La Porte Transit Co., Inc.

132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD La Porte Transit Co., Inc. and General Teamsters, Chauffeurs, and Helpers Union Local No. 298 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 25-CA-15831 30 September 1987 DECISION AND ORDER 4 BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 10 April 1984 Administrative Law Judge Robert A. Giannasi issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order.' The judge found that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing changes during the term of a collective-bargaining agreement with respect to provisions covering holi- day pay, overtime pay, sick leave, and health and welfare benefit payments. The judge found that under the terms of a contractual "emergency re- opening" provision negotiated by the parties, the Union was only obligated to "discuss" changes proposed by the Respondent and the Respondent did not have the right to make unilateral modifica- tions in the contract without the Union's consent. The judge also found in this regard that under Sec- tion 8(d) of the Act an impasse in negotiations is irrelevant when a party seeks unilaterally to change an existing agreement. The Respondent contends that the reopener provision created an ob- ligation to bargain midterm and that unilateral changes lawfully could be implemented after a good-faith bargaining impasse was reached. For the reasons set forth below, we agree with the judge that the Respondent violated Section 8(a)(5) and (1) by implementing midterm unilateral changes. Even assuming, arguendo, that the terms of the parties' reopener provision would privilege post-impasse unilateral changes, the record shows i The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties that the Respondent did not bargain to a good-faith impasse prior to its implementation of changes.2 The Respondent and the Union were parties to a collective-bargaining agreement effective by its terms from 1 April 1982 to 31 March 1985. This agreement contained a reopener provision permit- ting either party to reopen the agreement midterm and request renegotiation as follows: ARTICLE 27 EMERGENCY REOPENING In the event of war, declaration of emergen- cy, imposition of mandatory economic con- trols, the adoption of a National Health Pro- gram or any Congressional or Federal agency action which has a significantly adverse effect on the financial structure of the trucking in- dustry, during the life of this Agreement, either party may reopen the same upon sixty (60) days prior written notice and request re- negotiation of the provisions of this Agree- ment directly affected by such action. Upon the failure of the parties to agree in such negotiations within the subsequent sixty (60) day period, thereafter either party shall be permitted all lawful economic recourse to sup- port its request f9r revisions. If Governmental approval of revisions should become neces- sary, all parties will cooperate to the utmost to attain such approval. The parties agree that the notice provided herein shall be accepted by all parties as compliance with the notice re- quirements of applicable law, so as to permit economic action at the expiration thereof. The provisions of this Article may, by mutual agreement, be invoked subsequent to April 1, 1984 if the parties agree that the finan- cial status of the industry has either substan- tially increased or decreased compared to the date of the ratification of this Agreement. In February 19833 the Respondent initiated re- opening of the agreement for the purpose of modi- fying the contractual holiday, sick leave, and health and welfare benefit provisions. The Re- spondent sought relief from the economic obliga- tions of the agreement because of the effects of the 1980 Motor Carriers Act, which substantially de- regulated the interstate trucking industry and in- 2 Thus, for purposes of deciding this case, we find it unnecessary to decide, as a general proposition, whether the terms of the parties' reopen- er provision would permit unilateral changes if a good-faith impasse had been reached In accordance with the view expressed in Kelly-Goodwin Hardwood Co, 269 NLRB 33, 38 fn 25 (1984), Chairman Dotson would permit midterm unilateral changes under a contractual wage reopener provision when a genuine impasse in bargaining has been reached 3 All dates hereafter are in 1983 unless indicated otherwise 286 NLRB No. 10 LA PORTE TRANSIT CO 133 creased business competition. In March the Re- spondent proposed modification of the agreement's overtime provisions. As set forth more fully by the judge, the parties met and discussed the Respondent's proposed modifications in February, March, and April. In April, when negotiations were still ongoing, the Respondent unilaterally implemented changes in the agreement's holiday, sick leave, and health and welfare cost-of-living benefit provisions. The Re- spondent implemented these changes without noti- fying the Federal and state mediation service of the existence of a dispute. By letters to the Respondent on 5 July and 1 August, the Union reiterated its previously stated bargaining position that the Union could only con- sider modification of the agreement if the Respond- ent was in current compliance with the agreement. In its 5 July letter the Union noted that the Re- spondent had made changes unilaterally and that in May the Union had objected to such changes. On 11 August the Respondent notified the Union that it would implement changes in the agreement's overtime provisions. This change was made unilat- erally about 2 October. The Respondent contends that a valid bargaining impasse was reached on 11 August. We disagree. As noted, the Respondent had made a number of unilateral changes in April. It did not officially inform the Union of the implementation of those changes until 11 August. Notwithstanding this lack of official notice, the Union, throughout the negoti- ations, had continued to protest these changes, which were implemented when no impasse even arguably had been reached. There was, thus, clear- ly no valid impasse on 11 August regarding those changes first instituted in April. Further, we also find that a genuine good-faith impasse had not been reached prior to the Respondent's unilateral change in the contractual overtime provision effective 2 October. The overtime provision implemented by the Re- spondent on 2 October was first proposed early in the negotiations in March. That proposal was part and parcel of the Respondent's overall package for relief from the economic pro visions of the agree- ment. The bulk of the Respondent's economic pro- posal was, as noted, unilaterally implemented in violation of the Act in April. After those unlawful changes were implemented, the Union notified the Respondent that it could not consider the Respond- ent's request for economic relief unless the Re- spondent was in full compliance with the agree- ment. The only bargaining session held subsequent to April, and before the change in overtime was announced, was a meeting on 11 July where little progress was made. After the Union again reiterat- ed its position that the Respondent must maintain compliance with the agreement, the Respondent announced, after a bargaining session on 11 August, that the change in overtime would be im- plemented. In these circumstances, it is clear that the degree of meaningful bargaining necessary to establish a genuine good-faith bargaining impasse did not occur with respect to the Respondent's proposed change in overtime. Indeed, it appears that the Re- spondent simply completed in October the imple- mentation of the remainder of its overall economic package that it initially implemented unlawfully in April. Thus, there can be no doubt that the bar- gaining process was seriously hindered by the un- lawful unilateral changes in April. In this context, we discern no logical basis to find that the parties reached a genuine bargaining impasse regarding any matter in the few bargaining sessions held be- tween the April unilateral changes and the October unilateral change in overtime. Accordingly, we find that the Respondent's uni- lateral changes, including the October change in overtime, violated the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, La Porte Transit Co., Inc., La Porte, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Robert E. Hayes, Esq., for the General Counsel. Alki E. Scopelitis, Esq., and James H. Hanson, Esq. (Sco- pelitis & Garvin), of Indianapolis, Indiana, for the Re- spondent. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge. This case was tried in LaPorte , Indiana, on December 15, 1983. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by making the follow- ing unilateral changes in an existing collective-bargaining agreement with the Charging Party Union: (1) eliminat- ing Washington's birthday and employee birthdays as holidays; (2) failing to pay cost-of-living increases due to the applicable health and welfare fund ; (3) eliminating sick pay applicable under the collective-bargaining agree- ment; and (4) eliminating contractually required overtime provisions. Respondent filed an answer admitting that it was party to a collective-bargaining agreement with the Charging Party Union but denying the substantive alle- gations of the complaint. The General Counsel and the 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent have filed briefs that I have read and consid- ered. Based on the entire record, including the testimony of the witnesses and my observation of their demeanor, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Indiana corporation with its principal office and place of business in LaPorte, Indiana, is en- gaged in the business of transporting freight and per- forming related services. During a representative 1-year period, Respondent, in the course and conduct of its op- erations, generated gross revenues in excess of $500,000 of which in excess of $50,000 was derived from the transportation of freight and commodities from the State of Indiana directly to points outside that State. Accord- ingly, I find, as Respondent admits, that it is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The Charging Party Union (the Union) is a labor orga- nization within the meaning of Section 2(5) of the Act. The Union is and, at all material times, has been, the ex- clusive bargaining representative of Respondent's em- ployees in the following appropriate unit: All drivers and all dockworkers of [Respondent] at its LaPorte, Indiana facility exclusive of all office clerical employees, all professional employees, and all guards and supervisors as defined in the Act. Respondent has recognized the Union as the exclusive bargaining representative of its employees since at least April 1, 1979. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Respondent and the Union have had a bargaining relationship for over 20 years. Although Respondent has, in the past, signed, adopted, or abided by the Teamsters National Master Freight Agreement, it is not party to any multiemployer group and has always bargained di- rectly with the Union. In 1979 and again in 1982, Re- spondent negotiated with the Union and entered into supplemental agreements which incorporated national agreements and area supplements, but also set forth pro- visions governing the specific operations of Respondent. The most recent supplemental agreement, which runs from April 1, 1982, to March 31, 1985, provides that it "is supplemental to and becomes part of the National Master Freight Agreement . . . including any Central State Area supplemental agreements . . . and shall pre- vail over the specific terms of those Agreements to extent, if any, any conflict exists and/or the subject matter is covered by the terms of this Supplemental Agreement." It is undisputed that at some point after the parties signed their 1982 agreement, Respondent and other inter- state motor carriers across the country felt that the impact of the 1980 Motor Carrier Act, which substantial- ly reduced the regulation of interstate motor carriers by the Interstate Commerce Commission and placed them in an adverse competitive position. That legislation fostered lower cost competition for unionized carriers. As Re- spondent's vice president, Louis Carque, testified: The industry has over-capacity. We have competi- tion coming out our ears, let's say, that we don't know about from one day to the next. Primarily non-union, although a lot of the union carriers have expanded their operations also. According to Carque, Respondent felt that contractual pay increases scheduled to go into effect on April 1, 1983, were going to cause "a problem." In addition, Re- spondent felt that its motor vehicle equipment needed re- placement. As a result of these "problems," Carque called a meet- ing with union representatives for February 3, 1983. The meeting was held at the Holiday Inn in LaPorte. Carque and Director of Personnel and Safety Donald Longan- ecker represented Respondent; Business Agent Ken Buhle and President Joseph Caradonna represented the Union. At this point the parties were aware that, at the national level, the Teamsters Union and motor carrier signatories to the national master freight agreement were considering relief from negotiated wage and benefit in- creases scheduled for April 1983.1 Respondent was inter- ested in negotiating relief for its particular situation. In Carque's words "we were looking for relief beyond the COLA increase [in the National Master Freight Agree- ment]." The union representatives replied that any relief from the provisions of the applicable agreements would have to be approved by the joint area committee of the Teamsters International union.2 On February 11, 1983, Respondent wrote the Union a letter stating as follows: It appears at this time there will be no relief forth- coming from the International in regards to COLA increases or other contract relief. Apparently indi- vidual carriers and Local unions are to negotiate whatever relief will be forthcoming. Consequently, we are herewith submitting the attached Proposal for relief from indicated Articles of our Supplemen- tal Agreement. The proposal sought the amendment of the La Porte supplemental agreement in three respects: ( 1) In article 12, eliminate George Washington's birthday and the em- ployees' birthdays as paid holidays; (2) in article 19, eliminate cost-of-living increases scheduled for April 1, 1983; and (3) in article 20, waive sick leave provisions for the contract year 1983.3 ' Although the president of the International Union recommended relief on a nationwide basis, the membership rejected the recommenda- tion and no relief was negotiated 2 The joint area committee is made up of employer and union repre- sentatives who administer the national contract on a regional basis as pro- vided in the national master freight agreement The contract year commences on April I LA PORTE TRANSIT CO. On March 18 , 1983, the parties met at the Union's hall in Michigan City, Indiana. At this meeting, Carque sub- mitted a revised proposal to the Union . It contained the suggested changes in articles 12, 19, and 20 that had been proposed by the Company in its February 11 letter as well as the following two additional amendments: (1) in article 14, change the manner in which health and wel- fare benefits are provided; and (2) in article 18, change the method by which overtime is computed. According to the testimony of Carque, Respondent's representatives provided reasons concerning why relief was needed. Union representatives again tool. the position that the joint area committee would have to approve such changes and they also speculated that Respondent's em- ployees would probably reject the suggested changes. Union representatives also asked that Respondent wait until the the Joint Area Committee met on the issue of granting areawide relief.4 Buhle testified that "there was never any discussions on reopening of the contract. The company was seeking what they consider a rider or relief from certain provisions of the contract. And it was discussed in a general way." The parties met again on April 7 , 1983. As a result of discussion at this meeting, Respondent revised its propos- al to eliminate any change in the administration of health and welfare benefits .5 Union representatives stated that elimination of this proposal would make it easier to obtain approval from the Joint Area Committee for the remaining proposals . Union Representative Buhle stated, according to the testimony of Carque , that "he didn't really feel that anything in [the remaining proposals] was so grossly unreasonable." Buhle also said that he would have to check with Caradonna, but that, if he approved, the matter would be taken "to the membership." Buhle testified that he advised the Respondent 's officials that he did not believe that relief was going to be given "on a joint area committee basis, unless it was going to be given to the industry as a whole." Buhle further indicat- ed that "in order to even bring a relief request before the joint area committee, that meets quarterly in Chicago, that the contract had to be paid in full at the time, or relief wouldn't even be considered ." This meant, accord- ing to Buhle, that relief would not be considered unless the Respondent was complying with the contract. Buhle also notified Respondent 's representative that the next joint area committee meeting would be held in June 1983. Buhle also testified that it was understood both by him and Respondent's representatives that the Union would take the Respondent's proposals for relief to the approxi- mately 60 or 70 La Porte employees and, if they voted to accept the proposals, he would then submit the matter to the joint area committee at its June 1983 meeting. Ac- cording to Loganecker, on April 12, Buhle called Logan- ecker and informed him "that Mr. Caradonna had agreed to take our proposal to the membership, and would do so in two to three weeks, so that it would be in prepara- 4 A meeting was apparently scheduled for the last week of March 5 Respondent subsequently , on April 11 , placed this proposal in wnt- ing Each suggested change was accompanied by a detailed explanation of the necessity for the modification The proposal was hand delivered to Buhle 135 tion for the June meeting of the [Joint Area Commit- tee]." Such an election was apparently never held be- cause, according to Buhle , the Union found out that Re- spondent had unilaterally implemented some of its pro- posals about April 1 , 1983, and thus was not in compli- ance with the contract. On May 9, 1983, the Union filed a grievance under the applicable agreement alleging that the Respondent had violated articles 12 and 20 of the supplemental agreement because it "has unilaterally decided not to pay the em- ployee's birthday, the Washington Birthday Holiday, as well as sick days." The grievance proceeded through the various steps of the grievance procedures of the agree- ment and was rejected by Respondent. The last notation on the grievance was dated August 22 , 1983, and stated that Respondent "refuses to advance to next step of grievance procedure." On June 23, 1983, Respondent sent the following letter to the Union: On April 7, 1983, we had a negotiating meeting with you in our office . At that time we submitted an amended proposal to you . This proposal super- ceded our previous proposal , which was submitted to you at our negotiating meeting of March 18, 1983. On April 11, 1983, our Mr . Longanecker per- sonally delivered to your office a proposal which amended the one submitted on April 7 . This April 11th proposal, as you will recall, eliminated our pre- vious proposal regarding Article 14 of the Supple- mental Agreement and changed the wording of our proposal regarding Article 20 . Attached to the pro- posal was our justification statement , which you re- quested in our meeting of April 7th to support our proposal. The changes covered by our proposal are all con- cessionary to the company . They cover provisions to be changed in our present Supplement Agree- ment. You have now had our final proposal since April 11th. It was our understanding that the employees would vote on this proposal. Nothing has happened. No vote has been taken. If there is some need for further negotiations, the company is ready and will- ing to meet. Please contact us to arrange such a meeting as soon as possible. On July 5 , 1983, the Union responded as follows: The Union's position on your company's request for relief has not changed . When you submitted your finalized request for relief on April 11, 1983 I told you we would take it to the membership in early June prior to the Joint Area Committee meet- ings in Chicago, and that if the membership ap- proved the relief it would still be subject to approv- al by the J.A.C. In early May the Union found out the company had unilaterally put it 's relief into effect without the approval of the membership or the J.A.C. A grievance dated May 9 , 1983 was filed on this action and to this date no response has been received from your company . The Union cannot 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD consider a request for relief unless the contract is being paid in full. The Union is willing to meet with the company at anytime to discuss both the griev- ance and the company's request for relief. Respondent apparently also failed to make contractual- ly required health and welfare payments because there is in evidence a delinquency letter dated July 29, 1983, from the trust fund administering the program to Re- spondent, indicating that as of that date Respondent's ac- count was $9691.28 in arrears. The parties met on July 11 with no agreement. On August 1, the Union restated its position in a letter to Respondent as follows: The Union's position that it will not consider relief requests unless the Contract is being fully complied with remains unchanged. There is an indication that the International is considering some across-the- board relief on the National Master Freight Agree- ment, but what form this relief will take will not be known until after a meeting scheduled for August 15th in Chicago. On August 11 the parties met again with no agree- ment. On that day, Respondent wrote to the Union as follows: On April 11, 1983, we submitted the attached Proposal to Teamsters Local 298 with the under- standing that our employees would be allowed to vote on it. It appears to me that our attempt to negotiate this proposal has resulted in an impasse. As a result, we the company are now compelled to implement this Proposal. The implementation will have the fol- lowing effective dates: Article 12 April 1, 1983 Article 18 August 28, 1983 Article 19 April 1, 1983 Article 20 April 1, 1983 This was the first official notice of the actual implemen- tation of changes that the Union had received from Re- spondent. On August 24, Respondent wrote to the Union as fol- lows: On August 11, 1983, I advised you that we would implement our proposal covering changes in Article 18 effective August 28, 1983. Upon advice of council [sic], the effective date is changed to October 2, 1983. On September 1, 1983, Respondent wrote identical let- ters to Indiana and Federal Mediation and Conciliation officials stating as follows: We have had several negotiation sessions with General Teamsters, Chauffeurs and Helpers Union Local 298 of Michigan City, Indiana, for the pur- pose of obtaining relief. We concluded our negotia- tions and submitted our final proposal to the Union on April 11, 1983. This letter is to advise your Department of this impasse in negotiations and of our intent to imple- ment our Proposals with the pay period starting Oc- tober 2, 1983. It is undisputed that after April 1, 1983, Respondent, without consent of the Union, implemented its proposals relative to holiday pay, health and welfare cost-of-living increases, and sick pay and that, after October 2, 1983, it implemented its proposal on contractual overtime. B. Discussion and Analysis It is undisputed that Respondent implemented changes in an existing collective-bargaining agreement without the Union's consent. Such conduct is violative of Section 8(a)(5) and ( 1) of the Act because Section 8 (d), which defines the duty to bargain, prohibits such changes. In pertinent part, Section 8(d) provides that "no party to [an existing collective-bargaining agreement] shall termi- nate or modify such contract" unless certain notice pro- visions and other conditions are met. Section 8 (d) contin- ues, "and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modifica- tion of the terms and conditions contained in a contract for a fixed period, if such modification is to become ef- fective before such terms and conditions can be reopened under the provisions of the contract" (emphasis added). In this case, the Union did not agree to Respondent's proposed modifications. In these circumstances, the Board and the Courts have clearly and consistently found an employer's midterm modification of a fixed term contract to be unlawful . See Oak Cliff-Golman Baking Co., 207 NLRB 1063, 1064 (1973), enfd. 505 F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975); C & S Industries, 158 NLRB 454, 457-458 (1966); We-Care Trading Co., 265 NLRB No. 56, slip op. at 7 (1982) (un- published).6 This is true even though continued compli- ance with the contract will cause the employer financial hardship. See Ross Crane Rental Corp ., 267 NLRB 415 (1983); Oak Cliff-Golman, supra, 207 NLRB at 1064. Respondent alleges that it was justified in unilaterally implementing its proposals to alter the existing agree- ment, notwithstanding the Union's refusal to agree to the alterations, because (1) an impasse existed; (2) the Union "waived its right to bargain" ; and (3) the Union "avoid- ed and delayed bargaining." (Br. 18.) These allegations are patently without merit. First, an impasse in negotiations is irrelevant in a situa- tion when a party seeks unilaterally to change an existing agreement. Respondent had agreed to a contract in April 1982 and less than a year later sought to change specific provisions of that agreement whose terms were to con- tinue through March 1985. Section 8(d) provides that 6 Additionally, in order for a violation to occur, the provisions of the collective-bargaining agreement that are unilaterally modified must con- stitute mandatory subjects of bargaining See Chemical Workers v. Pitts- burgh Plate Glass Co, 404 U S. 157, 187 (1971). There is no dispute that the provisions of the contract that are the subject of the instant case do constitute mandatory subjects LA PORTE TRANSIT CO. this cannot be done without the Union's consent. As the Board stated in a case when, as here, an employer pro- posed midterm contract modifications, the union indicat- ed a willingness to discuss the matter and the employer subsequently declared an impasse and implemented its proposed modifications without the union's consent: The Union's consent was required if manage- ment's proposed modifications were to take effect. When the Union lawfully withheld its assent, a stalemate did obtain. The Trial Examiner correctly found, however, that although an employer may unilaterally institute changes when an impasse occurs during the negotiations for an initial bargain- ing agreement or following the expiration date of an expiring contract, the employer may not do so where, as here, the contract has not yet terminated. Accordingly, the Trial Examiner correctly ruled that Respondent was not free in the manner sought to modify the unexpired agreement over the Union's objections, but was obligated to maintain in effect all preexisting contractual commitments for the contract term. We affirm, therefore, the Trial Examiner's finding that by unilaterally publishing and implementing terms and conditions of employ- ment inconsistent with the extant collective-bargain- ing agreement, Respondent violated Section 8(a)(5) and (1) of the Act. [Standard Oil Co., 174 NLRB 177, 178 (1969)]. Respondent devotes much of its brief to the contention that it complied with all the technical notice require- ments of Section 8(d) and article 27 of the applicable agreement that permits reopening of the contract under certain circumstances. This discussion is not relevant to the question of whether Respondent could unilaterally change the terms of an existing agreement without the Union's consent. Permission to reopen and negotiate in the middle of a contract term is not tantamount to per- mission to make unilateral changes during the term of a contract.7 Section 8(d) specifically prohibits such unilateral changes . Indeed, in the absence of a contractual reopener clause, a party may refuse evert to discuss proposed changes. See C & S Industries, supra, 158 NLRB at 457. However, when midterm bargaining does take place pur- suant to such a clause, compliance with the 8(d) notice requirements simply permits a party to thereafter resort to a strike or lockout. See NLRB v. Lion Oil Co., 352 U.S. 282, 291-292 (1957). Compliance with the notice provisions of Section 8(d) does not confer on a party the right to unilaterally change an existing agreement par- 7 In any event, it is clear that Respondent implemented its proposed modifications well before giving the appropriate notices required by Sec 8(d) 137 ticularly since Section 8(d) specifically prohibits such conduct. Nor does article 27 offer Respondent any greater sup- port for its position than does Section 8(d). Article 27 is indeed a reopener clause that permits either party to "reopen" the agreement on 60 days' written notice if cer- tain conditions obtain. But that is all it is, a reopener clause. Assuming that all the conditions were met in order to reopen the contract, article 27 would simply re- quire the Union to "discuss" changes that, in the absence of such clause, it would not be required to do. However, compliance with these notice provisions and the entry into negotiations that followed, pursuant to article 27, be- tween Respondent and the Union do not give the Re- spondent the right to make unilateral modifications in the contract without the Union's consent. Article 27 simply states, in this respect, that "upon failure of the parties to agree in such negotiations" within the 60-day period, each party "shall be permitted all lawful economic re- course to support its request for revisions." Nothing in article 27 permits Respondent to do anything that is pro- hibited by Section 8(d) unless there was a waiver by the Union. No such waiver was made in this case, as is dis- cussed in greater detail below. Respondent's second contention is that the Union waived "its right to bargain" thus permitting Respondent to unilaterally implement its suggested modifications to the contract. In asserting this argument, Respondent es- sentially misperceives the law. The cases cited by Re- spondent involve changes that do not, as here, constitute midterm modification of provisions in a collective-bar- gaining agreement . They simply address the right of a collective-bargaining representative, guaranteed by Sec- tion 8(d), to be consulted on changes involving "wages, hours, and other terms and conditions of employment" apart from the existence of a collective-bargaining agree- ment covering such matters. See, e.g., NLRB v Katz, 369 U.S. 736 (1962); Merillat Industries, 252 NLRB 784 (1980). That right is essentially distinct from the right in- volved in the instant case, also guaranteed by Section 8(d), that no changes can be effectuated in the provisions of a collective-bargaining agreement during the term of its existence without the consent of the other party. Thus, if Respondent's waiver argument is to be sustained, it must show that the Union waived its right to consent to the contract modifications implemented by Respond- ent. A waiver of rights can be effectuated by either con- tract or conduct. However, in either case, the waiver must be "clear and unmistakable." See, e.g., Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 751 (6th Cir. 1963), cert. denied 376 U.S. 971 (1964); NL Industries, 220 NLRB 41, 43 (1975), enfd. 536 F.2d 786 (8th Cir. 1976), citing Perkins Machine Co., 141 NLRB 98, 102 (1963); Park Ohio Industries, 257 NLRB 413, 414 (1981), enfd. 702 F.2d 624 (6th Cir. 1983). Respondent has not met its burden in this respect. 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I turn first to the contract. As I have previously noted, article 27, under certain circumstances, permits either party to "reopen" the contract on 60 days notice and "request renegotiation" of certain provisions of the agreement.8 The remainder of article 27 clearly contem- plates negotiation and mutual assent of the parties to any changes. Indeed, the article provides that: "Upon failure of the parties to agree in such negotiations [after expira- tion of a subsequent specified notice period] either party shall be permitted all lawful economic recourse to sup- port its request for revisions" (emphasis added). This lan- guage at most allows for a lockout or strike that would not otherwise be permitted. Nothing in the article per- mits unilateral modifications if the parties fail to achieve agreement during renegotiations. Such changes are not mentioned at any point in article 27. Thus, article 27 does not constitute a clear and unmistakable waiver of the Union's right to withhold its consent to proposed changes that Section 8(d) guarantees. Likewise, the Union did not, by its conduct, waive its right to consent to the Respondent's proposed changes. The evidence completely refutes this suggestion. First, it is clear that early on and throughout the negotiations, the Union advised the Respondent that any proposed change in the contract was subject to the approval of both Respondent's employees and the joint area commit- tee. Thus, by way of such representations, the Union not only did not waive its right to consent, but continually advised Respondent that such consent was predicated on the approval of both the Respondent's employees and the joint area committee. In fact, after being informed by the Union that its proposals would probably not be approved by the employees, Respondent on April 7 submitted a re- vised proposal deleting its suggested change in the ad- ministration of health and welfare benefits. Furthermore, when Buhle himself, on April 7, advised Respondent's officials that he did not consider the revised proposals unreasonable, such characterization remained couched in terms of the possibility of their being approved by Union President Caradonna and in turn being submitted to the 8 The entire text of art 27 is as follows ARTICLE 27 EMERGENCY REOPENING In the event of war, declaration of emergency , imposition of man- datory economic controls, the adoption of a National Health Pro- gram or any Congressional or Federal agency action which has a significantly adverse effect on the financial structure of the trucking industry, during the life of this Agreement, either party may reopen the same upon sixty (60) days prior written notice and request re- negotiation of the provisions of this Agreement directly affected by such action. Upon the failure of the parties to agree in such negotiations within the subsequent sixty (60) day period, thereafter either party shall be permitted all lawful economic recourse to support its request for re- visions If Governmental approval of revisions should become neces- sary, all parties will cooperate to the utmost to attain such approval The parties agree that the notice provided herein shall be accepted by all parties as compliance with the notice requirements of applica- ble law, so as to permit economic action at the expiration thereof The provisions of this Article may, by mutual agreement, be in- voked subsequent to April 1, 1984 if the parties agree that the finan- cial status of the industry has either substantially increased or de- creased compared to the date of the ratification of this Agreement employees for their approval. Second, also on April 7, Buhle informed Respondent's officials that the joint area committee would not even consider Respondent's re- quest for relief unless Respondent remained in compli- ance with the collective-bargaining agreement. Thus, at this juncture, the Union asserted yet another condition for its consenting to the Respondent's proposed changes in the contract. Indeed, on subsequently learning that Respondent was not in compliance with the collective- bargaining agreement and had unilaterally implemented its proposed changes, the Union advised the Respondent that, under such circumstances, it could not even consid- er Respondent's request for relief. Thereafter, the Union consistently set forth its position that it did not and would not consent to the modifica- tions. The Union's grievance over the unilateral changes on May 9, when it first learned of them, and the ex- change of letters between the parties thereafter, makes it clear beyond any doubt that the Union never waived its right to consent to a modification of the agreement. Respondent's final contention is that it could imple- ment its proposed changes because the Union avoided and delayed bargaining. This contention also misses the mark because the Union had no obligation to agree to any of Respondent's proposed modifications and in the absence of such agreement Section 8(d) prohibits any such changes from being implemented unilaterally during the term of the agreement. In support of its argument, Respondent has cited cases involving unilateral changes of terms and conditions of employment by an employer, but none deal with such unilateral changes that also con- stitute midterm modifications of a valid and existing col- lective-bargaining agreement. CONCLUSIONS OF LAW 1. All drivers and all dock workers of Respondent at its La Porte, Indiana facility, exclusive of all office cleri- cal employees, all professional employees, and all guards and supervisors as defined in the Act constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times material, the Union has been the exclu- sive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By unilaterally implementing changes in the collec- tive-bargaining agreement with respect to holiday pay, overtime pay, sick leave, and benefit payments, without the consent of the Union, Respondent has violated Sec- tion 8(a)(5) and (1) and Section 8(d) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent cease and desist therefrom and take certain affirma- tive action designed to effectuate the purposes of the Act including the posting of the attached notice. Having found that Respondent refused to bargain with the Union by unilaterally implementing changes in the LA PORTE TRANSIT CO. 139 collective-bargaining agreement in regard to holiday pay, overtime, sick leave, and payments to the Union's health and welfare funds, I shall recommend that Respondent be ordered to rescind such changes retroactive to April 1, 1983, and to make whole the employees covered in the collective-bargaining agreement for the loss of wages or other benefits for holiday pay, overtime, or sick leave that they may have sustained as a result of Respondent's unlawful conduct. Such payments shall be made with in- terest thereon as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). I shall also recommend that Respond- ent be ordered to make whole the employees covered by the collective-bargaining agreement by paying all health and welfare benefit payments required by the collective- bargaining agreement that have not been paid and would have been paid absent Respondent's unlawful failure to make such payments and by reimbursing employees di- rectly for payments and contributions, if any, which may have been made by them to obtain benefits and coverage that might have been denied them because of Respond- ent's failure to make the contractual payments to the trust funds. See We-Care Trading Co., 265 NLRB No. 56, slip op. 9-10 (1982) (not published in bound volume).9 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edio ORDER The Respondent, La Porte Transit Company, Inc., La Porte, Indiana, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with the Union by unilaterally modifying and refusing to comply with the provisions of its current collective-bargaining agreement with the Union covering the following subjects: (1) holiday pay, (2) overtime pay, (3) sick leave, and (4) health and wel- fare benefit payments. (b) In any like or related manner interfering with, re- straining, or coercing 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. (a) Bargain with the Union by restoring, placing in effect, and complying with the terms and conditions of employment, as provided in the applicable collective-bar- gaining agreement, retroactive to April 1, 1983. (b) Make whole the employees in the unit covered by the collective-bargaining agreement , in the manner set forth in the remedy section of this decision, for any loss of wages for holiday pay, sick leave, and overtime that the employees may have sustained as a result of Re- spondent's unlawful conduct. (c) Make whole the employees in the unit covered by the collective-bargaining agreement, in the manner set forth in the remedy section of this decision, by transmit- ting the contributions owed to the Union's health and welfare funds and by reimbursing employees directly for payments, if any, made by them to compensate for Re- spondent's unlawful failure to make such required contri- butions to the health and welfare funds. (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 La Porte, Indiana facility copies of the attached notice marked "Appendix."" i Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. ii 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 9 Because the provisions of employee benefit fund agreements are van- able and complex , the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments I leave to the compliance stage the question whether Respondent must pay any additional amounts into the benefit funds in order to satisfy the "make-whole" remedy These additional amounts may be determined , depending on the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions , to evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of the funds with- held, additional administrative costs, etc, but not collateral losses Ferro Mechanical Corp, 249 NLRB 669, 671 fn 3 (1980) 10 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with General Team- sters, Chauffeurs and Helpers Union Local No. 298, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America by unilaterally modifying and refusing to comply with the provisions of its current collective-bargaining agreement covering the following subjects: (1) holiday pay, (2) overtime pay, (3) sick leave, and (4) health and welfare benefit payments. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed in Section 7 of the Act. 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL bargain with the above-mentioned Union by restoring, placing in effect, and complying with the terms and conditions of employment, as provided in the collective-bargaining agreement , retroactive to April 1, 1983. WE WILL make whole the employees in the unit cov- ered by the collective-bargaining agreement, for any loss of wages for holiday pay , sick leave, and overtime that the employees may have sustained as a result of our un- lawful conduct. WE WILL make whole the employees in the unit cov- ered by the collective-bargaining agreement , by transmit- ting the contributions owed to the Union's health and welfare funds and reimbursing employees directly for payments, if any, made by them to compensate for our unlawful failure to make required contributions to the health and welfare funds. LA PORTE TRANSIT CO., INC.