Atlas Tack Corp.

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlas Tack Corporation and United Automobile, Aero- space, Agricultural Implement Workers of America (UAW), Local 899. Case 1-CA-10248 October 1, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On February 26, 1976, Administrative Law Judge Julius Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions, a supporting brief, and a reply to the, Charging Party's cross-exceptions; the Charging Party filed cross-ex- ceptions and a supporting brief as well as a: brief in support of the Administrative Law Judge's Decision; and the General Counsel filed a brief in support of the Administrative Law Judge's Decision.- Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. The Board has traditionally ordered that employ- ees be made whole for any benefits unilaterally dis- continued by the Employer in violation of Section 8(a)(5) of the Act. Accordingly, our order directs a make-whole remedy for any loss of pay employees may have suffered as a result of the change in the lunchbreak practice and length of workday. Our col- league, in partial dissent, does not agree that such an order provides the most effective remedy for Respon- dent's unlawful conduct. Expressing the view that "it is incumbent upon the Board to continually evaluate and reassess the practical effects of its orders" in achieving the purposes of the Act, he suggests that the result of Respondent's refusal to bargain was to undermine the Union and that first priority should be given to restoring its bargaining strength. In his view the most promising means for accomplishing this would be to make the backpay award "subject to the Union's right to bargain it down and even away" thus providing the Union with "some economic mus- cle" at "the bargaining table." We agree that the Board must be constantly alert to new or additional remedies to effectuate the Act's objectives and applaud our colleague's efforts in this direction. In the present case, however, we cannot agree either with the premise which prompts his search for a different remedy or with-the effective- ness of-his proposed remedy to correct the situation which be^ assumes obtains., _ We do not understand the basis for our colleague's assumption that the Union's successful pursuit of an unfair labor practice remedy against Respondent has had a weakening effect on the Union which calls for some special device to'restore its "muscle." Our- as-sumption is that the Union has been strengthened by the favorable termination of the Board proceeding and we would require empirical data supporting a different conclusion before using that conclusion as ,a basis for depriving employees of the traditional back- pay remedy. Moreover, we believe that an employer experiencing the economic effects of a backpay order for having-previously refused to bargain will come to the bargaining table more willing to engage, in good- faith bargaining. We do not agree that giving the Union backpay as an additional bargaining chip will measurably, strengthen its hand or that it is a suitable substitute or alternative for our customary reim- bursement remedy. -ORDER Pursuant to Section " 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Atlas Tack Corporation, Fairhaven, Massachusetts, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. MEMBER WALTHER, concurring in part and dissenting in part: I agree with my colleagues' substantive- finding that Respondent's unilateral changes in the lunch- break, lengthened workday, and revised rest periods violated Section 8(a)(5) of the Act. I do not agree, however, that the Board's Order provides the most effective remedy for Respondent's unlawful conduct. For several years Respondent and the Union have engaged in successful 'ollective bargaining. In June 1972, during negotiations for a new contract, the par- ties reached an impasse over a pension plan provi- sion. Following the impasse, Respondent implement- ed its proposals and thereafter terminated the pension plan previously in effect. Negotiations did not resume until June 1974. Between June and Octo- ber 22, 1974, the parties met for 15 bargaining ses- sions. Substantial progress was made during these meetings, and by October 22 the parties had agreed upon all issues except temporary transfers, inspec- tors' rates, production standards, and a pension plan. On October 22, following a brief discussion, Respon- 226 NLRB No. 38 ATLAS TACK CORPORATION dent declared its intention to unilaterally implement its proposals. Thereafter, on November 18, Respon- dent unilaterally changed the existing lunchbreak from a 20-minute paid period to a 30-minute unpaid period, extended the workday by half an hour (there- by changing the end of the shift from 3 p.m. to 3:30 p.m.),, and instituted two specified 10-minute rest pe- riods instead ,of the previous, flexible morning and afternoon breaks. The majority found, and I agree, that these unilateral changes violated Section 8(a)(5) of the Act. - The majority's Order adheres to the Board's tradi- tional 8(a)(5) remedy which requires Respondent to: (1) restore the status quo.-ante with respect to the changed terms and'conditions of employment should the employees through their Union so desire, (2) make the employees whole for any loss of pay they may have suffered due to the unilateral changes, and (3) bargain collectively with the Union, upon request, and embody any understanding reached in a signed agreement. Although this traditional remedy has enjoyed long- standing, Board use and judicial approval,' I question whether the make-whole provision represents the most effective .way to remedy- the unfair labor prac- tices found herein. The Board has been given discre- tion in fashioning suitable remedies to effectuate the policies of the Act .2 Given this, I feel it is incumbent upon the Board to continually evaluate and reassess the practical results of its orders in an effort to de- termine whether they adequately effectuate the pur- poses of the Act. Collective bargaining is, the keystone of our na- tional labor policy. As stated in Section 1 of the Act: It is hereby declared to be the policy of the United States to eliminate the causes of 'certain substantial' obstructions to the free flow of com- merce and to 'mitigate and eliminate these ob- structions when they have occurred by encour- aging the practice and procedure of collective bargaining and by protecting the exercise of workers of full freedom of association, self-orga- nization, and designation of representatives of their own choosing, for the purpose of negotiat- ing the terms and conditions of their employ- ment or other mutual aid or protection. The unfair labor practices here strike at the very heart of the collective-bargaining process. As noted, i See East Bay Union of Machinists Local 1304, United Steelworkers of America, AFL-CIO (Fibreboard Paper Products Corp.), 138 NLRB 550 (1962), enfd 379 U S. 203 (1964) 2 Fibreboard Paper Products Corp v N L R.B, ibid at 216, N L R B v King Radio Corporation, Inc., 416 F 2d 569 (C A 10, 1969). 223 the parties have been unable to reach an agreement on pensions since May 1972. For a period of approxi- mately 2 years thereafter negotiations were suspend- ed completely. When -bargaining resumed again on June 10, 1974, gradual progress was made for some 4 months until Respondent completely torpedoed the negotiations by unilaterally instituting the benefits mentioned above. The effect of such conduct is pre- dictable-a longstanding collective-bargaining rela- tionship is destroyed, and the employees' respect for the Union is so totally undermined that when Re- spondent chooses-or is ordered-to return to the bargaining table, the Union does not have the sup- port necessary to bargain effectively. In circumstances such as these, the highest possi- ble priority, must be given to restoring the Union to its pre-unlawful conduct strength. A refusal-to-bar- gain violation, in my judgment, is not properly remedied when a union is forced to return to the bargaining table in -the posture of a toothless tiger. Accordingly, every effort must be made to provide such unions with economic clout and to create an environment in which it is economically advanta- geous for the employer to engage in meaningful col- lective bargaining. - That portion of our traditional 8(a)(5) remedy re- quiring a respondent to bargain upon request and embody any agreement reached in a signed contract establishes the overall legal framework within which bargaining must, occur. Standing alone, however, it does not provide a union with- much bargaining le- verage. Restoring the status quo ante with respect to the changed lunchbreaks, length of workday, and rest periods should the employees through their Union so,desire provides some leverage, but not very much given the fact that the economic cost to Re- spondent is identical under both schedules. In my view, the most promising avenue for revital- izing a union subjected to 8(a)(5) conduct lies in re- quiring the employer to obtain the union's agreement at the bargaining table inrorder to reduce or modify the backpay remedy. My colleagues have concluded that backpay should appropriately be awarded di- rectly to the employees that suffered the loss. On the surface, this appears equitable and therefore is a most attractive remedy. The union, however, receives no economic benefit from a direct award to employ- ees and, indeed, most likely suffers an even greater erosion of support because of it. If, on the other hand, the backpay award was made subject to the union's right to' bargain it down or even away,-then the union would have some economic muscle to car- ry back to the bargaining table. With the union free to bargain away the backpay award in exchange for other concessions by the employer, the employer 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would then have a genuine economic motive for bar- gaining in good faith. This is exactly -what should have and undoubtedly would have occurred had bar- gaining taken place as-the law requires-a trade off to a compromise solution. In assessing this remedy, it must not be forgotten that we are seeking to remedy an 8(a)(5) violation- not an 8(a)(3) violation. The distinction'is basic from a remedial 'standpoint. An 8(a)(3) violation is an indi- vidual violation and the remedy should be designed to make the individual whole for the losses suffered. An 8(a)(5) violation,- on the other hand, is more of a collective violation-that is, it interferes with a- rela- tionship shared ' collectively by many individuals- and the remedy should be tailored to restore the col- lective status quo ante rather than the individual sta- tus'quo 'ante of each affected employee. It is for this reason that, in 8(a)(5) situations I view restoration of the union'-s ability-to engage in meaningful collective bargaining to have a higher priofity'than direct eco- nomic restoration of theoretical employee losses. In this regard, I think it is also important to point out that the Board's traditional make-whole remedy may not be-and in most cases probably is not-an accurate measure of the actual loss suffered by-em- ployees as a result of their employer's unlawful con- duct. Had Respondent here not terminated negotia- tions -through -its unilateral conduct but' rather continued 'to negotiate in good -faith, the employees would most likely have ended up with an economic package, different' from the one reflected in their backpay award. The point is- that by transferring a backpay award ' in- 8(a)(5) cases from employees to their union, the Board- would not-as it'would in 8(a)(3) cases-be depriving the employees of some- thing which is rightfully theirs and in which they have a vested interest. The violation of the law -is, in fact, a refusal to bargain with the union. Given the lapse of more than 4 years since the parties here last had a collective-bargaining agree- ment, I fear that the remedy `ordered by my- col- leagues will fall woefully short of recreating a healthy collective-bargaining relationship. Respondent, will be able to return to the bargaining table -confident of the fact that the Union's strength has been so dissi- pated that it now lacks an ability to back up its de- mand with an effective strike. Were the Union equip- ped with a sizeable backpay ward, however, successful negotiations might not be assured, but at least an environment=would be created within which the Respondent would have an economic motive for bargaining on a wide range of topics-perhaps even pensions. For the foregoing reasons, I cannot subscribe to the remedy ordered by my colleagues. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge. This case was heard at 'Boston, Massachusetts, on October 15 and 16, 1975. Upon the charge filed on November 14 and served on November 15, 1974, the Regional Director for Region I issued the complaint in this proceeding on April 17, 1975, alleging that Atlas Tack Corporation, herein called Re- spondent or Company, violated Section 8(a)(1) and (5) of the Act by its refusal to bargain with United Automobile, Aerospace, Agricultural Implement Workers of America (UAW), Local 899, herein called the Union, and by imple- menting certain unilateral changes in the working condi- tions of its employees. Respondent filed an answer denying the commission of unfair labor practices. Issues Whether the Union and Respondent had reached an im- passe in their negotiations on October 22, 1974. Whether Respondent thereafter illegally announced and implemented certain unilateral changes in the working conditions of its employees. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross! examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were submitted by all par- ties hereto. Upon,the entire record of the case and from my observa- tion of the witnesses and their demeanor , I make the fol- lowing: I FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent, a Massachusetts corporation , has a princi- pal office and plant in Fairhaven , Massachusetts, where it -is engaged in the manufacture , sale, and distribution of shoe and industrial eyelets and related products. Respon- dent annually manufactures, sells, and ships products val- ued in ' excess of $50,000 directly to 'customers in points located outside the Commonwealth of Massachusetts. The complaint alleges, Respondent admits, and I find the Com- pany is an employer engaged in commerce within the meaning of Section -2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For several years the Union has represented Respon- dent's employees at the Fairhaven Plant.' The most recent 1 The bargaming unit as amended at the heanng is as follows: ATLAS TACK CORPORATION collective-bargaining agreement was effective from July 1, 1969, and terminated on May 31, 1972. The parties bar- gained until June 30, 1972, when an impasse was reached principally over the issue of the pension plan which the Company desired to terminate at the conclusion of the contract. There has been no agreement in effect since the expiration of the contract in 1972. The issue of the termina- tion by the Company of the pension plan on December 6, 1972, has been the subject of litigation in the United States district court which had not been determined at the time of the hearing herein. B. Facts The complaint, as amended at the hearing, alleges that Respondent unlawfully made unilateral changes in work- ing conditions in two respects.2 It is alleged that Respon- dent changed the, shift schedules by eliminating a 20-min- ute paid lunchbreak and substituting therefor a 30-minute unpaid lunch with the result that the workday ended there- after at 3 :30 p.m. rather than 3 p.m. In addition it is alleged that a prior system of flexible employee rest periods were eliminated and, in its place, a system of two 10-minute breaks, one in the morning and one in the afternoon, were instituted at fixed times. The facts concerning these changes as related by George Carreiro, the witness for General Counsel, are uncontroverted . Carreiro is chairman and secretary of the Union and also chairman of its bar- gaining committee . Prior to December 1972 production op- erators as well as a few other classifications of employees were receiving a paid 20-minute lunchbreak. These opera- tors were working on machines which ran continuously, and the practice was that they would have lunch while watching their machines at the same time. If they wished, operators left their machines in order to obtain food, cof- fee, or whatever, in which case, their fellow employees watched the machines to make certain that they were run- ning continuously in good order. On the other hand, dur- ing this pre-December 1972 period other employees, such as Carreiro himself, who was a toolmaker and did not op- erate continuous running machines , had unpaid half-hour lunchbreaks. These employees spent the time as they saw fit and could leave the plant. In November 1972, after cessation of negotiations, Car- reiro had a conversation with then Plant Manager Kelly in which he asked Kelly whether everyone in the plant could get a 20-minute paid lunchbreak. In December Kelly re- ported back to him on this matter and stated that the con- sensus was to the effect that everybody wanted this and he would go along with it and give everybody on a plantwide basis a 20-minute paid lunchbreak . This became effective that month for all employees and continued until Novem- ber 18, 1974, when the new system was implemented. The All production and maintenance employees at the employer's Fairha- ven, Massachusetts plant exclusive of tack makers, tack makers' ap- prentices, executives, office clerical employees, foremen and supervi- sors as defined in the Act. 2 Par 9(d) and (e) were withdrawn by the General Counsel and par. 9(c) is an integral part of par. 9(a). 225 practice had been retained despite the publication of work rules by the Company in January 1974 which indicated paid 20-minute lunch periods would be limited to employ- ees in departments which ran continuously without shut- down. The changes instituted by the Company in its announce- ment of November 11, effective November 18, 1974, pro- vided for a shift schedule which would start at 7 a.m. and terminated at 3:30 p.m, with a formal lunch period of 30 minutes' duration. There were to be two lunch periods, one commencing from 11 a.m. to 11:30 a.m. and the second from 11:30 a.m. to 12 noon. According to Richard Barry, the acting operating manager of Respondent, under the new system the half of the employees who remained after the other half had left for lunch were obliged to maintain their own machines and also keep an eye on the machines of those who were out to lunch. They were instructed to shut off machines in which a major problem developed but to effect a repair in the event that the problem was only minor and their own machines were operating properly at the same time. Actually this was no different from the in- formal system that existed when employees were receiving the 20-minute lunchbreak. During the 1974 negotiations before the implementation of the changes, the Company had submitted a proposal which provided for a 30-minute unpaid lunch within a shift schedule of 7 a.m. to 3:30 p.m. Although this has not been listed,by the parties as an issue still open at the end of negotiations on October 22, 1974, it is, nevertheless, clear that there was no final or even tentative agreement on this proposal. Respondent's vice president, Richard Secor, stat- ed that, while there was no clear agreement, the Union's committee had agreed to submit this lunch proposal to its membership. This is denied by the Union. While it seems rather odd that the lunch proposal would be,the only one of so many issues discussed during the negotiations con- cerning which it is alleged the Union agreed to submit to its membership for ratification, it is unnecessary to resolve this conflict. Since there is no evidence that the Union had indeed submitted the lunch proposal to its membership there could not have been ratification and agreement even if Secor's understanding was correct. The Umon filed a grievance concerning the changed lunchbreaks, and the alleged additional, duties resulting therefrom. The grievance was denied by Respondent.' The second allegation of unilateral change relates to the provision in Company's announcement of November 11 for two formal 10-minute rest periods. There would be two separate rest periods for each morning, one from 9 to 9:10 a.m. and a second from 9:10 to 9:20 a.m. In the afternoon the rest periods ran from 1:30 to, 1:40 p.m. and 1:40 to 1:50 p.m. The prior practice had been to permit employees to select their own time for a break so that there was flexibili- ty both as to the time and the duration. Coffeebreaks or rest periods were not discussed during the negotiation in 1974. There is no question that the two changes in working conditions discussed above were instituted unilaterally. It 3 The Union continued to file grievances despite the expiration of the collective-bargaining agreement in 1972. A procedure'for the handling of unresolved grievances was a subject of negotiations in 1974. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is the contention of the Company that contract negotia- tions in 1974 had reached an impasse on October 22 and therefore it implemented its offer of September 30 made to the union negotiating committee. On November 4 it made such an announcement in writing to all hourly employees. On the same date Respondent wrote Harry Dunham, In- ternational representative of the Union, with copies to the union president and Carreiro, that, because contract nego- tiations had reached an impasse, the Company intended to put into effect its offer of September 30 to the union nego- tiating committee. Respondent enclosed a copy of the pro- posed notice to all employees which it eventually posted on November 11. This notice provided for putting into effect on November 18 certain operating rules including the lunchbreaks and rest periods, and also included the new wage schedules and other benefits which were to be effec- tive on November 11. It is therefore necessary to' review the 1974 negotiations in order to determine whether an im- passe had in fact been reached. The 1974 contract negotiations commenced on July 15 and ended on October 22. There were 15 bargaining ses- sions which the parties agree each lasted from 3 to 5 hours. In addition a later meeting was held on December 17 with a Federal mediator which proved fruitless. Respondent contends that the negotiaions resulted on October 22 in an impasse over the pension issue. The path of bargaining is reflected in a chart submitted by Secor which shows that a total of 27 issues were discussed. The parties agree that as of October 22 there remained only four issues concerning which no agreement had been reached. It is not clear how the parties indicated their agreement on any particular is- sue, since the practice of initialing agreed-upon language was discontinued after the first session. However, Secor testified it was the Company's understanding that tentative agreement was reached on the basis of the last discussion of an issue since such issue was no longer discussed at subsequent sessions. This version is not really contested by the Union or the General Counsel as their witness testified that agreement had been reached on a long list of issues and that only four remained on October 22. There was agreement on all economic issues (except pension), includ- ing wages, life insurance, sickness and accident, holidays, health insurance, vacation, severance pay, funeral leave, cost of living, medicare deductibles, and a number of non- economic issues. Still open after October 22 were the ques- tions of temporary transfers, inspector's rates, and produc- tion standards. There remained the pension problem and it is this issue which the Company contends created an im- passe. As previously noted the 1972 negotiations foundered on the pension issue. At that time the Company insisted that it could not afford to continue a pension program and, if required to do so, it would have to go out of business. After the conclusion of negotiations in 1972 the Company dis- continued and terminated the pension'programl on Decem- ber 6, 1972. The Union brought suit in 1973 in the United States district court on this matter and that litigation con- tinues to date. During the 1974 negotiations the company proposal on pensions provided that it had no obligation to provide a pension plan under the agreement and further that it should have no obligation to provide a pension during the term of the agreement by reason of the pending litigation whatever its outcome. As in 1972 the Company contended it could not afford a pension plan. On October 10 the Union submitted a proposal by which it agreed that it would not propose any new pension plan nor will it open negotiations for a new pension plan during the duration of the contract. It would further provide that these commit- ments by the Union would not affect any decision reached by the court in the pension litigation. The following day, October 11, the Company submitted a proposal as follows "the company should have no obligation to provide a pen- sion plan during the term of this agreement." It resubmit- ted this proposal again on October 22 and thereafter on December 17 at the meeting with the Federal mediator. In short, the Union's position was that while it was not seek- ing any new pension agreement for the duration of the contract it nevertheless desired some protective language with respect to the pending litigation. On the other hand the Company was admittedly against any pension plan and would not assent to one no matter what the findings of the court were in that regard. The October 22 meeting was opened by International Representative Dunham of the Union by listing the four open issues and noting that the number- one issue still open was the pension. The Union did not change position from its previous proposal which" set forth the language protec- tive of the outcome of litigation. Secor then replied to Dun- ham by stating that the Company wanted to continue the practice contained in the 1969 contract regarding transfers, that it agreed to increase the inspectors rate to $2.75, and that it would negotiate a production standards clause in the event the Company ever decided to institute production standards. Secor then said that its previous proposal of Oc- tober 11 to the effect that there would be no pension in the contract was its offer on the pension issue. According to Secor, Dunham responded that the Union would break off negotiations and there would be no further meetings unless the Company was willing to put in writing the preservation of the Union's rights in the event of a court ruling in its favor. After a break, the meeting resumed by Secor review- ing the fact that negotiations had been going on since July 15 and there had been substantial agreement on all issues, including wage increases and fringe benefits, but that in view of the union position the Company would have no choice, but to go forward and put into effect the tentative agreements reached on September 30. Secor stated that Dunham replied he had never heard of anything like that in his life; and that everyone then packed up and ' left 4 Two days later, on October 24, Secor received a phone call from Dunham requesting a meeting for November 6 and pro- posing that counsel be present. Secor told him he wanted to discuss this with counsel. A week later he called Dun- ham and' asked what he intended to discuss at 'the meeting to which Dunham replied that there was nothing new but it might be good for the lawyers to get together. Secor offered the use of his counsel's time in Boston but at the same time he told Dunham that he felt that, if there was nothing new, n Dunham did not testify at the hearing and the above account of the October 22 meeting is based on the uncontradicted testimony of Secor ATLAS TACK CORPORATION why was a meeting necessary. He further said that he did not see any reason to bring counsel down to discuss lan- guage at a negotiating session. Secor finally agreed on a proposed date for a meeting with lawyers in November, but after a series of phone calls he suggested to Dunham that there was no need for the attorneys to meet with the negotiating committee. The proposed meeting never mate- rialized. At the time that Dunham called to request another meet- ing Secor also told him that the Company was going to go ahead with certain changes and stated that he would send Dunham a letter. He wrote the letter as noted above and, of course, the changes were made November 18. Except for the meeting in December with the Federal mediator and a number of phone calls subsequent to the October 22 meeting, there were no further communications between the parties. C. Analysis It is well settled that an employer violates his duty to bargain if, when negotiations are sought or are in progress, he unilaterally institutes changes in the existing terms and conditions of employment.5 However, if parties have bar- gained in good faith to an impasse, then an employer may institute unilateral changes in terms and conditions of em- ployment so long as they are not substantially different or greater than any which the employer has proposed durmg the negotiations .6 The issue then is whether a bargaining impasse existed in this case. The Board has stated that a determination of this issue is a matter of judgment and that bargaining history, good faith of the parties, length of ne- gotiations, importance of the issue or issues as to the state of negotiations are all relevant factors to be considered.7 In applying these principles to the instant case, I find that an impasse did not exist on October 22 as contended by Respondent. Although the parties had admittedly termi- nated negotiations in 1972 after reaching an impasse, seri- ous bargaining recommenced in July 1974. The- result was that after 15 lengthy and fruitful meetings between July and October the parties had reached substantial agreement on many issues. According to the chart prepared by Re- spondent, agreement had been reached with respect to 23 of 27 issues which were discussed and listed. Moreover, the parties had complete agreement on important matters such as wages, various insurance plans, and indeed all economic issues except pension. In addition most noneconomic is- sues had been determined. Thus on October 22 only four issues remained , of which the major item remaining was of course the matter of the'pension. In examining the circum- stances of October 22 with respect to the pension issue, I am not persuaded that this question could not have been resolved and that the parties were at an impasse. The Union had retreated from its initial demand for a pension and actually had proposed that it would not seek a new pension plan or attempt to open negotiations for one dur- s N.L.R B. v Benne Katz, etc d/b/a Williamsburg Steel Products Co, 369 U.S 736 (1962). 6 N L R B, v Crompton-Highland Mills, Inc, 337 U S 217 (1949) Taft Broadcasting Co, 163 NLRB 475, 478 (1967) 227 ing the period of the new agreement. At this juncture it sought only some protective language to preserve any rights it may derive from the outcome of the pending litiga- tion.8 On the other hand the Company had also changed its proposal so that it now simply wanted a provision to the effect that it would have no obligation to provide a pension plan durmg the term of the agreement, a proposal not real- ly different from that set forth in the first part of the Union's demand. So at issue was only the matter of the disposition of the court case. During the discussion on Oc- tober 22, the union representative perhaps intemporately stated that, unless the Company would undertake to put in writing some preservation of the Union's rights which might flow from the court case, there could be no contract and no sense of further negotiations. According to Respondent's vice president, Secor, the Company immedi- ately requested a break in the discussions and then re- turned and announced that it would now put into effect the provisions of the- proposed contract on which there had been agreement. It is noted that Respondent had been through this impasse route in 1972 and had implemented its proposals unilaterally at that time and on October 22, 1974, it proposed to do the same thing. Yet there were three other issues on the table concerning which there had been little or no discussion that day and, at that point, no indication that they could not have been resolved. Nor is there any contention that an impasse had been reached as to them. As a matter of fact with respect to the inspector's rate, there had been movement in prior meetings by both sides. The Company did not attempt any further negotia- tions after Dunham's remarks. Conceivably tabling the pension issue and resuming bargaining on the remaining issues may have had a salutary effect. The Union attempt- ed within 2 days to set up further meetings with Respon- dent and even suggested- that a meeting with counsel for both sides might be helpful. It is reasonable to assume, since the parties were apart on the pension issue solely with regard to the "protective language" on the pending court case, that legal counsel and expertise would perhaps be the most helpful way of resolving their differences on this is- sue. I noted from his demeanor and his testimony that Se- cor was reluctant to consent to a meeting and to the pres- ence of counsel, although at the same time he was careful in not refusing to schedule the meeting. In any event after a series of phone calls no meeting materialized after Octo- ber 22 except the one with the Federal mediator. Clearly this is not a case in which the parties had bargained over a period of time with the result of little or no progress,9 Tre- mendous strides had been made toward the completion of an agreement -over a period of just a few months. I am left with the indelible impression that Respondent's representa- tives seized on Dunham's remarks as an opportunity to break off the discussions and institute its last proposal uni- laterally. I find in all the circumstances that a bargaining impasse was not reached on October 22 and that by imple- menting changes in lunchbreaks and rest periods 10 on, No- 8 It is quite possible that the Union's success in that case, if any, would be limited to something less than restoration of the pension plan 9 See Taft Broadcasting Co, supra 10 These are the sole unilateral changes alleged in the complaint 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vember 18 Respondent violated Section 8(a)(1) and (5) of the Act. Moreover, as Respondent had on November 18 institut- ed a new system of rest periods, a matter admittedly not discussed during the negotiations, Respondent violated Section 8(a)(1) and (5) of the Act even if an impasse,had not been reached on October 22. It has been previously noted that, even after an impasse, an employer may imple- ment changes which encompass only matters previously proposed and discussed during the negotiations before im- passe had been reached." I find no merit in Respondent's contention that, since the Union had filed a grievance concerning the implemen- tation of the unpaid half-hour lunch periods, the parties should therefore have resolved the matter by resort to the grievances and arbitration procedure. As the contract set- ting forth such procedures had expired on May 31, 1972, there was no binding arbitration procedure in effect in No- vember 1974.12 Moreover, the issue herein is whether an impasse existed so as to permit Respondent unilaterally to implement its last contract proposal. There is no issue con- cerning the meaning of a term in an existing contract. As the Board stated in The Columbus Printing Pressmen & As- sistants' Union No. 252 (The R. W. Page Corporation) 219 NLRB 268 (1975): "the questions presented are therefore not ones of contract interpretation, but of statutory obliga- tions." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III above, occurring in connection with the operations of Re- spondent described in section I above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that Respondent unilaterally changed the working conditions of its employees by implementing a rule requiring employees to take an unpaid half-hour lunch instead of a 20-minute paid lunchbreak. In addition, Re- spondent increased the length of the workday by a half hour from 3 to 3:30 p.m. If Respondent had merely changed from a paid to an unpaid 20-minute break, its responsibility would be limited to that amount. By length- ening the day by half an hour, employees are obliged to 11 N L.R B. v. Crompton-Highland Mills, supra 12 The Board's policy of deferral to arbitration is predicated upon the availability of contractual arbitration procedures Collyer Insulated Wire, 192 NLRB 837 (1971). remain and should therefore be compensated for that time. I shall therefore recommend that the employees affected shall be made whole for any loss of earnings they may have sustained as a result of both the Respondent's changes of the paid lunchbreak and the length of the workday. With regard to the change in the method of rest periods from the so-called flexible to the inflexible system as set forth in the announcement of November 11, 1974, I find, contrary to the contention of the Charging Party, that no additional work or burdens were placed on the employees as a result of this change, and therefore no loss of earnings was sus- tained. In either case employees who remained at their ma- chines were engaged in looking after their own machines as well as those of the employees who left on the break. How- ever, I shall further recommend that Respondent be re- quired to restore the status quo ante as existed prior to the implementation of the changes concerning lunchbreaks and rest periods should the employees so desire.13 Finally, I shall recommend that Respondent cease and desist from unilaterally changing conditions of employment and bar- gain collectively, upon request, with the Union as the ex- clusive representative of these employees concerning terms and conditions of employment and, if an understanding is reached, embody such terms in assigned agreement. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce 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 production and maintenance employees at the Respondent's Fairhaven, Massachusetts, plant, exclusive of tack makers, tack makers' apprentices, executives, office clerical employees, foremen and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section'9(b) of the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By unilaterally changing working conditions with re- spect to lunchbreaks and rest periods and implementing those changes on November 18, 1974, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By such refusal to bargain with the Union, Respon- dent has interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 13 Herman Sausage Co, Inc., 122 NLRB 168 (1959), enfd. 275 F.2d 229 (C.A. 5, 1960). ATLAS TACK CORPORATION 229 ORDER 14 Respondent Atlas Tack Corporation, Fairhaven, Massa- chusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively with United Automobile, Aerospace, Agricultural Implement Workers of America, (UAW), Local 899, as the exclusive representative Of its employees in the following appropriate unit: All production and maintenance employees at the Respondent's Fairhaven, Massachusetts, plant, exclusive of tack makers, tack makers' apprentices, executives, office clerical employees, foremen and supervisors as defined in the Act, by: (1) Unilaterally instituting- and implementing work rules changing the lunch period of its employees from a 20-min- ute paid break to a half-hour unpaid break, and increasing the length of the workday. (2) Unilaterally implementing a system of inflexible rather than flexible ,rest periods. (3) Provided, however, that nothing herein shall be con- strued as requiring Respondent to vary or abandon any economic benefit or any term or condition of employment which it has heretofore established. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights ,guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Bargain collectively, upon request, with the above- named Union as the exclusive representative of the em- ployees- in the appropriate unit and embody any under- standing reached in a signed agreement. (b) Restore the status quo ante with respect to the changed lunchbreaks, length of workday, and rest periods should the employees through their Union so desire. (c) Make whole the employees in the appropriate unit for any loss of pay they may have suffered as a result of the change in the lunchbreak system and length of workday in the manner set forth in the "Remedy" section herein. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay which may be due under the terms under this recommended Order. (e) Post at its plant in Fairhaven, Massachusetts, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director '!'In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. is In the event the Board's 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 " for Region 1, after being duly signed by the Respondent's representative, shall be posted by it Immediately upon re- ceipt thereof, .and be maintained by it for 60 consecutive ,days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the, date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides were represented and presented evidence, it has been found that we have violated the National Labor Relations Act in certain respects: To correct and 'remedy these violations, we have been directed to take certain actions and to post this notice. WE WILL NOT unilaterally, and without consultation with United Automobile, Aerospace, Agricultural Im- plement Workers of America (UAW), Local 899 , insti- tute or implement any changes with respect to time and length of lunchbreaks, rest periods, and workday. Provided, however, that nothing herein shall be con- strued as requiring us to vary or abandon any eco- nomic benefit or any term or condition of employ- ment which it has heretofore established. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL bargain collectively upon request with United Automobile, Aerospace, Agricultural Imple- ment Workers of America (UAW), Local 899, as the exclusive representative of the employees in the appro- priate unit described below and embody any under- standing reached in a signed agreement. The appropri- ate bargaining unit is: All production and maintenance employees of the employer's Fairhaven, Massachusetts, plant, exclu- sive of tack makers, tack makers' apprentices, exec- utives, office clerical employees; foremen and super- visors as defined in the Act. WE WILL restore the status quo ante with respect to changed lunchbreaks, workday, and rest periods should the employees through their Union so desire. WE WILL make whole the employees in the appropri- ate unit for any loss of pay they may have suffered as a result of the change in the lunchbreak system and length of workday. ATLAS TACK CORPORATION