Francis J. Fisher, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1987

289 N.L.R.B. 815 (N.L.R.B. 1987)

FRANCIS J. FISHER, INC.
Francis J. Fisher, Inc. and Local 13, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , AFL-CIO.
Case 27-CA-10021
July 13, 1987
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On February 3, 1988 , Administrative Law Judge
William L. Schmidt issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel 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 , as modified , ' and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Francis J.
Fisher, Inc., Denver, Colorado, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
i We agree with the judge that the Respondent violated Sec 8(a)(1) of
the Act when , at an employee meeting in November 1986, its owner and
president told employees that there would be no union after March 1987
and its vice president concluded the meeting by telling employees to
decide what they wanted and come to him In agreeing with the judge's
conclusion , however, we do not rely on his fording that such remarks by
the Respondent tend to cause employees to be "apprehensive and fearful"
in exercising their Sec 7 rights, rather, we find that such remarks reason-
ably tended to interfere with, restrain , or coerce employees in the exer-
cise of their Sec 7 rights
The judge relied on the court 's opinion in Teamsters Local 175 v
NLRB, 788 F.2d 27 (D.C Cir 1986), denying enf of Bell Transit Co., 271
NLRB 1272 (1984), for the general proposition that an employer is re-
quired to maintain the status quo established by an expired collective-bar-
gaining agreement until the parties reach a new agreement or bargain to
impasse The General Counsel, in her answering brief, contends that Bell
Transit , in which a valid impasse was found after only three bargaining
exchanges, is distinguishable on its facts . Whether or not Bell Transit is
distinguishable from the instant case, we overrule it to the extent it holds
that impasse can be found on the basis of subsequent events-e .g , a fail-
ure to ratify a contract proposal or an ultimate failure to reach an agree-
ment-rather than on the state of negotiations at the time of the unilateral
action. We additionally overrule the Board 's analysis in that case to the
effect that an impasse and tentative agreement may exist simultaneously
Michael J. Belo, Esq., for the General Counsel.
Gus Achey, Esq., of Denver, Colorado, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
815
WILLIAM L. SCHMIDT, Administrative Law Judge. I
heard this matter on 9 July 19871 at Denver, Colorado.
The proceeding is based on a charge filed 10 March by
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL-C102
Local 13 (Charging Party or Union) alleging that Fran-
cis J. Fisher, Inc. (Respondent or Employer) violated
Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act). Pursuant to that charge the Regional Di-
rector for Region 27 of the National Labor Relations
Board (NLRB or Board) Region 27 issued a complaint
on 23 April alleging that Respondent violated Section
8(a)(5) of the Act when it: (1) bypassed the Union and
dealt directly with employees the Union represents on 24
November 1986; (2) refused to bargain in good faith with
the Union since 15 January; and (3) unilaterally altered
wages and working conditions on 9 March. The com-
plaint also alleges Respondent independently violated
Section 8(a)(1) of the Act when its owner and president
Jean Sharkey told employees on 24 November 1986 that
as of March there would be no more union and its vice
president Don Klaversma solicited employees for infor-
mation concerning the working conditions they desired
in March.
On 30 April Respondent filed a timely answer wherein
it admitted certain allegations of the complaint and
denied others, including the unfair labor practices al-
leged.
Having carefully considered the record, the demeanor
of the witnesses as they testified and the parties' post-
hearing briefs, I now make the following
FINDINGS OF FACT
1. THE EVIDENCE
A. Relevant Background
Respondent is an old Denver firm established in 1889
that sells construction materials.3 In 1935 ownership of
Respondent passed from the heirs of its founders to the
Goody family and the Union, a labor organization within
the meaning of Section 2(5) of the Act, and became the
representative of Respondent's drivers and warehouse-
men. The collective-bargaining relationship between Re-
spondent and Union proceeded peacefully for the next 50
years. The most recent agreement, having a term from 1
March 1984 to 1 March 1987, was concluded following
five bargaining sessions in 1984.4
i If not specified all further dates refer to the 1987 calendar year
2 On 1 November 1987 the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the name of the Union has been
amended to reflect that change
3 Respondent sells to the retail and nonretail trade Annually its sales
have exceeded $500,000 and its direct inflow exceeded $50,000 Accord-
ingly, Respondent meets the Board's announced standard for exercising
jurisdiction over the labor dispute involved here
4 Throughout this decision are references to an agreement expiring 8
March It is the same agreement As found below, the parties orally ex-
tended the agreement from its I March expiration through 8 March
289 NLRB No. 104
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For about 20 years prior to 1982 Jean Sharkey and her
husband, Walter M. Goody, Jr., successfully operated
the business. In large measure this success was due to a
personal arrangement permitting Goody the exclusive
right to distribute a waterproofing product manufactured
by Thoro Systems, a firm ultimately consumed in a
merger with the Beatrice Company. With the resultant
boom this arrangement produced, Respondent expanded
beyond its historical roots in Denver by adding a branch
outlet in Casper, Wyoming.
Good times and humans are not eternal. In 1982
Goody died. The exclusive arrangement for the lucrative
waterproofing product ended with his life. In addition to
her personal loss, Sharkey was left to deal with the busi-
ness ramifications of Goody's death.
The effects were not immediate but in 1984, Respond-
ent was confronted with competitors for its principal
product. By 1985 Respondent's income statement reflect-
ed a loss exceeding $81,000.5 The following year's
income statement reflected a $36,000 loss on net sales,
which were $258,000 lower than those of 1985.6 The
January 1987 statement reflected a $6100 loss. According
to Sharkey the loss had risen to approximately $30,000
by May 1987.
Certain efforts to retrench Respondent's operations
were taken in response to these losses . They included:
1. The Casper branch was closed and its capital equip-
ment was relocated to Denver or sold.
2. The number of bargaining unit employees in Denver
was reduced from five to three between 1984 and the
end of 1986. In January 1987 one additional bargaining
unit employee was laid off.
3. By April 1987 Respondent relocated its Denver op-
eration from quarters requiring a lease payment in excess
of $9000 per month to a location where the lease pay-
ment is $1600 per month. 7
4. In mid-January 1987 the pay of the five salaried
office employees, including Klaversma and Sales Manag-
er Clarence Robert, was reduced.8 This was accom-
plished by a variety of methods. The elimination of Rob-
ert's commission earnings resulted in a $600 per month
pay reduction. Bookkeeper Marcie Bishop's salary was
reduced by $400 per month. Klaversma's and Tenice
Goodman's pay were not reduced but their hours of
work were extended. Sharkey relinquished her salary al-
together in favor of her son who was hired for sales
5 More precisely the loss was $81 ,487 24 Nearly 43 percent of this loss
could be attributed to a bad debt wnteoff in the amount of $35,016 85 for
the month of December 1985, the final month of Respondent's fiscal year.
By contrast , the bad debt writeoff for December 1986 was $2913 05 The
total bad debt wnteoff for 1985 was $46,413 83 The 1986 income state-
ment does not indicate the total of that writeoff for that year
6 Respondent 's net sales (gross sales plus returns and allowances minus
trade discounts) in 1985 were $1,371,250 77 The net sales in 1986 were
$1,112,674 33
7 This finding is based on Mrs. Sharkey's testimony However, the
1985 and 1986 income statements reflect rent payments of $62,716 72 and
$68,988.40, respectively, or considerably less per month than Sharkey
stated at the hearing.
8 The General Counsel attempted to establish-without success-that
Robert was a supervisor. Robert, who is essentially an outside salesman,
possesses and exercises only routine authority Although Sharkey would
expect Robert to exercise common sense in Klaversma's absence by send-
ing an intoxicated driver home, such situations have never arisen.
work . Finally , Respondent 's profit-sharing plan for non-
unit employees was eliminated . Following these salary
actions, the two remaining unit employees were Re-
spondent's highest paid employees by a significant
margin.
5. Several vehicles were sold in 1986 and early 1987.
Those sold in January 1987 produced income in the
amount of $4800 and thereby reduced the loss for that
month from $ 10,900 to $6100.
During this retrenchment period , Sharkey made no
moves that affected the unit employees' contractual ben-
efits . After participating in the 1984 labor negotiations,
Sharkey's perception was that on the conclusion of the
1984-1987 agreement she would be free to legally adjust
the unit labor costs promptly as she was of the view
even as late as the hearing that she would not be obliged
to adhere to the agreement in any manner once it ex-
pired.
In the meantime , Sharkey remarried and relocated her
personal residence to Indiana. However, she returns to
Denver for approximately 1 week per month to oversee
Respondent's operations . In her absence , Klaversma is
the principal executive in charge of the operation. There
is little or no evidence that he is authorized to conduct
Respondent 's business with the Union.
B. The Alleged Unfair Labor Practices
1. The 8(a)(1) allegations
On 11 November 1986 Sharkey met with the unit em-
ployees primarily to reassure them that Respondent was
not going to close its doors or declare bankruptcy as
widely rumored. In addition to Sharkey, Klaversma and
the three unit employees, Richard Einertson, Paul Le-
Gault, and Paul Vestal, were present.
According to LeGault, Sharkey reassured the employ-
ees that "the company was not for sale and stuff like
that." However, Sharkey did inform the employees that
the company was "hurting financially" and that the non-
unit employees "hadn't had raises in a certain period of
time." Sharkey appealed to the employees to pull togeth-
er so they could "make a go out of the company."9
LeGault testified that after Sharkey spoke, Einertson
asked her if "we were going to go without the union."
Sharkey responded to Einertson saying "for us to get to-
gether and figure out what we wanted . . . and let [Kla-
versma] know . . . that we'd work something out to go
without the union." Einertson then asked if the unit em-
ployees "would get a chance to vote on this or any-
thing." In response, Sharkey said the employees would
not have a chance to vote as, apparently, "there would
be no union contract after March 1st."
Because the pension plan was of concern to LeGault,
he asked Sharkey about that matter . Sharkey responded
that "something would be done about a profit-sharing
plan."
9 All five individuals who testified concerning this meeting are in sub-
stantial accord concerning this aspect of the meeting
FRANCIS J. FISHER, INC. 817
LeGault also recalled Klaversma requested that the
unit employees let him know what the drivers wanted
after they had an opportunity to get together.
Like LeGault, Einertson testified that Sharkey spent
the first part of the meeting reassuring employees that
she intended to keep the business going . Following a dis-
cussion concerning holidays, Einertson asked "about ne-
gotiations come March 1st ...." Sharkey replied "that
come March 1st . . . we would be going non-union-
there would be no union as of March 1st." None of the
employees responded but Klaversma said that the em-
ployees should "come to me and tell me what you
want."
As for the pertinent part of the meeting concerning
the Union, Vestal testified that Einertson asked "What
about the union?" Purportedly Sharkey replied that
"come March there will be no union." Later, at the end
of the meeting, Klaversma told the employees "to let
.. . the Company know what [the unit employees]
wanted."
Sharkey testified that she was "not real sure" if there
was any discussion about the Union at this meeting. She
said she "just [did not] really know."
Klaversma recalled that following Sharkey's introduc-
tory remarks one (unspecified) driver asked: "What
about the union?" Klaversma testified that he "really did
not remember what [Sharkey's] reply was at the time"
but "[t]hey went on discussing that, and I really didn't
get that much involved in that one." When asked direct-
ly if Sharkey had said that when the contract ended in
March there would be no union, Klaversma responded:
"I don't recall her saying that, specifically, no." As for
remarks the drivers attributed to Klaversma suggesting
that he solicited proposals about working conditions after
the contract ended, Klaversma testified that he only
asked the employees to tell him about their complaints so
he would not have any morale problems.
2. The 8(a)(5) allegations
For a number of years Respondent has retained the
Mountain States Employers' Council (MSEC) to conduct
its labor negotiations. In mid-December 1986 Gus
Achey-an MSEC representative who normally handled
Respondent 's labor negotiations-sent a written notice to
the Union 's president terminating the existing agreement
effective 1 March, its expiration date. The document is a
typical "opening letter" in which Achey also invited the
Union to arrange "a meeting to discuss a new Agree-
ment."
By mid-January 1987 the Union met with Respond-
ent's employees and drafted a list of proposals for a new
agreement which were hand-delivered to Achey at
MESC. In late January 1987 Union Representative
George Del Monte wrote to inform Achey that the
Union "is prepared to meet for the purpose of negotiat-
ing an agreement with [Respondent]." About the same
time Del Monte reached Achey on the telephone and
was informed Respondent would be unable to meet until
27 February, the date of Sharkey's next scheduled return
to Denver. Because Sharkey was unavailable until that
late date, Achey agreed to extend the agreement to 6
March and tentatively agreed to meet with the Union on
2 and 5 March. 10
In late February, Sharkey arrived back in Denver as
planned. On 1 March she met with MSEC representative
Joe Downing to review Respondent's financial predica-
ment and formulate its proposals."' By the conclusion of
this meeting, Respondent planned to propose the follow-
ing:
1. Reduce the hourly pay of unit employees from
$9.30 to $6.50 per hour.
2. Delete pension contributions by Respondent.
3. Delete the maintenance-of-standards clause
(contract article 5).
4. Change the time and one-half premium pay for
overtime work from all hours after 8 per day to 40
per week.
5. Switch unit employees from the Union's health
and welfare plan to the Respondent's plan estab-
lished for non-unit employees.
6. Establish a vacation moritorium until the end
of the year, Respondent's slow season.
7. Limit the contract term to 7 months (or 1 Oc-
tober).
The Union's proposals delivered to Respondent in
mid-January were dramatically different. They provided
1. Increase hourly pay by 40 cents in each year
of a three-year agreement.
2. Increase the Respondent's pension contribution
by 14 cents per hour each year of the agreement.
3. Require Respondent to maintain health and
welfare coverage at no less than the current level.
4. Maintain all other contract provisions.
The following day, 2 March, the Respondent and
union negotiators met for the first bargaining session.
Downing was Respondent's primary spokesman, aided
by Sharkey and Marcie Bishop, the Respondent's book-
keeper. Del Monte spoke for the Union. He was assisted
by fellow business agent Ray Tefrey.
During the first portion of the meeting Downing ex-
plained the Respondent's financial position at some
length, providing the union agents with copies of its
income statements for the 1985 and 1986 calendar years
as well as its January 1987 income statement, the last
available. Although Del Monte could not specifically
recall the extent of the losses suffered by Respondent for
that period, he clearly remembered Respondent's claim
that it was losing money and that the office employees'
salaries had been reduced by one means or another.
After stressing that any increases in wages and benefits
were out of the question and the need for immediate fi-
nancial relief,' 2 Downing slowly set forth Respondent's
10 There is evidence that Sharkey was somewhat upset at Achey's
action of extending the agreement.
11 Achey enlisted his colleague Downing as a substitute because of the
press of other business.
12 Del Monte recalled that Downing said something had to be done by
Monday, 9 March.
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proposals, enabling the union agents to write them down.
Discussions of the Respondent's proposals focused pri-
marily on the relative merits of the health and welfare
plans for unit and nonunit employees. During this ex-
change the union agents were informed that the purpose
of this proposal was to realize savings that might accrue
under the company plan by enlarging its group coverage.
After approximately an hour and a half, the session was
adjourned until 5 March.
Between the two bargaining sessions , the union repre-
sentatives met with the unit employees to review the Re-
spondent's proposals with them.13 As explained by Del
Monte, the union agents "wanted to know from [the em-
ployees], and get some direction from them, on what was
the bottom line, what was the least they felt that they
could work for and what conditions they wanted us to
insist would be maintained. As a result of this meeting,
the union agents were instructed to first seek a wage
freeze and if that was not possible then they could work
for a "little less than they were making at the time."
However, the employees "didn't feel that they could
.. . survive on what the company had offered." In addi-
tion, the employees indicated that they could "reluctant-
ly agree to the overtime-after-forty proposal."
The second bargaining session was held on 5 March at
the Union's offices. At the outset of this session the
Union proposed a wage freeze , which was promptly re-
jected. The Union then proposed to reduce the wage
rate to $8.90 per hour and agreed with the overtime-
after-forty proposal. Downing responded that substantial-
ly more relief was required. A discussion ensued con-
cerning the Union's willingness to assist Sharkey in filing
applications with the city of Denver and the State of
Colorado for certification as a minority contractor, a
status that presumably would accord Respondent some
type of preferential treatment in doing business with
those governmental entities. Sharkey, however, had al-
ready sought such certification in the past 2 years. The
union agents then questioned Respondent's agents closely
about the nonunit health plan. That discussion disclosed
that Respondent was uncertain of the savings that would
be realized from adding the unit employees to the non-
unit group coverage. For this reason the union negotia-
tor14 asked Respondent to extend the agreement while
this information was obtained from Respondent's insur-
ance carrier.
At some point in this 1-1/2- to 2-hour meeting Re-
spondent asked for a caucus from which they emerged
with a counterproposal. This counterproposal differed
from the Respondent's earlier proposal in that (1) the
demand to include unit employees in the nonunit health
plan was dropped; (2) the vacation moratorium was
dropped; and (3) the contract term was shortened from 1
October to 15 September. Downing stressed that the
reason for the switch in the health plan proposal was
that time was of the essence in obtaining relief. Downing
further stated that the Respondent's audit reports show-
13 Presumably this session was attended by at least Vestal and Einert-
son Whether LeGault-who had been laid off approximately 45 days
earlier-attended is unknown
14 The Union's principal spokesperson at this portion of the meeting
appears to have been Ray Tefrey who did not testify
ing business conditions for the busier summer months
would probably be available by 12 September in time for
review by the Union for negotiation of a new agreement.
Downing stated that this proposal was the Respondent's
final proposal which it intended to implement on 9
March.
The Union responded by suggesting that the unit em-
ployees could probably earn more on unemployment
compensation than by working at the Respondent's pro-
posed wage rate. Downing told the Union that if the em-
ployees chose to leave, the Respondent would not con-
test their claim for unemployment compensation and that
this offer would remain open while the employees were
given an opportunity to see how well they could survive
on the lower wage rate. Del Monte also recalled that the
Union asked if Respondent would consider making the
employee pension contributions. Downing responded
that employees would have to pay that cost them-
selves. 115
The Union also proposed extending the existing agree-
ment until there was an opportunity to have its account-
ants audit the Respondent's books. Although Respondent
agreed to make its books available for audit at any time,
Downing told the Union that the Respondent was not in
a position to await an audit before it made changes in its
wage rates. The Respondent also agreed to make its
books available for an audit in September but declined to
commit itself to increase wages in September if it was
making money because of its tax deficiencies and debt
situation. 16
Del Monte recalled that the union agents (he did not
specify which ones) expressed the view that further ne-
gotiations were needed-that there had not been suffi-
cient time to consider Respondent's proposals-and that
they did not believe an impasse existed. Nevertheless, the
5 March meeeting concluded with the Respondent's re-
quest that the Union seek ratification of the Respondent's
final proposal. The union agents told Respondent's nego-
tiators that they would take Respondent's proposals to
the employees to be voted on but that they could not
recommend such an agreement. Nevertheless, Downing
provided them with his home number and asked the
Union to notify him if the Respondent's proposal was
ratified. Downing told the Union agents that if the Re-
spondent's proposals were not ratified, they would be
implemented the following Monday anyway. Downing
extended the existing agreement through 8 March.
Downing recalled that after the 5 March meeting there
were two relatively brief telephone exchanges between
Del Monte and himself, one on 5 March and one on 6
March. During one of these exchanges, he agreed that
the Respondent would pay prorated vacation pay to the
unit employees if they chose to leave and draw unem-
15 Del Monte said Respondent 's stand on the pension contributions
was a major matter with the two employees involved as neither had
worked the 10 years necessary in covered employment to have a vested
interest in the Union's pension plan . At the time of the hearing Vestal
and Einertson had worked for Respondent over 7 years.
16 While the income statements in evidence reflect a variety of tax
payments as operating expenses , they do not indicate if such payments
were sufficient to meet Respondent 's tax liabilities The statements reflect
no obvious loan or interest payments
FRANCIS J. FISHER, INC.
ployment insurance against the Respondent 's account. He
also recalled that Del Monte again expressed the view
that the negotiators were not at an impasse . In effect,
Downing felt that in light of the Union's reluctance to
agree to its proposals and the limited wage reduction
ratified by the employees at the Threewit-Cooper Com-
pany,17 one of Respondent's principal competitors, the
Union would not agree to a contract that put Respond-
ent in a significantly better position than this competitor.
Del Monte recalled that the first telephone conversa-
tion occurred during the afternoon of 5 March. He said
that he told Downing that the Union had a counterpro-
posal and that further negotiations were needed as the
parties were not at impasse.18 Downing apparently dis-
agreed as he told Del Monte that Respondent had made
its final proposal.
On the morning of 6 March, Del Monte again tele-
phoned Downing to request that negotiations continue.
Del Monte proposed a meeting for 19 March but apart
from the fact that no such meeting was ever agreed on,
Downing's response is unknown. Del Monte reported
that Downing again stressed that Respondent had made
its final proposal.
Del Monte wrote to Downing on 6 March (with a
copy to Sharkey and the unit employees.) In the letter,
Del Monte repeated his belief that negotiations were not
at an impasse. The letter continues: "Due to the limited
time allowed by the company for negotiations this Local
Union requests further meetings as soon as possible as
there are still many issues to discuss and contract articles
to address." Del Monte's letter also states that the Union
has a counterproposal that it desired to present, suggests
a 19 March meeting and requests a response to arrange a
time and date for a meeting.
Del Monte received no response to his 6 March letter
until approximately 17 or 18 March when Downing
called his office and requested to meet at 8:30 a.m. on 19
March. When Del Monte learned of this call he tele-
phoned Downing's office and spoke with a secretary in
an effort to arrange a 9:30 or 10 a.m. alternative meeting
time on 19 March as he had, in the meantime , made an-
other commitment at 8:30. The alternative times proved
unsatisfactory for Downing's schedule so a further meet-
ing between the parties never occurred.
Meanwhile, on 9 March Respondent reduced the unit
employees' hourly rate from $9.30 to $6.50, discontinued
pension contributions, and began paying overtime premi-
um pay after 40 hours of work per week instead of 8
hours per day. On 10 March, the Union filed the instant
charge.
C. Further Findings and Conclusions
1. The independent 8(a)(1) allegations
Section 8(a)(1) of the Act provides that it is an unfair
labor practice for an employer to "interfere with, re-
17 According to Downmg , the Threewit-Cooper employees ratified an
agreement providing for a 30-cent-per hour wage reduction and overtime
premium pay after 40 hours on 5 March
18 The terms of the counterproposal are not known Nor does it
appear that Del Monte attempted to report the counterproposal terms to
Downing dung this conversation or at any later time
819
strain, or coerce employees" in the exercise of their Sec-
tion 7 rights. 29 U.S.C. § 158(a)(1). In essence, Section 7
provides that employees have the right to engage in
union or concerted activity for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from such activities.
I find that the account of the employee-witnesses
about Sharkey's remark at the November 1986 meeting
that there would be no more union after March and Kla-
versma's followup remarks that the employees should
decide what they wanted and come to him are credible.
Neither Sharkey nor Klaversma provided a clear-cut
denial concerning the reported remarks. Read together,
the two remarks convey the message that the Respond-
ent was proceeding to unilaterally dismantle the collec-
tive-bargaining system by which employee wages, hours,
and working conditions were determined. Announce-
ments of this nature reasonably tend to cause employees
to be apprehensive and fearful of persisting against their
employer's will in exercising the right they have under
Section 7 to bargain collectively. Accordingly, I find the
remarks by Sharkey and Klaversma on this occasion to
be coercive within the meaning of Section 8(a)(1) of the
Act, as alleged in the complaint.
2. The 8(a)(5) allegations
Section 8(a)(5) of the Act provides that it is an unfair
labor practice for an employer "to refuse to bargain col-
lectively with the representative of his employees." (29
U.S.C. § 1158(a)(5).) Section 8(d) of the Act defines the
duty to bargain collectively as "the performance of the
mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours, and other
terms and conditions of employment , or the negotiation
of an agreement or any question arising thereunder." (29
U.S.C. § 158(d).)
Justice Felix Frankfurter, dissenting in NLRB v. Truitt
Mfg. Co., 351 U.S. 149, 154-155 (1956), observed that:
These sections 8(a)(5) and 8(d) obligate the parties
to make an honest effort to come to terms; they are
required to try to reach an agreement in good faith.
"Good faith" means more than merely going
through the motions of negotiating ; it is inconsistent
with the predetermined resolve not to budge from
an initial position. But it is not necessarily incompat-
ible with stubbornness or even with what to an out-
sider may seem unreasonableness . A determination
of good faith or of want of good faith normally can
rest only on an inference based upon more or less
persuasive manifestations of another's state of mind.
The previous relations of the parties, antecedent
events explaining behavior at the bargaining table,
and the course of negotiations constitute the raw
facts for reaching such a determination.
Over the years certain more specific principles have
evolved that provide flesh for the statutory skeleton set
forth above. Among other things, an employer is re-
quired to maintain the status quo established by an ex-
pired collective-bargaining agreement until the parties
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reach a new agreement or bargain to an impasse. Team-
sters Local 175 (Bell Transit) v. NLRB, 788 F.2d 27 (D.C.
Cir. 1986). If an employer unilaterally institutes changes
in wages , hours, or working conditions absent an impasse
in the negotiations for a new agreement, the duty to bar-
gain in good faith is violated . NLRB v. Katz, 369 U.S.
736 (1962); Stone Boat Yard v. NLRB, 715 F.2d 441, 444
(9th Cir. 1983).
In addition to foregoing basic ground rules establishing
the starting point for negotiations , it has been observed
that the duty to bargain in good faith contemplates "co-
operation in the give and take of personal conferences
with willingness to let [the] ultimate decision follow a
fair opportunity for the presentation of pertinent facts
and arguments." NLRB v. Jacobs Mfg. Co., 19 F.2d 680,
683 (2d Cir. 1952). Good-faith bargaining precludes
laying plans for comprehensive changes and timing their
announcement or implementation so as to preclude any
meaningful negotiation . J. P. Stevens, 240 NLRB 579
(1979). To these ends the courts long ago established the
requirement that an employer pleading an inability to
pay furnish the bargaining representative with informa-
tion sufficient to substantiate such claims. NLRB v. Truitt
Mfg. Co., supra; NLRB v. Jacobs Mfg. Co., supra.
Here the 9 March unilateral changes in wages and
benefits are undisputed. The sole question concerns the
presence or absence of a bargaining impasse when these
changes occurred. The existence of an impasse is a fact
question. In Hi-Way Billboards, 206 NLRB 22, 23 (1973),
the Board stated:
A genuine impasse in negotiations is synonymous
with a deadlock ; the parties have discussed a sub-
ject 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
position . [footnotes omitted].
In Taft Broadcasting , 163 NLRB 475, 478 (1967), the
Board identified numerous factors that serve to aid in de-
termining the existence of an impasse:
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 , [and] the contempora-
neous understanding of the parties as to the state of
negotiations are all relevant factors to be considered
in deciding whether an impasse in bargaining exist-
ed.
Regardless, an employer may not "parlay an impasse re-
sulting from its own misconduct into a license to make
unilateral changes ." Wayne's Olive Knoll Farms, 223
NLRB 260, 265 (1976).
Overall, certain circumstances here suggest the negoti-
ations may have been practically doomed before they
began. First, there were several signals that a significant
upheaval was likely especially where, as here, the unit
employees enjoyed the highest pay rates. Over the
period of the recently expired agreement, the size and
scope of Respondent's business operation was steadily
shrinking. The Casper branch was closed, capital equip-
ment was sold, the unit employment was shrinking, and
rumors were afloat that the enterprise was going under.
In January as the Union and the unit employees were
formulating proposals for wage and benefit increases, one
additional unit employee was laid off, salary cuts ranging
from $400 to $600 per month were imposed on two of
the four unrepresented employees, the hours of the other
two were extended without added compensation, and the
owner relinquished her own salary in favor of another
full-time salesperson albeit that person was her son.
Added capital equipment was sold to reduce January
losses and Respondent was in search of other lower cost
quarters. These factors signaled the probability of con-
cession bargaining.
Second, when negotiations did commence, the Re-
spondent's dire financial circumstances were detailed for
the Union's negotiators and the urgency of Respondent's
need for immediate relief was emphasized. The salient
feature of Respondent's proposal, which lends credence
to the urgency of the situation, is, the fact that Respond-
ent was proposing a short-term agreement of 6 or 7
months' duration rather than a long-term commitment.
Third, although some modifications in position were
made by both Respondent and the Union at the second
session, progress toward a wage and benefit adjustment
of the magnitude sought by the Respondent was much
slower. Del Monte conceded in his testimony the
Union's unwillingness to consider a cut in wages of the
magnitude sought by the Respondent. Del Monte's
report of the unit employee attitude as reflected in the
direction given the Union agents between the two bar-
gaining sessions to seek a pay freeze or a concession in
the range of 20 or 30 cents per hour strongly indicates
that they too were unwilling to readily accept Respond-
ent's proposed pay. The General Counsel attempts to de-
flect attention away from this central fact by arguing
that Respondent's wage proposal was arbitrary and ca-
pricious based on Sharkey's testimony that it was within
the range of wage rates at nonunion firms in the area.
That argument misses one central point, to wit, the wage
reduction Respondent sought to impose on the unit em-
ployees was also within the range of cuts already im-
posed on nonunit employees about 2 months earlier.
Fourth, at the conclusion of the second bargaining ses-
sion the Union specifically stated its unwillingness to rec-
ommend the Respondent's final proposal. This fact, cou-
pled with the concession made that employees could quit
to draw unemployment without a contest from Respond-
ent and the limited nature of concessions in the about-to-
be-ratified agreement with one of Respondent's competi-
tors, lends some credence to Downing's assessment that
the parties were at an impasse.
Despite the high probability that attempts to negotiate
a new agreement here would produce an impasse, I am
unable to conclude that an impasse-as the term has pre-
viously been used by the Board and the courts-oc-
curred so quickly. The question for me to decide is not
whether an impasse would occur but rather whether an
impasse did occur and, if so, when. Although the number
and extent of the bargaining sessions are not controlling
FRANCIS J. FISHER, INC.
considerations, 19 they are factors which, as the Taft
Broadcasting case suggests, are significant. When those
factors are coupled with the magnitude of the conces-
sions sought by Respondent, the bargaining here simply
does not reflect the type of fixed resolve on both sides
normally found in impasse situations.
Instead, the facts here show that the Union ap-
proached negotiations with a compromising attitude. In
the 3 or 4 hours of face-to-face negotiations, the Union
abandoned nearly all of its original proposals, accepted
the Respondent's position on overtime premium pay, dis-
cussed a potential pay reduction albeit not of the magni-
tude Respondent sought, achieved agreement for an al-
ternate course of action if employees were unable to
"live" on the pay scale Respondent proposed, and
achieved concessions from Respondent concerning the
health and welfare plan and the vacation moritorium. In
addition the Union sought an additional meeting to
present another proposal. Objectively viewed, these cir-
cumstances strongly suggest that the parties were not yet
completely deadlocked. Rather, they suggest that at least
the Union's position remained fluid while the parties en-
gaged in face-to-face negotiations.
Other atmospheric factors also detract from a conclu-
sion that the parties arrived at a deadlock after "exhaus-
tive" negotiations. Thus, because of Sharkey's unavail-
ability, the parties did not commence negotiations until
2-1/2 months after Respondent sent its termination notice
and 1-1/2 months after the Union made its initial propos-
al. When negotiations did commence, Respondent artifi-
cally compressed the time available for negotiations into
a 1-week period. Moreover, Respondent insisted on the
Union's acceptance of huge concessions without provid-
ing the Union with an opportunity to have Respondent's
financial records evaluated by independent experts. This
was at the very time when the Union was in the process
of concluding an agreement with one of Respondent's
competitors which involved concessions of a much
smaller magnitude.20 Although Respondent did provide
the union agents with the financial statements for the
previous 2 years plus the month of January, it is reasona-
ble to infer in light of the Union's request for a broader
independent analysis that its negotiators were not compe-
tent business analysts. In this circumstance, it would be
19 For example, in Betlem Service Corp., 268 NLRB 354 (1983), the
Board adopted Judge Ricci's conclusion that the parties there were at im-
passe following two formal negotiating sessions However , in that case,
the union adamantly refused to consider any agreement other than a new
agreement negotiated with another employer There the Board stated:
Generally, (we] will not find that an impasse has occurred unless the
negotiations between the parties have been exhaustive. Here, the par-
ties had engaged in only two formal bargaining sessions with subse-
quent contact through two telephone conversations . We agree with
the judge , however, that the Union's refusal to consider any agree-
ment other than the new local agreement caused impasse early in the
negotiations
But cf NLRB v Jacobs Mfg supra; Servir Equipment Co, 198 NLRB 266,
269 (1972)
20 The Respondent's most recent agreement with the Union contains
no "most favored nations" clause Whether the Threewit-Cooper agree-
ment contained such a clause is not known Regardless , the Union could
not have been expected realistically to agree on a $2.80 per hour wage
reduction on the very day it sought employee ratification to an agree-
ment with Respondent 's competitor calling for only a 40-cent-per-hour
wage reduction
821
unreasonable to conclude that the Union requested fur-
ther substantiation of Respondent's financial position
merely to prolong negotiations . Rather, an expert analy-
sis could have provided the union agents with a more
persuasive basis to educate unit employees for the need
to be more realistic about their expectations concerning
an agreement or to provide them with more convincing
arguments in further negotiations with Respondent.
Moreover, certain aspects of Respondent's financial
records in evidence indicate that an expert analysis
would be appropriate on the Union's part. Finally, Shar-
key's misapprehension that the terms of a collective-bar-
gaining agreement could be abrogated at the end of its
term like any ordinary contract suggests that the Re-
spondent's limitation on the bargaining process resulted
from a predetermined plan and not from an objective as-
sessment of the Union's bargaining flexibility.
For the foregoing reasons, I find that although obtain-
ing an agreement as circumstances existed here would
have been quite difficult, the parties had not yet reached
a complete deadlock when Respondent implemented the
new wage rates and abolished the pension contributions
of 9 March. Accordingly, by doing so, Respondent vio-
lated its duty to bargain in good faith as defined in Sec-
tion 8(a)(5) and (d) of the Act.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, oc-
curring in connection with the Respondent's business op-
erations, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several
states and tend to lend to labor disputes burdening and
obstructing commerce and the free flow of commerce.
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 a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All truck drivers and warehousemen, excluding
office and clerical employees, salesmen, executives,
foremen, and all supervisory employees with the au-
thority to hire, discharge, promote, discipline, or
otherwise effect changes in the status of employees.
4. By telling employees that there would be no union
after March 1987 and requesting that they inform Re-
spondent of the working conditions they desired after
March 1987, Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the
Act.
5. By unilaterally changing the wages and benefits of
employees on 9 March without agreement of the Union
or without reaching an impasse in negotiations concern-
ing such changes, Respondent engaged in an unfair labor
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
practice within the meaning of Section 8(a)(1) and (5) of
the Act.
6. The unfair labor practices specified in paragraphs 4
and 5, above , affect commerce within the meaning of
Section 2(7) of the Act.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent must cease and desist its unlawful conduct and
take the affirmative action specified below to effectuate
the purposes of the Act.
Affirmatively, Respondent must bargain in good faith
with the Union if requested to do so. Additionally, Re-
spondent must restore and maintain the terms and condi-
tions of employment of the unit employees to those spec-
ified in the collective-bargaining agreement , which ex-
pired 8 March 1987 until a new agreement is concluded
or a valid impasse in bargaining occurs.
The Respondent must also make unit employees whole
for the loss of pay they incurred as a consequence of the
unlawful change in their wage rate on 9 March 1987,
with interest . The amount of backpay due each employee
shall equal the difference between their pay as calculated
using the wage rate in the expired agreement and the
amount they actually received for the period beginning
on 9 March 1987 and ending on the date Respondent re-
stores the appropriate wage rate . The appropriate
method of determining backpay is specified in Ogle Pro-
tection Services, 189 NLRB 682, 683 (1970). The appro-
priate method of determining the interest on the backpay
due is specified in New Horizons for the Retarded, 283
NLRB 1173 (1987). Respondent must also make pension
plan contributions on behalf of the unit employees retro-
actively to 9 March 1987. The method of determining
the amount of those contributions and any interest there-
on is specified in Merryweather Optical Co., 240 NLRB
1213 (1979).
Finally, Respondent must post the attached notice to
inform employees of their rights and the outcome of this
matter.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
The Respondent, Francis J. Fisher, Inc., Denver, Col-
orado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing, on request, to bargain in good faith with
Local 13, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
AFL-CIO as the exclusive collective-bargaining repre-
sentative of its employees in the following appropriate
unit:
21 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-
All truck drivers and warehousemen, excluding
office and clerical employees, salesmen, executives,
foremen and all supervisory employees with the au-
thority to hire, discharge, promote, discipline, or
otherwise effect changes in the status of employees.
(b) Changing the terms and conditions of employment
of the unit employees from those specified in the collec-
tive-bargaining agreement with Teamsters Local 13,
which expired on 8 March 1987 without reaching an
agreement with Teamsters Local 13 concerning such
changes or a valid impasse in bargaining.
(c) Telling employees there would be no union when
its collective-bargaining agreement expires and request-
ing that they formulate their own terms and conditions
of employment for submission directly to Respondent.
(d) 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 designed to ef-
fectuate 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:
(b) Restore and maintain the wages, benefits, and other
terms and conditions of employment of the unit employ-
ees to those specified in the collective-bargaining agree-
ment, which expired on 8 March 1987, until a new agree-
ment is bargained or a valid impasse in bargaining
occurs.
(c) Make employees whole, with interest, for the dif-
ference in pay that they would have received under the
collective-bargaining agreement that expired on 8 March
1987 and the amount of pay they actually received for
the period following 9 March 1987 in the manner speci-
fied in the remedy section of the decision.
(d) Make all contributions required under the pension
plan established in the collective-bargaining agreement
that expired on 8 March 1987, with interest if any is re-
quired, in the manner specified in the remedy section of
the decision.
(e) 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.
(f) Post at its Denver, Colorado, facility copies of the
attached notice marked "Appendix."22 Copies of the
notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
22 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 "
FRANCIS J. FISHER, INC. 823
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the 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
After a hearing before an administrative law judge at
which we were provided with the opportunity to present
evidence and argument , the National Labor Relations
Board concluded that we violated the National Labor
Relations Act. To remedy this matter the National Labor
Relations Board has ordered us to post this notice and
comply with its terms.
The National Labor Relations Act gives employees
the right to organize themselves , to join or assist unions,
to engage in collective bargaining with their employers
through representatives freely chosen by a majority of
employees in an appropriate bargaining unit , to engage in
other group activities for the mutual aid and protection
on the job, and to refrain from any or all of the above
activities.
WE WILL NOT refuse to bargain in good faith with
Local 13, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America,
AFL-CIO as the exclusive bargaining representative of
our employees in the following appropriate unit:
All truck drivers and warehousemen , excluding
office and clerical employees, salesmen , executives,
foremen and all supervisory employees with the au-
thority to hire , discharge , promote , discipline, or
otherwise effect changes in the status of employees.
WE WILL NOT change the terms and conditions of em-
ployment established in our agreement with Teamsters
Local 13 which expired on 8 March 1987 until a new
agreement or a valid impasse in bargaining is reached.
WE WILL NOT tell employees there would be no union
when our collective -bargaining agreement with Team-
sters Local 13 expires and request that employees tell us
directly about the terms and conditions of employment
they want.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL , on request by Teamsters Local 13 , bargain
in good faith concerning rates of pay, wages , hours, and
other terms and conditions of employment for our em-
ployees represented by that union and, if an understand-
ing is reached, embody such understanding in a signed
agreement.
WE WILL restore and maintain the terms and condi-
tions of employment contained in our expired agreement
with Teamsters Local 13, including the wage rates and
pension benefits , until a new agreement or a valid im-
passe in bargaining is reached.
WE WILL make unit employees whole, with interest,
for the loss of pay they incurred because we unilaterally
established new wage rates on 9 March 1987 before an
agreement or impasse in bargaining with Teamsters
Local 13 was reached.
WE WILL make appropriate pension plan contributions
on behalf of the unit employees retroactively to 9 March
1987 , with interest if required , because we unilaterally
discontinued pension contributions on that date before an
agreement or impasse in bargaining with Teamsters
Local 13 was reached.
FRANCIS J. FISHER, INC.