Thomas Sheet Metal Co.

National Labor Relations Board - Board Decisions

Feb 27, 1984

268 N.L.R.B. 1189 (N.L.R.B. 1984)

THOMAS SHEET METAL CO.
Thomas Sheet Metal Co., Inc. and Sheet Metal
Workers' Local Union No. 11. Case 15-CA-
8841
27 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 13 July 1983 Administrative Law Judge
James L. Rose issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and the Charging Party
adopted the General Counsel's exceptions and sup-
porting brief as its exceptions and brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The issue presented is whether the Respondent
unlawfully implemented a unilateral change by
eliminating travel and zone payments to its employ-
ees. The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by ceasing to
make these payments without giving prior notice to
the Union or bargaining to an impasse. The judge
did find, however, that the parties subsequently
reached an impasse on the payment issue, tolling
the Respondent's liability at that point. Contrary to
the judge, we find that the parties reached an im-
passe in bargaining prior to the Respondent's im-
plementation of the unilateral change.'
The facts are as follows. The Union has been a
party to successive collective-bargaining agree-
ments with the Sheet Metal Contractors Associa-
tion of New Orleans, Inc. for some years. Al-
though the Respondent has not been and is not
now a member of the Association, it became signa-
tory to the Association agreements from 1977 until
the expiration of the previous contract on 31 July
1982. The Respondent has not become signatory to
the current agreement between the Union and the
Association, nor has it entered into a separate con-
tract with the Union.
Under the terms of the expired contract, four
concentric zone systems were established around
the Louisiana cities of Bogalusa, Covington,
Houma, and New Orleans. Each employer having
a shop within a city's inner zone was exempt from
In view of our decision herein, we find it unnecessary to rule upon
the judge's findings as to the Respondent's period of liability.
268 NLRB No. 186
the travel and zone pay obligations for all work
performed within the zone, regardless of where its
employees resided. For work performed outside
the inner zone, the employer was required to pay
the wage rate plus travel pay, an amount calculated
by multiplying the jobsite's distance from the
zone's center by 30 cents. Employees also earned
cumulative 20-cent hourly wage premiums for jobs
in each zone beyond the inner free zone. Work
performed in Mississippi, however, was only sub-
ject to an additional flat-rate payment of $6 per
employee per day. The Respondent's shop is locat-
ed in Bogalusa, whereas all of the Association
members have shops in New Orleans.
Approximately 90 days before the expiration of
the contract, in March or April 1982, Richard
Thomas Sr. called Union President and Business
Manager Stanley Gaudet to arrange a meeting to
discuss relief for the Respondent from its obligation
to make the $6 a day payments to employees on
Mississippi work. Thomas Sr., Gaudet, and Union
Financial Secretary and Assistant Business Manag-
er Turcotte met at least once and possibly three
times during this period to discuss Mississippi pay.
Gaudet told Thomas Sr. that the Union would
waive the $6 payments on future jobs bid in Missis-
sippi against nonunion contractors if the Respond-
ent requested such relief in time for the Union to
give the other union contractors the same opportu-
nities for bidding.
The Union and the Association negotiated a suc-
cessor contract in the summer of 1982 which was
effective on 1 August 1982. This contract con-
tained zone and travel pay provisions identical to
those in the expired agreement. There were no
other discussions between the Respondent and the
Union until after the previous contract had expired.
Then, in August 1982, Turcotte met at the Re-
spondent's office in Bogalusa with Thomas Sr. and
his two sons. The primary topic of discussion was
the Respondent's inability and unwillingness to pay
travel pay to its employees working in New Orle-
ans. The Respondent took the position that it
would sign the recently negotiated Association
agreement as long as it did not contain travel pay
provisions. Specifically, Thomas Sr. told Turcotte
that, unless the travel pay provisions were eliminat-
ed, he might as well close his doors. Turcotte
became angry and threatened to expel the Tho-
mases from union membership.
Around 21 September 1982 one of the Respond-
ent's employees called Gaudet and informed him
that Thomas had told the employees he was "going
non-union" the next day. Gaudet was unable to
reach Thomas until about a week later. Thomas
told Gaudet in that telephone conversation that he
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could no longer afford to make travel and zone
payments and that he would not make those pay-
ments. When Thomas Sr. subsequently met with
Gaudet and Turcotte he told them that he felt it
was unfair for him to have to pay travel and zone
pay and that he needed relief. The Union suggested
that the Respondent could reduce its costs by uti-
lizing the Union's apprenticeship program and/or
by establishing more shops from which the travel
and zone pay could be calculated.
Thomas Sr., Gaudet, and Turcotte again met
around mid-October 1982 after the Respondent had
stopped, without prior notice to the Union, paying
travel and zone pay to some employees. 2 Gaudet
asked Thomas if he would pay all of the employees
the required zone and travel pay, but Thomas held
to his position that he would not make those pay-
ments.
The parties met several more times, including
once in January 1983, with an International repre-
sentative from the Union, but it was clear that nei-
ther the Respondent nor the Union would make
concessions on travel and zone pay. In fact,
throughout the entire negotiations the Union never
offered the Respondent anything other than the
Association agreement which required travel and
zone pay, and the Respondent never offered any
proposal short of signing the Association agree-
ment without travel and zone pay provisions.
Counsel for the General Counsel argued, and the
judge concurred, that the Respondent had present-
ed the Union with a fait accompli and accordingly
had violated Section 8(a)(5) and (1) of the Act by
implementing its unilateral change. In contrast, the
Respondent asserts, and we agree, that the parties
did engage in negotiations about travel and zone
pay to the extent that the parties had reached an
impasse prior to the implementation of the unilater-
al change.
As stated by the Board in Hi- Way Billboards, 206
NLRB 22, 23 (1973):
A genuine impasse in negotiations is synony-
mous with a deadlock: the parties have dis-
cussed a subject or subjects in good faith, and,
despite their best efforts to achieve agreement
with respect to such, neither party is willing to
move from its respective position. .... Once a
genuine impasse is reached . . . the employer
can . . . make unilateral changes in working
conditions if they are consistent with the offers
the union has rejected .... [Footnote omit-
ted.]
2 The judge found that the Respondent had not made zone and travel
payments since the expiration of the contract. We find, however, that the
Respondent did not cease making those payments until early October
1982.
The only factor preventing the parties here from
reaching a new collective-bargaining agreement
was the single bargaining issue of travel and zone
pay. There is no allegation that the Respondent en-
gaged in anything other than good-faith bargaining
or that it expressed any animus against the Union
by conduct away from the bargaining table. In fact,
the Respondent initiated most of the discussions re-
lating to these provisions. Given the parties' re-
spective positions as to travel and zone pay, it ap-
pears that they may have been deadlocked almost
from their first meeting. At the very least, by late
September 1982, before the unilateral changes were
implemented, it was clear that both the Respondent
and the Union had maintained their respective posi-
tions steadfastly from the commencement of bar-
gaining and were unwilling to make any conces-
sions. See R. A. Hatch Co., 263 NLRB 122 (1982).
In light of the single-issue bargaining, conducted in
good faith by the parties, the fact that neither party
made any significant concessions or proposals at
any time, and the obvious intentions of both parties
to adhere to their respective positions regarding
travel and zone pay, we find that the parties had
reached a bargaining impasse no later than the end
of September 1982.
Accordingly, we find that by ceasing to make
travel and zone payments the Respondent did not
violate Section 8(a)(5) and (1) of the Act because it
had bargained to an impasse with the Union prior
to the implementation of this unilateral change and
implemented a change which was consistent with
its prior bargaining proposal.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was tried before me at Bogalusa, Louisiana, on
April 27, 1983, upon the General Counsel's complaint,
which alleges that on or about October 1, 1982, the Re-
spondent unilaterally changed the wages and other terms
and conditions of employment of its employees in viola-
tion of Section 8(a)(5) of the National Labor Relations
Act, 29 U.S.C. § 151 et seq.
The Respondent generally denies that he committed
any unfair labor practices, and apparently contends, inter
alia, that any alteration in terms and conditions of em-
ployment was subsequent to the parties having reached
an impasse in negotiations over that particular term.
On the record as a whole, including my observation of
the witnesses, briefs, and arguments of the counsel, I
make the following
1190
THOMAS SHEET METAL CO.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Thomas Sheet Metal Co., Inc. is a Louisiana corpora-
tion engaged as a sheet metal contractor with its princi-
pal place of business in Bogalusa, Louisiana. The Re-
spondent annually performs services valued in excess of
$50,000 in States other than the State of Louisiana. The
Respondent admits, and I find, that at all times material
it has been an employer engaged in interstate commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' Local Union No. 11 (herein the
Union) is admitted to be and I find is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
The Union represents employees of various sheet
metal contractors in a geographical jurisdiction of New
Orleans, Louisiana, and surrounding parishes.
The Union has negotiated successive collective-bar-
gaining agreements with the Sheet Metal Contractors
Association of New Orleans, Inc. (herein the Associa-
tion). Certain nonmembers of the Association, including
the Respondent, have been parties to the collective-bar-
gaining agreements between the Association and the
Union.
At the time of the events here, there were about 40 to
50 contractors whose employees the Union represented
based in New Orleans. Of all the employers with which
the Union had a collective-bargaining relationship, only
the Respondent had its place of business outside New
Orleans.
The most recent contract to which the Respondent
was a party was effective from August 1, 1980, to July
31, 1982. In the summer of 1982, the Association and the
Union negotiated a successor agreement which became
effective on August 1, 1982. The Respondent, however,
has never signed or become a party to this agreement
nor did the Respondent participate in negotiations.
In addition to wages and other terms and conditions of
employment in the 1980-1982 contract, as well as its suc-
cessor, there is a provision calling for both zone and
travel pay for employees working beyond 15 miles from
the city where their respective employer has its shop.
For New Orleans contractors, the focal point is Canal
and Royal Streets in New Orleans. For other contractors
it is, presumably, the city limits respectively of Homa,
Bogalusa, and Covington. In brief, for work performed
beyond a 15-mile free zone, each employee is entitled to
a 20-cent-per-hour premium for each zone. The contract
provides for six zones of 7-1/2 miles. Thus, the maximum
zone premium is $1.20 per hour.
In addition to zone pay, each employee is entitled 30
cents per mile travel pay for any jobs beyond the 15-mile
free zone.
Finally, for work performed in certain counties in Mis-
sissippi, employees receive the free zone wage rate plus
$6 per day.
The zone and travel pay in the 1982-1985 contract is
identical to that of the 1980-1982 contract.
For some time, the matter of zone and travel pay had
been of concern to the Respondent, particularly inas-
much as most of its jobs were either in Mississippi or in
the New Orleans area, both of which would require pay-
ment of zone and travel pay. Since the Respondent had
to pay zone and travel pay for jobs in the New Orleans
area, but the New Orleans contractors did not, this
meant the Respondent was at a competitive disadvantage
in bidding those jobs. Zone pay in Mississippi was of
concern to the Respondent since its Bogalusa location
meant that it, more than contractors out of New Orleans,
would bid on Mississippi jobs.
Thus, officers of the Respondent had discussed the
matter of zone pay with representatives of the Union.
Indeed, Stanley Gaudet, the Union's president and busi-
ness manager, testified that he was in favor of doing
away with the zone pay for Mississippi, and so recom-
mended to the membership. However, they voted to
keep the zone pay in the 1982-1985 contract.
In an April 1982 meeting between Gaudet and Richard
Thomas Sr., Thomas suggested that the zone and travel
pay were burdensome and that something would have to
be done about them. Gaudet suggested that Thomas
might participate in the forthcoming negotiations, even
though not an Association member, but Thomas declined
to do so.
Nothing occurred following the April meeting until
subsequent to the expiration of the 1980-1982 contract.
Then sometime in September, Gaudet was advised by
one of the Respondent's employees that they had been
advised the Respondent was going to quit paying zone
and travel on a job in Manderville, Louisiana, a town
outside New Orleans and about 50 miles from Bogalusa.
And in fact, since the expiration of the 1980-1982 con-
tract, the Respondent has not paid employees zone or
travel pay although the Respondent has abided by the
other terms and conditions of the 1982-1985 contract re-
lating to wages and fringe benefits.
The Respondent did not advise the Union in advance
of its intention to cease paying zone or travel pay, nor
was this a matter of discussion and negotiation until sub-
sequent to the Respondent's determination to cease
making these payments. From mid-September to the time
of the hearing, various officials of the Respondent have
met on numerous occasions with various officials of the
Union, as well as an International representative, in an
effort to resolve this problem.
In sum the Respondent's position has been that it will
not sign the new collective-bargaining agreement unless
the Union agrees to make a concession to the Respond-
ent concerning zone and travel pay. The Union's position
has been that if the Respondent will sign the new collec-
tive-bargaining agreement then, and only then, would the
Union be willing to make a concession on zone and
1191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
travel pay. The Union has indicated that it would do so,
recognizing that the Respondent is at competitive disad-
vantage to the extent that it has to make zone and travel
payments to employees that other contractors do not.
B. Analysis and Concluding Findings
The Union and the Respondent have had a collective-
bargaining relationship which, of course, survives the ex-
piration of any particular collective-bargaining agree-
ment. Thus, the fact that the 1980-1982 contract expired
on July 31, 1982, does not relieve the Respondent of its
obligation to bargain with the Union concerning wages
and hours and other terms and conditions of employ-
ment.
Moreover, it is settled that, even on the expiration of a
collective-bargaining agreement, terms relating to wages,
hours, and other conditions of employment terms remain
in effect and cannot be altered unilaterally. E.g., Cauth-
orne Trucking, 256 NLRB 721 (1981), remanded 691 F.2d
1023, 1025 (D.C. Cir. 1982).
Here it is essentially uncontested by the Respondent
that it made a unilateral change in an important term and
condition of employment, namely, the hourly wage to be
paid to employees for certain jobs as well as travel pay
to those jobs. Notwithstanding that the zone and travel
pay as to the Respondent may have been onerous, the
fact is such were terms and conditions of employment to
which the Respondent had voluntarily agreed and which
were to continue in full force and effect until altered-
either through collective bargaining or after impasse on
that subject.
Notwithstanding that the parties may have reached an
impasse concerning those items subsequently, there was
no impasse when the Respondent first unilaterally deter-
mined to cease paying zone and travel pay. Not only
was there not an impasse, there had been no negotiations
at all between the parties concerning this matter.
The Union and the Association discussed zone and
travel and agreed to renewal of the clause in the 1982-
1985 contract. The Respondent was not a party to these
negotiations nor was the Respondent bound by the Asso-
ciation's agreement. Nevertheless, the Respondent did
not seek out the Union to negotiate different terms or
even advise the Union that it intended to cease paying
zone and travel after the expiration to the 1980-1982
contract to which it was a party.
Accordingly, it must be concluded that the Respond-
ent did in fact unilaterally alter a substantial term of em-
ployment and thus violated its obligation to bargain
under Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondent's business, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
According to Gaudet at a meeting in early April, the Union's attor-
ney told Thomas, "We already have a contract with you, and our posi-
tion is that you are bound by this contract." This contention forms no
basis of the complaint herein nor did the Union pursue it at the hearing.
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
V. THE REMEDY
Having found that the Respondent unilaterally ceased
paying employees zone and travel pay beginning in Sep-
tember 1982, I shall recommend that it cease and desist
therefrom and make appropriate restitution to those em-
ployees.
But there is a question of what limits, if any, should be
placed on the Respondent's backpay liability to employ-
ees for zone and travel pay. The analysis of this begins
with noting that:
In cases, like the one here, involving a violation
of Section 8(a)(5) based on the respondent's unilat-
erally altering existing benefits, it is the Board's es-
tablished policy to order restoration of the status
quo ante to the extent feasible where there is no evi-
dence that to do so would impose an undue or
unfair burden on the respondent. [Turnbull Enter-
prises, 259 NLRB 934 (1982), citing Allied Products,
218 NLRB 1246 (1975), enfd. in relevant part 548
F.2d 644 (6th Cir. 1977).]
In ordering full restoration to the status quo ante in
cases like this, the Board always makes a notation along
the lines of, "there is no evidence that this action will
cause any undue burden on Respondent." Mead Corp.,
256 NLRB 686 (1981). Such implicity means that where
there is a showing of undue hardship the full restoration
remedy will not be levied.
Thus, the court in NLRB v. Cauthorne, supra, rejected
the argument that an employer who makes a pre-impasse
unilateral change in wages or benefits cannot subsequent-
ly bargain in good faith to an impasse. The court found,
as in the instant case, that a unilateral change of existing
benefits after the expiration of a collective-bargaining
agreement but before impasse was violative of Section
8(a)(5). But the court went on to find that there was sub-
sequent negotiation during which an impasse was
reached. To remedy the 8(a)(5) violation the court held
that the respondent's make-whole liability should end on
the date the parties reached impasse.
Although I am bound by the Board and not courts of
appeals, the court's decision in Cauthorne is certainly not
at odds with established Board policy. Indeed language
in Allied and subsequent cases suggests that, in the
proper case, backpay liability would be tolled. I believe
this is such a case. I conclude that to order the status
quo ante to some future date would cause a substantial
and undue burden on the Respondent. Further, I con-
clude that the Respondent's unilateral act did not fore-
close it from bargaining in good faith with the Union.
Of all the contractors with which the Union has a bar-
gaining relationship, the Respondent is most affected by
the zone and travel pay. Indeed, the Union seems to rec-
ognize this indicating that some relief would be forth-
coming if the Respondent would sign the Association
contract. To order full restitution here would have a sub-
stantial impact on the Respondent's ability to compete
1192
THOMAS SHEET METAL CO.
for business, particularly in New Orleans. Zone and
travel pay for the Respondent's Manderville jobs
amounts to an additional $30 per day per man.
Subsequent to its unilateral action, the Respondent
began bargaining with the Union concerning zone and
travel pay. And at least by January, the parties were at
an impasse in negotiations over this matter. The Re-
spondent would not sign a collective-bargaining agree-
ment which included zone and travel pay. The Union
would not sign a collective-bargaining agreement differ-
ent from the Association contract, although indicating
that subsequent to the execution of an agreement some
"relief' for the Respondent would be forthcoming. Inas-
much as zone and travel pay as set forth in the Associa-
tion contract were items to which the Respondent did
not have to agree, and stated it would not; and inasmuch
as the Union's position was just as adamant that it would
accept no less from the Respondent than it had from the
Association, I conclude that there was in fact an impasse
in negotiations voluntarily commenced between the Re-
spondent and the Union prior to this proceeding. Indeed,
had the Union not been insistent that the Respondent
sign precisely the same contract it had with the Associa-
tion, this dispute might have been resolved.2
After several conversations and meetings between rep-
resentatives of the Union and the Respondent, Richard
2 This insistence forms the basis of the Respondent's defense lelating to
an alleged violation of the Federal antitrust laws, an issue I need not con-
sider in view of my decision herein.
Thomas Sr. wrote the Union's International body. An
International representative, Willard Bell, was dispatched
to meet with the parties. He did so on January 23, 1983.
During this meeting, according to Gaudet, Bell told
Thomas:
Well, how do you expect me to give you some
help if you haven't even signed the contract? If you
want me to talk to you, sign the contract, and
maybe we can give you some help. But he
[Thomas] would not sign the contract, and Mr. Bell
couldn't do anything for him.
I believe that before this meeting there appeared some
hope of reaching agreement on zone and travel pay (and
therefore the contract). After Bell's pronouncement,
absent one party or the other changing position there
was none. Accordingly, I conclude that as of January 23,
1983, the parties bargained to impasse on the issue of
zone and travel pay. I further conclude that the Re-
spondent's liability for unilaterally refusing to pay same
ended at that time.
I shall recommend the Respondent be ordered to reim-
burse each employee so entitled for zone and travel pay
from August 1, 1982, to January 23, 1983, with interest
as provided for in Florida Steel Corp., 231 NLRB 651
(1977).3
[Recommended Order omitted from publication.]
a See generally Isis Plumbing Co., 138 NLRB 716 (1962)
1193