American Commercial Barge Lines Co.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 960 (N.L.R.B. 1989)

960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Inland Tugs Division of American Commercial Barge
Lines Company and Seafarers' International
Union of North America , Atlantic, Gulf, Lakes
and Inland Waters District , AFL-CIO. Case 9-
CA-24866
September 29, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 19, 1988, Administrative Law Judge
Claude R. Wolfe issued the attached decision.
Thereafter, the Respondent and the Union filed ex-
ceptions and supporting briefs, and the Union filed
an answering 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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by dealing direct-
ly with employees concerning its method of paying
wages and by unilaterally altering practices with
respect to employee travel to and from their as-
signed vessels. For the reasons stated below, we
agree.
We reject, as did the judge, the Respondent's
contentions that the unit was improperly alleged in
the complaint,3 and that it had no obligation to
bargain with the Union because the latter unlawful-
ly insisted to impasse on expanding the bargaining
unit to include subsidiary Mac Towing's employees
and on the Respondent's continuance of contribu-
tions to illegal trust funds in negotiations for a con-
tract to succeed the 1976-1979 collective-bargain-
ing agreements.4
i 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.
2 We shall modify the judge's recommended Order to require that the
Respondent , on the Union's request , rescind the unlawful unilateral
changes made We shall further modify the Order to provide broad
cease-and-desist language , like that added in American Commercial Lines,
291 NLRB 1066 (1988), hereafter ACL /. See generally Hickmott Foods,
242 NLRB 1357 (1979).
5 We note that the unit question was resolved by the Board in Mac
Towing, 262 NLRB 1331 ( 1982), and followed in ACL I, supra , and that
the units alleged in the complaint , as amended, are identical to those
found appropriate in ACL 1, supra at 1067 fn. 7.
4 No successor agreement has yet been negotiated
In part, the judge premised his rejection of the
Respondent's impasse defense on Administrative
Law Judge Johnston's finding in ACL I that the
Respondent engaged in bad-faith bargaining during
negotiations for successor agreements . Administra-
tive Law Judge Wolfe found that this conduct pre-
cluded impasse , and that therefore the Respondent
had a continuing obligation to bargain with the
Union. Noting that exceptions to Administrative
Law Judge Johnston's decision were pending
before the Board, however, Administrative Law
Judge Wolfe further found that "the existence or
nonexistence of impasse is irrelevant" to the issue
of accumulated time off (ATO) pay because the
issue did not involve a unilateral change but rather
an impermissible evasion of the Respondent's duty
to bargain. Regarding the unilateral change in
travel practices, the judge reasoned , as well, that
"even if impasse had been reached, Respondent
was only privileged to make changes consistent
with offers rejected by the Union."
The Board has reversed Administrative Law
Judge Johnston's bad-faith bargaining finding in its
decision in ACL I. We therefore do not rely on this
ground in affirming the violations found by Admin-
istrative Law Judge Wolfe in this case .5 We find
that, although the Union reiterated its position re-
garding the inclusion of the subsidiary's employees
(i.e., Mac Towing's employees) in the unit as late
as June 1987, and consistently sought to maintain
contributions to its established trust funds, it did
not condition all bargaining on acquiescence to its
position, and, in fact, engaged in protracted bar-
gaining with the Respondent for a contract to suc-
ceed the expired agreement, and met or otherwise
communicated with the Respondent when notified
of proposed changes in employees' wages and
terms and conditions of employment and other
matters potentially affecting employees. In this
connection, the record establishes that the parties
met in response to the Respondent's notification to
the Union of proposed changes in employment
conditions in December 1980, 1981, 1982, and 1984,
and exchanged correspondence regarding these
meetings and proposals. In fact, in a letter to the
Respondent dated January 17, 1985, the Union spe-
cifically requested to be kept advised of intended
and implemented changes in employment condi-
tions. Although there is no evidence regarding
union responses to the Respondent's notification of
The Respondent contends that the Union 's trust funds contravene Sec.
302 of the Labor Management Reporting and Disclosure Act. As dis-
cussed below , we find it unnecessary to resolve this issue.
5 However , we do agree with the judge 's rationale for rejecting the
Respondent 's impasse defense insofar as it relates to the direct-dealing al-
legation
296 NLRB No. 124
AMERICAN COMMERCIAL LINES
intended changes in employment conditions in 1985
and 1986, the record establishes that the parties met
in June 1987, at the Union's request, to discuss the
reorganization of the Respondent. Thus, the Union
did not condition bargaining on the inclusion in the
unit of the Mac Towing employees or the Re-
spondent's continuance of contributions to the
Union's trust funds; and it continued to respond
and meet with the Respondent concerning pro-
posed changes in wages and terms and conditions
of employment. 6 Therefore, we find that the
Union's conduct does not constitute a waiver of its
right to bargain with the Respondent, either in fact
or by operation of law, and does not vitiate the Re-
spondent's obligation to bargain with the Union
rather than employees about changes in the payroll
system and before implementation of the changes
in travel procedures.
Additionally, inasmuch as ATO pay and travel
procedures, including excess travel time compensa-
tion, are mandatory subjects of bargaining and bear
no relation to the expanded unit sought by the
Union or to the Union's trust funds that the Re-
spondent contends are illegal , we find that the
Union's proposals for an expanded unit and contri-
butions to the funds do not provide the Respondent
with a lawful basis for ignoring its bargaining obli-
gation regarding these other subject matters. Cf.
BASF Wyandotte Corp., 274 NLRB 978 (1985),
enfd. 798 F.2d 849 (5th Cir. 1986).7
Finally, in adopting the judge's finding that the
Respondent unilaterally implemented new travel
procedures in violation of Section 8(a)(5) and (1) of
the Act, we do not rely on the judge's interpreta-
tion of the travel provisions in the parties' expired
contract. We do not agree that this provision man-
dates air travel, or even that it specifies that air
travel is the preferred method of transporting em-
ployees to and from vessels. On its face, the provi-
sion stating , "Employees shall use economy fare air
transportation, if available," merely indicates that
employees who travel by air shall do so at econo-
my fares. Notwithstanding our rejection of the
judge's interpretation, however, we conclude that
6 Young & Hay Transportation Co, 214 NLRB 252, 253 (1974), enfd
522 F 2d 562 (8th Cir. 1975), on which the Respondent relies, is distin-
guishable in that there the union "at all times rejected [the employer's]
offer to bargain with the [u]nion " in the certified unit and insisted that it
would bargain only on an "insupportable" multilocation unit basis
° In BASF Wyandotte the union filed an 8(a )(5) charge against the em-
ployer for unilaterally discontinuing an employee benefit The employer
defended its unilateral action on the basis that the terminated benefit vio-
lated Sec . 302 of the LMRDA. In those circumstances , when there was a
direct nexus between the alleged 8 (a)(5) conduct and the employer's
LMRDA defense , the Board considered the Sec 302 arguments and re-
jected them as lacking in merit Conversely, when , as here, there is no
direct link between the Respondent's unilateral acts and direct dealing
and the trust fund provisions which legality the Respondent challenges,
we find it unnecessary to evaluate the Sec 302 defense.
961
other evidence establishes the unilateral change
violation. Thus, the parties' stipulation establishes
that for at least 20 months prior to September 1987,
air travel constituted nearly half of all employee
trips to and from vessels. The sheer frequency of
air travel during that period warrants a finding that
this mode of transportation was favored, and clear-
ly indicates that it had effectively become a term of
employment. After the Respondent announced the
implementation of different travel procedures in
late August 1987, the percentage of employee air-
line trips dropped precipitously, and bus and car
travel rose significantly. Further, the Respondent
characterized its own actions in terms of changing
existing travel practices. Its August 28 memo an-
nounces the institution of "different procedures"
for transport and reimbursement, and its October 7
memo advises employees of its intention to com-
pensate employees for extra travel time (i.e., time
in excess of 6 hours spent traveling) caused by the
inconvenience of the use of alternatives to airline
travel. Despite the contentions to the contrary
made in the Respondent's brief, these memos dem-
onstrate that the Respondent itself considered the
new travel procedures to be changes in the em-
ployees' established terms and conditions of em-
ployment relating to their traveling between the
boats and their residences. Because the Respondent
did not give notice to the Union about these
changes or afford the latter an opportunity to bar-
gain about them, their implementation was unlaw-
ful as alleged in the complaint.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Inland Tugs Division of American Com-
mercial Barge Lines Company, Jeffersonville, Indi-
ana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following as paragraph 1(c).
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the following as paragraph 2(a).
"(a) On request of the Union, rescind the unlaw-
ful unilateral changes regarding employee travel,
and reinstate the policy and practice in effect until
September 21, 1987, concerning employee travel
between their homes and the boats to which they
are assigned."
3. Substitute the attached notice for that of the
administrative law judge.
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail to bargain collectively with
Seafarers ' International Union of North America,
Atlantic , Gulf, Lakes and Inland Waters District,
AFL-CIO, as the exclusive representative of our
employees in appropriate units about changes in
our policy and practice concerning employee
travel between their homes and the boats to which
they are assigned.
WE WILL NOT bypass the above-named Union
and deal directly with employees whom they rep-
resent concerning changes in our pay system.
WE WILL NOT in any other manner interfere
with , restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the National
Labor Relations Act.
WE WILL, on the request of the above-named
Union, rescind the unlawful unilateral changes in
employee travel , and reinstate the policy and prac-
tice in effect prior to September 1, 1987, concern-
ing employee travel between their homes and the
boats to which they are assigned.
WE WILL bargain in good faith with the Union,
as the exclusive bargaining representative of our
employees in appropriate units, concerning any
proposed change in the reinstituted policy and
practice concerning employee travel.
INLAND TUGS DIVISION OF AMERI-
CAN COMMERCIAL BARGE LINES
COMPANY
David L. Ness, Esq.. for the General Counsel.
David W. Miller, Esq., for the Respondent.
Irwin H. Cutler, Esq., for the Charging Union.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
proceeding was litigated before me at Louisville, Ken-
tucky, on March 15, 1988 , pursuant to an amended com-
plaint issued February 29, 1988, after the filing and serv-
ice of unfair labor practice charges on November 18,
1987. The complaint alleges Inland Tugs Division (Re-
spondent or IT) violated Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act) by unilaterally
implementing new travel practices and bypassing the
Charging Union (the Union) and dealing directly with
employees represented by the Union. Respondent denies
the commission of unfair labor practices and raises sever-
al affirmative defenses.
Upon the entire record , and after considering the able
posttrial briefs of the parties, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent Inland Tugs is a division of American
Commercial Barge Lines Company, a corporation, and
has an office and principal place of business at Jefferson-
ville, Indiana , and is engaged in the transportation of
freight and commmodities . During the 12 months pre-
ceding the issuance of the complaint, a representative
period , Respondent , in the course and conduct of the
above described business operations , derived gross reve-
nues in excess of $50,000 for the interstate transportation
of freight from points within the State of Indiana to
points outside the State of Indiana . Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is now , and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE BARGAINING UNITS AND REPRESENTATION
The amended complaint alleges the following to be ap-
propriate units for purposes of collective bargaining.
Unit A:
All head deckhands , deckhands, cooks, trainee
engineers and tankermen employed by [Respondent
in its River Division ] on boats owned , operated or
chartered on a bareboat basis by it, excluding pro-
fessional employees , guards and supervisors as de-
fined in the Act, and all other employees. This rec-
ognition shall not apply to bareboat charters to
other operators nor to crews of towboats of subsidi-
ary of affiliated companies.
Unit B:
All engineers and assistant engineers employed
by [Respondent in its River Division ] on boats
owned , operated or chartered, on a bareboat basis
by it, excluding professional employees , guards and
supervisors as defined in the Act, and all other em-
ployees . This recognition shall not apply to bare-
boat charters to other operators nor to crews of
towboats of subsidiary or affiliated companies.
Unit C:
All chief engineers , head deckhands, cooks, train-
ee engineers and tankerman employed by [Respond-
ent in its Canal Division] on boats owned, operated
or chartered on a bareboat basis by it, excluding
professional employees, guards and supervisors as
defined in the Act, and all other employees. This
AMERICAN COMMERCIAL LINES 963
recognition shall not apply to bareboat charters to
other operators nor to crews of towboats of subsidi-
ary or affiliated companies.
These unit descriptions are identical to those found ap-
propriate by Judge Johnston in American Commercial
Lines, 291 NLRB 1066 (1988 ), and followed by Judge
Schwarzbart in American Commercial Lines, 296 NLRB
622 (1989).
Respondent denies the unit allegations of the amended
complaint , and affirmatively states the following unit is
set out in the latest contract between Respondent and the
Union , and is appropriate for purposes of collective bar-
gaining:
All head deckhands, deckhands, cooks, trainee engi-
neers and tankermen on boats owned , operated or
chartered on a bareboat basis by the Company
when the crews on board such boats are employees
of and on the payroll of the Company . This recog-
nition shall not apply to bareboat charters , to other
operators nor to crews of tugboats of subsidiary or
affiliated companies.
This unit description advanced by Respondent is identi-
cal to that set forth in the Union 's latest contract with
Respondent 's River Division expiring December 30,
1979, and includes the same employees as Unit A alleged
in the complaint . I conclude that Respondent therefore
concedes the appropriateness of Unit A. Moreover, I per-
ceive no reason in the record to second-guess Judge
Johnston 's unit determinations which were based on the
Board 's decision in MAC Towing, 262 NLRB 1331
(1982), and the last collective-bargaining agreements be-
tween the parties . Respondent agrees that the Union has,
since about 1963, been the exclusive representative of the
unit Respondent sets forth as appropriate . This amounts
to an admission the Union represents the employees in
Unit A. Judge Johnston found the Union represented the
employees in all three units, and I will adopt and rely on
that finding for the purposes of this decision.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Paragraph 8 of the amended complaint alleges as fol-
lows:
On or about July 17, 1987, Respondent acting
through Chris Brinkop , bypassed the Union and
dealt directly with its employees in the Units by
mailing letters and ballots to all employees asking
them to vote concerning a change in Respondent's
pay system.
IT employees usually work 30 consecutive days on
board boats . They then are off work for a 15-day period,
at the end of which time they reboard for another 30
days . Prior to the time of the conduct alleged , employees
received weekly paychecks during the 30-day working
period, but none during the 15 days they were off. For
several years prior to 1987, during regular employee
meetings which are held two or three times a year with
25 to 30 deckhands in attendance , there had been inquir-
ies from employees regarding the possibility of receiving
paychecks during the period they were not at work. In
1981, Respondent polled IT employees to determine
their interest in a paid accumulated time-off program
(ATO) under which they would receive weekly checks
at two-thirds of their wages, the remainder to be placed
in escrow , during the 30 days they worked, and weekly
checks at two-thirds earnings during the 15 days they
were not working . A majority of the employees noted
against participation in the program in 1981. Neverthe-
less, some employee interest in the program continued,
and it was discussed at the regular employee meetings in
1987. Chris Brinkop, vice president of River Operations
for American Commercial Barge Lines, conducted these
1987 meetings . He credibly testifies that during a June
1987 meeting , when employees inquired what they had
to do to receive ATO pay, he told them a majority of
the employees had to want the program and he would
need a formal request from employees before he could
poll them on the issue . Shortly thereafter, 20 employees
signed and delivered to Respondent a petition reading as
follows:
We, the undersigned employees of Inland Tugs
Company, desirous of receiving our pay in a more
regular manner, do hereby petition for a change in
our payroll procedure to the effect that part of our
pay is received while we are working and part of it
is paid to us while we are on our time-off. Those
employees working a regular rotation would re-
ceive approximately the same pay each pay period,
whether working or on time-off. Those working in
excess of a regular rotation desire the option of sell-
ing the extra days in addition to receiving regular
checks.
On July 17, 1987, Brinkop issued the following letter
with ballot attached:'
To: All Inland Tugs Deckhands , Lead Deckhands
and Cooks
Re: ATO Pay
At recent deckhands' meetings there has been
much interest expressed in ATO pay for Inland
Tugs Division employees . I have been petitioned to
bring this matter to a vote.
ATO pay is basically a system whereby employ-
ees can count on a regular paycheck whether they
are on or off the vessel provided that they have
days coming to them . Let me cite an example of
how this system would work. Take for instance a
lead deckhand whose current rate of pay is $80.50
per day . Under the current system that leadman
would receive checks for the thirty days he was on,
totaling $2 ,415.00 and then his checks would stop.
Under the ATO system this person 's wages
would be, paid at the rate of $53.67 per day for
forty-five days for a total of $2 ,415.15. Sanitary and
overtime pay would continue to be paid at the full
' The ballot requires a printed name , date, and signature , and contains
two choices " I vote in favor of ATO pay," or "I vote against ATO
pay
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rate on the checks while you are on the vessel. In-
centive pay would not be affected.
There are many advantages to this system:
(1) You have a regular paycheck you can count
on while you are off on ATO. (Checks would cease
when you run out of ATO days and you do not
catch a vessel.)
(2) When you have days built up you can sell
those in excess of fourteen that you have banked.
(3) If you work long hitches and/or take a short
time off you have those days banked and do not
lose them , as you currently do. In other words, you
can work extra to build up time off to be taken in
the future, or days can be sold for a major pur-
chase. The trade off is that you defer a portion of
your pay to be paid to you while you are off the
vessel.
Attached is a ballot for you to mark. Please
return this to me as soon as possible with your pref-
erence indicated . All ballots need to be returned to
me by September 15 so that if the change is voted
in, we can complete the administrative procedures
necessary prior to the implementation of this pro-
gram.
On September 16 I will count all ballots and the
majority will rule. I will notify everyone shortly
thereafter of the results . It is important that you
voice your opinion because the results of this poll
will affect you.
I realize that it is difficult to explain this system
in a letter . However, the crew dispatchers , the port
captains or I will be happy to answer any questions
that you might have at any time.
The parties stipulated , and therefore I find , that Brinkop
mailed and/or distributed the letter and ballot without
prior notice to or consultation with the Union. A majori-
ty of the employees voted in favor of the ATO program.
Brinkop , on October 7, 1987, issued a memo to the deck-
hands and cooks notifying them ATO had been ap-
proved and would be implemented on January 1. It was
implemented January 1, 1988, and remains in effect.
There is no allegation or contention that the implementa-
tion or maintenance of the program is an unfair labor
practice.
The basic principles applicable to this matter have
been settled almost from the Act's beginnings . Thus, the
Supreme Court stated in NLRB v. Jones & Laughlin Steel
Corp.,2 that "the obligation to treat with the true repre-
sentative was exclusive and hence imposed the negative
duty to treat with no other," and repeated this holding in
Medo Photo Supply Corp. v. NLRB,3 wherein it found
that an employer who negotiated directly with employ-
ees rather than their bargaining representative violated
the Act . This remains the state of the law.4 When Brin-
2301 US 144(1937)
8 321 U. S. 678 , 684 (1944)
See. e g . KrohcA, Wholesale Meats, 270 NLRB 941 ( 1984); Shenango
Steel Buildings, 231 NLRB 586 (1977)
kop outlined the advantages of ATO in his July 17
memo, he was plainly seeking to persuade employees to
select the plan , and thus was bargaining with them. The
General Counsel has set forth a prima facie case that Re-
spondent violated Section 8(a)(5) and (1) of the Act
when it bypassed the Union and dealt directly with em-
ployees by polling them regarding ATO pay, a change
affecting wage computation and therefore a mandatory
subject of bargaining , and a benefit the employees did
not then have.
Paragraph 9 of the amended complaint alleges, in rele-
vant part, the following:
During September 1987, ... Respondent unilat-
erally implemented new practices affecting employ-
ees' travel between their homes and the ports at
which they get on or off the boat to which they are
assigned.
Respondent engaged in the acts and conduct de-
scribed above . . . without prior notice to the
Union and without bargaining to an impasse with
the Union over such acts and conduct and without
having afforded the Union an opportunity to negoti-
ate and bargain as the exclusive representative of
Respondent 's employees with respect to such acts
and conduct and the effect to such acts and con-
duct.
At the hearing , the parties entered into the following
stipulation of facts:
[F]or calendar year 1986 and all of 1987 until on
or about September 1, 1987, crew changes of the
Respondent's employees to and from employees
homes and the boats to which employees are as-
signed were accomplished in the following approxi-
mate percentages : forty-six percent by airline; five
percent by bus; twenty-three percent by crew van;
eleven percent by automobile , which means person-
al automobile or rental car; fifteen percent, which is
port change.
Since on or about September 1, 1987, through the
end of February , 1988, the approximate percentages
are as follows : twenty-four percent by airline; six-
teen percent by bus ; twenty-seven percent by crew
van; eighteen percent by automobile , which is either
personal or rental vehicle; and fifteen percent port
change.
And further stipulate that the Respondent did not
notify the Union or offer to bargain with the Union
before this change in the mode of transportation be-
tween the employees homes and the boats to which
the employees are assigned.
The latest collective-bargaining agreements between
the parties , expiring December 30, 1979, contained a
rather lengthy section entitled Transportation setting out
when and how much crew members would be reim-
bursed for travel expenditures , and specifically reciting:
The Company shall reimburse each employee for
expenses incurred in travelling (sic) between his
AMERICAN COMMERCIAL LINES 965
home and the vessel when relieving or being re-
lieved . Employees shall use economy fare air trans-
portation, if available.
Prior to and during the above agreement's term, em-
ployees arranged their own travel, paid for it, and were
reimbursed . Commencing in 1980, Respondent furnished
employees with prepaid tickets for air travel. In 1982,
Respondent began using crew vans when it appeared ad-
vantageous to so do. Employees who would not fly were
permitted to drive their own vehicle if they so chose.
Anita Sharp, Respondent 's supervisor of crew dispatch-
ing, credibly explained that van usage increased in 1985
because air costs increased and it was cheaper to operate
vans then pay air fare. In 1986 was the first full year that
Respondent operated three vans . Air costs continued to
be high, and Brinkop sent a memo to all crew members5
on August 28, 1987, advising in relevant part:
Due to the spiraling costs of airline travel we are
going to have to look at alternative means of trans-
portation , including buses, trains, vans , and personal
vehicles . This change will mean getting used to dif-
ferent procedures.
As of this time we cannot prepay bus or train
fares . These fares will have to be paid by you and
submitted for reimbursement . We will work with
you to procure wage advances wherever possible.
Please submit your expenses promptly so that we
can get your money back to you.
I encourage any employee who wishes to drive
to a vessel to check with the crew dispatchers to
see if this is an economical alternative.
This memo to crew members was followed by another
on October 7, 1987, stating:
Since we have started using buses and trains for
crew travel we have gotten significant saving in our
transportation expenses. There, of course, has been
some inconvenience to you and I want to thank you
for your cooperation and forbearance . I also want
to assure you that it is our intention to compensate
you for extra time caused by this change in oper-
ation.
Right now I am reviewing every change made
by bus or train and taking into account the time re-
ceived on board a vessel for that day, and time in
transit to arrive at the number of hours pay due to
you. I consider six hours to be an acceptable transit
time whether you are driving or flying . Hours in
excess of this will be eligible for compensation to
you, depending on your hours of compensation on
board for that day. I don 't want you traveling all
day to or from a vessel and getting off or on with
no time!
Please be assured that we want to be fair and
above board with you on this. I don 't want travel
time to cost you either money or ATO time. If you
have any questions about pay you received or didn't
receive, I will be happy to discuss it with you.
B Brinkop testified that "crew members" means lead deckhands, deck-
hands, and cooks
Once again, thanks for your cooperation in help-
ing us to be a more cost effective company.
The cutting back on air travel is contrary to the provi-
sion in the latest collective-bargaining agreement that
"Employees shall use economy fare air transportation, if
available ." Moreover , Brinkop , in his October 7 memo,
propounds a formula by which he will calculate the
wages due employees on days they are in transit and also
spend some time on board. This memo implies that the
travel changes caused employee inconvenience and wage
computation problems . Work-related travel and reim-
bursement therefor are patently terms and conditions of
employment and mandatory subjects of bargaining. So
too are changes that affect wage computations.
The foregoing stipulations and findings of fact are suf-
ficient to establish a prima facie case of a unilateral
change in terms and conditions of employment violative
of Section 8(a)(5) of the Act.
Respondent posits the following affirmative defenses:
1. The bargaining unit in which the Charging
Party has, since on or about October 1979 to the
present , insisted on bargaining is not the unit al-
leged in the Complaint nor the unit embodied in the
most recently-expired collective bargaining agree-
ment with IT and is not the appropriate unit for
purposes of collective bargaining . The Charging
Party's insistence to impasse to bargain in a unit
other than the historically- recognized , appropriate
unit releases IT from any duty to bargain and pre-
cludes a finding of a Section 8(a)(5) violation
against IT.
2. Since on or about 1980, the Charging Party
has repeatedly refused and failed to meet with IT to
engage in collective bargaining , despite repeated
offers by IT to do so, and the Charging Party has
thus waived its right to notice of changes in work-
ing conditions and the opportunity to prior bargain-
ing.
3. Since on or about October 1979, the Charging
Party has engaged in bad faith bargaining with IT,
as reflected in the record in Case No. 9-CA-14657,
et al., and thereby released IT from any obligation
to bargain and precludes a finding or a Section
8(a)(5) violation against IT. The Charging Party's
bad faith bargaining includes, without limitation, in-
sisting to impasse that IT contribute to Charging
Party's sponsored trust funds which are unlawful
under Section 302 of the Act.
4. The bargaining unit alleged in the instant Com-
plaint is contrary to, and inconsistent with, the bar-
gaining unit(s) alleged by the General counsel in all
prior litigation between the Charging Party and IT.
With respect to Respondent 's contention that an im-
passe existed , Judge Johnston specifically found that Re-
spondent engaged in bad-faith bargaining without any in-
tention of reaching an agreement with the Union, and
that this bad-faith bargaining negated the asserted de-
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fense of impasse during bargaining .6 This is consistent
with the well-settled principle that no valid impasse can
exist in the presence of bad -faith bargaining.' Judge
Johnston 's finding of bad-faith bargaining is the law of
the case to date , and, so far as the record shows, this
unfair labor practice remains unremedied . Whether
Judge Johnston was correct in his analysis of Respond-
ent's conduct , and therefore whether there could be a
valid impasse, is a matter for the Board to decide, not
the undersigned , but, even if impasse had been reached,
Respondent was only privileged to make unilateral
changes consistent with offers rejected by the Union.8
The unilateral changes in travel arrangements here com-
plained of was clearly never offered to the Union. Ac-
cordingly, Respondent was not privileged to make the
change . Turning to the direct dealing allegation, I am
persuaded that the existence or nonexistence of impasse
is irrelevant to this issue . This is not a matter of unilater-
al change, but is an impermissible evasion of Respond-
ent's duty to bargain with no one other than the Union
which represents the affected employees . This is all that
is alleged . The change on which the employees voted is
not in issue.
In affirmative defense 3 , Respondent is, in effect,
asking the undersigned to (1) reverse Judge Johnston's
findings regarding the legality of certain union -sponsored
trust funds, and (2) to find on the basis of the record in
Judge Johnston 's case that the Union engaged in bad-
faith bargaining to impasse . These arguments amount to
exceptions to Judge Johnston 's decision which should
more properly be addressed to the Board , and are there-
fore rejected.
Respondent 's contention that the Union insisted on
bargaining in an inappropriate unit is contrary to Judge
Johnston's conclusion that the parties engaged in collec-
tive bargaining in the units urged by Respondent as ap-
propriate , and so found by Judge Johnston . Here again
Respondent is excepting to Judge Johnston 's conclusion,
and the matter was resolved by the Board in American
Commercial Lines, supra.
Affirmative defense 2 posits waiver of the Union's bar-
gaining rights by virtue of its refusal and failure to meet
and bargain with Respondent. In support of this argu-
ment Respondent refers to portions of various docu-
ments . One of these is Judge Johnston 's finding that the
Union , by letter of October 31, 1980 , denied Respond-
ent's request for a bargaining meeting because there were
issues of unit clarification and Respondent 's alleged
unfair labor practice , including bad-faith bargaining,
pending before the Board . Respondent also points to
communications it received from the Union after Judge
Johnston 's decision issued . The extracts from these docu-
ments upon which Respondent relies read as follows:
(1) August 4, 1983 letter from the Union 's Counsel to
Respondent.
You have misread Mr. Sacco's letter of June 29;
he did not invite the company to bargain on the op-
6 American Commercial Lines, supra at 1152.
7 See , a g., United Contractors Inc., 244 NLRB 72, 73 (1979)
8 Royal Himmel Distilling Co., 203 NLRB 370 fn . 3 (1973).
eration of the hiring halls under the Shipping Rules.
He urged your client to remedy its massive unfair
labor practices , including the granting of proper
access to the boats, utilization of the SIU hiring
halls, and payment to the trust funds, and then to
bargain in good faith with the Union. At such time
as the Company remedies its unfair labor practices,
the Union is willing and eager to engage in good
faith negotiations and discuss all mandatory subjects
of bargaining.
(2) Entire statement presented to Respondent by
Union 's counsel on December 7, 1983.
As I stated in my letter of November 12 to Bob
Kilroy, the Union has accepted your invitation to
meet with representatives of Inland Tugs Company
in order to discuss and to receive Company propos-
als regarding changes in wages, hours, and condi-
tions of employment for bargaining unit employees.
We look forward to receiving the company propos-
als and hope that they show a willingness on the
Company's part to make real improvements in the
wages and working conditions of its employees.
By receiving the Company's proposals , by dis-
cussing them , and by making proposals of its own,
Union does not waive its legal position that the ap-
propriate bargaining unit is that which we have
urged before the National Labor Relations Board,
namely, a unit including deck personnel , cooks, and
engineering department employees in one unit to-
gether with employees of MAC Towing. Neverthe-
less, until such time as an appropriate Court has an
opportunity to rule on the merits of the unit deter-
mination , the Union is willing to meet with Inland
Tugs Company in the unit found appropriate by the
NLRB.
As we have stated in the past, however, no
meaningful negotiations or good faith bargaining
can take place until the Company has remedied
those unfair labor practices which are the subject of
proceedings before the Board or its administrative
law judges . We, therefore, urge the Company, as
we have in the past, to correct its past unfair labor
practices and comply with the recommended order
of Judge Johnston. Unless and until the Company
dissipates the effect of its unfair labor practices, the
Company is but continuing its unlawful course of
conduct which began four years ago . We, therefore,
again ask the Company to remedy the ULPs and
comply with Judge Johnston's recommended order.
(3) Extract from January 17, 1985 letter from Union's
Counsel to Respondent 's attorney
The Union continues to demand that the Compa-
ny resume contributions to the trust funds and
remedy the massive unfair labor practices which are
currently pending before the National Labor Rela-
tions Board , including the payment of back wages
to employees and the payment of back contributions
to the trust funds . When that is done, meaningful
negotiations with the Company can be achieved.
AMERICAN COMMERCIAL LINES 967
Preceding this paragraph relied on by Respondent as evi-
dence of a union refusal to bargain are the following in-
troductory paragraphs:
On December 19, 1984, you and other represent-
atives of Inland Tugs Company met with Mr. Sacco
and Mr . Pillsworth as representatives of the Union
at the Union's offices in New Orleans. At that meet-
ing, you handed a written proposal to the Union
representatives to be effective December 31, 1984,
and you received those proposals and outlined the
reasons for the proposed changes. The Union repre-
sentatives restated the Union's position regarding
the trust funds and stated that the wage portion of
the Company 's proposal is not nearly enough.
At the meeting , the Union representatives also
advised that they would reply to your proposal in
writing . It is the Union 's response that the proposed
increases in economic benefits are grossly inad-
equate and insufficient to provide adequate compen-
sation for Inland Tugs Company's employees. We
believe that your proposed wage increases should
be implemented , plus much more . It must be re-
membered that your client operates one of the larg-
est, if not the largest , towboat companies on the
inland river system , and yet the wages paid are
among the lowest.
The closing paragraph of the letter follows immediately
after the paragraph cited by Respondent , and states:
In any case , please advise Mr. Sacco, Mr. Pills-
worth, and me what changes, if any, the Company
intends to implement or has implemented.
In addition to documentary references , Respondent cites
the Union's failure to reply to letters of December 1985,
December 1986, and November 1987, wherein Respond-
ent set forth proposals for wage increases and other im-
provements in benefits and conditions of employment,
and asked the Union to provide meeting dates if it
wished to meet and discuss the proposals. The Union did
not choose to meet with the Respondent on these pro-
posals, but had previously met with the Respondent in
response to similar letters in 1981, 1982, 1983, and 1984.
Respondent may draw no comfort from Judge John-
ston's finding the Union declined to meet with Respond-
ent in 1980 because it did meet with Respondent thereaf-
ter as Respondent 's attorney, Robert W. Kilroy, con-
cedes and the Union's January 17, 1985 letter reflects. In-
sofar as the Union's communications relied on by Re-
spondent are concerned , they do not reflect a waiver of
bargaining rights . What they do reflect is a willingness
and eagerness to bargain in the units found appropriate
by Judge Johnston if Respondent abandons its past be-
havior in negotiations , which Judge Johnston found was
not good-faith bargaining , and engages in good-faith ne-
gotiations . Respondent continues, as is its right, to con-
test Judge Johnston's decision . In this posture, with the
Union believing and the judge finding Respondent had
displayed a penchant for less than good-faith negotia-
tions, and the Respondent maintaining its conduct was
proper, the Union was not required to engage Respond-
ent in what had been found to be bad-faith bargaining
and was entitled to assurances from Respondent, as a
condition precedent to further negotiations, that Re-
spondent would bargain in good faith as the Act re-
quires.
The Board has recently reaffirmed its longstanding po-
sition on waivers of statutory bargaining rights in Owens-
Corning Fiberglas Corp., 282 NLRB 609 (1987), as fol-
lows:
The Board will not lightly infer waivers of statuto-
ry rights . See, e .g., Rockwell International Corp., 260
NLRB 1346 , 1347 (1982). Where, as here, the terms
of an employee purchase program were never dis-
cussed during contract negotiations , we will not
infer a waiver by the Union of its right to bargain
over proposed changes in that program . Rockwell,
supra . Nor does the fact that the Respondent previ-
ously changed the terms of the program without
bargaining preclude the Union from effectively de-
manding to bargain over the most recent change. A
union 's acquiescence in previous unilateral changes
does not operate as a waiver of its right to bargain
over such changes for all time . Ciba-Geigy Pharma-
ceuticals Division , 264 NLRB 1013 , 1017 (1982),
enfd . 722 F.2 1120 (3d Cir. 1983); NLRB v. Miller
Brewing Co., 408 F.2d 12 (9th Cir. 1969); Rockwell
International Corp., supra, fn 6. "[W]here , as here,
an employer relies on a purported waiver to estab-
lish its freedom unilaterally to change terms and
conditions of employment not contained in the con-
tract , the matter at issue must have been fully dis-
cussed and consciously explored during negotiations
and the union must have consciously yielded or clearly
and unmistakably waived its interest in the matter."
260 NLRB at 1347. [Emphasis added.]
Respondent has stipulated that no notice of the im-
pending poll was given the Union prior to the mailing of
the ballot on July 17, and states in its brief that the
Union presumably became aware of the intended change
in payroll policy as a result of Respondent 's October 7
communication to employees . Respondent also stipulated
that no notice was given to the Union of the change in
transportation policy which was announced to employees
on August 28 and appears to have been implemented in
September 1987. There is no precise evidence regarding
exactly when the Union became aware of the poll
and/or the change in transportation policy. Considering
that the charge in the case was signed by the Union on
November 17 and docketed as filed on November 18 and
there is no showing the Union had anything but the
shortest notice of the matters complained of before it
filed the charge , it cannot be concluded that the Union
waived its rights by inaction once it gained knowledge of
Respondent 's conduct here in issue . Justesen's Food
Stores, Inc.,9 upon which Respondent relies to find
waiver is distinguishable on its facts because there the
union had notice of the conduct complained of within 2
days thereafter but did not raise the issue of the validity
of Justesen 's unilateral action until it filed charges on the
9 160 NLRB 687 (1966)
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matter 6 months later . Similarly, in Coppus Engineering
Corp., 1° also cited by Respondent, the decision does not
specifically state but strongly implies that the union in
that case became aware of the impending elimination of
a benefit on or about February 13, but did not object, re-
quest bargaining on the subject , or file a charge with the
Board covering the action until June 3. Here again there
is knowledge several months before protest, and Coppus
is not applicable to the instant case . I conclude and find
that Owens-Corning Fiberglas, supra, and the cases cited
therein are dispositive of Respondent 's waiver argument.
That defense is therefore rejected.
The amended complaint herein alleges the bargaining
units contended for by the Respondent before Judge
Johnston and found appropriate by him. Affirmative de-
fense 4 is therefore rejected.
For the reasons set forth hereinabove , and assuming,
without deciding , the correctness of Judge Johnston's de-
cision in American Commercial Lines, supra , I find Re-
spondent has not rebutted the General Counsel 's prima
facie case , and the General Counsel has therefore proved
by a preponderance of the evidence that Respondent has
violated Section 8(a)(5) and ( 1) of the Act as alleged in
the complaint before me. If, however, the Board does
not affirm the several findings of Judge Johnston touch-
ing on this case, it is quite possible it may reverse my de-
cision in whole or part . Nevertheless, I believe it prefera-
ble to expedite this decision by proceeding on the as-
sumption Judge Johnston will be sustained , rather than
to further delay matters by awaiting a Board decision on
his case before issuing this decision American Commercial
Lines I, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute
units appropriate for purposes of collective bargaining:
Unit A:
All head deckhands, deckhands, cooks, trainee
engineers and tankerman employed by [Respondent
in its River Division] on boats owned , operated or
chartered on a bareboat basis by it, excluding pro-
fessional employees , guards and supervisors as de-
fined in the Act, and all other employees. This rec-
ognition shall not apply to bareboat charters to
other operators nor to crews of towboats of subsidi-
ary or affiliated companies.
Unit B:
All engineers and assistant engineers employed
by [Respondent in its River Division ] on boats
owned , operated or chartered on a bareboat basis
by it, excluding professional employees , guards and
supervisors as defined in the Act, and all other em-
10 195 NLRB 595 (1972)
ployees. This recognition shall not apply to bare-
boat charters to other operators nor to crews of
towboats of subsidiary or affiliated companies.
Unit C:
All chief engineers, head deckhands , cooks, train-
ee engineers and tankerman employed by [Respond-
ent in its Canal Division] on boats owned , operated
or chartered on a bareboat basis by it, excluding
professional employees , guards and supervisors as
defined in the Act, and all other employees. This
recognition shall not apply to bareboat charters to
other operators nor to crews of towboats of subsidi-
ary or affiliated companies.
4. The Union is, and has been at all times material to
this proceeding , the exclusive representative of all the
employees in the aforesaid appropriate units for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By bypassing the Union and dealing directly with its
employees by mailing letters and ballots to said employ-
ees asking them to vote concerning a change in Re-
spondent 's pay system, Respondent violated Section
8(a)(5) and (1) of the Act.
6. By unilaterally implementing new practices affecting
employees ' travel between their boats and the ports at
which they get on or off the boat to which they are as-
signed , without prior notice to the Union and without
having afforded the Union an opportunity to negotiate
and bargain thereon as the exclusive collective -bargain-
ing representative of said employees , Respondent violat-
ed Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) the Act.
On the foregoing findings of fact and conclusions of
law, I recommend the following' 1
ORDER
The Respondent, Inland Tugs Division of American
Commercial Barge Line Company Jeffersonville, Indi-
ana, its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Bypassing the Union and dealing directly with em-
ployees in units represented by the Union concerning
changes in Respondent 's pay system.
(b) Implementing changes in existing policy and prac-
tice concerning employee travel between their homes
and the boats to which they are assigned and reimburse-
ment therefor without giving the Union prior notice and
opportunity to bargain thereon.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
11 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
AMERICAN COMMERCIAL LINES 969
(a) Reinstitute the policy and practice in effect until
September 1, 1987, concerning employee travel between
their homes and the boats to which they are assigned.
(b) Bargain in good faith with the Union , as the exclu-
sive collective-bargaining representative of Respondent's
employees in appropriate units, concerning any proposed
changes in the reinstituted policy and practice concern-
ing employee travel.
(c) Post at its Jeffersonville, Indiana facility , and at all
its other facilities where its employees are normally em-
ployed, including vessels, copies of the attached notice
marked "Appendix."12 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent 's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered , defaced, or covered by any other materi-
al.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 "