Construction Services

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 1004 (N.L.R.B. 1993)

1004
312 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 298 NLRB 1.
2 NLRB v. Pinkston-Hollar Construction Services, 954 F.2d 306.
3 Nabors Trailers v. NLRB, 910 F.2d 268 (1990), cert. granted 111
S.Ct. 1680 (1991), cert. dismissed pursuant to Rule 46, 112 S.Ct. 8
(1992).
4 Thus, we apply the court’s ‘‘notice and opportunity’’ standard
only to this case. Our decision is not to be construed as an adoption
of the court’s legal standard as Board precedent.
5 All events at issue occurred in 1987.
6 The expired multiemployer contract required the Respondent to
contribute to certain pension, welfare, and other benefit trust funds
administered by the Union.
7 Pinkston-Hollar, supra, 954 F.2d at 311.
8 910 F.2d 268.
9 326 F.2d 501, 505 (5th Cir. 1964).
Pinkston-Hollar Construction Services, Inc. d/b/a
Construction Services, Inc. and United Union
of Roofers, Waterproofers and Allied Workers,
Local Union No. 116, AFL–CIO. Case 23–CA–
10838
September 30, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 30, 1990, the National Labor Relations
Board issued a Decision and Order1 in this proceeding
in which the Board found that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by unilaterally discontinuing payments into the
Union’s trust funds and pension and fringe benefit
funds and by unilaterally implementing its own group
health, profit-sharing, and vacation plans. The Board
ordered the Respondent to cease and desist, to bargain
on request with the United Union of Roofers,
Waterproofers and Allied Workers, Local Union No.
116, AFL–CIO (the Union), and to make unit employ-
ees whole for any losses or expenses.
On February 27, 1992, the United States Court of
Appeals for the Fifth Circuit issued a decision2 refus-
ing to enforce the Board’s Order and remanding the
case to the Board for reevaluation consistent with the
‘‘notice and opportunity to bargain’’ standard recently
reaffirmed by the court.3 On May 5, 1992, the Board
notified the parties that it had accepted remand. The
Respondent and the General Counsel filed statements
of position on remand.
The Board has accepted the court’s remand as the
law of the case.4 The facts, which are summarized
below, are fully set forth in our initial decision and in
the court’s opinion. On January 13, 1987,5 the Re-
spondent withdrew from multiemployer bargaining and
stated it would bargain individually with the Union.
Beginning in March the Respondent and the Union
met about 10 times to negotiate a new agreement. By
letter dated April 9, the Respondent indicated it was
considering changes in the existing benefit plans6 and
requested that the Union furnish certain financial infor-
mation regarding the funds. By letter dated July 22, the
Respondent stated that it intended to cease participa-
tion in the Union’s benefit funds on September 1 and
to implement its own benefit plans. The Union replied
that it wished to meet and bargain about the proposed
changes and offered three dates in August for negotia-
tions.
On August 14, the parties had a brief meeting at
which the Union proposed extending the agreement for
a year with possible wage modifications. The parties
did not discuss the proposed changes in benefit funds.
The parties agreed to meet on August 20. On August
18, the Union learned that the Respondent for the first
time would be negotiating through its attorneys. The
Union’s business agent came to the August 20 meeting
and announced that he did not want to negotiate with-
out the presence of the Union’s attorney, who was out
of town. The Respondent’s representatives stated that
the Respondent still intended to implement its own
benefit plans on September 1, which the Union’s busi-
ness agent acknowledged.
The Respondent ceased payments to the Union’s
benefit funds and implemented its own plans on Sep-
tember 1. The parties next met to negotiate on Septem-
ber 23. Thereafter, the parties suspended negotiations
until the unfair labor practice charge in this case was
resolved.
In the initial decision in this case, the Board found
that the Union acted with due diligence in requesting
and pursuing bargaining over the proposed changes
and did not clearly and unmistakably waive its right to
bargain over the matter. The Board held that in the ab-
sence of impasse the Respondent was not privileged to
act unilaterally. Accordingly, the Board concluded that
the Respondent violated Section 8(a)(5) and (1) of the
Act.
In its opinion in this case, the court stated that the
law in the Fifth Circuit is that ‘‘unilateral implementa-
tion of changes . . . is not a violation of the duty to
bargain collectively, even in the absence of impasse, if
the employer notifies the union that it intends to imple-
ment the change and gives the union the opportunity
to respond to that notice.’’7 The court concluded that
it was bound to follow its decision in Nabors Trail-
ers.8 That case, as does the court’s opinion in this
case, relied on the following standard set forth in
NLRB v. Citizens Hotel Co.:9
It is true, of course . . . that an employer may
make changes without the approval of the union
as the bargaining agent. The union has no abso-
lute veto power under the Act. Nor do negotia-
tions necessarily have to exhaust themselves to
the point of the so-called impasse. But there must
be discussion prior to the time the change is initi-
ated. An employer must at least inform the union
1005CONSTRUCTION SERVICES
10 Pinkston-Hollar, supra, 954 F.2d at 311 fn. 4.
of its proposed actions under circumstances which
afford a reasonable opportunity for counter argu-
ments or proposals.
Accordingly, the court remanded this case to the Board
for reevaluation consistent with the above principles.
In his statement of position on remand, the General
Counsel contends that the Respondent did not give the
Union sufficient notice. He argues that the Respondent
merely informed the Union it would make changes but
never gave the Union an actual plan to review or pro-
vided it with any details or information about the
plans. Thus, the General Counsel contends the Union
was not afforded ‘‘a reasonable opportunity for counter
arguments.’’ The General Counsel further contends, in
effect, that the Respondent did not afford the Union a
reasonable opportunity to bargain. Specifically, the
General Counsel argues that the Respondent, by bring-
ing attorneys into the negotiations for the first time on
August 20, effectively forestalled bargaining and that
the Respondent never explained why it had to imple-
ment its proposals on September 1. Contrary to the
General Counsel’s contentions, we find under the prin-
ciple of the Fifth Circuit’s Nabors Trailers and Citi-
zens Hotel decisions, that the Respondent gave the
Union sufficient notice and opportunity to bargain.
With regard to notice requirement of the court’s no-
tice and opportunity to bargain rule, we believe that
the court, if not actually deciding the matter, has given
us guidelines that we would be remiss to ignore. Thus,
in its opinion,10 the court stated:
The Board argues that the Company’s failure to
provide a specific proposal in its notice to the
union prevents assertion of this defense here.
There is nothing to indicate that the Union ever
requested, or complained of the absence of, such
information. To the extent the Board is asserting
a deficiency in the Company’s notice, we will not
address this contention for the first time on ap-
peal. Neither the ALJ nor the Board below found
the Company’s notice in any way deficient for
purposes of initiating the bargaining process.
The Board also appears to argue, consistent
with the Ninth Circuit’s opinion in [NLRB v. Auto
Fast Freight, 793 F.2d 1126 (9th Cir. 1986)], that
a detailed proposal is a condition precedent to a
waiver-by-inaction defense. In support, the Board
cites our opinion in NLRB v. Crystal Springs Shirt
Corp., 637 F.2d 399, 402 (5th Cir. 1981), where
we recognized that an employer may not satisfy
its notice obligation by giving general information
from which the Union is to infer that a change
has occurred. We find that case to be inapposite.
Here, the Company gave explicit notice that it in-
tended to discontinue the Union plans and imple-
ment its own plans. (In that regard, the Company
requested information on the Union plans, which
the Union never supplied; on the other hand, the
Union never requested more specific information.)
By contrast, in Crystal Springs the employer
merely provided the union with certain informa-
tion relating to compensation rates from which the
union was to infer a change. Moreover, the Ninth
Circuit’s cases do not suggest a different result on
these facts. In Auto Fast Freight, supra, and its
precursor, Stone Boat Yard v. N.L.R.B., 715 F.2d
441, 444 (9th Cir. 1983), cert. denied 466 U.S.
937, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984), the
employer gave no indication whatsoever of the
content of its desired changes, but, at most, that
‘‘substantial changes’’ were desired.
This footnote, we believe, strongly suggests that the
substantive notice requirement of the court’s rule has
been met.
Contrary to our dissenting colleague, we believe it
is our responsibility to read the court’s opinion as a
whole and draw reasonable inferences from the court’s
discussion of its own notice and opportunity to bargain
rule. In the first paragraph of footnote 4, the court stat-
ed that it was not addressing the specific contention,
not previously made by the Board, that the Respond-
ent’s notice was deficient under the court’s rule. How-
ever, in the final sentence of the paragraph, the court
suggested as a general matter that notice sufficient to
‘‘initiat[e] the bargaining process’’ is notice sufficient
to satisfy the court’s rule.
In the second paragraph of footnote 4, the court fur-
ther suggested that the notice the Respondent provided
the Union here was indeed sufficient to ‘‘initiat[e] the
bargaining process.’’ Thus, the court stated that in
Crystal Springs it ‘‘recognized that an employer may
not satisfy its notice obligation by giving general infor-
mation from which the Union is to infer that a change
has occurred. . . . Here, the Company gave explicit
notice that it intended to discontinue the Union plans
and implement its own plans.’’ The court parentheti-
cally noted, ‘‘In that regard, the Company requested
information on the Union plans, which the Union
never supplied; on the other hand, the Union never re-
quested more specific information.’’ The record shows
that the Respondent notified the Union about what
changes it intended to implement and on what day it
intended to do so. Although the Respondent did not
give the Union any details or copies of its plans, the
Union, as the court noted, ‘‘never requested more spe-
cific information.’’ In these circumstances, we believe
that the court would find that the Respondent gave the
Union sufficiently explicit notice under the notice re-
quirements of Nabors Trailers and Citizens Hotel.
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 567 F.2d 1343, 1349 (1978), a case relying on Citizens Hotel.
1 NLRB v. Pinkston-Hollar Construction Services, 954 F.2d 306
(1992), remanding case to Board for reconsideration in light of
Nabors Trailers v. NLRB, 910 F.2d 268 (1990), cert. granted 111
S.Ct. 1680 (1991), cert. dismissed pursuant to Rule 46, 112 S.Ct. 8
(1992).
The dissent correctly points out that the second para-
graph of footnote 4 discussed a waiver-by-inaction de-
fense rather than the notice-and-opportunity defense.
Our dissenting colleague, however, fails to fully appre-
ciate that the Fifth Circuit has applied the same notice
standard to both defenses. Thus, in Crystal Springs,
supra, a waiver case cited by our dissenting colleague,
the court relied in part on the notice and opportunity
rule:
These [piece rate] disclosures, charitably so char-
acterized, do not constitute ‘‘circumstances which
afford a reasonable opportunity for counter argu-
ments or proposals.’’ See NLRB v. Citizens Hotel
Co., 326 F.2d 501, 505 (5th Cir. 1964). [637 F.2d
at 402.]
Thus, contrary to the dissent, we see no basis for fail-
ing to pay heed to the court’s suggestions.
Although the notice and opportunity to bargain rule
is the law of the case, we agree with our dissenting
colleague that the court did not definitively resolve the
issue concerning the meaning of the word ‘‘notice’’ as
used in the rule. The court, however, has strongly sug-
gested its own resolution of this issue. That is, if the
employer’s notice identifies the subject of the proposed
change, and the union has a reasonable opportunity to
ask for more specific details, the substantive notice re-
quirement is met. Given the fact that the notice and
opportunity rule is the court’s rule, we do not think it
prudent to ignore the court’s strong suggestion as to
what its own rule means, and having accepted remand,
we are constrained by that remand to apply the court’s
rule as we think the court would.
With regard to opportunity to bargain, the record
shows that the parties met to bargain on August 14 and
20. At the August 14 session, the Union chose to offer
to extend the existing agreement, possibly with wage
modifications. At the August 20 session, the Union
chose not to bargain because its attorney was not
present. Even accepting the General Counsel’s conten-
tion that the Respondent forestalled meaningful bar-
gaining on August 20, we believe the Respondent has
met the Fifth Circuit’s opportunity to bargain standard.
In its decision in Winn-Dixie Stores v. NLRB,11 the
Fifth Circuit held that the company complied with its
statutory duty to bargain. In that case, the company,
after notifying the union that it desired to raise wages
$.25 per hour, met with the union at one bargaining
session. The company asked the union to agree to the
increase in order to halt high employee turnover. The
union wanted a wide range of changes in the bargain-
ing agreement and did not agree. The next day, the
company informed the union that it was implementing
the raise. In this case, the Respondent notified the
Union more than a month before it made its changes
and in fact met with the Union to bargain without re-
striction on August 14. Thus, we find that the Union
had as much, if not more, opportunity to bargain than
did the union in Winn-Dixie.
For the foregoing reasons, we find, as the law of
this case, that the Respondent has met the Fifth Cir-
cuit’s notice and opportunity to bargain standard and
conclude that the Respondent was free to unilaterally
implement the changes it did. Accordingly, we shall
dismiss the complaint.
ORDER
The complaint is dismissed.
MEMBER DEVANEY, dissenting.
Contrary to my colleagues, I would find that the Re-
spondent did not provide the Union with sufficient no-
tice of its proposed changes in benefits to satisfy its
bargaining obligation under the Fifth Circuit’s ‘‘notice
and opportunity to bargain’’ standard, applicable here
as law of the case pursuant to my colleagues’ decision
to accept the Fifth Circuit’s remand.1 Accordingly I
would reaffirm the Board’s previous finding that the
Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally discontinuing existing benefit plans and
implementing its own benefit plans.
As my colleagues note, the Fifth Circuit has held
that, after a collective-bargaining agreement expires, an
employer may unilaterally modify terms and conditions
of employment if the employer notifies the union that
it intends to institute the change and gives the union
the opportunity to respond to the notice. However, the
court has also noted that, under this approach, ‘‘[a]n
employer must at least inform the union of proposed
actions under circumstances which afford a reasonable
opportunity for counter arguments or proposals.’’
NLRB v. Citizens Hotel Co., 326 F.2d 501, 505 (1964).
In this case, the Respondent’s notice to the Union
indicated only that the Respondent intended to cease
participating in existing benefit funds and to instead
‘‘utilize its own group health plan, profit-sharing plan,
and vacation plan for its employees.’’ The Respondent
did not provide the Union with any details or informa-
tion about the new benefit plans it proposed to imple-
ment, and indeed there is no evidence showing that
these plans were even in existence at the time the no-
tice was given. Thus, even after receiving the notice,
the Union was still completely in the dark as to the
substantive terms of the benefit plans the Respondent
intended to implement.
1007CONSTRUCTION SERVICES
2 The Board did not previously consider this issue. Under the
standard which the Board applies in cases of this type, the issue is
whether the parties bargained to impasse over a proposed change in
terms and conditions of employment, not whether the employer’s no-
tice to the union concerning the changes is adequate to allow the
union to engage in meaningful bargaining.
3 I recognize that the Union did not demand more information
from the Respondent concerning its proposal at the parties’ abortive
preimplementation bargaining sessions. However, the Fifth Circuit
does not hold that such a demand is relevant to the scope of an em-
ployer’s obligations under the court’s notice and opportunity to bar-
gain standard. Particularly in light of the court’s express statement
at fn. 4 of its decision remanding this case that it was not addressing
the alleged insufficiency of the Respondent’s notice, its observation
that no such demand was made here would appear to be dicta.
4 My colleagues cite no case in which a generalized notice such
as that present here has been found by the Fifth Circuit sufficient
to satisfy its notice and opportunity to bargain standard. Rather, my
colleagues rely on certain statements made by the court in response
to the General Counsel’s citation to it of NLRB v. Auto Fast Freight,
793 F.2d 1126 (9th Cir. 1986), Stone Boat Yard v. NLRB, 715 F.2d
441 (9th Cir. 1983), cert. denied 466 U.S. 937 (1984), and NLRB
v. Crystal Springs Shirt Co., 637 F.2d 399 (5th Cir. 1981), in sup-
port of the General Counsel’s argument to the court that the Re-
spondent’s notice in this case was inadequate. The court’s comments
in this regard must be evaluated in light of its express statement that
it was not addressing the adequacy of the Respondent’s notice under
its notice and opportunity to bargain standard. Indeed, each of the
three cases—and the court’s response to them—deals with the ana-
lytically distinct waiver by inaction defense, which focuses primarily
on the union’s conduct. Here, in contrast, the question before the
Board is whether the Respondent’s actions satisfied its bargaining
obligations under the Fifth Circuit’s notice and opportunity to bar-
gain standard. Under these circumstances, and considering the Fifth
Circuit precedent cited above, the dicta on which my colleagues rely
is not sufficient grounds on which to decide this case.
Contrary to my colleagues, the Fifth Circuit did not state in Crys-
tal Springs that it applies the same standard in cases where a waiver
by inaction defense is raised as it does in cases where the adequacy
of the notice and opportunity to bargain provided by the employer
is at issue. Rather, the court there rejected the employer’s argument
that, on the facts of that case, the union had waived its bargaining
rights because it had notice of the changes at issue and had failed
to request bargaining. In this regard, the court found that the notice
was insufficient because it was given after the changes had been
made, not because it was not sufficiently specific.
5 In light of my finding that the notice provided to the Union was
inadequate, I would find it unnecessary to decide whether the se-
quence of events following the Union’s initial demand for bargaining
indicates that the Union was otherwise provided with a sufficient op-
portunity for bargaining.
I would find that this notice was insufficient to sat-
isfy the Respondent’s bargaining obligations under the
Fifth Circuit’s ‘‘notice and opportunity to bargain’’
standard.2 In prior cases in which the Fifth Circuit has
found that the employer satisfied this standard, the re-
spondent had presented detailed proposals to the union
before they were implemented. See, e.g., Nabors Trail-
ers, supra at 271 (employer provided union with pro-
posed job classification system, wage scale, and spe-
cific wage rates it proposed to implement); Winn-Dixie
Stores v. NLRB, 567 F.2d 1343 (5th Cir.), cert. denied
439 U.S. 985 (1978) (employer lawfully implemented
wage increase where it notified the union that it in-
tended to raise wages by $.25 per hour); NLRB v. J. P.
Stevens & Co., 538 F.2d 1152 (5th Cir. 1976) (em-
ployer announced plans to lay off 11 employees in dye
house); A. H. Belo Corp. v. NLRB, 411 F.2d 959 (5th
Cir. 1969), cert. denied 396 U.S. 1007 (1970) (em-
ployer announced plans to give employees a $5-per-
week raise and eliminate car allowance). Here, in con-
trast, the Respondent notified the Union only that it
would replace the existing plans with ‘‘its own’’ bene-
fit plans.3
Moreover, the Fifth Circuit has held that an em-
ployer which implements changes in terms and condi-
tions of employment which differ from those presented
to the union has not satisfied the notice and oppor-
tunity to bargain standard. In Winn-Dixie Stores,
above, cited by my colleagues, the employer proposed
a 5.5-percent wage increase to the union but subse-
quently implemented increases ranging from 4.11 to
6.23 percent. The Fifth Circuit found those increases
unlawful, stating that
[i]t seems clear to us that implementing changes
significantly different from those proposed to and
rejected by the collective bargaining representa-
tive is tantamount to implementing changes with-
out notifying the union of the proposed changes.
We agree that, with respect to the changes actu-
ally implemented, the union had neither notice nor
opportunity to respond.
Id. at 1350 (citation omitted). See also J. P. Stevens,
above at 1164 (same). Because the Respondent here
did not provide the Union with notice of the specific
benefit plans it eventually implemented, I would find
that, like those cases where changes were implemented
which differed from those presented to the union, the
Union here also had ‘‘neither notice nor opportunity to
respond.’’4
More fundamentally, my colleagues fail to explain
how it is that the notice provided in this case gave the
Union a ‘‘reasonable opportunity for counter argu-
ments or proposals,’’ Citizens Hotel, above, given that
it was not aware of the identity of the insurance pro-
vider the Respondent proposed to use, whether the Re-
spondent intended to self-insure, or whether the pro-
posed benefit plans would be more or less generous
than those the Respondent proposed to replace. As the
Fifth Circuit recognized in remanding the case, it is the
Board’s responsibility, in the first instance, to deter-
mine whether the notice provided here was adequate.
In light of the court’s expressly having disavowed
reaching any conclusions in this regard, I would not
abdicate that responsibility merely on the basis of in-
ferences drawn from the court’s discussion of the
waiver by inaction defense.5 Rather, I would find that
the Respondent failed to give the Union sufficient no-
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tice of the changes it eventually made in its benefit
plans and that the implementation of those changes
was therefore unlawful under the Fifth Circuit’s notice
and opportunity to bargain standard.