California Nevada Golden Tours

58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Grey Line Scenic Tours, Inc. d/h/a California Nevada' Golden Tours and Teamsters, Chauf- feurs, Warehousemen and Helpers Union, Local 533, International Brotherhood of Teamsters; Chauffeurs, Warehousemen and Helpers of America Chauffeurs Union Local 265, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Teamsters, Chauf- feurs, Warehousemen and Helpers Union, Local 533, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 32-CA-5967 and 32-CB-16371 26 February 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 28 March 1985 Administrative Law Judge Earldean V.S. Robbins issued the attached deci- sion. Respondent Grey Line Scenic Tours, Inc., d/b/a California Nevada Golden Tour filed excep- tions' and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member, paneL The Board has considered-the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, flndings,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Grey Line Scenic Tours, Inc. d/b/a California Nevada Golden Tours, Oakland, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I The judge approved a unilateral settlement agreement in Case 32- CB-1637, and granted the General Counsel's motion for leave to with- draw the complaint. 2 In the last full paragraph of sec III,A,2 of the judge's decision the judge stated that the Respondent engaged in separate negotiations with Local 265, which resulted in a separate agreement being entered into on 21 November We find the date of that agreement was 21 October We also correct an error appearing at the beginning of sec III,A,4 of the judge's decision The judge's sentence begins "On March 18 Tarson sent a letter to Perry " The date of that letter was 28 March. These inadvert- ent errors do not affect our decision Daniel R. Fritz Esq., for the General Counsel. James A. Carter, Esq., of San Francisco, California, for the Respondent Employer. Kenneth N. Silbert, Esq. (Beeson, Tayer & Silbert), of San Francisco, California, for the Respondent Union. Patrick D. Dolan, Esq., of Reno, Nevada, for the Charg- ing Party. DECISION, STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge. This matter was tried before me in Oakland, California, on October 23 and 24, 1984. The charge in Case 32-CA- 59671 was filed by Teamsters, Chauffeurs, Warehouse- men and Helpers Union, Local 533, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 533), on October 17, 1983, and served on Grey Line Scenic Tours, Inc. d/b/a Cali- fornia Nevada Golden Tours (Respondent) on October 18, 1983. The amended consolidated complaint, which issued on August 16, 1984,, alleges, inter alia,2 that Re- spondent violated Section 8(a)(1), (2), and (5) of the-Na- tional Labor Relations Act (the Act). The principal issues herein are: 1. Whether Respondent violated Section 8(a)(1), (2), and (5) of the Act by recognizing Local 265 as the col- lective-bargaining representative of a portion of the ap- propriate bargaining unit; by negotiating separately with Local 265; and by entering into, and implementing, the terms of a separate collective-bargaining agreement with Local 265, which covered only a portion of the certified appropriate unit and reduced the wages of the covered employees. 2. Whether Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally reducing the wages of em- ployees pursuant to its "final, offer" in, December 1983; by unilaterally changing wages and working conditions of unit employees in May 1984; and by refusing to pro- vide the joint bargaining representative of unit employ- ees with requested financial information. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Nevada corporation with an office and place of business in Oakland, California, is engaged in the operation of an interstate bus transportation system. During the 12-month period preceding the issuance of the amended consolidated complaint Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $50,000 from the transporta- tion of passengers from the State of California directly to points outside the State of California. I At the commencement of the hearing, I granted the General Coun- sel's motion to sever Case 32-CB-1637 from Case 32-CA-5967 and ap- proved a unilateral settlement agreement in Case 32-CB-1637, which remedied all the allegations of the complaint relating to that matter. In his posthearing brief, the General Counsel requested that I treat this re- quest as a motion for leave to withdraw the complaint in Case 32-CB- 1637 required by the settlement agreement on compliance therewith That motion is granted. 2 Because I approved the unilateral settlement agreement that disposed of all the allegations of the consolidated complaint relating to Case 32- CB-1637, the hearing and decision herein relates only to Case 32-CA- 5967 and the 8(a)(1), (2), and (5) allegations of the consolidated complaint pertaining thereto 283 NLRB No. 12 CALIFORNIA NEVADA GOLDEN TOURS The amended consolidated complaint alleges, Re- spondent admits, and I find that Respondent is, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II, LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Local 533 and Local 265 are now, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Introduction Respondent transports individuals between the San Francisco Bay Area and resort casinos in Reno and South Lake Tahoe, Nevada. In January 1974 Local 533 and Local 265 were certified as the joint collective-bar- gaining representative of Respondent's drivers in the San Francisco Bay Area, Reno, and South Lake Tahoe. Thereafter in 1974 and 1977 Respondent and the joint representative entered, into successive collective-bargain- ing agreements. In 1979, during the term of the second agreement, Peerless Stages, Inc. purchased Respondent.3 Thereafter in April 1981 Respondent and the joint repre- sentative entered into a collective-bargaining agreement effective by its terms from November 1, 1980, through October 31, 1983. According to Lloyd Perry, who has been Respondent's president since it was acquired by Peerless, this was his first negotiation with the joint rep- resentative and at no time was it ever mentioned, nor was he ever aware, prior to the incidents involved herein, that Local 533 and Local 265 were the certified joint representative of Respondent's drivers. Even though Local '533 and Local 265 are joint repre- sentatives, the Nevada drivers are members of Local 533 and the collective-bargaining agreement as to them is ad- ministered by 'Local 533, and the San Francisco Bay Area drivers are members of Local 265 and the collec- tive-bargaining agreement is administered as to them by Local 265. Respondent's passengers originate in the Bay Area from where they are transported to Nevada and back to the Bay Area. However, for purposes of driver assignment, some of the runs originate in Reno. The runs that originate in Reno are manned by Local 533 drivers and the runs that originate in the Bay Area are manned by Local 265 drivers. These runs are posted for bids and are awarded to the most senior bidder. The 1980-1983 collective-bargaining agreement pro- vides that Respondent shall maintain at least 10 bid run assignments4 and that Respondent shall attempt to pro- ' Peerless owns a^group of companies consisting of three operating bus companies, including Respondent, a sales company, California Nevada Golden Tours, Inc. d/b/a Betty's Tours, which is the sales arm for the bus companies, and an overhead company, Sunwest Travel Industries, which is the overhead arm for all of the companies owned by Peerless @ This requirement is subject to the proviso that Respondent's oper- ations are sufficient to cover that number of runs. 59 vide nearly equal numbers of bid run assignments for the San Francisco Bay Area and the Reno-Lake Tahoe area. In November 1982 Respondent reassigned some runs that had previously originated in Reno so that they originated in San Francisco.5 Local 533 and the Reno drivers expressed displeasure with this arrangement and on June 13, 1983,6 Perry met with Local 533 Shop Steward Al Bice, Local 533 Secre- tary-Treasurer Ed Greeley, and Local 265 Secretary- Treasurer Bill McElroy to discuss Local 533's objection to the existing arrangement. Despite McElroy's stated objections to the proposed change, any agreement was reached whereby Reno would receive additional bid runs effective July 7. However, the Reno drivers would be required to pay any cost of lodging in excess of the $10.70 Respondent paid for the lodging of San Francisco drivers in Reno. Thereafter Bice posted a memo to all drivers setting forth this agreement . By letter dated July 1 and ad- dressed to Clay Pierce, business agent for Local 533, Perry acknowledged the Bice memo and set forth some aspects of the agreement that allegedly were not includ- ed in this memo-specifically, that the Reno runs were only guaranteed during the summer season, that the guarantee was only for four runs instead of the five re- ferred to in the Bice memo, and that the formula for lodging expenses applied in both San Francisco and San Jose. 2. The separate negotiations with Local 265 and the implementation of the resulting agreement On July 25 Local 533, through Greeley, notified Re- spondent of its intent to modify the agreement. The body of the letter reads: Please accept this letter as notification of our wish to open our Agreement with your company in accordance with the provisions of the Labor Rela- tions Act of 1947. We hope to continue our friendly relationship with your Company. The record does not indicate the response, if any, to this letter. On September 21 McElroy sent the following mail- gram to Respondent: IN REGARDS TO NEGOTIATIONS ON OUR CURRENT WORKING AGREEMENT LOCAL 265 HAS TAKEN THE POSITION TO NEGOTIATE THE CONTRACT AS A SINGLE BARGAINING UNIT PLEASE REPLY ASAP. R. W. MCELROY, VICE PRESIDENT 5 According to Perry, the reason for this was the weather conditions Specifically, at times during the winter, weather conditions are such that drivers on a Reno run could not be returned to Reno on a paying run Instead the driver would have to fly from the Bay Area back to Reno or deadhead back to Reno in a bus, causing an additional operational ex- pense. B Unless otherwise indicated, all dates in June through December are in 1983 and all dates in January through May are in 1984. 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent responded by mailgram as follows on Sep- tember 23: PEERLESS STAGES-GOLDEN TOURS AGREES TO BAR- GAIN WITH YOU AS SINGLE UNIT. YOURS TRULY A.J.G. On October 3 Local 533 sent a mailgram to Respond- ent, the body of which reads: PLEASE BE ADVISED THAT LOCAL 533 REMAINS READY AND WILLING TO MEET WITH YOUR COMPA- NY TO NEGOTIATE TERMS AND CONDITIONS OF SUC- CESSOR LABOR AGREEMENT TO BE EFFECTIVE NO- VEMBER 1 1983. ALSO PLEASE BE ADVISED THAT LOCAL 533 EXPECTS AND DEMANDS ALL NEGOTIA- TIONS MEETINGS INVOLVING SUCCESSOR LABOR AGREEMENT INCLUDE, AND TAKE PLACE IN THE PRESENCE, BOTH LOCAL 533 AND 265, THE JOINTLY RECOGNIZED BARGAINING REPRESENTATIV [sIc]. ANY SEPARATE MEETING WITH LOCAL 265 CON- CERNING A SUCCESSOR LABOR AGREEMENT WILL BE DEEMED TO BE UNLAWFUL UNILATERAL NEGOTIA- TION FOR WHICH WE WILL TAKE APPROPRIATE ACTION. GIVEN THE OCTOBER 31 ANNIVERSARY DATE OF THE EXISTING AGREEMENT LOCAL 533 HAS GIVEN THIS PRIORITY AND IS AVAILABLE TO MEET AT THE' CONVENIENCE OF THE OTHER PARTIES. On October 6 Respondent sent a letter to Local 533, the body of which reads: Lloyd Perry will be available to meet with you to discuss the working agreement . The arrangements for a meeting can be made by calling Lloyd Perry at (415) 444-2900. By letter dated October 17, Local 533 responded as follows: In response to your letter of October 6th, we will be happy to meet with you or Mr. Perry at a mutu- ally agreeable time, but must advise that representa- tives of Chauffeurs Local 265 must be included in all negotiating meetings since Local 533 and Local 265 jointly represent the bargaining unit. Please. refer to our telegram sent on October 10th. Advise the best meeting dates , for you or Mr. Perry. On October 20 Respondent sent a letter to Local 533, the body of which reads: In response to your letter of October 17, 1983 to Mr. Gaeta, I am available to meet with you in Oak- land at your convenience. If you wish to include representatives of Chaufeurs [sic] Local 265 in the meeting, I have no objection. Despite being placed on notice by Local 533 that Local 265 and Local 533 were point representatives and that Local 533 was only amenable to joint negotiations, Respondent engaged in separate negotiations with Local 265 that resulted in a separate agreement entered into by Respondent and Local 265 on November 21, which re- duced the -basic wage rate from $8.65 an hour to $8.00 an hour. Thereafter Respondent implemented this agree- ment by reducing the wages of the San Francisco drivers by 65 cents an hour effective November 1. 3. The November negotiations and the implementation of Respondent's Noveiber 9 proposal On November 7, Local 533 sent a mailgram to Local 265, the body of which reads: AS YOU ARE WELL AWARE WE HAVE SET UP A MEETING WITH CALIFORNIA NEVADA GOLDEN TOURS TO BEGIN NEGOTIATIONS ON A NEW CON- TRACT FOR NOVEMBER 8 1983. . . . WE EMPHASIZE THAT THIS IS A JOINT AGREEMENT BETWEEN LOCAL 265, 533 AND THE COMPANY AND WHATEVER COMES FROM THESE NEGOTIATIONS WILL BIND ALL THREE PARTIES JOINTLY . . . . AS PER CONVERSATION WITH AL TARSON THIS DATE IT IS IMERATIVE [SIC] THAT A REPRESENTATIVE FROM YOUR LOCAL' BE THERE. On October 17, Local 533 -filed an unfair labor prac- tice charge against Respondent in Case 32-CA-5967 al- leging that Respondent's separate negotiations with Local 265 violated Section 8(a)(l), (2), and (5) of the Act. On November 8 Local 533 met with` Respondent as scheduled. Present for Local 533 ' were Business Repre- sentative Al Tarson, Greeley, and Bice. Present for Re- spondent was Perry. The shop steward for Local 265, Tom Mueller, was also present but, according to Tarson, was there only as an observer and did not participate in the negotiations. Tarson testified that, at the outset of the meeting, Greeley stated that because there was no spokesman for Local 265 present they could not enter into joint bargaining negotiations. Perry said they could go over the contract and submitted some proposals that included provisions that the expired agreement be modi- fied to eliminate all references to Local 265 , to limit the agreement to the Nevada operation only, and, inter alia, to reduce wages for full-time employees to $7.20 an hour and for casual employees to $6.90 an hour for the first year of a 3-year agreement with 30 -cent increases in each of the remaining 2 years of the agreement. Following a caucus to review these proposals, Local 533 rejected all of Respondent's proposals and submitted its proposal for, inter alia, an increase in wages of 50- cents per hour in all classifications - each contract year and, further, that all drivers be paid the same whether casual or full time. Following a second caucus Perry re- jected Local 533's proposal, and submitted a counterpro- posal for, inter alia, a wage rate of $8 an hour for full- time employees and $7.617 an hour for casual employees for the first year of the contract with no increase in wages for casual employees throughout the life of the contract, a 33-cent increase the second 'year of the'con- tract, and a 32-cent increase for the third year of the contract. This counterproposal , which Perry character- CALIFORNIA NEVADA GOLDEN TOURS ized as Respondent's final proposal, was rejected by the Union at which point Greeley stated that because Local 265 was not in fact represented by the business agent they could not actually consider this as negotiations and since Local 265 was not party to the negotiations be- cause they had signed the contract with Respondent there was no alternative except to wait for a decision from the Board as to the legality of the separate negotia- tions between Local 265 and Respondent . The meeting adjourned with no date set for further meetings. Perry does not dispute that Tarson's testimony as to this or subsequent negotiation sessions is accurate as far as it goes. He does testify as to additional details of his comments regarding Respondent's financial situation. Ac- cording to him, when he met with the Union on Novem- ber 8, Respondent was in pretty desperate financial straits and he told the Union he had to have concessions immediately. Perry further testified that Respondent's at- torney advised Respondent that in order to avoid the fi- nancial burden of going into Chapter 11 , Bankruptcy, Respondent should hire a financial consultant to assist it out of its financial difficulties. On this advice Curtis was hired and thereafter Curtis negotiated settlements with Respondent's major creditors in a manner that permitted Respondent to continue operations. Respondent's cash flow problems became critical about the end of January 1983 when it came to management's attention that Re- spondent's controller had failed to file the withholding statements and 'to remit to the Internal Revenue Service taxes withheld from the pay of about 200 employees, Curtis negotiated a settlement with the IRS for extended payment of the tax liability over a 3-year period with a balloon payment at the end of the period. He also set up a cash flow budget, which he monitored on a daily basis. The three owners agreed to forgo their salaries for De- cember 1982 and took a 10-percent pay cut for 1983. Four or five, presidents were terminated and some middle management personnel. One of Respondent's two ac- counting offices was closed , and the position of control- ler was eliminated. Curtis advised ' that wages would have to be reduced to less than $8 per hour. According to Perry, he related these details to the Union. On November 9 Local 533 sent a letter to Respondent, the body of which reads: In reference to the contract negotiations between Local 533 and your company held at Sacramento, California on November 9, 1983, this letter is your notification that' Local 533 does not accept your company's final offer regarding our proposals and 61 counter-proposals, as bein [sic] inadequate in many phases. Furthermore, although Local 265 was represent- ed by a Shop Steward (Tom Mueller), only as an observer, Local 533 must reiterate it's [sic] stand as stated at the meeting that all parties involved must await a decision from the National Labor Relations Board regarding charges filed by Local 533. With best regards . .. . By letter dated November 18, Respondent responded as follows: Your letter, of November 9, 1983, reconfirms your rejection of our final offer in contract negotia- tions between your local and our Company. It ap- pears that we have reached an impasse. I suggest that you reconsider your position. If you do not notify me of a change in your position by November 30, 1983, we will implement our final offer on December 1, 1983. On November 21 Local 533 sent Respondent a letter, the body of which reads: Your letter dated November 18, 1983 was re- ceived this date and I agree with you, we are now at an impasse regarding your final[ offer in contract negotiations submitted November 8, 1983. As stated previously, Local 533 stands by it's [sic] committment [sic] that Local 265 and Local 533, jointly, must negotiate any and all contract agreements with your company as has been done for many years past, and, furthermore, Local 533 has filed charges with the National Labor Relations Board and will await the outcome of those decisions before proceeding with further negotiations. With best wishes. .. . On November 29 Respondent issued the following memo: To: All Nevada Drivers From: Lloyd G. Perry There is an impasse in contract negotiations be- tween Local 533 and the Company. Your bargain- ing agent rejected the Company's final offer on No- vember 18, 1983 and confirmed our impasse on No- vember 21, 1983. As stated in our letter of November 18, 1983, we will implement our final offer on December 1, 1983. The final offer changed the pay rates as follows: 11-1-83 to 7- 8-1-84 to 7-- 8-1-85 to 7- 31-84 31-85 31-86 45-9 Hourly rates of pay: Full Time ............................... .............. ............ ........................... ............ $8.00 $8.33 $8.65 Casual .... ................................................ . ........................................... ..... 7 617 7.617 7.617 45-1 Mileage rates of pay: Full Time ...................................................................... .......................... $02807 $0.2922 $0.3037 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 11-1-83 to 7- 8-1-84 to 7- 8-1-85 to 7- 31-84 31-85 31-86 Casual ....................................................................................................................... 0.2673 0.2673 0.2673 Copies were sent to both Local 533 and Local 265. On December 1, the wages of the Nevada drivers were reduced to $8 per hour. 4. The 1984 negotiations between Respondent and the joint representatives A negotiation session was scheduled for January 18. However it was cancelled when McElroy walked out prior to the commencement of the meeting. On January 19 Respondent sent its proposals to Local 533 and Local 265, along with a letter, the body of which reads: Our scheduled joint contract negotiations for Jan- uary 18, and 19 have failed because Local #265 was not present for the scheduled meeting in Sacramen- to. According to Local #533, they had met with Local #265 earlier in the day (18th) and that Local #265 had departed as they would not participate with Local #533 in joint contract negotiations. I stand ready, as I have in the past, to participate in joint contract negotiations . If you will not negoti- ate jointly, I will ask the NLRB to withdraw all complaints filed against us. Since I was not able to present our negotiating proposal to you jointly, I am submitting it as an at- tachment to this letter . I am ready to meet with you and jointly negotiate a new contract . However, be- cause we have not had joint negotiations, I must insist that we meet on January 26, 27, 30 and 31 in our office at 228 Broadway, Oakland, Ca. 94607. When you have agreed on a meeting time , please notify me. If the two locals are unwilling to jointly negoti- ate, the Company can no longer permit your posi- tion to delay our ability to operate on a reasonable basis. Unless you meet and negotiate as requested, we will have no alternative but to assume that we have reached an impasse and we will implement the enclosed proposal on February 1, 1984. On January 27 Local 533 sent Respondent a letter that states inter alia: ... Your availability for negotiation on Febru- ary 7th in Oakland is convenient to Local 533, as arranged by Local 265 , yesterday... . We ask that you re-establish and maintan [sic] the status quo of employment conditions, i.e., return to the terms and conditions of the labor agreement ex- isting as of October 31, 1983, and reimburse the em- ployees for improperly reduced wages and benefits. By doing so, negotiations would then be taking place under the conditions that existed at the time of your unlawful and singular bargaining with Local 265 , and unilateral change of conditions. Simply offering to meet for negotiations does not avoid or remedy the charges against your company. Moreover, inasmuch as both Local 265 and 533 are necessary for negotiations, and- 533 cannot speak for 265, we cannot report on that Local's availabil- ity, and leave it to that Local to respond to your letter. Your ultimatum of declaring impasse based upon a submission of proposals, coupled with notice and demand for bargaining in the present circumstances hardly forms a lawful basis for implementation of employer's terms and conditions of employment. Should you do so, additional charges will be filed. If you ' are truly interested in resolution of this matter, we suggest you ask the Labor Board- to structure and oversee settlement efforts. Please inform us of your intentions concerning re-establish- ing the October 31, 1983 conditions , re-imbursement to employees of unpaid wages, and payment of de- linquent health insurance benefits. Another negotiating session was held on February 7. Greeley, Bice, and Tarson were present for Local 533, McElroy and Shop Steward John Stringer for Local 265, and Perry and Jim Noe for Respondent. Greeley was the principal spokesman for the Unions . According to Tarson, at the outset of the meeting Greeley said he wanted an understanding from Respondent that the ex- pired contract was still in effect and they were bargain- ing under that contract. Perry said Respondent would not agree to that. After seeking legal advice during a caucus, Greeley stated that, on advice of, counsel, the Unions were maintaining their position. Again Perry said Respondent would not bargain under those conditions. Following another caucus Greeley stated the Unions would bargain under those conditions , but the Unions' attorney was filing for an injunction and it would be ad- visable for Perry to contact Respondent 's attorney to try and settle this matter. After another caucus Perry agreed that they would commence bargaining under the contract that expired on October 31 . Greeley said they would have to delay ne- gotiations on monetary items until they had some sort of official report as to Respondent's financial position. Re- spondent's representatives stated that ' they were in the process of having an audit done that they would provide to the joint representative in March . Greeley said the Unions wanted to see some sort of records to prove that the Company needed - the financial relief it was request- ing. Tarson said that Respondent had provided an audit report for 1980-1981 and for 1981-1982 by another audit company and that after reviewing the reports carefully, they had found a discrepancy in 1981 of about $ 1 million between the two reports and therefore they needed more information as to the Company 's financial status. Perry CALIFORNIA NEVADA GOLDEN TOURS 63 said Respondent would provide an audit report: At this point Ronald Curtis, financial consultant, began giving them information, as to Respondent's financial status and stated that Respondent owed the IRS $400-500 plus 17- percent interest. Tarson again stated that before the Unions could get into negotiations concerning wages they needed further reports to substantiate Respondent's position. Curtis said the Unions would get the audit report as soon as Respondent received it. After lunch Curtis stated that Respondent needed the 7.6-percent cut in wages and an overall 10.45-percent cut in benefits and wages until at least May 1985 because, ac- cording to the Company's projection, they thought they would be operating in the black around the end of April 1985. Curtis said Respondent had begun to cut the fat out of its operation, they had cut services, some employ- ees had been affected, and four vice presidents had been let go. There was some discussion of Respondent's liabil- ity for back wages and benefits. Negotiations resumed on February 8. Present were Tarson and Bice for Local 533, McElroy and Stringer for Local 265, and Perry and Noe for Respondent. Tarson was the spokesman for the Unions. Tarson said the Unions would negotiate contract language but would withhold any discussion of monetary items until they re- ceived the audit report. The discussion in this session was based on Respondent's proposal that had been at- tached to Respondent's January 19 letter to the Unions. After discussing several items on this proposal, Tarson requested that Curtis be called in so the Unions could submit a proposal referring to Respondent's request for a 10-percent relief. After Curtis arrived Tarson said' the Unions would be willing to grant approximately 10-per- cent relief by giving back three paid holidays-Memorial Day, Fourth of July, and Labor Day-3 sick days, 3 va- cation days, and pay for the 15-minute check time before and after a run. Tarson explained that based on a Wage rate of $8.65 an hour and annual earnings of approxi- mately $25,000 this relief would amount to approximate- ly $2500 for a driver, but would not specifically hurt an employee's ability to pay his bills whereas giving back 65 cents an hour would directly reduce an employee's pay- check. Perry requested a lunch break so he and Curtis could review the proposal to determine whether it would in fact amount to 'the' 10-percent relief they were requesting. According to Larson, when the meeting resumed after lunch Perry said he thought it would be unfair to take 3 sick days away from an employee because it was for the employee's protection in the event of illness. Curtis said Respondent needed the 65 cents an hour give-back. Tarson said it was the Unions' position 'that they could not accept a 65-cent give-back. After a caucus they dis- cussed Respondent's proposal to delete the 4, 6, and 8 hours minimum pay provision, and the union committee requested documentation as to cost incurred by Respond- ent under that provision, Tarson proposed that if Re- spondent could not afford to pay back wages at the time but would agree to assume liability for such, the Unions would be agreeable to applying the back wages to future health and welfare-payments. At the conclusion of,the meeting they agreed to meet again on February 23. ','A meeting was^ held as scheduled on February 23. Present were Perry and Noe for Respondent, McElroy and Stringer for Local 265, and Greeley, Tarson, and Bice for Local 533. At the outset of the meeting Greeley said the Unions wished to continue negotiations on the monetary items and they proceeded to do so. The Unions submitted a_ proposal that included, inter alia, an additional three holidays, deletion of the cap on health and welfare contributions and on sick leave accumula- tion, and a $1-per-hour wage increase in all classifications for each contract year. Some of the items in the Unions' proposal were discussed but no agreement was reached. Greeley asked when the Unions would receive Respond- ent's audit report. Perry said March 1 but no later than March 15. Another meeting was scheduled for March 13. Present at the March 13 meeting were Tarson, McEl- roy, Stringer, Perry, and Noe. Both the Unions' and the Company's proposals were discussed. Some agreement was reached as to language in certain of the proposals. Perry offered to consider having a union representative on the company board of directors. Tarson said that would be agreeable to the Unions but he had no knowl- edge at this time as to who that person could be. Perry said, due to some errors in the preparation of the audit report, it would not be ready until April 1, or April 15 at the latest. The Unions' representatives again said they could not engage in negotiations on financial proposals until they received the audit report. The next meeting was on March 15. Present were Tarson, Bice, McElroy, Perry, and Noe. Perry presented a summary of the tentative agreements reached in negoti- ations. They reviewed each section of the summary and the union representatives either indicated that they agreed that it was a correct summary of the agreement reached or corrected the summary or indicated that addi- tional negotiations would have to be undertaken because of uncertainty as to whether the items involved were a monetary loss to employees. The Unions presented writ- ten clarification of certain of their proposals. Another meeting was held on March 15 at which time Respondent and the Unions continued to discuss the non- monetary items of their proposals on which tentative agreement had not been'reached. Respondent submitted a summary of the tentative agreements that had been reached through that date together with Respondent's proposals for continued negotiations. These proposals dealt with monetary items and contained the following justification for its proposal for reduction in the econom- ic package: Following are the Company's proposals for con- tinued negotiation. These include money items which are predicated on certain facts. First, is the Company's need for lower payroll costs so that the Company can continue to exist. Money savings are required to liquidate, the Internal Revenue Service's liability,, the loan payment requirements for buses, and the trade account deficits. Cost savings are re- quired so that the Company can compete with Greyhound, who is now able to substantially under- cut our Tariff. We also have to compete with a greatly increased number of competitors who are 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD non-union. Second, there have been requests by the Union to increase our costs for some items. Each in- crease will- have to be matched with a correspond- ing decrease in another area. On March 16 Tarson cancelled the negotiation session scheduled for March 19 citing staffing problems in his office and scheduling conflicts. Tarson offered to meet on alternative dates but suggested that since most of the noneconomic items had been settled, Local 533 would just as soon wait for the audit report so that economic items could be discussed at the next meeting. Perry agreed to do so and although no definite date was set for the next meeting, according to Tarson, it was understood that it would be sometime after April 15. By letter dated March 20, addressed to Perry, Tarson expressed his regrets at the cancellation of the March 19 meeting and further stated: As I mentioned to you during our phone conver- sation, it is regrettable we could not meet to finalize negotiations for a new contract this week. With all due respect, the next available dates will depend largely on the availability of the new audit report, as those concerned can examine them in order to come up with some idea of what your company's financial dilemma might be. Hoping that the cooperation between all parties will continue to produce an amicable solution in a new agreement, I remain .. . Respondent responded by letter dated March 21, ad- dressed to Local 533 and Local 265, which requested that the Unions-seek membership approval of Respond- ent's "final" proposal, which was attached thereto, and stated Respondent's intent to implement this proposal on April 1. The body of the letter reads: The Company's proposal for a new working agreement includes money items which are predi- cated on certain facts. First, is the Company's need for lower payroll costs so that the Company can continue to exist. Money savings are required to liq- uidate the Internal Revenue Service's liability, the loan payment requirements for buses, and the trade account deficits. Cost savings are required so that the Company can compete with Greyhound, who is now able to substantially undercut our Tariff. We also have to compete with a greatly increased number of competitors who are non-union. Second, there have been requests by the Union to increase our costs for some items. We have increased the health and welfare contribution. Any other increase will have to be matched with a corresponding de- crease in another area. Local 533's cancellation of negotiations that was scheduled for March 19, 1984, is of concern to me. We have to do something for our employees to ease their' uncertainties. It appears that the officers of that Local are delaying the negotiations. That con- duct along with positions taken previously and with previous cancellations lead us to believe that addi- tional negotiations will be unproductive. Therefore, we submit herewith our "final" proposal and re- quest that you seek membership approval of it. If approval is not received by March 31, 1984, we will consider that we are at an impasse and will ,imple- ment our "final/final" proposal on April 1, 1984. If the Unions wish to meet for the purpose of ad- ditional negotiations in sufficient time to permit a membership vote not later than March 31, 1984, please let me know. - Upon receipt of this letter Tarson telephoned Perry and expressed his position that Perry's request was im- proper and further that Perry did not allow the Unions sufficient time to submit a referendum to their members. Perry said that regardless of the outcome or whether he actually implemented Respondent's final offer they could still resume negotiations. On March 18- Tarson sent a letter to Perry, the body of which reads: I have reviewed your March 21st letter concern- ing our negotiations. It is becoming obvious that you are more interested in declaring "impasse" than engaging in collective bargaining. In response to your company's claimed lack of fi- nancial "ability to pay," we have repeatedly re- quested that you provide financial records for our auditors to review. To date, no such records have been provided. You have again submitted a proposal and without providing for negotiations concerning it, have de- manded acceptance and- approval., As even evi- denced in your second letter, in your haste, you have now indicated section 19-5, "may be misinter- preted." Is this bargaining in good faith? As we have previously advised, this "take it or else" and unilateral declaration of impasse in these circumstances will not provide lawful basis to avoid bargaining or implement your proposals. The reason for Local 533's request to cancel the March 19th meeting as explained were due in part to our office staff being short handed due to sick- ness, and out of town commitments to our Interna- tional's requests, as, well as myself being sworn in as a Delegate, our one o'clock meeting had to be can- celled under these circumstances. As to our previ- ous mutual agreements to cancel scheduled meet- ings, I'm sure there were no improprieties by any of the concerned parties when requesting meeting places, times, dates, etc. Furthermore, you have stated financial records would not' be available until March 31st, and now later to April 15th. Your obligation to furnish finan- cial information requested and to bargain collective- ly remains unsatisfied, particularly in light of our actions to secure these rights made necessary by your company's earlier conduct. Please advise when financial information request- ed will be available since that information is neces- sary for us to evaluate your company's claimed lack of ability to pay. CALIFORNIA NEVADA GOLDEN TOURS Respondent did, in fact, implement the terms of its "final/final" offer on April 1. On April 10 Tarson sent a letter to Perry, the body of which reads: Referring to your recent letters and memo de- claring "impasse" and then implementing your final/final offer, please be advised that both Locals are going forward with a mail referendum vote to accept or reject your final offer. Assuming they reject it, we are still uncertain when the company intends to: (a) repay back ,wages; (b) make the audit report available, and; (c) company proof of liabilities concerning wages, work rules and benefits that may require monetary relief, until May, 1985. These items were first negotiated on February 7, 1984 but as yet have not been forthcoming. There- fore, it is respectfully requested that within seven (7) days of receipt of this letter, the above items be answered before negotiations can resume. On May 3, by mail ballot, the unit employees rejected Respondent's final offer by a vote of 33 to 4. Local 533 notified Respondent, by mailgram, of the results of the vote. On May 7 Tarson sent a letter to Perry, the body of which reads: You are now aware your drivers rejected your "final offer" by a wide margin by secret ballot. As the Union has been consistent in bargaining in good faith, you have shown to be contrary to negotiate for reasons yet revealed. The Union still requests: 1. The company promised financial and/or audit report so that the Union can make an intel- ligent judgment regarding wages, work rules, benefits, etc., of the company's claim for relief until May, 1985. 2. Re-establishment of bid runs to the Reno/Tahoe domicile to San Jose, California that the'Nevada drivers enjoyed since 1974 until you arbitrarily removed all of them last November under the guise, of higher costs of hotel rooms in San Jose and unpredictable winter road condi- tions. 3. Re-establish back wages and working condi- tions as ascribed [sic] in the agreement still in effect. There are of course other items still to be negoti- ated, i.e., your declaration of impasse and imple- mentation of different wages, work rules, etc. Therefore, as stated in our mailgram sent you May 4th, Locals 265 and 533 stand ready to resume negotiations at your earliest convenience when all parties amicably meet. With best regards, I remain .... Perry responded, by letter dated May 9 addressed to Local 533 and Local 265, the body of which reads: Your wire' of rejection raises the question, "Can we resolve the impasse?" 65 The lettet from Local #533, dated April 10, 1984, indicated your uncertainty on three points: First, as to our intention to provide back pay. Our final offer to the drivers provided for back pay Second, as to the availability of our annual au- dited reports. We have made the audited reports for 1980 through 1982 available and if you desire we will provide you with copies. The audited report for 1983 is still not available even though the certified public accountant, Arthur Young & Company, had indicated a completion date of March 15, 1984. We will make the 1983 audited report available as soon as we receive it from Arthur Young & Company. Third, as to our need for monetary, relief. Our books are open to you for examination on this item. We have previously documented that money is needed to liquidate our liabilities with the Internal Revenue Service, our loan payments on the buses, and our trade account deficits. Those requirements still exist and'there are two new large items (over $100,000 each). One is a court-awarded judgment to James Wood. The other is retrospective insurance premiums for 1979 to 1983 that, will have to be paid to Transit Casualty. Our financial position has deteriorated below this year's forecast for at least three major reasons: One is that Greyhound and many new small bus companies are quoting charter rates that are lower than our operating costs and this has taken business away from us or has resulted in our moving at marginal rates in order to generate cash flow. Two is that we have less buses to generate revenue. In the last two years we have had to sell 13 buses in order to generate money'to allow us to continue operations. Additional bus sales have been considered, but a depressed used bus market would not provide any operating money as virtually all of the proceeds would have to be applied to our debt to the Internal Revesaue Serv- ice and to our debt on the equipment loan. Three is that we'have been unable to modern- ize our MCI fleet, whose age averages ten years. Also, our fleet will drop four more buses in Oc- tober when our lease expires on the four Eagles. We cannot renew, that lease or buy any new equipment until we meet our obligations with In- ternal Revenue Service and with, Barclay Ameri- can Credit. Our inability to modernize the fleet could result in our' loss of the Richard Lee ac- count. We have drastically reduced our expenses in all areas and we have asked the drivers to help us. The only reason that we have continued to try to save the Company is our personal pride for 68 years of history in the bus business. We ask you to help us 66 DECISIONS OF THE NATIONAL. LABOR RELATIONS BOARD continue our historical record and to maintain union jobs. In view of these facts, what do you propose that will resolve the impasse and permit the Company to survive? If you desire a face-to-face meeting to dis- cuss this, we are available, at this time, on May 14, 17,, 22, 23, 24 and 25. Thereafter there was an exchange of letters between Perry and Tarson in which each ascribed to the other blame for the status of negotiations and Tarson requested that ` negotiations resume in Reno on June 4 and Perry agreed to the June 4 resumption, but in Oakland. On May 29 Tarson sent a letter to Perry, the body of which reads: Your letter of May 18th refer[ing] to a resump- tion "to continue discussions" beginning June 4th at your Oakland office is another clear indication of your failure to negotiate in good faith. In my correspondence to you I have tried to answer your questions and/or statements as specifi- cally as possible, but you ignore a simple request as to having, negotiations take place at your Reno office, especially since Local 533 has gone to much expense to accomodate the company and Local 265 in meetings held in Oakland (and Sacramento, a half-way point). In addition, there is no' indication of when or where or if your financial records will be available for the Union's perusal in order that monetary items can be ,intelligently negotiated. Furthermore, your declarations of impasse and implementation of yet another contract is another clear indication of your cavalier attitude toward good-faith bargaining. Therefore, if you are really serious in resuming contract negotiations, the following criteria must be met, either wholly or in part, or we will simply await the outcome of an NLRB decision regarding all the -charges filed by' Local 533 or other resources at-the Union's discretion: 1. Restore the contractual agreement in effect October 31, 1983 (as per company-Union agree- ment during negotiations February 7, 1984). 2. Restore and correct the hourly wage of $8.657, now. 3. Repay all back wages. 4. Financial and audit report. 5. Restore bid runs to operate from Reno to San Jose (see Section 9-22 of the agreement). On June 12 Respondent sent the Unions a copy of a letter from the firm preparing its audit, which explained the delay in the completion of the audit for 1983 and stated that it was anticipated that the audit would be available no later than June 30. D. Conclusions 1. The separate negotiations with Local 265 and Local 533 and the resulting reduction in wages It is well established that the existence of a collective- bargaining agreement, raises an irrebutable presumption of a collective-bargaining representative's majority status during the life of the contract. Shamrock Dairy, Inc., 119 NLRB 998 (1957), and 124 NLRB 494 (1959), enfd. 280 F.2d 665 (D.C. Cir. 1960), cert. denied 364 U.S. 892 (1960); Pioneer Inn and Pioneer Inn Casino, 228 NLRB 1263 (1977), enfd. 578 F.2d 835 (9th Cir. 1978); Carmi- chael Construction Co., 258 NLRB 226 (1981), enfd. 728 F.2d 1137 (8th Cir. 1984). Here Local 533 and Local 265 were the certified joint representative of Respondent's drivers in a unit that covered drivers located in the San Francisco Bay Area and the Reno-Lake Tahoe area and were parties to a collective-bargaining agreement with Respondent covering these employees, effective by its terms until October 31. Respondent argues, however, that parties to a joint certification may voluntarily adopt a different mode of negotiations and that Local 533 had temporarily waived the right to bargain on a joint basis by its conduct, which had induced Respondent reason- ably to believe that both Local 533 and Local 265 de- sired separate negotiations. I reject this argument. Any waiver of a representa- tive's right to bargain must be "clear and unmistakable." General Electric Co. v. NLRB, 414 F.2d 918, 923 (4th Cir. 1969). `Here the evidence does not establish such a clear and unmistakable waiver. A Local 265 representative was present at the negotiations regarding the reassign- ment of the bid runs and, in Local 533's letter announc- ing a desire to open the collective-bargaining agreement, there is nothing to indicate an abandonment of joint rep- resentativestatus or a desire to exclude Local 265. Fur- ther, Local 533 later made its position quite clear, in its October 3 mailgram, that it was the joint representative of Respondent's employees along with Local 265 and that any separate meetings between Local 2,65 and Re- spondent would be considered unlawful. In these circum- stances I find that Respondent violated Section 8(a)(5), (2), and (1) of the Act by recognizing Local 265 as the collective-bargaining representative of a portion of the appropriate bargaining unit, negotiating separately with Local 265, and entering into, and implementing, the terms of the resulting separate collective-bargaining agreement with Local 265. As to its November negotiations with Local 533 and the December 1 implementation of its final offer submit- ted during these negotiations, Respondent- argues that it was genuinely seeking to reach an agreement, and that it was Local 533's conduct in refusing to consider request- ed economic concessions and its determination to await the outcome of NLRB proceedings that thwarted at- tempts to reach agreement. Therefore, Respondent con- tends, a genuine impasse was reached that should not be affected by Respondent's conduct in engaging in the prior separate negotiations 'with Local 265. Contrary to Respondent's contentions, I find- that no lawful impasse was reached. Respondent's proposal and its "final offer" CALIFORNIA NEVADA GOLDEN TOURS specifically provides that it applies only to a portion of the appropriate bargaining unit-the drivers located in Nevada-and that all references to Local 265 be deleted from the contract. Despite Local 533s immediate and unwavering rejection of this proposed modification of the certified unit and the representative status of the cer- tified representative, Respondent remained adamantly in- sistent on such modification throughout the negotiations and during the exchange of correspondence immediately thereafter, and it was this position that led to a stalemate in bargaining. Since modification of a Board-certified unit is not a mandatory subject of bargaining, by bargain- ing to impasse thereon Respondent violated Section 8(a)(5) and (1) of the Act. National Fresh Fruit & Vegeta- ble Co., 227 NLRB 2014 (1977). Respondent argues that its conduct in the October ne- gotiations with Local 265 and the November negotia- tions with Local 533 was, at most, technical or de mini- mis violations, which were cured by its subsequent nego- tiations with the joint representative. Further, Respond- ent argues its conduct was not unlawful because- each of the Locals had the power to bind the joint representa- tive. Therefore, Respondent contends a valid impasse was reached and its subsequent implementation of its final offer was lawful. This argument is not convincing because Respondent negotiated with Local 265 and sought to negotiate with Local 533 not as agents of the joint representative but in derogation of the joint repre- sentative status. The disruptive nature of such conduct precludes a conclusion of.a technical or de minimis vio- lation. Rather, in the circumstances herein Respondent's conduct is indicative of bad-faith bargaining. Case law is clear that a valid bargaining impasse cannot exist in the context of bad-faith bargaining. NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343 (9th Cir. 1978); Taft Broadcast- ing Co., 163 NLRB 475 (1967); United Contractors Inc., 244 NLRB 72 (1979). In view of the above, I conclude that no valid impasse was reached. Accordingly, in the absence of a valid impasse, I find that Respondent violat- ed Section 8(a)(5) and (1) of the Act by unilaterally im- plementing its "final" offer on December 1. NLRB v. Katz, 369 U.S. 736 (1962); Taft Broadcasting Co., 163 NLRB 475 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1969). 2. The joint representative's February request for information concerning Respondent's financial status and the April 1 implementation of Respondent's "final/final" offer It is well established that if an employer asserts finan- cial inability to meet a union's economic demands, upon request of the union the employer is obligated to furnish the union information to document whether it can or cannot afford to meet the union's demands. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Teleprompter Corp., 227 NLRB 705 (1977), enfd. 570 F.2d 4, 8 (1st Cir. 1977). Here it is undisputed that Respondent claimed inability to pay the contractual wage rate and relied thereon as justification for its 'proposals for' reduced wages and other benefits. It is also undisputed that the Unions re- quested documentation of this claimed inability to pay, and that such information was not furnished for several months. 67 Respondent argues that it did not unlawfully refuse to furnish financial information. Rather it agreed to, and did, furnish the audit report on its receipt from the audi- tor. Therefore, Respondent argues, the fact that the preparation of the audit report was delayed does not constitute a violation. Respondent further contends that since Local 533 had reviewed audit reports from earlier years in the possession of Local 265, it knew that the audit reports were on a consolidated basis and would not be sufficient to enable the Unions to evaluate the legiti- macy of Respondent's claims. In these circumstances, Respondent contends, the request for the audit reports was being used by Local 533 as a pretext to delay bona fide negotiation and the pretextual nature thereof is con- firmed by the Unions' failure to request to review the documents on which Curtis based his oral presentation concerning the Company's cash flow position and its fail- ure to accept Perry's offer to, permit a union representa- tive on Respondent's -board of directors where he would have access to all of the Company's financial matters. Whatever might be the validity of this argument if it were factually supported by the record, I find the argu- ment unconvincing in the context herein. According to Tarson's undenied testimony, which I credit, on Febru- ary 7 Greeley stated the Unions' position that negotia- tions on monetary items would have to be delayed until the Unions had some sort of official report as to Re- spondent's financial position. Greeley said the Unions wanted to see some sort of records to prove that the Company needed the financial relief it was requesting. It was Respondent's representative that offered the audit report in response to this request. As to the earlier audit reports, Tarson said there was some discrepancy as to a 1981 figure between the report for 1980-1981 and the report for 1981-1982 and, accordingly, the Unions needed additional information as to the Company's finan- cial status. Perry's response was that Respondent would provide an audit report and Curtis began giving them oral information as to Respondent's financial status. Tarson again stated that before,the Unions could get into negotiations concerning wages they needed further re- ports to substantiate Respondent's position. Curtis' re- sponse was that the Unions would get the audit report as soon as Respondent received it. Contrary to Respondent's urging, I find that the Unions' request for financial information was sufficient to reasonably convey to Respondent that the Unions were requesting any financial information that would indicate the accuracy of Respondent's claimed inability to pay. It was the Respondent, not the Unions, that defined this documentation in terms of audit reports. The nature of any substantiating documents was peculiarly within the knowledge of Respondent and Respondent had an obli- gation to furnish such substantiating information as would allow the Unions to evaluate Respondent's claim of inability to pay. As stated by the Supreme Court in Truitt, supra, "[G]ood faith bargaining necessarily re- quires that claims made by either bargainer should be honest claims. [If an asserted inability to pay] is impor- tant enough to present in the give and take of bargaining, 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it is important enough to require some sort of proof of its accuracy." Here it could not reasonably be expected that the Unions would be able to evaluate the accuracy of Re- spondent's claim without some substantiating documents. In these circumstances I find that Respondent had an ob- ligation to furnish the Unions with such documents. I further find that when Respondent offered to furnish audit reports in response to the Unions' request for docu- mentation, it knew that the audit report would be insuffi- cient to allow the Unions to evaluate Respondent's finan- cial circumstance and that it had in its possession docu- ments more likely to meet the Unions' requirement in that they related to Respondent's cash flow and debt problems. Nevertheless, relevant documents and records 'were not made available to the joint representative for more than 2 months. There is no evidence of justification for this delay as to information other than the audit re- ports in the process of preparation. Accordingly, I con- clude that the delay in furnishing information other than the audit reports was unreasonable and contributed to the stalemate in negotiations that Respondent was so quick to characterize as an impasse . In the circumstances I find that Respondent violated Section 8(a)(5) and (1) of the Act by its refusal for a ,period of time to furnish the Unions with financial Information to substantiate its claimed inability to pay. International Credit Service, 240 NLRB 715 (1979). In view of Respondent's unlawful refusal to furnish such information, I further find that no bona fide impasse was reached as to wages. Accordingly, I find that by unilaterally implementing the wage provisions of its "final/final offer" Respondent violated Section 8(a)(5) and (1) of the Act. Palomar Corp., 192 NLRB 592 (1971). menting a collective-bargaining agreement on October 21, 1983, with Local 265 covering the rates- of pay, wages, hours of employment, and other terms and condi- tions of employment of the San Francisco employees, Respondent has 'engaged in unfair labor practices within the meaning of Section 8(a)(5), (2), and (1) of the Act. 5. By its insistence, on November 8, 1983, that Local 533 accept its "final offer" that demanded that Local' 533 enter into a separate collective-bargaining agreement with it excluding all references to Local 265 and to the unit employees based in San Francisco; by bargaining to impasse over the nonmandatory subject; and by imple- menting-on December 1, 1983, the terms and conditions of the "final offer," Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. - 6. By implementing the terms and conditions of its "final/final offer" on April 1, 1984, at a time when no valid, good-faith impasse had been reached in its collec- tive bargaining with joint representatives Local 265 and Local 533, Respondent' has violated Section 8(a)(5) and (1) of the Act. 7. By failing and refusing from February 7, 1984, until May 9, 1984, to furnish the joint representative's request- ed information as to Respondent's financial status, which information is necessary and relevant to the performance of the joint representative's functions as collective-bar- gaining representative of the employees in the appropri- ate unit, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(5)_and (1) of the Act. 8. The above-described unfair labor practices are unfair labor practices affecting commerce within `the meaning of Section 2(6) and (7) of the Act. - - CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce or a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2: Local 533 and Local 265 are labor organizations within the meaning of Section 2(5) of the Act. 3. At all material times, Local 533 and Local 265 have been the certified joint exclusive representative of the Respondent's employees within the meaning of Section 9(a) of the Act in the following appropriate unit: All motor coach operators and motor truck opera- tors employed by Respondent-Employer at its Reno, Nevada, South Shore Lake Tahoe, Califor- nia, and San Francisco, California facilities; exclud- ing school bus drivers, all other employees, guards, and supervisors as defined in the Act. 4. By withdrawing recognition from, and refusing to bargain with, Local 265 and Local 533 from October 21, 1983, until January 18, 1984, as the joint exclusive collec- tive-bargaining representative of the employees in the unit described above; by granting recognition to Local 265 as the exclusive collective-bargaining representative of the employees in the appropriate unit based in the San Francisco Bay Area; and by entering into, and imple- REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be . recommended that Re- spondent cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act. Since it has been found that Respondent unlawfully withdrew recognition from Local 265 and Local 533 as the joint representative of its employees in the certified unit, I shall recommend that Respondent recognize and bargain, on request, with the joint representative as the exclusive bargaining representative of the employees in the unit. Having also found that Respondent unlawfully implemented the terms and conditions of its separate agreement with Local 265 on November 1, 1983, its "final offer" to Local 533 on December 1, 1983 and its "final/final offer" to the joint representative on April 1, 1984, I shall also recommend that Respondent rescind the terms and conditions of employment unilaterally im- plemented on November 1, 1983, December 1, 1983, and April 1, 1984, and restore the wages and other terms and conditions of employment established by its collective- bargaining agreement with the joint representative, which expired on October 31, 1983, until such time as it negotiates in good faith to a new agreement or to a valid impasse. It is further recommended that Respondent CALIFORNIA NEVADA GOLDEN TOURS make the employees in the certified unit whole for, any loss of wages or benefits incurred as a result of the uni- lateral changes implemented by Respondent, to be com- puted in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in Olympic Medical Corp., 250 NLRB 146 (1980) and Florida Steel Corp., 231 NLRB 651 (1977). Any trust fund reimburse- ments are to be made in accordance with Merryweather Optical Co., 240 NLRB 1213 (1979). Finally, as Respond- ent's unfair labor practices were of a nature that has the effect of totally disrupting the bargaining process and de- priving employees of fundamental rights guaranteed by the Act, I find the Respondent's conduct to be "egre- gious" within the meaning of Hickmott Foods, Inc., 242 NLRB 1357 (1979). Accordingly, it is recommended that Respondent be ordered to cease and desist from any other interference with employee rights. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER Respondent, Grey Line Scenic Tours, Inc. d/b/a Cali- fornia Nevada Golden Tours, Oakland , California, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize Teamsters, Chauffeurs, War- ehousemen and Helpers Union Local 533, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Chauffeurs Union Local 265, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , as the exclusive joint collective-bargaining representative of its employees in the appropriate unit described below. (b) Bargaining to impasse over nonmandatory subjects of bargaining. (c) Giving effect to its October collective-bargaining agreement with Local 265 covering unit employees based in the San Francisco Bay Area. (d) Unilaterally changing wages and other terms and conditions of employment of its employees in the appro- priate unit described below without giving notice to the joint representative and providing them with an opportu- nity to bargain or at a time when no valid, good-faith impasse has been reached in collective bargaining. (e) Failing and refusing to furnish , without unreason- able delay, to the joint representative requested informa- tion necessary and relevant to the performance of the joint representative's functions as collective-bargaining representative of the employees in the appropriate unit. (f) In any other manner interfering with , restraining, or coercing its employees in' the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 7 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 69 (a) Recognize the above-named Unions as the joint ex- clusive collective-bargaining representative of its em- ployees in the appropriate unit described below and, on request, meet and bargain with the aforesaid Unions con- cerning wages, hours, and other terms and conditions of employment; and, if an understanding is reached, embody it in a signed document. The appropriate unit is: All motor coach operators and motor truck opera- tors employed by Respondent-Employer at its Reno, Nevada, South Shore Lake Tahoe, Califor- nia, and San Francisco, California facilities; exclud- ing school bus drivers, all other drivers, guards, and supervisors as defined in the Act. (b) Cease giving effect to the collective-bargaining agreement it entered into with Local 265 on October 21, 1983, rescind the terms and conditions of employment unilaterally implemented on November 1, 1983, Decem- ber 1, 1983, and April 1, 1984, and restore the wages and other terms and conditions of employment established by its collective-bargaining agreement with the joint repre- sentatives, which expired on October 31, 1983, until such time as it negotiates in good faith to a new agreement or to a valid impasse. (c) Make the employees in the appropriate unit de- scribed above whole for any loss of wages or benefits in- curred as a result of the unilateral changes implemented by Respondent in the manner set forth in the remedy section herein. (d) Preserve and, on 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 nec- essary to' analyze the amount of backpay due under the terms of this Order. (e) Post at its facilities in the San Francisco Bay Area and the Reno, Nevada area copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent 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 be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. R 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 Nation- al 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 " 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to recognize and bargain with Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 533, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, and Chauffeurs Union Local 265, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, as the exclusive joint collective- bargaining representative of its employees in the appro- priate unit described below. WE WILL NOT bargain to impasse over nonmandatory subjects of bargaining. WE WILL NOT give effect to our October 1983 collec- tive-bargaining agreement with Local 265 covering unit employees based in the San Francisco Bay Area. WE WILL NOT unilaterally change wages and other terms and conditions of employment of our employees in the appropriate unit described below without giving notice to the joint representative and providing them with an opportunity to bargain, or at a time when no valid, good-faith impasse has been reached in collective bargaining. WE WILL NOT fail and refuse to furnish, without un- reasonable delay, to the joint representative requested in- formation necessary and relevant to the performance of the joint representative's functions as collective-bargain- ing representative of the employees in the appropriate unit. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL recognize the above-named Unions as the joint exclusive collective-bargaining representative of our employees in the appropriate unit described below and, upon request, meet and bargain -with the aforesaid Unions concerning wages, hours, and other terms and conditions of employment; and, if an understanding is reached, embody it in a signed document . The appropri- ate unit is: All motor coach operators and motor truck opera- tors employed by Respondent-Employer at its Reno, Nevada, South Shore Lake Tahoe, Califor- nia, and San Francisco, California facilities; exclud- ing school bus drivers, all other drivers , guards, and supervisors as defined in the Act. WE WILL cease giving effect to the collective-bargain- ing agreement we entered into with Local 265 on Octo- ber 21, 1983 , rescind the terms and conditions of employ- ment unilaterally implemented on November 1, 1983, December 1, 1983 , and April 1 , 1984, and restore the wages and other terms and conditions of employment es- tablished by our collective-bargaininig agreement with the above-named joint representative, which expired on October 31 , 1983, until such time as we negotiate in good faith to a new agreement or to a valid impasse. WE WILL make the employees , in the appropriate unit described above whole for any loss of wages or benefits incurred as a result of the unilateral changes implement- ed by us. GREY LINE SCENIC TOURS, INC. D/B/A CALIFORNIA NEVADA GOLDEN TOURS