J.D. Lunsford Plumbing

National Labor Relations Board - Board Decisions

Mar 12, 1981

254 N.L.R.B. 1360 (N.L.R.B. 1981)

Lunsford
10(c)
idop t s 'order
5409;
'
It
[hat
Srandard Inc., 1 (1950), 188
F.2d 1951).
27-
alia
Inc.,'
8(a)(5)
backpay
backpay
backpay
backpay
backpay
backpay
backpay
during
backpay
backpay
8(a)(5)
27-
CA-5409 backpay
backpay
backuav - .
regard
these
this
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. D. Plumbing, Heating and Air Condi-
tioning, Inc., and Lunsford Brothers Mechanical
Contractors, Inc. and Sheet Metal Workers In-
ternational Association, Local No. 9, AFL-CIO,
Cases 27-CA-5409 and 27-CA-6150
March 12, 1981

S U P P L E M E N T A L DECISION A N D

O R D E R

A N D DECISION A N D O R D E R

O n July 31, 1980, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and sup-
porting briefs, and Respondent filed an answering
brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative L a w
Judge and to adopt his recommended Orders.
O R D E R
Pursuant to Section of the National Labor
Relations Act. as amended. the National Labor Re-
lations Board as its the recommended
Orders of the Administrative Law Judge and
hereby orders that the Respondent J. D. Lunsford
Plumbing, Heating and Air Conditioning, Inc., and
Lunsford Brothers Mechanical Contractors, Inc.,
Grand Junction, Colorado, their officers, agents,
successors, and assigns, shall take the action set
forth in the recommended Order for Case 27-CA-
and that the complaint in Case 27-CA-6150
be, and it hereby is, dismissed in its entirety.
The Charging Party and the General Counsel have excepted to cer-
tain credibility findings made by the Administrative Law Judge. is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us the resolutions are incor-
rect. Dry Wall Producra 9 NLRB 544 enfd.
362 (3d Cir. We have carefully examined the record and find
no basis for reversing his findings.
SUPPLEMENTAL DECISION IN CASE
CA-5409 AND DECISION IN CASE 27-CA-
6150
RICHARD D. TAPLITZ, Administrative Law Judge:
These consolidated cases were heard at Grand Junction,
Colorado, on January 8 and 9. 1980.
On July 25, 1978, the National Labor Relations Board
issued its Decision and Order in Case 27-CA-5409 (re-
ported at 237 NLRB 128). The Board found inter
that J. D. Lunsford Plumbing, Heating and Air Condi-
tioning, Inc., and Lunsford Brothers Mechanical Con-
254 N L R B No. 170
tractors, herein jointly called Respondent or the
Company, violated Section of the National Labor
Relations Act, as amended, by making midterm modifica-
tions of the terms of a collective-bargaining agreement
with Sheet Metal Workers International Association,
Local No. 9, AFL-CIO, herein called the Union, and or-
dered that Respondent make its employees whole for any
losses they sustained by reason of its unlawful conduct.
The General Counsel issued a specification and
an amended specification on October 4 and 24,
1979, respectively. The amended specification
sets forth the amounts allegedly due to 16 employees and
to various union funds for pay periods April 28, 1977,
through March 30, 1979. It also alleges that the
period continues to run and that the March 30, 1979,
date is the cutoff date only for this specification.
Respondent filed timely answers to the original and
amended specifications. In addition Respondent
explicated its position on the record. Respondent stipu-
lated that the employees shown in the specifica-
tions were employees of the Company the time
periods covered, that they worked the hours shown, and
that they were paid the wages shown. Respondent con-
tends that the amended specification is incorrect
in three respects. The first is that the period
should have ended when an impasse was reached at a
bargaining session on November 29, 1977. The second is
that certain employees should have been classified as ap-
prentices rather than as journeymen and paid at an ap-
prentice rate. The third is that credit should have been
given for certain payments made to employees in excess
of the contract rate.
The charge in Case 27-CA-6150 was filed by the
Union on March 19, 1979. The complaint and two
amendments thereto issued on July 18, October 26, and
December 28, 1979, respectively, alleging that Respond-
ent violated Section and (1) of the National Labor
Relations Act on or about January 1, 1979, by engaging
in negotiations without attempting or desiring to reach
an agreement and on or about March 8, 1979, by unilat-
erally changing terms and conditions of employment in
the absence of an impasse.
By order dated October 24, 1979, the Regional Direc-
tor for Region 27 of the Board consolidated Case
(the specification) with Case 27-CA-
61 50 (the refusal-to-bargain case).
Issues
With regard to the specification the primary
issues are: Whether the . ueriod has ended and, if
so, when, whether certain employees designated as jour-
neymen should have been designated as apprentices with
to their rates of pay, and whether payments made
to employees in excess of the amount required by the
Board Order should be set off against the amount due.
With regard to the refusal-to-bargain case the primary
issues are: Whether Respondent engaged in surface bar-
gaining on and after January 1, 1979, and whether Re-
' By stipulation and joint motion of all parties the name of Respond-
ents was amended in all pleadings and papers related to proceedings
as shown in caption.
$50,000
rnean-
2(2), (6),
11.
2(5)
111. BACKPAY
backpay
1, D.
Colorado
[1977].
J.
1,
18
ment bargaining
U n i ~ n ] . " ~
e f f e ~ t e d . ~
backpay
1977,4
collective-barga~ning
w~thout
the provision
Inc., 190 NLRB 170 (197 I), w h ~ c h
spec~fically requlred
whlch
except~ons matter
IF
J . D . LUNSFORD PLUMBING 1361
spondent made an unlawful unilateral change in wages
and conditions of employment in the absence of impasse
on or about March 8, 1979.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Respondent, and the
Union.
Upon the entire record of the case and from my obser-
vations of the witnesses and their demeanor, I make the
following:
I. T H E BUSINESS OF RESPONDENT
As found by the Board, Lunsford Brothers Mechanical
Contractors, Inc., is the alter ego of or a single employer
with J. D. Lunsford Plumbing, Heating and Air Condi-
tioning, Inc. At all times material, those two firms have
been Colorado corporations which maintained their prin-
cipal offices and place of business at 2481 Commerce
Boulevard, Grand Junction, Colorado, where they have
been engaged in the business of plumbing and sheet
metal contracting. In the course of those business oper-
ations Respondent annually purchases and receives goods
and materials valued in excess of directly from
firms which, in turn, purchase those goods and materials
directly from points outside Colorado. Respondent is a
single employer engaged in commerce within the
ing of Section and (7) of the Act.
THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section of the Act.
THE PROCEEDING
A. Background
The original charge in Case 27-CA-5409 which even-
tually led to the hearing was filed on June 10,
1977, and a complaint issued in that case on August 10 ,
1977. The hearing in that case was held on November
10, 1977, and the Administrative Law Judge's Decision
issued on February 6, 1978. The Board's Decision and
Order issued on July 25, 1978. The Board adopted the
findings of the Administrative Law Judge as follows:
On o r about July 1975, Respondent J. Luns-
ford, then a member of Association of
Sheet Metal and Air Conditioning Contractors,
herein called the Association, became a party to a
collective-bargaining agreement having a term ef-
fective until June 30 However, subsequent
business losses led to loss of Respondent J. D. Luns-
ford's bonding with the result that it could no
longer compete in the same market, but instead was
forced to seek business in a nonunion market where
its competitors paid lower wages and benefits to
their employees. To survive, President Jimmy
Duane Lunsford decided to avoid further economic
obligations under the agreement by forming Re-
spondent Lunsford Brothers, using that entity to
continue the business of Respondent D. Lunsford,
and operating on a nonunion basis, paying less than
the contractually prescribed wages and benefits.
Thus, the operations of Respondent J. D. Lunsford
ceased at the end of April and Respondent Luns-
ford Brothers commenced those same operations on
May paying lower wages and providing benefits,
such as insurance and vacations, differing from
what the collective-bargaining agreement, the terms
of which Respondents ceased to apply, required.
Aside from a March letter stating that Respond-
ent J. D. Lunsford did not intend to "negotiate the
renewal of the contract," Respondents did not
notify the Union of the actions being taken.
The Administrative Law Judge dismissed that part of
the complaint which alleges that a supervisor had been
discharged in violation of the Act. The General Counsel
filed exceptions to that part of the Administrative Law
Judge's Decision and the Board found no merit to that
exception.
The Board adopted the Administrative Law Judge's
recommendations and ordered Respondent to bargain
with the Union and to make whole its employees for any
losses of benefits which would have accrued to them
under the collective-bargaining agreement but for the
failure of Respondent to apply the terms and conditions
of that agreement to those employees. The Board also
ordered Respondent to cease and desist from: "Changing
wage rates and other terms and conditions of employ-
. . . without prior notification to and
with [the There is nothing in the Board Order
that specifically states that Respondent had to restore the
status quo ante by rescinding the unilateral changes that
it At the hearing Respondent asserted that it
had received legal advice to make no changes in wages
during the pendency of the litigation. It further contend-
ed that even after the Administrative Law Judge's Deci-
sion issued it would have violated the recommended
order to change back unilaterally the wage structure to
that which was contained in the expired agreement. It
contended in effect that the procedures would
make the employees whole and that it was obligated to
bargain in good faith concerning any changes in the
wage structure that existed during the pendency of the
hearing. The Charging Party never disabused Respond-
ent with regard to that matter o r requested the rescission
of the unilateral changes. On December 8, Re-
spondent's attorney, Coleman, notified the Union by
The order also provided that, if a agreement
were in extstence. Respondent could not make changes the writ-
ten consent of Union. That did not apply as the contract
herein expired on June 30, 1977.
See Paramounr Plastic Fabricators.
involved facts similar to those at issue here. In that case the decision did
not provide that the employer was to rescind the
changes in terms and conditions of employment the employer uni-
laterally effected. The General Counsel filed on that
and the Board revised the recommended order to require such rescission.
requested by the union.
As is discussed below thrre had been a number of bargaining sessions
by that date.
DEClSlONS
Alleged Itnpasse
changes~while prog-
backpay
backpay
o c c ~ r r e d . ~
implemented
17 10.
this
unfatr
11,
Gardell
A1 Willis,
c ~ n t r a c t . ~
1977-78
9-3.
'
Willis
the
[he
1. That
Gaurhier
that
'
1981
1362 OF NATIONAL LABOR RELATIONS BOARD
letter that Respondent intended to grant a 25-cent-an-
hour pay raise. The Union's attorney, Brauer, responded
by letter dated December 21, 1977, saying that the Union
would file unfair labor practice charges if the Company
made unilateral negotiations were in
ress. In effect the Union was telling Respondent to keep
wages the way they were during negotiations. It did not
tell Respondent to raise wages to the rates set forth in
the expired contract. Respondent received little guidance
from the Regional Director's office on the matter. On
February 13, 1978, shortly after the Administrative Law
Judge's Decision issued, Region 27's compliance officer,
Jerry Legler, wrote to Respondent asking whether Re-
spondent intended to comply with the Administrative
Law Judge's Decision. By letter dated February 16,
1978, Company Attorney Coleman told the Regional
Office that it was taking steps to comply with that deci-
sion. In that letter Coleman stated that an impasse had
been reached on December 8, 1977, and that
would be computed until that date. The Region thereaf-
ter refused to follow up the matter because it filed excep-
tions to part of the Administrative Law Judge's Deci-
sion. On July 31, 1978, shortly after the Board adopted
the Administrative Law Judge's Decision, Legler again
wrote to Respondent asking whether it intended to
comply. By letter dated August 15, 1978, Respondent
stated that it did intend to comply. The letter again indi-
cated that the period ended December 8, 1977.
By letter dated August 29, 1978, the compliance officer
informed Respondent that an inquiry was being made as
to whether an impasse had been reached on December 8,
1977. Sometime thereafter the compliance officer notified
Respondent that the Region was taking the position that
no impasse was possible because Respondent had not ac-
tually reinstated the terms of the expired contract. Re-
spondent confirmed its understanding of the Region's po-
sition in a letter dated January 16, 1979. Because of the
Region's position Respondent reinstituted the old con-
tract terms in mid-February 1979. In its January 16,
1979, letter to the Region, Respondent stated that it in-
tended to reinstitute the terms of the union agreement
but that that action should not be viewed as an admission
that it was obligated to do such or as a waiver of its ar-
gument that an impasse had
The Union made efforts to begin bargaining sessions
with Respondent even before the complaint issued in
Case 27-CA-5409. The first of a series of such meetings
was held on August 11, 1977, the day after the complaint
issued in Case 27-CA-5409. Further negotiating sessions
were held on November 3, 10, and 29, 1977. By letter
dated December 8, 1977, Respondent contended that an
impasse had been reached at the November 29 meeting.
The details of the negotiating sessions must be consid-
ered to determine whether there was in fact an impasse.
Consideration must also be given to the question of
whether an impasse could exist at a time when Respond-
ent had not reinstated the terms and conditions of the ex-
pired contract.
Respondent the expired contract terms from about Feb-
ruary until about March 1979. when i t reduced the rates. That
matter is discussed in full in the section of Decision relating to the
labor practices.
B. The
1. The bargaining sessions leading to the alleged
impasse
The Union presented its proposals to the Company at
a meeting on August 1977. On that date Union Busi-
ness Representatives Leroy Gauthier and Jack
met with Company Official J. D. Lunsford and the Com-
pany's accountant, in the company office.
Lunsford asked what the Union's proposals were and
Gauthier replied that the Union was proposing the stand-
ard association Gauthier took a copy of the
Association contract (referred to as the standard
contract) and offered it to Lunsford. Lunsford said that
he did not want the standard contract and Gauthier re-
plied that he could not offer anything different from that
which the Union offered at the multiemployer bargaining
session. Lunsford asked why, and Gauthier answered by
showing him a "most-favored-nations clause" which was
entitled "preferential clausew7 which read:
The Union agrees that if during the life of
this Agreement, it grants to any other Employer
in the Sheet Metal, Roofing, Ventilating and Air
Conditioning Industry, for work in the State of
Colorado, any better terms or conditions than
those set forth in this Agreement, such better
terms or conditions shall be made available to the
Employer for all jobs in Colorado and the Union
shall immediately notify the Employer of any
such concessions.
Gauthier said that he could not give the Company any-
thing better than the provisions of the standard contract
without going back and offering everyone else the same
thing. Lunsford replied that he could not live with the
standard contract and he gave details of the Company's
economic difficulties. Company Accountant of-
fered to show the Union the company books to establish
that it did not make any money and Gauthier responded
that he was not interested in looking at the books.
Gauthier said that he could sympathize with the Compa-
ny's position but that frankly he would rather have the
Company bankrupt than have the Company against the
Union.
Some of the above findings are based on the testimony
of J. D. Lunsford. Gauthier acknowledged in his testimo-
ny that the Union offered the terms of the standard con-
tract to the Company at the August 11, 1977, meeting.
He denied that he told the Company that a contract
The association contract to which the Company had been bound ex-
pired on June 30, 1977. Sometime prior to August 1 1 , 1977. Union
and Association had entered into a new associationwide contract that
was effective July 1977, through June 30. 1978. new contract was
the one to which was referring There is no contention that the
new association contract was binding on the Company. The parties are in
agreement the bargaining was to be on an individual basis.
The same clause was also contained in the Association's 1975-77 con-
tract with the Union to which the Company was bound. The clause also
appears in the Association's 1978 through agreement with the
Union.
PLUMBING 1363
l I,
Gardell,
10,
jobsites,
1,
ses-
sionse
1
counter-
10
4:30
10
he
16
30 12
15
10 13
16
" meetlngr
discussed helow In the
8(a)(S)
J . D. LUNSFORD
better than the standard contract could not be given be-
cause of the most-favored-nations clause. However, other
facts admitted by Gauthier point to the conclusion that
as a practical matter the Union could not even seriously
consider granting more favorable conditions to the Com-
pany than those that were contained in the standard con-
tract. The Union is a statewide local and negotiates
through a statewide negotiating committee. The standard
contract covers some 70 employers. The Union has no
contracts with construction industry employers that have
more favorable wage rates for the employer than the as-
sociation contract. There is an addendum to the standard
contract that allows certain reduced rates when there is
nonunion competition but that addendum was available
to all association contractors that requested it. The
Union offered that addendum to the Company as a sup-
plement to the standard contract. Under the terms of the
most-favored-nations clause of the standard contract, the
Union would have had to give reduced benefits to all
employers bound by the standard contract if it gave
them to the Company. The Company had a handful of
employees. If the Union granted a wage rate to the Com-
pany that was less than the standard contract, that re-
duced wage rate would have been applicable to many
thousands of employees covered by the standard con-
tract. The Union had put itself into a position where it
would have destroyed what it gained by its association
wide bargaining if i t agreed to accept anything less than
the terms of the standard contract from the Company.
Both the Company and the Union knew that that was
the situation and Lunsford's testimony that Gauthier
openly admitted it was credible. Where Gauthier's testi-
mony regarding the August 1977, conversation con-
flicts with that of Lunsford, I credit Lunsford.
By letter dated September 21, 1977, the Company's at-
torney, Coleman, sent a detailed counterproposal to the
Union and requested that negotiations be scheduled
promptly. After an exchange of letters and a number of
phone calls, Coleman apparently decided that the Union
was attempting to delay negotiations and the Company
filed a refusal-to-bargain charge against the Union.
Thereafter a negotiating session was scheduled for No-
vember 3, 1977, and the Company withdrew the unfair
labor practice charge.
On November 3, 1977, the Union's business manager,
Curtis Guidry, and the Union's business representative,
met with Lunsford and Company Attorney
Coleman in Coleman's office. Negotiations took place at
that time. The same parties met to negotiate on Novem-
ber 1977. The final negotiation before the alleged im-
passe took place on November 29, 1977. The same par-
ties were present at that meeting except that Company
Attorney Richard Krohn substituted for Coleman. At
each of the meetings the parties discussed all the items in
the Company's counterproposal that had been sent to the
Union on September 21, 1977. That counterproposal was
in the form of a complete proposed contract. In each of
the meetings the company representative stressed the
Company's poor financial picture and claimed that they
were unable to meet the Union's eccnomic demands.
At the November 3, 1977, meeting, agreement was
reached with regard to a number of peripheral and none-
conomic matters. The parties agreed to clauses relating
to definitions, coverage of the agreement, subcontractor
limitations, prefabrication limitations, work to be done by
sheet metal workers. workmen's compensation insurance,
application of laws, the Union's furnishing of qualified
men, nondiscrimination, union access to neces-
sary licenses, initial grievance procedure, and the con-
tract term (July 1977, through June 30, 1980). At the
November 10, 1977, meeting agreement was reached
with regard to clauses relating to union security, holiday
pay, and coffeebreaks. At the November 29, 1977, meet-
ing agreement was reached with regard to clauses relat-
ing to special shifts, mileage allowance, number of fore-
men, selection of vacation time, and employee tools. No
agreement was reached during those negotiating
on the bulk of the matters discussed during those
meetings. A detailed analysis of negotiations is necessary
to show the pattern that emerged from the various posi-
tions taken by the parties.
The Union's original offer (the standard contract) pro-
vided that a steward would be retained as long as three
o r more men were working. On November 3, 1977, the
Company counterproposed steward per 10 employees
and the Union counterproposed I steward for 2 or more
men. On November 10, 1977, the Company proposed
one steward per eight employees and the Union
proposed one for three employees. On November 29 the
Company proposed one steward per seven employees
and the Union's position remained unchanged.
The Union originally offered that with regard to refer-
rals the employer had the right to obtain employees from
sources other than the Union if the Union were unable to
furnish men within 48 hours. On November 3 the Com-
pany proposed that the Union have 24 hours to furnish
men and the Union counterproposed that it have 5 work-
ing days. On November the Company's position was
unchanged and the Union proposed 72 hours. On NO-
vember 29 the company position was again unchanged
and the Union proposed 3 days.
The Union originally proposed three shifts with 8
hours' pay for 7-1/2 hours' work on the swing shift and
8 hours' pay for 7 hours' work on the graveyard shift.
On November 3 the Company proposed a regular shift
between 8 and p.m. with time and a half for other
hours and the Union counterproposed the same hours for
a regular shift with double time for other hours. The po-
sition of the Company and the Union remained un-
changed at the November and 29 meetings.
Union's original offer proposed that employees re-
quired to travel in their own vehicles more than 20 miles
were to be paid cents for each additional mile. On
November 3 the Company proposed miles and
cents for additional miles. The Union counterproposed
free miles and 30 cents per additional mile. On No-
vember the Company offered 30 free miles and
cents per additional mile and the Union's position re-
mained unchanged. On November 29 the Company pro-
posed 20 miles and cents for each additional mile. The
A number of were held after the alleged impasse. Those
meetings are in detail section dealing with the new
allegation.
I364
1,
fund.g
1,
1,
1, $1
1,
1,
1,
1,
$11.60
1, 1,
1.
10
rate.1°
associa-
tionwide of
coun-
orig~nal oifer varlous ir~nge
l o IS
10
showup
showup
10
showup
10
1
1
12
three-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union agreed to the 20 free miles but its position re-
mained unchanged with regard to the mileage rate.
The Union's original offer proposed journeyman
wages effective July 1977, of $11.35 per hour of which
50 cents was to go to a vacation On November 3
the Company proposed journeyman wages of $10 an
hour effective June 1, 1977, $10.35 an hour effective De-
cember 1, 1977, $10.60 an hour effective June 1978,
$10.95 an hour effective December 1978, $1 1.30, an
hour effective June 1979, and 1.70 an hour effective
December 1979. At that meeting the Union counter-
proposed journeyman wages of $12.05 an hour effective
July 1, 1977, $13.40 an hour effective July 1, 1978, and
$14.60 an hour effective July 1979. At the November
10 meeting the Company raised its offer to $10.50 an
hour effective June 1977, $10.75 an hour effective De-
cember 1, 1977, and $10.93 an hour effective June
1978. The Union did not change its position. At the No-
vember 29 meeting the company position remained un-
changed and the Union offered an hour effective
July 1977, $12.50 an hour effective July 1978, and
$13.40 an hour effective July 1979.
The Union's original offer proposed a sliding scale of
pay for apprentices keyed to percentages of journey-
man's rate. The proposal called for 45 percent for the
first 6 months of apprenticeship and increases every 6
months until 80 percent was reached after the eighth 6
months. On November 3 the Company proposed a scale
from 40 percent for the first 6 months up to 75 percent
for the eighth 6 months and the Union counterproposed
50 percent for the first 6 months up to 90 percent for the
eighth 6 months. On November the Company pro-
posed an increase in the journeyman's rate together with
a decrease in the percentage apprenticeship The
offer ranged from 33 percent for the first 6 months to 75
percent for the eighth 6 months. The Union's position
was unchanged. At the November 29 meeting the com-
pany position remained unchanged and the Union pro-
posed 45 percent for the first 6 months up to 85 percent
for the eighth 6 months.
The Union's original offer proposed that there could
be one apprentice for one journeyman and an additional
apprentice for each four additional journeymen. At the
November 3 meeting the Company proposed four ap-
prentices for each journeyman and the Union counter-
proposed one apprentice for eight journeymen. At the
November 10 meeting the Company proposed three ap-
prentices for each journeyman and the union position re-
mained unchanged. At the November 29 meeting the
company position remained unchanged and the Union
proposed one apprentice for a journeyman and an addi-
tional apprentice for each five journeymen.
The Union's original offer proposed a detailed
welfare fund with employer contributions 50
cents per hour. At the November 3 meeting the Compa-
ny proposed that the Company pay one-half of the cost
of a group medical plan for employees. The Union
terproposed that the Company pay the full cost of a
group medical plan for employees and dependents plus
The also included additional benefits.
These are discussed separately below.
The journeyman rate discussed above.
dental coverage. At the November meeting the Com-
pany offered to add dependents to its original offer and
the Union position remained unchanged. There was no
change on either side at the November 29 meeting.
The Union's original offer proposed that foremen re-
ceive $1 per hour more than journeymen. At the No-
vember 3 meeting the Company proposed $1 per hour
extra and the Union proposed $1.50 per hour extra. The
parties did not change their positions at the November
10 meeting. At the November 29 meeting the company
position remained unchanged and the Union offered
$1.20 per hour extra.
The Union's original offer proposed that wages be
paid by cash or check and that no more than 3 days' pay
be withheld. At the November 3 meeting the Company
proposed that not more than 5 days' pay be withheld.
The Union counterproposed 2 days. There was no
change on either side at the November 10 meeting. At
the November 29 meeting the Company did not change
its position and the Union proposed that no more than 3
days' pay be withheld.
The Union's original offer proposed that employees be
entitled to 2 hours time. At the November 3
meeting the Company proposed 1 hour time and
the Union counterproposed 4 hours. The positions re-
mained the same at the November meeting. At the
November 29 meeting the Company did not change its
position and the Union proposed 2 hours' time.
The Union's original offer proposed a continuation of
an industrywide retirement trust with employer contribu-
tions of $1.30 per hour toward the Local pension and 11
cents per hour toward the national pension. At the No-
vember 3 meeting the Company proposed that there be
no retirement benefits and the Union counterproposed a
retirement plan providing for an employer contribution
of $60 per week per employee. There were no changes
in positions at the November 10 and 29 meetings.
The Union's original offer proposed a continuation of .
an industry wide training fund with the Company to pay
8 cents per hour. At the November 3 meeting the Com-
pany proposed that there be no training fund and the
Union counterproposed a training fund with 15 cents per
hour. At the November meeting the Company pro-
posed a training fund with payments of $3 per month for
each journeyman. The Union's position remained un-
changed. At the November 29 meeting the Company's
position remained unchanged and the Union proposed a
training fund with payments of 10 cents per hour.
The Union's original offer proposed a detailed vaca-
tion fund with employer contributions of 50 cents per
hour. At the November 3 meeting the Company pro-
posed 1 week's vacation after year, 2 weeks after 2
years, and 3 weeks after 12 years. The Union counter-
proposed 2 weeks after year, 3 weeks after 2 years, and
5 weeks after years. There was no change at the No-
vember 10 meeting. At the November 29 meeting the
company position remained unchanged and the Union
proposed 2 weeks' vacation.
The Union's original offer proposed arbitration before
a local and national joint adjustment board. At the No-
vember 3 meeting the Company proposed a
PLUMBlNG
1,
1,
contract.12
terms
backpay
Inc.,
Hen-
(1969),
F.2d
11, Galvaniz- *
ing, Znc.,
Taft Broadcasting
(1967), F.2d
1968),
empl~ymen t .~
proposal^.^
" Artor-
D.
" Th~s
J . D. LUNSFORD 1365
member arbitration board with one selected by the em-
ployer, one by the Union, and one by the other two des-
ignees. The Union counterproposed that the Union select
all arbitrators and that the employer pay the costs. The
positions remained unchanged at the November 10 meet-
ing. At the November 29 meeting the company position
remained unchanged and the Union proposed that the ar-
bitrator be selected by the Federal Mediation and Conci-
liation Service and be paid for by the employer.
The Union's original offer proposed a 1-year contract
from July 1977, to June 30, 1978. At the November 3
meeting the Company proposed a 3-year contract from
July 1977, to June 30, 1980, and the Union agreed. At
the November 10 meeting the Company reproposed the
1-year contract and the Union proposed the 3 years.
There was no change of position at the November 29
meeting.
The Union's original proposal was that the terms of
the standard contract be applied. At the November 3
meeting the Union informed the Company that as part of
that standard agreement any contractor that reguested it
could have a clause which allowed that company to pay
75 percent of the wage rates in certain situations where
there was nonunion competition. The Company was of-
fered that clause on condition that it execute the stand-
ard contract. That proposal was discussed at various
meetings but no agreement was reached. The Union con-
sistently took the position that the 75-percent addendum
was an addendum to the standard contract which meant
the association contract. The Company consistently took
the position that the standard contract would drive the
Company out of business.
2. Summary of the bargaining sessions through
November 29, 1977
On August 11, 1977, the Union proposed that the
Company accept the terms of the 1977-78 association
contract. Union Business Representative Gauthier told
the Company that the Union could not accept anything
different from the terms of the association contract be-
cause of the most-favored-nations clause in that contract
that would require the Union to give all members of the
association any better terms that-had been given to the
Company. Gauthier indicated that he had sympathy with
the Company's position but he would rather see the
Company bankrupt than have the Company against the
Union. At the November 3 meeting the Company made
a number of proposals. The Union agreed to a number of
peripheral and noneconomic matters and made a number
of counterproposals. Those counterproposals and the
Union's subsequent conduct during negotiations estab-
lished a pattern. The Union gave the Company only two
choices. The Company could either accept the terms of
the standard contract or could pay substantially more
than the terms of that contract. The Union's idea of bar-
gaining was to take its own original offer and add more
onerous terms for the Company. It was only willing to
bargain down from the higher point to the terms of the
This finding is based on the credited testimony of Company
ney Coleman and J . Lunsford.
standard The Union had put itself in that po-
sition through signing a most-favored-nations clause with
the Association where as a practical matter it could not
offer any better terms to the Company. If it gave better
terms to the Company who employed only a handful of
employees it would have had to give the same terms to
all the Association's members. In effect, a hair on the tail
of the dog would have wagged the whole dog. The evi-
dence does not establish that the Company was doing
other than honestly bargaining in an attempt to reach an
agreement that it believed it could live with within its
economic circumstances. The Company was not pre-
pared to agree to the terms of the association contract
which it believed would lead to its bankruptcy. By the
completion of the November 29, 1977, meeting it was
clear from the Union's offers that nothing less than the
of the association contract would be considered
and that if the Company refused to agree to such terms
the Company could only obtain terms that were even
more onerous from the Company's point of view. Also
by the November 29, 1977, meeting it was abundantly
clear that the Company would not agree to the terms of
the standard contract and would certainly not agree to
anything that would cost it more than that contract.
3. Conclusions as to the ending of the

period

An employer has an obligation to continue to follow
the terms and conditions of employment set forth in an
expired contract until it has bargained to an impasse with
the collective-bargaining representative of its employees.
Wayne's Olive Knoll Farms, d / b / a Wayne's Dairy.
223 NLRB 260 (1976); Harold W. Hinson, d / b / a
house Market No. 3, 175 NLRB 596 enfd. 428
133 (8th Cir. 1970). Even if an impasse is reached a
unilateral change cannot be made unless it is reasonably
encompassed by the employer's preimpasse proposal.
Allen W. Bird 227 NLRB 1355 (1977); Ace
217 NLRB 144 (1975). The controlling law is
succinct1 y set forth in Co.. WDAF AM-
FM TV, 163 NLRB 475, 478 enfd. 395 622
(D.C. Cir. where the Board held:
An employer violates his duty to bargain if, when
negotiations are sought or are in progress, he unilat-
erally institutes changes in existing terms and condi-
tions of On the other hand, after bar-
gaining to an impasse, that is, after good-faith nego-
tiations have exhausted the prospects of concluding
an agreement, an employer does not violate the Act
by making unilateral changes that are reasonably
comprehended within his pre-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 ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
included the 75-percent addendum clause which was available
to all employers who signed the association contract.
BOARD
tiations
A'. Kurz, erc.. d / b / a Williumsburg Sreel Prcd-
ucts U.S
.&!L.R.B. lnrracwsral Terminul. Inc.. er ub, F.2d 954
(C.A.
Toft
of
fruitful.17
' 7
backpay
NO-
and
of [Bethlehem Stee/
'V.L.R.B., F.2d
i.e.,
backpay period
'"ecause thls linding
d ~ d
change. nccewary
duty requesl
Union
1366 DECISIONS OF NATIONAL LABOR RELATIONS
are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
L.R.B. v . Benne

Co.. 369
736.
v.
286
5 ) .
As the circuit court held in enforcing the Board's
decision (sub nom. American Federation Television and
Radio Artists v. N.L.R.B.) at 628:
It is indeed a fundamental tenet of the act that even
parties who seem to be in implacable conflict may,
by meeting and discussion, forge first small links
and then strong bonds of agreement. But some bar-
gaining may go on even in the presence of dead-
lock. Here the continued meetings and occasional
progress-facts by no means immaterial-were
overborne in the Board's view by the conceded im-
passe on the critical issues of staff assignment on
which the progress had been "imperceptible" and,
indeed, had led in some aspects, each party claimed,
to a widening of the gulf between them. As we see
it, the Board's finding of impasse reflects its conclu-
sion that there was no realistic possibility that con-
tinuation of discussion at that time would have been
This is a sound standard of deadlock.
Unlike the above cases, in the instant situation there
was no unilateral change after bargaining. Here the uni-
lateral change was the subject of an unfair labor practice
litigation and there were no changes in the terms and
conditions of employment during the bargaining itself or
at the time of the alleged impasse. As is set forth above,
when the Company declared that an impasse had taken
place i t proposed putting a 25-cent-per-hour wage raise
into effect and the Union in substance said that no
changes could be made at that time. In the circumstances
of this case if a lawful impasse had been reached the
Company's obligation would have ended. The
two key questions are whether an impasse in the sense of
deadlock did exist and whether a legally recognizable
impasse was possible at the time when the Company had
not vacated its prior unilateral changes and reinstated the
contract terms.
With regard to the first question, I find that the Com-
pany and the Union were deadlocked at the November
29, 1977, meeting. As is set forth above, by that time the
Union had clearly demonstrated its intention to take
nothing less than the terms and conditions of the stand-
ard contract. Its bargaining consisted of making demands
which made it clear to the Company that if the Compa-
ny did not accept the standard contract it would have to
pay more than any of the Association's members. By
vember 29 it was equally clear that the Company was
not going to agree to the terms of the standard contract.
At that point the parties had reached a dead end in the
bargaining. They were at impasse.
The second question is whether the Company's failure
to vacate its prior unilateral changes contributed to the
deadlock and therefore barred the claim that a lawful im-
passe had been reached. As the Third Circuit Court of
Appeals held in Industrial Union of Marine Shipbuild-
ing Workers America, AFL- CIO Com-
pany] v. 320 615, 621 (3d Cir. 1963):
But it is manifest that there can be no legally cogni-
zable impasse, a deadlock in negotiations which
justifies unilateral action, if a cause of the deadlock
is the failure of one of the parties to bargain in good
faith.
In the instant case the evidence does not establish that
the Company's bargaining was in bad faith. The issue is
whether the Company's unvacated, unlawful unilateral
changes contributed to the deadlock in such a manner as
to prevent a lawful impasse. In the circumstances of this
case I find that there was no causal connection between
the Company's failure to reinstate the terms of the ex-
pired contract and the subsequent deadlock in negotia-
tions. In the ordinary situation a serious argument can be
made that the closer the initial bargaining positions of
the parties are the more likely it is that an agreement can
be reached. However, the Union's position during bar-
gaining shows that this was not the case. No matter what
the starting point of the Company's offer the Union was
simply unprepared to take anything less than it had ob-
tained from the Association's members. When the Com-
pany indicated that it intended to give a wage increase
the Union protested and informed the Company that any
such raise would be a violation of the Act. The Union
never demanded that the Company reinstitute the con-
tract terms before bargaining could begin. The Union's
bargaining stance indicated that it was not concerned
with the old contract terms, it was concerned with
bringing the Company up to the Association's standards
so that the most-favored-nations clause of the Associ-
ation's contract could not be put into effect to reduce as-
sociation rates. The Company and the Union had a dis-
pute as to whether the original unilateral change was
lawful or unlawful. They both undertook to bargain
while that dispute was being adjudicated. They met and
bargained on November 3, 10, and 29, 1977, at which
time they were deadlocked. The Administrative Law
Judge's Decision did not issue until February 6, 1978,
well after the deadlock took place. Industrial stability is
enhanced when the parties to a dispute under litigation
sit down and bargain with each other. Such bargaining
should be encouraged. Here the parties did just that, but
now the Union claims that the Company's bargaining
was meaningless because the Company later lost the liti-
gation.
Under all these circumstances I find that the parties
reached an impasse on November 29, 1977, and that the
ended on that date.'"
of i t is unnecessary to evaluate Respondent's
claim that the Board Order not require it to vacate the unlawful uni-
lateral Nor is i t to decide whether the Company had a
to vacate the unilateral change in the absence of a by the
to do so. See fn. 3 above.
PLUMBING
Srarus the
the Payments the Conrracr
backpay
backpay
backpay.
Teare,
Teare,
backpay
backpay l4
backpay
serv-
''
backpay
backpay 19
contention
backpay.
backpay.
backpay
backpay
backpay
~ossiblv might -
backpay
Compurations
backpay
J . D. LUNSFORD 1367
C. The Alleged Journeyman of Employees
and Above Rare
As is set forth in the specification, the back-
pay period commenced on April 28, 1977. As found
above an impasse was reached and the period
ended on November 29, 1977. As is set forth in the back-
pay specification Respondent employed five employees
during that period. Only those five employees are enti-
tled to They are Gary Bowerstock, Edgar
Gassman, Donald Clyde Younger, and Bryan Em-
erson. Respondent did not offer evidence to contest the
fact that Bowerstock, Gassman, and Younger
should be considered journeymen for purposes.
Respondent contends however that Emerson should be
considered an apprentice rather than a journeyman for
the computation.
Emerson was hired during the week of April 29, 1977,
at a straight time hourly rate of $5 an hour. At that time
Respondent employed no apprentices and, according to
the testimony of Lunsford, Emerson was hired as an ap-
prentice. Emerson had no experience in sheet metal work
at the time of his hire. He was given books to study at
home and he worked under the direct supervision of a
journeyman. The July 1, 1975, through June 30, 1977,
standard agreement, the terms of which Respondent was
obligated to follow until the end of the period,
sets forth an hourly rate to be paid to journeymen and a
percentage of that rate to be paid to apprentices. There
are detailed provisions in that contract relating to ap-
prentices. Apprentices under the agreement are to be
under the supervision and control of a joint apprentice-
ship and training committee composed of six members,
three of whom are selected by the employer association
and three by the Union. There is no specific definition of
journeyman contained in the contract. However, article
12, section 12-5, provides in part that:
. . . each apprentice shall serve an apprenticeship of
four (4) years and such apprentices shall not be put
in charge of work on any job and shall work under
the supervision of journeymen until apprenticeship
terms have been completed and they have qualified
as journeymen.
Union Business Representative Gauthier credibly testi-
fied that the apprenticeship program lasts 4 years and
upon successful completion of the program an employee
becomes a journeyman.
Emerson was hired without any experience and with-
out any participation in the apprenticeship program. He
did not participate in the industry's apprenticeship pro-
gram which was spelled out in the contract and in that
sense the term "apprentice" as used in the contract did
not apply to him. However, the term "journeyman" as
used in the contract even more clearly did not apply to
him. T o be a journeyman under the terms of that con-
tract a new employee had to go through 4 years of
Respondent also contends that other employees who were hired
after November 29, 1977, were apprentices rather than journeymen.
However, as I have found that no is due lo any employee who
was hired after the expiration of the period, there no need to
consider Respondent's in that regard.
ice as an apprentice. Emerson did not go through the
necessary apprenticeship to become a journeyman and he
had no experience that could conceivably qualify him as
a journeyman in any sense of the word. There is nothing
in the contract which would require a new employee
such as Emerson to be paid a journeyman rate. A full
remedy requires that Emerson be put in the position he
would have been in had the contract terms been hon-
ored. He was clearly not entitled to a journeyman rate
under the contract and even if the contract had been
fully honored he would not have received it. The re-
quirement that he be paid a journeyman rate would
amount to a penalty rather than a remedy. The applica-
ble standard contract does not contain a specific catego-
ry that fully applies to Emerson. He was not a journey-
man and he was not an apprentice under the industry's
apprenticeship program. However, as a new employee
without any experience his status was clearly analogous
to a beginning apprentice and it is appropriate to use the
contract rate for such apprentices in determining his
The applicable standard contract provides that
apprentices during their first 6 months of apprenticeship
were to be paid 45 percent of the journeyman rate and
during the second 6 months they were to be paid 50 per-
cent of the journeyman rate. Those figures are to be used
in computing Emerson's entitlement to
For a limited number of hours during the
period some employees were paid more than the con-
tract rate. In the specification counsel for the
General Counsel did not deduct the amount paid in
excess of the contract rate from the total amount of
due. When the Region's compliance officer,
Jerry Legler, called the company office to ask the cir-
cumstances under which the extra rates were paid he
was told that they were paid under various contracts or
Government work where there have been
a predetermined wage rate. The General Counsel takes
the position that those excess payments would have been -
made for the time involved even if the full contract rate
had been paid for all other times. On that theory if the
contract had been fully honored the contract rate would
have been paid for all such other times even if extra pay
was given during the limited times that outside circum-
stances requiredthe higher rate. The General Counsel's
argument appears plausible and Respondent has not of-
fered any evidence to indicate otherwise. Those hours
which were paid in excess of the contract rate will not
be considered in determining the amount of due
and the extra pay will not be credited against the hours
for which the employees were paid less than that to
which they were entitled under the contract terms.
D. The ond Conclusions
The computations for the calculation of and
payments due to the various benefit funds are set forth in
detail in the annexed Appendixes A-L [omitted from
publication]. I find that the obligation of Respondent to
make whole the employees and the funds will be dis-
charged by payment of the sums set forth in those ap-
pendixes less tax withholdings required by Federal and
state laws. No interest is due on the amounts paid to the
BOARD
funds.'"nterest
1 l 6
$
Teare
&
&
l 5
benelit Firr-
parrick Elecrric, Inc..
Optical Cornpony, 1216,
ad~udica-
fund
In
These determined,
w~thheld,
Roofing Lfd., the
addltlonal
evidence,
to
l o Isis & 138
Sec. 102.46
conclus~ons,
Sec.
I.AROR PRACTICI: PR0CEEI)ING-
CASE
Backgrour~d and Se.cri0n.s Ajier
.Vovember 29,
8(a)(5)
1,
ekployees
backpay
Gardell
27-
Gardell.
Gardell
bargain.I8
Gardell
' 0 Gardell testified
negorlarlons. that 11
1368 DECISIONS OF NATIONAL LABOR RELATIONS
various on the amounts due to the em-
ployees is to be determined in the manner set forth in
Florida Steel Corporation, 231 NLRB 65 (1977). In
summary, the amounts due, before the addition of inter-
est on the amounts due to the employees, are:
Gary Bowerstock 543.20
Edgar Gassman 509.58
Donald 4 14.40
Clyde Younger 1,456.92
Bryan Emerson 485.06
Vacation fund 1,890.00
Health welfare fund 1,512.00
Local pension fund 3,968.97
National pension fund 415.77
SASMI 1,250.68
Apprenticeship training 264.54
Industry fund 264.54
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in this proceeding, I
hereby issue the following recommended:
The Respondent, J. D. Lunsford Plumbing, Heating
and Air Conditioning, Inc., and Lunsford Brothers Me-
chanical Contractors, Inc., Grand Junction, Colorado, its
officers, agents, successors, and assigns, shall: Satisfy its
obligation to make employees and various funds whole
by making the payments set forth in the section of this
Decision entitled "The Computations and Conclusions"
and in the appendixes annexed hereto [omitted from pub-
lication], plus interest as is set forth in that section of this
Decision.
The Board has held that the formula used tn computing interest on
wages due does not apply to payments due employee funds.
242 NLRB 739 (1979). As the Board held in
Merryweorher 240 NLRB 1213, fn. 7 (1979):
Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the
tory stage of a proceeding for the addition of interest at a fixed rate
on unlawfully withheld payments. We leave to the compliance
stage the question whether Respondent must pay any additional
amounts into the benefit funds order to satisfy our "make-whole"
remedy. additional amounts may be depending
upon the circumstances of each case, by reference to provisions in
the documents governing the funds at issue and, where there are no
governing provisions, to evidence of any loss directly attributable to
the unlawful withholding action, which might include the loss of
return on investment of the portion of funds additional ad-
ministrative costs, etc., but not collateral losses.
This proceeding is the compliance stage of the case but none of the
documents governing the funds except for the expired contract was put
in evidence and the contract gives no guidance on that issue. Cf. Peerless
Co.. 247 NLRB No. 72 (1980). There is no evidence in
record "of any loss directly attributable to the unlawful withholding
action, which might include the loss of return on investment of the por-
tion of funds withheld, administrative costs, etc., but not col-
lateral losses." In the absence of such documents or I must
hold that there is no interest due on amounts to be paid the funds.
See, generally. Plumbing Hearing Co.. NLRB 716 (1962).
In the event no exceptions are filed as provided by of
the Rules and Regulations of the National Labor Relations Board, the
findings, and recommended Order herein shall, as provided
in 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes.
I V . 'THE UNFAIR

27-CA-1650

A. the Bargaining
1977
The complaint in Case 27-CA-6150 alleges two viola-
tions of Section of the Act. The first is that since
January 1979, Respondent engaged in negotiations
without any sincere attempt or desire to reach agreement
on the terms of a contract. The second is that on March
8, 1979, Respondent made unilateral changes in the terms
and conditions of employment of its during
negotiations for a bargaining agreement at a time when
no impasse existed in bargaining.
The matters relating to the proceeding, which
are discussed above, will all be considered as background
in evaluating the new allegations. Though the violations
alleged in the complaint did not occur until on and after
January 1, 1979, the chronology resumes with the events
that occurred after the November 29, 1977, negotiating
session.
In a letter from the Company to the Union dated De-
cember 8, 1977, the Company contended that an impasse
had been reached and informed the Union that the Com-
pany was going to grant a 25-cent-per-hour raise. In a
letter from the Union to the Company dated December
21, 1977, the Union denied that an impasse had been
reached and informed the Company that if any unilateral
change was made an unfair labor practice charge would
be filed. The Company did not grant the increase.
On January 31, 1978, Union Business Manager Guidry
and Union Business Representative met with J.
D. Lunsford and Company Attorney Coleman. The
meeting lasted less than half an hour and no new con-
tract proposals were made by either side.
The Administrative Law Judge's Decision in Case
CA-5409 issued on February 6, 1978.
The next meeting took place on March 14, 1978. At
that time Company Attorney Coleman met with Union
Representative J. D. Lunsford was there for
part of the time. Union Business Manager Guidry did not
appear at that meeting. In the prior meetings Guidry had
told the Company that he was the one who had authori-
ty to make changes and to set policy with regard to ne-
gotiations. At the beginning of the March 14 meeting
Coleman asked where Guidry was and replied
that he (Gardell) was there to bargain on behalf of the
Union. Coleman expressed disappointment and said that
Guidry had claimed from the beginning that he (Guidry)
was the one who would have authority to
Coleman said that the Company's proposals were being
typed and he asked if the Union had any proposals. The
Union did not. Coleman offered to write down both the
Company's and the Union's positions so that they would
have something in writing to work from. refused
to initial any such document.
that Coleman said that without Guidry there would
be no Coleman averred he said that was a shame
Guidry was not there but that he did agree to go ahead and bargain. I
credit Coleman.
Gardell Compan:~ 12
Gardell McDer-
date.lg
Gardell
10
to
the un~laterally condi-
ttons
sheetme-
tal
Luns-
-
counterpro-
1,
to
J. D. LUNSFORD PLUMBING 1369
Beginning with the pay period of March 25, 1978, the
Company raised the pay level of employees Gassman
and Dowerstock from $10 to $10.50 an hour and the
wage rate of Emerson from $4 to $5 an hour.
met again with the on May and
June 6, 1978. Neither Guidry nor Coleman attended
either of those meetings. met with Ilene
mott, a paralegal in Coleman's office. They discussed
some matters, such as the number of foremen on the job
and the raising of mileage, but there was no progress at
those meetings.
The Union and the Association entered into a new
contract effective from July 1, 1978, through April 30,
1981. That contract contained the same "most favored
nations" clause that appeared in the prior contracts.
The Board Order issued on July 25, 1978. On July 31,
1978, Compliance Officer Legler wrote to the Company
asking whether it intended to comply with the Board
Order. The Company responded by letter dated August
15, 1978, indicating its willingness to comply. By letter
to the Company dated August 29, 1978, Legler stated
that he was investigating the Company's claim that an
impasse had previously been reached. Sometime in the
fall of 1978 Legler informed the Company on the tele-
phone that a lawful impasse could not have been reached
because of the Company's failure to reinstate the original
contract terms. On January 16, 1979, the Company
wrote to the compliance officer as follows:
Lunsford intends to contest the issue as to wheth-
er impasse has previously occurred. Despite this in-
tention to contest the issue, Lunsford is reinstating
the terms of the union agreement and will continue
to bargain in good faith with the union with the in-
tention of entering into a union agreement. As I
stated to you. Lunsford does not feel he is bound by
the union agreement because of the impasse which
had previously occurred. The reinstitution of the
union scale should not be viewed as an admission
that we are obligated to do such or as a waiver of
our argument that impasse occurred in 1978.
Beginning with the payroll period of February 17, 1979,
the Company did reinstate the contract terms. The Com-
pany did not send a copy of its January 16, 1979, letter
(which had been sent to the compliance officer) to the
Union nor did it notify the Union at that time of the re-
sumption of the contract terms. The Company continued
to pay the contract terms until the payroll period begin-
ning March 10, 1979, when it reduced the payments to
coincide with the last offer it had made to the Union as
of that
No bargaining sessions were held from June 6, 1978,
until February 22, 1979. On February 13, 1979, the Com-
pany wrote the Union asking for a bargaining session and
stating that the Company had new offers to make. On
February 22, 1979, Union Representative met
with Company Attorney Coleman. At the February 22,
The details o f those negotiations are set forth below. The March
change in wages and benefits appears be the basis for the allegation in
complaint that the Company changed terms and
o f employment in the absence o f impasse.
1979, meeting the Company presented the Union with a
complete contract proposal that was to be effective from
February 1979, through February 1982. For the first time
the Company proposed that the definition of "employee"
covered by the contract be changed. The proposal was
that the contract cover "all individuals employed by the
employer who are qualified as journeymen or apprentice
sheetmetal workers and who perform sheetmetal work
for employer at least 90 percent of the time." The Union
rejected that proposal. The General Counsel contends
that the Company's insistence on that proposal was a
violation of the Act even though it was not alleged in
the complaint. Company Attorney Coleman testified that
the proposed change would not have excluded anyone
from the bargaining unit who worked with sheet metal
but would merely have excluded such employees as
plumbers and bookkeepers whom the Company also em-
ployed. According to Coleman the change would merely
have clarified the unit to make certain that only
workers were covered. He credibly testified that at
that meeting he told the Union that the Company had no
qualms about the Union representing employees who did
sheetmetal work. The Union never offered a counterpro-
posal on that issue. The clause that the parties had origi-
nally agreed to read: "This Agreement covers the rates
of pay, rules and working conditions of all employees of
the employer." The appropriate unit as found by the
Board was:
All sheet metal employees employed by J. D.
ford Plumbing, Heating and Air Conditioning, Inc.,
and Lunsford Brothers Mechanical, Inc., at their
Grand Junction, Colorado, shop, but excluding
plumbing employees, office clerical employees, and
all guards, professional employees, and supervisors
as defined in the Act.
The Company did offer contract language relating to the
scope of the unit that was different than the unit as'
found by the Board, but that was in the context of the
Union's position that the wording of the unit description
be radically different than the appropriate unit as found
by the Board. If the Union had proposed or
posed the unit wording as found by the Board the Com-
pany might well have violated the Act by refusing to
accept that wording. That was not the case here. The
Company appeared to be inartfully attempting to modify
the unit description to more closely resemble that which
was found appropriate by the Board. The Company did
not refuse to accept the appropriate unit because the
Union did not offer a clause that would incorporate that
appropriate unit.
The Company's February 22, 1979, proposal reiterated
a numher of the outstanding offers and added a number
of new ones. Principal among the new offers was a pro-
posal that wages be raised in a series of steps from $1 1
on the date of agreement to $12.70 an hour on December
1981. The Company also proposed that apprenticeship
rates start at 33 percent of the journeyman's rate for the
first 6 months with an increase to 75 percent after the
eighth 6-month period. The Company also proposed that
the employer be permitted employ a new classification
Gardell
$12.30
1, 1980.20
period.21
Gardell
Gardell
20 Asociation
1.
1 , 612.55 1 , 1 ,
fund.
the
2 1
&month
1.
Coast Inc., 192
F.2d
1972):22
8(d)
."
144 1010
-
agreement.23
-
'2 O'Malley
Contmls. Corporalion.
23 t h ~ s
bargalnlng
1370 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
known as helpers who could be employed for 12 months
before being considered apprentices. The subject of help-
ers had been discussed in previous negotiations but this
was the first time that the Company made a formal pro-
posal with regard to them. One of the Company's pro-
posals was that the employer be authorized to pay the
employees 75 percent of the current labor agreement
rates and 75 percent of the existing fringe benefits when
certain open-shop competition work was bid on. The
parties discussed all of the Company's proposals at this
meeting.
At the February 22 meeting and at another meeting on
February 26, 1979, and Coleman agreed on a
number of matters. However, there was no agreement on
the critical economic issues. The Union still insisted that
the employer pay the entire cost of the group medical
plan plus dental and it had no offer with regard to wages
or apprenticeship pay, o r with regard to helpers.
At the next meeting on February 28, 1979, the Union
did come forward with counterproposals. It offered a
pay rate of as of the date of agreement, $13.10 as
of July 1979, and $13.95 as of July 1, The
Union proposed that apprentices be paid on a sliding
scale of 45 percent for the first 6 months through 85 per-
cent of journeyman rate for the eighth 6-month
The Union rejected the Company's proposal for a helper
classification and counterproposed a "pre-apprentice"
classification with the same pay as apprentices. The
Union did not have any counterproposal with regard to
the 75 percent clause.
The parties met again on March 2, 1979. At the meet-
ing the Union proposed that the Company sign the exist-
ing standard agreement with the 75 percent clause. The
Company rejected that offer.
On March 5, 1979, Coleman wrote to saying
in effect that an impasse had been reached and that the
Company was going to implement the wage and fringe
benefits which it had offered on February 22, 1979, and
which the Union had rejected. The letter stated that the
change would be effective March 8, 1979.
The parties met again on March 7, 1979. The Union
had not yet received Coleman's letter and Coleman gave
a copy. There were no new contract proposals
by either side at that meeting. There were no further
meetings after that.
Beginning with the pay period of March 10, 1979, the
Company made the changes that had been mentioned in
its March 5, 1979, letter. The rate for journeyman was
set at $11 an hour. That was 6 cents an hour less than
the rate the Company had been paying since February
17, 1979, after it had under protest reinstated the terms
The new standard contract which was effective from
July 1978, through April 30, 1981. set the wage rates as $1 1.95 on July
1978. on July 1979, and $13.20 on July 1980. The 50 cents
per hour, which was to be deducted from those amounts, was to be used
for a vacation Thus, the Union was continuing in its practice of
attempting to get the employer to pay more than the rate set forth in
Association contract if the employer would not sign that contract. As
noted above the new Association contract contained the same "most fa-
vored nation" clause as the previous contracts.
The standard Association contract went from 45 percent to 80 per-
cent for the eighth period.
of the expired contract. It was 50 cents an hour more
than it had been paying prior to February 17, 1979.
By telegram dated March 13, 1979, the Union protest-
ed the Company's unilateral decision to change the terms
and conditions of employment and said that it was an
unfair labor practice. On March 13, 1979, Coleman
wrote to the Union attempting to justify the Company's
position. The Union responded with a letter dated March
22, 1979, stating that the Company had committed an
unfair labor practice. A further exchange of correspond-
ence followed with little being added.
B. Analysis and Conclusions
The surface bargaining allegation
As was held in West Casket Company,
NLRB 624, 636, enfd. in pertinent part 469 871 (9th
Cir.
Section of the Act states that the duty to
bargain requires an employer to "meet at reasonable
times and confer in good faith with respect to
wages, hours, and other terms and conditions of em-
ployment, o r the negotiation of an agreement, o r
any question arising thereunder . . . but such obli-
gation does not compel either party to agree to a
proposal or require the making of a concession
. . . In determining whether an employer has
bargained in good faith, it is necessary to scrutinize
the totality of its conduct. From the context of an
employer's total conduct, it must he decided wheth-
e r the employer is lawfully engaging in hard bar-
gaining to achieve a contract that it considers desir-
able or is unlawfully endeavoring to frustrate the
possibility of arriving at any agreement. Sunbeam
Plastics Corporation, NLRB (1963).
The evidence in the record amply demonstrates that Re-
spondent was unsophisticated if not inept in its collec-
tive-bargaining activities. However, it falls short of estab-
lishing that Respondent was endeavoring to frustrate the
possibility of arriving at any agreement. Both Respond-
ent and the Union were bargaining subject to consider-
able contraints. The Union was constrained by the fact
that any terms it gave Respondent that were less than
those contained in the standard agreement would under-
mine the wage structure in the entire industry under the
most-favored-nations clause. Respondent was under the
constraint of trying to negotiate a contract under which
it believed it could survive economically. I believe that
those constraints rather than any bad faith by the em-
ployer prevented the parties from reaching
I therefore recommend that the surface bargaining alle-
gation of the complaint be dismissed.
See also Lumber Company, 234 NLRB 1171. 1179 (1978):
Borg-Warner a Division of Borg-Warner 198 NLRB
726 (1972).
In connection i t is noted that Respondent did make substantial
wage concessions in its last offer to the Union of February 22, 1979. and
that i t was Respondent and not the Union that sought the ses-
sion on that date.
II, Boat
1979.24
rnost-favored-na-
tions
~ a r a v e l l ~ Boat -
Inc.,
2(6)
2(5)
27-
10(c)
24
oficer.
ofiicer
Union srarus
unte.
off~cer
onicer
7. Gardell
'" Sec.
Sec.
1371 J . D. LUNSFORD PLUMBING
2. The unilateral change
Respondent restored the status quo ante by reinstating
the terms of the expired contract on February 17,
Respondent and the Union met at bargaining ses-
sions on February 22, 26, and 28, and on March 2 and 7,
1979. There were no meetings after March 7. By that
date the parties had reached a complete deadlock on the
critical areas of the contract. Offers had been made on
both sides but once again it was clear that the Union
would not permit terms that would undermine the Asso-
ciation contract by application of the
clause of that contract. It was equally clear that the
Company would not meet the terms of the new Associ-
ation contract. With that basic difference between them
there was little point in further discussion and an impasse
had been reached. At that point Respondent unilaterally
implemented the terms of its last offer that had been re-
jected by the Union. It was lawfully entitled to do so.
As indicated by its January 16, 1979, letter to the compliance offi-
cer, Respondent took that action under protest at the insistence of the
compliance As found above Respondent was correct in its posi-
tion and the compliance was not. Respondent did not send a copy
of that letter lo the Union. Company Attorney Coleman credibly testified
that he assumed that the knew of the resumption of the quo
In the light of Respondent's January 16, 1979. letter to the compli-
ance and the close community of interest between the compliance
and the charging party in cases of this nature, that was not an
unreasonable assumption. In addition I credit Coleman's testimony that at
the March 1979, meeting he specifically told that the Compa-
ny was paying the higher rate.
Allen W. Bird Receiver for Caravells Company, a
Corporation, and Company, 227 NLR B
1355 (1977); Ace Galvanizing, 217 NLRB 144 (1975).
I therefore recommend that the unilateral change allega-
tion of the complaint be dismissed.
1. Respondent is an employer engaged in commerce
within the meaning of Section and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section of the Act.
3. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent
violated the Act as alleged in the complaint in Case
CA-6150.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
of the Act, I hereby issue the following recommended:
The complaint in Case 27-CA-6150 is dismissed in its
entirety.
In the event no exceptions are filed as provided by 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions. and recommended Order herein shall. as provided
in 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.