Petroleum Maintenance Co.

462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Petroleum Maintenance Company and Oil, Chemical & Atomic Workers International Union, AFL- CIO and its Locals 1-19 and 1-128. Cases 31- CA-13517 and 31-CA-14571 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On June 19, 1985, Administrative Law Judge Jay R. Pollack issued the attached decision . The Re- spondent filed exceptions and a supporting brief. The General Counsel filed cross -exceptions, a sup- porting brief, and an answering brief. The Union filed limited exceptions and a brief in opposition to the Respondent's exceptions. 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, to modify the remedy, " and to adopt the recommended Order as modified. The complaint alleged, inter alia, and the judge found, that the Respondent violated Section 8(a)(5) and (1) of the Act by terminating its collective-bar- gaining agreement and making unilateral changes without having served the written notices required by Section 8(d)(3) of the Act. As set forth in Weathercraft Co. of Topeka, 276 NLRB 452, 453 (1985), enfd. 832 F.2d 1229 (10th Cir. 1987),2 Section 8(d)(3) unequivocally: provides that the duty to bargain includes serving written notice upon the other party to a collective-bargaining agreement of one's desire to terminate or modify it, with notice also to the Federal Mediation and Conciliation Service and the appropriate state agency. As also set forth in Weathercraft, the Board has long held that: [f]ailure of a party desiring to terminate or modify a collective-bargaining agreement to give appropriate notice under Section 8(d)(3) precludes it from altering terms or conditions of the collective-bargaining agreement or en- ' In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). S See also Mar-Len Cabinets, 243 NLRB 523, 534 (1974), enfd. in part 659 F.2d 995, 998 (9th Cir. 1981). gaging in a strike or lockout to enforce its pro- posed changes . This proscription exists not- withstanding that the expiration date of the agreement has past. [Id. at 453. See Meatcutters Local 576 (Kansas City Chip Steak Co.), 140 NLRB 876 (1963); United Marine Local 333 (General Marine Transportation Corp.), 228 NLRB 1107 (1977).] Thus, an initiating party violates Section 8(a)(5) and (1) of the Act by changing the terms and con- ditions of an existing collective-bargaining agree- ment without having given the requisite 8(d)(3) notice to the Federal Mediation and Conciliation Service and the proper state mediation agency. See also United Artists Communications, 274 NLRB 75 (1985).$ Here, the parties' collective-bargaining agree- ment, at article II, section 3, provided that either party had the right to request changes in wage rates, and that if agreement was not reached within 60 days after receipt of written notice of such a re- quest, the agreement would terminate "effective that date." On May 27, 1983, the Respondent sent a letter to the Union, which was received on May 30, 1983, giving 60 days' notice of its desire to re- negotiate the existing wage and overtime rates. At that time, no notice was given to the Federal Medi- ation and Conciliation Service or to the state medi- ation agency. Although the parties held an initial bargaining meeting on July 18, 1983 , no new agree- ment was reached. A second bargaining session did not occur until September 7, 1983 . Thus, the con- tract, by its terms, could have expired 60 days after 0 We are mindful that some courts have held, in varying contexts in- volving their jurisdiction to enforce contracts under Sec. 301, that an ini- tiating party's failure to give timely 8(dX3) notices does not result in an extension of the expired contract See, e .g., Proctor & Gamble Independent Union Y. Proctor & Gamble Mfg, 312 F.2d 181 (2d Cir. 1962), Communi- cations Workers v. Southwestern Bell Telephone Co, 713 F.2d 1118 (5th Cir. 1983). See also Ottley Y. Sheepshead Nursing Home, 688 F.2d 883 (2d Cir 1982). We need not decide whether an initiating party 's failure to give timely 8(d)(3) notices actually "extends" the contract. However, we reaffirm, as set forth in cases like Weathercraft, supra, that an initiating party's failure to comply with Sec. 8(dX3) extends the time during which it has an independent statutory , not contractual, obligation to refrain from altering terms and conditions of employment established by the contract. See also NLRB v. Katz, 369 U S. 736 (1962). Pursuant to the Board's ex- clusive jurisdiction to prevent unfair labor practices under Sec 10, this statutory obligation to refrain from unilateral changes is enforceable through Sec. 8(a)(5) and Sec. 8(b)(3). Indeed, the courts in Proctor di Gamble, supra, 312 F.2d at 190, and Southwestern Bell, supra, 713 F.2d at 1125, both acknowledged the difference between deciding the pure con- tract issue in a Sec . 301 suit and determining whether there is a violation of the statutory duty to bargain in good faith. See also Laborers Fund Y. Advanced Lightweight Concrete Co., 108 S Ct 830 ( 1988). Moreover, to the extent that the court precedent cited above may be read as in conflict with the result reached here, we respectfully adhere to the reasoning set out in Weathercraft, supra, and Mar-Len Cabinets, supra See also the analysis in United Marine Division Local 333, 228 NLRB 1107 (1977), and Carpenters District Council of Denver (Rocky Mountain Pres- tress), 172 NLRB 793 (1968). 290 NLRB No. 60 PETROLEUM MAINTENANCE CO. the Union's receipt of the Respondent's reopening letter. Ultimately, the Respondent delivered a copy of its wage reopener letter to the Federal Mediation and Conciliation Service on November 30, 1983, and it sent a copy of its wage reopener letter to the State Mediation and Conciliation Service on De- cember 12, 1983. Under these circumstances, the Respondent was obligated-by Section 8(a)(5) and (1) of the Act-to continue in full force and effect all the terms and conditions of the contract until January 12, 1984-i.e., 30 days after proper 8(d)(3) notices were given. However, subsequent to July 30, 1983, but prior to January 12, 1984, and as more fully described by the judge, the Respondent made certain unilateral changes in the employees' terms and conditions of employment. Specifically, the judge found, and we agree, that the Respondent violated Section 8(a)(5) and (1) by unilaterally (a) discontinuing the dues- checkoff and union-security provisions of the con- tract, (b) discontinuing the grievance/arbitration provisions of the contract, and (c) discontinuing the payment of trust fund contributions required by the contract. With regard to dues checkoff and union security, the General Counsel and the Charging Party argue, in essence, that these provisions remain in effect to present. They seek a make-whole remedy for the Respondent's failure to withhold and transmit dues. The Respondent contends that these provisions became ineffective on or about July 30, 1983-the date on which the contract, by its terms, could have expired. Thus, the Respondent argues that no make-whole remedy is appropriate. Based on our finding that the Respondent was obligated to maintain the terms and conditions of the contract until January 12, 1984, we conclude that the dues remained effective until that date.4 Thus, a make-whole remedy for authorized dues not deducted up to January 12, 1984, is proper.5 With regard to the Respondent's failure to adhere to the grievance/arbitration provisions, we find that, consistent with the above discussion, the Respondent was obligated to maintain those provi- sions until January 12, 1984. Subsequent to that date, the standards clarified by the Board in Indi- ana & Michigan Electric Co., 284 NLRB 53 (1987), regarding the scope of the postcontract duty to ar- 4 The Board has held that dues-checkoff and union-security provisions do not survive the expiration of a contract. See, e .g., Robbins Door Sash Co., 260 NLRB 659 ( 1982), and Peerless Roofing Co., 247 NLRB 500, 505 (1980). Similarly, here, the Respondent was obligated to main- tain those provisions only until 30 days after it gave the appropriate 8(d)(3) notices. fi Interest on the amounts owed is to be computed in the manner pre- scribed in New Horizons for the Retarded, supra. 463 bitrate are applicable and define the Respondent's obligations with regard to grievance/arbitration. The parties stipulated in relevant part that: "At the September 7, 1983 meeting, [the Respondent] confirmed to the Union its position that the con- tract had expired . . . . [The Respondent] advised the Union that the . . . grievance and arbitration provisions were, therefore, no longer in effect." In subsequent negotiations, the Respondent maintained this position. Accordingly, both before and after January 12, 1984, the Respondent violated Section 8(a)(5) and (1) by refusing to process grievances.6 See also Bethlehem Steel Co., 136 NLRB 1500, 1503 (1962), enfd. in pertinent part 320 F.2d 615 (3d Cir. 1963). Further, the Respondent's failure to maintain the arbitration provision of the contract until Janu- ary 12, 1984, violated Section 8(a)(5) and (1) of the Act. Finally, with regard to the period after Janu- ary 12, 1984, the Respondent's course of conduct demonstrated an across-the-board refusal to arbi- trate hiatus grievances and thus constituted a wholesale repudiation of its postcontractual obliga- tion to arbitrate, thereby violating Section 8(a)(5) and (1) of the Act. Based on the above, we shall order, as a remedy, that the Respondent, on request, process any griev- ances filed both before and after January 12, 1984. Regarding any grievances filed between July 30, 1983, and January 12, 1984, the Respondent will be ordered to arbitrate them, on request. However, regarding any grievances filed after January 12, 1984, we cannot determine-based on the evidence before us-whether the rights in- voked in those grievances arose under the contract. Accordingly, we shall not order that the Respond- ent arbitrate any post-January 12, 1984 grievances. Finally, with regard to the Respondent's unilat- eral discontinuance of trust fund payments, the Board has long held that the obligation to make such payments survives a contract's expiration. See, e.g., Parkview Furniture Mfg. Co., 284 NLRB 947 (1987); Hen House Market No. 3, 175 NLRB 596 (1969). Thus, the judge correctly ordered a make- whole remedy for losses resulting from the Re- spondent's discontinuance of trust fund payments. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Petroleum Maintenance Company, 6 The judge found that, subsequent to July 30, 1983, the Respondent was willing to, and did, discuss grievances with the Union 's grievance committee However, in light of the Respondent 's statement that the grievance procedure was no longer in effect , we shall adopt the judge's finding of a violation of the Act. 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lomita, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraphs 2(c) and (d) and reletter the subsequent paragraphs. "(c) Reimburse the Union for all membership dues which the Respondent failed to withhold- and transmit to the Union prior to January 12, 1984, pursuant to signed dues-deduction authorizations, with interest as provided in the Board 's decision. "(d) Notify the Union that the Respondent will, on request, process any grievance filed after July 30, 1983, and will, on request, arbitrate those griev- ances filed between July 30, 1983, and January 12, 1984." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT terminate our collective-bargain- ing agreement with Oil , Chemical & Atomic Work- ers International Union, AFL-CIO, and its Locals 1-19 and 1-128 and make unilateral changes in terms and conditions of employment without giving the proper notices required by Section 8(d) of the Act. WE WILL NOT unilaterally change bargaining unit employees' terms and conditions of employ- ment prior to offering the terms to and bargaining to a good-faith impasse with the Union. WE WILL NOT fail and refuse to furnish the Union with information that it requested which is relevant and necessary to the Union's status as ex- clusive bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with the Union as the exclusive collective-bargaining representative of our employees and, if agreement is reached, embody that agreement in a written, signed instrument. WE WILL restore, to the extent requested by the Union, the wages, hours, and working conditions which were in effect in the bargaining unit at the expiration of the last bargaining agreement on July 30, 1983. WE WILL reimburse the Union for all member- ship dues which we failed to withhold and transmit to the Union prior to January 12, 1984, pursuant to signed dues deduction authorizations , with interest. WE WILL, on request, process any grievances filed after July 30, 1983, and WE WILL, on request, arbitrate those grievances filed between July 30, 1983, and January 12, 1984. WE WILL furnish the Union, on request, the re- quested information relevant to the Union 's status as collective-bargaining representative. WE WILL make our employees whole for any losses they incurred as a result of our unilateral dis- continuance of the employee benefit trust fund pay- ments and as a result of the unilateral wage de- creases, and pay the appropriate interest on such amounts of money. PETROLEUM MAINTENANCE COMPANY Raymond M. Norton, Esq., for the General Counsel. Lana Borsook, Esq. (Kadency, Cohen & Schwaber), of Los Angeles, California, for the Respondent. Wallace B. Knox, Esq. (Burris, Karp & Mooney), of Bev- erly Hills, California, for the Union. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard these cases in trial at Los Angeles, California, on March 12, 1985. The cases arose as follows: On September 16, 1983, Oil, Chemical & Atomic Workers International Union, AFL-CIO, and its Locals 1-19 and 1-128 (the Union) filed a charge against Petroleum Maintenance Company (Respondent) in Case 31-CA-13517. Pursuant to that charge the Regional Director for Region 31 of the National Labor Relations Board issued a complaint and notice of hearing on November 30, 1983. Thereafter, on October 11 and 24, 1984, the Union filed a charge and an amended charge, respectively, in Case 31-CA-14571 against Respondent . On December 31, 1984, the Region- al Director issued an order consolidating cases, consoli- dated amended complaint and notice of hearing in both cases. The consolidated complaint alleges, in substance, that Respondent engaged in certain violations of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). PETROLEUM MAINTENANCE CO. 465 All parties have been afforded full opportunity to par- ticipate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record,' on the briefs filed on behalf of the parties, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION Respondent has been at all times material a California limited partnership with offices and a principal place of business located in Lomita , California, where it is en- gaged in the business of providing labor for maintenance and repair of petroleum refineries . During the normal course of its business operations , Respondent annually sells goods or services valued in excess of $50,000 to cus- tomers within the State of California, which customers themselves meet one of the Board's jurisdictional stand- ards, other than the indirect inflow or indirect outflow standard. Accordingly, Respondent admits and I find that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is now, and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Effective March 26, 1974, Respondent and the Union entered into a collective-bargaining agreement concern- ing rates of pay, wages, hours of employment, and other terms and conditions of employment of employees of Re- spondent in an appropriate bargaining unit.2 The collec- tive-bargaining agreement was modified by the parties in June 1982 as set forth in a memorandum of agreement executed on or about June 17, 1982, a schedule "A" dated April 6, 1982, and a letter of understanding execut- ed on or about June 17, 1982. The collective-bargaining agreement, as modified, remained in effect at least through May 1983. Respondent contends that the agree- ment was terminated on July 30, 1983. The General Counsel and the Union contend that the agreement con- tinued beyond July 30, 1983, until at least January 12, 1984, because Respondent failed to give proper notice to the Federal and State Mediation Services required under Section 8(d)(3) of the Act.3 The collective-bargaining agreement provided that it would continue in effect until February 1, 1977, and from year to year thereafter, unless either party gave at least 60 days' notice to the other prior to any February 1 of its desire to modify, amend, or terminate the bargain- 1 On April 12, 1985, counsel for the General Counsel filed a motion to correct the transcript . As the motion is unopposed, the motion is granted and the corrections contained therein are incorporated in the record, sun sponte, as ALJ Exh. 1 2 I find the unit described in art. I and schedule "A" of the collective- bargaining agreement to be a unit appropriate for the purposes of collec- tive bargaining within the meaning of Sec 9(b) of the Act. 3 The General Counsel and the Union chose the January 12, 1984 date because Respondent did not give notice to the State Mediation and Con- ciliation Service until December 12, 1983. ing agreement. If such notice was given , and if no agree- ment was reached, then the bargaining agreement would terminate on the following February 1. Either party had the right to request changes in wage rates, and that if agreement was not reached within 60 days after receipt of written notice of such a request , the bargaining agree- ment would terminate "effective that date." On May 27, 1983, Respondent sent a letter to the Union, which letter was received by the Union on May 30, giving 60 days' notice of its desire to renegotiate the existing wage and overtime rates . No notice was given to either the Federal Mediation and Conciliation Service or the State Mediation and Conciliation Service . On July 18, 1983, Respondent and the Union met to discuss Re- spondent's proposed changes to the bargaining agree- ment. Respondent's proposal read as follows: When the company performs work at a location covered by a contract with the Union, the job clas- sifications and working conditions of company em- ployees shall be identical with those of the custom- ers' company. Wage rates will be as listed in Sched- ule A unless the customer company's contract re- quires payment of wages identical to customer's contract covering the work location. No schedule A was attached to the proposal and no progress towards agreement on wage rates took place at this meeting. A second meeting was scheduled for July 26, 1983, but that meeting never took place. The second bargaining session did not occur until September 7, 1983. In a letter dated August 18 , 1983, Respondent, by its attorney, William C. Bottger Jr., notified the Union that the bargaining agreement had expired. Respondent had in fact treated the bargaining agreement as having ex- pired on July 30, 1983 . Thus, prior to July 30, Respond- ent accepted and processed grievances from employees in the bargaining unit. Grievances filed prior to July 30 continued to be processed normally . Respondent took the position that grievances filed after July 30 were not subject to the grievance procedure because the contract had expired. However, Respondent was willing to, and did, discuss such grievances with the Union's grievance committee. On August 15, 1983, Respondent made its last pay- ments to the health and welfare, vacation/holiday, and pension trust funds provided for in the bargaining agree- ment. These payments were for the period ending July 30. Thereafter, Respondent made no further payments to the trust funds. At the September 7 meeting,4 Respondent again stated its position that the bargaining agreement had expired because 60 days had passed since its wage reopener of May 27 and the parties had failed to reach a new agree- ment. Respondent advised the Union that the union-secu- rity, grievance and arbitration provisions, and trust fund provisions were no longer in effect . The Union denied 4 Sometime prior to its September 7, 1983 negotiation session with Re- spondent, the Union determined that Respondent had not sent a copy of the May 27 letter to the mediation and conciliation services . However, the Union did not notify Respondent of this defect. 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the bargaining agreement had expired . During the meeting Respondent contended that it could not compete with its nonunion competitors who were paying lower wages. Respondent stated that these competitors were underbidding Respondent and thereby causing Respond- ent a loss of work opportunities.5 The parties agreed to meet again on September 13. On September 13, Respondent gave the Union its pro- posed schedule A, setting forth proposed wage rates. This schedule did not include all job classifications. Fur- ther, Respondent stated that it was willing to sign a memorandum of agreement covering the wage rates of employees in the Bakersfield, California area. The Union made no counteroffer on wages. On September 16, the Union filed the first of the instant charges against Re- spondent alleging that Respondent had "unilaterally amended, modified and/or terminated portions of the current Collective Bargaining Agreement " in violation of Section 8(a)(5) and (1) and Section 8(d) of the Act. The parties met again on September 20. The Union re- quested the following information concerning Respond- ent's competitors: the competitors' rates of pay; their benefit structures; the amount of their bids; and their cost factors. The Union stated it needed the information in order to determine what concessions it would have to make to help Respondent become more competitive. Re- spondent asked the Union to make a counterproposal re- garding wages, but the Union contended that it first needed the information regarding Respondent's competi- tors. The parties met again on October 12. Respondent again sought a counterproposal from the Union and the Union again stated that it did not have sufficient informa- tion to make a counterproposal . The Union said it was attempting to get the information about the competitors on its own but "that was a lengthy process." The parties again met on October 21 at which meeting Respondent made its second written proposal. Thereafter, the parties met on October 31. At this meeting Respondent provid- ed the Union with a proposed schedule A, which includ- ed all job classifications. The parties met again on No- vember 4 and 22 . At the November 22 meeting, Re- spondent amended its wage proposal . Under this propos- al, all employees employed prior to 1974 would have no wage reduction. The Union then requested a list of the employees Respondent regarded as having seniority as of 1974. Respondent never provided that list. On November 30, Respondent delivered a copy of the May 27 wage reopener to the Federal Mediation and Conciliation Service 's and on December 12, sent a copy to the State Mediation and Conciliation Service. Bottger, Respondent's counsel, sent the Union a letter dated January 9, 1984, summarizing the events of the preceding 7 months. Respondent took the position that the parties were at an impasse and that Respondent in- tended to implement, on January 16, its proposals of Oc- tober 21 and 31, 1983. In response, the Union sent a letter dated January 13, denying the existence of an im- 5 There is no dispute that the number of employees employed by Re- spondent has steadily declined since 1983. 6 The complaint in Case 31-CA- 13517 also issued on November 30 passe and indicating its opposition to the planned imple- mentation of Respondent's last proposal . Respondent did not implement its last offer on January 16, but rather waited until May 14, 1984. On May 14, Respondent im- plemented a new wage scale, which resulted in wage in- creases for some employees, decreases for others, and no changes for a few. On April 4, prior to the implementation of the new wage rates, the parties met at Respondent's offices.? The parties first discussed the outstanding complaint in Case 31-CA-13517. After a caucus, Respondent's counsel in- formed the Union's representatives that he had spoken with William A. Thompson, Respondent's general man- ager, and that Respondent was not prepared to go for- ward with collective-bargaining negotiations because the Company was contemplating going out of business. Re- spondent's counsel requested from the Union a statement of Respondent's withdrawal liability under the pension trust fund, should Respondent go out of business. Re- spondent's counsel also stated that Respondent would resume payments to the trust funds "retroactive to April 1, 1984 with no strings attached."8 The Union's counsel stated that Respondent could obtain the withdrawal li- ability directly from the pension trust in Denver , Colora- do. The meeting ended with the parties agreeing to dis- cuss these matters again. On May 14, Respondent put into effect new wage rates. These wage rates reflected a wage structure nego- tiated by Respondent and one of its customers in May. Contrary to Respondent's position, the wage rate was not the same as that previously offered to the Union.9 Respondent admits it gave no written notice of the wage changes other than the letter of January 9. Neither did Respondent give the Union any oral notice of this change. Thompson first informed a union agent of the change shortly after the wage rates had been implement- ed. Respondent's wage schedule implemented on May 14 resulted in the job classifications of some employees being changed. Over half of the employees received wage increases and slightly less than half of the employ- ees received wage decreases. A few employees had their wages rates unchanged. In July and August 1984, Respondent agreed to a union request for an audit of its books concerning the new wage rates and Respondent's liability to the trust funds. Audits by both the Union and the trust funds were carried out in August 1984. On August 14, Respondent provided the Union with information concerning its wage rates. 7 The findings regarding the April 4 meeting are based on the credited testimony of Gregory Mooney, the Union's attorney, which was corrobo- rated by Tom Lind, an International representative for the Union. To the extent that the testimony of Ed Hoy, a labor consultant for Respondent, is inconsistent that testimony is not credited. 8 Payments to the trust funds were in fact not resumed. 9 The last wage proposal offered to the Union listed 26 job classifica- tions with a high wage rate of $13.50 per hour and a low of $5 per hour. The wage rates placed in effect in May 1984 listed 14 classifications with a high of $14 50 per hour and a low of $7 53 per hour . Of the 12 classifi- cations common to both lists, 10 received wage rates higher than that in the last offer to the Union and 2 classifications received the same wage rates offered to the Union. PETROLEUM MAINTENANCE CO. On August 29, Wallace Knox, an attorney for the Union, wrote Bottger, Respondent's attorney, stating that the information provided did not make clear to the Union what changes in wages had taken place. Knox asked for the date of the change as well as a description of each change in wage classifications with an explana- tion of which classifications had the responsibilities of the new classifications. On September 18, Knox wrote Bottger, stating that he had not received a response to his August 29 request . Knox requested the names; hire dates; job classifications ; job locations; and wages of all employees hired , fired, laid off, reinstated, or otherwise terminated or newly employed since January 1, 1984, in addition to the previously requested information. On Oc- tober 15, Bottger wrote Knox stating that he had for- warded Knox's request to Thompson, Respondent's gen- eral manager. Respondent has made no further response. On November 1, Respondent filed a voluntary petition under Chapter 11 of the Bankruptcy Code . Respondent is now operating its business as a debtor-in-possession. During the course of the bankruptcy proceeding, the Bankruptcy Court ordered Respondent to produce infor- mation to the Union regarding its employees and their hours, but not wages. Respondent complied with the order. In November, Ken Lord, an agent of the Union, requested a list of Respondent's current employees and received a list of Respondent's employees for the week ending November 18, 1984. III. ANALYSIS AND CONCLUSIONS A. Failure to Notify the Federal and State Mediation and Conciliation Services The General Counsel and the Union argue that Re- spondent violated Section 8(a)(5) and (1) and Section 8(d) of the Act by terminating the bargaining agreement without giving the proper notice required by Section 8(d). Respondent contends that the bargaining agreement was effectively terminated when the parties failed to reach a new agreement within 60 days after the Union received Respondent's letter of May 27 requesting changes in the wage scale. Section 8(d) of the Act provided in pertinent part as follows: Provided, That where there is in effect a collective- bargaining contract covering employees in an indus- try affecting commerce, the duty to bargain collec- tively shall also mean that no party to such contract shall terminate or modify such contract , unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is pro- posed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Concilia- tion Service within thirty days after such notice of 467 the existence of a dispute , and simultaneously there- with notifies any State or Territorial agency estab- lished to mediate and conciliate disputes within the State or Territory where the dispute occurred, pro- vided no agreement has been reached by that time; and (4) continues in full force and effect , without re- sorting to strike or lockout, all the terms and condi- tions of the existing contract for a period of sixty days after such notice is given or until the expira- tion date of such contract, whichever occurs later. An employer violates Section 8 (a)(5) of the Act if it terminates or modifies an existing collective -bargaining agreement without having served the requisite 8(d)(3) notice on the proper state agency . Mar-Len Cabinets, 243 NLRB 523, 524 (1974), enfd. in part 659 F.2d 995, 998 (9th Cir. 1981). See also Ft. Smith Chair Co., 143 NLRB 514 (1963), enfd . 336 F.2d 738 (D.C. Cir. 1964). In United Artists Communications, 274 NLRB 75 (1985), the Board recently emphasized that the initiating party must allow mediation efforts to take place for 30 days. When a notice of dispute is untimely filed , the 60- day period of Section 8(d) is tolled so that mediation ef- forts may take place for the 30-day period envisioned by Section 8(d)(3). The notice requirements of Section 8(d) also apply to midterm modifications of existing agreements . Keystone Steel & Wire, 237 NLRB 763, 765-767 (1978); Wisconsin Southern Gas Co., 173 NLRB 480 (1968). Applying the governing case law to the facts of this case, I find that the contract could have expired , accord- ing to its terms, when the parties had not reached agree- ment, 60 days after the Respondent 's reopening letter. However, Respondent was required to continue in full force and effect all terms and conditions of the bargain- ing agreement until 30 days after notice to the State and Federal Mediation and Conciliation Services. It is well established that in appropriate circumstances the notice provisions of Section 8(d) apply even when no strike or lockout is involved. Mar-Len Cabinets, supra; United Art- ists Communications, supra. Respondent would not have been justified in making the unilateral changes by reason of an asserted impasse in collective-bargaining negotia- tions. Even if a genuine bargaining impasse had existed, this, on the facts of this case, does not eliminate the ne- cessity of complying with the notice provisions of Sec- tion 8(d)(3) of the Act. Mar-Len Cabinets, supra; see NLRB Y. Huttig Sash & Door Co., 377 F.2d 964, 968 (8th Cir. 1967). Thus, Respondent's unilateral discontinuance of the contractual dues checkoff and union-security require- ments constituted violations of Section 8(a)(5) and (1) of the Act. Campo Slacks, Inc., 250 NLRB 420 (1980), enfd. 659 F.2d 1067 (3d Cir. 1981). Respondent's discontinu- ance of the payments into the trust funds provided by the contract violated Section 8(a)(5) and (1). Wayne's Dairy, 223 NLRB 260, 265 (1976); Hudson Chemical Co., 258 NLRB 152, 157 (1981). Respondent's refusal to abide by the grievance and arbitration clause similarly violated Section 8(a)(5) and (1). See American Sink Top & Cabinet 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Co., 242 NLRB 408 (1979); Digmor Equipment & Engi- neering Co., 261 NLRB 1175 (1982). B. The Wage Increase of May It is well established that an employer violates Section 8(a)(5) of the Act by unilaterally changing a condition of employment that is under negotiation irrespective of whether the action is taken in good faith. NLRB v. Katz, 369 U.S. 736 (1962); J. Hofert Co., 269 NLRB 520 (1984); Western Publishing Co., 269 NLRB 355 (1984). The pri- mary exception to this rule is that when negotiations reach an impasse, the employer is free to implement changes in employment terms unilaterally, as long as the changes have previously been offered to the union as a bargaining proposal. Carlsen Porsche Audi, 266 NLRB 141 (1983); Ace Galvanizing, Inc., 217 NLRB 144 (1975); Times Herald Printing Co., 221 NLRB 225 (1975). In the instant case, Respondent could not change the agreement until 30 days after proper notice to the Feder- al and State Mediation Services, i.e., January 12, 1984. However, before Respondent could lawfully implement any changes there had to have been an impasse. The next question is whether an impasse existed when Respondent implemented its wage changes of May 14, 1984. In the lead case of Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968), the Board utilized the following guidelines for determining the existence of an impasse: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. In E. I. duPont & Co., 268 NLRB 1075, 1076 (1984), the Board reaffirmed its adherence to the Taft Broadcast- ing guidelines and added the following comment: Finally, there need be no undue reluctance to find that an impasse existed. Its occurrence "cannot be said to be an unexpected, unforeseen, or unusual act in the process of negotiations since no experienced negotiator arrives at the bargaining table with abso- lute confidence that all of his proposals will be readily and completely accepted." Hi-Way Bill- boards, 206 NLRB 22, 23 (1973). In applying the impasse guidelines to the facts of this case, one cannot overlook the realities of the situation. As it was attempting to implement a wage reduction, it was to Respondent's advantage to arrive at impasse as soon as possible. On the other hand, the Union was in a position where an impasse would result in implementa- tion of a wage reduction. Thus, it was to the Union's ad- vantage to avoid reaching impasse. Moreover, in May 1984, looming over the negotiations were the unreme- died unilateral discontinuance of payments to the trust funds and the pending question of whether Respondent would go out of business. Respondent argues that an impasse existed in May 1984 because negotiations were deadlocked and there were no further efforts to break the deadlock. The Gen- eral Counsel and the Union argue that no impasse could be reached in May due to the unremedied unfair labor practices. The bargaining history lends support to a finding of impasse. However, the other factors, particularly Re- spondent's unremedied unfair labor practices, preclude a finding of impasse. In Wayne's Dairy, 223 NLRB 260, 265 (1976), the Board found that an employer could not parlay an im- passe resulting from its own misconduct into a license to make unilateral changes. An impasse attributable to the employer's unlawful failure to restore the status quo ante regarding the unilateral discontinuance of health and welfare trust payments was held not to be a good-faith impasse. In Little Rock Downtowner, 168 NLRB 107, 108 (1967), enfd. 414 F.2d 1084 (8th Cir. 1969), the Board stated: It is well settled that where further negotiations appear to be futile, a union is justified in not seeking to continue them. Respondent's unilateral changes of working conditions without consultation with the bargaining agent are violations which strike at the heart of the Union's ability to effectively represent the unit employees. There is no clearer or more ef- fective way to erode the ability of the Union to bar- gain for the employees than for Respondent to make such changes without consultation with the Union. Respondent, after having committed viola- tions which reasonably resulted in the Union's deci- sion to regard further attempts to bargain as futile, may not seize upon its own wrongs to charge an abandonment by the Union of the unit employees or to infer a loss of employee support. See also M. A. Harrison Mfg. Co., 253 NLRB 675, 684 (1980); and Bay Area Sealers, 251 NLRB 89, 90 fn. 5 (1980), enf. denied in pertinent part 665 F.2d 970 (9th Cir. 1982). Further supporting the conclusion that Respondent cannot claim an impasse in May 1984 to privilege its wage changes is the fact that Respondent broke off ne- gotiations and refused to bargain in April based on the possibility that it might go out of business. A deadlock caused by a party who refuses to bargain in good faith is not a legally cognizable impasse justifying unilateral con- duct. Bethlehem Steel Co., 147 NLRB 977, 978 (1964); Northland Camps, 179 NLRB 36 (1969). See also NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343, 1349 (9th Cir. 1978). More important, even if the parties were at impasse, Respondent could only implement a wage change rea- sonably comprehended within the proposal Respondent had offered to the Union during the bargaining. See, e.g., Ace Galvanizing, 217 NLRB 144 (1975); Times Herald Printing Co., 221 NLRB 225, 229 (1975); Wayne's Dairy, Inc., supra. The last wage offer to the Union froze wages for employees hired prior to 1974 and reduced wages for all other employees. The offer implemented made no dis- PETROLEUM MAINTENANCE CO. tinction for pre-1974 employees and granted wage in- creases to a majority of the employees. Of the 12 job classifications common to the last offer and the imple- mented offer, 10 classifications received wage rates higher than that offered to the Union. Whether Respond- ent's changed offer would have broken the impasse and/or changed the Union' s bargaining position is a matter of doubt. However, it is Respondent's conduct that causes such doubt. Accordingly, as the changes in wage rates were not reasonably comprehended within the proposals Respondent had offered to the Union during the bargaining, I find that Respondent violated Section 8(a)(5) and (1) even if an impasse existed. Rob- bins Door & Sash Ca, 260 NLRB 659 (1982). Cf. Carlsen Porsche Audi, supra (where the change implemented was well within the "flexible parameters" discussed with the union). C. The Refusal to Furnish Information The General Counsel and the Union argue that Re- spondent violated Section 8(a)(5) and (1) by failing to provide the wage rate and job classification information requested by the Union and that the information revealed to the Union did not clarify the job duties pertaining to particular job classifications. Respondent takes the posi- tion that it provided the Union with the information re- quested to the extent possible. Following the unlawful unilateral change of wage rates in May, the Union, in August, requested from Re- spondent information concerning the wage rates paid in each classification at each job location. After a response from Respondent, the Union sought clarification because the job classifications listed by Respondent did not corre- spond with the job classifications utilized prior to the unilateral change. On August 29, the Union requested the names, hire dates, job classifications, job locations, and wages of all employees hired, fired, laid off, reinstat- ed or otherwise terminated, or newly employed since January 1, 1984. Respondent did not offer this informa- tion to the Union. Auditors were permitted to inspect Respondent's books in August. However, the information given the auditors would not show the job functions of the employees. Without such information the Union still could not determine the effect of the changes in wages and classifications implemented in May. It is well settled that an employer has a statutory obli- gation to provide a union, on request, with relevant in- formation the union needs for the proper performance of its duties as a collective-bargaining representative. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967); De- troit Edison Co. v. NLRB, 440 U.S. 301 (1979). In deter- mining whether an employer is obligated to supply par- ticular information, the question is only whether there is a "probability that the desired information [is] relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities." NLRB v. Acme Industrial Co., supra at 437. As the Supreme Court has stated, the disclosure obligation is measured by a liberal "discovery-type standard," not a trial-type standard, of relevance. Ibid. Where the requested information deals with informa- tion pertaining to employees in the unit, which goes to 469 the core of the employer-employee relationship, the in- formation is "presumptively relevant." Emeryville Re- search Center, 441 F.2d 880 (9th Cir. 1971). Where the information is presumptively relevant , the employer has the burden of proving the lack of relevance . Prudential Insurance Co., 412 F.2d 77 (2d Cir. 1969). Where the re- quested information concerns wage rates , job descrip- tions and other information pertaining to employees within the bargaining unit, the information is presump- tively relevant. Pfizer, Inc., 268 NLRB 916, 918 (1984); Boeing Co. , 182 NLRB 421 , 425 (1970). In the instant case, the Union, after unilateral changes in wages and classifications, sought information from which to ascer- tain the effect of such changes on the unit employees it represents. The changes in classifications, without infor- mation regarding job duties, resulted in the Union's in- ability to determine with any degree of certainty which job classifications received increases and which received decreases. During the Union's audit, certain of the re- quested information was revealed. However, the infor- mation clarifying job duties and job classifications was never provided or revealed during the audits . Accord- ingly, I find that Respondent violated Section 8(a)(5) and (1) by not furnishing the information requested by the Union. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes and policies of the Act. Respondent shall be ordered to reinstate the wages, hours, and working conditions in effect at the ex- piration of the collective-bargaining agreement, and to maintain such wages, hours, and working conditions in effect until modified by agreement with the Union or reaching a valid impasse in negotiations.10 10 I find NLRB Y. Cauthorne, 691 F.2d 1023 (D.C. Cir 1982), cited by Respondent, does not circumscribe the remedy In NLRB Y. Cauthorne, the United States Court of Appeals for the District of Columbia Circuit rejected any presumption that an employers unilateral change in wages or benefits precludes the possibility of meaningful negotiations and pre- vents the parties from reaching a good-faith impasse . The Court held that in designing a remedy for an unlawful unilateral change, a crucial vari- able is the duration of the refusal to bargain If the refusal persists until the time of the Board's order continuous make-whole relief may be ap- propriate. But if bargaining was resumed and carried forward at some point between the initial refusal and the time of the Board's order, make- whole relief must be circumscribed-at least in cases where the unilateral change did not violate the terms of a valid collective-bargaining agree- ment Thus, the Court held that where an employer and a union have bargained in good faith despite the employer's prior unilateral changes in wages or conditions of employment, the employer's ongoing liability for the unlawful unilateral changes terminates on the date when the parties execute a new agreement or reach a lawful impasse. In the instant case, Respondent did not cure its wrongdoing but rather engaged in further unlawful unilateral changes in the absence of a good-faith impasse Even assuming that impasse was reached following the first unilateral changes, the wage rates implemented in May, which were not fairly comprehend- ed by the offer to the Union, constituted a further unlawful unilateral change. Thus, Respondent's unfair labor practices appear to be continu- ous and a continuous make-whole remedy would be appropriate under NLRB Y. Cauthorne. 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent shall be ordered to make whole its em- ployees for any losses that may have resulted from Re- spondent's discontinuance of payments to the trust funds by proper payments to the trust funds, with interest to be computed in accordance with Merryweather Optical Ca, 240 NLRB 1213 (1979). Respondents shall also be ordered to make whole its employees for any losses they may have suffered as a result of the unilateral wage decreases. See, for example, NLRB v. American National Insurance Ca, 343 U.S. 395, 400 (1952). Backpay is to be computed in a manner con- sistent with Ogle Protection Services, 183 NLRB 682 (1970), with interest thereon as set forth in Florida Steel Corp., 231 NLRB 651 (1977). In the case of the unilateral wage increases, on the other hand, it is the Board's established policy not to re- quire the employer to revoke increased benefits even though they were given unlawfully. See Stayer's Johnson- ville Meats, 174 NLRB 693 fn . 3 (1969). See also Carmi- chael Construction Ca, 258 NLRB 226, 231 (1981), enfd. 728 F.2d 1137 (8th Cir. 1984). Respondent will also be ordered to provide the Union, on demand, with the requested information concerning the job classifications. As noted earlier, Respondent filed a petition under Chapter 11 of the Bankruptcy Code on November 1, 1984. The extent to which Respondent will be able to comply with the remedial order is subject to the jurisdic- tion of the Bankruptcy Court . See Airport Bus Service, 273 NLRB 561 (1984). CONCLUSIONS OF LAW 1. The Respondent, Petroleum Maintenance Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Oil, Chemical & Atomic Workers Inter- national Union, AFL-CIO and its Locals 1-19 and 1- 128, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By terminating its collective-bargaining agreement on July 30, 1983, and instituting unilateral changes in the grievance and arbitration procedure, union security and dues checkoff and payments to the employee benefit trust funds, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) and Section 8(d) of the Act. 4. By unilaterally changing wage rates in May 1984, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By failing and refusing to furnish the Union with the requested information relevant to the Union's status as exclusive bargaining representative , Respondent vio- lated Section 8(aX5) and (1) of the Act. 6. The bargaining unit described in the last collective- bargaining agreement between Respondent and the Union is an appropriate bargaining unit within the mean- ing of Section 9(b) of the Act. 7. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edit ORDER The Respondent, Petroleum Maintenance Company, Lomita, California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Terminating its collective-bargaining agreement with the Union and making unilateral changes in terms and conditions of employment without giving the proper notices required by Section 8(d) of the Act. (b) Unilaterally changing bargaining unit employees' terms and conditions of employment prior to offering such terms to and bargaining to a good-faith impasse with the Union. (c) Failing and refusing to furnish the Union with in- formation that it requested, which is relevant and neces- sary to the Union's status as exclusive bargaining repre- sentative. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action that is neces- sary to effectuate the policies of the Act. (a) On request, bargain collectively with the Union as the exclusive collective-bargaining representative of Re- spondent's employees, and if agreement is reached, embody that agreement in a written, signed instrument. (b) Restore, on request by the Union, the wages, hours and working conditions that were in effect in the bar- gaining unit at the expiration of the last bargaining agree- ment on July 30, 1983. (c) Furnish the Union, on request, the requested infor- mation relevant to the Union's status as collective-bar- gaining representative. (d) Make its employees whole for any losses they in- curred as a result of Respondent's unilateral discontinu- ance of the employee benefit trust fund payments and as a result of the unilateral wage decreases, and pay the ap- propriate interest on such amounts of money, as more fully described in the remedy section of this decision. (e) 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. (f) Post at its facility in Lomita, California, copies of the attached notice marked "Appendix." 12 Copies of the '' 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 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the 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." PETROLEUM MAINTENANCE CO. 471 notice, on forms provided by the Regional Director for Region 31 , 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. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply.