Sgs Control Services, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 984 (N.L.R.B. 1985)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SGS Control Services , Inc. and International Long-
shoremen's Association, AFL-CIO, Local 1655;
Case 15-CA-9176
28 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 15 February 1985 Administrative Law Judge
Irwin Kaplan issued the attached decision. The Re-
spondent and the General Counsel filed exceptions
and supporting briefs.
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 and to adopt the recommended Order
as modified.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, SGS Control Services, Inc., St. Rose,
Louisiana, its officers, agents, -successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraphs 2(b) and (c)
and reletter the subsequent paragraphs and foot-
note.
"(b) Make all employees whole for any losses
they may have suffered as a result of the Respond-
ent's unlawful unilateral changes in the terms and
conditions of employment as of 10 October 1983.12
12 Backpay shall be made in a manner consistent with Board
policy as stated in Ogle Protection Service, 183 NLRB 682 (1970),
enfd 44 F 2d 502 (6th Cir 1971), with interest as prescribed in
Florida Steel Corp, 231 NLRB 651 (1977) See Isis Plumbing Co,
138 NLRB 716 (1962), enfd on other grounds 322 F 2d 913 (9th
Cir 1963).
"(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
administrative law judge.
1 The judge's recommended Order shall be modified to include a
"make-whole" provision for those employees who may have suffered
losses as a result of Respondent's unilateral changes on 10 October 1983.
In addition, if the parties have executed a collective-bargamng agree-
ment at the time that this decision issues, the affirmative bargaining lan-
guage in the Order will not require further negotiation of terms and con-
ditions of employment covered by the agreement
- 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 ordered us to post and abide by-this notice.
WE WILL NOT unilaterally implement changes in
the terms and conditions of employment for em-
ployees in the bargaining unit described below
without first engaging in collective bargaining with
the International Longshoremen 's Association,
AFL-CIO, Local 1655, although this does not
mean we are now required to lower any minimum
salary schedules presently established for these em-
ployees . The unit is: -
All employees employed by us at our facilities,
including senior inspectors , inspectors, veg-
oil/tally employees and probers ; excluding
office and clerical workers and all supervisors
as defined in the Act.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL, on request , bargain collectively with
International Longshoremen 's Association, AFL-
CIO, Local 1655, as the exclusive representative of
all employees : in the appropriate unit described
above, with ' regard to rates of pay, hours of em-
ployment„ and other terms and conditions of em-
ployment and , if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL make whole all bargaining unit em-
ployees for any losses they may have suffered as a
result of our unlawful unilateral changes in the
terms and conditions of employment , with interest.
SGS CONTROL SERVICES, INC.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case
was heard in New. Orleans, Louisiana, on February 15
and 16, 1984. The underlying charges giving rise to this
proceeding were filed by International- Longshoremen's
Association, AFL-CIO, Local 1655 (the Union) on No-
vember 16, 1983, and amended December 2, 1983. A
complaint and notice of heating issued on January 15,
1984, alleging that SGS Control Services, Inc. (Respond-
ent or SGS) engaged in certain acts and conduct in vio-
275 NLRB No. 137
SGS CONTROL SERVICES 985
lation of Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act).
In essence, it is alleged that since about October 10,
1983, Respondent has made certain unilateral changes
with regard to terms and conditions of employment
without affording the Union prior notice thereof; and
before arriving at any lawful impasse . In the alternative,
it is alleged that if impasse was reached , since about Oc-
tober 10, 1983 , Respondent bargained to the impasse
over the reduction of the geographical area in which Re-
spondent has recognized the Union ; a nonmandatory sub-
ject , and consequently its unilateral changes thereafter
were in violation of Section 8(a)(5) and (1) of the Act.
Respondent filed an answer conceding , inter alia, juris-
dictional facts but denying all allegations that it commit-
ted any unfair labor practices . Respondent contends that
it bargained in good faith with the Union on some 19 oc-
casions and reached a lawful impasse and provided ap-
propriate notice before initiating any changes in wages,
hours , and other terms and conditions of employment.
On the entire record , including my observation of the
demeanor of the witnesses, and after careful - consider-
ation of the - General Counsel 's closing argument and the
Respondent's posttrial brief, I make the following
- FINDINGS OF FACT
1. JURISDICTION
Respondent SGS Control Services, Inc. is a New York
corporation with an office and place of business located
in St . Rose, Louisiana, where it is engaged in the busi-
ness of supervising, inspecting, weighing , sampling, and
probing agricultural commodities and inspecting drums,
land and ship tanks, and barges. During the past 12
months, which period is representative of all times mate-
rial herein, Respondent, in the course and conduct of its
business operations , performed services in excess of
$50,000 directly for customers located outside the State
of Louisiana. During the same representative period, Re-
spondent purchased and received materials in excess of
$50,000 from outside the State of Louisiana, and derived
gross revenues in excess of $1 million for services per-
formed. Respondent admits, and I find, that it is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent , admits, and I fmd, that International
Longshoremen's Association, AFL-CIO, Local 1655 is,
and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Exh. 2.) The negotiations for a new contract gave rise to
the -underlying dispute, to wit, whether the parties
reached a lawful impasse prior to about October 10, at
which time Respondent implemented the terms and con-
ditions of its last contract proposal.
The negotiations for a new contract commenced in
July 1983. The parties met on some 18 occasions over
approximately a 2-month period before the then out-
standing contract terminated on September 30. The
Union was represented at the bargaining sessions by Ray-
mond Dennies, the ILA president , Victor Hess, the at-
torney for the Union, Richard Vanderbrook, the union
shop steward, and occassionally other employees. ' At
most sessions, Respondent was represented by John
Rowan, attorney for SGS, Henry Osorno, manager of
the eastern region, and Patrick Weston, executive vice
president of SGS.2
During the latter part of June , the Union submitted its
first proposal (G.C. Exh. 3, letter dated June 22 with at-
tachment); Respondent's counterproposal was submitted
during one of the early bargaining sessions. ((IC. Exh.
4.) The Union's first proposal contained a number of
changes from the then expiring contract including, a $1-
per-hour wage increase for each year over the next 3
years, increases in meal money for out-of-town jobs and
automobile traviling expenses, and still other changes in
seniority, pension, and welfare provisions. Respondent's
counterproposal, which did not contain any wage offer,
would have , inter alia, reduced the Union 's jurisdiction
as exclusive bargaining representative by some 20 miles
from Baton Rouge down the Mississippi River within the
port area of New Orleans and•vicinity.3 Other significant
changes in Respondent's proposal related to overtime
and seniority provisions. '
While it appears that the parties spent most of'their
time over the next 2 months explaining their respective
positions , agreement was reached on some items and the
parties continued to make progress . For example, in
August, the Union came around to Respondent's position
on seniority to the extent that the Company not be re-
quired to strictly follow employee date of hire for pur-
poses of , layoffs and recall. Additionally, the Union's
wage increase proposal was reduced in August to $.50,
$.50 and $1, per hour respectively, over the next 3 years.
The Union submitted its second proposal in mid-Sep-
tember (G.C. Exh. 5). The parties conducted four bar-
gaining sessions over the next 2 weeks. The Respondent's
first wage offer was made at the meeting on September
29, 1 day before the then outstanding contract terminat-
ed. This initial offer was for 20 cents, 20 cents and 20
cents for each of the next 3 years,-which, after some dis-
cussion at that session , was increased to 30 cents per
A. Background and Sequence of Events
Respondent and . the Union have been parties to a
series of successive collective-bargaining agreements for
over 25 years . The last agreement covering employees in
the bargaining unit , by its terms , was effective from•Oc-
tober 1, 1980, to midnight , September 30, 1983 .1 (G.C.
' All dates hereinafter refer to 1983 unless otherwise indicated.
2 Richard Vonderbrook and Henry Osorno were the only witnesses to
testify at trial for the respective parties.
.
-
8 As noted previously, the General Counsel's principal contention is
that Respondent violated Sec 8(aX5) of the Act by making unilateral
changes before impasse was reached . Alteinatively , the General Counsel
argues that, if impasse was reached, it was over Respondent 's efforts to
limit the Union's jurisdiction , a nonmandatory subject for bargaining. As
such, the General Counsel contends that the Respondent could not law-
fully insist on the Union's acceptance of this provision to point of im-
passe.
986- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour, per year respectively. Further, in late September,
Respondent modified its stance with regard to overtime
pay. Initially, Respondent offered overtime pay only
after 40 hours but, in late September, modified this posi-
tion to allow overtime pay to an,employee who works
more than, 12 hours after he reports to work. The parties
also appeared to be in agreement on September '29 with
regard to the seniority provisions. As stated by.Osorno,
"I got the impression -.. . that we agreed in principle
[on-seniority] . '. . and that all that would be required
would' be Mr. Rowan [Respondent's attorney] and Mr.
Hess [the Union's attorney] getting together and ham-
mering out the language." Vanderbrook's assessment re-
garding the position of the parties on September 29, rela-
tive to seniority, as well as other provisions, was essen-
tially the same as provided by Osorno. The meeting con-
cluded with Respondent's representative stating that the
Union would be given the final offer the following morn-
ing,.September 30, and that instead of a'3-year term, as
under previous contracts, this contract would be -for a
term of 2-1/2 years. -
Vanderbrook received Respondent's final offer (G.C.
Exh.'6) at approximately 9 a.m. on September 30, which
he took to Attorney. Hess' office, where.the latter and
other union negotiators were waiting . Vanderbrook testi-
fied that Hess expressed some disappointment, primarily,
because the seniority provision was inadequate from the
Union's point of view. Further, Vanderbrook testified
that after the meeting, in the presence of Local Union
President Dennies, he called Rowan, Respondent's attor-
ney, and handed the phone to Dennies . According to
Vanderbrook,• Dennies -told-.him that Rowan gave assur-
ances that Rowan and the Union -Attorney, Hess should
be able to get together on seniority language as had been
discussed previously during negotiations.4 '
Vanderbrook and Dennies met with the union mem-
bership at a ratification meeting between 7 and 7:30 p.m
on September 30 and presented the Respondent's' final
proposal. On that occasion, .Vanderbrook read the Re-
spondent's final offer to the membership in its entirety
and fielded -questions from the floor. According to Van-
derbrook, while the membership was not pleased with
Respondent's offer, after some discussion , they voted to
accept the proposal provided that it contained certain
protections relative to seniority -and that the contract was
limited to a 1-year term. After the meeting , Vander-
brook, phoned Osorno and advised him that Respond-
ent's proposal had been accepted by.the union member-
ship subject to the provisos noted above. Vanderbrook
dictated the seniority language (G.C. Exh..7), which was
assertedly prepared, by, Union Attorney, - Hess. -Osorno
transcribed the. seniority language verbatim and stated
that he needed time to review it and to discuss the
matter, further with the. Respondent's ,executive vice
president Weston, who was in flight from New Orleans
to New Jersey and was expected to land around 11'p.m.
Vanderbrook stated that he would call back later that
evening. According to Osorno, the parties were at that
4 As noted previously, Osorno and Vanderbrook were the only wit-
nesses to testify for their respective sides at the trial -
time closer to reaching an agreement than at any point
since the commencement of negotiations. ,
When Vanderbrook and Osorno-spoke next, the latter
had not yet reached Weston. Vanderbrook told Osorno
that he had discussed the seniority provision further with
Dennies, and they were of the opinion that the parties
could resolve any differences on this subject. Osorno
spoke with Weston at approximately 11 o'clock that
night. They reviewed the Union's position and rejected
it. As testified by Osorno: "[I]n particular, the duration
of the contract was not acceptable, to us, one year. And
their [the Union's] position on the seniority was absolute-
ly not acceptable."
- Still on September 30, around 11:15 p.m., Osorno
phoned Vanderbrook to tell him that the Union's posi-
tion "was absolutely not acceptable." He then asked
Vanderbrook whether "our [Respondent's] final offer
had been accepted or rejected." According to Osorno,
and denied by Vanderbrook, the latter stated, "I [Van-
derbrook] would have to say at this time, it's rejected."
According to Vanderbrook's account,- he told Osorno
that the Respondent's offer is acceptable to the Union
but only for a "one-year period-and the-Article VIII,
entitled Seniority, some reasonable facsimile to that is in
the contract."5 Osorno asked Vanderbrook to "get the
men to turn in,their equipment."
According to Vanderbrook, -pursuant to Attorney
Hess' instructions, he and the other, employees were to
continue to call in and report to work, if work was avail-
able. On Monday; October 3, Vanderbrook called the
Company and spoke with Robert- Boecking, Respond-
ent's manager, and told him that he was available to
work. Vanderbrook testified that Boecking responded
that he had been told that I was on strike and that he did
not have -any work ,for me.6 Respondent did not assign.
any work.to unit employees the period between October
1 and 10; what-little work the Company had at that time
was contracted out and/or performed by supervisory
personnel. ' .
- s Factually, the accounts- provided by Osorno and Vanderbrook regard-
ing the negotiations and events up to and including September 30 are
substantially the same As noted above, they are in dispute as to whether
Vanderbrook told Ororno at any time on September 30 that Respondent's
final offer had been "rejected " I credit Vanderbrook's version noting,
inter alia, that it is plausible and more internally consistent with the
record For example , - Vanderbrook memorialized the highlights of these
phone conversations soon after they occurred'and the , document tends to
support his version (G C Exh 8) It is undisputed that Vanderbrook told
Osorno in their first conversation that evening that Respondent 's final
proposal had been "accepted" subject to working out the seniority provi-
sion and a contract term of 1 year Osoino testified that Vanderbrook indi-
cated to him, ! 'that the contract had been ratified with some provisos "
Given the fact that the membership approved the Respondent 's final pro-
posal with the aforenoted limitations , I find it unlikely that Vanderbrook
would take the position that the offer was completely unacceptable or re-
jected when , in fact , they were only in disagreement over two provi-
sions As for Osorno, I found him, inter alia, less than forthright and un-
impressive as a witness In particular , Osorno exhibited , poor recall in ma-
tenal areas, as evidenced by a number of corrections in his testimony,
after he had examined his notes In view of the foreging , and the entire
record , including demeanor factors, I credit Vanderbrook over Osorno, in
all critical areas, where their testimony is in conflict.
c There is not any contention that the Union was engaged in a strike
.or that Respondent was engaged in a lockout
SGS CONTROL SERVICES
On Friday morning, October 7, Osorno phoned Van-
derbrook and invited him back to work on October 10,
but only under the terms and conditions of the Respond-
ent's final offer of September 30. Osorno also told Van-
derbrook that Osorno would call three other senior em-
ployees (G. Johnson , J. Besnard , and W . Smith) and
make the same offer . Vanderbrook and the other em-
ployees accepted Osorno's offer and have worked regu-
larly since about October 10.
On October 14 the parties met again as a result of the
Union 's request to continue negotiations. There were
two meetings in November and two more in December.
Respondent submitted another contract proposal in late
December ; the Union submitted a counterproposal about
January 11 , 1984. At the time of the trial , the parties had
not yet arrived at a contract. •
B. Discussion and Conclusions
The General Counsel's main contention is that no im-
passe existed as of October 10, and that , therefore, the
Respondent , by unilaterally implementing its final offer,
circumvented its duty to bargain in violation of Section
8(a)(5) of the Act. In the alternative , the General Coun-
sel contends that if impasse was reached pnor to October
10, that point was arrived at unlawfully , by the Respond-
ent's insistence on reducing the geographical area in
which the Respondent has to recognize the Union, a
nonmandatory subject for bargaining.
On the other hand , Respondent contends that it was
free, on October 10, to implement the terms and condi-
tions of its final-offer because, pnor thereto, it had bar-
gained in good faith to impasse . Respondent argues, inter
alia, that its contention was confirmed by the inability of
the parties to reach agreement after some five bargaining
sessions which were held subsequent to October 10, the
date on which the unilateral changes were admittedly
made.
The principal facts are largely undisputed . Given the
aforenoted contrasting contentions , the major focus of
this case must turn on whether a lawful impasse existed
before the changes were implemented on October 10. As
recently reaffirmed by the Board, "For if impasse had
been reached , Respondent was free to implement its pre-
impasse proposal ." See E. I. du Pont & Co., 268 NLRB
1075 (1984), citing Taft Broadcasting Co., 163 NLRB 475,
478 (1967), petition for review denied 395 F.2d 622 (D.C.
Cir. 1968). Stated conversely, unilateral changes in .terms
and conditions of employment which are undertaken
during the course of negotiations , in the absence of a
lawful impasse , is a contravention of the duty to bargain
under the Act. See generally NLRB v. Katz, 369 U.S.
736 (1962); Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1186
(5th Cir. 1982); Supak & Son's Mfg. Corp.; 192 NLRB
1228 (1971), enfd. 470 F.2d 198 (4th Cir. 1978). ,
In ascertaining whether a lawful impasse existed prior
to unilateral changes; the Board - 'has consistently fol-
lowed the guidelines set forth in Taft Broadcasting, supra
at 478.7 There, the Board stated as follows:
7 See Old Man's Home of Philadelphia, 265 NLRB 1632, 1634 (1982),
enf denied 719 F 2d 683 (3d Cir 1983) (Taft Broadcasting factors dis-
987
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is disagreement , the contemporaneous
understanding of the parties , as to the state of the
negotiations are all relevant factors to be considered
whether an impasse in bargaining existed.
In applying the aforenoted •factors to the case at hand,
it is noted , inter alia , that the Respondent 's "good faith"
prior to its final offer of September 30 is not controvert-
ed by the record or challenged by the General Counsel.
Further, while the record disclosed that the Union had
accepted the Respondent 's final proposal, subject to cer-
tain employee protections relative to seniority, and a
contract term of the year , these matters were clearly of
some consequence to the parties.
On the other hand , the record disclosed substantial
movement by the parties toward reaching an agreement
over the last four meetings in September , and particular-
ly, on the part of the Union, in response to the Respond-
ent's final offer of September 30. In this latter regard, ad-
mittedly (Osorno's testimony , Tr 57-62), the Union made
"major concessions" and accepted the Respondent's pro-
posal on such items as wages, overtime , recognition
clause (limiting the Union's jurisdiction from Baton
Rouge to Mile Post 180), and holiday pay.
As noted above, Respondent , prior to its final offer,
also took steps toward reaching an agreement . For exam-
ple, Respondent made its first wage offer at the Septem-
ber 18 and last bargaining session , 1 day before it submit-
ted its final proposal . At that same bargaining session
(September 29), Respondent , after discussing its wage
proposal , increased its initial wage offer from 20 cents to
30 cents more per hour , and made concessions relative to
overtime . While Respondent announced on that occasion
that it would have its final proposal the next day, at that
same time it also'proposed a 2-1/2-year contract term
rather than 3 years' as in the then expiring contract.
However, there was no showing that time was of essence
or reason for the Union to believe at that time that the
parties had exhausted prospects of concluding an agree-
ment . Indeed , Osorno noted the "major concessions"
made by the Union on September 30, and acknowledged
that the parties were closer to an agreement than at any
time since the commencement of -negotiations.
In the circumstances of this case, I find that at no time
material herein was Respondent `justified in assuming that
further bargaining would have been futile, a standard the
Board has cited in conjunction with the Taft Broadcast-
ing factors noted previously, in assessing whether the
parties had reached 'the point of impasse over their dif-
fereiices : 'See Alsey Refractories Co., 215 NLRB 785 fn. 1
(1974), `Patrick '& Co., .248 NLRB 390, 393 (1980); E. L
du Pont & Co ., supra; see also United States Cold Storage
Corp., 95'NLRB 1108-1109 (1951).
As' for the disagreement over "seniority," a subject
found herein to have been accorded some prominence,
cussed with approval), Inta-Rota, Inc, 252 NLRB 764 (1980), E I A
Pont & Co, supra .
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties themselves believed that they had an agree-
ment at least in principle, subject only to the attorneys
getting together and drafting acceptable language. The
Union was still of the view that their differences could
be resolved even after Respondent had submitted its final
offer. Thus, Osorno testified that Vanderbrook had "indi-
cated" to him on September 30 that their differences on
this subject "could be worked out."8 The Respondent,
only for reasons known to it, abruptly terminated further
exploration of this subject and directed the employees
through Vanderbrook to return their equipment; there
would be no more work for unit employees, unless they
agreed to return under the terms and conditions of Re-
spondent's final offer.
As noted above, the parties were also in disagreement
over the contract term, although the importance ascribed
to it is less clear. For example, Respondent waited until
the last bargaining session (I day before its final offer) to
make a proposal to limit the contract term to 2-1/2
years. The Union countered with a 1-year term but at
the same time made "major concessions" on other cru-
cial items. Given the degree of movement by both par-
ties immediately prior to Respondent's final offer, and
the clear' indications of union flexibility (major conces-
sions), "the employer might reasonably be expected to
recognize that negotiating sessions might produce other
or more extended concessions. This is the purpose of col-
lective bargaining."9 NLRB v. Webb Furniture Corp., 366
F.2d 314, 316 (4th Cir. 1966), enfg. 152 NLRB 1526
(1965). In this connection , it is noted, inter alia, that the
Union did not, at any time, indicate categorically that it
rejected the Respondent's position on the_ issues in dis-
pute. See Patrick & Co., supra at 393. Cf. E. I. du -Pont &
CO., supra. (The Union stated it would never accede to
the Company's position.) -
As for Respondent's reliance on the failure by the-par-
ties to reach an agreement after the disputed changes
were made, I find, inter alibi , that such evidence, is large-
ly tainted as self-serving and after the fact. For example,
it is noted, inter alia, that the negotiating sessions in De-
cember and Respondent's new contract proposal that
month came after the original unfair labor practice
charges had been filed. (G.C. Exh. 1(a).) Moreover, after
the changes were implemented, the parties were no
longer dealing at arm's length. The Union's position was
severely undermined, given the fact that Respondent
only permitted unit employees to return to' work under
the terms and conditions of its final offer. One of them,
Vanderbrook, is also a principal member of the Union's
negotiating team. In such circumstances, Vanderbrook's
pecuniary or other interest may well conflict with union
8 The record contains no explanation as to why the attorneys did not
get together to draft the seniority provision According to Vanderbrook,
after he had received the final order, he called Rowan, Respondent's at-
torney, and handed the phone to Local Union President Dennies The
latter assertedly told Vanderbrook that Rowan 'assured Dennies that
Rowan would get together with Union Attorney Hess and they could
draft the seniority language as they had discussed during negotiations
Neither Dennies nor Attorney Rowan testified
9 Compare Times Herald Printing Co, 221 NLRB 225, 229 (1975) (im-
passe after 9 months and fruitless negotiations spread over 25 bargaining
sessions), Taft Broadcasting Co, supra (after 20 sessions, imperceptible
movement and parties were even further apart on crucial issues) -
objectives 'and the interest of the bargaining • unit as a
whole. In fact, Vanderbrook told Osorno that he would
be "happy" to-come back "under any terms."
In the total circumstances of'this case, noting particu-
larly that both parties made , significant concessions
toward reaching an agreement 'in late September; that
Respondent's first wage offer and contract term proposal
did not come until 1 day before it submitted its final con-
tract proposal on September. 30; that .admittedly,,_ the
Union made "major concessions" in accepting that final
proposal subject only to an agreement on seniority and
contract term; that the Union was willing to -negotiate
further and had not categorically rejected any of Re-
spondent's proposals, and in absence of evidence tending
to show that time was crucial, I am persuaded and find
that Respondent was not justified in treating the state of
bargaining at the point of genuine impasse at the time of
its unilateral actions. Accordingly, I find that Respond-
ent acted precipitously by implementing the disputed
changes on October 10, in violation of Section 8(a)(5) of
the Act, as alleged. i o
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.'-
2.'The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of-the Act:
All employees employed by the Respondent at its
facilities, including senior inspectors, inspectors,
•veg-oil/tally employees and..probers, but excluding
office and clerical workers and all supervisors as de-
fined in the Act.
4. At all times material herein, 'the Union has been the
exclusive representative of all employees within the
aforesaid appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union as the exclu-
sive representative of all 'employees in the appropriate
unit by unilaterally implementing changes in the terms
and conditions of employment' on October 10, 1983, at
10 I reject, however, as not support ed by the record, the General
Counsel's subsidiary contention that, assuming arguendo, the parties were
at impasse, that point was reached because of Respondent's "insistence"
on reducing the Union's jurisdiction, a nonmandatory subject for bargain-
ing under the Act While a party may not avoid its bargaining responsi-
bilities under the Act, by insisting on nonmandatory proposals, it has a
right to propose nonmandatory subjects See NLRB v Borg-Warner Co,
356 U S 342, 349 (1958), Latrobe Steel Co, 630 F 2d 171, 180 fn 8 (1980)
Further, I also reject the General Counsel's contention that notice of the
changes to Vanderbrook was provided to him only in an individual capac-
ity and not to the Union The record disclosed that.Vanderbrook was not
only a principal member of the Union's negotiating team but, as "coordi-
nator of the negotiating committee;" he was charged with advising the
unit members on labor-management matters In the circumstances of this
case, I find that notice to Vanderbrook, was tantamount to actual notice
to the Union See, eg, Talbert.Mfg, Inc, 264 NLRB 1051, 1054-55
(1982), Medicenter, Mid-South Hospital, 221 NLRB 670, 678 (1975), Hart-
mann Luggage Co, 173 NLRB 1254, 1255-56 (1968)
SGS CONTROL SERVICES
which time no impasse in bargaining existed, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain and the unilateral
acts, Respondent has been and is interfering with, re-
straining, and coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act, and
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act. -
7.The''aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, I shall recommend that it be
required to cease and desist therefrom and that it take
certain affirmative action designed to effectuate the poli-
cies of the Act, including, on request, to bargain with the
Union as the exclusive bargaining representative of unit
employees.
On these findings of fact and. conclusions of law and
on the entire record, I issue the following recommend-
ed'' -
ORDER
The Respondent, SGS Control Services, Inc., St.
Rose, Louisiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Making unilateral changes in the terms and condi-
tions of employment, in derogation of its bargaining obli-
gation, to its employees represented by the International
11 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
989
Longshoremen's Association, AFL-CIO, Local 1655, in
the appropriate bargaining unit described above; provid-
ed, however, that nothing herein shall require the Re-
spondent to vary such minimum salary schedules as are
already established.
_(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action 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 ap-
propriate unit described above, with regard to rates of
pay, hours of employment, and other terms, and condi-
tions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its St. Rose, Louisiana facility copies of the
attached notice marked "Appendix."12 Copies of the
notice, on forms provided by the Regional Director for
Region 15, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered- by
any other material. -
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that as to the alleged viola-
tions of the Act not found herein above in this decision
the complaint is dismissed.
12 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a'Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "