United Gilsonite Laboratories, Inc

924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Gilsonite Laboratories, Inc and Teamsters Local 229 Cases 4-CA-14822 and 4-CA- 14860 November 30 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On April 1 1986 Administrative Law Judge Hubert E Lott issued the attached decision The General Counsel filed exceptions and a supporting brief with respect to the remedy the Respondent filed cross exceptions and a brief in support there of and the General Counsel and the Respondent both filed answering briefs i 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 as modified A decision to lay off employees for economic reasons is a mandatory subject of bargaining Con sequently an employer must provide notice to and bargain with the union concerning the decision to lay off bargaining unit employees and the effects of that decision Lapeer Foundry & Machine 289 NLRB 952 (1988) Frank Balish the Respondent s vice president of manufacturing testified that he decided to lay off employees because of the severe deterioration in business among other reasons The judge found that the layoff was directly and solely related to the economic condition of the Respond ent as of December 1984 The judge further found and we agree that the Respondent did not inform the Union of the layoff until that action was a fait accompli Furthermore the Respondent did not present any compelling economic circumstances to justify its unilateral action Accordingly we affirm the judge s conclusion that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off em ployees on December 14, 1984 without notice to or bargaining with the Union concerning its deci sion to lay off employees for economic reasons and the effects of that decision However the judge also found and we disagree for the reasons given below that a backpay I The Respondent also filed a motion to stoke the General Counsel s answering brief and the General Counsel filed a response thereto In sup port of its motion the Respondent asserts that the General Counsel s an swering brief is a resubmission of its prior brief to the administrative law judge and is therefore not limited to the questions raised in Respondents cross-exceptions Inasmuch as the Respondent has not demonstrated any prejudice on its part we deny the motion remedy is inappropriate for those employees laid off as a result of Respondents unlawful unilateral action The judge found that because bargaining would not have changed or delayed the ultimate outcome an award of backpay is not warranted The judge relied on Gulf States Mfrs 271 NLRB 772 (1984) in reaching his conclusion not to award backpay for the violation The Board specifically stated in that case however that its legal analysis was the law of the case mandated by a remand from the Fifth Circuit Court of Appeals 2 Such analysts is controlling only regarding the parties in that particular case The conclusions reached in that case do not therefore require the Board to make the same analysis here The law of the case doctrine rests on principles of res judicata distinct from stare decisis Furthermore in Lapeer Foundry supra we dis agreed with the rationale that full backpay begin ping with the date of the layoffs was not warranted in the absence of evidence that bargaining would have prevented the layoffs We explained that requiring a finding that bargaining would have prevented the layoffs to justify a backpay order requires the Board or a court to engage in a post hoc determination of the economic situation instead of letting the parties decide themselves at the time of the [proposed] lay offs This requirement thus unnecessarily in jects the Government into an area in which the collective bargaining process should be permitted to function We further explained that requiring a showing that bargaining would have prevented the layoffs is contrary to our customary policy of ordering a re spondent to restore the status quo ante when the respondent has taken unlawful unilateral action to the detriment of its employees State Distributing Co 282 NLRB 1048 1048-1049 (1987) (justifying measurement of damages for successorship bargain ing violation by principle of resolving uncertainty against the wrongdoer) Accordingly in order to remedy the Respondents failure to bargain over the December 14 1984 layoffs we shall order that the Respondent make whole those employees laid off in violation of the Act The question then arises concerning the duration of the Respondents backpay liability The judge concluded that if he were to recommend backpay he would limit it from the date of the layoff to February 13 1985 3 This decision is based on his 2 704 F 2d 1390 (5th Cir 1983) 2 All dates are 1985 unless otherwise stated 291 NLRB No 125 UNITED GILSONITE LABORATORIES conclusion that on February 5 4 the Respondent s attorney Ufberg offered to bargain over the issues in question and at the next negotiating ses sion on February 13 the Union failed to respond to the Company s offer In reaching his deci sion to employ the February 13 date as the opera tive hypothetical date for tolling liability the judge ostensibly used as urged by the General Counsel the contingencies advanced in San Antonio Portland Cement Co 277 NLRB 309 (1985) and C & D Battery Division Eltra Corp 263 NLRB No 106 (1982) (not reported in Board volumes) Using this precedent backpay for the laid off employees should be ordered from the date of the layoff until the employees were recalled or the earliest date on which one of the following conditions is met (1) mutual agreement with the union is reached (2) good faith bargaining results in a bona fide impasse (3) the union fails to commence negotiations within 5 days of receiving the employers notice of desire to bargain or (4) the union subsequently fails to bargain in good faith If we were to accept the judge s conclusion that Attorney Ufberg offered to bargain about the issues in question on February 5 (in circumstances analogous to those set forth under alternative 3 above) backpay liability might be tolled as of the Union s failure to respond to the offer We do not however agree with the judge s finding that Uf berg s February 5 conversations with the Union s business agent Monahan constituted the required notice of desire to bargain Attorney Ufberg tes tified that he telephoned Monahan on February 5 and read to him a letter indicating that the Compa ny was prepared to proceed to negotiations with out insisting on the use of a stenographer Ufberg then brought up the fact that he had received a copy of the Union s February 4 unfair labor prac tice charges against the Respondent and was inter ested in having them resolved Ufberg requested that Monahan come to his office later that day to which Monahan agreed At the subsequent office meeting Ufberg reiterated that he was interested in trying to resolve the outstanding unfair labor practice charges and was prepared to discuss the layoff the effects of the layoff and recall Monahan replied that charges had been filed and were before the National Labor Relations Board and, if he (Ufberg) wanted to discuss settlement of the charges he should do so with the Union s at torney For his part Monahan testified that Ufberg 4 There is some dispute whether February 5 is the actual date the con versations took place between the Respondents attorney and the union business agent However in light of our ultimate conclusion regarding the legal significance of these conversations it is unnecessary to deter mine exactly when they occurred 925 asked merely what they could do to straighten out the charges and what it would take to settle the case Thus according to the testimony of both Ufberg and Monahan the foregoing February 5 conversa tions included an offer to engage in settlement dis cussions about the outstanding unfair labor practice charges They did not however constitute a clear and unambiguous request to discuss bargaining pro posals regarding the layoff and in these circum stances we find contrary to the judge that back pay is therefore not tolled as of February 13 Rather we find that the Respondent did not clear ly and unambiguously offer to bargain about an in terim layoff and recall proposal until the parties met on February 25 Attorney Ufberg testified that on that date at the outset of the [contract negotia tions] meeting I said to John Monahan we are here and we are prepared to discuss with you the issues of layoff and the layoff the effects of layoff and recall concerning the December 14 yes Decemeber 14 1984 layoff The parties stipu lated at the hearing that the Respondent and the Union met on February 25 and 28 and March 12 and discussed layoff and recall procedures on an interim basis pending final agreement on a collec tive bargaining agreement Further the parties stip ulated that at the negotiating meeting on March 12 the Respondent and the Union each took final posi tions and failed to reach agreement The General Counsel urges in her exceptions that backpay is properly computed from December 14 1984 until March 12 1985 (when the parties took final positions) in the case of the 8 employees recalled on March 18 and from December 14 1984 to March 6 1985 in the case of the 11 em ployees recalled on March 6 1985 Under these circumstances we grant the backpay remedy sought by the General Counsel 5 AMENDED CONCLUSIONS OF LAW Substitute the following6 for Conclusion of Law 5 5 By failing to give notice to the Union about the impending layoff and failing to afford the Union an opportunity to bargain about the layoff decision as well as the effects of that decision upon employees the Respondent engaged in unfair labor 5 The judge found that one of the employees who was laid off on De cember 14 subsequently quit That employees backpay shall run from December 14 1984 until the date that he quit We leave this determina tion for the compliance stage of the proceeding 8 To define more precisely the violation found we have modified the judge s Conclusion of Law 5 and par 1 (b) of the judge s recommended Order 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD practices in violation of Section 8(a)(5) and (1) of the Act AMENDED REMEDY Having found that the Respondent violated Sec tion 8(a)(5) and (1) of the Act by laying off em ployees without notice to the Union and without affording the Union an opportunity to bargain over the layoff decision as well as the effects of that de cision on employees we shall order the Respond ent to make whole those employees laid off by paying them their normal wages from the date of their layoff until March 6 1985 in the case of those 11 employees recalled on that date and until March 12 1985 in the case of the 8 employees re called on March 18 1985 Backpay shall be based on the earnings that these employees normally would have received during the applicable period less any net interim earnings and shall be comput ed in the manner set forth in F W Woolworth Co 90 NLRB 289 (1950) with interest to be computed in the manner prescribed in New Horizons for the Retarded 7 ORDER APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT insist to impasse on the presence of a court stenographer to make a stenographic record of contract negotiations WE WILL NOT unilaterally lay off employees without providing the Union with notice and an opportunity to bargain about the decision to lay off employees and the effects of that decision on em ployees 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 make whole those employees laid off on December 14 1984 for any loss of pay suffered as a result with interest The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent United Gilsonite Laboratories Inc Scranton Pennsylvania its officers agents succes sors and assigns shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(b) (b) Unilaterally laying off employees without providing the Union with notice and an opportune ty to bargain about the decision to lay off employ ees and the effects of that decision on its employ ees 2 Insert the following as paragraph 2(b) and re letter the subsequent paragraphs (b) Make whole those employees laid off on December 14 1984 for any loss of pay suffered as a result of its unlawful conduct in the manner set forth in the amended remedy portion of the Board s decision 3 Substitute the attached notice for that of the administrative law judge 7 283 NLRB 1173 (1987) Interest on and after January I 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US 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) UNITED GILSONITE LABORATORIES INC Barbara Joseph Esq for the General Counsel Robert Ujberg Esq (Rosenberg & Ujberg) of Scranton Pennsylvania for the Respondent Robert D Martani Esq (Mariana & Greco) of Scranton Pennsylvania for the Charging Party DECISION STATEMENT OF THE CASE HUBERT E LOTT Administrative Law Judge This case was heard at Scranton Pennsylvania on 25 and 26 April and 13 May 1985 on unfair labor practice charges filed on 14 January and 4 February 1985 by Teamsters Local 229 (the Union) against United Gilsonite Labora tones Inc (Respondent) and on a consolidated com plaint issued by the General Counsel on 26 March 1985 The issues in this case are whether or not Respondent violated Section 8(a)(1) of the Act by threatening its em ployees with layoff if they chose the Union and whether or not Respondent violated Section 8(a)(1) and (5) of the Act by insisting to impasse on the use of a court stenog rapher at contract negotiation sessions and by laying off its employees without first notifying the Union and offer ing it an opportunity to bargain over such acts and con duct Respondents answer to complaint duly filed denies the commission of any unfair labor practices The parties were afforded an opportunity to be heard to call examine and cross examine witnesses and to in UNITED GILSONITE LABORATORIES 927 troduce relevant evidence Since the close of hearing briefs have been received from the parties in this case On the entire record and based on my observation of the witnesses and in consideration of the briefs submit ted I make the following FINDINGS OF FACT I JURISDICTION Respondent is a Pennsylvania corporation engaged in the business of manufacturing paint and home repair products at its Scranton Pennsylvania plant During 1984 Respondent sold and shipped products valued in excess of $50 000 directly from its Scranton plant to points outside the Commonwealth of Pennsylvania Re spondent admits and I find that the Company is an em ployer engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act It further admits I find that Teamsters Local 229 is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A The Alleged Threat The General Counsel presented two employees Thomas Owens and Richard Barako who testified that in September 1984 about 2 days before the Board con ducted election Malcolm McKinnon the company presi dent spoke to all the production employees According to Owens McKinnon stated that in the past during slow periods the Company carried the permanent workers by finding other work for them However if there was a union it could change that they did not have to do it anymore On cross examination Owens testified that McKinnon referred to Teamsters Union contracts when making his speech and stated that things could change under a union contract-not that they would change According to Barako McKinnon stated that it would no longer be possible to keep employees working during slow periods if there was a union On cross examination Barako stated that McKinnon was reading from union contracts and stated that under these contracts the Com pany would not have as much latitude on certain things Respondent presented Malcolm McKinnon who denied threatening employees with termination or layoff if the Union were elected He testified that in his pre pared speech of 17 September which he followed he spoke about job security stating Well we were discussing-the big issue in this elec tion seemed to be job security and I had written here the Union is telling you they can get you real job security I will tell you again your best job se cunty is a healthy company and a company that cares instead of just applying automatic terms of a contract If we had been doing that for many years most of you would have been laid off for weeks maybe months in our slower seasons and our bad years If you think I am kidding let me read you a clause from a Teamsters contract again a contract covering many Teamsters employees in a host of local companies When the employer has no work he shall notify the respective men upon leaving the plant the night before That is it that is the layoff clause fantastic job protection isn t it In a third and final speech that he made the day before the election McKinnon assured employees there would be no reprisals against anyone who supported the Union William D Andrea plant superintendent who was present during McKinnon s speech testified that Mckin non stated that there would be no reprisals no matter which way the employees voted He further stated ac cording to D Andrea that sometimes during slow pert ods the Company found nonproduction work for the em ployees However nothing was said about the future if the Union was elected Analysis and Conclusions The Board-conducted election was held on 21 Septem ber 1984 and the Union was certified on 1 October 1984 It was not until 4 months had passed that charges were filed and although not required this allegation was not specifically mentioned in either charge It is further noted that the General Counsel never used this allegation to support an 8(a)(3) allegation with respect to the subse quent layoff With this information as background I credit Respondents witnesses over those of the General Counsels and find that no threat was made to the em ployees I conclude that Respondents remarks are pro tected by Section 8(c) of the Act and are consistent with its undisputed assurances that no reprisals would be taken Accordingly I will dismiss this 8 (a)(1) allegation B Insisting on Presence of Court Stenographer The parties had three negotiation sessions prior to 28 December 1984 On this date for the first time Respond ent had a court stenographer in the room John Mona han Teamsters business agent and the Union s chief ne gotiator met with Respondents negotiation team headed by Robert Ufberg for maybe 2 hours In the meantime Monahan had another union official check with his attorney Robert Manani to find out whether they were required to negotiate with a court stenogra pher On discovering that he was not required to do so Monahan told Ufberg that he would not continue to ne gotiate with a court stenographer present Ufberg re sponded by saying that a stenographer was required be cause the Union had accused the Company of surface bargaining and the Company wanted record evidence to disprove this allegation Thereupon the Union walked out There ensued a series of letters between the parties over the stenographer issue On 28 December 1984 Monahan wrote a letter to Ufberg stating that the Com pany had no right to insist on a court stenographer He suggested that a bargaining session be held on 4 January 1985 and threatened to file unfair labor practice charges if the Company insisted on the presence of a court re porter Ufberg responded by letter dated 15 January 1985 stating that he did not find the presence of a court stenographer stifling and requested that the Union recon sider its position Ufberg also suggested 18 22 and 23 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD January 1985 as available negotiating dates On 14 Janu ary 1985 Monahan wrote a letter to Ufberg requesting a copy of the 28 January meeting transcript offering to pay for it On 16 January 1985 Ufberg responded by stat ing that he would furnish a copy of the transcript if the Union agreed to continue the use of the stenographer during negotiations On 29 January 1985 Monahan wrote another letter to Ufberg resisting the Union s position not to meet in the presence of a court stenographer In a letter dated 5 February 1985 Ufberg agreed to meet without a stenographer and suggested 11 February 1985 for their next negotiating session The parties actually met on 13 February 1985 for the first time since 28 De cember 1984 Analysis and Conclusions Insistence to impasse by either party on the presence of a court reporter during contract negotiations violates Section 8(a)(1) and (5) of the Act Bartlett Collins Co 237 NLRB 770 (1978) Latrobe Steel Co 244 NLRB 528 (1979) Respondent s counsel argues that the Company insisted to impasse over this issue and therefore never violated the Act Respondent s counsel argues that a clear reading of correspondence indicates that the Re spondent wanted to negotiate further the stenographic issue and that it was the Union that insisted to impasse that one not be used I disagree with Respondents counsel and find that im passe was reached over the stenographic issue at the 28 December 1984 meeting when the Union walked out A reading of subsequent correspondence merely reinforces the fact that impasse had been reached and would not be broken until Respondent changed its position Respond ent s argument that it was the Union that insisted to im passe over not using a stenographer is merely an admis sion that Respondent committed the alleged violation Furthermore I find that Respondents violation delayed bargaining for 1 1/2 months Accordingly I find that Respondent violated Section 8(a)(1) and (5) of the Act by insisting to impasse on the presence of a court stenographer during contract negoti ations C Refusing to Negotiate Over the Layoff It is admitted that Respondent laid off 20 unit employ ees on 14 December 1984 without giving the Union prior notice or an opportunity to bargain over the layoff or its effects It was stipulated that 11 of these employees were recalled on 6 March 1985 and 8 more were recalled on 18 March 1985 One laid off employee quit The parties further stipulated that on 25 February 1985 they attempt ed to negotiate an interim seniority provision focusing on layoff and recall which would apply until a collective bargaining agreement was signed They further stipulated that on 28 February 1985 both sides made proposals over the seniority provisions as they applied to layoff and recall They finally stipulated that on 12 March 1985 the parties took final positions and could not reach agreement on the layoff and recall issues either on an in terim or permanent basis William D Andrea testified that on 14 December 1984 all employees were called to the lunchroom and told that there would be an indefinite layoff effective that day due to lack of orders and a slowdown in business Frank Balish vice president of manufacturing testified that Sherwin Williams was their largest customer In making up the December production schedule the Sher win Williams account was considered because it ap peared that this company would submit another larger order Production was increased in anticipation of the large order which never materialized The Sherwin Wil liams order was not received until late February 1985 and was not shipped until the second week in March Balish testified that the Company s new price list was sent to all customers in early December 1984 Normally when this is done customers submit orders in December to take advantage of the old lower prices On 13 De cember 1984 Balish reviewed the sales figures and found they were very low On 14 December 1984 he did the same thing in addition to reviewing his inventory posi tion and realized that there was no improvement Busi ness for December 1984 was down 37 percent from the rest of 1984 December 1984 was the worst month in 3 years and the worst December the Company had experi enced in 5 years Based on this information Balish made the decision to lay off employees that day He did not consult with anyone and did not tell McKinnon about it until after the employees were laid off Balish was present when D Andrea informed the employees of the layoff and when asked about recall he told the employ ees they would be recalled when there was less invento ry in the warehouse Balish testified that he decided to layoff employees be cause of the upcoming acquisition of Rutland Fire and Clay Inc (which McKinnon was negotiating) the conse quent need to save money and the severe deterioration in business Balish further testified that he did not notify the Union of the layoff primarily because he had heard rumors that the Union might strike and he did not want to weaken the Company s position at the bargaining table Balish also mentioned that secrecy in the acquisi tion of Rutland was necessary because knowledge of this action might have precipitated some action on the Unions part however this reason was not given on cross examination Balish stated that he had heard about the proposed acquisition of Rutland in August 1984 and McKinnon discussed saving money with him but did not give specifics He admitted that layoffs were never men tioned in his conversation with McKinnon Malcolm McKinnon testified that he leaves the pro duction decisions up to Frank Balish and does not become involved McKinnon stated that he first entered negotiations to purchase Rutland in August 1984 His first purchase proposal was made in October 1984 and it was around this time that he discussed the need for se crecy with five of his top managers including Balish Ac cording to McKinnon secrecy was important because the acquisition might affect Rutland employees adversely and further he did not want his competitors bidding against him for Rutland On 6 December 1984 McKin non made his final purchase proposal to Rutland It was UNITED GILSONITE LABORATORIES also at this time that he discussed saving money with his top management in order to help pay for the acquisition No directives were given to management on how to ac complish this purpose On 17 December 1984 Rutland made a conditional acceptance of McKinnon s offer and a public announcement of the sale was made on 6 Janu ary 1985 On 2 February 1985 the Rutland shareholders disapproved the sale McKinnon admitted that he did not participate in the layoff and in fact knew nothing about it until after the fact He presumed that the employees were laid off because their services were no longer needed He further admitted that Balish made the deci sion not to tell the Union about the layoff Robert Ufberg Respondents attorney testified that after the Union was certified on 1 October 1984 the par ties had negotiating sessions on 6 and 29 November and 18 and 28 December 1984 He further testified that on 5 February 1985 he called Monahan and informed him that he would proceed with negotiations without a stenogra pher Shortly thereafter in Ufberg s office Ufberg told Monahan that he was prepared to discuss the layoff and recall with the Union Monahan replied that because there were charges pending over these matters they should be discussed with the Union s attorney Robert Mariam At the 13 February 1985 negotiation session with the Union s attorney present the Union did not mention the layoff or recall issue Analysis and Conclusions Before addressing the issues in this case it should be made clear that the General Counsel did not allege nor was there any evidence that the layoff was a violation of Section 8(a)(1) and (3) of the Act It is well settled that the layoff of unit employees without notifying and affording the collective bargaining representative an opportunity to bargain regarding such action is a unilateral change in terms and conditions of employment that violates Section 8(a)(1) and (5) of the Act Respondent admits that it laid off the employees in question without notifying the Union or affording it an opportunity to bargain about any aspect of the layoff However Respondents counsel raised several affirma tive defenses that support his theory that Respondent had no legal obligation to bargain over the layoffs Respondent advances the argument that when the par ties first met they agreed on ground rules that in effect give the Company the right to manage its operations as it had prior to certification I find that this argument lacks merit because there was no evidence presented that the Union unequivocally waived its right to notice and bargain over the subject layoff or any layoff Respondent next argues that because business condi tions required that the layoff be made expeditiously and because decision to layoff was made contemporaneously with the layoff there was no time in which to notify the Union I find that these arguments also lack merit Be cause the parties were in active and ongoing contract ne gotiations and were located in the same city it would have taken very little time to telephone the Union with the required information This was not considered by Balish because he did not want to give the Union an 929 undue advantage at the bargaining table His reason con tradicts counsel s argument Respondent argues that after the Union learned of the layoff it made no attempt to discuss or negotiate the issues with the Company I find this defense lacking in merit because as the General Counsel stated in her brief the Union was presented with a fait accompli which under the circumstances would not require it to engage in the futile and unnecessary gesture of requesting bar gaining about a layoff that has already occurred Respondents final argument is somewhat nebulous but seems to be grounded on the Otis Elevator Co 269 NLRB 891 (1984) and First National Maintenance Corp v NLRB 452 US 666 (1981) line of cases Counsel argues that because Respondents likely purchase of Rut land involved a significant change in the nature and di rection of United Gilsonite s business it had no obliga tion to bargain over the decision to purchase Apparently counsels position is that if Respondent had to negotiate over the layoff it necessarily would have to negotiate over the purchase of Rutland because that was one of the reasons for the layoff I disagree with Respondent s counsel on several accounts First I find the line of cases cited by counsel inapposite to the case before me We do not have a permanent partial closing of a business or the removal of research and development functions to an other part of the country in this case The case at issue does not involve a change in the scope and direction of the Respondents business enterprise in Scranton but in volves the temporary layoff of employees that presump tively involves an aspect of the employer employee rela tionship Furthermore I find that the evidence does not support counsels contention that the layoff was linked to the purchase of Rutland In fact the evidence supports an opposite conclusion-that the purchase of Rutland had nothing to do with the layoff Although there was no financial data presented in sup port of Respondents contention it seems incredible that although Respondent became seriously interested in pur chasing Rutland as far back as October 1984 when it made a proposal to purchase it waited until 6 December 1984 11 days before Rutland s acceptance to worry about saving money for a purchase that presumably would cost millions To the contrary all the evidence given by Balish supports my conclusion that the layoff was directly and solely related to the economic condition of Respondent in December Balish testified that he never received the large Sherwin Williams order al though the Company had produced in anticipation of re ceiving it He stated that orders were down from all other customers making December 1984 the poorest De cember in 5 years and the poorest month in 3 years Al though Balish knew about saving money as early as 6 December 1984 he waited until 14 December when he finally realized there would not be sufficient orders before deciding to lay off employees Finally it is inter esting to note although Respondent knew it would not purchase Rutland on 2 February 1985 it waited a month before recalling any employees However the recall cor responds exactly with the shipment of the Sherwin Wil hams order Accordingly I find that the layoff was a 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD proper subject for bargaining and that Respondents fail ure to notify the Union and bargain over the effects constitutes a violation of Section 8(a)(1) and (5) of the Act Discussion of remedy as it applies to the above viola tion is appropriate because it is the most important ele ment in the entire case Both the General Counsel and the Charging Party citing Eltra Corp 263 NLRB No 106 (Aug 31 1982) (unpublished) and other cases assert that backpay for the 19 laid off employees should be or dered from the date of the layoff until the earliest of the following conditions is met (1) mutual agreement with the Union is reached (2) good faith bargaining results in bona fide impasse (3) Union fails to commence negotia tions within 5 days of receiving Employers notice of desire to bargain and (4) the Union subsequently fails to bargain in good faith Under their theory backpay should be ordered from 14 December 1984 until the par ties reached impasse on 12 March 1985 in the case of 8 employees recalled on 18 March 1985 and from 14 De cember 1984 until 6 March 1985 in the case of 11 em ployees recalled on the latter date Respondent argues that backpay is not an appropriate remedy because the layoff would have taken place even had the parties bar gained Alternatively Respondent argues that in no event should backpay be ordered for a period longer than from the date of layoff until Respondent offered to negotiate over layoff and recall and the Union failed to respond at the next bargaining session on 13 February 1985 If I were to use the above formula and case law I would agree with Respondents alternate theory and limit backpay from the date of layoff to the 13 February 1985 negotiating session My decision is based on the fact that there is undisputed testimony by Ufberg that about 5 February 1985 he offered to bargain over the issues in question and at the next negotiating session on 13 Febru ary 1985 the Union failed to respond to the Company s offer even though the Union s attorney was present However I conclude that the above discussion does not dispose of the backpay issue In Gulf State Mfrs. 261 NLRB 852 (1982) the Board used the same formula as that discussed above in fashioning a remedy for a similar violation On remand the Board was ordered to deter mine whether in light of the evidence concerning the employers economic condition the layoffs would have been delayed during the bargaining period and if so by how much In Gulf States Mfrs` 271 NLRB 772 (1984) the Board concluded that backpay was unwarranted be cause bargaining would not have changed or delayed Respondents decision to lay off employees The layoff decisions were arrived at on very short notice based on factors outside its control and were consistent with past business decisions to lay off employees when orders de clined In reviewing the undisputed evidence of this case I find as in the Gulf States case that bargaining would not have changed or delayed Respondents decision to layoff As stated above this was Respondents poorest December in 5 years and its poorest month in 3 years Business for December was 37 percent lower than for any other month in 1984 Furthermore Sherwin Wil liams its largest customer did not submit an order for which Respondent produced inventory in anticipation of receiving Respondent was thus faced with large invento nes and unneeded production All of these developments were beyond its control Although Respondents action was not consistent with past business decisions with re spect to layoffs the evidence cited above indicates that the Company had not faced a situation similar to this in the past 5 years and Sherwin Williams did not become a customer of Respondent until 1984 Therefore I conclude that a backpay remedy for the laid off employees is unwarranted because bargaining would not have changed or delayed the ultimate out come CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 All regular full time production and maintenance employees including leadmen and laboratory employees employed by the Employer at its New York Street and Jefferson Avenue Scranton Pennsylvania facility con stitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act 4 By insisting to impasse on the presence of a court stenographer to make a stenographic record of contract negotiations Respondent violated Section 8(a)(1) and (5) of the Act 5 Respondent violated Section 8(a)(1) and (5) of the Act by laying off employees without notice to and bar gaining with the Union 6 The foregoing unfair labor practices affect com merce within the meaning of Section 2(6) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act I shall recommend that it be ordered to cease and desist therefrom and post an appropriate notice to that effect Having found that Respondents conduct in insisting to impasse on using a court stenographer at negotiating ses sions delayed bargaining for 1 1/2 months during the certification year I will extend the certification year from 1 October to 15 November 1984 On these findings of fact and conclusions of law and on the entire record I issue the following recommend edi 1 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 UNITED GILSONITE LABORATORIES 931 ORDER The Respondent United Gilsonite Laboratories Inc Scranton Pennsylvania its officers agents successors and assigns shall 1 Cease and desist from (a) Insisting to impasse on the presence of a court ste nographer to make a stenographic record of contract ne gotiations (b) Laying off employees without first giving notice to and bargaining with the Union (c) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its New York Street and Jefferson Avenue Scranton Pennsylvania facility copies of the attached notice marked Appendix 2 Copies of the notice on forms provided by the Regional Director for Region 4 after being signed by the Respondents authorized repre sentative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other maters al (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 2If 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