McLEOD, Administrative Law Judge I
heard this case on May 9 and 10, 1988, in Shreveport,
Louisiana. The charges which gave rise to this proceed-
ing were filed on April 6 and 7, 1987 An order consoli-
dating cases, consolidated complaint and notice of hear-
ing issued on May 21, 1987, and was amended on June 4
and November 24, 1987. As amended, the complaint al-
leges, inter alia, that Nabors Trailers, Inc. (The Respond-
ent), violated Section 8(a)(1) and (5) and Section 8(d) of
the National Labor Relations Act, (the Act), by unilater-
ally implementing changes in employees wage rates prior
to reaching a valid bargaining impasse with the Unions
and less than 30 days after giving notice to the Federal
Mediation and Conciliation Service (FMCS) as required
by Section 8(d) of the Act.
In its answer to the complaint, as amended,' Respond-
ent admitted certain allegations including the filing and
serving of the charges; its status as an employer within
the meaning of the Act; the status of International Broth-
erhood of Boilermakers, Local Union 743 and Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO (the Unions), as labor organizations within
the meaning of the Act; and the status of certain individ-
uals as supervisors and agents of Respondent within the
meaning of Section 2(11) of the Act. Respondent denied
having engaged in any conduct which would constitute
an unfair labor practice within the meaning of the Act.
At the trial, all parties were represented and afforded
full opportunity to be heard, to examine and cross-exam-
ine witnesses, and to introduce evidence. Following the
close of the trial, all parties filed timely briefs with me
which have been duly considered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Nabors Trailers, Inc. is a Delaware corporation li-
censed to do business in the State of Louisiana, where it
is engaged in manufacturing and distributing custom or-
dered trucks and trailers. In the course and conduct of
i The motion of Counsel for General Counsel to strike portions of Re-
spondent's amended answer as untimely is denied Sec 102 23 of the
Board's Rules and Regulations, Series 8, as amended, provides that "Re-
spondent may amend its answer at any time prior to the hearing " Fur-
ther, that section provides, "Whether or not the complaint has been
amended, the answer may, in the discretion of the administrative law
judge or the Board, upon motion, be amended upon such terms and with
such periods as may be fixed by the administrative law judge or the
Board " Respondent's amended answer dated May 4, 1988, was received
by Counsel for the General Counsel within sufficient time to be included
in the formal papers Counsel for the General Counsel did not seek any
postponement or adjournment in order to present evidence in response to
the amended answer, and there is no argument that Counsel for the Gen-
eral Counsel was surprised or unduly prejudiced by Respondent's amend-
ed answer The motion to dismiss is therefore denied
294 NLRB No. 93
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its business operations, Respondent annually purchases
and receives at its Louisiana facility materials valued in
excess of $50,000 directly from points located outside the
State of Louisiana. In addition, Respondent annually sells
and ships products valued in excess of $50,000 directly to
customers located outside the State of Louisiana.
Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATIONS
International Brotherhood of Boilermakers, Local
Union 743 and International Association of Machinists
and Aerospace Workers, AFL-CIO are, and have been
at all times material, labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent has been in operation since the 1920's pro-
ducing various types of trucks and truck trailers. In
recent years, Respondent has manufactured large furni-
ture vans and lowboys. For many years, Respondent's
manufacturing facility has been located in Mansfield,
Louisiana. Since about 1959, International Brotherhood
of Boilermakers, Local Lodge 743 and International As-
sociation of Machinists and Aerospace Workers, AFL-
CIO have jointly represented and executed a single col-
lective-bargaining agreement covering production and
maintenance employees at the Mansfield facility. At the
time the charges were filed herein, there were approxi-
mately 125 bargaining unit employees. Respondent has
sales outlets in Dallas and Houston, Texas, New Orleans,
Louisiana, and Jackson, Mississippi.
Respondent attempted to expand its business base in
recent years, and opened a second manufacturing facility
in Jacksonville, Florida This nonunion facility employed
approximately 80 to 90 employees and was used to
produce a specific type of trailer. Due to Respondent's
poor economic condition, Respondent closed the Jack-
sonville facility in August 1987.
The most recent collective-bargaining agreement be-
tween Respondent and the Unions covering employees at
the Mansfield facility was in effect from March 23, 1984
to March 22, 1987. The agreement provided an annual
reopener clause to negotiate wage rates from year to
year. The agreement further provided:
[I]n the event either party desires to amend, change,
or terminate this Agreement, it shall give notice
thereof at least 60 days prior to the expiration date,
or any anniversary date thereof. Upon the giving of
such notice, the parties shall meet within 10 days
for the purpose of negotiating a new Agreement. In
the event of such notice and if no Agreement is
reached by the expiration date, or anniversary date,
either party may thereafter terminate this Agree-
ment upon 5 days written notice.- .. .
B. Initiation of Collective Bargaining 1987
On or about December 18, 1986, Lester Boykin, who
was then the Boilermakers international representative to
Local Union 743 and the Unions' primary spokesperson
with Respondent, telephoned Respondent's general man-
ager, Harlon Blackmon. Boykin asked Blackmon to meet
him in Shreveport, Louisiana, on December 22. Boykin
and Blackmon met at a local restaurant. According to
Boykin, he did not give Blackmon a specific reason for
wanting to meet. Boykin testified that during the meeting
he pointed out to Blackmon that employees had not re-
ceived a raise in more than 2 years and asked that em-
ployees be given a Christmas bonus According to Black-
mon, Boykin also discussed the upcoming contract expi-
ration. Blackmon testified that Boykin suggested Re-
spondent consider a small wage increase and some type
of bonus or profit sharing. At the conclusion of the
meeting, Boykin and Blackmon walked out -together to
their cars. Boykin testified that as they were parting,
Blackmon asked Boykin if he was "going to send him a
letter." Boykin responded, "Yes." Boykin then added,
"But he didn't say what kind of letter and I didn't tell
him what kind of letter." It is clear from Boykin's later
testimony, however, and particularly from his comments
to employees at a meeting on January 13, 1987, that
Boykin purposely attempted to give Blackmon the im-
pression that he would be sending a letter to open nego-
tiations, while in fact he intended to recommend to em-
ployees that the Union not open the contract. This is dis-
cussed in greater detail below.
On January 5, 1987, Boykin and Richard Booker,
president of Boilermakers Local 735, spoke by telephone
and decided to hold a meeting with employees on Janu-
ary 13 to discuss and decide whether to open contract
negotiations with Respondent.
On January 9, 1987, Boykin telephoned Blackmon and
requested to meet with Blackmon on January 19. Boykin
again claimed that he did not tell Blackmon the reason
for wanting to meet. Boykin acknowledged, however,
that Blackmon asked Boykin if Boykin was going to
write a letter, and Boykin again said yes. Blackmon as-
serts Boykin called and set up a meeting date on January
12 and 13 to begin negotiations According to Blackmon,
Boykin later called and rescheduled the meeting for Jan-
uary 19. According to Blackmon, this meeting was also
canceled by Boykin because Boykin was scheduled to
have surgery and could not travel.
On January 13, 1987, Boykin and Booker met with Re-
spondent's employees. Boykin addressed the employees,
telling them that he had recently seen a financial report
filed by Respondent with the Securities and Exchange
Commission. Boykin recommended that due to Respond-
ent's financial condition, the collective-bargaining agree-
ment not be opened. Boykin told employees that he had
told Blackmon he would write Blackmon a letter con-
cerning a meeting. Boykin told employees that Blackmon
had never asked directly whether he intended to open
the agreement. Boykin then said that he would send
Blackmon a letter telling Blackmon the Union had decid-
ed not to open the contract which he hoped would reach
Blackmon on the last day the contract could be opened.
NABORS TRAILERS
Then Respondent would be untimely if it tried to open
the agreement, and the contract would renew itself.
Boykin told employees they should hope that Respond-
ent would not open the agreement and the contract
would be automatically renewed. Employees then voted
unanimously not to open the collective-bargaining agree-
ment.
By letter dated January 19, 1987, Blackmon wrote to
Boykin:
In response to my telephone conversation with you
of today, this is simply to confirm the fact that you
will be sending us a letter this week telling us that
you would like to exercise your options of the
present labor agreement and open these options for
negotiations This is also to confirm our desire to do
the same We will be in touch with you to arrange
a mutually acceptable time, -place and date to begin
these negotiations shortly.
Boykin never sent any response to Blackmon's letter of
January 19. At about the same time as Blackmon's letter,
Boykin wrote to Blackmon apologizing for canceling the
January 19 meeting and stating : "I am undergoing an ex-
amination and a series of test that may result in my being
hospitalized for surgery." Thereafter, due to Boykin's
health, negotiations were delayed until March 1987.
C. Negotiations Preceding Respondent's Unilateral
Change in Wages
On March 2, Blackmon telephoned Boykin and ar-
ranged for the first negotiating session to be held on
March 11.
At the first meeting on March 11, the Unions were
represented by Boykin, Boilermakers International Rep-
resentative John Yates, Boilermakers Union President
Richard Booker, and Machinists Representative Leonard
Smith. In addition, various employees helped comprise
the bargaining committee. Representing Respondent
were General Manager Blackmon and Controller Sam
Derrick. Boykin introduced Yates as the new Interna-
tional representative who would replace Boykin on his
retirement effective April 1. After the introductions,
Blackmon requested the Unions' proposal. According to
Blackmon, Boykin stated that the Unions were not ready
to present a proposal because he had been under a doc-
tor's care for the last several weeks. Boykin, however,
pointed out that the employees had not received a wage
increase since 1983. Boykin denies stating that the
Unions were not ready to present a proposal. According
to Boykin, he replied to Blackmon's request for a pro-
posal that since it was Respondent who opened the con-
tract, the Unions expected a proposal from him. I do not
credit Boykin's denial, but I find- that both Boykin and
Blackmon are only partially correct. I credit Blackmon
that in response to his request for a proposal, Boykin
stated the Unions were not ready to present a proposal
because Boykin had been under a doctor's care. I partial-
ly credit Boykin, however, and find that he then went on
to note it was Respondent who opened the contract and
that the Unions expected a proposal from Blackmon.
Neither party presented a proposal. In response to Boy-
kin's remark that employees had not received a wage in-
1117
crease since 1983, Controller Derrick responded by
giving a brief description of Respondent's dismal eco-
nomic position and noted that Respondent had lost
money each year throughout the collective-bargaining
agreement. Respondent stated that it would have a pro-
posal at the next meeting, which was agreed to be held
on March 17.
On March 17, the parties met as scheduled In addition
to all of the individuals present at the first meeting, the
second meeting was attended as well by John McGrath
and Terry Taylor on behalf of the Machinists Union and
Plant Production Manager Willie Bozeman on behalf of
Respondent. At this meeting, Derrick gave a detailed
review of Respondent's economic position, including its
individual yearly and cumulative losses over the past 5
years. Derrick stated that losses for 1987 were at that
time 1.7 million dollars which would likely rise to 2 mil-
lion by year end. Derrick told the Unions that Respond-
ent was considering ways to realign the facility, restaff,
improve operating methods, increase productivity,
reduce overhead, and expand markets Derrick told the
Unions that Respondent needed a 28-percent wage re-
duction. Respondent gave the Unions a new job list
showing proposed wage classifications in order to arrive
at the 28-percent reduction The Unions then caucused.
After the caucus, Boykin asked Respondent to explain
the nature of the document in detail. Boykin also stated
that the Unions would study the proposal during the ad-
journment prior to the next meeting. Machinists Interna-
tional Representative John McGrath stated that if the
Company was claiming poverty, the Unions reserved the
right to audit Respondent's books. However, no request
was made at that time, and the Unions did not offer any
specific economic proposal at that meeting. The parties
agreed to meet again the following day.
On March 18, the parties met for the third time. Re-
spondent and the Unions again discussed Respondent's
economic condition. Blackmon told the Unions that
labor costs constituted approximately 25 to 30 percent of
Respondent's financial problems. Boykin responded that
he had seen copies of Respondent's annual report which
states that employee wage rates are in line with the com-
petition. Derrick replied that Respondent was neverthe-
less still losing substantial amounts of money and needed
a 28-percent wage reduction. Boykin then questioned Re-
spondent's job classification proposal, specifically re-
questing what wage rates Respondent had in mind for
the new job classifications. After a caucus, Respondent
presented specific wage rates for the various job classifi-
cations. The Unions told Respondent that they wanted
indirect labor reduced instead of or in addition to direct
labor costs included in wage rates for unit employees.
Yates asked Blackmon to specify the losses of the Jack-
sonville manufacturing facility. Blackmon and/or Der-
rick told the Unions that separate records were not kept
on the Jacksonville facility and he/they did not think it
was possible to specify losses just for that plant. Boykin
stated that Respondent's annual report reflected a 1.6
million dollar loss in 1986 which was caused by the Jack-
sonville start-up. After some further discussion about the
Jacksonville facility, Boykin stated that the Unions
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would like to study Respondent's proposed wage rates in
greater detail . Boykin suggested another meeting be held
on March 23 , and that date was agreed upon.
On March 20, Blackmon personally delivered to Boil-
ermakers President Richard Booker and Machinists
President Leonard Smith, both of whom are employed
by Respondent, copies of a letter which state:
The Union and the Company have been meeting
for the purpose of negotiating the contract. The
Company submitted their proposal to the Unions at
the bargaining table and the proposal was neither
accepted, rejected, nor was a counter offer made by
the Union.
Since the contract officially terminates at the end
of the day on March 22 we must assume that no
agreement was reached and the Company hereby
gives written notice to terminate the contract in 5
days as provided for in Article 25 of the contract.
Certified copies of this letter were also sent to union rep-
resentatives Boykin and McGrath.
On March 23, the parties met again as scheduled.
Yates told Respondent that the Unions understood the
Company's proposal to include 33 job classifications at
11 different pay grades, or more than 300 possible wage
rates. Yates stated that the Unions felt this was impracti-
cal and difficult even for Respondent's own accounting
department. Yates asked how such a system involving
more than 300 categories for only approximately 125 em-
ployees could be handled. Boykin asked if Blackmon was
also considering modified job evaluations and Blackmon
replied affirmatively. Boykin requested review of the job
evaluation manual and asked Blackmon if it would be
subject to negotiation. Blackmon said that the job eval-
uation manual would not be subject to negotiation.
Boykin then asked if the wages of people who were con-
sidered indirect labor were also going to be reduced.
Blackmon replied that they were not.
At this meeting on March 23, the Unions presented a
detailed contract proposal which included a proposed 12-
percent wage increase for all employees . Respondent
then requested a caucus to review the Unions' proposals.
After reconvening, Respondent stated that the Unions'
proposals seemed to ignore the problem Respondent had
presented. The Unions offered to accept a reduction in
wages provided all employees, including those consid-
ered indirect labor such as salesmen , the repair depart-
ment , and Respondent 's central staff also take the same
wage cut.
Also at the meeting on March 23, Blackmon gave the
Unions a document setting forth the various job titles
and the number of employees needed in each classifica-
tion at each pay grade. The parties discussed the pay
grades, differences in pay, a comparison of skills, and the
various jobs listed. The Unions again requested that Re-
spondent be more specific concerning the manner in
which the proposed wage reductions would be imple-
mented. Specifically, Yates wanted to know what each
employee was going to make under Respondent's pro-
posal so that the Union could pass that information on to
the employees . Respondent agreed to compile that kind
of specific proposal that evening, and a meeting was
scheduled for the following day.
Also on March 23, Respondent mailed a letter to the
Federal Mediation and Conciliation Service (FMCS) in
Washington, D.C., giving notice of the ongoing negotia-
tions with the Unions.
At the fifth bargaining session on March 24, Blackmon
presented a copy of the proposed wage rates for each of
the employees which had been asked for the previous
day. The Unions requested a caucus. After the caucus,
the parties discussed various aspects of the total contract,
but did not discuss wages again that day. Instead, the
parties discussed such matters as layoffs, seniority, job
postings, etc. Before -the meeting ended, Yates offered a
minor concession by reducing the Unions' demand for a
wage increase from 12 percent to 11 percent. Blackmon
requested the Union to discuss Respondent's specific pro-
posal with the membership. It is not clear whether the
Unions agreed at that meeting to meet with employees,
but it is clear that they did in fact do so. Before adjourn-
ing, however, another meeting was scheduled for March
31.
The Unions immediately called a membership meeting
for that day after work. The Unions made copies of Re-
spondent's proposed specific wage rates for each em-
ployee, and made these available to employees at the
meeting. At this meeting, Yates brought the membership
up to date on the status of negotiations and presented
Respondent's proposal for consideration by the employ-
ees. No official vote was taken because no ballots were
available, but an informal poll showed that Respondent's
proposal was overwhelmingly rejected by employees.
On March 25 , Blackmon posted a notice to employees
at Respondent's Mansfield facility. This notice stated:
The Unions and The Company have been meet-
ing for the purpose of negotiating the contract. The
contract official terminated at the end of the day on
March 22 but with the extension of a 5 day grace
period as provided for in Article 25 of the contract.
On March 24, The Unions voted not to accept
the Company's proposal.
There will be NO lockout and the plant WILL be
open as usual on Monday March 30 for those of
you who wish to work. The new labor rates will go
into effect at that time and they are posted on the
Bulletin Board in the Clock House.
There is a dispute whether the Unions were specifical-
ly notified of Respondent 's intent to place the new wage
rates into effect. Oddly, Blackmon testified that no notice
was given to the Unions. Local Machinists President
Leonard Smith testified, however, that he and Local
Boilermakers President Richard Booker were called into
Blackmon's office and told that Respondent was going to
implement its wage decrease proposal.
On March 26 or 27, Yates telephoned Blackmon and
told Blackmon he had heard about Respondent 's inten-
tion to institute the wage decrease. Yates told Blackmon
not to implement the wage decrease, and that if Re-
spondent did so, the Unions would file unfair labor prac-
tice charges with the Board . Blackmon responded that in
NABORS TRAILERS
his opinion Respondent had done everything properly
and that Respondent had to have the decrease.
Respondent implemented its proposed wage decrease
on Monday March 30, 1987.
D. Events Following Respondent 's Reduction
in Wages
On March 31, the parties met again as scheduled.
Boykin had retired and was therefore not present at that
or future meetings . Yates continued as the Unions' pri-
mary spokesperson . At the outset of this meeting, Yates
again asked that Respondent refrain from implementing
the wage deductions . Blackmon responded that the wage
reductions had already been implemented the previous
day. Respondent also mentioned that it had written to
the FMCS The Unions then requested a caucus. After
the caucus , Yates requested an audit of Respondent's
books for each facility to determine whether Mansfield
in fact contributed to Respondent 's significant losses. Re-
spondent then requested a caucus. After this caucus,
Blackmon told Yates that Respondent had 'nothing to
hide and agreed to open Respondent 's books. A meeting
was set up for the following day for that purpose. Nei-
ther party presented any new proposal at the' 'Meeting on
March 31. -
On April 1 , Yates and union representatives 'McGrath,
Binning, and Smith met with Blackmon and:-Derrick to
conduct an informal audit . Respondent presented income
statements and balance sheets for the years 1981 through
February 1987. These documents were reviewed by the
Union and questions were answered. .
On April 9, Respondent and the Unions met for their
seventh time , the first time with a representative of the
FMCS . During this session , Respondent andx 'the Unions
each reviewed their positions with the Federal Mediator.
Respondent also presented a written proposal ' concerning
various other changes it sought in the expired collective-
bargaining agreement . Yates then stated that the financial
information which the Unions had received the previous
day did not differentiate between Mansfield and other fa-
cilities The Unions were therefore unable to determine
whether the bargaining unit contributed significantly to
Respondent 's losses. Respondent was then asked to
supply profit and loss statements for each - branch. Der-
rick responded that he was not sure whether he could
supply that information separately for each facility Boi-
lermaker Representative Beachamp challenged Derrick's
inability to provide that information separately. Yates
stated the Unions needed that information before they
could recommend that employees in the bargaining unit
accept a 28-percent wage reduction . Derrick then stated
he would supply the information as requested. Beachamp
asked Blackmon if he had the power to reinstate wage
rates as they had been before . Blackmon answered that
he did , and agreed to consider and discuss the matter
with Respondent 's president . Another meeting was
scheduled for April 23
For reasons which are not clear , the meetings sched-
uled for April 23 did not take place . Instead , the parties
met again on April 29 . Beachamp stated that he had re-
ceived a letter from Respondent listing operating figures
for the Mansfield facility from 1983 through February
1119
1987. Beachamp noted, however , there were no figures
for the individual branch operations . Blackmon respond-
ed that he had not agreed to furnish figures for the indi-
vidual branches because they had nothing to do with ne-
gotiations .2 Blackmon was called out of the meeting
When he returned , Blackmon told the Unions that al-
though he had not agreed to furnish this information for
the individual branches, he would do so. The meeting
adjourned.
On May 27 , the parties met again with a representative
of FMCS . Blackmon was not present at this meeting, and
the parties did not meet face to face. The Unions gave
Respondent a new proposal which for the first time in-
cluded a wage reduction for bargaining unit employees.
The proposal was for a 5-percent reduction in wages for
employees working prior to March 23, 1987 and much
lower wage rates for employees hired after that date.
The mediator took the Unions ' proposal to Derrick. The
mediator came back to tell the Unions that Derrick
would give the Unions' proposal to Blackmon for a sub-
sequent response.
On June 11 and 12, the parties again met with a repre-
sentative of FMCS. At the June 12 session , Respondent
presented a wage reduction proposal which was substan-
tially different from Respondent 's prior proposal. The
June 12 proposal involved a 20-percent across-the-board
pay cut for all employees. Under the previous proposal,
some employees had little or no wage reductions and
others received substantial reductions, thus averaging a
28-percent decrease This new proposal involved every-
one accepting a 20-percent decrease from rates in the
prior collective -bargaining agreement.
On June 18, Respondent's new proposal was presented
to employees for consideration . Employees again voted
to reject Respondent's proposal , but at the same time
voted not to strike.
No effort was made to pursue further negotiations for
several months. On October 1, the Unions met with
Blackmon and presented another wage proposal. Black-
mon said he would meet with Derrick to consider the
proposal . Thereafter , the parties agreed to meet on Octo-
ber 21
On October 21, the parties met for the last time with
the representative of FMCS . At that meeting, Blackmon
notified the Unions that Respondent had received an
offer to purchase the facility and that even if an agree-
ment was reached and ratified , he was without authority
to sign an agreement pending negotiations for the possi-
ble sale. Yates stated that while he believed this was the
basis for another unfair labor practice charge, he was not
interested in filing such a charge. Rather Yates stated if
Respondent was not in a position to sign an agreement,
the Unions wanted to wait and determine whether the
facility would be sold.
By letter dated November 25, Respondent notified the
Unions, in part ,' "It may be necessary to discontinue
manufacturing at this facility." By letter dated Dece-
meber 29, the Unions were notified of Respondent 's deci-
2 Respondent ' s bargaining notes from the prior sessions indicate that
Blackmon agreed to furnish information for the Mansfield facility but re-
fused to supply that information for the individual branch offices
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sion , "to cease manufacturing operations on January 29,
1988." The letter continued:
The Company has scheduled operations to fill all
existing assembly and shipping commitments to ful-
fill sales orders in a timely manner . As those prior
commitments are satisfied the manufacturing work
force will be placed on indefinite layoff reflecting
the discontinuance of production.
The Nabors parts and services centers will con-
tinue to function , as well as the local Mansfield
Parts and Service Branch . The Nabors Administra-
tive Office will continue to support these on-going
activities.
Analysis and Conclusions
Counsel for General Counsel argues that Respondent
violated Section 8(a)(1) and (5) as well as Section 8(d) of
the Act by unilaterally reducing employee wage rates on
March 30 , 1987, prior to reaching a valid bargaining im-
passe in negotiations with the Unions and/or prior to the
expiration of the period of time required in Section 8(d)
of the Act.
Respondent argues that Section 8(d) of the Act is not
applicable to Respondent because it was the Union that
"initiated" bargaining and/or because neither party
threatened or intended a strike or lockout.
Section 8(d) of the Act provides in pertinent part:
[W]here there is in effect a collective bargaining
contract . . . the duty to bargain collectively shall
... mean that no party to such contract shall ter-
minate or modify such contract , unless the party de-
siring such termination or modification-
(1) serves a written notice upon the other
party to the contract of the proposed termination
or modification sixty days prior to the expiration
date thereof ... .
(2) offers to meet and confer with' the other
party for the purpose of negotiating a new con-
tract or a contract containing the proposed modi-
fications;
(3) notifies the Federal Mediation and Concil-
iation Service within thirty days after such notice
of the existence of a dispute . . . and
(4) continues in full force and effect, without
resorting to strike or lockout , all the terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the
expiration date of such contract, which ever
occurs later ... .
In United Artists Communications, 27,4 NLRB 75 (1985),
affd. sub nom . IATSE v. NLRB, 779 F.2d 552 (9th Cir.
1985), cert. denied 477 U.S. 904 (1986), the Board adopt-
ed the view that the burden of notifying FMCS as re-
quired by Section 8 (d)(3) rests exclusively with the party
that "initiated" bargaining . Counsel for the General
Counsel and the Unions argue that because Respondent
sent the letter terminating the prior collective-bargaining
agreement , it was therefore Respondent who "initiated"
bargaining. Respondent argues that the Unions , by their
words and by their actions , gave Respondent the impres-
sion that they were going to open the contract , and, in
doing so, it was the Unions who "initiated" bargaining. I
find the position of Counsel for the General Counsel and
the Unions to be more persuasive , and altogether consist-
ent with the Board decision in United Artists, supra. In
that case, the Board very clearly assigned the responsi-
bility for sending the notice required by Section 8(d)(3)
to the party who "initiates bargaining " by serving the
notice referred to in Section 8(d)(1). I find that Respond-
ent was the initiating party by serving notice to open ne-
gotiations pursuant to Section 8(d)(1) and was responsi-
ble for serving the notice required by Section 8(d)(3).
There is no question that the Unions were engaging in
some subterfuge to give Respondent the impression they
intended to open negotiations when in fact they had no
intention of doing so, hoping the contract would renew
itself. It is equally obvious, however , that Respondent in-
tended to open the contract whether or not the Unions
did so-3
The record is quite clear that Respondent was not
going to rely on the Unions' representations that they in-
tended to 'open the contract . Rather, Respondent made
sure to send its own letter dated January 19 , 1987, giving
notice to open negotiations . Long before Respondent fi-
nally sent its letter to . FMCS on March 23 notifying
them of the ongoing " negotiations , Respondent knew that
the Unions had not followed through with their ex-
pressed intention to open negotiations and it was Re-
spondent itself who had done so by its letter of January
19. Long before March 23 , all the gamesmanship be-
tween the Unions and Respondent had ceased over
whether the contract was going to be opened in a timely
manner . Respondent knew that it had opened the con-
tract and at some point realized that it should notify
FMCS . That is the very reason why Respondent sent its
letter dated March 23 . I conclude based on the facts of
this case that Respondent was the "initiating party"
within the meaning of United Artists . I find that Re-
spondent was responsible for meeting the requirements
imposed by. Section 8 (d)(3) of the Act. I find that by in-
stituting its wage reduction without giving FMCS the
notice required by Section 8(d)(3) of the Act, Respond-
ent violated Section 8 (a)(1) and (5) of the Act.4
Respondent argues in its post-trial brief that the com-
plaint is based solely on . alleged "technical" violations,
including the fact that it unilaterally implemented a 28-
percent wage reduction without bargaining to impasse
with the Unions that represent its employees . Respond-
ent's argument itself suggests part of the problem which
gives rise to this case-that Respondent views its obliga-
tion to bargain in good faith to impasse a mere "techni-
' In fact, to some extent the employer was planning to show the
Unions a cruel irony by letting them open the contract and then surpris-
ing them with a demand for a 28-percent wage reduction in negotiations.
Neither the Unions nor Respondent engender any sympathy from their
actions in this case.
4 Respondent 's argument that Section 8(d) does not apply because nei-
ther party threatened or intended a strike or lockout has been specifically
rejected by the Board . Mar-Len Cabinets, 243 NLRB 523 ( 1979); enfg. in
pan, denying in part 659 F.2d 995 (9th Cir. 1981); supplemental Board de-
cision 262 NLRB 1398 ( 1982).
NABORS TRAILERS 1121
cal" requirement . Respondent overlooks the fact that
bargaining lies at the very heart of the relationship be-
tween an employer and a union which represents its em-
ployees. Requiring that an employer bargain in good
faith to impasse before implementing significant changes
in the wages, hours, and working conditions of employ-
ees is designed to give both the employer and the union
every opportunity to explore and attempt to resolve
problems which are equally significant to both the em-
ployer and the employees . It is for this reason that the
Board has uniformly and consistently required that an
employer bargain in good faith to impasse with the union
which represents its employees before the employer insti-
tutes unilateral changes.
In the seminal case Taft Broadcasting Co., 163 NLRB
475, 478 ( 1967), the Board stated that impasse occurs
"after good -faith negotiations have exhausted the pros-
pect of concluding an agreement . . . ." The Board fur-
ther stated: `
Whether a bargaining impasse exists is a matter
of judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, a contemporaneous un-
derstanding of the parties as to the state of negotia-
tions are all relevant factors to be considered in de-
ciding whether an impasse in bargaining existed
Whenever an employer wants to make severe reductions
in wages or benefits, it can be said that in a very practi-
cal sense the parties are at impasse from the very start of
negotiations. This may also be true where a union seeks
very substantial increases in wages or benefits, but there
is one very significant difference. When an employer
seeks significant reductions, it is also in control of imple-
menting those reductions. A union may well seek sub-
stantial increases in wages or benefits, but it is not in
control over whether such changes actually occur. As a
result, when an employer seeks substantial reductions in
wages or benefits, the union necessarily wants to avoid
such cuts altogether or, if that is not possible, then to put
them off as long as possible. Necessarily therefore there
is some merit to Respondent's argument that the Unions
in this case tried to avoid or postpone as long as possible
the significant wage reductions demanded by Respond-
ent.
Be that as it may, I conclude based on the record
herein that Respondent instituted its wage reduction
without bargaining to impasse with the Unions. The par-
ties had not reached irreconcilable differences in negotia-
tions, but rather were still in the midst of bargaining
when Respondent instituted its wage reduction on March
30, 1987. Although the parties had met five times before
Respondent implemented its wage reduction, real sub-
stantive negotiations were just beginning. At the first
bargaining session , neither party had a proposal for the
other. Respondent can hardly blame this on the Union
when all along Respondent intended to seek a substantial
wage reduction. At the second meeting during which
Respondent proposed its 28-percent wage reduction, Re-
spondent nevertheless did not even have a complete eco-
nomic proposal. At the third bargaining session, Re-
spondent proposed an unprecedented job classification
system with 33 job titles, each having 11 pay scales, to
cover only approximately 125 employees. By the end of
the fourth bargaining session , the parties were still dis-
cussing this cumbersome job classification system At the
fifth and last meeting before Respondent implemented its
wage reduction, the Unions reduced their demand for a
wage increase from 12 percent to 11 percent. I agree
with Respondent that this is not significant What is sig-
nificant, however, is that Respondent did not once pro-
pose a date or mention a deadline for the implementation
of its reduction. When this fifth meeting ended on March
24, the parties scheduled another meeting for March 31.
Respondent said nothing about any intention of imple-
menting its reduction before the next meeting Nor did
Respondent ever tell the Unions that any of its demands
to that point represented a "final" position. Yet the very
day after this meeting, Respondent posted a notice to
employees notifying them that the reduction would be
implemented the following Monday morning.
As of the meeting on March 24, Respondent had not
even submitted a complete proposal, much less a final
offer. On April 9, 1987, Respondent presented a new
written proposal which for the first time addressed vari-
ous other changes Respondent sought in the expired con-
tract. Piecemeal bargaining is itself considered evidence
of bad faith. The fact that Respondent had not even
made a complete proposal is also evidence that the par-
ties had not reached impasse.
Based on all the facts discussed above, I conclude that
Respondent had not bargained to impasse with the
Unions as of March 30, 1987, when Respondent imple-
mented its wage reduction I find that by implementing
its wage reduction without bargaining in good faith to
impasse with the Unions, Respondent violated Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Nabors Trailers, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Boilermakers, Local
Union 743 and International Association of Machinists
and Aerospace Workers, AFL-CIO, are, and have been
at all times material, labor organizations within the mean-
ing of Section 2(5) of the Act.
3. The Unions jointly represent a single collective-bar-
gaining unit consisting of all production and maintenance
employees of the Respondent employed at its Mansfield,
Louisiana facility, including truck drivers and leadman,
but excluding office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act
4. By instituting its wage reduction without giving
FMCS the notice required by Section 8(d)(3), Respond-
ent violated Section 8(a)(1) and (5) of the Act.
5. By implementing its wage reduction without bar-
gaining in good faith to impasse with the Unions, Re-
spondent violated Sections 8(a)(1) and (5) of the Act
6. The unfair labor practices which Respondent has
been found to have engaged in, as described above, have
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Counsel for the General Counsel and the Unions seek
a remedy requiring Respondent to restore the status quo
ante by reinstituting the wage rates which existed prior
to March 30, 1987 and by making employees whole for
any losses incurred from the date of the wage reduction
until the status quo ante is restored . Respondent on the
other hand argues that an award of backpay would be
unfair and burdensome compared to the "minor viola-
tion" which has occurred . Respondent argues that if
backpay is ordered, it should be limited to 30 days after
notice was given to FMCS . Alternatively, Respondent
argues that even in the "worst scenario" backpay should
be limited to the period before June 12, 1987 , when Re-
spondent tendered its "final offer" to the Unions. The
appropriate remedy for a Section 8 (d) violation is more
restrictive than the remedy for unlawful implementation
of a wage proposal prior to a bona fide impasse. The
Board has held that where an employer has failed to give
the proper 30-day notice to FMCS prior to implementa-
tion of a change in a contract , the backpay remedy is
limited to the employees ' losses from the date of imple-
mentation to a date that is 30 days from the notice to
FMCS . Mar-Len Cabinets, supra. In the case at hand, I
have not found a violation of Section 8(a)(1) and 5 based
solely on Respondent 's failure to meet the requirements
of Section 8(d). Rather, I have found that Respondent
implemented its wage reduction without bargaining in
good faith to impasse with the Unions. In such circum-
stances, the appropriate remedy is to require restoration
of the status quo ante and to make employees whole for
any losses incurred from the date of the wage reduction
until the status quo ante is restored . See Milwaukee Ter-
minal Service, 282 NLRB 637 (1986); Dependable Building
Maintenance Ca, 276 NLRB 27 (1985). I find such a
remedy to be appropriate.
Accordingly , on these findings of fact and conclusions
of law, I issue the following recommended5
giving the Federal Mediation and Conciliation Service
the notice required by Section 8(d)(3) of the Act.
(b) Implementing wage reductions , or other reductions
in the hours or working conditions of employees, with-
out bargaining in good faith to impasse with the Unions
that represent employees at the Mansfield , Louisiana fa-
cility.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate policies of the Act.
(a) Make whole bargaining unit employees for any loss
of earnings or benefits they may have suffered as a result
of the unlawful reduction in their wage rates from
March 30, 1987, until employees were laid off and the fa-
cility closed in January 1988, including interest thereon
to be computed in the manner described in New Horizons
for the Retarded, 283 NLRB 1173 ( 1987).
(b) Preserve and , on request, make available to the
Board or its agents for examination and copying , all pay-
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.
(c) Post at its Mansfield , Louisiana facility copies of
the attached notice marked "Appendix."e Copies of the
notice, on forms provided by the Regional Director for
Region 15 , after being signed by Respondent 's authorized
representative , shall be posted immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted . Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced , or covered by any other material. Fur-
ther, in view of the fact that the facility has been closed
and employees indefinitely laid off, copies of the appro-
priate notice shall be mailed by Respondent to all bar-
gaining unit employees at their last known address.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. '
6 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
ORDER
Respondent, Nabors Trailers , Inc., Mansfield, Louisi-
ana, its officers, agents , successors, and assigns, shall
1. Cease and desist from
(a) Instituting wage reductions , or other reductions in
the hours or working conditions of employees, without
S 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-
1•
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency Of The United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the National Labor Relations Act gives em-
ployees these rights.
NABORS TRAILERS 1123
To organize _
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NO'r institute wage reductions, or other re-
ductions in the hours or working conditions of employ-
ees, without giving the Federal Mediation and Concilia-
tion Service the notice required by-Section 8(d)(3) of the
Act.
WE WILL NOT implement wage • reductions , or other
reductions in the hours or working conditions of employ-
ees, without bargaining in good faith to impasse with
International Brotherhood of Boilermakers; Local Union
743 and International Association of Machinists and
Aerospace Workers, AFL-CIO , the Unions that repre-
sent employees at our Mansfield , Louisiana facility.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL make whole bargaining unit employees for
any loss of earnings or benefits they may have suffered
as a result of the unlawful reduction in their wage rates
from March 30, 1987 , until employees were laid off and
the facility closed in January 1988 , including appropriate
interest thereon.
NABORS TRAILERS, INC.