FKW, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1996

321 N.L.R.B. 93 (N.L.R.B. 1996)

93
321 NLRB No. 19
FKW, INC.
1 314 NLRB 289.
2 See 314 NLRB at 291 fn. 10.
3 The court instructed the Board that ‘‘[u]pon remand, unless the
Board can ascertain a legitimate alternative basis for the conclusion
that FKW was contractually precluded from negotiating with the
Union as to wages, it must provide an appropriate remedy for
Continued
FKW, Incorporated and International Brotherhood
of Electrical Workers, AFL–CIO, Local Union
1141. Case 17–CA–15959
April 30, 1996
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On July 12, 1994, the National Labor Relations
Board issued its Decision and Order in this proceed-
ing,1 adopting the administrative law judge’s dismissal
of the complaint alleging that the Respondent had vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
bargain collectively with the Union. Thereafter, Elec-
trical Workers Local Union 1141 (the Union) filed a
petition for review with the District of Columbia Cir-
cuit Court of Appeals. On April 4, 1995, the court in
an unpublished opinion vacated the Board’s decision
and remanded the case to the Board for further pro-
ceedings consistent with its decision.
In its decision, the Board found that the Respondent
had not violated Section 8(a)(5) and (1) of the Act by
unilaterally implementing a new wage and benefit
scheme prior to bargaining to impasse with the Union.
The Board adopted the following findings of the judge:
Respondent implemented only those terms and
conditions dictated by the [Federal Aviation Ad-
ministration] contract and thereafter demonstrated
its willingness to negotiate concerning terms and
conditions not controlled by the contract. I further
find that, because Respondent lacked the ability to
negotiate concerning the matters prescribed by the
FAA contract, its failure to do so did not con-
stitute a refusal to bargain violative of the Act.
[Footnote omitted.]
In reaching these conclusions, the judge had relied on
testimony of an alleged expert witness that any pay-
ment by the Respondent of wages and benefits in ex-
cess of those set forth in the Respondent’s contract
with the FAA would violate that contract.
In its decision, the court rejected the above conclu-
sions. It found, inter alia, that the alleged expert wit-
ness’ testimony established ‘‘at best that the FAA is
not obligated to reimburse the Respondent for any
wage expenses in excess of those specified in the con-
tract.’’ It further found that the witness’ suggestion
‘‘that [the Respondent] actually would violate the con-
tract by paying wages in excess of those specified in
that agreement’’ was contradicted by the ‘‘plain lan-
guage of the contract, which states that ‘the labor rates
shown [in the contract] are the maximum allowable,’
and that ‘[t]he contractor shall bear expenses in excess
thereof.’’’ The court therefore concluded that the
Board’s decision had no support in the record and it
remanded the case to the Board ‘‘for further proceed-
ings consistent with this order.’’ Specifically, the court
directed the Board to provide an appropriate remedy
for the Respondent’s refusal to bargain unless, on re-
mand, ‘‘the Board can ascertain a legitimate alternative
basis for the conclusion that FKW [the Respondent]
was contractually precluded from negotiating with the
Union as to wages.’’
On June 30, 1995, the Board notified the parties that
it had accepted the remand and invited the parties to
submit statements of position. The Respondent and the
Union filed statements of position.
The Board has reconsidered this case in light of the
court’s decision and the parties’ statements of position.
The Board has decided to accept the court’s decision
as the law of this case and, for the following reasons,
now finds that the Respondent has violated the Act as
alleged.
The court found that the language of the contract be-
tween the Respondent and the FAA permitted the Re-
spondent to exceed the wage rates specified there on
condition that the contractor (here, the Respondent)
would bear any additional expenses, i.e., the FAA
would not reimburse the Respondent for any wages
paid in excess of the contractual rates. We cannot now
ascertain any ‘‘legitimate alternative basis’’ for finding
that the Respondent’s FAA contract precluded it from
negotiating with the Union regarding wage rates and
other terms and conditions of employment for the unit
employees. Indeed, we find that the Respondent offers
no ‘‘legitimate alternative basis’’ for such a finding in
its statement of position.
We also note that the Respondent had previously
raised before the judge the defense that the Union,
based on its conduct during bargaining, had effectively
waived the right to contest the Respondent’s unilateral
implementation. The judge found the waiver argument
‘‘moot’’ in light of his determination that the Respond-
ent had not violated the Act.2 The Respondent did not
except to the judge’s failure to find that the Union had
waived bargaining, but the Respondent raises this argu-
ment again in its statement of position. The Respond-
ent has arguably waived this contention by failing to
except to the judge’s failure to find waiver, and the
court’s remand did not specifically encompass this
issue. Even assuming that the argument is properly be-
fore us, however, we conclude for the reasons stated
below that the Union did not waive bargaining in this
case.3
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FKW’s refusal to bargain [emphasis added].’’ The issue of alleged
union waiver, which our colleague finds has merit, is not the same
as the issue of whether FKW was ‘‘contractually precluded’’ from
negotiating, and thus there is a significant question whether the
union waiver issue is appropriately before us on remand from the
court.
In response to our colleague’s comments that the General Counsel
and the Charging Party do not suggest that the Respondent waived
its argument, we note the following: (1) the General Counsel did not
file any statement of position on remand in this case and therefore
has made no arguments on any points discussed here, and (2) the
Charging Party’s statement of position, responding to the court’s
question of whether the Respondent was contractually precluded
from negotiating, does not even address the union waiver issue. This
is a far cry from indicating that the Charging Party believes the
union waiver issue is properly before the Board for decision.
4 See Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd.
sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C.
Cir. 1968). The Respondent has not argued here that the parties bar-
gained to impasse.
5 Fire Fighters, 304 NLRB 401, 402 (1991).
6 See Bottom Line Enterprises, supra at 374.
7 Following the FAA’s contract award, the Union immediately met
twice with the Respondent for contract negotiations and then pro-
posed meeting again slightly more than 2 weeks after a break for
the Christmas holidays. We cannot conclude, in these circumstances,
that the Union waived or refused bargaining, or that it even unrea-
sonably delayed bargaining, because we do not agree with the Re-
spondent’s argument that it was absolutely necessary for the parties
to have come to an agreement by the January 1 deadline set by the
Respondent.
8 We stress that the Board’s recent decision in RBE Electronics of
S.D., 320 NLRB 80 (1995), further explicating the ‘‘economic ex-
igencies’’ exception noted in Bottom Line, does not warrant a find-
ing in this case that the Respondent’s implementation of unilateral
changes was justified. We note, inter alia, that the Union did not
waive its right to bargain nor did the parties reach impasse on the
matter proposed for change. Thus, the Respondent cannot avail itself
of the Bottom Line limited exception described in RBE Electronics,
supra.
It is well established that during collective bargain-
ing an employer has the obligation to refrain from
making unilateral changes in the unit employees’ terms
and conditions of employment unless and until the par-
ties have reached impasse on bargaining for the agree-
ment as a whole.4 In Bottom Line Enterprises, 302
NLRB 373, 374 (1991), the Board ‘‘reiterated the gen-
eral rule that the defense of waiver is not available to
an employer during the course of negotiations for a
labor agreement to succeed an expired one.’’5 The
Board has recognized two limited exceptions to this
general rule: (1) when a union responds to an employ-
er’s earnest bargaining efforts by insisting on contin-
ually avoiding or delaying bargaining and (2) when
economic exigencies compel prompt action.6 Contrary
to the Respondent, neither of these circumstances is
applicable here.
The Respondent contends that the Union effectively
waived bargaining during December 1991 by breach-
ing the parties’ alleged prior agreement to engage in
‘‘marathon bargaining’’ after the FAA made its con-
tract award on December 6. We note, however, that
after the Respondent received the FAA award the par-
ties met for bargaining on December 16 and 20, 1991,
and the Union proposed a bargaining session for Janu-
ary 6, 1992. Although the Respondent asserts that tim-
ing was critical here because its FAA contract was ef-
fective January 1, 1992, and the Respondent needed to
implement terms and conditions of employment as of
that date that were consistent with the FAA contract
provisions, we do not find that the FAA contract man-
dated such action on the Respondent’s part. We stress
the court’s implicit finding that the Respondent could
have legitimately paid wages and benefits in excess of
those for which the FAA would reimburse it. In fact,
the record evidence shows that the Respondent had ac-
cess to additional funds in its FAA contract—its prof-
its—that would have enabled it, if willing, to meet
these economic proposals. Thus, we find nothing in the
Respondent’s contract with the FAA that prevented it
from bargaining with the Union beyond its January 1
effective date or removed the Respondent from the
coverage of labor laws generally applicable to employ-
ers. In these circumstances, we reject the Respondent’s
claim that the Union’s alleged unwillingness to meet in
‘‘marathon bargaining’’ sessions over the Christmas
holiday season constituted undue delay that justified its
unilateral implementation on January 1.7
We further conclude that there were no ‘‘economic
exigencies’’ in this case that forced the Respondent’s
unilateral implementation because, consistent with the
court’s decision, we find that the FAA contract al-
lowed the Respondent to pay the unit employees
wages in excess of the rates provided for in that con-
tract if the Respondent was willing to bear the addi-
tional costs. Thus, the Respondent could have contin-
ued to bargain with the Union beyond the January 1
cutoff date that the Respondent unilaterally imposed on
the bargaining process. In sum, it is clear that in this
case the Respondent simply decided on its own to im-
plement the terms of the FAA contract without fulfill-
ing its bargaining obligation to the Union.8 Accord-
ingly, we find that the Respondent’s unilateral changes
in the employees’ terms and conditions of employment
violated Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement. We shall also order
the Respondent, on request of the Union, to restore
retroactively the rates of pay and other terms and con-
ditions of employment that existed in the bargaining
unit before the Respondent’s unilateral changes, and to
make the unit employees whole by remitting wages
and benefits that would have been paid in the absence
95FKW, INC.
9 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of delinquency, the Re-
spondent will reimburse the employees, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
of the changes from January 1, 1992, until the Re-
spondent negotiates in good faith with the Union to
agreement or to a bargaining impasse. The payment of
back wages shall be computed in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). The Respondent also shall remit
any payments it owes to employee benefit funds and
reimburse its employees for any expenses resulting
from the failure to make these payments in the manner
set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981).9 Any amounts that the Respondent must pay
into the benefit funds shall be determined in the man-
ner set forth in Merryweather Optical Co., 240 NLRB
1213 (1979).
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time master elec-
tricians, industrial electricians and electrician helpers
employed by the Respondent at the Mike Moroney
Aeronautical Center, Oklahoma City, Oklahoma, but
excluding all other employees including Q.A. special-
ists, master industrial HVAC, journeymen HVAC,
helper HVAC, boiler mechanics/pipefitters, mill
wrights and helpers, journeymen carpenters, master
plumbers and helpers, painters and helpers, elevator
mechanics and helpers, fire suppression technicians,
pest control technicians, laborers, maintenance trade
helpers, water treatment specialists, electronics techni-
cians, CCMS team leader, CCMS operators, CCMS
surveillance employees, warehouse team leader, com-
puter programmer/analyst, computer hardware techni-
cian, O&M electromechanical technicians, equipment
mechanics, preventive maintenance employees, tele-
communications manager, office clerical employees,
guards, and supervisors, as defined in the Act con-
stitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material here, the Union has been
and is the exclusive collective-bargaining representa-
tive of the employees in the unit described above.
5. By unilaterally implementing changes in the unit
employees’ wages and other terms and conditions of
employment in the absence of a bargaining impasse,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
ORDER
The National Labor Relations Board orders that the
Respondent, FKW, Incorporated, Oklahoma City,
Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
International Brotherhood of Electrical Workers, AFL–
CIO, Local Union 1141 as the exclusive bargaining
representative of the employees in the following appro-
priate unit by unilaterally implementing changes in
wages and other terms and conditions of employment
in the absence of a bargaining impasse:
All full-time and regular part-time master elec-
tricians, industrial electricians and electrician
helpers employed by the Respondent at the Mike
Moroney Aeronautical Center, Oklahoma City,
Oklahoma, but excluding all other employees in-
cluding Q.A. specialists, master industrial HVAC,
journeymen HVAC, helper HVAC, boiler
mechanics/pipefitters, mill wrights and helpers,
journeymen carpenters, master plumbers and help-
ers, painters and helpers, elevator mechanics and
helpers, fire suppression technicians, pest control
technicians, laborers, maintenance trade helpers,
water treatment specialists, electronics technicians,
CCMS team leader, CCMS operators, CCMS sur-
veillance employees, warehouse team leader, com-
puter programmer/analyst, computer hardware
technician, O&M electromechanical technicians,
equipment mechanics, preventative maintenance
employees, telecommunications manager, office
clerical employees, guards and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the Union
as the exclusive representative of all employees in the
appropriate unit described above on terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) On request of the Union, restore retroactively the
rates of pay and other terms and conditions of employ-
ment that existed in the bargaining unit before its uni-
lateral changes and make the unit employees whole by
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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.’’
1 See RBE Electronics of S.D., 320 NLRB 80, 81 (1995). In that
case, the Board reaffirmed that there are two exceptions to the gen-
eral rule which precludes unilateral action in the absence of an over-
all impasse. The first exception concerns dilatory tactics by the
union. The second exception concerns economic exigencies. The
opinion then goes on to further explicate the second exception. The
instant case turns on the first exception, and it is unnecessary to
reach the second exception.
remitting all wages and benefits that would have been
paid in the absence of the changes, plus interest, from
January 1, 1992, until it negotiates in good faith with
the Union to agreement or to a bargaining impasse.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Oklahoma City, Oklahoma,
copies of the notice marked ‘‘Appendix.’’10 Copies of
the notice, on forms provided by the Regional Director
for Region 17, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall by taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER COHEN, dissenting.
I believe that the Respondent’s actions were privi-
leged in light of the Union’s refusal to engage in the
intensive bargaining that was required in the cir-
cumstances.
In brief, the relevant facts are as follows: On Sep-
tember 10, the parties agreed to suspend bargaining
until it could be determined whether the Respondent
would be awarded a contract with FAA. The parties
agreed that if and when the FAA contract was awarded
they would commence ‘‘marathon bargaining.’’
On December 6, the Respondent learned that it had
been awarded the FAA contract effective January 1. It
then sought to engage in the previously agreed-upon
‘‘marathon bargaining.’’ The Respondent’s reasons for
doing so were obvious. The FAA contract provided for
a labor-cost reimbursement that was lower than the Re-
spondent’s then-current terms and conditions of em-
ployment. The Respondent wanted an agreement that
would comport with the labor-cost reimbursement from
FAA. If it could not obtain that reduction, it would
have to pay the difference from its own pocket.
The parties met on December 16 and 20. However,
no agreement was reached. The Respondent then
sought meetings on December 21, 23, and 24. The
Union refused to meet until January 6, i.e., after the
Respondent started performance of the FAA contract.
In sum, the Respondent had a legitimate and sub-
stantial reason for seeking intensive bargaining in De-
cember. The Union, in breach of its promise, refused
to engage in such bargaining. The Union’s sole reason
for refusing to do so was that its negotiator wanted to
be on vacation during the Christmas season. Although
I can well understand these personal considerations, I
must also consider the Respondent’s legitimate interest
in trying to resolve employment terms prior to January
1. I must also take into account the Union’s refusal to
live up to its agreement to engage in marathon bar-
gaining. In these circumstances, I would find that the
Respondent, having tried to use the collective-bargain-
ing process, was free to act on January 1.1
My colleagues suggest that the Respondent ‘‘argu-
ably waived’’ the contention which forms the essential
basis for my dissent. Interestingly, the General Counsel
and the Charging Party do not make a ‘‘waiver’’ argu-
ment. And, indeed, my colleagues cannot quite bring
themselves to say that there was in fact such a waiver.
There is a good reason for this. The position has no
merit. That position focuses on the Respondent’s fail-
ure to except to the judge’s decision. However, the
judge found for the Respondent on other grounds and
did not reach the contention involved here. He there-
fore found that the issue raised by that contention was
moot. From the Respondent’s standpoint, the judge
was clearly correct in both respects. Thus, exceptions
were neither necessary nor warranted.
My colleagues also suggest that the contention in-
volved herein is not properly before the Board. Again,
neither the General Counsel nor the Charging Party
makes the suggestion offered by my colleagues. In-
deed, even though the Respondent explicitly made the
contention in its postremand brief to the Board, neither
the General Counsel nor the Charging Party argued in
response that the contention is not properly before the
Board. In sum, although my colleagues say that there
is a ‘‘significant question’’ as to whether this conten-
tion is appropriately before the Board, the fact is that
only my colleagues, and not the parties, have raised
this question. In any event, the answer to the question
is that the Board may properly address the issue. The
contention has been made in this case from the outset,
and it has never been abandoned. To the contrary, the
Respondent has now renewed that contention. For the
reasons set forth here, I conclude that the contention
is correct.
97FKW, INC.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain collectively
with International Brotherhood of Electrical Workers,
AFL–CIO, Local Union 1141 as the exclusive bargain-
ing representative of the employees in the following
appropriate unit by unilaterally implementing changes
in wages and other terms and conditions of employ-
ment in the absence of a bargaining impasse:
All full-time and regular part-time master elec-
tricians, industrial electricians and electrician
helpers employed by us at our Mike Moroney
Aeronautical Center, Oklahoma City, Oklahoma,
but excluding all other employees including Q.A.
specialists, master industrial HVAC, journeymen
HVAC, helper HVAC, boiler mechanics/- pipe-
fitters, mill wrights and helpers, journey- men car-
penters, master plumbers and helpers, painters and
helpers, elevator mechanics and helpers, fire sup-
pression technicians, pest control technicians, la-
borers, maintenance trade helpers, water treatment
specialists, electronics technicians, CCMS team
leader, CCMS operators, CCMS surveillance em-
ployees, warehouse team leader, computer
programmer/analyst, computer hardware techni-
cian, O&M electromechanical technicians, equip-
ment mechanics, preventative maintenance em-
ployees, telecommunications manager, office cler-
ical employees, guards and supervisors as defined
in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with the
Union as the exclusive representative of all employees
in the appropriate unit described above on terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
WE WILL, on request of the Union, restore retro-
actively the rates of pay and other terms and condi-
tions of employment that existed in the bargaining unit
before our unilateral changes and make the unit em-
ployees whole by remitting all wages and benefits that
would have been paid in the absence of the changes,
plus interest, from January 1, 1992, until we negotiate
in good faith with the Union to agreement or to a bar-
gaining impasse.
FKW, INCORPORATED