Reichhold Chemicals

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1228 (N.L.R.B. 1991)

1228
301 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The spelling of the Respondent’s name appears as corrected.
2 The General Counsel’s motion, in which the Charging Party joined, to
strike the Respondent’s brief in support of its exceptions is denied.
3 The word ‘‘unit’’ was inadvertently omitted after the word ‘‘multi-loca-
tion’’ in the sentence preceding the citation to Boston Edison Co., 290 NLRB
549 (1988), in the ‘‘Analysis’’ section of the judge’s decision. We correct this
omission.
4 We find it unnecessary to pass on the General Counsel’s and Charging
Party’s cross-exceptions contending that the Respondent’s failure to reinstate
strikers was unlawful even if the strike was an economic strike. We also find
it unnecessary to pass on the Charging Party’s alternative argument in support
of the 8(a)(5) violation found by the judge.
5 We shall correct the first paragraph of the judge’s recommended remedy
to require that interest be computed as provided in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), rather than Florida Steel Corp., 231 NLRB
651 (1977). We also shall add to the second paragraph of the recommended
remedy that backpay for the strikers be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, above.
6 The Respondent correctly contends that a determination of whether a party
to contract negotiations has insisted to impasse on a nonmandatory subject
must be based on the party’s contract proposal pending at the time impasse
occurs rather than proposals that have been withdrawn prior to impasse. We
find, however, that the judge adequately considered the Respondent’s proposal
at the time of impasse, and we view his discussion of the Respondent’s prior
proposals merely as providing relevant background and context to its later pro-
posal on which it insisted to impasse.
Reichhold Chemicals, Inc.1 and United Steelworkers
of America, AFL–CIO–CLC and its Local
Union Nos. 12130, 12149, 13314. Case 15–CA–
10694
February 28, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On September 12, 1990, Administrative Law Judge
Harold Bernard Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed cross-ex-
ceptions, supporting briefs, and answering briefs, and
the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs2 and has
decided to affirm the judge’s rulings, findings,3 and
conclusions4 and to adopt the recommended Order.5
We adopt the judge’s conclusion that the subject
over which the Respondent bargained to impasse was
a change in the scope of the parties’ multiplant bar-
gaining unit and, thus, a nonmandatory subject of bar-
gaining. As reflected in the initial paragraph of the
1985–1988 contract, the bargaining unit was rep-
resented by United Steelworkers of America, AFL–
CIO–CLC, and three of its local unions. In negotia-
tions over a contract to succeed the 1985–1988 con-
tract, the Respondent proposed a master agreement and
three local supplemental agreements. Each local sup-
plemental agreement, however, was to be between only
the Respondent, the International union, and one local
Union. The Respondent insisted to impasse on these
supplemental agreements.6
The Respondent argues that its proposed local sup-
plemental agreements were not substantively different
from appendices attached to the prior multiplant con-
tract that separately addressed certain terms and condi-
tions of employment at each individual plant. We
agree with the judge’s rejection of this argument. We
also note, however, that even if the parties previously
had permitted certain issues to be resolved by bar-
gaining solely between the Respondent and a local
union, no party was required to continue bargaining on
this basis. As the Board stated in Boston Edison Co.,
above at 553, ‘‘although parties may voluntarily con-
sent to bargaining . . . on a basis other than the estab-
lished appropriate unit, neither party may be forced to
continue such negotiations. . . . A party may not be
forced to bargain on other than a unit basis.’’ Although
the Board made this statement in a case in which an
employer sought to compel unions representing single-
plant units to bargain jointly about pension issues on
a multiplant basis, the same principle is applicable
here, where the Respondent sought to require compo-
nents of a multiplant unit to bargain about certain
issues on an individual-plant basis. Accordingly, we
agree with the judge that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by insisting to impasse
on a nonmandatory subject of bargaining.
AMENDED REMEDY
The last sentence of the first paragraph of the rem-
edy section of the judge’s decision shall be replaced
with the following:
The Respondent shall be ordered to make whole
its employees for any loss of pay or other em-
ployment benefits that they may have suffered
commencing on May 30, 1988, by reason of the
Respondent’s unilateral changes of its employees’
terms and conditions of employment, as pre-
scribed in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
The following sentence shall be inserted immediately
before the last sentence of the second paragraph of the
remedy section of the judge’s decision:
Backpay shall be as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded,
above.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
1229REICHHOLD CHEMICALS
1 Counsel for General Counsel withdrew striker Crenshaw from the com-
plaint allegations at the hearing, leaving 24 unreinstated employees.
orders that the Respondent, Reichhold Chemicals, Inc.,
Bay Minette, Alabama, Pensacola, Florida, and
Oakdale, Louisiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Patrick F. Dunham, Esq., for the General Counsel.
Richard Kobdish, Esq., Allan King, Esq., and Terry Bauman,
Esq., for the Respondent.
Joe Whatley Jr., Esq., and Frederick Kuykendall III, Esq., for
the Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrative Law Judge. I heard
the case in April 1989 in New Orleans, Louisiana. The com-
plaint alleges that Respondent violated Section 8(a)(1) and
(5) of the Act by demanding as a condition of consummating
a collective-bargaining agreement that the Union agree to
provisions that altered the bargaining unit and, in furtherance
of its demand, bargained to impasse and implemented its
final offer, which, inter alia, altered pension plans covering
employees. It is also alleged that Respondent unlawfully re-
quired returning unfair labor practice strikers to sign state-
ments, and refused to reinstate them to employment despite
their unconditional offer to return to work on July 19, 1988,1
in violation of Section 8(a)(3) of the Act.
Based on the entire record, including the parties’ briefs, I
make the following
FINDINGS OF FACT
I. JURISDICTION
As the complaint alleges, Respondent admits, and I find,
Respondent is a Delaware corporation engaged in production
and distribution of industrial chemicals at its facilities in
Pensacola, Florida; Oakdale, Louisiana; and Bay Minette,
Alabama, from which it annually ships products valued in
excess of $50,000 directly to customers located outside those
States, and is an employer engaged in commerce within the
meaning of the Act. The Union is admittedly a labor organi-
zation.
II. APPROPRIATE BARGAINING UNIT
I find, as agreed by the parties and as this record amply
supports, that the long-established unit of the following em-
ployees of Respondent constitutes a unit appropriate for the
purpose of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All production and maintenance employees employed
by Respondent at the Pensacola, Florida; Oakdale, Lou-
isiana; and Bay Minette Alabama facilities, excluding
all other employees, office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
The Union, since about 1971, admittedly has been and is
the designated exclusive collective-bargaining representative
of employees in the above unit and has been recognized as
such by Respondent since that date, as evidenced by succes-
sive bargaining agreements, the most recent being effective
from May 20, 1985, to May 20, 1988.
III. THE UNFAIR LABOR PRACTICES
A. The Parties Bargaining Sessions
At the first bargaining session April 19, 1988, the Union
gave the Company its proposals and went through them. (R.
Exh. 3.) Respondent’s representative Jim Harris presented his
side’s contract changes (R. Exh. 4), reading from a printed
copy. He read:
It is the desire of the Company to negotiate an elimi-
nation of the current multi-plant bargaining under the
master agreement. The Company purposes the creation
of (4) separate bargaining agreements with four (4) sep-
arate expiration dates. . . .
There are a number of factors that support our pro-
posal to split this bargaining relationship into separate
units. [Harris listed and described 33 such factors, read-
ing from the proposal, then read as follows]:
Further, the Company would propose certain separate
and distinct job classifications, seniority provisions, job
qualifications, sub-contracting language, overtime pro-
cedures, grievance procedures, hours of work, tem-
porary assignments, and other such issues prevalent
[sic] to the particular plants (including wages, benefits
and working conditions).
The Respondent’s proposal described itself in a concluding
paragraph as ‘‘this proposal to split this Master Agreement
into four (4) separate collective bargaining agreements with
four (4) separate expiration dates.’’
Union Negotiator Gonzalez testified that Respondent’s
proposal was reported to the three local unions’ membership
on April 27, and that the membership unanimously author-
ized the Union’s bargaining committee to determine strike
action so as to convey a loud message of objection to the
proposal.
At the parties’ next meeting on May 10, they discussed the
Union’s April 19 proposals, some of which were rejected by
Harris, while others were reserved for later attention. Gon-
zalez informed Harris with respect to the Company’s pro-
posal ‘‘that the Union totally rejected the splitting up of the
master agreement into four agreements and that it was pre-
sented as a package and that we rejected it as a package.’’
During the fourth session, on May 11, the parties went
through the Union’s proposals on language changes, the in-
clusion of the Oakdale lab, and other subjects such as man-
agement rights, notice before plant closure, quitting time,
length of shifts, plant practices, seniority, meal allowances,
subcontracting, bulletin boards, and overtime.
During an afternoon recess Harris told Gonzalez that Re-
spondent knew it could not legally insist on its proposal to
separate the bargaining unit and would be coming back with
another proposal in such regard.
That afternoon after Respondent discussed union proposals
further, Respondent put the new proposal on the table (R.
Exhs. 7a–d), its second proposal on noneconomic terms, and
described by Harris as a proposal consisting of ‘‘a master
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and supplemental agreements.’’ Harris told the union nego-
tiators, referring to the new proposal, ‘‘they are much more
specific, fairly lengthy and it is making the major movement
for our position on a different and total split of the four (4)
units which we would like to do. We have wanted to do it
for some time. This proposal moves to a Master Agreement
concept with a different twist; four (4) supplemental agree-
ments. With this proposal, this concept is no longer permis-
sive.’’ (Respondent notes of meeting, R. Exh. 6, last page,
emphasis supplied.)
The Respondent’s proposal called for sweeping changes in
the parties’ time-proven successful bargaining format. The
separate plant ‘‘Local Supplemental Agreement[s]’’ con-
tained new provisions to vary the expiration date of the con-
tracts from plant to plant, so that there would be four sepa-
rate expiration dates as described in Harris’ testimony.
Many subject matters forming the core of the parties’ es-
tablished master agreement were entirely taken out and
moved to separate supplemental agreements, such as wages
and rates of pay which included minimum and basic rates of
pay, shift differentials, and new job classification pay, holi-
day designation and pay, vacations, pensions, funeral leave
benefits, and jury duty pay.
Many equally long-established contract provisions defining
the parties’ bargaining in the multilocation unit, although not
entirely removed, are significantly altered by Respondent’s
proposal so as to more strongly demarcate each of the four
plants from the reach of the historical multiplant bargaining
in a single unit.
Thus, there are four separate agreements, whereas before
there was a single contract covering the plants and containing
side letters or appendices on a more limited number of terms
as agreed upon by the parties. The new proposal changes the
heading on the old contract to a ‘‘Master Agreement,’’ while
the new separate plant agreements contain the heading
‘‘Local Supplemental Agreement[s],’’ specifically identify
only the plant covered therein and state the agreement is be-
tween Respondent and United Steelworkers of America and
identifies only the local union at that plant as the party (with
the Steelworkers International) with whom it is separately
under contract. (R. Exhs. 7–B, C, and D.)
The proposal changes the wording in the preamble to state,
‘‘Each of the four (4) plants covered by this Master Agree-
ment shall have a separate local supplemental agreement
which will be negotiated between the Company and the
Union (on behalf of each local union participating in this
Master Agreement).’’
The proposal changes the language in article I, ‘‘Recogni-
tion and union security from the former contract language,
which merely identified the geographical scope of the
Union’s recognition by reference to the cities where Re-
spondent’s operations were located, to the words, the Union
shall be the sole and exclusive bargaining agency for all pro-
duction and maintenance employees at the two plants located
in Pensacola, Florida; as well as the ones located in Bay Mi-
nette, Alabama; and Oakdale, Louisiana, etc. (emphasis
added to represent the new wording). The term Master be-
fore the word agreement is inserted at some 15 locations
throughout the changed contract language so as to underline
its newly invested distinctiveness from the local supple-
mental agreements.
Dues deductions in connection with union-security provi-
sions and PAC employee contributions for the first time are
identified as being deducted from the pay of each employee
covered by the four (4) local supplemental agreements; fur-
ther, such PAC contributions are to be those as set out in the
local supplemental agreements. This particular emphasis on
referral to the local supplemental agreements is noted inas-
much as the parties simply referred in the past agreement to
a single appendix k, which is a standard form for all employ-
ees to execute for PAC contributions which was appended to
their agreement covering all employees in the unit. As shall
be noted further below, Respondent asserted the need for
greater flexibility in operations as the motive behind its
move to separate plant bargaining units yet no such purpose
seems to be served by its insistence on such a language
change.
Revealing its drive towards a separation in the overall unit
further is Respondent’s proposal to restrict strikes and
lockouts to the separate plants. The proposal changes the
former agreement language which provided an agreement by
the Company to refrain from any lockout ‘‘During the term
of this Agreement’’ and a no-strike agreement by the Steel-
workers and 3 local unions ‘‘jointly and severally,’’ also dur-
ing the same contract term, to read as follows, the underlined
portions being the proposals for new language:
1.4 (a) During the term of each local supplemental
agreement the Company agrees that there shall be no
lockout at the plant covered by such local supplemental
agreement. After expiration of a local supplemental
agreement a lockout can occur only with respect to the
plant covered by that expired local supplemental agree-
ment. Likewise, the United Steelworkers of America,
AFL–CIO–CLC, and Local Unions No. 12130, No.
12149, and No. 13314 jointly and severally agree that
during the term of each local supplemental agreement
no strike (sympathetic or otherwise), stoppage or slow
down of work for any reason will be called, authorized,
recognized, incited, or supported in any manner by
them or any of them at any plant covered by such local
supplemental agreement. After expiration of a local
supplemental agreement a strike can occur only with
respect to the plant covered by that expired local sup-
plemental agreement.
(b) In the event of a strike, stoppage or slowdown
of work during the life of any local supplemental agree-
ment, the Staff Representatives of the United Steel-
workers of America, AFL–CIO–CLC, and the President
of the Local Union involved, acting officially for their
respective organizations, shall within 24 hours of notice
from the Company of such occurrence: [action de-
scribed].
The proposal provided for exclusive company rights to
take appropriate management action at ‘‘any and all of the
four Plants’’ under the newly worded management-rights
clause, and added a last sentence to the section on seniority,
which was generally plantwide anyway under the parties ex-
pired agreement which read, ‘‘Each plant seniority list shall
apply only to that plant and to no other plant. ’’ (Attachment
to proposal R. Exh. 7a, par. 4.19.)
1231REICHHOLD CHEMICALS
In sum, the May 11 proposal effectively drained the par-
ties’ established multilocation unit bargaining of some 20
terms and conditions of employment redistributing them for
bargaining in individual plant units, covered by separate
agreements containing different expiration dates. Given its
lengthy and detailed nature, the parties adjourned so the
Union could prepare a response.
On May 16, the Union responded to Respondent’s pro-
posals on bulletin boards, vacancies, managements rights,
overtime, and subcontracting, without much company reac-
tion, there being, in my impression of the parties’ bargaining
notes, a certain unexpressed greater interest on Respondent’s
part in hearing the Union’s reaction to its far-reaching pro-
posals of the day before.
Gonzalez, in such response for the Union, offered inter
alia to add a third paragraph to the parties’ existing collec-
tive-bargaining agreement at article XIII, Complete Agree-
ment. (R. Exh. 1.) The new paragraph would provide, as de-
scribed in Gonzalez’ notes, ‘‘all letters of understanding and
agreements on local issues pertaining to individual plants
[sic] be placed in a supplemental agreement booklet for each
plant location and made a part of this agreement by ref-
erence.’’ (R. Exh. 45, last page of Gonzalez notes May 16,
1988.)
The Union otherwise rejected Respondent’s second pro-
posal as ‘‘the effect of its proposal would split the Master
Agreement,’’ Gonzalez again referring to his express under-
standing—without denial by Harris—that Respondent’s pro-
posal was being read as a package and therefore was rejected
in its entirety. (Id. at pp. 1 and 3.) Gonzalez told Harris the
Company was trying to do through the supplements what it
initially tried to do by breaking the agreement into four sepa-
rate contracts.
Notes of the session do not show any company response
specifically addressed to the Union’s offer.
The parties met again the next day, May 17. At the outset
in their meeting, Harris warned the Union that the Respond-
ent intended to make serious contract changes and was
‘‘deadly serious’’ about its proposals so as to achieve greater
profitability at each plant, cautioning further that the Union
should make no mistake about Respondent‘s resolve. Harris
then proposed that there be a common expiration date for
each plant agreement and the master, the earlier proposal
otherwise remaining unchanged in any major respects. This
was the third effort by Respondent to press forward its sepa-
rate bargaining units plan. Gonzalez repeated essentially the
Union‘s earlier counteroffer to consider agreement as in the
past on side agreements reflecting practices at specific loca-
tions identified as being part of the parties’ existing agree-
ment by reference. (R. Exh. 10, last page.) Again not com-
municating any reaction to the Union’s willingness to ad-
dress by voluntary agreement, as was done in the past, the
subject of side agreements pertaining to specific needs at a
given plant, Harris said Respondent was considering moving
certain provisions of the, as Respondent called them, ‘‘local
supplemental agreements into the Master.’’ (R. Exh. 10, last
page.)
On May 18 Respondent presented an economic proposal
and announced it was moving five subjects from the local
supplemental agreements back into its proposed master
agreement; jury duty, funeral leave, insurance pensions, and
vacations. The Pensacola plant would be included in one
supplemental agreement with the Newport Plant. Respondent
Representative Keith Hall, director of human resources, de-
scribed the different schedules, wage rates, and classification
systems proposed in the separate plant supplemental agree-
ments under the May 18 proposal (R. Exhs. 12–13), the
meeting thereafter ending at 10:40 a.m., without further dis-
cussion.
The Union replied to Respondent‘s offer the next day,
May 19, Representative Gonzalez, offered a counterproposal
‘‘taking into account all the work done thus far.’’ (R. Exh.
13, p. 1.) The Union presented a 15-point counterproposal
touching on economic and noneconomic subjects, accepting
company proposals on extended care coverage and other
health insurance related topics, and proposing uncapping of
COLA; and changes in pension, meal allowances, and shift
differential pay. Union Representative Gonzalez repeated the
Union‘s position that it was willing to continue freely consid-
ering deviations from contract language for application to in-
dividual locations in the form of side agreements, such as,
the record shows, the parties had done with respect to over-
time assignment at one location or different use of a holiday.
Gonzalez noted, however, that such matters should ‘‘be lim-
ited to side agreements at each location only and all other
articles/rules referred to by the Company in the supplemental
agreement be [sic] written in the agreement and in its present
form.’’ (Referring to the parties’ established multilocation
agreement.) Quickly on the heels of Gonzalez describing the
union proposal, Harris referred to ‘‘time [is] running out’’
and that after adjournment the Company would present a
‘‘final offer.’’ Gonzalez said, ‘‘When you tell us it is final,
we will accept it as final.’’ That afternoon Respondent pre-
sented, as Gonzalez recalls, its ‘‘absolute, final last pro-
posal.’’ It proposed changes in pension, changes in the Pen-
sacola plant wage scale, that there would be recalculations in
the wage scale at the Bay Minette plant, as well as separate
job classification restructuring and phaseouts, no bumping
rights between the two Pensacola plants in the purposed two-
plant unit there, and no hospital benefit changes. (R. Exh.
13.)
Gonzalez testified that at this juncture in negotiations,
even though the Union was making counterproposals, the
Union’s primary, even total, efforts were directed at ‘‘trying
to get the Company to get off of these supplements.’’ After
hearing Respondent’s nearly entirely economic last offer
which did not even address the Union’s repeated objection
to breaking up negotiations into plant supplemental agree-
ments, the Union recessed and the local union presidents on
the bargaining committee, authorized by their local unions to
do so earlier, on April 27, after Respondent’s proposal had
been reported to the local union membership, voted to go on
strike. Gonzalez testified that during the recess he gave the
committee his view that Respondent’s unwithdrawn demands
would weaken the Union’s future bargaining position ‘‘how
we were getting away from one unit, how the Company was
moving toward separate contracts through the supplements.’’
The union presidents, Gonzalez recalled, told the committee
they were voting to reject the Company’s last offer and go
on strike because they ‘‘could not accept the Company split-
ting up the bargaining unit.’’ The local union presidents cor-
roborate Gonzalez’ testimony. The strike began the next day,
May 20.
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent operated its business with nonbargaining unit
personnel after the strike began, and on May 30 Respondent
implemented the terms and conditions of its last and final
offer.
By letter dated June 30, 1988, Harris told Gonzalez that
since the ‘‘impasse’’ in the parties’ negotiations began after
their failed efforts on May 19, Respondent had commu-
nicated its position to employees, and offered to have a
meeting ‘‘to explain [its offer] or to address specific con-
cerns of the Union.’’ (R. Exh. 23.) Neither in this letter, nor
in numerous printed messages to its employees does Re-
spondent address its own intransigence on the company pro-
posal for a master and separate plant contracts. (R. Exhs. 16–
22.)
Pursuant to the letter, the parties met in Pittsburgh on July
6. Harris offered to freeze the contract language on econom-
ics and reinstate a withdrawn signing bonus, but when Gon-
zalez asked about the subject of supplements, Harris was
adamantly opposed to moving from the earlier position tell-
ing him ‘‘that’s as far as they’re going . . . that it was abso-
lutely the final offer,’’ and the meeting ended. On July 14,
Gonzalez informed the union bargaining committee what had
transpired, and described the Harris offer. The committee
members rejected it as the company offer still was separating
the unit. Gonzalez called Harris, told him the offer was re-
jected, and asked for another meeting to discuss a union
counterproposal, but Harris told him the Company had given
its last offer. Gonzalez nevertheless sent Harris a counter-
proposal on July 12 substantially addressing economics but
stating that the ‘‘supplemental proposals’’ were unacceptable.
(G.C. Exh. 7.) Harris wrote back on July 14, and ignoring
the entire matter of the Union’s detailed proposal on eco-
nomics in his letter, as well as the major union concern
about supplemental plant agreements’ effect on the estab-
lished bargaining unit, told Gonzalez once again ‘‘The Com-
pany has given you its last, best and final offer’’ (G.C. Exh.
8) and warning Gonzalez that Respondent would soon begin
hiring replacements for striking employees. The unwarranted
blame-ridden tone directed at the Union for the impasse in
negotiations in the Harris July 14 letter, as well as unfounded
factual assertions accusing the Union of ‘‘stonewalling’’ in
those negotiations manifest a remarkable mischaracterization
and, in my view fortify the belief that Respondent was trying
to shrewdly camouflage the fact that it was its own conduct,
not the Union’s which led to stalemate. Gonzalez replied
evenhandedly and reasonably to the letter, clearly rebutting
its unsupported assertions on July 18, and putting the blame
where he believed it belonged (G.C. Exh. 9), and reminding
Harris, with respect to the Respondent’s unacceptable pro-
posals that, ‘‘the only [alleged] initiative you have taken is
to say this is our proposal on a take it or leave it basis.’’
(Id. at p. 1.) At the same time Gonzalez again offered (again
to no avail) to meet with the Company to discuss the issues.
Respondent notified employees at its plant that it intended
to hire permanent replacements and setting different dead-
lines at each plant for employees to reclaim their jobs. Em-
ployees at Oakdale and Pensacola, according to testimony by
Respondent’s director of human resources, Keith Hall, re-
turned to their employment before the deadlines there. Bay
Minette employees, whose deadline was July 19, were at-
tempting to return around 11 a.m. that day when John Ellis,
production superintendent and an agent of Respondent, told
them they would have to sign a form bearing the terms, inter
alia, ‘‘I lll(name)lll do hereby make unconditional
application to return to work . . .’’ emphasis added, before
they would be allowed to sign up—as it turned out—for later
consideration for possible employment given that Respondent
had hired numerous permanent replacements and was consid-
ering them, the record clearly shows, as returning economic
strikers.
Analysis
The Board has uniformly held that the subject of changing
the bargaining unit, whether certified by the Board or the re-
sult, as here, of the parties’ established practice and agree-
ment following recognition, is a permissive, rather than man-
datory subject of bargaining, so that neither party to collec-
tive bargaining may insist on altering the established unit to
impasse, such conduct thereby violating the duty to bargain
defined by Section 8(a)(5) of the Act. Idaho Statesman, 281
NLRB 272 (1986); Boise Cascade Corp., 283 NLRB 462,
467–468 (1987), enfd. 860 F.2d 471 (D.C. Cir. 1988); How-
ard Electrical & Mechanical, 293 NLRB 472, 475 (1989);
and Newport News Shipbuilding & Drydock Co., 236 NLRB
1637, 1643 (1978).
The contract-covered employees have always been rep-
resented in a recognized single-multilocation bargaining unit
over a span of 38 years, of that there is no question. Com-
pare Louisiana Dock Co., 293 NLRB 233 (1989), in which
Administrative Law Judge Richard J. Linton found the em-
ployer there violated Section 8(a)(5) of the Act by insisting
to impasse that the appropriate unit was not a multilocation
unit and the Board reversed on the ground that there was no
single-multilocation recognized unit. During this long history
of the recognized multilocation unit, found above to be the
appropriate unit on the basis of the record as well as the par-
ties’ agreement, a few scattered instances occurred when the
parties consented to side agreements covering a limited sub-
ject matter at an individual plant, and the bare printed subject
matter thereof was appended to the parties’ collective-bar-
gaining agreement, which always remained throughout the
parties’ long history of collective bargaining the only reposi-
tory of subject matter negotiated for all employees in the
multilocation unit. Contrary to Respondent’s contention, the
limited variations of terms contained in the appended matter
did not work to create a basis for duplicate bargaining units
to arise at the individual plants affected by the side under-
standings, those being the result of purely consensual bar-
gaining which did not deprive the Union from later with-
drawing such consent, or limiting its agreement on the num-
ber or type of subjects it would bargain about on an indi-
vidual plant basis. In short, just as an employer may not
force employees involved in separate bargaining units into
the shared representation inherent in multiplant unit bar-
gaining simply because of some past history of bargaining
about a term of employment (a pension plan) in the
multiplant unit made possible by the unions past consent, as
described in the below-cited case, neither can Respondent
force its employees in the established multilocation here to
give up their long-settled rights to shared representation in
the multilocation unit and accept in its place Respondent’s
demanded separate plant unit bargaining. Boston Edison Co.,
290 NLRB 549, 553 (1988). The Board there stated:
1233REICHHOLD CHEMICALS
Although it is well settled that the parties may vol-
untarily agree to bargain jointly on an other-than-unit
basis for certain subject matters and to bargain on a
unit basis for other matters, that agreement does not re-
sult in two separate units, a broader unit for some pur-
poses and a narrower unit for others. Only one unit
covering the same employees may exist at any given
time, even if the parties agree to bargain on certain
matters on a different basis.
Respondent’s avowed intention to split the unit into pieces
on April 19 was highly disconcerting to the Union, which
promptly secured strike authorization so as to underscore
with firmness its rejection to splitting the unit, which it
voiced at the very next bargaining session. As detailed
above, Respondent, as a stratagem to achieve the same goal
by way of as Harris, described it a ‘‘new twist’’ and indirect
means, disclaimed any further open intention of splitting the
unit, only to propose a so-called ‘‘Master Agreement with 4
supplemental agreements’’ (the added plant unit to represent
the proposed inclusion of a second Pensacola plant) which
would displace the established single-multilocation bar-
gaining framework with substantially divided unit bargaining
over a drastically increased number of topics drained from
the multilocation unit and reserved for separate plant unit
bargaining to be memorialized in separate plant contracts
with different termination dates. While Respondent later re-
duced somewhat the number of topics for separate plant bar-
gaining to be outside the reach of multilocation unit bar-
gaining when confronted with continuing union objections, as
well as withdrawing separate termination dates, it left a sub-
stantial number of core employment terms and language
changes forcing the division of the established unit into sepa-
rate plant units, some 12 in all, described above in its final
offer, which in any event continued to drastically alter the
scope of the multilocation bargaining unit by way of requir-
ing separate plant negotiations on a wide range of employ-
ment terms to be contained in separate plant contracts, ex-
pressly identifying the Respondent, the Union, and only the
local union at the plant involved as parties to the contracts
there described above in accounts of the parties’ failed nego-
tiations. The suggestion by Respondent that somehow its
final proposal was merely a continuum in past patterns of
bargaining between the parties, therefore lacks merit.
A collective-bargaining unit is not defined solely by its
bare geographic boundaries so that whatever demands a party
makes for bargaining changes like those involved here are
valid so long as made within and impacting within those
boundaries. Collective-bargaining units are rather more dy-
namic in nature and are also based on a distinct community
of employment interests among the employees in the unit and
derive value and great importance in that the established and
appropriate unit tends to foster a stability beneficial to collec-
tive bargaining. A drastic change like Respondent demanded
here from bargaining in a single-multilocation unit to a
‘‘master with 4 supplements’’ breaks apart the employees’
distinct community of employment interests established over
38 years and severely undermines the integrity of such unit
thereby tending to destabilize collective bargaining.
Respondent’s proposal disrupts the established alignment
and inner positioning of forces from which each party has
brought its economic power to bear in stable collective bar-
gaining for 38 years and, as such, disintegrates the unit from
within. Such a proposal clearly works an alteration in the
scope and content of the established bargaining unit within
the meaning of the cited Board law.
Respondent’s proposal, which it insisted on in main re-
spects throughout the entire course of the parties’ failed ne-
gotiations overshadowed and displaced any opportunity or
reasonable prospects for the parties to progress in bargaining
over other matters, and I find, as abundantly clear from the
record of their negotiations and as uncontroverted that Re-
spondent’s insistence on changing the bargaining unit dead-
locked the parties in impass on May 19. Facet Enterprises,
290 NLRB 152 (1988), enfd. in part and remanded in part
907 F.2d 963 (10th Cir. 1990); Taft Broadcasting Co., 163
NLRB 475 (1967); and Sacramento Union, 291 NLRB 552
(1988), where the Board noted that impasse on a single crit-
ical issue may create a deadlock in the entire bargaining
process. American Commercial Lines, 291 NLRB 1066
(1988). By such insistence Respondent bargained to impasse
over a nonmandatory subject, thereby violating Section
8(a)(5) of the Act under the earlier cited case law. Respond-
ent’s conduct also plainly violated that section in the Act on
the alternative theory alleged in the complaint by condi-
tioning the consummation of a collective-bargaining agree-
ment on the Union’s acceptance of Respondent’s proposal to
change the bargaining unit, a nonmandatory subject of bar-
gaining.
B. Unilateral Changes
It is further found that Respondent’s implementation of all
the terms of its final May 19 offer, on May 30 as the parties
stipulated was done, violated Respondent’s bargaining duties
under the Act further insofar as the unit changing provisions,
some economic and some noneconomic in nature, are con-
cerned because the Union was not required to bargain about
such nonmandatory subjects and the implementation was
done without the consent of the Union. Howard Electrical &
Mechanical, supra at 475. Respondent cannot rely as jus-
tification for its unilateral implementation of any remaining
economic proposals on the parties’ impasse in negotiations
because, as described above, the impasse which paralyzed
bargaining on all subjects was an unlawful impasse, caused
by Respondent’s demand for agreement on a nonmandatory
subject. Park Inn Home for Adults, 293 NLRB 1082 fn. 9
(1989).
C. The Failure to Reinstate Strikers
As is documented and undenied, the employees engaged in
a strike which began on May 20 and was caused, at least in
part if not entirely, by Respondent’s illegal insistence to im-
passe on changing the unit. The evidence clearly establishes
that they were unfair labor practice strikers. Chesapeake Ply-
wood, 294 NLRB 201 (1989); Northern Wire Corp., 291
NLRB 727 (1988); and Tufts Bros., Inc., 235 NLRB 808,
810 (1978). This being so, the Bay Minette employees were
entitled to immediate reinstatement on their unconditional of-
fers to return to work on July 19; instead Respondent treated
them as economic strikers who had been permanently re-
placed, and further discriminated against them by requiring
that they sign employment application papers before being
eligible for consideration for reinstatement at a future time.
By each such acts, including its failure to displace, if nec-
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
essary, any employees hired into their jobs regardless of
whether those employees were hired as permanent replace-
ments so as to effectuate the reinstatement of the strikers,
Respondent violated Section 8(a)(1) and (3) of the Act.
Teledyne Still-Man, 298 NLRB 982 (1990); Atlantic Creo-
soting Co., 242 NLRB 192 (1979); and Foote & Davies, 278
NLRB 72, 77 (1986).
D. The Recall of Strikers
Late in the hearing, counsel for General Counsel amended
the complaint to allege that among other unilateral changes
implemented by Respondent unlawfully it changed the pre-
existing contract provisions regarding recall of employees to
conform to the recall provisions contained in its last offer of
a supplement at the Bay Minette plant, and used the unilater-
ally implemented system to govern recall of strikers there.
Respondent admits to using the new system but calls it se-
niority based, and the record is empty as to which employ-
ees, if any were affected or to what extent, if any, there oc-
curred detriment to any employee. Since I have found that
Respondent’s last offer, which includes the recall provisions
described here, was unlawfully implemented, the recall rights
of the strikers, the specifics of which are better left to the
compliance stage of this proceeding, will be protected by the
remedy in this case, and there is no need for a duplicate
finding of violation.
THE REMEDY
Because Respondent unlawfully implemented new terms
and conditions of employment, it is necessary under Board
law to order restoration of the contractual status quo ante in
the respects, noted above, to the extent feasible, and without
imposing an unwarranted burden on Respondent. F. M. L.
Supply, 258 NLRB 604 (1981); S. Freedman Electric, Inc.,
256 NLRB 43 (1981); and Hood Industries, 248 NLRB 597
fn. 3 (1980). Included in such remedy, I shall recommend
that Respondent make whole its employees for any loss of
pay or other employment benefits which they may have suf-
fered commencing on May 30, 1988, by reason of Respond-
ent’s unilateral changes of its employees’ terms and condi-
tions of employment, as prescribed in Ogle Protection Serv-
ice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as computed in Florida Steel Corp., 231
NLRB 651 (1977); E G & G Florida, Inc., 279 NLRB 444
(1986); and see Storer Communications, 294 NLRB 1056
(1989).
Having violated Section 8(a)(1) and (3) of the Act, when
on July 19, 1988, and thereafter, Respondent unlawfully re-
fused to reinstate unfair labor practice strikers on their un-
conditional offer to return to work, offering only to reemploy
them when positions became available by normal attrition
among poststrike permanent replacements and even then only
pursuant to terms and conditions of employment unlawfully
imposed, I shall recommend Respondent be ordered to offer
immediate reinstatement to the strikers identified in the com-
plaint to their former or equivalent positions, discharging any
replacements hired on or after May 20, 1988, under terms
and conditions of employment and the recall provisions of
the expired contract, and to make them whole for wages and
other benefits, measured under status quo ante conditions,
lost by virtue of its unlawful conduct. Backpay shall cease
on offering such employees reinstatement to their old or sub-
stantially equivalent jobs. PRC Recording Co., 280 NLRB
615 (1986).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Reichhold Chemicals, Inc., Bay Minette,
Alabama, Pensacola, Florida, and Oakdale, Louisiana, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the Union by
insisting to impasse in negotiations on the adoption of its
proposal to alter the scope of the collective-bargaining unit;
which is:
All production and maintenance employees employed
by Respondent at the Pensacola, Florida; Oakdale, Lou-
isiana; and Bay Minette Alabama facilities, excluding
all other employees, office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
(b) Refusing to bargain in good faith with the Union by
insisting as a condition to consummating a new collective-
bargaining agreement on adoption of its proposal to alter the
scope of the collective-bargaining unit.
(c) Refusing to bargain in good faith with the Union by
unilaterally changing existing terms and conditions of em-
ployment established under its former bargaining agreement
with the Union.
(d) Refusing to immediately reinstate unfair labor practice
strikers to their former or substantially equivalent positions
of employment discharging, if necessary, any replacements.
(e) Requiring strikers to execute applications to return to
work as a condition to being considered for reinstatement.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the purposes of the Act.
(a) Offer to the unfair labor practice strikers immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
dismissing if necessary persons hired on or after May 20,
1988, and make them whole for any loss of earnings they
may have suffered as a result of Respondent’s unlawful re-
fusal to reinstate them, in the manner described in the rem-
edy section of this decision.
(b) On request, rescind the above unilateral changes until
such time as the Respondent negotiates in good faith with the
Union to agreement or valid impasse.
(c) On request, restore the employment benefits found to
have been unilaterally changed and make whole the employ-
ees in the above unit for all losses they may have suffered
as a result of Respondent’s changes, with interest thereon, to
1235REICHHOLD CHEMICALS
3 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
be computed as described in the remedy section of this deci-
sion.
(d) On request, recognize and bargain in good faith with
the Union as the exclusive representative of all employees in
the aforesaid appropriate unit, and, if an understanding is
reached, embody such understanding in a written, signed
agreement.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its Pensacola, Florida; Oakdale, Louisiana; and
Bay Minette, Alabama plants copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 15, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT do anything to interfere with these rights.
WE WILL NOT refuse to bargain in good faith with United
Steelworkers of America, AFL–CIO–CLC by insisting to im-
passe in negotiations on the adoption of our proposal to alter
the scope of the collective-bargaining unit, which is:
All production and maintenance employees employed
by Respondent at the Pensacola, Florida; Oakdale, Lou-
isiana; and Bay Minette Alabama facilities, excluding
all other employees, office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
WE WILL NOT refuse to bargain in good faith with the
Union by insisting as a condition to consummating a new
collective-bargaining agreement on adoption of our proposal
to alter the scope of the collective-bargaining agreement.
WE WILL NOT unilaterally change existing terms and con-
ditions without bargaining in good faith with the Union be-
forehand.
WE WILL NOT refuse reinstatement to former Bay Minette
plant unfair labor practice strikers, discharging, if necessary,
any replacements.
WE WILL NOT require returning strikers to sign applica-
tions to return to work as a condition to being considered for
reinstatement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the Union
as exclusive representative of our employees in the above-de-
scribed unit and, if an understanding is reached, embody
such in a signed agreement.
WE WILL restore and place in effect retroactive to May 30,
1988, all conditions of employment which we were found to
have unlawfully changed; and WE WILL make whole employ-
ees for any losses they may have incurred as a result of our
unlawful action in changing such employment conditions.
The conditions will remain unchanged until such time as the
parties execute a new agreement, or bargain to good-faith
impasse. WE WILL offer the unfair labor practice strikers im-
mediate and unconditional reinstatement to their former or
substantially equivalent positions of employment, as de-
scribed above, without prejudice to their seniority or other
rights and privileges, and WE WILL make each of them whole
for any loss of wages suffered by reason of our unlawful
conduct against them with interest.
REICHHOLD CHEMICAL, INC.