Paramount Liquor Co

National Labor Relations Board - Board Decisions

May 22, 1992

307 N.L.R.B. 676 (N.L.R.B. 1992)

676
307 NLRB No. 110
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge concluded, inter alia, that the Respondents, under the
circumstances on September 11, 1989, did not violate Sec. 8(a)(5)
and (1) of the Act by implementing their August 29 proposals (other
than the proposal to eliminate the spotter/loader position). In agree-
ing with this conclusion, Chairman Stephens and Member Devaney
adopt the judge’s finding that the Union’s refusal to meet with the
Respondents prior to September 11 constituted a waiver of its right
to bargain over the changes in mandatory subjects proposed by the
Respondents. See, e.g., Gibbs & Cox, Inc., 292 NLRB 757 (1989).
Accordingly, they find it unnecessary to rely on the judge’s finding
that the Union’s conduct may have constituted consent to the pro-
posals or his implication that the parties had bargained to impasse
over them. Member Oviatt adopts the judge’s finding that the
Union’s conduct was evidence of impasse and that, under the cir-
cumstances, the Respondents were entitled to implement their Au-
gust 29 proposals. Thus, unlike his colleagues, he finds it unneces-
sary to rely on the judge’s finding that the Union waived its right
to bargain.
Paramount Liquor Company and Miscellaneous
Drivers, Helpers, Health Care and Public Em-
ployees Local Union No. 610, affiliated with
International Brotherhood of Teamsters, AFL–
CIO
Allstate Distributors, Inc. and Miscellaneous Driv-
ers, Helpers, Health Care and Public Employ-
ees Local Union No. 610, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO.
Cases 14–CA–20173, 14–CA–20304, and 14–CA–
20332
May 22, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 16, 1991, Administrative Law Judge Frank
H. Itkin issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondents filed cross-exceptions and a brief in
opposition to the General Counsel’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Paramount Liquor Com-
pany, St. Louis, Missouri, and Allstate Distributors,
Inc., St. Louis, Missouri, their officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Steven D. Smith, Esq., for the General Counsel.
Stanley E. Craven, Esq., for Respondent Employers.
George O. Suggs, Esq., for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges were filed in the above cases on June 30,
September 6 and 18, 1989, and a consolidated complaint
issued on August 9, 1990. The complaint was later amended
at the hearings. The complaint alleges that Charging Party
Union has been and is the exclusive bargaining agent of sep-
arate appropriate units of both Respondent Employers; that
such recognition has been embodied in separate successive
collective-bargaining agreements between the Union and Em-
ployers; that on March 29, 1989, the Employers commenced
joint negotiations with the Union in an attempt to negotiate
new agreements; that during the ensuing negotiations from
March to September 1989, the Employers made take-it-or-
leave-it bargaining proposals, refused to modify such pro-
posals, and made regressive bargaining proposals while en-
gaging contemporaneously in the above conduct notwith-
standing that no intervening change in circumstances had oc-
curred to justify such regressive proposals; and that the Em-
ployers by their overall conduct including that described
above failed and refused to bargain in good faith with the
Union, in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint further alleges that about April 13, 1989,
the Employers demanded that the Union agree to a provision
that the unit position of spotter/loader be eliminated from the
bargaining units as a condition of consummating any collec-
tive-bargaining agreement; that this provision is not a manda-
tory subject of collective bargaining; that since about April
21, 1989, the Employers insisted to impasse on this subject;
that about May 8 and June 12, 1989, the Employers imple-
mented their take-it-or-leave-it proposals; that about Sep-
tember 11, 1989, the Employers implemented their regressive
sets of bargaining proposals; that about September 11, 1989,
Respondent Paramount implemented the proposal pertaining
to the elimination of the position of spotter/loader from its
unit; and that the Employers by their overall conduct includ-
ing that described above failed and refused to bargain in
good faith with the Union, in violation of Section 8(a)(5) and
(1) of the Act. In addition, the complaint alleges that a strike
by certain unit employees of Respondent Paramount com-
mencing about November 14, 1989, was caused and pro-
longed by the Employers’ unfair labor practices as alleged
above.
Counsel for Respondent Employers in the answer to the
consolidated complaint denies violating the Act as alleged,
and states that the Employers’ ‘‘bargaining strategies and im-
plementations were made necessary by the refusal of the
Union to bargain in good faith, for example, by the Union’s
refusal to meet for negotiations.’’
Hearings were held on the issues thus raised in St. Louis,
Missouri, on October 30 and 31, 1990. On the entire record,
including my observation of the demeanor of the witnesses,
I make the following
677PARAMOUNT LIQUOR CO.
1 See also the testimony of Nicholus Sanders, a Paramount driver
employee and Local 610 trustee, shop steward, unit chairman, and
participant in the 1989 bargaining meetings. Tr. at 224–230.
2 See also the testimony of employee and Union Representative
Sanders. Tr. at 230–232.
I. FINDINGS OF FACT
Respondents Paramount and Allstate are wholesale liquor
distributors in Missouri, and are admittedly employers en-
gaged in commerce as alleged. Charging Party Union Local
610 is admittedly a labor organization as alleged. Since about
1970, Local 610 has been admittedly the exclusive bar-
gaining agent of separate appropriate units of Paramount’s
and Allstate’s ‘‘truck drivers and spotter/loaders’’ employed
at their respective St. Louis facilities. Such recognition has
been embodied in separate successive collective-bargaining
agreements, the most recent of which were effective by their
terms from April 1, 1985, through March 31, 1988, and ex-
tended by written agreements of the parties through March
31, 1989. About March 29, 1989, Paramount and Allstate
commenced joint negotiations with Local 610 for new collec-
tive-bargaining agreements. The evidence pertaining to the
conduct of the parties during and following the negotiations
is summarized below.
A. The March 29 Bargaining Session
William Van Hoose, business representative for Local 610
and chief union spokesman during the negotiations, testified
that negotiations for new collective-bargaining agreements
commenced on March 29, 1989; that he then presented the
Employers with separate written proposed ‘‘modifications’’
to the existing collective-bargaining agreements (G.C. Exhs.
4, 9, and 10); that ‘‘the parties then proceeded to review
these proposed modifications’’ which included a proposed
‘‘substantial wage increase’’; and that he ‘‘then . . . asked
the Company for their proposals.’’ The Employers’ chief
spokesman E. J. Holland in turn presented to Van Hoose a
copy of General Counsel’s Exhibit 11 as the Employers’
‘‘proposal.’’ (G.C. Exh. 11 is a copy of the Employers’
1986–1989 collective-bargaining agreement with Teamsters
Local 688 covering the Employers’ St. Louis warehouse
workers.) The Employers were seeking ‘‘parity’’ in the terms
and conditions of employment for both their driver and ware-
house employees.
Van Hoose, as he recalled,
told Mr. Holland that I was there to negotiate a contract
for Teamsters Local 610, that I had no interest in
Teamsters Local 688’s contract. . . . Discussion of
parity had come up and I told Mr. Holland that our em-
ployees, the drivers, worked out in all kinds of weather
and very dangerous conditions, we have drivers robbed
every so often or assaulted, where the warehouse peo-
ple work in a controlled environment. That was my
basis for feeling that we needed or [were] entitled to
the extra amount of money.
The Local 688 warehouse employees of Respondents at their
St. Louis facilities received approximately $3 less an hour in
wages and benefits than the Local 610 drivers. The Employ-
ers’ representative wanted ‘‘parity between the drivers and
the warehousemen . . . a reduction of about three dollars an
hour in pay.’’
Holland explained to Van Hoose ‘‘that through all the con-
tracts they had with other labor organizations throughout the
State . . . they only had one contract [and] one union rep-
resenting the other places’’; that is, ‘‘one union that rep-
resented both driver and warehouse employees.’’ Van Hoose
replied that ‘‘we were in St. Louis . . . we have always had
one Local representing the warehouse and one Local rep-
resenting the drivers.’’ The meeting ended ‘‘rather abruptly’’
without any agreement between the parties.1
E. J. Holland, attorney and chief negotiator for the Em-
ployers, recalled that at this meeting Local 610 wanted, inter
alia, a 50-cent hourly wage increase for each of the 3 years
of its proposed contract; ‘‘to add a driver classification’’ per-
taining to work previously done by nonunit personnel; and
certain ‘‘work to be assigned to Local 610 instead of a vari-
ety of subcontractors who traditionally had been used for it.’’
The Employers discussed the ‘‘state of the wholesale liquor
industry’’ and how it was ‘‘causing [their] business to be
substantially less profitable’’; and wanted to correct the ‘‘in-
equity’’ in St. Louis with ‘‘parity’’ between the Local 610
drivers and Local 688 warehousemen. Holland handed over
a copy of the Local 688 contract and Van Hoose ‘‘angrily
threw it back.’’
B. The March 30 Bargaining Session
The second bargaining session was held on the following
day, March 30. As Van Hoose testified, Holland proposed
to put our group in a [health maintenance organization]
program called LHI [Labor Health Institute]; it is fund-
ed by Teamsters Local 688 and the Employers; and it
is for Local 688 members only.
The Local 610 unit drivers were in the Union’s Central
States Health and Welfare plan, and Van Hoose explained to
Holland that he ‘‘didn’t think we could be a part of this’’
program covering the warehouse employees.
The subject of ‘‘parity’’ was again discussed. Van Hoose
again explained the ‘‘differences’’ in the working conditions
of the Local 610 drivers and Local 688 warehousemen. Hol-
land replied that
throughout the industry in the State . . . the warehouse-
men and drivers were the same, they were looking for
the same thing here.
. . . .
St. Louis was the only location [where] these Em-
ployers did not have parity between warehousemen and
drivers.
Van Hoose ‘‘suggested to Mr. Holland to bring the Local
688 people up to the Local 610 level, and they would have
parity.’’ Holland ‘‘rejected [this] offer’’ and the meeting
ended without any agreement between the parties.2
Holland recalled that at this meeting Van Hoose an-
nounced that Local 610 ‘‘couldn’t accept our . . . parity pro-
posal’’ and ‘‘we can’t get in’’ Local 688’s LHI health plan.
The Employers made further statements and presentations
pertaining to the ‘‘state of the industry.’’
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Van Hoose ‘‘pointed out’’ the ‘‘difference’’ between the expired
Local 610 contract and the Employers’ ‘‘proposals’’; ‘‘15 articles re-
lating to our contract [were] completely left out of their proposals.’’
4 Van Hoose, on cross-examination, acknowledged that at this
meeting the Employers made a ‘‘specific presentation’’ as to why
‘‘the industry was in sad shape’’ with charts and graphs. See R. Exh.
2, information on price changes in prior years. See also the testi-
mony of employee and Union Representative Sanders. Tr. at 233–
240.
5 Van Hoose also recalled that the Employers had requested no
change in art. 26 pertaining to safety and health; art. 27 pertaining
to tools and equipment; art. 28 pertaining to loss or damage; art. 29
pertaining to bonds; art. 30 pertaining to uniforms; art. 36 pertaining
to bail and suspension; and art. 47 pertaining to the complete agree-
ment.
In addition, Van Hoose recalled that art. 37 of the Local 610 con-
tract contained miscellaneous provisions. The Employers agreed to
‘‘some’’ of these provisions; as to others, the Employers wanted
‘‘modifications.’’ The Employers wanted the ‘‘jury duty’’ provision
limited ‘‘to a petty jury only’’ even though there was no cor-
responding limitation in the Local 688 contract. The Employers
made no offer to include in art. 37 of the Local 610 contract ‘‘addi-
tional matters’’ which in fact are contained in the Local 688 contract
miscellaneous provisions (pertaining to, for example, ‘‘blood banks’’
and ‘‘breaks’’). Van Hoose noted, however, that when the Employ-
ers previously had presented Local 610 with the Local 688 contract
as the Employers’ ‘‘proposal’’ at the initial March 29 meeting, these
‘‘additional matters’’ were included in the Employers’ ‘‘proposal.’’
C. The April 11 Bargaining Session
The parties next met on April 11. As Van Hoose recalled,
Holland presented ‘‘an entire contract proposal’’ for the Em-
ployers (G.C. Exh. 12). Van Hoose ‘‘described it as the
Local 688 contract with just the cover pages changed.’’ The
parties discussed the Employers’ contract proposal. The term
of the proposed agreement was for 9 months. Van Hoose
noted that ‘‘that would have brought our [Local 610] contract
to expire at the same time Local 688’s contract would ex-
pire,’’ January 14, 1990. Van Hoose further noted that the
Employers also ‘‘wanted to buy our sick leave back from
us.’’ The prior Local 610 contract, unlike the Local 688 con-
tract, ‘‘provided for employees to have paid sick leave.’’
And, the Employers were ‘‘proposing that accrued sick leave
benefits would be bought out by the Employers for a cash
settlement or something’’ and sick leave would not continue
in subsequent Local 610 contracts. The Employers had pre-
viously secured a similar elimination of this sick leave ben-
efit from Local 688.
In addition, as Van Hoose testified, the Employers’ pro-
posed LHI health plan was discussed. Holland initially stated
that ‘‘we would go talk to Mr. Gamache, who was the head
officer of Local 688,’’ about this health plan. Van Hoose re-
sponded that ‘‘he [Holland] could go talk to him, but I
wasn’t going to.’’ Discussion followed. Ultimately, ‘‘Holland
agreed basically that we would retain the Central States
Health And Welfare Plan.’’ Van Hoose noted that in fact the
Central States Health and Welfare Plan was ‘‘cheaper’’ than
the Local 688 LHI health plan. Further, Van Hoose
told them [the Employers] that we had given them writ-
ten proposals and that we also had a contract and that
we would like to discuss our proposals and our con-
tract, not Local 688’s.3
The Employers ‘‘agreed’’ to discuss the Local 610 ‘‘pro-
posals.’’ Holland, however, identified his ‘‘key areas of con-
cern’’ as including ‘‘parity between Teamsters Local 610 and
Local 688.’’ No agreements were reached at this meeting.4
Holland recalled that at this meeting the Employers pre-
sented a ‘‘new proposal’’ or a ‘‘complete document.’’ The
Employers agreed to obtain ‘‘parity’’ without ‘‘having them
go into the Local 688 LHI plan.’’ The Employers would
make ‘‘appropriate adjustments’’ elsewhere. Actually, as
Holland noted, the existing Local 610 health plan is ‘‘less
expensive’’ than the LHI plan. Holland emphasized to Local
610 that the Employers were concerned about ‘‘economic
parity or equity’’ with the Local 688 warehousemen in St.
Louis; ‘‘rough equivalence in contract language’’; ‘‘hours of
work’’; and ‘‘unworked time.’’
D. The April 13 Bargaining Session
The parties next met on April 13. Van Hoose recalled that
the Employers reviewed the Local 610 proposed contract,
stating their positions item by item. Following lunch and a
caucus, the Union reviewed its proposed contract article by
article, ‘‘offering its position.’’ Van Hoose, relying on his
bargaining notes (see G.C. Exhs. 20 and 4), testified that the
Employers wanted to delete from the Local 610 contract arti-
cle 3 pertaining to maintenance of standards; article 9 per-
taining to union activities; article 10 pertaining to jurisdic-
tion; article 11 pertaining to successors; article 31 pertaining
to lie detection; article 32 pertaining to separation; article 35
pertaining to garnishment; article 42 pertaining to sick leave;
and article 44 pertaining to cost of living adjustments. Van
Hoose noted that, except for the lie detection provision, the
above items which the Employers wanted deleted from the
Local 610 contract do not appear in the Local 688 contract.
In addition, Van Hoose testified that the Employers pro-
posed no change with respect to article 5 pertaining to union
security; article 6 pertaining to dues check off; article 7 per-
taining to unauthorized activity; article 8 pertaining to stew-
ards; article 12 pertaining to subcontracting; article 13 per-
taining to hiring; article 14 pertaining to picket lines; article
15 pertaining to struck goods; article 18 pertaining to proba-
tionary employees; article 19 pertaining to casuals; article 22
pertaining to work assignments; article 24 pertaining to dis-
charge and suspension; and article 46 pertaining to invalida-
tion. Van Hoose explained that the Employers would con-
tinue the ‘‘present language’’ pertaining to subcontracting
‘‘if we would stop writing grievances over it.’’ And, Van
Hoose observed that these no change items are substantially
the same as those contained in Local 688’s contract.5
The Employers, according to Van Hoose, made no counter
proposals to some of Local 610’s proposals. And, when the
Employers ‘‘offered language as a counter proposal to the
Local 610 language in G.C. Exh. 4,’’ the ‘‘language came
from their April 11 proposal’’ or the Local 688 contract.
Thus, article 25 pertains to leaves of absence. The Employers
wanted the Local 688 contract language for section 1 of arti-
cle 25; to delete section 2; no change for section 3; and to
delete section 4. In addition, with respect to article 1 per-
taining to recognition, ‘‘Holland wanted to delete the
spotter/loader position out of the recognition’’ clause. Hol-
679PARAMOUNT LIQUOR CO.
6 Van Hoose acknowledged on cross-examination that ‘‘a
spotter/loader backs trucks into the dock and loads the trucks with
the loader’’; Richard Welch a Local 610 member was the
spotter/loader at Paramount; there was ‘‘discussion [during the nego-
tiations] that it is the kind of work that could be done by employees
outside [Local 610’s] bargaining unit’’; spotting consists of the driv-
er ‘‘backing into a place to be loaded’’; ‘‘loading is simply the act
of loading the vehicle’’; in the past the Local 688 warehousemen
‘‘would help load’’ and the Local 610 driver or spotter/loader
‘‘would help load’’; ‘‘before any of this they would both load but
only the Local 610 person would do the spotting’’; and the Employ-
ers’ ‘‘proposal was that they wanted others, in addition to the Local
610 folks, to be able to spot.’’
7 Van Hoose, on cross-examination, acknowledged that ‘‘at the
conclusion of this meeting’’ Holland stated that ‘‘it appears that the
Employers need you [Local 610] to go one way and that you’re
going the other way,’’ referring apparently to the Union ‘‘increasing
its demands in some respects.’’ See also the testimony of employee
and Union Representative Sanders. Tr. at 240–245.
8 See also the testimony of Paramount Vice President Stephen Ru-
dolph (Tr. at 467–474) and Allstate Vice President William
Reichhardt (Tr. at 480–484).
9 Van Hoose, on cross-examination, acknowledged that ‘‘parity’’
was the ‘‘large issue’’ during the negotiations; that ‘‘perhaps’’ he
said to the Employers during the negotiations ‘‘that under no cir-
cumstances [was he ever] going to agree to a decrease’’; that he
‘‘never offered to take’’ a decrease in unit members’ wages; and that
he stated to the Employers that ‘‘if they headed down the road of
a decrease they were in line for a big labor dispute’’ meaning a
‘‘strike.’’ Van Hoose also acknowledged that prior to attending the
April 21 session he had proposed to the Employers through the me-
diator that Local 610 ‘‘would accept a wage freeze,’’ and the Em-
ployers had rejected this proposal still insisting on ‘‘parity.’’ Van
Hoose, angered over this rejection, ‘‘stormed out of this meeting.’’
See also the testimony of employee and Union Representative Sand-
ers. Tr. at 246–247.
land indicated that ‘‘they wanted to eliminate the job from
the jurisdiction [of] Local 610’’ and ‘‘would have given it
to Local 688.’’ ‘‘Later, they agreed that they would retain
the job but that the Company would have the right to assign
it to whomever they wanted.’’6
The Union thereafter presented its ‘‘position’’ article by
article. Local 610, referring to article 1, wanted to ‘‘retain’’
the spotter/loader position. Local 610 agreed with the Em-
ployers’ proposal on article 2 pertaining to management
rights. Van Hoose recalled that this was ‘‘one instance’’
where ‘‘they counter proposed some language of their own’’
and the Union ‘‘agreed.’’ The Employers had proposed, with
respect to article 16 pertaining to grievances, ‘‘language out
of’’ Local 688’s contract, and the Union had proposed its
grievance language with certain time modifications ‘‘to ac-
commodate’’ the Employers. As for article 43 pertaining to
wages, Local 610 proposed a 75-cent hourly wage increase
the first year of a 3-year contract, and 50-cent increases dur-
ing the next 2 years. The Employers stuck by their ‘‘original
proposal’’ which would require Local 610 to take a $3-hour
wage decrease under the Local 688 ‘‘levels.’’ Apart from
items such as management rights and the preamble and var-
ious no change items referred to above, there were essen-
tially no items of agreement. As Van Hoose put it, ‘‘both
sides were going nowhere.’’7
Holland recalled that at this meeting the Employers ‘‘felt
that it was important that [they] demonstrate some flexi-
bility’’; the Employers previously had proposed various dele-
tions and changes with respect to the prior Local 610 con-
tract; and on April 13 the Employers agreed to ‘‘no change’’
with respect to various of these items. For example, the Em-
ployers agreed that ‘‘there would be no change in the rec-
ognition clause’’ with respect to ‘‘spotter/loaders.’’ Holland
claimed that despite the Employers’ ‘‘flexibility’’ there was
‘‘a substantial tightening of’’ Local 610’s ‘‘position.’’ For
example, Local 610 wanted the Employers to ‘‘pay for all
negotiating time’’ and Local 610 ‘‘increased’’ its prior wage
increase proposal from a 50- to a 75-cent wage increase dur-
ing the first year of a 3-year contract with 50-cent increases
in the next 2 years. According to Holland, ‘‘they were mak-
ing all these . . . outlandish proposals in the face of an in-
dustry that was in serious decline and consolidation.’’ Hol-
land testified:
I told them that it appeared to me that we were at im-
passe . . . [Local 610] with their latest proposal [was]
going in one direction and we were going in exactly the
opposite direction . . . there seemed to be no place to
go. Van Hoose said, well I don’t see any daylight ei-
ther.8
E. The April 21 Bargaining Session
The next bargaining session was on April 21. Van Hoose
testified that Local 610 proposed at this meeting a ‘‘four day
ten hour day work week.’’ This proposal would reduce over-
time and assertedly save money to cover the increased cost
in the health and welfare program. Holland ‘‘basically re-
jected it’’ and ‘‘discussed implementing the terms of their
proposal.’’ Holland ‘‘said that he felt the parties were at im-
passe’’ and ‘‘spoke about the possibility of implementing.’’
This meeting ‘‘also ended rather abruptly.’’9
Holland testified that a union wage freeze proposal (see fn.
9, supra) was ‘‘unacceptable’’; ‘‘the Union apparently
thought our objective was not parity but a wage freeze’’; and
‘‘I told them that it wasn’t the case . . . we were after par-
ity.’’ ‘‘Van Hoose was very angry and he stormed out of the
meeting.’’ As Holland later explained to Van Hoose,
I told him that we were concerned . . . because the
time was getting away from us . . . each day we wait-
ed was costing the Employers money that they thought
they shouldn’t be spending on disparate wages between
the warehousemen and drivers.
Van Hoose and Holland thereafter exchanged letters. (See
G.C. Exh. 13; R. Exh. 3.) Van Hoose expressed his ‘‘dis-
appointment’’ and requested a new date to resume negotia-
tions. Holland responded, referring also to a telephone con-
versation between the two spokesmen, stating, inter alia,
‘‘my clients are prepared to meet again if there is a possi-
bility that we can reach agreement’’; ‘‘we have scheduled a
negotiating session for . . . May 4’’; ‘‘you indicated . . .
that the Union would take no job action until after our meet-
ing of May 4’’; ‘‘we have committed not to implement our
proposal before then’’; ‘‘my clients are absolutely firm on
the notion of obtaining parity between the driver group and
the warehouse group in St. Louis’’; and ‘‘please plan to
come to our meeting of May 4 with a clear and prompt indi-
cation of your willingness to accept parity as a concept.’’
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 See also the testimony of employee and Union Representative
Sanders. Tr. at 247–250.
F. The May 4 Bargaining Session
Van Hoose testified that at the May 4 meeting Local 610
‘‘proposed a nine month contract with [an] increase in health
and welfare, and we would take a wage freeze for a nine
month period, and we would sit down and negotiate with
Local 688,’’ that is, ‘‘negotiate jointly with Local 688 upon
expiration of [the Union’s] nine month contract proposal’’
which would ‘‘expire at the same time as the Local 688
agreement.’’ Holland rejected the proposal and announced
that the Employers
would implement . . . they would have a final offer for
[Local 610] that afternoon or [the next] morning . . .
they would implement the final offer [on] May 8.
The Employers thereafter presented no proposals or dis-
cussed any change of position at this meeting.10
Holland recalled that Local 610 Secretary John Metz
told me [at this meeting] that he was willing to go to
a nine month contract, which was really the first that
we’d heard of that, and would recommend a freeze. He
didn’t really commit to me in any fashion that he would
agree to parity . . . he would be willing to discuss it
or work toward it, but he just needed more time. . . .
I told him that it simply would not work; we had to
have parity.
The Union wanted a ‘‘final offer’’ or ‘‘final proposal.’’ Hol-
land agreed to prepare one.
G. The Employers’ Final Offer of May 4
Holland, by letter dated May 4 (G.C. Exh. 14) sent Van
Hoose the Employers’ ‘‘final’’ ‘‘proposal for a new collec-
tive bargaining agreement.’’ Van Hoose had requested such
a ‘‘proposal.’’ Holland explained in his May 4 letter that
‘‘this is a complete proposal and is intended to incorporate
any tentative agreements we reached during negotiations as
well as the many changes the Employers made in their initial
proposals.’’ Holland added that ‘‘the economic proposal re-
quires just a brief explanation’’ and discussed calculations
and their application. Holland concluded:
During our meeting today you continued to reject the
Employers’ economic proposal as unacceptable to the
Union, . . . [and] absent an acceptance prior to mid-
night Sunday May 7, 1989, we will conclude that the
parties are at impasse. In that event the Employers in-
tend to implement the terms of their economic proposal
effective Monday May 8 . . . . Since no definitive in-
formation has been received yet from Central States
[health plan] we simply will continue the current con-
tribution level to Central States and the wage rate to be
implemented on Monday will be $10.93 per hour.
Van Hoose recalled that only ‘‘the economic part’’ of this
‘‘final offer’’ pertaining to ‘‘wages’’ was implemented on
May 8.
Holland testified that his May 4 proposal contained no
change whatsoever in the Local 610 contractual recognition
clause. The Employers previously had ‘‘altered their posi-
tion’’ on the ‘‘spotter/loaders’’ on April 13.
H. The Employers’ May 27 Letter Announcing the
Implementation of the Remaining Terms of Their
May 4 Proposal and the July 5 Attempt to
Present New Proposals
Holland, by letter dated May 27 (G.C. Exh. 15) apprised
Van Hoose:
On May 4 . . . I sent . . . you a specific pro-
posal. . . . To date we have had no response. Pursuant
to that letter the Employers on May 8 placed in effect
the wage rate which had been proposed. Since we have
not heard from you we now feel it necessary to imple-
ment the remaining terms and conditions of the May 4
proposal. Therefore effective Monday June 12, 1989 the
Employers intend to place in effect all the remaining
terms and conditions of their May 4 proposal.
Holland also noted that since the prior collective-bargaining
agreements have expired, the Employers are ‘‘no longer free
to enforce a Union security agreement or agree to check
off’’; ‘‘the Union and its members currently have the right
to strike’’; and ‘‘there is no continuing reciprocal commit-
ment on the part of the Employers to arbitrate.’’
Van Hoose recalled that the noneconomic terms were in
fact implemented by the Employers on June 12 and, as
noted, Local 610 filed unfair labor practice charges with the
Board on June 30, 1989. Thereafter, Holland, by an undated
certified letter postmarked July 5 (G.C. Exh. 16) informed
Van Hoose:
Recent developments have caused the Employers to re-
examine their proposal of May 4, 1989. We are pre-
pared to present new proposals for a collective bar-
gaining agreement and suggest that a meeting be sched-
uled at the parties’ earliest convenience.
Subsequently, during late August, Holland telephoned Van
Hoose ‘‘about reestablishing negotiations.’’ Van Hoose then
told Holland that he had ‘‘discussed the situation’’ with
Local 610 Secretary John Metz, and Metz had ‘‘advised
[Van Hoose] to present’’ this request to the Union’s execu-
tive board at its next scheduled meeting in late September.
Holland, by letter dated August 29 (G.C. Exh. 17) com-
plained to Van Hoose and Metz over ‘‘the Union’s unwill-
ingness to resume negotiations,’’ and then apprised Van
Hoose and Metz:
On Friday August 25, 1989, I was finally able to speak
directly with Bill [Van Hoose]. He advised me that he
was not ‘‘authorized’’ to engage in negotiations and
that the matter was in the hands of the Union’s execu-
tive board. Frankly, we believe the Union’s continued
refusal to negotiate is a violation [of the Act]. However,
instead of pursuing our rights under the Act, we once
again request immediate negotiations in an effort to
achieve a new collective bargaining agreement. To that
end I enclose a revised proposal for your consideration.
The revised proposal is an update of the Employers’
May 4 proposal. . . . Our target date for making a de-
cision with respect to the proposal is September
681PARAMOUNT LIQUOR CO.
11 See also the testimony of employee and Union Representative
Sanders. Tr. at 250–259.
Van Hoose acknowledged that from May 4 until the strike, the
Union did not agree to resume negotiations. He explained that this
matter ‘‘was tied up with the executive board of the Local.’’ In addi-
tion, as Van Hoose further stated, ‘‘we felt that the Employers had
taken a position at this bargaining of bad faith.’’ Van Hoose, on re-
direct examination, testified that he did not ‘‘have any interest in
discussing with Holland the proposals that [Holland] outlined in his
August 29 letter’’ ‘‘because they were just decreasing from where
we were already at.’’
11. . . . [I]f the Union persists in refusing to meet with
the Employers we intend to implement the terms of
these most recent proposals on Monday September 11.
Van Hoose denied telling Holland that he was ‘‘not au-
thorized to engage in negotiations.’’ Van Hoose also denied
telling Holland that he was ‘‘not willing to meet for negotia-
tions’’ or telling ‘‘the federal mediator that [he was] unwill-
ing to meet and resume negotiations.’’ Van Hoose claimed
that at no time after the Employers’ May 4 proposal ‘‘did
the Employers say . . . anything indicating . . . that the Em-
ployers were prepared to offer further concessions or change
[their] bargaining proposals in a manner which might break
this impasse.’’
Van Hoose, on cross-examination, acknowledged that the
federal mediator who had participated in the above meetings
had telephoned him and requested resumed negotiations, and
that he then explained to the mediator that he ‘‘was waiting
on a decision from the executive board’’ and ‘‘I wouldn’t
meet until I got authorization to meet from the executive
board.’’ Van Hoose added:
As of yet I had not had a chance to sit down with
all of them and explain it.
And, finally, Van Hoose acknowledged that even when the
Union’s executive board met in late September ‘‘they didn’t
make any decision about meeting with the Employers’’ and
therefore he ‘‘had no clarification’’ or ‘‘authorization’’ from
them.
Holland testified that following the May 4 meeting the
Employers
were in a constant state of preparation for a strike
which everyone believed would happen any day . . .
[but] I never heard a word from the Union.
Holland further recalled:
What happened was that nothing happened, and the
Employers were beginning to feel that they should re-
assess their position that this Union which we always
figured would strike, that we thought had this huge
power in St. Louis, apparently couldn’t get its members
out. So, there being no strike, and the Employers hav-
ing operated under some of the changed terms and con-
ditions, they began talking about you know maybe we
really should get ourselves in a position to assert con-
trol over our business for the first time.
As a consequence, Holland prepared General Counsel’s Ex-
hibit 16 on or about July 1, which he sent to Van Hoose re-
questing a meeting between the parties to discuss ‘‘new pro-
posals.’’ Not having received any response to this request,
Holland telephoned Van Hoose. Holland recalled that Van
Hoose had told him that ‘‘he was not authorized or was not
able or was not permitted to meet, that the matter was in the
hands of the executive board and that the executive board
was not meeting until late September.’’ Holland later pre-
pared and sent on to Van Hoose the Employers’ August 29
letter with proposals. (See G.C. Exh. 17.)
I. The Employers’ August 29 Proposals
Van Hoose reviewed the Employers’ August 29 proposal
(G.C. Exh. 17) and identified the various ‘‘provisions [or
proposals] which were not the subject of prior negotiations’’
between the parties, as follows: The Employers’ proposed
deletion of article 8 pertaining to subcontracting; the Em-
ployers’ proposed deletion of article 9 pertaining to hiring;
the Employers’ proposed deletion of section 3 of article 12
pertaining to the two-man adjustment board under the griev-
ance and arbitration procedures; the Employers’ proposed
new language for sections 1 and 5 pertaining to seniority; the
Employers’ proposed deletion of articles 14 and 15 per-
taining to probationary employees and casuals; the Employ-
ers’ proposed ‘‘new’’ section entitled ‘‘temporary employ-
ees’’; the Employers’ proposed sections 1, 2, 3, and 4 of arti-
cle 16 pertaining to hours and overtime and the deletion of
section 9; the Employers’ proposed ‘‘assignment language’’
in article 18 pertaining to work assignments; the Employers’
proposed ‘‘new’’ language pertaining to discharge and sus-
pension in article 19; the Employers’ proposed new language
in section 6 of article 21 pertaining to safety and health; the
Employers’ proposed deletion of ‘‘reference to casuals’’ in
article 22 pertaining to tools and equipment; the Employers’
proposed change in article 26 pertaining to workers’ com-
pensation; the Employers’ proposed change in article 27 per-
taining to payroll data; the Employers’ proposed new section
6 of article 32 pertaining to vacations; the Employers’ pro-
posed change in article 33 pertaining to holidays; the Em-
ployers’ proposed deletion of section 3 and change in section
4 in article 34 pertaining to wages; and the Employers’ pro-
posed addition to article 37 pertaining to the complete agree-
ment. The Employers, as discussed below, implemented their
August 29 proposals on September 11, 1989.11
Holland acknowledged that ‘‘not all of’’ the Employers’
August 29 proposals ‘‘were on the bargaining table at any
time during the earlier bargaining between the parties.’’ For
example, the proposal pertaining to ‘‘the temporary employ-
ees, the combination of the probationary and casuals, had not
previously been discussed.’’ This and other August 29 pro-
posals assertedly had been discussed in prior years between
the parties. Holland explained:
[T]hese were for the most part overwhelming things
that we had earlier discussed but were unable to obtain
. . . we never felt before that we had the strength to
get. It now appeared to us based on the Union’s actions
or inaction that we probably did have the strength to
get them . . . . This was a substantial change in what-
ever had occurred in the past. Second, . . . I thought
if I made a more substantial and difficult proposal that
would get their attention and get them back to the
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Holland acknowledged on cross-examination that ‘‘some’’ of the
Employers’ August 29 proposals (G.C. Exh. 17) ‘‘are less favorable
to’’ Local 610 than those ‘‘ultimately negotiated with the Local 688
warehouse employees in the latter part of 1989.’’
13 On cross-examination, Welch acknowledged that ‘‘as far as I
know’’ no Local 688 person thereafter did the ‘‘spotting’’; ‘‘the
spotting was thereafter done by the supervisor.’’
table. . . . I thought that if they had those kinds of
proposals they would come back and talk to us in order
to avoid that being implemented.
Holland had considered filing unfair labor practice charges
against the Union but he and the Employers determined that
‘‘this ultimately had to be resolved at the bargaining table’’
and additional charges ‘‘would simply drag it out.’’ Not hav-
ing heard from the Union by September 11, as Holland ex-
plained, ‘‘we decided that we really didn’t have much choice
but to go ahead and implement.’’12
J. The Employees Strike Paramount on November 14
Van Hoose testified that the Union commenced a strike
against Paramount on November 14. Van Hoose met with the
employees and the strike commenced shortly thereafter. The
Union and its members previously had decided, despite the
Employers’ implementations commencing on May 8, to wait
until November 14 to strike because ‘‘that was their busy
season.’’
K. The Evidence Pertaining to the Elimination of the
Spotter/Loader Position
As noted supra, Van Hoose testified that ‘‘Holland wanted
to delete the spotter/loader position out of the recognition’’
clause. (See G.C. Exh. 4, art. 1.) Holland indicated that
‘‘they wanted to eliminate the job from the jurisdiction [of]
Local 610’’ and ‘‘would have given it to Local 688.’’ Never-
theless, as Van Hoose acknowledged, ‘‘Later, they agreed
that they would retain the job but that the Company would
have the right to assign it to whomever they wanted,’’ and
the Employers’ May 4 final proposal made no change in the
recognition clause. (See G.C. Exh. 14, art. 1.) The May 4
proposal was implemented by the Employers on May 8 and
June 12. (See G.C. Exh. 15.) The Employers’ later August
29 ‘‘revised proposal’’ stated: ‘‘Art. 1. Recognition.—Dis-
continue spotter/loader position.’’ This ‘‘revised proposal’’
was implemented on September 11. (See G.C. Exh. 17.)
Richard Welch, the unit spotter/loader for Paramount prior
to his retirement on September 29, 1989, testified that in the
past he would be instructed by his supervisor as to ‘‘what
trucks [the supervisor] would want spotted and . . . would
spot those trucks on the loading docks,’’ that is, ‘‘back them
up to the docks’’; and then he ‘‘went to the warehouse and
proceeded to set up the conveyors to load.’’ Welch was cov-
ered under the Local 610 collective-bargaining agreement.
However, on September 7, 1989, Welch received a copy of
General Counsel’s Exhibit 24 with his paycheck, which in-
cluded the Employers’ August 29 ‘‘revised proposal.’’ Welch
observed that his ‘‘job was being eliminated’’ on the fol-
lowing Monday September 11. Welch then had a series of
conversations with various Employer representatives as de-
scribed below.
Welch spoke with Operations Manager Roger Anderson.
Anderson granted Welch permission to take his vacation the
following week. Welch then spoke with Management Rep-
resentative Stephen Rudolph about the loss of his job. Ru-
dolph told Welch that ‘‘it was his understanding that . . .
[Welch] could continue on the job until [he] retired or left
the Company,’’ and then the spotter/loader position ‘‘would
go to Local 688.’’ Later, however, Anderson apprised Welch
that
when I [Welch] returned to work the following week
that I would be returning to the street [working as a
driver] and not continuing the spotter/loader [job] as
Mr. Rudolph had told me.
And, subsequently, Rudolph also stated to Welch
that he [Rudolph] wanted to apologize, that there had
been a meeting between Roger Anderson and Dale
Griffin, the vice president of the Company, and they
had decided to go ahead and implement this dis-
continuing of the spotter/loader job.
As Welch further testified, Company Vice President Grif-
fin thereafter apprised Welch that ‘‘this position was being
eliminated,’’ and ‘‘they just did not want Local 610 to have
this work any longer.’’ Griffin told Welch that ‘‘if [he] could
go back into Local 688 that [Griffin] would assign [him] the
job as spotter/loader.’’ Welch explained that he ‘‘couldn’t do
that.’’ Welch, victim of robbery attempts while driving for
the Employers, explained that he ‘‘didn’t want to go back on
the street’’ as a driver. Griffin subsequently notified Welch
that he [Griffin] had finally talked to his lawyer and
they didn’t see any problem with [Welch] working the
last two weeks [of the month prior to retirement], only
as a loader, but not to move any trucks.
Welch took his retirement at the end of this 2-week period.
He had no intention of retiring until he received the Employ-
ers’ September 7 notification.13
Paramount Vice President Stephen Rudolph testified that
‘‘after the spotter/loader work assignment was changed in
September 1989,’’ the ‘‘spotting’’ was performed by ‘‘a non-
Union supervisory employee.’’ Previously, unit employee
Welch had performed these ‘‘duties.’’ Rudolph generally re-
called that he had discussed this subject with Welch, as fol-
lows:
I [Rudolph] had a misunderstanding of the implementa-
tion of the proposal at the time. I expressed to him
[Welch] that he could continue in a loading capacity.
I misspoke myself when I said that. . . . [Later] I ex-
plained to Welch that he was a member of Local 610
that did our delivery work and that he was high on the
seniority list and he could drive a truck . . . [as] did
the other 20 people in the bargaining unit.
Allstate Vice President William Reichhardt testified that
Allstate employed four Local 610 unit employees during the
pertinent period consisting of three drivers and one
spotter/loader; Bob Reaves and Ed Clinkscale ‘‘would switch
off’’ in performing the duties of spotter/loader; nonunit Local
688 warehousemen would ‘‘assist in the loading’’;
683PARAMOUNT LIQUOR CO.
14 The testimony detailed above is essentially undisputed. There
are, however, some conflicts. Insofar as the testimony of Van Hoose
and Sanders conflicts with the testimony of Holland, Rudolph, and
Reichhardt with respect to the bargaining sequence of events, I am
persuaded on this entire record that the recollections of the latter
witnesses are more complete, accurate, and reliable. The testimony
of the latter witnesses in this respect is in part mutually corrobora-
tive, substantiated by undisputed documentary evidence, and substan-
tiated by admissions of Van Hoose. In addition, I also find on this
record that the above-recited testimony of Welch pertaining to his
ultimate loss of employment as a spotter/loader is complete, accu-
rate, and trustworthy. His testimony is essentially undisputed, sup-
ported by the testimony of Management’s witnesses, and he im-
pressed me as a credible and trustworthy witness. Insofar as the tes-
timony of Welch conflicts with the testimony of Rudolph and
Reichhardt, I credit the former as more complete and trustworthy.
15 However, as the Board also made clear in Howard Electrical &
Mechanical, 293 NLRB 472 (1989),
[W]hen a party unilaterally changes the scope of the [bar-
gaining] unit, it is irrelevant whether impasse has been reached.
The only question is whether the other party has consented to
the change. . . . [T]he crucial question in the case is whether
the unions consented to the proposed changes in the scope of
the unit, changes over which, because of their nonmandatory na-
ture, the unions were not even required to bargain.
and then there were times when neither Reeves [sic] or
Clinkscale was at work and we had to find another in-
dividual to do it. Usually it was the supervisor but from
time to time it may have been a Local 688 employee.
On September 11, 1989, Allstate ‘‘initially had a supervisor
doing that work and then we went to Local 688.’’14
II. DISCUSSION
Section 8(a)(5) of the National Labor Relations Act makes
it an unfair labor practice for an employer ‘‘to refuse to bar-
gain collectively with the representative of his employees.’’
Section 8(d) provides that ‘‘to bargain collectively is the mu-
tual 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 con-
ditions of employment.’’ In NLRB v. Insurance Agents’
Union, 361 U.S. 477, 485, 486 (1960), the Supreme Court
recognized that ‘‘[c]ollective bargaining . . . is not simply
an occasion for purely formal meetings between management
and labor while each maintains an attitude of take it or leave
it; it presupposes a desire to reach ultimate agreement, to
enter into a collective bargaining contract’’; though ‘‘the par-
ties need not contract on any specific terms . . . they are
bound to deal with each other with a serious attempt to re-
solve differences and reach a common ground.’’ Similarly, in
NLRB v. Katz, 369 U.S. 736, 747 (1962), the Supreme Court
held that the parties must refrain not only from behavior
‘‘which reflects a cast of mind against reaching agreement,’’
but from behavior ‘‘which is in effect a refusal to negotiate
or which directly obstructs or inhibits the actual process of
discussion.’’ In short, as stated by the court of appeals in
NLRB v. General Electric, 418 F.2d 736, 762 (2d Cir. 1969),
cert. denied 397 U.S. 965 (1970),
[T]he statute clearly contemplates that to the end of en-
couraging productive bargaining, the parties must make
‘‘a serious attempt to resolve differences and reach a
common ground’’ . . . an effort inconsistent with ‘‘a
predetermined resolve not to budge from an initial posi-
tion.’’ A pattern of conduct by which one party makes
it virtually impossible for him to respond to the other—
knowing that he is doing so deliberately—should be
condemned by the same rationale that prohibits ‘‘going
through the motions’’ ‘‘with a predetermined resolve
not to budge from an initial position’’ . . . [citations
omitted].
An employer violates this statutory duty to bargain in
good faith when it makes ‘‘unilateral changes in conditions
of employment under negotiation’’; for, as the court of ap-
peals explained in Television Artists AFTRA v. NLRB, 395
F.2d 622 (D.C. Cir. 1968), an employer is only privileged to
unilaterally implement such changes that ‘‘are reasonably
comprehended within his pre-impasse proposals’’ ‘‘after bar-
gaining to an impasse, that is, after good-faith negotiations
have exhausted the prospects of concluding an agreement’’;
there must be ‘‘no realistic possibility that continuation of
discussion at that time would be fruitful.’’ And, as the Board
more recently explained in Sierra Publishing Co., 291 NLRB
552 (1988), ‘‘Only in this latter context where there has been
a complete breakdown in the entire negotiations is the em-
ployer free to implement his last, best and final offer.’’15
The Board, applying the above principles in Pipe Line De-
velopment Co., 272 NLRB 48 (1984), explained:
We note that, although Section 8(d) of the Act requires
an employer to meet at reasonable times and confer in
good faith with respect wages, hours and conditions of
employment, such obligation does not compel either
party to agree to a proposal or to make a concession.
In determining whether a party has negotiated in good
faith, it is necessary to scrutinize the totality of its con-
duct. If an employer’s conduct demonstrates that it
sought to avoid an agreement, then the employer has
violated the Act. If on the other hand the employer has
used its economic power to seek a lawful contract
which it considers desirable, there is no violation. . . .
In O’Mally Lumber Co., 234 NLRB 1171, 1179–1180
(1978), the Board stated: ‘‘While a company’s change
of negotiating posture may be evidence of bad faith, the
total circumstances must be considered. Where an em-
ployer’s economic power increases through the success-
ful weathering of a strike, it is not unlawful for the em-
ployer to use its new found strength to secure contract
terms that it deems beneficial.’’
See also Barry-Wehmiller Co., 271 NLRB 471 (1984); and
Challenge-Cook Bros., 288 NLRB 387 (1988).
Later, in L. W. Le Fort Co., 290 NLRB 344 (1988), the
Board majority found:
After seven bargaining sessions, respondent [employer]
submitted its final proposal dated May 30. The employ-
ees rejected the proposal on June 1 but did not vote to
strike. . . . The parties met again on June 3 and 7 but
did not resolve their differences. On June 11, respond-
ent made another final offer that contained some provi-
sions more restrictive than those it had proposed ear-
lier. . . . From the evidence presented concerning ne-
gotiations, we conclude that the parties engaged in hard
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 As noted in the above decision, Chairman Stephens ‘‘would not
extend the logic of Barry-Wehmiller Co., [supra,] . . . finding no
manifestation of bad faith in an employer’s offering the union a less
favorable contract after it had weathered a strike, to the situation
here, where respondent has altered its offer for the worse after the
union has simply voted to reject it and has for the moment at least
declined to strike. . . . Chairman Stephens would find that an em-
ployer that without any real explanation makes its total contract offer
even less favorable than the offer already rejected is not seeking in
good faith to reach a collective bargaining agreement with the
union.’’
17 The Regional Director, on October 11, 1989, following the fil-
ing of additional charges, revoked his earlier action. See G.C. Exh.
22.
bargaining, remained far apart on key issues, and
reached impasse as of June 1. . . . It is significant,
however, that respondent advanced its June 11 pro-
posals after the parties had reached a legitimate impasse
and its economic position was strengthened by the em-
ployees’ failure to strike. In these circumstances, we do
not think the June 11 proposals demonstrate that that
respondent had no intent to compose the differences it
had with the union and to frustrate bargaining.16
In the instant case, I find, and conclude, that the parties
from March 29 to May 4, 1989, engaged in permissible hard
bargaining, remained far apart on key issues, and reached im-
passe by May 4. Consequently, the Regional Director, on
August 14, 1989, understandably dismissed the unfair labor
practice charges then pending before him, concluding (G.C.
Exh. 21):
In these circumstances, the investigation failed to estab-
lish that the Employer failed and refused to bargain in
good faith in violation of Section 8(a)(1) and (5) of the
Act, as alleged, rather than, as contended by the Em-
ployer, that the parties had reached impasse over the
economic terms of a new labor agreement, and that im-
passe permitted the Employer’s conduct in imple-
menting the terms of its final [May 4] proposal.17
Thus, as the essentially undisputed and credited evidence
of record shows, the parties first met on March 29. Local
610 presented its proposed contract modifications. Local 610
was seeking, inter alia, a ‘‘substantial wage increase.’’ The
Employers were seeking ‘‘parity’’ in wages and working
conditions between their St. Louis Local 610 drivers and
Local 688 warehousemen. Such ‘‘parity’’ existed throughout
the State at the Employers’ other facilities and apparently in
the industry as well. The St. Louis warehousemen were mak-
ing about $3 less an hour in wages. The Employers presented
to Local 610 a copy of the Local 688 contract demonstrating
their requested ‘‘parity,’’ and the union negotiator Van
Hoose ‘‘angrily threw it back.’’ The meeting ended ‘‘rather
abruptly’’ without any agreement between the parties.
The parties met again on the next day March 30. The sub-
ject of ‘‘parity’’ was again discussed. The Employers ex-
plained that
throughout the industry in the State . . . the warehouse-
men and drivers were the same, they were looking for
the same thing here.
. . . .
St. Louis was the only location [where] these Em-
ployers did not have parity between warehousemen and
drivers.
Local 610 made it clear that it ‘‘couldn’t accept [the] . . .
parity proposal.’’ The Employers also proposed to place the
unit drivers in the health maintenance plan (LHI) covering
the Local 688 warehousemen. Local 610 made it clear that
‘‘we can’t get in’’ Local 688’s LHI health plan. This meet-
ing also ended without agreement.
The parties next met on April 11. The Employers pre-
sented ‘‘an entire contract proposal.’’ Local 610 ‘‘described
it as the Local 688 contract with just the cover pages
changed.’’ The parties discussed the Employers’ ‘‘contract
proposal.’’ The Employers also made a ‘‘specific presen-
tation’’ as to why ‘‘the industry was in sad shape’’ with
charts and graphs. The Employers ‘‘agreed’’ to discuss the
Local 610 ‘‘proposals.’’ The Employers’ negotiator Holland,
however, identified his ‘‘key areas of concern’’ as including
‘‘parity between Local 610 and Local 688.’’ In addition,
Holland recalled that at this meeting the Employers agreed
to obtain ‘‘parity’’ without ‘‘having them go into the Local
688 LHI plan.’’ The Employers would make ‘‘appropriate
adjustments’’ elsewhere.
The next meeting was on April 13. The Employers re-
viewed the Local 610 proposed contract, stating their posi-
tions item by item. Following lunch and a caucus, the Union
reviewed its proposed contract article by article, ‘‘offering its
position.’’ According to Van Hoose, ‘‘Holland wanted to de-
lete the spotter/loader position out of the recognition’’
clause; ‘‘they wanted to eliminate the job from the jurisdic-
tion [of] Local 610’’ and ‘‘would have given it to Local
688’’; ‘‘later they agreed that they would retain the job but
that the Company would have the right to assign it to whom-
ever they wanted.’’ And, as Van Hoose further recalled, the
Employers stuck by their ‘‘original proposal’’ which would
require Local 610 to take a $3-an-hour wage decrease under
the Local 688 ‘‘levels.’’ Apart from items such as manage-
ment rights and the preamble and various ‘‘no change items’’
detailed supra, there were essentially no items of agreement.
As Van Hoose put it, ‘‘both sides were going nowhere.’’
Holland recalled that at this April 13 meeting the Employ-
ers ‘‘felt that it was important that [they] demonstrate some
flexibility’’; the Employers previously had proposed various
deletions and changes with respect to the prior Local 610
contract; and on April 13 the Employers agreed to ‘‘no
change’’ with respect to various of these items. For example,
the Employers agreed that ‘‘there would be no change in the
recognition clause’’ with respect to ‘‘spotter/loaders.’’ Hol-
land claimed that despite the Employers’ ‘‘flexibility’’ there
was ‘‘a substantial tightening of’’ Local 610’s ‘‘position.’’
For example, Local 610 wanted the Employers to ‘‘pay for
all negotiating time,’’ and Local 610 ‘‘increased’’ its prior
wage increase proposal from a 50- to a 75-cent-hourly wage
increase during the first year of a 3-year contract with 50-
cent increases in the next 2 years. Holland testified:
I told them that it appeared to me that we were at im-
passe . . . [Local 610] with their latest proposal [was]
going in one direction and we were going in exactly the
opposite direction . . . there seemed to be no place to
685PARAMOUNT LIQUOR CO.
18 Holland noted that his May 4 proposal contained no change
whatsoever in the Local 610 contractual recognition clause. The Em-
ployers previously had ‘‘altered their position’’ on the
‘‘spotter/loaders.’’
go. Van Hoose said, well I don’t see any daylight ei-
ther.
The parties met again on April 21. Local 610 proposed a
‘‘four day ten hour day work week.’’ Holland ‘‘basically re-
jected it,’’ ‘‘said that he felt the parties were at impasse’’
and ‘‘spoke about the possibility of implementing.’’ Holland
explained to Van Hoose,
I told him that we were concerned . . . because the
time was getting away from us . . . each day we wait-
ed was costing the Employers money that they thought
they shouldn’t be spending on disparate wages between
the warehousemen and drivers.
Van Hoose acknowledged that ‘‘parity’’ was the ‘‘large
issue’’ during the negotiations; that ‘‘perhaps’’ he said to the
Employers ‘‘that under no circumstances [was he ever] going
to agree to a decrease’’; that he ‘‘never offered to take’’ a
decrease in unit members’ wages; and that he stated to the
Employers that ‘‘if they headed down the road of a decrease
they were in line for a big labor dispute’’ meaning a
‘‘strike.’’ Van Hoose also acknowledged that prior to attend-
ing the April 21 session he had proposed to the Employers
through the mediator that Local 610 ‘‘would accept a wage
freeze,’’ and the Employers had rejected this proposal still
insisting on ‘‘parity.’’ Van Hoose, admittedly angered over
this rejection, ‘‘stormed out of this meeting,’’ and con-
sequently this meeting ‘‘also ended rather abruptly.’’
The parties last met on May 4. Holland recalled that Local
610 secretary John Metz
told me [at this meeting] that he was willing to go to
a nine month contract, which was really the first that
we’d heard of that, and would recommend a
freeze. . . . He didn’t really commit to me in any fash-
ion that he would agree to parity . . . he would be
willing to discuss it or work toward it, but he just need-
ed more time. . . . I told him that it simply would not
work; . . . we had to have parity.
The Union then requested a ‘‘final offer’’ or ‘‘final pro-
posal.’’ Holland agreed to prepare one.
Holland, by letter dated May 4 (G.C. Exh. 14), sent Van
Hoose the Employers’ ‘‘final’’ ‘‘proposal for a new collec-
tive bargaining agreement’’ as requested by the Union. Hol-
land explained that ‘‘this is a complete proposal and is in-
tended to incorporate any tentative agreements we reached
during negotiations as well as the many changes the Employ-
ers made in their initial proposals.’’18 Holland concluded:
During our meeting today you continued to reject the
Employers’ economic proposal as unacceptable to the
Union, . . . [and] absent an acceptance prior to mid-
night Sunday May 7, 1989, we will conclude that the
parties are at impasse. In that event the Employers in-
tend to implement the terms of their economic proposal
effective Monday May 8.
Admittedly, only ‘‘the economic part’’ of this ‘‘final offer’’
pertaining to ‘‘wages’’ was implemented on May 8.
Thereafter, Holland, by letter dated May 27 (G.C. Exh.
15), apprised Van Hoose:
On May 4 . . . I sent . . . you a specific pro-
posal. . . . To date we have had no response. . . .
Pursuant to that letter the Employers on May 8 placed
in effect the wage rate which had been proposed. Since
we have not heard from you we now feel it necessary
to implement the remaining terms and conditions of the
May 4 proposal. Therefore effective Monday June 12,
1989 the Employers intend to place in effect all the re-
maining terms and conditions of their May 4 . . . pro-
posal.
I find, and conclude, that Respondent Employers engaged
in hard but nevertheless permissible good-faith bargaining
during the above sequence of events. The Employers met and
conferred in good faith on their proposals and the Union’s
proposals. The Employers made concessions. The Employers,
as they were lawfully entitled, fully explained and main-
tained their position on ‘‘parity.’’ In response, the Union’s
chief negotiator warned: Local 610 ‘‘couldn’t accept [the]
. . . parity proposal’’; ‘‘angrily threw . . . back’’ the Em-
ployers’ ‘‘parity’’ proposal; threatened a strike over this
issue; observed that ‘‘both sides were going nowhere’’;
raised the Union’s pending ‘‘substantial’’ wage increase pro-
posal; ‘‘stormed out of’’ a critical bargaining meeting; and,
in effect, agreed with the representative of the Employers
that
we were at impasse . . . [Local 610] with their latest
proposal [was] going in one direction and [the Employ-
ers] were going in exactly the opposite direction . . .
there seemed to be no place to go.
The Union requested a ‘‘final offer’’ from the Employers.
The Employers promptly prepared such an offer on May 4.
The Union never responded. The Employers implemented
only the economic terms of this proposal on May 8. There-
after, the Employers wrote the Union explaining that they
would implement the remaining noneconomic terms of the
proposal by June 12. Again, the Union did not respond, and
the Employers implemented the rest of their proposal.
Respondent Employers, during this sequence, did not im-
properly make take-it-or-leave-it proposals, impermissibly
refuse to modify proposals, make regressive proposals, or in-
sist to impasse on the elimination of ‘‘spotter/loaders’’ from
the bargaining units. The question remains, however, whether
or not Respondent Employers, by their later conduct, in some
manner tainted this earlier good-faith bargaining and thus ran
afoul of the proscriptions of Section 8(a)(5) and (1) of the
Act. For the reasons stated below, I find no such violation.
The Union previously had threatened a strike. Holland ex-
plained that following the May 4 meeting, the Employers
were in a constant state of preparation for a strike
which everyone believed would happen any day . . .
[but] I never heard a word from the Union. . . .
What happened was that nothing happened, and the
Employers were beginning to feel that they should re-
assess their position that this Union which we always
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
figured would strike, that we thought had this huge
power in St. Louis, apparently couldn’t get its members
out. So, there being no strike, and the Employers hav-
ing operated under some of the changed terms and con-
ditions, they began talking about you know maybe we
really should get ourselves in a position to assert con-
trol over our business for the first time.
Accordingly, Holland prepared and sent about July 1 (G.C.
Exh. 16) a letter to Van Hoose requesting a meeting between
the parties to discuss ‘‘new proposals.’’ Holland later tele-
phoned Van Hoose requesting such a meeting and enlisted
the assistance of the Federal mediator to get the Union to at-
tend such a meeting. Van Hoose and the Union adamantly
refused to meet. As Van Hoose acknowledged, the Federal
mediator had telephoned him and requested resumed negotia-
tions, and that he then explained to the mediator that he
‘‘was waiting on a decision from the executive board’’ and
‘‘I wouldn’t meet until I got authorization to meet from the
executive board.’’ And, Van Hoose acknowledged that even
when the Union’s executive board met in late September
‘‘they didn’t make any decision about meeting with the Em-
ployers’’ and therefore he ‘‘had no clarification’’ or ‘‘author-
ization’’ from them. Finally, Van Hoose acknowledged that
from May 4 until the November 14 strike the Union did not
agree to resume negotiations, and he did not ‘‘have any in-
terest in discussing with Holland the proposals that [Holland]
outlined in his August 29 letter’’ ‘‘because they were just de-
creasing from where we were already at.’’
Holland acknowledged that ‘‘not all of’’ the Employers’
August 29 proposals (G.C. Exh. 17) ‘‘were on the bargaining
table at any time during the earlier bargaining between the
parties.’’ For example, the proposal pertaining to ‘‘the tem-
porary employees, the combination of the probationary and
casuals, had not previously been discussed.’’ This and other
August 29 proposals assertedly had been discussed in prior
years between the parties. Holland explained:
[T]hese were for the most part overwhelming things
that we had earlier discussed but were unable to obtain,
. . . we never felt before that we had the strength to
get. It now appeared to us based on the Union’s actions
or inaction that we probably did have the strength to
get them. . . . This was a substantial change in what-
ever had occurred in the past. Second, . . . I thought
if I made a more substantial and difficult proposal that
would get their attention and get them back to the
table. . . . I thought that if they had those kinds of
proposals they would come back and talk to us in order
to avoid that being implemented.
Holland had considered filing unfair labor practice charges
against the Union but he and the Employers determined that
‘‘this ultimately had to be resolved at the bargaining table’’
and additional charges ‘‘would simply drag it out.’’ Not hav-
ing heard from the Union by September 11, as Holland ex-
plained, ‘‘we decided that we really didn’t have much choice
but to go ahead and implement.’’
I find, and conclude, that Respondent Employers, by their
September 11 implementation, did not violate Section 8(a)(5)
and (1) of the Act. The Union adamantly refused to meet
with the Employers. Whether the Union’s conduct be viewed
as a consent or waiver of such implementation, or whether
it be viewed simply as evidence of impasse, the Employers
were under the circumstances entitled to implement their Au-
gust 29 proposals. Moreover, this record amply demonstrates
sufficient changed circumstances to justify the Employers’
attempt to secure terms and conditions of employment more
favorable to the Employers. The parties had bargained in
good faith to impasse. The Employers had, after receiving no
response from the Union, lawfully implemented their
preimpasse proposals. The Union had threatened a strike, but
no strike occurred after implementation. The Employers then
attempted to meet with the Union to discuss further changes.
The Union refused. Under these circumstances, the Employ-
ers’ further implementation of their August 29 proposals on
September 11 was lawful. The Union, at the very least, was
obligated to meet with the Employers and thus put the good
faith of the Employers to the test of the bargaining table.
I find, and conclude, that Respondent Employers have not,
as alleged, made take-it-or-leave-it bargaining proposals; re-
fused to modify such proposals; made regressive bargaining
proposals notwithstanding that no intervening change in cir-
cumstances had occurred to justify such regressive proposals;
since about April 21 insisted to impasse on the elimination
of ‘‘spotter/loaders’’ from the bargaining units; implemented
take-it-or-leave-it proposals about May 8 and June 12; further
implemented regressive bargaining proposals about Sep-
tember 11; and by their overall conduct failed and refused
to bargain in good faith with the Union, in violation of Sec-
tion 8(a)(5) and (1) of the Act. I would therefore dismiss
these and related allegations of the complaint.
However, I find, and conclude, that Respondent Employers
violated Section 8(a)(5) and (1) of the Act by implementing
on or about September 11 the August 29 proposal pertaining
to the elimination of spotter/loaders from the bargaining
units. Thus, the complaint alleges the appropriate bargaining
units to be those described in the prior collective-bargaining
agreements of the parties. Respondents admit these unit alle-
gations. The pertinent collective-bargaining agreements pro-
vide in article 1, Recognition (G.C. Exh. 4), that the Em-
ployer
agrees to recognize and does recognize the Union, its
agents, representatives, or successors, as the exclusive
bargaining agency for all employees of the Employer
traditionally represented by the Union at the Employ-
er’s premises, i.e. truck drivers and spotter/loaders.
The Employers’ August 29 proposal (G.C. Exh. 17) provides:
Art. 1. Recognition.—Discontinue spotter/loader posi-
tion.
This proposal was implemented on September 11.
As noted supra, the Board explained in Howard Electrical
& Mechanical, 293 NLRB 472 (1989),
[W]hen a party unilaterally changes the scope of the
[bargaining] unit, it is irrelevant whether impasse has
been reached. The only question is whether the other
party has consented to the change. . . . [T]he crucial
question in the case is whether the unions consented to
the proposed changes in the scope of the unit, changes
over which, because of their nonmandatory nature, the
unions were not even required to bargain.
687PARAMOUNT LIQUOR CO.
19 The General Counsel also alleges that the November 14 strike
was caused and prolonged by Respondents’ unfair labor practices.
The essentially undisputed and credited evidence of record detailed
above does not show a sufficient nexus between the 8(a)(5) and (1)
violation found and the ensuing strike. I would therefore also dismiss
this allegation.
I note that the complaint, as amended, charges Respondent Para-
mount with implementing the proposal pertaining to the elimination
of ‘‘spotter/loaders.’’ See G.C. Exhs. 1(g) and (n). However, it is
undisputed that both Respondents implemented this proposal and
neither General Counsel nor counsel for Respondents attempted to
draw any distinction between Paramount and Allstate in this respect.
As counsel for Respondents stated in his brief (p. 19):
The spotter-loader proposal was revived by the Employers in
their August 29, 1989 proposals and subsequently was imple-
mented as part of the September 12 [sic], 1989 implementation
after the Union refused to meet and discuss the proposal.
Accordingly, the parties have fully litigated this issue as to both Em-
ployers, the pertinent evidence is undisputed and to the extent the
complaint only alleges this violation against Paramount, it is amend-
ed to allege the violation against both Employers.
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Respondent Employers have therefore changed the scope of
the bargaining units by admittedly implementing the above
proposal. I reject Respondent Employers’ assertion to the ef-
fect that this conduct constituted a permissible change in
work assignment.19
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce as al-
leged.
2. Charging Party Union is a labor organization as alleged.
3. Respondent Employers have violated Section 8(a)(5)
and (1) of the Act by failing and refusing to bargain in good
faith with the Union as the exclusive bargaining agent of
their employees in the following appropriate units by imple-
menting a proposal to eliminate the position of ‘‘spotter/-
loader’’ from the units. The appropriate bargaining units in-
clude:
All drivers and spotter/loaders employed at Respond-
ents’ St. Louis, Missouri warehouse facilities, excluding
office clerical and professional employees, guards and
supervisors as defined in the Act, and all other employ-
ees.
4. Respondents have not committed other violations as al-
leged in the amended consolidated complaint and these alle-
gations are dismissed.
5. The unfair labor practices found above affect commerce
as alleged.
REMEDY
To remedy the violation found, Respondent Employers
will be directed to cease and desist from engaging in such
conduct, or like and related conduct, and to post the attached
notice. Affirmatively, Respondent Employers will be directed
to, on request, bargain in good faith with the Union as the
exclusive bargaining agent of the employees in the above-ap-
propriate units, including ‘‘spotter/loaders,’’ and embody any
understanding reached in a signed agreement. Further, Re-
spondents will be directed to offer all ‘‘spotter/loaders’’ im-
mediate and full reinstatement to their former jobs or in the
event their former jobs no longer exist to substantially equiv-
alent jobs without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earn-
ings they may have suffered by reason of Respondents’ un-
lawful action, by making payment to them of a sum of
money equal to that which they normally would have earned
from the date of Respondents’ unlawful action to the date of
its offer of reinstatement, less net earnings during such pe-
riod, with backpay to be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 651 (1977), and interest as pro-
vided in New Horizons for the Retarded, 283 NLRB 1173
(1987). See generally Isis Plumbing Co., 138 NLRB 716
(1962). Respondents will be directed to preserve and make
available to the Board or its agents, on request, all payroll
records and reports and all other records necessary to deter-
mine backpay under the terms of this Decision and Order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondents, Paramount Liquor Company and All-
state Distributors, Inc., St. Louis, Missouri, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the
Union, Miscellaneous Drivers, Helpers, Health Care and Pub-
lic Employees Local Union No. 610, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO as the exclu-
sive bargaining agent of their employees in the following ap-
propriate units, by implementing a proposal to eliminate the
position of ‘‘spotter/loader’’ from the units. The appropriate
bargaining units include:
All drivers and spotter/loaders employed at Respond-
ents’ St. Louis, Missouri warehouse facilities, excluding
office clerical and professional employees, guards and
supervisors as defined in the Act, and all other employ-
ees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive bargaining agent of the employees in the
above-appropriate units, including ‘‘spotter/loaders,’’ and
embody any understanding reached in a signed agreement.
(b) Offer all ‘‘spotter/loaders’’ immediate and full rein-
statement to their former jobs or, in the event their former
jobs no longer exist, to substantially equivalent jobs without
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have
suffered by reason of Respondents’ unlawful action, with in-
terest, as provided in this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination or copying all payroll records,
social security payment records, timecards, personnel records
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 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
National 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.’’
and reports, as well as all other records necessary or useful
in analyzing and computing the amount of backpay, as pro-
vided in this decision.
(d) Post at their St. Louis, Missouri facilities copies of the
attached notice marked ‘‘Appendix.’’21 Copies of the notice
on forms provided by the Regional Director for Region 14,
after being signed by Respondents’ representative shall be
posted by Respondents immediately upon receipt in con-
spicuous places including all places where notices to employ-
ees are customarily posted and maintained for 60 consecutive
days. Reasonable steps shall be taken to ensure that notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date in this Order what steps Respondents have
taken to comply.
IT IS FURTHER ORDERED that the remaining allegations of
the amended consolidated complaint be dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail and refuse to bargain in good faith with
the Union, Miscellaneous Drivers, Helpers, Health Care and
Public Employees Local Union No. 610, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO as the exclu-
sive bargaining agent of our employees in the following ap-
propriate units, by implementing a proposal to eliminate the
position of ‘‘spotter/loader’’ from the units. The appropriate
bargaining units include:
All drivers and spotter/loaders employed at our St.
Louis, Missouri warehouse facilities, excluding office
clerical and professional employees, guards and super-
visors as defined in the Act, and all other employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
WE WILL, on request, bargain in good faith with the Union
as the exclusive bargaining agent of our employees in the
above-appropriate units, including ‘‘spotter/loaders,’’ and
embody any understanding reached in a signed agreement.
WE WILL offer all ‘‘spotter/loaders’’ immediate and full
reinstatement to their former jobs or, in the event their
former jobs no longer exist, to substantially equivalent jobs
without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of earnings they
may have suffered by reason of our unlawful action, with in-
terest, as provided in the Board’s decision.
PARAMOUNT LIQUOR COMPANY & ALLSTATE
DISTRIBUTORS, INC.