Union Terminal Warehouse, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1987

286 N.L.R.B. 851 (N.L.R.B. 1987)

UNION TERMINAL WAREHOUSE 851
Union Terminal Warehouse, Inc. and General Ware-
housemen , Local 598, International Brotherhood
of Teamsters, Chauffeurs , Warehousemen &
Helpers of America . Case 2 1-CA-24218
9 November 11987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 29 July 1986 Administrative Law Judge Joan
Wieder issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
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 brief and has
decided to affirm the judge' s rulings , findings,' and
conclusions, to modify the remedy, 2 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, Union Ter-
minal Warehouse, Inc., Vernon, California, its offi-
' 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
In agreeing with the judge that the Respondent 's lockout violated Sec.
8(a)(3) of the Act, we rely on her finding that the "evidence demon-
strates that Respondent laid off or foreclosed access to its plant for
the majority of the shift in actions taken to support the unlawful unilater-
al implementation of its proposal to change the shift time to 7 p m." We
also agree with her conclusions that the lockout did not occur after an
impasse in negotiations or because of a perceived threat of a strike
Regarding these latter two points , Chairman Dotson and Member
Babson further note the following relevant language from Harter Equip-
ment, 280 NLRB 597 fn 6 (1986).
The Board has held that the absence of impasse does not of itself
make a lockout in support of bargaining demands unlawful , Darling
& Co, 171 NLRB 801 (1968), enfd sub nom Lane Y. NLRB, 418
F 2d 1208 (D.C Cit. 1969), neither does the absence of any reasona-
ble fear of strike They may, however, be relevant in a case
where the employer's professed business motivation is challenged as
pretextual
Thus, they put no reliance on any indication in the judge's decision
that , had the lockout been in support of a legitimate bargaining position,
the lockout may nonetheless have been unlawful if done in the absence of
an impasse in negotiations or in the absence of an anticipated work stop-
page
Member Stephens , who did not participate in Harter Equipment, agrees
that it does not support the Respondent's position with respect to the
lockout here
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S.C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
cers, agents , successors , and assigns , shall take the
action set forth in the Order.
Lana Hill Parke, Esq., for the General Counsel.
J. Michael Kota, Esq. and David Etheridge, Esq., for the
Respondent.
Ralph M. Phillips, Esq. (Wohiner, Kaplan, Phillips, Vogel,
Shelley & Young), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case
was heard by me on 26 and 27 March 19861 at Los An-
geles , California. The charge was filed 16 October and
amended 18 October and 22 November by General
Warehousemen, Local 598, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, it issued 27 November and was amended at the
hearing . The complaint alleges that Union Terminal
Warehouse, Inc. (the Respondent or the Company) uni-
laterally changed terms and conditions of employment
by implementing the terms and conditions of its 2 Octo-
ber bargaining proposals; and about 13 October locked
out some employees in violation of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act. Respondent
denies violating the Act asserting several affirmative de-
fenses including impasse.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation engaged in the operation
of a public warehouse and storage facility with a ware-
house and place of business in Vernon, California. Annu-
ally, in the normal course and conduct of its business in
California, Respondent derives gross revenues in excess
of $50,000 from the consignment and storage of freight
and commodities transported in interstate commerce pur-
suant to arrangements with and as agent for various cus-
tomers, including R. J. Reynolds Tobacco Company, lo-
cated outside the State of California. By virtue of these
operations, Respondent functions as an essential link in
the transportation of freight and commodities in inter-
state commerce and is, at all times material , an employer
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE UNION
Respondent admits , and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
1 All dates are in 1985, unless otherwise indicated
286 NLRB No. 86
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES gave the Association. Prusa realized that such a position
would result in difficult and lengthy negotiations. Prusa
instructed Etheridge and Bullock to negotiate as close to
the Company's demands as possible and bring back all
union proposals to him for consideration and final ap-
proval. Prusa also volunteered that the Company's busy
season was approaching, and there was concern that the
Union would opt for economic action to buttress its bar-
gaining position. The basis for this fear was not explicat-
ed on the record. There was no showing that the Union
had a history of resorting to economic action, such as
strikes, to bolster its bargaining position.
At the first negotiating session on 16 July, the negoti-
ating teams reviewed the Union's proposals in full and
commenced a review of the Company's position. The
meeting lasted about an 1-1/2 to 2 hours. The second
meeting, which also lasted between 1-1/2 to 2 hours, was
held on 22 July. The Company said the Union's propos-
als, which were more favorable to the Union than the
"pattern" agreement, were unacceptable, and the nego-
tiators again reviewed the Company's proposals. Ste-
phens viewed the Company's proposals as unacceptable,
claiming the Company knew they were not acceptable
and asked why Respondent could not live with the
agreement of their competitors, the "pattern" contract.
The Company said it could not be competitive with that
contract and again asked for their proposals.
The initial union proposals differed from the Associa-
tion agreement by seeking an additional holiday, in-
creased vacation benefits, increased the Company's pen-
sion contribution, increased sick leave benefits, a hazard-
ous materials differential, increased cost-of-living cap,
and increased wages. The Association contract contained
a $1 decrease in wages for the first year with a 50-cent
increase for the second and third years of the contract.
The negotiating session of 5 August was similar to the
initial meeting , the Company made it clear it would not
accept the Union's proposals, and the Union stated it
would not agree to make the concessions the Company
sought. The meeting lasted about 2 hours.
At the next negotiating session, which occurred on 12
August, the Union changed some of their proposals.
These changes were some of those contained in the As-
sociation contract, but there was no clear demonstration
that the entire Association contract was offered by the
Union at this time. Respondent's witnesses did not testify
that they had that understanding. Some of these changes
were discussed as well as some of the matters previously
debated. At this time , Stephens admitted in his testimo-
ny, he was unwilling to give Respondent more than the
Union gave the Association in their agreement. Ether-
idge contends that at the close of this meeting, Stephens
said that they were at an impasse . Stephens denies
making the statement. Etheridge then told the union ne-
gotiating team that as far as he was concerned, there was
still room for discussion, and they have not reached an
impasse . The meeting ended on that note according to
Etheridge.
Etheridge testified that about 1 week later, which
would be around 19 August, he received a telephone call
from Williams who said that the parties should try to get
A. Background
Respondent and the Union have had a long-term bar-
gaining relationship, at least since 1967. According to
Respondent, this relationship was maintained through an
informal association of the Southern California public
warehouses (the Association) who historically engaged in
pattern bargaining. The last contract negotiated in this
manner was effective from 1 July 1982 through 30 June
1985. Prior to the expiration of this agreement, the Union
negotiated a successor agreement with the Association.
The new agreement contained concessions by the Union
in recognition of changes in the public warehouse indus-
try occasioned, at least in part, by the deregulation of the
industry resulting in new competitors who have lower
costs because they have a younger nonunion work force.
Respondent did not participate in the negotiations of the
latest "pattern" agreement. There is no indication on the
record whether historically the Company actively par-
ticipated in negotiations of the "pattern" collective-bar-
gaining agreements between the Union and the Associa-
tion. 2
The Union and Respondent commenced negotiations
for a new contract in July, after the expiration of the
prior agreement. Negotiating sessions were conducted on
16 and 22 July, 5 August, and 2 October. There was also
an off-the-record meeting held in August or September.
The Company's negotiating team was comprised of Op-
erations Manager David Etheridge and Assistant to the
General Manager Jesse Bullock (who testified that he
functioned only as the team's notetaker). The Union ap-
pointed Jerry Stephens, a business agent, to head its ne-
gotiating team, which included employees Al Padilla,
Jordan Mathias,3 and Elmer Jones. Sometime in August
or September, Tim Williams, another union business
agent, became the chief negotiator for the Union.
B. The Negotiations
1 General background
The director of warehouse operations for Respondent,
William Prusa, in preparation for the negotiations, talked
to competitors and friends in the industry to determine
what the "pattern" collective-bargaining agreement pro-
vided. Respondent never saw the "pattern" agreement,
and it failed to establish that it knew all or most of the
terms and conditions of that collective-bargaining agree-
ment. Prusa testified he was "generally aware" of the
terms and conditions of the contract. He did not demon-
strate an intimate knowledge of the terms and conditions
of the agreement. However, Prusa determined that this
agreement was unacceptable He never detailed why.
Prusa decided to ask the Union for a better deal than it
2 The parties stipulated, and I find, that the appropriate unit is
All production and maintenance employees, equipment repairmen,
warehouse employees, and shipping and receiving clerks, excluding
office employees, watchmen, janitors, professional employees, guards
and supervisors as defined in the Act
3 Mathias did not appear and testify He attended the first and third
negotiating sessions It appears that his testimony would merely be cumu-
lative, and his absence does not warrant the taking of any inferences
UNION TERMINAL WAREHOUSE 853
together and settle "or it could get awfully ugly." A
meeting was scheduled, then canceled and rescheduled.4
Williams had chaired the negotiations for the Association
contract. About the day he called Etheridge, Williams
was assigned the responsibility to conduct the Union's
negotiations with Respondent. Union Secretary-Treasur-
er Campbell told Williams that Stephens was having
trouble and could not get anywhere with the Company,
that the Company was not moving, that the parties were
far apart, and that it was already September and time for
Williams to get involved and try to settle the matter as
rapidly as he could. Campbell advised Williams to try to
get an agreement similar to the Association agreement.
Williams was not told he was precluded from deviating
from the Association agreement.
The day he first telephoned the Company, he initially
asked for Prusa and was put through to Etheridge. Ac-
cording to Williams' unrefuted testimony:
I told Dave [Etheridge] I didn't want to speak to
him. I wanted to speak to Bill Prusa himself and I
was going to get involved in negotiations and I
wanted to get involved with the individual that had
the authority to negotiate the contract. I asked to
be put back to the switchboard girl and I asked her
to give me Bill Prusa. I talked to Bill [Prusa] and
Bill told me he had nothing to do with the negotia-
tions whatsoever, he didn't know what his future
assignments for Union Terminal were going to be
and that Dave had the full authority and responsi-
bility of negotiating for the company. I told Bill
that it was hard for me to believe that he wasn't in-
volved and calling the shots in the background be-
cause if he was I wanted to meet with him directly,
and that was somebody had to run back and forth
because I had the full authority to act on behalf of
the Local union [sic]. He gave me his word that the
gentleman, David, had full authority to act on
behalf of Union Terminal. I said thank-I thanked
him and I got back with Dave and I asked David
that we'd like to set up a meeting, preferably if I
could go off the record with him. He agreed.
Etheridge selected the meeting site. On the day of the
meeting, Etheridge telephoned Williams, told him he was
too busy, and arranged for another meeting date. They
met at a restaurant called Ed's Hot'n Tot (Ed's). Wil-
liams was the only representative for the Union and Eth-
eridge and Bullock represented Respondent. The parties
greatly disagree about what occurred at this meeting,
which lasted about 2 hours.
2. The meeting al Ed's
According to Williams, Etheridge brought him up to
date about the Union's and Company's positions. Wil-
liams indicated he wanted to settle the matter, and Eth-
eridge said so did he. Etheridge explained some of the
economic difficulties the Company was experiencing, in-
cluding the prospective loss of a major account. Williams
asked Etheridge if Respondent could live with the settle-
ment reached in the Association agreement and explained
the terms of that contract Etheridge indicated he under-
stood that the contract provided for a $2 reduction in
wages for the first year, not $1 as Williams indicated.
Williams explained that the $2 reduction pertained to
truckdrivers represented by the Union in some of the
warehouses, not Respondent's. After the misunderstand-
ing was straightened out, Williams told Etheridge that he
hoped he was satisfied with the Association agreement
because that was all he would get. Etheridge said he did
not see any problem but wanted to change the starting
time for the graveyard shift. Williams said he thought he
could work something out on the starting time, if that
was the only question, and he was sure Campbell would
agree to it.
Williams then expressed concern over whether the
Company's employees would accept the Association
agreement because a majority of the Association's em-
ployees rejected the present agreement. The agreement
went into effect only because two-thirds of the employ-
ees did not vote for rejection or a strike. Williams then
suggested that they negotiate a little longer and harder
to afford him the opportunity to convince the employees
of the need to accept the Association agreement rather
than continuing with their original demands. Etheridge
agreed to continue the negotiations for this purpose and
said that he would have to consult with Prusa.
Williams told the company negotiators that he would
need time to consult with the unit members to determine
if the settlement was acceptable. Bullock and Etheridge
agreed . Etheridge also indicated that the Company could
use the time between their meetings to continue negotia-
tions with another union that represented Respondent's
truckdrivers. Etheridge inquired whether the unit would
honor the picket line if the truckdrivers struck, and Wil-
liams indicated that it was up to the union membership.
The procedure to be followed was to plan on a series of
meetings to afford Williams the opportunity to convince
the negotiating committee and unit members to accept
the Association agreement . Respondent did not refute
Williams' testimony relating its concern about the negoti-
ations with the Union representing its truckdrivers. The
Company also did not refute the claim that Williams and
Etheridge expressed needs for continued negotiations.
Etheridge admitted asking what the terms of the Asso-
ciation agreement were and that Williams told him the
Union could not give Respondent more than it gave the
Association. Etheridge then claims he told Williams that
was not good enough, and Williams replied that he was
"going to take his people out and they were going to hit
the bricks unless they had an answer soon." Etheridge
claims he replied the Company needed more and he
could not accept the Association agreement but would
take the proposal back to Prusa.5 Williams further testi-
4 Respondent claims the meeting occurred in mid-August This claim is
unsupported by the evidence Etheridge admits he first spoke with Wi- Prusa claimed that Williams demanded an answer by the next day
Hams around 19 August, and that a meeting was scheduled, canceled, Etheridge and Bullock did not corroborate this claim Bullock admitted
then rescheduled , which indicates that the meeting occurred in late to poor recall of the meeting Williams denied demanding an answer the
August or during September as Williams contends I so find next day Based on his sincere demeanor, this denial is credited
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
feed that both Etheridge and Bullock told him they had
come a long way compared to the point they had
reached with Stephens, and Etheridge indicated that
they could reach agreement and accept the Association
contract.
It is undisputed that the Union altered its proposals at
this meeting. The Union withdrew its demand for an ad-
ditional holiday, dropped the request for a hazardous ma-
terials differential, froze the cost-of-living increase provi-
sion for 3 years, modified its sick leave proposal, elimi-
nated the request for a wage increase, and offered a $1-
an-hour reduction in wages the first year of the contract
with an increase of 50 cents per hour the next 2 years.
Williams' rendition of the meeting is found to be the
more credible based on demeanor. Williams clearly at-
tempted to forthrightly give all the details, regardless of
the impact on his position. In contrast, Etheridge ap-
peared less concerned over the details than he was with
presenting matters in a light favorable to Respondent.
Bullock, who admittedly did not have clear recall of the
meeting, did not corroborate Etheridge's version on
most, if not all, salient points, except he recalled Wil-
liams offered the Association agreement. Bullock's failure
to recall a strike threat, which would appear to be a
memorable statement, supports Williams' convincing
denial that he made the threat.
Williams called Etheridge several times to ascertain if
they had an agreement. Etheridge initially indicated he
had not talked with Prusa. Etheridge subsequently talked
to Williams and told him Prusa had to take the proposal
"back to corporate," but kept indicating that there was
no problem with the settlement. Prusa testified that Eth-
eridge told him about the meeting at Ed's. Respondent
never clearly and specifically informed the Union that it
did not accept the Association agreement during or after
the meeting at Ed's. The next negotiating session was set
for 12 September but was rescheduled to 2 October.
3. The meeting of 2 October
The details of this meeting are the subject of vigorous
dispute. Prusa joined the company committee at this
meeting . Prusa testified he decided to assume a more
active role because negotiations had been dragging, he
felt the parties were reaching an impasse, and he wished
to be present when they "hit impasse." Etheridge was
still the negotiator for the Company. At the time of the
meeting, Williams had not talked with the negotiating
team to inform them of his understanding of the events
at Ed's. The union bargaining committee did not have
any new proposals for the Company to consider.
Prusa started the meeting by stating that he was very
dissatisfied that the Union refused to negotiate with Eth-
eridge. Etheridge claims he then handed Stephens a sum-
mary of the Company's proposals and said, "This is our
final offer." Respondent also asserts that attached to the
summary was a cover sheet stating that the proposals
were a final offer. The cover sheet was signed by Prusa.
Etheridge said the document was a summary of their
proposals, and there was nothing new and inquired if the
Union was ready to accept it. Williams indicated that he
needed time to study and absorb the material and re-
quested a caucus of the union negotiating committee.
The Company's proposals were extensive, about 48 pages
long, and the summary was 4 pages long. Notes prepared
by Bullock reflect that Prusa's and Etheridge's state-
ments are correct. However, Bullock admitted that the
notes were not made contemporaneously with the events
and were not all derived from firsthand knowledge.
Under these circumstances, I find that Bullock's notes
are not persuasive that Respondent clearly informed the
union negotiating committee that its proposals constitut-
ed a last and final offer.
Williams understood the Company's actions were con-
sonant with the agreement reached at Ed's, and that he
was given the proposals so he could persuade the union
committee to make some compromises and counteroffers
to afford him the time to convince the employees that
they had to accept the Association agreement that had
been unpopular with the members.
The union negotiating committee of Stephens, Wil-
liams , Padilla, and Jones all testified that the Company
never represented that the proposals constituted their
final offer. Padilla and Jones are both current employees
of Respondent, having worked for the Company 23 and
25 years, respectively. Based on their demeanor and their
positions as longtime employees, I credit the testimony
of Jones and Padilla. Williams, who testified in much
greater detail about the meeting and with more convinc-
ing demeanor than Respondent's witnesses, said that
Prusa asked if the Union had any response to the Com-
pany's proposals, and he replied, "no." He was then
given a copy of the summary, and he asked for the op-
portunity to review it. The union negotiating committee
caucused in a section of the warehouse known as the
lunch area.
During the caucus, Prusa came downstairs to the
lunch area and inquired if the committee could give him
an immediate answer. Williams answered no, there was a
lot of material to review, and it would take a substantial
amount of time for him to read and digest the material.6
Stephens, Padilla, and Jones corroborated Williams. Wil-
liams said he told Prusa it would be impossible to give
him an answer the following day because of the amount
of material he had to review and understand. Therefore,
he said he would get back to him to set the time and
date for another negotiating session. Prusa said that the
reason he wanted an immediate answer was because he
understood Williams demanded an answer from the
Company the day after the meeting at Ed's. No one from
a Prusa's claim that Williams promised to give him a reply by 6
o'clock the next morning is not credited However, even if it were cred-
ited, Prusa testified that he knew Williams was joking and did not expect
him to call at that hour but anticipated he would receive the Union's
reply sometime during the next day This expectation was not shown to
have been warranted by any other statements or other evidence , even as-
suming Williams jokingly promised to call Prusa at 6 a in I note that
Jones testified Williams told Prusa he would get back to him in a day or
two Jones also stated that he left near the end of the conversation to
attend to personal needs The use of the phrase "a day or two" does not
reflect a sense of immediacy, contrary to Respondent's position Jones'
testimony was not sufficiently clear to find that Williams promised to
give Prusa an immediate answer In fact, the credited testimony clearly
indicates that Williams informed Prusa that extensive study of the propos-
al was necessary and that immediate resolution of the matter was not in
the offing
UNION TERMINAL WAREHOUSE 855
the Company testified that he or she told the union nego-
tiating committee there was a particular need for the
Union to give the Company an immediate response. The
Company did indicate that it wanted to get the contract
resolved quickly at this meeting but no specific exigency
for such action was presented, and it is not demonstrated
that this expression was more than a mere bargaining
ploy. The change in position from Etheridge's previous
expression of no need to rush because the Company was
still negotiating with the Union representing its truck-
drivers was not shown to have been necessitated by any
business contingency . Prusa left and the union negotiat-
ing committee remained for awhile longer reviewing Re-
spondent's proposals and discussing Williams' perception
that they had to compromise and revise their proposals
by making counteroffers to the Company.
I find the version of this meeting given by Williams to
be the most credible based on demeanor. His account
was convincingly corroborated by current employees.
4. Events of 11 October
Williams received a message that Prusa telephoned
around 10 or 11 October . That was the only message
that Williams received from any official of the Company
around that time . Williams returned the call during those
dates, but Prusa was not in . Williams left a message.
Prusa testified that because Williams failed to call him
during the morning of 3 October, he telephoned Wil-
liams late that morning and made three other attempts to
reach Williams that week . He left it message at the union
hall. Prusa stated that he never received a message that
Williams called him.
According to Prusa, shortly after the 2 October meet-
ing, he decided to prepare what he referred to as an "im-
passe letter ."7 The letter was mailed to the Union on
r The letter reads
Some time ago, you indicated that the negotiations between Union
Terminal Warehouse and Local 598 had reached an impasse Since
then , Union Terminal Warehouse has continued to take the initiative
in our negotiations with Local 598 in the hope that we could con-
vince Local 598 that our proposals are necessary to address the com-
petitive problems we face now and in the future and ensure the job
security of our employees However, negotiations have continued to
be fruitless , with Local 598 continuing 1o stonewall the negotiations,
refusing to make any meaningful changes from its initial proposals
At our meeting on October 2, 1985, we presented you with our
final offer You and Tim Williams indicated at that time that you
could neither accept nor reject our offer, but would have to take it
to Joe Campbell We were told, however, that we would receive a
response from Local 598 by the next day, Thursday, October 3
It has now been over a week since our October 2nd meeting, and
we have neither received any response to our final offer nor have I
received any response to the telephone calls I have made to Tim
Williams and Joe Campbell in an effort to determine the Union's po-
sition . Therefore, I can only assume that our final offer has been re-
jected and that the Union is not prepared to make any changes in its
proposals
Under the circumstances , Union Terminal Warehouse now agrees
with Local 598 that our negotiations have reached an impasse Ac-
cordingly, this letter is to inform you that effective October 13, 1985,
Union Terminal Warehouse will implement changes in the terms and
conditions of employment of our warehouse employees. The changes
to be implemented are those outlined in the terms of the final offer
that you received on October 2, a copy of that final offer is en-
closed
Friday, 11 October, certified return receipt requested.
The receipt does not reflect the date it was received but
Stephens testified he received it on 14 or 15 October.
The record clearly establishes that before this letter was
mailed, the Company had contacted an employment
office to arrange for temporary employees to replace
unit members in the event its actions precipitated a
strike. A crew of these temporary employees was given
a training session by Respondent a week or two earlier.
On 11 October Respondent had its employees stage
freight in an unusual manner designed to make it easy for
the new and inexperienced crew of temporary employees
to fill orders. This was the first and only time freight
was so arranged. Padilla asked Bullock why the manner
of staging freight had been altered and was informed that
it was an experiment to see if they could find an easier
way to stage freight. He was not told that new tempo-
rary employees might work 13 October. Padilla has been
the union steward for about the last 12 years.
Bullock posted the 11 October letter on a company
bulletin board around 2 p.m. Padilla first noticed the mis-
sive about 4 p.m. that afternoon. This was the initial
notice the Company gave its employees that changes in
terms and conditions of employment were being made.
When several employees reacted angrily to the letter,
and asked him what to do, Padilla advised them to calm
down and wait until he talked to a union official. Padilla
did not attempt to talk with any supervisors about the
letter. Padilla tried to contact Stephens At the Union, but
was unsuccessful. Padilla finally reached Stephens at his
residence on Sunday, 11 October.
5. Events of 13 October
Etheridge testified that on 12 and 13 October, he at-
tempted to reach most of the night shift by telephone to
inform them to report to work at 7 p.m. on 13 October.
Normally, the night shift worked Sunday through Thurs-
day from 10 p.m. to 6 a.m. Occasionally, they would be
asked to report to work earlier than 10 p.m. and would
receive premium pay for reporting early. They had
never previously been asked to report as early as 7 p.m.
The employees were paid time and a half for all work
performed before 10 p.m. under the expired contract.
The Company's proposal had a starting time of 8 p.m.
The starting time for the shift was changed on this date,
according to Etheridge, because Respondent was con-
cerned there would be a strike, and it needed time to call
in the temporary work force that was standing by that
night. Since 13 October, the night shift has started at 7
p.m.
Etheridge determined how many employees he would
need on 13 October and then informed Ray Palacios that
he was not to report to work that night because he was
laid off for lack of work. Etheridge unsuccessfully tried
contacting the seven employees he said he needed that
night but did not call Palacios and tell him to report to
work. Etheridge, Bullock, and Prusa worked the evening
We stand willing to resume negotiations at such time as Local 598
is prepared to make meaningful modifications in its current propos-
als
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of 13 October, contrary to custom. Also contrary to
custom, Respondent hired security guards in the event
the employees struck. The record is devoid of what in-
structions, if any, were given to the guards by Respond-
ent.
The first employee to report to work that evening was
Anton Booth. Booth arrived around 6:30 p.m., got his
timecard, and punched in. He noted that his hourly rate
was reduced on the timecard by almost $2.50. He was
surprised and shocked so he got a cup of coffee and
went to his vehicle to consume it and cool off. He then
reentered the warehouse and, after a few minutes, John
McLeain arrived. McLeain was similarly shocked by the
lower wage rate on his timecard, but neither employee
engaged in any work stoppage. Prusa told McLeain and
Booth they would wait until the rest of the crew report-
ed to work and then have a meeting. Prusa also told
them they would have to ask the Union what was hap-
pening when they asked about the lower wage rate. By
7:20 p.m. no other crew members reported for work,8 so
Prusa told them that because they did not have a crew
and would have to lay them off and, according to
McLeain, "close up." The temporary crew was called
and did work that night. Prusa did not refute McLeain.
McLeain is found to be highly credible. He is a current
employee who testified in an open and forthright
manner. McLeain and Booth both reported for work the
following day at 7 p.m. without incident.
Franklin Mitchell, a current employee who has
worked for the Company about 20 years, was called
early Sunday morning and asked by Etheridge to report
to work that evening at 7 p.m. if he "possibly could." He
replied he would try to get there early. There was no
showing that he or any of the other employees were told
they were required to report at 7 p.m. on 13 October.
Mitchell arrived at the premises at 9 p.m. and found the
gate locked. Respondent locked the gate about 1 hour
after the night shift reported to work and reopened them
at lunchtime. There was a bell near the gate that rings
inside the warehouse. Mitchell noted the presence of
four security guards, one with a dog and someone work-
ing inside the warehouse. This was the first time any wit-
ness saw security guards at the warehouse. Mitchell tried
to open the gate and a guard approached. He asked the
guard what was happening and was told some men in-
structed him to lock the gate, and he did not know how
Mitchell was going to enter. Mitchell saw a coworker,
Fred Johnson, and asked him if there was a problem.
Johnson told Mitchell that the Company had cut their
wages and reduced other benefits. Mitchell went home
and called Etheridge to report he was sick. He did not
inform Etheridge that he reported to work and found the
gate locked. Etheridge replied, "no problem."
Johnson had reported to work at 6:55 p.m. However,
when he noted his timecard reflected a pay cut from
$10.35 to $7.97 per hour, he went home, and telephoned
Respondent . When he was told he was observed at the
premises earlier, he candidly admitted that he was sick
8 As noted below , Johnson came to the warehouse at 6.55 p.m but
went home without punching in or talking to any supervisors at that
time
after seeing his timecard. He returned to the warehouse,
heard machinery, and asked a guard to let him in the
locked gate because he worked there. The guard told
him, "no, you don't work here anymore." When he tele-
phoned earlier, he did not tell Respondent that he was
reporting for work later that evening.
Juan Soto, a current employee who has worked for
Respondent since May 1970, was not told by the Compa-
ny to report for work at 7 p.m. on 13 October. He ar-
rived at the gate to the premises by 9:30 p.m. and was
surprised to see the gate locked and the presence of secu-
rity guards. Soto saw two supervisors, Etheridge and
Larry Cobb, waved hello to them, and they returned his
wave. However, they did not pay any more attention to
him. Soto felt they were too far away to question about
the unusual events of that evening. He asked a security
guard about the unusual occurrence, but the guard "re-
fused" to answer him. He stayed over 1 hour outside the
gate , then went home, and telephoned Respondent. Soto
asked Etheridge what happened. Etheridge answered he
did not know and told Soto to ask the Union. Soto told
Etheridge he called because he did not want to be in
trouble and was told he was not in trouble.
Tony Calsadillas, a 6-year employee of Respondent,
who had not been contacted to report to work early, re-
ported to work on 13 October about 9:45 p.m. when he
was stopped by Soto who informed him they were
locked out. Calsadillas went to the gate and found it
chained and padlocked. He stood there until a guard
came over and asked if he could help him. Calsadillas
told the guard he worked there and the guard replied,
"not tonight." He did not report to work the next day. It
was his understanding that he was laid off until he was
contacted by Respondent.
Most of the employees, who normally would have
worked 14 October, reported for work at 7 p.m. that
evening without incident. As noted above, since 13 Octo-
ber, the night shift has reported to work at 7 p.m. Al-
though the proposed starting time for the night shift was
8 p.m. The General Counsel contends that in addition to
this change, Respondent has instituted the following
changes since 13 October:
Reduced the time period wherein an employee
would retain seniority during lay-off from 24
months to 12 months.
Increased the lay-off time required before an em-
ployee could exercise bumping rights from 30 days
to 90 days.
Gave Respondent discretion to grant 30-day trial
period to employees in a newly bidded position, and
took away employees' right to such trial period.
Reduced reporting pay from 8 hours to 4 hours.
Reduced the minimum number to required hours
which an employee had to be paid while working in
a higher-paid classification.
6 Changed the time period in which employees
would receive time-and-a-half and required 8 hours
work before payment of time-and-a-half.
Deleted the pay premium for the swing and
graveyard shifts.
UNION TERMINAL WAREHOUSE 857
Instituted an earlier reporting time for the swing
and graveyard shifts.
Deleted four holidays: Washington's Birthday,
employees' anniversary date, birthday of employees,
and the Good Friday.
Respondent increased, from 30 days to 90 days,
the time necessary for an employee to work before
becoming eligible for holiday pay.
Reduced, from 15 days to 10 days, the time
period during which an employee on lay-off would
receive holiday pay if a holiday occurred during
lay-off.
Reduced holiday pay from 2-1/4 times to double-
time for hours worked over 8.
Reduced to time-and-a-half that portion of a shift
which extended into a holiday.
Increased a 1500-hour qualification period for va-
cation to 1800 hours, provided for 3 weeks vacation
after 10 years rather than after 7 years, and deleted
the former benefit of 4 weeks vacation after 15
years.
Reduced the guaranteed vacation pay from 48
hours per week to 40 hours per week.
Reduced pension fund contribution from 1 month
contribution if 1 day worked in that month, to con-
tributions only on the basis of actual days worked.
Reduced sick leave from 5 days to 3 days with
payment commencing for sick leave only on third
day of leave.
Increased the time required to qualify for sick
leave.
Reduced the time period in which grievances
could be filed to 5 days, and provided that the cost
of arbitration transcript be split between the parties
rather than borne by the requesting party.
Reduced from 24 to 12 months, the time on leave
of absence during which employees accrued seniori-
ty.
Reduced wages approximately $2-an-hour, and a
two-tier wage scale instituted
Deleted the maintenance of benefit provision
from the health and welfare clause.
There is no indication that the parties have negotiated
since 2 October. I find these changes involve terms and
conditions of employment that are subject to mandatory
bargaining.
C. Analysis and Conclusions
1 The alleged impasse
It is undisputed that Respondent unilaterally imple-
mented its proposal of 2 October. The only difference
between its proposals and the unilateral changes is that
the proposal was for the night shift to start at 8 p.m., and
the actual change was to start the night shift at 7 p.m.9
9 The complaint did not specifically allege that the unilateral change in
the starting time for the night shift to 7 p in , a starting time not con-
tained in the Company's proposals, was violative of Section 8(a)(5) of the
Act The change in hours was referred to in the amendment to the com-
plaint that was offered without objection This allegation was fully and
fairly tried and is reasonably encompassed in the complaint's allegations
It is well settled that the unilateral implementation of
proposals absent an impasse and absent notice to the
Union constitutes a refusal to bargain in violation of Sec-
tion 8(a)(5) of the Act. NLRB v. Katz, 369 U.S. 736
(1962). As held in NLRB v. SAC Construction Co., 603
F.2d 1155, 1156-1157 (5th Cir. 1979):
The duty to refrain from making unilateral changes
in those employment conditions subject to mandato-
ry bargaining after termination of an existing con-
tract derives from the employer's statutory duty to
bargain collectively, because such changes [absent
impasse or other exceptions] are tantamount to a re-
fusal to negotiate.
Respondent argues that the parties were at a bargain-
ing impasse on 2 October and thus it could and did legal-
ly implement its offer. If a genuine impasse is reached,
the duty to bargain becomes dormant until changes in
circumstances raise the possibility that agreement may be
reached. Providence Medical Center, 243 NLRB 714
(1979). Impasse is defined as follows:
A genuine impasse . . . is synonymous with a dead-
lock: the parties have discussed a subject or subjects
in good faith, and, despite their best efforts to
achieve agreement with respect to such, neither
party is willing to move from its respective posi-
tion. . . . Once a genuine impasse is reached, the
parties can concurrently exert economic pressure on
each other: the union can call for a strike; the em-
ployer can engage in a lockout, make unilateral
changes in working conditions if they are consistent
with the offers the union has rejected, or hire re-
placements to counter the loss of striking employ-
ees. Such economic pressure usually breaks the
stalemate between the parties, changes the circum-
stances of the bargaining atmosphere, and revives
the parties' duty to bargain.
Hi-Way Billboards, 206 NLRB 22, 23 (1973), enf. denied
500 F.2d 181 (5th Cir. 1974). However, as stated by the
Board, "Until the collective bargaining process has been
exhausted, no impasse can occur." Excavation-Construc-
tion , 248 NLRB 649, 650 (1980).
In determining whether the negotiations are dead-
locked, a number of factors are considered. Some of
these factors were stated by the Board in Taft Broadcast-
ing Co., 163 NLRB 475, 478 (1967), pet. for review
denied 395 F.2d 622 (D.C. Cir. 1968), as follows:
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 negotia-
tions, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
of failure to bargain in good faith I therefore will consider whether this
admitted unilateral action was violative of the Act
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
deciding whether an impasse in bargaining exist-
ed.io
Applying these indicia of impasse to the credited facts
of this case, I find that there was no impasse. If there
was an impasse, it had to arise at or after the 2 October
meeting and before 11 October. At the outset, I note
there has been no allegation that Respondent engaged in
bad-faith bargaining before it unilaterally implemented its
proposals. There was no strike or call for a mediator,
and there is no indication that the Union consulted the
employees about a strike. Respondent contends that the
Union threatened strike action, but the credible evidence
does not support this claim. Even if the claim was sup-
ported, the threat of strike was allegedly made before 2
October, and the Union's willingness to meet and negoti-
ate subsequently, removed any vestige of impasse raised
by the threat. Marriott In-Flite Services, 258 NLRB 755
(1981), cert. denied 464 U.S. 829 (1983).
Williams' failure to reply to Respondent's offer of 2
October within a couple of days does not demonstrate
union intransigence , stalling , or refusal to negotiate in the
circumstances of this case. It is undisputed that Ether-
idge told Williams that the Company did not want to
rush negotiations because it was still negotiating with the
truckdrivers' Union and feared that substantially different
contracts between the Union and the truckdrivers could
result in a strike. There is no persuasive evidence that
the situation substantially changed on 2 October or
thereafter and no evidence the truckdrivers' contract
concluded. Respondent's behavior on 2 October was not
shown to be other than a bargaining posture. Economic
or other business considerations were not advanced as
the basis for the request to quickly settle the negotia-
tions . The change in posture was contemporaneous with
Prusa's entry into the negotiating arena, and he may
have a different style of bargaining than Etheridge. In
fact, the Union's calling in of Williams, when it per-
ceived Stephens was not as effective as desired in
moving the negotiations toward a settlement is indicative
of a willingness and desire to negotiate. Compare Briar-
cliff Pavilion for Specialized Care, 260 NLRB 1374 (1982).
10 Another compendium of factors to be considered in determining if
an impasse exists is contained in The Developing Labor Law, 169-171 (2d
ed. Supp 1982- 1984), which reviews the Board 's decisions as taking into
account the following:
1. Whether there has been a strike or the union has consulted the
employees about one A strike does not necessarily create an impasse
and may break one
2. Union intransigence , stalling , outright refusal to negotiate, or
other bad-faith conduct
3. Fluidity of position
4 Continuation of bargaining
5 Statements or understandings of the parties concerning impasse
6 Union animus evidenced by prior or concurrent acts
7 The nature and importance of issues and the extent of differ-
ences or of position
8. Bargaining history
9 Demonstrated willingness to further consider the issue
10 Duration of hiatus in bargaining meetings.
I 1 Number and duration of bargaining sessions
12 Whether and how long the negotiations have been subjected to
mediation
13 Other actions inconsistent with impasse [Citations omitted.]
The change in tactics on 2 October was mirrored by
Respondent's action thereafter when it posted the notice
of implementation of its proposal without affording the
Union an opportunity to reply. The Union was not in-
formed of the matter until after the changes were imple-
mented, and it was not afforded an opportunity to re-
spond prior to implementation. There was no basis for
believing that the Union would not reply for, as Prusa
testified, "I have known [Williams] always to keep his
word." Williams did promise a reply after extensive
study of the Company's proposals and consultation with
his boss. Respondent did not advance any predicate for a
change in this understanding.
In fact, Williams thought he had an agreement in prin-
ciple and that the parties were just going through the
motions of continuing negotiations to permit him the op-
portunity to persuade the employee members of the
Union's negotiating committee that they had to compro-
mise . Respondent did not clearly disabuse him of this
belief, for it failed to clearly reject his proposal that they
agree to the Association contract after the informal
meeting at Ed's. Respondent, as found above, also failed
to clearly notify the Union that it changed its position
that there was "much more room for discussion." Re-
spondent points to Stephens' testimony that Williams
asked the Company about the settlement he discussed
with them the preceding week, and Respondent present-
ed Stephens with the summary of their original proposal.
Williams was never told that this action was not in ac-
cordance with his suggested game plan , and there was
no clear demonstration by any evidence, credible or oth-
erwise, that Williams knew the contents of the docu-
ments or appreciated their claimed significance. I find,
therefore, that there was no contemporaneous under-
standing by the parties that they had reached an impasse.
Another factor mitigating against finding an impasse is
the Union's demonstrated willingness to compromise ex-
emplified by the modification of its original proposals
during the meeting at Ed's including a willingness to
modify the night shift's starting time . Further, assuming
arguendo that Williams understood that the Company re-
jected the Association agreement by its actions of 2 Oc-
tober, he only reacted on 2 October to indicate a need to
study the proposals to consider their acceptability. At no
time on 2 October or thereafter did Respondent claim
Williams indicated their proposals were totally or partial-
ly unacceptable. The Union indicated it would continue
bargaining after Williams had the opportunity to digest
and study Respondent's proposals. The Union did not
inform Respondent on or after 2 October that its propos-
als were not accepted or it would not make additional
counteroffers.
Respondent claims that Stephens stated that they were
at an impasse on 12 August. This claim, as indicated
above, was not credited. Assuming Stephens did make
the statement, subsequent events ended any impasse that
may have existed on that date. The parties continued to
negotiate, and Respondent admitted to Stephens on 12
August there was plenty of room for movement. Re-
spondent did not explain what had occurred in the inter-
vening time to eliminate the "room for discussion." That
UNION TERMINAL WAREHOUSE 859
Respondent did not consider Stephens' statement to
create impasse is clearly demonstrated by Prusa's testi-
mony that he thought an impasse would occur on 2 Oc-
tober. He never clearly detailed the predicates for this
feeling. The Company, during this meeting, did become
very aggressive and accusatory during the negotiating
session, but such action does not necessarily indicate im-
passe. Rather, it may be characterized as a tack of pro-
ceeding with its "best efforts to achieve agreement." Hi-
Way Billboards, supra, 206 NLRB at 23. By its own
action, Respondent failed to create an impasse for the
Union indicated a willingness to consider its proposals.
Compare Tomco Communications, 220 NLRB 636 (1975),
and Merrell M. Williams, 279 NLRB 82 (1986). About
the time of this meeting, and well before the 11 October
letter was mailed to Stephens, who Respondent knew
was not the Union's chief negotiator, the Company con-
tacted a temporary employment service to provide tem-
porary warehousemen. This contact may well have been
made prior to 2 October. This contact is a factor to be
considered in determining if there was an impasse and
whether Respondent was engaging in good-faith bargain-
ing at the time the alleged impasse occurred . Also, Re-
spondent knew of no union meeting called to consider a
strike at any time here pertinent.
The bargaining history of the parties does not clearly
indicate the presence or absence of an impasse in this
case. This appears to be the first time the parties negoti-
ated individually. There is no indication that Respondent
actively participated in the prior negotiations conducted
between representatives of the Association and the
Union. There is no indication that Respondent was a rep-
resentative of the Association at any time or did more
than merely sign the "pattern" agreement. The parties
appear to have had a peaceful history in their past deal-
ings, but this initial change of roles may have altered
their relationship. There was no indication of how many
bargaining sessions the Association and the Union tradi-
tionally had before reaching agreement in past negotia-
tions. The pattern of negotiations established during cur-
rent bargaining was long hiatuses in meetings and con-
tacts. Therefore, the 8-day lapse between 2 and 11 Octo-
ber fails to establish the existence of an impasse. In any
event, a determination based on past history in these cir-
cumstances is found to be too speculative and unwarrant-
ed.
The 2 October meeting was only the fifth negotiating
session in the 4 months the parties had been meeting. Al-
though there have been circumstances where impasse
arose after so few meetings, Prusa admitted Respondent
anticipated and planned for protracted negotiations based
on the nature of its demands. The Company failed to
produce any probative evidence why this expectation did
not still obtain on or after 2 October. The circumstances
extant on 2 October, as noted above, indicated the Union
was willing to compromise, meet and confer, and consid-
er further proposals. The failure of Williams to quickly
give Respondent an answer has been shown to be a mis-
understanding at most and does not rise to intransigence.
As noted above, the failure to respond quickly was indic-
ative of both parties' behavior throughout their negotia-
tions and is consonant with the understanding that Re-
spondent was not in a rush to conclude negotiations due
to the pendency of the truckdrivers' negotiations and the
demands they placed on Etheridge.
Assuming, arguendo, that Respondent clearly commu-
nicated to the Union that its proposal was its final offer
on 2 October, the Union was not afforded a reasonable
opportunity to respond. The posting of the 11 October
letter that afternoon was not claimed to be notice to the
Union or an attempt at further negotiations. Also, as
noted above, Respondent never clearly informed the
Union that its proposal that the Association agreement
be adopted was rejected nor that prospects for conclud-
ing an agreement had been exhausted. SGS Control Serv-
ices, 275 NLRB 984 (1985).
The credited testimony of Jones and Padilla that
during the caucus on 2 October Williams told them they
needed to compromise consonant with his understanding
of the agreed-on plan is indicative of the absence of im-
passe. This action followed recent union concessions.
The Union did not inform Respondent that it would
never agree to a contract more favorable to Respondent
than the Association agreement. Thus, considering all the
factors here pertinent, I conclude there was no impasse
as of 2 October. As of that date, and subsequently, there
was no basis for Respondent to assume that further nego-
tiations would be fruitless. I also find that Respondent
did not have: a "reasonable belief" that impasse had been
reached or that it could lawfully take unilateral action.
Electric Machinery Co. v. NLRB, 653 F.2d 958 (5th Cir.
1981). Other than Williams' silence between 2 and 11 Oc-
tober, Respondent advanced no persuasive reason why it
considered negotiations to be at an impasse. Considering
the totality of the circumstances, I find that Respondent
bargained in bad faith and violated Section 8(a)(5) and
(1) of the Act when it unilaterally implemented its pro-
posals and changed the night shift's starting time to 7
p.m.
2. The alleged unlawful lockout
Respondent asserts that the evidence fails to establish
that it locked out employees on 13 October and, in the
alternative, if such a lockout is found, that it was not ille-
gal because it followed a bargaining impasse. Respondent
argues that even if no impasse is found, its actions were
lawful under the circumstances because they were a de-
fensive reaction to an anticipated strike. Based on the
credited testimony and other evidence of record, I find
that these arguments are unpersuasive.
The initial question is whether Respondent locked out
employees on 13 October. A lockout occurs when an
employer, "for tactical reasons . . . refuses to utilize [its]
employees for the performance of available work."
Robert A. Gorman, Basic Text on Labor Law Unioniza-
tion and Collective Bargaining St. Paul, Minnesota (West
Publishing Co. 1979). Although such a "refusal" is not
clear at first blush, consideration of the facts strongly
point to such a finding. The Company admitted that it
contacted an employment agency, staff control, at a time
when the Union did not have an opportunity to respond
to what Respondent denominated its final offer. Re-
spondent took this action with the knowledge that the
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union had not requested the membership to vote on the
Company's proposal or a strike. Etheridge knew the
Union's procedures normally required a vote be taken
before a strike is called. Furthermore, there is no history
of strikes or other adverse economic action by the Union
against Respondent.
The Union was not afforded the opportunity to re-
spond to the Company's letter of 11 October that indi-
cated Respondent was unilaterally implementing its pro-
posals. See Yore Cinema Corp., 254 NLRB 1288 (1981).
The Company's failure to permit the Union an opportu-
nity to respond to the letter and thus determine if the
letter resulted in further bargaining supports the conclu-
sion that the unilateral changes in working conditions
and lockout were accomplished in bad faith, for it indi-
cated the Company was not interested in the Union's re-
sponse.
About 3 October, Respondent had the temporary em-
ployees from staff control come to the warehouse to
practice. There was no showing that temporary employ-
ees were hired or placed on standby to work the day
shift about 14 October. If in fact a strike was anticipated,
the record is silent as to why similar precautions were
not necessary for the day shift. This failure further brings
into question the assertion that the lockout was defensive
and in furtherance of legitimate business ends. It hired 12
temporary employees. It was not until 12 and 13 October
that Respondent decided that it would need only seven
of its permanent employees to work the night shift. It
then tried, with only partial success, to contact those em-
ployees to ask them to report for work at 7 p.m. Even
though it claimed to need seven employees to work the
shift, Etheridge only contacted Mitchell, Booth,
McLeain, and Johnson. Mitchell indicated that he would
try his best to get in by 7 p .m. Respondent failed or was
unsuccessful in contacting Soto, Calsadillas, and Car-
rasco, yet it called Palacios and told him he was laid off
because he was not needed that evening. Thus, Respond-
ent could only expect three or four employees to report
for work at 7 p.m. on 13 October. Respondent failed to
show that when employees are requested to report to
work early, they are required or expected to come early.
Mitchell clearly did not feel constrained to report at 7
p.m., indicating that employees had some options when
or if to report early in response to such requests. Re-
spondent failed to dispel this impression or clarify the
matter. Three of the four employees that might be ex-
pected to report at 7 p.m. did come to the warehouse.
Johnson left but then called Respondent and explained
why he left. Respondent had no basis to claim or reason-
ably believe its employees were on strike. Two of the
three employees that reported for work at 7 p.m. were
laid off. They were clearly temporarily replaced that
evening.
Etheridge's failure to contact several employees to
inform them to report to work early on 13 October cre-
ated the probability that they would report at their usual
time . This probability was supported by the fact that
three of the four employees contacted to report early did
come to the warehouse, further indicating the absence of
a strike. Additionally, there were no pickets or other in-
dicia of a strike. The claim that Williams threatened a
strike weeks earlier was not credited. However, even if
credited , the hiatus in time between the alleged threat
and Respondent 's unlawful action of 13 October, without
any indication that the Union was doing more than mere
posturing during negotiations , fails to warrant a different
conclusion. Contrary to established procedure, Respond-
ent locked the gates or kept the gates locked at and
around the expected reporting time for these employees.
Two of these employees were told by guards hired by
Respondent , i.e., its agents , that they were no longer
working there or were not working that night. The em-
ployees could reasonably assume the guards were acting
and speaking for Respondent and therefore were agents
within the meaning of Section 2(2) of the Act. Communi-
ty Cash Stores, 238 NLRB 265 (1978); Corrugated Parti-
tions West, 275 NLRB 894 (1985). This expectation of re-
liance on the guards' apparent authority to act for Re-
spondent is particularly true in this case. The Company
expected or should have expected the employees sched-
uled to arrive around 10 p.m. and to come in contact
with the guards. It apparently ratified the guards' actions
by observing employees at the locked gate without in-
quiring why they failed to come in to work. Etheridge
clearly saw one or more of these employees at the
locked gate but did not inquire why they were there or
take any action to let them in. There was no evidence
that the employees engaged in a slowdown or other re-
taliatory economic action. The employees' failure to ring
the bell or ask the guards to get a supervisor, under
these circumstances, where others were clearly doing
their work and two of their number were told they
would not work that evening or at all, does not raise
their action to a failure to report to work or reduce Re-
spondent's action to less than a lockout. The failure to
ring the bell at a time when the gates were customarily
open and several employees were or should have been
expected to report for work, in light of the guards' stte-
ments and actions, is not a withholding of services by the
employees. Also, the failure to ring the bell occurred
after these employees had been replaced.
The Respondent has the burden of showing that there
was no lockout or that such action was in anticipation of
a critically timed work stoppage. Carlson Roofing Co.,
245 NLRB 13 (1979). I find that, although Respondent's
claim of economic and other business considerations may
be called a close case, the evidence in support of the
claim lies solely within Respondent's grasp and it failed
to demonstrate with the requisite specificity and credibil-
ity actual or reasonably perceived need or threat. What
the evidence demonstrates is that Respondent laid off or
foreclosed access to its plant for the majority of the shift
in actions taken to support the unlawful unilateral imple-
mentation of its proposal to change the shift time to 7
p.m These actions are beyond the allowable ambits of
American Ship Building Co. v. NLRB, 380 U.S. 300
(1965), and NLRB v. Brown Food Stores, 380 U.S. 278
(1965), which holds that employers are permitted to lock
out employees and temporarily replace them if the ac-
tions are taken to effectuate a legitimate business end. Cf.
Harter Equipment, 280 NLRB 597 (1986). In this case,
the lockout was used to support bad-faith bargaining and
UNION TERMINAL WAREHOUSE 861
is unlawful regardless of whether an impasse had oc-
curred or not. Bagel Bakers Council, 174 NLRB 622
(1969), enfd. as modified 434 F.2cl 884 (2d Cir. 1970);
Joseph Weinstein Electric Corp., 152 NLRB 25 (1965).
Thus, the lockout cannot be found to have been in sup-
port of legitimate business considerations.
I further find that any night-shift employees that were
not laid off or that were told by the guards they would
not work that night were, at the l east , partially locked
out by Respondent's unlawful unilateral action. Molders
Local 155 v. NLRB, 422 F.2d 742 (D.C. Cir. 1971). Cf. as
cited by the General Counsel, Radio Electric Service Co.,
278 NLRB 531 (1986). Respondent failed to show that it
had intended to put to work any of the employees it
failed to contact or failed to clearly require: to report to
work at 7 p.m. on 13 October. It was assured of being
shorthanded at 7 p.m. by its own failure to notify and get
commitments of timely arrival from more than three or
four employees. The Company clearly had available em-
ployees to perform available work and failed to utilize
those employees in furtherance of unlawful actions. Re-
spondent's actions clearly indicate a proscribed motive
and it failed to convincingly demonstrate it would have
taken the action absent the unlawful unilateral implemen-
tation of its proposals. Accordingly, I find Anton Booth,
John McLeain, Franklin Mitchell, Tony Calsadillas, Juan
Soto, Ray Palacios, and Fred Johnson were unlawfully
locked out.
I further find that a lockout that is timed ito occur con-
currently with an unlawful unilateral change in working
conditions and in support of that action is designed to
undermine the Union and is violative of Section 8(a)(3)
and (1) of the Act.
Assuming, arguendo, that the Respondent reacted to a
perceived threat of a strike, or other valid business con-
siderations, the Company created the crises by its own
unlawful action and cannot use such illegal actions as a
bootstrap to justify a lockout. NLRB v. Erie Resistor
Corp., 373 U.S. 221 at 228 (1963). A further indication of
Respondent's bad faith was its implementation of a start-
ing time , 7 p.m., which was different from that encom-
passed in its offer.
The short duration of the lockout does not cure the ill,
for the action was clearly in support of Respondent's un-
lawful unilateral change in working conditions, which I
have found to be bad-faith bargaining, and the lockout
was in furtherance of the avoidance of and designed to
frustrate collective bargaining . In sum , I conclude that
Respondent has violated Section 8(a)(1), (3), and (5) of
the Act when it unilaterally implemented its collective-
bargaining proposals and locked out its night-shift em-
ployees under the described circumstances.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices including bad-faith bargaining
by unilaterally implementing changes in terms and condi-
tions of employment without impasse and unlawfully
locking out its employees on 13 October, I find it neces-
sary to order it to cease and desist and to take certain
affirmative action designed to effectuate the policies of
the Act.
Respondent will be ordered to bargain in good faith
and if an agreement is reached to embody the agreement
in a signed document, and in the meantime to make the
affected employees whole by restoring all their benefits
and by paying them the difference between the amounts
that the employees earned at the reduced rates and the
amounts they would have earned but for Respondent's
violation of the Act and, where applicable, to offer the
locked-out employees immediate and full reinstatement
to their former jobs or, if their jobs no longer exist, to
substantially equivalent positions without prejudice to
their seniority or other rights. It will be further ordered
that Respondent reimburse Anton Booth, John McLeain,
Franklin Mitchell, Tony Calsadillas, Juan Soto, Ray Pa-
lacios, and Fred Johnson, who suffered as a result of its
unlawful actions in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289, 291-293 (1950), together with
interest as computed in Florida Steel Corp., 231 NLRB
651 (1977). Cf. Isis Plumbing Co., 138 NLRB 716 (1962).
The General Counsel requests that the Order include a
visitatorial provision. I deny this request because its in-
clusion has not been shown to be warranted in this case.
CONCLUSIONS OF LAW
1. The Respondent, Union Terminal Warehouse, Inc.,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. General Warehousemen, Local 598, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union has been the exclusive bargaining repre-
sentative of the employees in the following unit appro-
priate for collective bargaining:
All production and maintenance employees,
equipment repairmen, warehouse employees, and
shipping and receiving clerks; excluding office em-
ployees, watchmen, janitors, professional employ-
ees, guards and supervisors as defined in the Act.
4. By refusing to bargain in good faith with the Union
as the exclusive bargaining representative of the employ-
ees in the above-described unit by unilaterally imple-
menting its collective-bargaining proposal while no im-
passe existed and changing the night shift's starting time
to an hour different than that proposed, the Respondent
has engaged and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
5. By unlawfully locking out its employees on 13 Oc-
tober 1985, Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(3) and (1) of
the Act.
6. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edii
II If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Continued
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent , Union Terminal Warehouse, Inc.,
Vernon California , its officers, agents , successors , and as-
signs, shall
1. Cease and desist from
(a) Unilaterally and without bargaining in good faith,
implementing the terms and conditions it proposed as the
collective-bargaining agreement by changing the night
shift's starting time to a time not encompassed in that
proposal.
(b) Locking out its employees on 13 October in sup-
port of its unlawful bargaining position.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached , embody the un-
derstanding in a signed agreement:
All production and maintenance employees,
equipment repairmen , warehouse employees, and
shipping and receiving clerks ; excluding office em-
ployees, watchmen , janitors , professional employ-
ees, guards and supervisors as defined in the Act.
(b) Restore all benefits that it unlawfully changed in
the manner set forth in the remedy section of this deci-
sion.
(c) Respecting the employees unlawfully locked out on
13 October, to those to whom it has not yet done so,
make Anton Booth , John McLeain , Franklin Mitchell,
Tony Calsadillas , Juan Soto , Ray Palacios , and Fred
Johnson whole in the manner set forth in the remedy
section of this decision.
(d) 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.
(e) Post at its place of business in Vernon , California,
copies of the attached notice marked "Appendix." i 2
Copies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent 's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally implement changes in the
terms and conditions of employment for employees in
the bargaining unit described below without first engag-
ing in collective bargaining to impasse. The unit is:
All production and maintenance employees,
equipment repairmen, warehouse employees, and
shipping and receiving clerks; excluding office em-
ployees, watchmen, janitors, professional employ-
ees, guards and supervisors as defined in the Act,
and WE WILL reinstate all the terms and conditions
of employment extant prior to 13 October 1985, the
date we unlawfully changed them, with interest
where appropriate.
WE WILL NOT lock out Anton Booth, John McLeain,
Franklin Mitchell , Tony Calsadillas , Juan Soto , Ray Pa-
lacios, and Fred Johnson in furtherance of our failure
and refusal to bargain in good faith by unilaterally imple-
menting changes in terms and conditions in employment
in an unlawful manner , and WE WILL , where appropriate,
offer these employees immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions , without prejudice to
their seniority or any other rights or privileges enjoyed
and WE WILL make them whole for any loss of earnings
or other benefits resulting from the lockout , less any net
interim earnings , plus interest.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL , as long as General Warehousemen, Local
598, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is your authorized
bargaining representative , continue to recognize and bar-
gain with it in good faith concerning your wages and
other terms and conditions of employment and embody
in a signed agreement any understanding reached.
UNION TERMINAL WAREHOUSE, INC.