Louisiana Dock Co., Inc And American Commercial Terminals, Inc

LOUISIANA DOCK CO Louisiana Dock Company, Inc and American Com- mercial Terminals, Inc and United Industrial Workers Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO Cases 15-CA-8234, 15-CA-8317, 15-CA-8489, 15- CA-8680, and 15-CA-8736 March 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On November 8, 1983, Administrative Law Judge Richard J Linton issued the attached deci- sion The Respondents, the Union, and the General Counsel filed exceptions and supporting briefs, and the Respondents and the Union filed answering briefs 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 1 and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order Respondent Louisiana Dock Company, Inc (LDC), performs river barge cleaning, fleeting, and repair work at facilities in Harahan and Westwego, Louisiana, and in Cairo and Hennepin, Illinois From March 1978 to January 1, 1979, LDC also operated a coal transfer facility in Louisville, Ken- tucky On the latter date Respondent American Commercial Terminals (ACT) took over the oper- ation of the Louisville coal transfer facility as LDC's successor 3 About mid-1980, ACT also opened a barge manhole cover manufacturing facil- ity at the Louisville location 4 Both LDC and ACT (jointly the Respondents) are subsidiaries of American Commercial Lines, Inc The General Counsel, however, has not alleged that LDC and ACT are single or joint employers i The Union has filed with the Board a motion to strike certain of the Respondents exceptions In the motion the Union asserts that the Re spondents statement of exceptions fails to meet the requirements of Sec 102 46(b) of the Board s Rules and Regulations We have examined those of the Respondents exceptions that allegedly fail to comply with our rules and find that they do not warrant striking 2 We adopt for the reasons set forth by the judge his findings that Re spondent LDC violated Sec 8(aX5) and (1) of the Act by its unilateral cutback in pay for employees performing leadmen s duties and by its fail ure to bargain with the Union over the effects of the June 28 and Sep tember 16 and 17 1982 layoffs As set forth below however we have modified the judges recommended remedy with respect to these findings 8 The parties concede ACT s successorship 4 ACT also operates a warehouse in Louisville and coal transfer facili ties at four other locations not involved in this proceeding 233 I The judge found that the Respondents violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the collective bargaining representative of employees in a single bargaining unit composed of employees in the operations de- scribed above, and by insisting to impasse on bar- gaining in separate units The judge also found that the Respondents violated Section 8(a)(5) and (1) by implementing certain unilateral changes following the resulting impasse in bargaining We find merit in the Respondents' exceptions to these findings The bargaining history among the Respondents and the United Industrial Workers Union (UIW or Union) is set forth in detail in the judge's decision In summary, since 1972 LDC and the Union have been parties to collective-bargaining agreements covering laborers and maintenance employees at certain barge cleaning, fleeting, and repair facilities The most recent master collective-bargaining agreement was effective from August 19, 1976, to August 19, 1981 This agreement included a recog- nition clause covering the above facilities, as well as three coal transfer facilities that were not in ex- istence at the time of the agreement's execution in 1976, including the Louisville transfer facility 5 The master agreement did not indicate expressly whether the facilities were recognized in a single collective-bargaining unit, or multiple units The pivotal issue in this case is the scope of the bargain- ing unit or units covered by that agreement The Union and the General Counsel contend that the parties have mutually recognized and bargained in a single, multisite unit They contend that this rec- ognition is embodied in the parties' collective-bar gaining agreements and is implicit in the parties' bargaining history The Respondents argue that the Union has been recognized in single, distinct units at each of the facilities in question In July 1981 the parties met in anticipation of the expiration of the 1976-1981 agreement The Union submitted a recognition proposal referring to LDC's Harahan, Westwego, Cairo, and Hennepin facilities, as well as the "coal transfer facilities and manhole cover product facilities located at Amen- can Commercial Terminals in Louisville, Ken- tucky " The Respondents, acting through Robert Kilroy,6 agreed to negotiate regarding all employ- s The Louisiana coal transfer facility began operations in March 1978 On March 17 1978 the Union and LDC executed a memorandum of un derstanding recognizing the Union as the bargaining agent for these em ployees and agreeing to the terms of the 1976-1981 master agreement subject to certain provisions contained in an addendum dated January 15 1977 9 Kilroy was the vice president of labor relations for American Com mercial Barge Lines Inc a subsidiary of the Respondents corporate parent American Commercial Lines Inc 293 NLRB No 21 234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees except those at the Louisville facility At this meeting Kilroy explained that he would not negoti- ate regarding the Louisville employees at that time because a representation proceeding had been filed with respect to a requested unit of Louisville pro- duction and maintenance employees and was then pending in the Board's Regional Office 7 The Union insisted that bargaining include employees at all five locations, asserting that there was a single bargaining unit Kilroy replied that Louisville was always separate Neither party altered its stand on the scope of bargaining as it pertained to the Louis- ville employees,8 and negotiations stalemated Re- spondent LDC thereafter announced to its employ- ees, and then implemented, changes in job classifi cations,9 wage rates and shift differentials, holi days, insurance and pension benefits, and other items consistent with the proposals offered to the Union 10 The Respondents made no changes in the terms and conditions of ACT's Louisville employ- ees The judge found that the recognition clause of the most recent (1976-1981) master agreement clearly expressed the intent of the Respondents to recognize the Union as the representative of all em- ployees in a single, multisite unit The clause reads Section 1 The Company recognizes the Union as the sole collective bargaining agent for wages, hours, and conditions of employ- ment for all employees at its Harahan and Westwego, Louisiana fleeting and repair facili- ty, its Cairo, Illinois fleeting and repair facility, and its coal transfer facilities located at Hall Street, St Louis, Missoun, Columbia Bottoms, St Louis County, Missouri, and at Louisville, Kentucky, excluding all office and clerical em ployees, professional employees, guards and r This petition was filed by the Inland Riverman s Association on May 20 1981 A second petition covering this unit was filed by the Teamsters on August 19 1981 9 As noted by the judge in his decision the Respondents indicated at the July 9 1981 bargaining session that they sought separate agreements one covering Harahan Westwego as a separate unit and a second cover ing Cairo Hennepin but that they would not insist to impasse on this po- sition 9 The following classifications were instituted at that time master me chanic combination mechanic and utility man Further changes regard mg the job duties of station mechanic and utility man were also imple mented 10 In sec III (E) (5) of his decision the judge credited testimony that an absentee policy was not implemented at the Harahan shipyard at this time but nevertheless found that LDC unilaterally announced an over time and absentee policy at the three other LDC facilities The evidence about the announcement however indicates that it was made solely to Harahan shipyard employees and there is no evidence that such changes were announced or implemented at the other LDC facilities Assuming arguendo that these changes were made at Harahan the record is clear that such changes were included within prior proposals offered to the Union supervisors, as defined in the National Labor Relations Act i i Although the judge acknowledged that the clause does not refer to the grouping as a bargaining unit, he found such a reference "implied by tradition " The judge thus concluded that this language indi- cated an unambiguous expression of recognition in a single unit The judge found further support for his conclu- sion in the testimony of the Respondents' negotia tor, Kilroy Kilroy testified that at the time of the negotiation of the most recent contract in 1976, both company and union officials wanted to insu- late the Respondents' facilities from organization by any union other than the UIW Without any specific evidence to support his rationale,12 the judge reasoned that this objective was more easily served by a recognized single unit He further noted that an additional reason for the UIW to favor a single unit is that a decertification petition cannot be filed for a portion of a unit, but rather must be coextensive with the recognized unit The judge noted that other details of the bargaining his tory, discussed below, tended to support the posi- tions of both parties He concluded, however, that the parties had mutually recognized as appropriate a single, multilocation unit Accordingly, the judge found that the Respondents' refusal to bargain for that unit created an unlawful impasse in negotia- tions and that this conduct, as well as the unilateral changes made thereafter, violated Section 8(a)(5) and (1) of the Act For the following reasons, we do not agree Absent certification, the existence of a multisite unit is based on the agreement of the parties When there is no clear and unambiguous contract provi- sion setting forth the parties' agreement, it may be evidenced by bargaining history or a pattern of bargaining Sambo's Restaurants, 212 NLRB 788 (1974) Examination of the terms of the master agreement fails to establish that LDC recognized the Union as the representative of the employees in the five facilities involved as a single, multisite unit Moreover, the bargaining history fails to evidence an intention to treat these facilities as one overall unit The 1976 recognition clause relied on by the judge does not clearly define the bargaining unit as a single, multisite unit The language merely ac 11 At the time of the negotiations in 1981 the Union no longer repre sented employees at the St Louis coal transfer facility and the Columbia Bottoms facility had never begun operations iz Although the evidence indicates that the UIW and LDC shared a mutual desire to prevent other labor organizations from organizing LDC employees this was only in reference to the parties practice of including within the recognition clause facilities that had not yet commenced oper ations LOUISIANA DOCK CO 235 knowledges LDC's recognition of the Union as representative of employees at certain locations, not all of which were in existence at the time It provides no express indication whether such recog nition is in a single unit or multiple, distinct units Thus, the clause itself is too ambiguous to support a finding that LDC and the Union intended a single unit 13 The bargaining history between the Respondents and the Union also does not support a finding of a single, multisite unit To the contrary, the evidence indicates that they intended to bargain in more than one unit of employees First, we note that each of the facilities covered by the master agree- ment was likewise covered by an addendum to that agreement In the addenda, the parties set out the wage rates and holidays for the employees at each location The economic packages reflected by these side agreements vaned widely For example, an ad- dendum effective January 16, 1979, set the wage rates for mechanic I at Harrahan and Westwego at $7 28 per hour, whereas the Cairo workers were paid $5 63 per hour By 1981 this wage disparity had grown to the point where employees in the mechanic I classification received $8 10 at Harahan and $6 27 at Cairo Second, we note that negotia- tions to obtain these addenda occurred at different times and places, and with varying effective dates Third, it is significant that from the time the parties first began negotiating in 1972 until 1981, the Union never expressly stated that it considered the diverse, geographically dispersed facilities of the Respondents a single bargaining unit On the con- trary, in a July 16, 1979 letter from the Union's ex ecutive vice president to the Respondents' counsel, reference is made to the various units Finally, there is no evidence that ACT, following its acqui- sition of the Louisville facility, ever indicated an intent to include this location in a multisite bargain- ing unit with the LDC facilities As indicated in a letter dated January 23, 1979, on American Com- mercial Barge Lines stationery, the Union was noti- fied by Kilroy that ACT had become the successor to LDC for the Louisville facility 14 About the same time, Kilroy also sent the Union a letter re- stating the results of wage reopener negotiations regarding the Louisville location In this addendum letter, Kilroy notes the parties' agreement on wage rates for the Louisville unit and the Cairo/Hen- 19 Compare Heck s Inc 234 NLRB 756 757 (1978) (recognition clause providing that the employer recognized the union as the representative for all selling and nonselling employees employed at the stores and ware house evidences parties clear intent to create one overall unit) Duval Corp 234 NLRB 160 161 (1978) (recognition clause evidenced parties intention to create separate bargaining units in one centralized contract) 14 The judge noted that there was no express reference to the Louis ville facility in this letter but that the letter was effective notification of this change regarding Louisville nepin units The Union made no protest to this no- menclature, and countersigned the addendum letter This is the sole document in the record re- garding the Louisville location following ACT's acquisition of the facility,15 and its clear reference to the "unit" at Louisville runs counter to the Gen- eral Counsel's claim that it was part of a multiloca- tion unit 16 In light of all these factors, we find that the Respondents recognized the Union as the representative of the employees in units of ACT and LDC employees and that this recognition re- flected the parties' intent 17 Accordingly, by condi- tioning bargaining on the Respondents' recognition of a single unit, the Union was demanding bargain- ing in a unit other than the recognized unit, and the Respondents had no duty to comply with this demand Young & Hay Transportation Co, 214 NLRB 252 (1974) 18 As the Respondents did not act unlawfully in re fusing to bargain over the unit insisted on by the Union, we find that the Respondents' unilateral im- plementation of previously proposed changes in job classifications, wage rates, benefits plans, attend- ance policies, and other matters in August and Oc- tober 1981 did not constitute a violation of Section 8(a)(5) and (1) The Union rejected the Respond- ents' offers to bargain, insisting on negotiating only in the multisite unit Thus, as the Board noted in Young & Hay Transportation Co, "[t]he Union cannot be heard to protest the Respondent's unilat- eral actions, inasmuch as it was the Union's own acts which foreclosed effective negotiations " Id at 16 In making this statement we are mindful that the Respondents have not disputed the judge s formal conclusion that ACT adopted LDC s col lective bargaining agreement with the Union regarding the Louisville em ployees However there is no evidence that ACT s compliance with the terms of the agreement included any acknowledgement regarding the Union s position on the scope of the contractual unit 16 We note that this letter is in express reference to the Cairo/Hennepin and Louisville addendums to master agreement be tween UIWNA & Louisville Dock Co Notwithstanding this reference to LDC we presume that Kilroy had negotiated the Louisville adden dum on behalf of ACT in view of the fact that ACT had taken over operations there a few weeks before the date of this letter If on the other hand Kilroy had in fact negotiated the addendum solely on behalf of LDC then there is no documentary evidence whatsoever regarding ACT s treatment of the Louisville site In either case this documentary evidence does not support the General Counsel s position 17 In reaching this finding we need not consider whether each of the LDC locations was recognized as a separate unit In this regard howev er we note that the Harahan and Westwego facilities were treated to gether and the Hennepin and Cairo facilities were likewise treated to gether for certain purposes See also fn 7 above 18 In view of our finding with respect to the scope of the collective bargaining units in this proceeding we need not consider the Respond ents reliance on the pending representation petition of the Inland River man s Association and the Respondents specific citation to the Union of then-current precedent that required the Respondents not to negotiate with the incumbent union when a competing labor organization had filed a representation petition We note however that the precedent referred to by the Respordents Shea Chemical Corp 121 NLRB 1027 (1958) was subsequently overruled in RCA Del Canbe 262 NLRB 963 (1982) Cf Dresser Industries 264 NLRB 1088 (1982) 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 253 Moreover, we note that no changes were made at ACT's Louisville facility and that the changes occurring at the four LDC facilities were consistent with the Respondents' prior bargaining proposals Compare Taft Broadcasting Co, 169 NLRB 475 (1967), petition for review denied 395 F 2d 622 (D C Cir 1968), Thomas Sheet Metal Co, 268 NLRB 1189 (1984) In these circumstances, we also find that the Respondents' announcement to its employees of the implementation of the unilateral changes was not unlawful direct dealing Faced with the Union's refusal to bargain, the Respond- ents had no choice but to correspond directly with their employees concerning these changes Accord ingly, we reverse the judge's finding that the Re spondents violated Section 8(a)(5) and (1) of the Act by making unilateral changes and announcing those changes to the employees, and we shall dis- miss the corresponding complaint allegations The foregoing unilateral change allegations are the only complaint allegations in this proceeding that in- volve conduct for which Respondent ACT is charged with any responsibility The remaining complaint allegations involve conduct that oc- curred solely with respect to LDC's four facilities Accordingly, because the complaint does not allege LDC and ACT to be a single employer or joint employers, or alter egos, we find that Respondent ACT has not engaged in unfair labor practices within the scope of this proceeding We shall, therefore, dismiss the complaint regarding ACT 19 The judge, relying on his unit scope finding, fur- ther found that the Respondents unlawfully insti- tuted unilateral wage increases in August 1982 for unit employees at the four LDC facilities represent- ed by the Union We have rejected the judge's unit finding and thus cannot adopt his finding a viola- tion on this ground Nor do we find any other basis for finding a violation with respect to these wage increases The Respondents' wage proposals in the 1981 ne gotiations covered wages for the year following the expiration of the contract in August 1981 As the judge found, in April 1982, LDC requested a meeting with the Union to discuss wage increases and other matters at the four LDC facilities The Union refused to meet unless negotiations covered the Louisville employees In May, LDC again noti- fied the Union that it wished to make changes in the wages of the LDC employees, and solicited the Union for dates on which it could have representa- tives available to negotiate As an alternative, LDC 19 Subsequent to the hearing in this case the Union has made the con tention that for the purposes of formulating a remedy LDC and ACT should be found a single employer We find that this issue was not litigat ed in this proceeding stated that it would give the Union notice of the proposed changes and an opportunity to respond prior to their implementation On July 27, LDC notified the Union of the wage increases for the LDC facilities that were to go in to effect August 1, 1982,20 and requested the Union to advise it if and when the Union changed its bargaining posi tion The Union never attempted to negotiate re garding changes in wages at these LDC facilities The changes were implemented on August 1, 1982 These facts show that the Union was accorded a full opportunity to bargain over wage increases to be implemented in 1982 at the LDC facilities The Union, however, refused to bargain, as requested by LDC, with respect to the latter's four facilities, insisting instead that any bargaining must include ACT's Louisville facility as well Despite this re- fusal, LDC provided the Union with advance noti- fication of the specific wage changes The Union, however, still did not agree or seek to negotiate with LDC concerning those changes In these cir cumstances, we find that the Union had an oppor tunity to bargain over the specific wage increases but chose not to do so Accordingly, because the Union insisted to impasse on bargaining in a unit that the evidence fails to establish was agreed on by the contracting parties, and because it had notice and the opportunity to bargain about the proposed changes, we find that LDC's institution of the wage changes was not unlawful II The judge found that LDC laid off unit em- ployees on June 28 and September 16 and 17, 1982, without giving the Union notice of the layoff and an opportunity to bargain over the effects of the layoff He concluded that LDC thereby violated Section 8(a)(5) and (1) as it pertains to its effects bargaining obligation 21 As a remedy, the judge or dered LDC only to cease and desist from failing to give notice and the opportunity to bargain over the effects of future layoffs The judge declined to order a make whole remedy or to require that the parties affirmatively bargain over the effects of these layoffs on the ground that the Union had the opportunity to and did bargain over the effects during September and October 1982 and because he found that the employees would have been laid off in any event We find merit in the exceptions of 20 Wages for the Cairo and Hennepin employees were to be increased by 5 percent and the Harahan and Westwego employees were to receive a 25 cent per hour increase 21 The General Counsel has not alleged that the decision to lay off em ployees entailed a bargaining obligation and we affirm the judge s find ing that this issue was not fully litigated in this proceeding Although the complaint alleged that the Respondents failed to provide the Union with an opportunity to negotiate the effects of layoffs occurring on i l other dates in 1982 the judge dismissed these allegations No exceptions were filed regarding these dismissed allegations LOUISIANA DOCK CO 237 the General Counsel and the Charging Party to the judge's limited remedy for these violations In cases in which an employer has failed to provide its em- ployees' bargaining representative with an opportu- nity to engage in effects bargaining, including bar- gaining over the effects of the layoff of employees, the Board traditionally has imposed a limited back- pay requirement and an affirmative order that the parties bargain over these effects See Litton Busi- ness Systems, 286 NLRB 817 (1987), Transmarine Navigation Corp, 170 NLRB 389 (1968) In fashion- ing this remedy, the Board has specifically found that in order to assure meaningful bargaining a lim- ited backpay requirement is needed In view of the Board's recognition that such a backpay award is a necessary precondition for meaningful bargaining, we find that whatever bargaining the Union and LDC had engaged in regarding the effects of the layoffs after the layoffs had occurred is inadequate to fulfill LDC's affirmative obligations in this regard 22 For these reasons, we shall amend the remedy recommended by the judge and require LDC to provide limited backpay and to bargain re- garding the effect of the layoffs III Finally, we affirm the judge's conclusion that LDC did not violate Section 8(a)(5) and (1) by refusing to arbitrate certain grievances arising at the Harahan facility following the expiration of the collective-bargaining agreement As noted above, the most recent bargaining agreement had a termi- nation date of August 19, 1981 The parties had ne- gotiated an addendum for the Harahan facility on January 17, 1977, which included a grievance arbi tration provision containing a no-strike clause 23 The grievances in question were filed with respect to layoffs in June and July 1982 and certain termi- nations occurring in May 1982 As detailed in the judge's decision, the parties processed these griev- ances in a manner in accord with the initial steps of the contract's grievance procedure and LDC denied the grievances On July 13, 1982, the Union asked LDC if it would arbitrate the grievance on the discharges, and it was informed that LDC 22 For what are essentially analogous reasons the Board has found that an employer may not fulfill its bargaining obligation regarding the effects of a decision by affording a bargaining representative an opportunity to bargain about the effects only after the decision has been made or has become a fait accompli See P J Hamill Transfer Co 277 NLRB 462 463 (1985) 23 The addendum included the following provision GRIEVANCE PROCEDURE A Grievances are any disputes arising between the parties hereto relating to arising out of or in connection with or involving ques tions of interpretation or any acts conduct or relations between the parties hereto or their members Should grievances as defined herein apse there shall be no suspension of work and an earnest effort shall be made to settle such difficulties promptly in the manner hereafter outlined The final step in this grievance procedure involved binding arbitration would not arbitrate the grievance unless the Union would give up its right to strike Similarly, on Sep- tember 2, 1982, when the Union requested that LDC submit the layoff grievances to arbitration, LDC inquired whether, in exchange for an agree- ment to submit the matters to arbitration, the Union would give up its right to strike over those issues The Union refused, and LDC's representa- tive stated that this would be the quid pro quo for any agreement to arbitrate The judge found that LDC was not warranted in claiming that the expi- ration of the collective-bargaining agreement re- lieved it of any duty to arbitrate, because the judge concluded that what he found to be LDC's unlaw- ful position on unit scope operated to extend the agreement as a matter of law Nevertheless, the judge further noted that LDC was willing to waive any contention that the contract had expired and merely sought from the Union a reaffirmance that it would honor its agreement not to strike pending arbitration of the issues under the terms of the ex- pired contract's grievance procedure The judge concluded that LDC's refusal to arbitrate the grievances after the Union declined to provide such an assurance did not violate the Act For the purposes of our analysis, we shall assume arguendo that the above grievances involved mat- ters that arose under the expired contract See Indi- ana & Michigan Electric Co, 284 NLRB 53 (1987) In light of the evidence, we agree with the judge's conclusion that LDC did not refuse to arbitrate the grievances here in issue, but merely sought to gain from the Union an acknowledgement that the prior contract's no-strike clause had coterminous applica- tion with LDC's duty to arbitrate We agree with this interpretation of the parties' contractual provi- sions, and further agree that the Union's refusal to reaffirm the continued effectiveness of the no-strike provision with respect to issues submitted to arbi- tration served to release Respondent LDC from any obligation to continue honoring the arbitration provision In reaching our decision, we do not rely on the judge's conclusion that the collective-bar- gaining agreement was extended by operation of law because of the Respondents' bargaining posi tion, because we have found above that that posi tion was lawful Therefore, in agreement with the judge, we find that Respondent LDC's action with respect to the Union's arbitration requests did not violate Section 8(a)(5) and (1) of the Act AMENDED REMEDY Having found that Respondent LDC violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to take certain affirmative action, and to post the appropriate notice With 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD regard to the unilateral cutback in the number of employees performing leadmen's duties, we affirm the affirmative remedy set forth in the judge's rec- ommended decision 24 In addition, having found that LDC, by failing to bargain with the Union over the effects of the June 28 and September 16 and 17, 1982 layoffs, has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall accompany our order to bargain with a limited backpay requirement de signed both to make whole the employees for losses suffered as a result of the violation and to recreate in some practicable manner a situation in which the parties' bargaining position is not entire- ly devoid of economic consequences for the Re- spondent We shall do so in this case by requiring the Respondent to pay backpay to its employees laid off on those dates in a manner analogous to that required in Transmarine Navigation Corp, supra, and Interstate Tool Co, 177 NLRB 686 (1969) Thus the Respondent shall pay all affected employees backpay at the rate of their normal wages when last in the Respondent's employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions (1) the date the Respondent bargains to agreement with the Union on those subjects per- taining to the effects of the layoffs of June 28 and September 16 and 17, 1982, (2) a bona fide impasse in bargaining, (3) the failure of the Union to re- quest bargaining within 5 days of the Respondent's notice of its desire to bargain with the Union, or (4) the subsequent failure of the Union to bargain in good faith, but in no event shall the sum paid to any of these employees exceed the amount he would have earned as wages from the dates on which he was laid off or terminated to the time he was recalled or secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain, whichever occurs sooner, provided, however, that in no event shall this sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ ORDER The National Labor Relations Board orders that the Respondent, Louisiana Dock Company, Inc, Harahan and Westwego, Louisiana, Cairo and Hen- nepin, Illinois, and Louisville, Kentucky, its offi- cers, agents, successors, and assigns, shall 1 Cease and desist from 24 Interest will be computed as prescribed in New Horizons for the Re Larded 283 NLRB 1173 (1987) (a) Refusing to bargain with the United Industri al Workers Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (UIW) by fail ing to give reasonable notice to the UIW and the opportunity to bargain about the effects of the lay- offs of unit employees (b) Refusing to bargain with the UIW by unilat erally cutting back on the number of employees performing leadmen's duties, including working daily overtime (c) In any like or related manner interfering with, restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Make whole, in the manner described in the amended remedy section of the Board's Decision and Order, the employees affected by the Respond- ent's failure to bargain about the effects of its deci- sion to lay off employees (b) Make whole, in the manner described in the amended remedy section of the Board's Decision and Order, the employees affected by the Respond ent's decision to reduce the number of employees performing leadmen's duties, including working daily overtime (c) On request, bargain with the UIW in the manner set forth in the amended remedy section of the Board's Decision and Order concerning the ef- fects of its decision to lay off employees and con- cerning the reduction in the number of employees performing leadmen s duties, including working daily overtime (d) Preserve and, on request, make available to the Board or its agents, for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at its locations at Harahan and Westwego, Louisiana, and Cairo and Hennepin, Il linois, copies of the attached notice marked 'Ap- pendix "25 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme diately upon receipt and maintained for 60 consec utive days in conspicuous places including all 25 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 LOUISIANA DOCK CO 239 places where notices to employees are customarily posted Reasonable steps shall be taken by the Re spondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply IT IS FURTHER ORDERED that the complaint is dismissed with respect to allegations not specifical ly found to violate the Act benefits resulting from our unilateral actions in the manner prescribed in the Board's Decision LOUISIANA DOCK COMPANY, INC Charlotte N White Esq, for the General Counsel Andrew C Partee Jr Esq (Partee & Waldnp) of New Orleans Louisiana for the Respondents Irwin H Cutler Jr Esq (Segal Isenberg Sales & Stewart), of Louisville, Kentucky, and Louis L Robein Jr Esq (Barker Boudreaux Lamy Gardner & Foley), of New Orleans, Louisiana for the Charging Party 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 unilaterally lay off employees without providing the United Industrial Workers Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (UIW) reasonable ad- vance notice and the opportunity to bargain about the effects of our decision to make such economic layoffs WE WILL NOT unilaterally cut back the number of employees performing leadmen's duties, includ ing working daily overtime, without first consult- ing and bargaining with the UIW over our decision and its effects on the affected employees WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act WE WILL, on request, bargain collectively with the UIW as the exclusive bargaining representative of our employees concerning the effect of employ- ee layoffs and the reduction in the number of em ployees performing leadmen's duties, including working daily overtime WE WILL make whole our bargaining unit em- ployees, with interest, for their loss of wages and DECISION STATEMENT OF THE CASE RICHARD J LINTON Administrative Law Judge Did the employer here unlawfully refuse to bargain with the Union The answer to that pivotal question, and to nearly all other issues in this case , hinges on determining whether, under the master collective bargaining agree ment the Employer and the labor organization had been operating under for nearly 5 years, there was one multi location bargaining unit covering five sites (as contended by the General Counsel and the Charging Party), or five separate units covered by a master contract with individ ual addendums (as argued by the Respondent) I find the answer to be the former This case was tried before me in New Orleans, Louisi ana, on October 27-29 and November 15-17, 1982, and April 11-13, 1983, pursuant to a series of consolidated complaints (complaint), the first one dated July 16 1982, issued by the General Counsel of the National Labor Re lations Board through the Regional Director for Region 15 of the Board The complaint was based on several charges, the initial one being filed July 10, 1981, by United Industrial Workers Union of the Seafarers Inter national Union of North America Atlantic Gulf, Lakes and Inland Waters District AFL-CIO (Union, Charging Party or UIW) against Louisiana Dock Company Inc (LDC) and American Commercial Terminals Inc (ACT) For reasons which follow, LDC and ACT nor mally are referred to herein as Respondent without dis tinction i In the complaint the General Counsel alleges that Re spondent violated Section 8(a)(1) (3) and (5) of the Act by various actions alleged to be unilateral changes and other refusals to bargain Later in this decision references are made to paragraph numbers such as paragraph 11, of the complaint These refer to the final consolidated com plaint which issued October 7 1982 This is not to over look that a later complaint dated October 20 1982 issued in Case 15-CA-8736 which case was consolidated with the others for trial The sole violation alleged in the October 20 1982 complaint describes (in par 11) certain unilateral layoffs in September-October 1982 By its answer Respondent admits certain factual mat ters but denies violating the Act ' All dates are for 1981 unless otherwise indicated 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, Charging Party, and Respondent I make the following FINDINGS OF FACT I JURISDICTION Louisiana Dock Company, Inc, a Louisiana corpora tion, performs river barge repair work and fleeting serv ices at its facilities in Harahan and Westwego Louisiana, and Cairo and Hennepin , Illinois During the past 12 months, LDC denved gross revenues in excess of $500,000 and purchased and received goods, materials, and services valued in excess of $50,000 directly from points located outside the State of Louisiana American Commercial Terminals , Inc, a Delaware corporation, maintains offices and places of business lo cated in Louisville , Kentucky where it operates a ware house and coal transfer facility ACT also operates trans fer facilities in St Louis Missouri Kenova, West Virgin ia, Uniontown, Kentucky , and Guntersville Alabama During the past 12 months, ACT derived gross revenues in excess of $500 000 and purchased and received goods materials, and services valued in excess of $50,000 direct ly from points located outside the State of Kentucky LDC and ACT each admits, and I find, that each is an employer within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION INVOLVED Respondent admits and I find that United Industrial Workers Union of the Seafarers International Union of North America Atlantic Gulf Lakes and Inland Waters District AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act References in the record to the affiliated bodies of the Union are not always precise However, UIW Port Agent Michael G Worley testimonially described sever al different organizations (Tr 3 353) 2 First there is the parent organization, Seafarers International Union (SIU) It is composed of 31 affiliated organizations One of those affiliates is Seafarers International Union of North America (SIUNA) (R Exh 24) Another is SIUAG and acronym for Seafarers International Union of North America Atlantic, Gulf, Lakes and Inland Waters Dis tract Finally the UIW is an affiliate of SIUAG (Tr 3 354) 2 Vol 7 of the transcript containing the record of the seventh day of the hearing begins with a new page sequence rather than continuing the existing sequence Instead of beginning with p 946 it begins with p 1 That pattern continues through the final day which is contained in vol 9 Of the 1532 pages comprising the record vols 1-6 bear the pagination I through 945 and vols 7-9 begin again at 1 and count through 587 Con sequently to the extent that I have made reference here to a page number of the record I have done so by using the biblical reference system so as to indicate the volume before the page number The parties were requested to utilize some equivalent designation system in their briefs The Charging Party and Respondent complied III THE ALLEGED UNFAIR LABOR PRACTICES A Principal Contentions of the Parties As noted at the beginning the principal issue concerns the scope of the bargaining unit, with the General Coun sel and the UIW expressing the view that the unit is multisite and Respondent representing that there are sep arate units In articulating their stands, each side argues that the collective bargaining history supports its post tion Beginning in July 1981 neither party would bargain for the unit the other side contended to be the one rec ognized under the contract Once the unit scope is discussed, there are allegations of unilateral changes to be addressed Some of these alle gations will be determined by the outcome of the unit scope question B Background 1 Corporate organization The firms involved in this case are all part of the cor porate empire of Texas Gas Transmission Corporation (TGTC) An organization chart in evidence shows the corporate functions and divisions of TGTC, its subsidiar ies and affiliates as of January 1, 1981 (G C Exh 8) According to the chart, TGTC divides its operation into five main functions or divisions corporate gas transmis sion services inland waterways services trucking serv ices and oil gas exploration and production Two of those divisions inland waterways services and trucking services are grouped under American Commercial Lines Inc (ACL), a Delaware corporation with an office in Houston Texas 3 It should be noted that ACL is TGTC s principal per haps only, holding company Of the 37 operating compa vies shown on the organization chart 21 fall under ACL s jurisdiction Of the 16 remaining firms it appears that 5 are not actually operational but are simply names reserved by TGTC for firms yet to be formed Thus as of January 1, 1981 ACL had about 65 6 percent of the companies actually operating (21 of 32) The record does not disclose whether ACL s firms also had the majority of TGTC s employees I take official notice of the Board s July 27 1982 deci sion in Mac Towing 262 NLRB 1331 concerning Case 9-UC-174 As there descnbed by the Board ACL is an intermediate holding company with TGTC owning 100 percent of ACL s stock ACL provides various adminis trative and financial services to its subsidiary firms LDC and ACT, the Respondents here, are among ACL s sub sidiaries American Commercial Barge Line Company (ACBL) is another We are not concerned here with the trucking services function and its 10 operating subsidiaries Of TGTC s five main functions our attention will be focused only on one division inland waterways services (IWS) The IWS division is itself subdivided into four groups barging, manufacturing, marine services and terminals The orga 9 ACL also has two subsidiary firms not grouped under these two functions These two firms do not have a role in this proceeding LOUISIANA DOCK CO 241 nization chart reflects that IWS has a Brazilian subsidiary not listed under any of the four operations There are five subsidiaries listed under barging ACBL being one of them Mac Towing Inc the title subject of the Board decision referred to above, is another The manufacturing group has one firm only Jeffboat Incor porated The same is true for marine services, under which LDC operates, and the terminals group which has ACT That completes the general outline of the cor porate organization An abbreviated organizational dia gram appears as follows Texas Gas Transmission Corporation ACL [IWS]4 (Barging) (Man(facturing) Services) ( nals)i ACBL Jeffboat Inc LDC ACT Amcom Inc Commercial Barge Line Co Inland Tugs Co Mac Towing Inc A more detailed description of some of the firms in the bargaining group, including Inland Tugs Co and Mac Towing, Inc, is given by Administrative Law Judge Thomas D Johnston in the 177 page decision he issued on March 31, 1983, in American Commercial Lines JD- 133-83 I take official notice of that decision for back ground purposes even though the findings are not final until the Board passes on them That proceeding in volves a series of cases beginning with Case 9-CA- 14657 and including two CB cases concerning SIUAG More comments about Judge Johnston s decision appear below in the discussion of background litigation 2 Arrangement of operations The principal inland water system on which ACL firms operate is the Mississippi River and some of its major tributaries such as the Ohio and Illinois Rivers The five facilities which were involved in this proceed ing reflect such a distribution Harahan and Westwego are adjacent to the Mississippi River in Louisiana just north of New Orleans, Cairo Illinois is situated where the Ohio River flows into the Mississippi River Henne pin is situated adjacent to the Illinois River north of Peoria Illinois, and the facility at Louisville Kentucky, is adjacent to the Ohio River The bargaining group engages in river traffic with barges and tugboats The barges transport coal and other dry cargos, such as grain and beans, as well as liquid cargo Some of the locations are called fleeting' areas where `making and breaking tows is done As described by Stanhope F Hopkins Jr, the manager of LDC s shipyard at Harahan, Louisiana tows are clusters of from 2 to about 40 barges which are pushed up and down a river by towboats or tugs As the tows proceed up or down the river barges are dropped off or picked ups At the end of these trips Hopkins testified there are usually terminals or fleets where they will drop off the entire tow and hopefully have another tow ready for them to add in the opposite direction" (Tr 2 204) Harahan is one such fleeting area As described by Robert W Kilroy, now an attorney in private practice but formerly vice president of labor relations for ACBL there were 40 to 50 employees engaged in the fleeting work at Har ahan in April 1983 (Tr 7 109) Westwego formerly was a fleeting area, but an unrelat ed company took over the facility in 1981 Hopkins testi feed that to his knowledge the Westwego fleeting simply was combined with Harahan s fleeting operation (Tr 2 201) Kilroy testified that Cairo also is an LDC fleeting area such as Harahan (Tr 7 110, 9 399) In addition, LDC has two or three employees at Cairo who can weld and a small amount of top side repair is performed on barges there Hennepin is a barge cleaning facility where covered barges bring coal into Illinois The barges are cleaned of the residue coal and prepared to receive grain (Tr 7110) LDC has an engine repair facility in Louisville Ken tucky, whose employees are unrepresented by any labor organization At Wood River, Illinois, LDC operates a ship repair facility where as at Harahan, Louisiana, the employees repair towboats and barges The Wood River employees are represented by the Boilermakers ACT was created in January 1979 (Tr 7 29 116) There is a coal transfer facility at Louisville It is undis puted that effective January 1 1979 ACT became the successor to LDC s operation of the coal transfer facility at Louisville (Tr 7 29, G C Exh 18) At the same time ACT became successor to the coal transfer operation of ACBL Western in St Louis ACT also operates a public warehouse for the Port of Louisville The employees of the warehouse are repre sented by Teamsters Local 89 ACT has recognized Teamsters Local 89 as the bargaining representative of the coal transfer employees at Louisville The latter is the Louisville site involved both in this case and another and I shall address the litigation history more completely in a moment Kilroy described ACT s coal transfer facili ties to be as follows (Tr 7 29 112-115) Site Guntersville, AL Louisville, KY Uniontown, KY St Louis, MO Kenova, WV Employees represented by Steelworkers (Under Litigation) Mine Workers Mine Workers Steelworkers s Although Hopkins was not specifically asked and did not say it ap 4 Those in brackets and parentheses are the unincorporated divisions pears that in this process the tow is stopping at the locations of custom and groups ers public warehouses and also terminals operated by ACT 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although LDC apparently does fleeting work as pre viously described Kilroy testified that LDC basically en gages in marine repair work , performing work on boats and barges owned either by ACBL, or other ACL firms such as Inland Tugs or Mac Towing, or by unrelated firms (Tr 7 30, 119) Stanhope Hopkins, LDC's shipyard manager at Harahan, Louisiana testified that about one half of the shipyards work comes from Inland Water ways an unrelated firm (Tr 9 535 537 560-561) There is no common supervision between the shipyard employ ees and the fleeting employees at Harahan (Tr 7 109) ACT, Kilroy testified, is engaged basically in inter modal transfer He explained that this meant transfer ring from rail to barge barge to truck and barge to rail (Tr 7 119) ACBL contracts with customers for the movement of freight by barge on the inland waterways (Tr 7 119) Hopkins testified that ownership of the barges making up the tows is mixed, but that almost 100 percent of the tugs belong to ACBL or a sister firm (Tr 2 206) 3 Officers and managers a Introduction The evidence does not disclose the names and titles of the officers and managers at TGTC and ACL, or the re porting relationships among the officers at LDC, ACT ACBL etc, to those at ACL The record does reflect some of the names titles, and reporting relationships among LDC ACT, and ACBL At all, or most all the relevant times H J Bobzien Jr was president of both ACBL and LDC D Ray Miller was president of ACT, and Miller reported to Bobzien (Tr 7 32, 105, 108) Both had their offices in a corporate headquarters building at Jeffersonville, Indiana (Tr 9 397-398) As for the absence of evidence regarding the reporting relationships from the subsidiaries to ACL the following excerpt from Mac Towing 262 NLRB 1331, 1332 (1982), appears relevant As stated infra ACL is an intermediate holding company which owns transportation equipment such as barges towboats , and tractors and leases it to its subsidiaries In addition ACL provides ad ministrative, financial, and insurance services to its subsidianes For example, ACL negotiates lines of credit with banks for the Inland Waterways Serv ices Division loans money to the subsidiaries, and obtains excess insurance coverage for its subsidiar ies ACL purchases a master health insurance policy but each subsidiary company determines the benefit levels to be granted and the employees to be covered ACL, however, does not provide any other administrative services or operational control over its subsidiary companies ACL receives finan cial reports from its subsidiaries, but does not re ceive reports concerning labor relations, does not approve hiring and firing of management personnel in its subsidiaries, and does not approve benefit tioner [SIUAG] or the Intervenor [Inland River man s Association of America] The evidence in this case seems to describe certain re lationships from the facilities upward in the organization al hierarchy rather than proceeding by function, such as fleeting b Harahan Westwego Louisiana Stanhope F Hopkins Jr, manager of the Harahan shipyard reports to Bob Olson a vice president of LDC who in turn reports to Bobzien (Tr 2 201) Olson s office is in Louisville (Tr 7 106) The fleeting operation at Harahan6 comes under the management of Norman Sonny Ivey Ivey is also the general manager for the southern region of the gulf coast area (Tr 2 202 9 398) His office is located at Harahan, but is not in the same building where Stanhope Hopkins has his office (Tr 2 202) Ivey reports to Norbert Whit lock, a vice president of ACBL, whose office is at Jeffer sonville, Indiana (Tr 7 106) c Cairo Hennepin Illinois Al Pannier is the manager of the Cairo operation for LDC He reports to Jack Bulard who is vice president of operations at ACBL Bulard is in charge of the fleeting operation at Cairo (Tr 7 108-109) In fact Bulard s geo graphical jurisdiction over fleeting extends from Baton Rouge Louisiana north, and Sonny Ivey has the fleeting south of Baton Rouge, including the gulf area (Tr 9 398) Hennepin is an LDC barge cleaning facility man aged by Tom Wright who reports to Al Pannier (Tr 7 108) d Louisville Kentucky Dallas Gray is the manager of ACT s coal transfer fa cility at Louisville Gray reports to D Ray Miller presi dent of ACT, and the latter s office is located in Jeffer sonville Indiana (Tr 7 107) As a map reflects, Jefferson ville is just across the Ohio River from Louisville (Tr 7 37) e Robert W Kilroy Hired by ACBL in July 1975 as director of employee relations Robert Walter Kilroy served in that capacity including the role of labor counsel, until 1 January 1980 when he was made vice president of labor relations for ACBL and, at the same time a vice president for ACT (Tr 7 25-27) In his first position Kilroy reported to G Robert Hard executive vice president of ACBL With his January 1980 promotion Kilroy began reporting to ACBL President H J Bobzien (Tr 7 31-32) Effective September 1, 1982, Kilroy entered private law practice in Jeffersonville, Indiana but he has continued to repre sent ACBL and its affiliated firms (Tr 7 103-104) Kilroy testified that his duties while employed for ACBL, were To handle employer/employee related legal matters To negotiate and administer collective bar levels negotiated by its subsidiaries with the Peti 8 Presumably this includes Westwego when fleeting was done there LOUISIANA DOCK CO gaining agreements To supervise the employee relations department (Tr 7 26 ) Under the applicable collective bargaining agreement grievances were submitted to Kilroy at the third stage of the contractual grievance procedure for all five of the lo cations in contention here (Tr 7 32-33) While with ACBL, Kilroy handled labor relations for ACBL and ACT and negotiated and administered collective bargain ing agreements for those firms (Tr 7 31) He testified that for ACBL and the fleeting companies, I had the authority to adjust grievances [and] to negotiate agree ments, but as far as my activity on behalf of Louisiana Dock and American Commercial Terminals, I served them strictly in a staff function gave them advice and counseling, and they made the decisions as to what was to be done and what ought to be done (Tr 9 46) He further testified that he handled any unfair labor practice charges and title 7 cases on behalf of ACBL and the other firms Kilroy testified that he would confer with the manag ers of the five locations by telephone regarding employ ee and labor relations matters, that he visited those facili ties from time to time, and that he went to some of them to handle grievances He handled grievances involving Harahan Westwego and also Cairo Hennepin (Tr 7 35- 37) Kilroy's office at ACBL was at the corporate head quarters in Jeffersonville just across the Ohio River from Louisville (Tr 7 37, 9 397) 4 Collective bargaining history a 1972-1975 The relevant bargaining history began in September 1972 when the UIW by Regional Director Paul Drozak, and LDC by Vice President Jack D Wofford signed a 3 year contract effective from October 1 1972, to mid night October 1 1975 (R Exh 50) Under article I, LDC recognized the UIW as the exclusive bargaining representative for [A]ll laborers and maintenance workers engaged in jobs only with respect to its barge cleaning oper ation adjacent to March Island Harrison County, Mississippi and the fleeting and barge cleaning fa cilities used by the Company at Westwego and Hara han Louisiana on the Mississippi River [Emphasis added ] Kilroy testified that although these three locations were in operation in 1972, only the fleeting work (and apparently not the barge cleaning) was being performed at Westwego Harahan (Tr 8 125-126) Notwithstanding the reference to maintenance workers in the recogni tion clause the wage classification section article V lists only Labor By letter agreement of August 23 1972, Drozak and Wofford extended the foregoing contract to employees that are employed or will be employed in Cairo Illinois " (R Exh 52, emphasis added) 243 In January 1974 LDC and the UIW entered into a new 3 year contract, effective January 15, 1974 until midnight January 14, 1977, covering (R Exh 53) [A]ll laborers and maintenance workers engaged in jobs only with respect to its barge cleaning oper ation adjacent to Marsh Island, Harrison County Mississippi the facility and barge cleaning facilities utilized by the Company at Cairo, Illinois, and at Westwego and Harahan, Louisiana, on the Mississip pi River, and the coal storage, reclaiming and barge loading facilities operated by or to be operated by the Company on behalf of ACBL Western, Inc in an area of Columbia Bottoms located on the Missis sippi River in St Louis County, Missouri [Empha sis added ] Kilroy testified, without dispute, that as of January 15, 1974, Marsh Island was no longer in operation, that Cairo was only a fleeting area, and there was nothing at Columbia Bottoms (Tr 8 126-127) Once again, Labor was the only job classification listed in the article on wage rates On May 30, 1975, the parties executed an addendum effective May 1, 1975, expressly affecting LDC s em ployees only at the Harahan shipyard (R Exh 62) The classifications listed under the article for wages cover machinists, carpenters electricians pipefitters, welders, and others Kilroy testified that the shipyard was just beginning around January 1974, and that the fleeting work at Harahan was still in operation as of the time of the May 1975 addendum (Tr 8 127 128) b 1976 A new addendum was executed effective January 15 1976 for the express purpose of changing wage rates and classifications at Harahan Westwego and Cairo and to establish wage rates and classifications at Hall Street, St Louis Missouri, and at Louisville, Kentucky The par ties executed a master addendum covering all the changes 7 a separate addendum reflecting only the Hara han Westwego modifications and another copy reflect ing the changes and additions for only Cairo, Hall Street Columbia Bottoms, and Louisville (R Exhs 54-56) But in January 1976, there was no facility at either Hall Street Columbia Bottoms or Louisville, there was just vacant land (Tr 8 130 131) As Kilroy explained Paul Drozak and Jack Wofford labored under the mis conception that if they gave each other recognition in an agreement no other union could come in and organize the facilities (Tr 8 130-131 ) In this connection, it should be noted that the addendum amended the recog nition clause to cover all employees at the Harahan Westwego, and Cairo fleeting and repair facilities, and the coal transfer facilities located at Hall Street Columbia Bottoms, and Louisville excluding all office clerical em ployees, professional employees guards and supervisors as defined in the Act " 7 Kilroy testified that the job classifications were reduced in number and the parties (had) agreed to renegotiate wages in January 1976 (Tr 8 129) 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kilroy testified that Louisiana enacted a right to work law effective October 1, 1976 Under the legislation, con tracts in existence on the effective date would be `grand fathered ' The UIW, it seems, therefore expressed a desire for a new contract which would have a union se cunty clause effective for the entire term of the contract (Tr 8 132-133) Accordingly, Drozak and Wofford exe cuted a 5 year agreement effective August 19, 1976, until midnight August 19, 1981 (G C Exh 10) The recogni tion clause in article I reads Section 1 The Company recognizes the Union as the sole collective bargaining agent for wages hours, and conditions of employment for all em ployees at its Harahan and Westwego, Louisiana fleeting and repair facility, its Cairo, Illinois fleeting and repair facility, and its coal transfer facilities lo cated at Hall Street, St Louis, Missouri, Columbia Bottoms, St Louis County, Missouri, and at Louis vile, Kentucky excluding all office and clerical em ployees, professional employees guards and super visors, as defined in the National Labor Relations Act [Emphasis added ] By separate letter agreement dated August 19, 1976, Drozak and Wofford agreed that wages negotiated over the next 5 years will not exceed an average of 5% per year (GC Exh 11) The letter agreement also provides that articles V and VI "apply only to the Company s operation at Harahan Louisiana At first glance this is a bit confusing, for the August 1976 contract has two pages numbered 7, and duplicate article numbers V and VI 8 However, although each article V pertains to holidays, and each article VI relates to classifications and wage rates, it is clear that they apply to different locations The first V has six paid holidays and apparently pertains to Cairo because the VI following expressly names Cairo, Hall Street, Columbia Bottoms and Louisville The second V on the second page 7 has seven paid holidays and clearly pertains to Harahan Westwego because one holiday is for `Mardi Gras Day 9 UIW Port Agent Michael G Worley testi feed that the second page 7 applies to the Louisiana loca tions (Tr 4 428) Page 7 for Harahan Westwego provides for the classification of leadmen, but the sheet for Cairo does not Oddly, article VI of the page for Cairo provides for the effective date of the listed pay rates to be January 16, 1977 To find the pay rates for Cairo (and the fictitious locations of Hall Street, Columbia Bottoms, and Louis ville) in effect from August 1976 to January 1977 one would have to turn to the January 1976 addendum (R Exh 56) This is not so for the Louisiana locations, for their pay rates apparently took effect on August 19 1976 This left quite a difference as of August 1976 in the hourly pay rates for some of the same classifications as is shown by the examples in the following chart 8 Even Kilroy was at a loss at the hearing to explain why there are two pages numbered 7 (Tr 8 134) 8 One other difference is that the page for Cairo has Memorial Day whereas the Louisiana locations have Good Friday in lieu of Memorial Day Classification Harahan Westwego Cairo Leadmen $6 25 None Mechanics 1st Class 600 $475 Mechanics 2d Class 5 32 4 25 Mechanics 3d Class 4 25-4 75 4 10 Laborers 3 25 3 25 Thus, while the entry level positions were about the same, there was a gap of $1 25 per hour in the first class position Even when the January 1977 pay scale became effective for Cairo, the pay for a first class mechanic rose only to $4 99 per hour (G C Exh 10) c 1977 Kilroy testified that the next contract negotiations oc curred in January 1977 The sessions between Drozak and Wofford took place in Washington, D C, and New Orleans, Louisiana, over a period of 3 days Kilroy at tended only the Washington session (Tr 8 136) The par ties negotiated separate addendums, effective January 15, 1977, to the master contract of August 19, 1976 Cairo s single page addendum covers wages and holidays only, and the top pay is $4 99 for first-class mechanics (G C Exh 12) Harahan s single page addendum also covering only holidays and wages, increases leadmen s pay, for ex ample, to $6 72, first class mechanics to $6 45, and the scale for laborers was pegged at $3 41 the same rate set for Cairo (G C Exh 13) Kilroy testified that the Harahan employees voted against ratification of the 5 percent increase They also had other items including the greivance procedure, they wanted covered (Tr 8 136 137) At page 10 of its brief the UIW contends that Worley presented both the master contract (G C Exh 10) and the January 1977 ad dendum to the Cairo employees that they voted to reject it but that they were outvoted by the greater number of employees at Harahan Westwego Worley did not testify in a credible fashion regarding this point and I find his testimony on the subject to be confusing and unreliable (Tr 2 277-279, 4 423-431) Kilroy testified that the 3 days of bargaining sessions resulted in the addendum for Harahan which did go into effect January 15, 1977 (Tr 8 137-138 G C Exh 14) 10 As of January 1977, neither Hall Street nor Louisville was in operation Nor was Hennepin for that matter (Tr 8 138) The second Harahan addendum (G C Exh 14) the one which became effective is six pages in length and covers several topics, including seniority, promotion grievance procedure, safety and some incidental matters The top wages remained as in the first addendum $6 72 for leadmen and $6 45 for first class mechanics but the lower scales were increased Thus whereas laborers ini tially were pegged at $3 41 the same as at Cairo, they now were to receive $4 16 Third class mechanics, initial 10 At p 11 of its brief Respondent argues Despite the simultaneous meetings this [the different addendum process] evidences separate negotiations for the separate unit LOUISIANA DOCK CO 245 ly set to receive from $4 57 to $5 11 were now to re ceive a flat $5 11-substantially more than the $4 30 of fective for Cairo By letter agreement of February 24 1977 the parties agreed that Cairo would receive the same 25 cent per hour shift differential which was being paid at Harahan (G C Exh 21) Kilroy testified that around the spring of 1977, LDC opened its barge cleaning operation at Hennepin, Illinois The employees were hired new from the Hennepin area, and were not transferees from Cairo (Tr 8 140-141) 11 By letter agreement of April 22, 1977, LDC, by Wof ford, recognized the UIW as the representative of the Hennepin employees and that such employees would be covered by the master contract of August 1976 to August 1981 (R Exh 57) Although the April 22, 1977 agreement refers to the UIW representing employees of LDC at Cairo, and that the parties have a labor agreement' at Cairo there is no express provision that the Hennepin employees would be paid the wage rates set forth in the Cairo addendum The testimony also fails to clarify this point By letter dated November 3, 1977, Kilroy wrote Dan Tillman, UIW s representative in New Orleans, confirm ing an understanding that LDC representatives Nivin, Anderson, and Kilroy would meet later that month with Tillman and other reperesentatives of the Harahan bar gaining unit to begin negotiations on our contractual wage reopener and other matters of mutual interest (R Exh 10) Kilroy testified that Elvis Anderson was shipyard manager (before Hopkins assumed that post) at Harahan and James Nivin a vice president of LDC (Tr 7 75, 8 142) The parties met about November 28, 1977, and the UIW was represented by Tillman, Carl Peth, and several bargaining unit employees The Union submitted a two page list of proposals covering seven or eight topics including for example jury duty, reporting time pay, and requests for increases in the number of paid holidays and wage rates (R Exh 66 Tr 8 142, 9 384) At the meeting the UIW proposed that layoffs be by strict seniority but LDC replied that it had to be by se niority within classifications 12 No agreement was reached on changing seniority (Tr 8 147) Kilroy tests feed that layoffs at the Harahan shipyard in 1977 1981 and 1982 were by seniority within classifications (Tr 8 147-149) There was no mention of either Cairo or Hennepin at this November 1977 meeting (Tr 8 143) The November meeting appears to have been merely the initial one for the parties met again regarding Harahan 11 UIW Port Agent Michael G Worley described Hennepin as primar ily a barge cleaning facility where some fleeting is done and where some very minor barge repairs are performed (Tr 3 356) 12 Although the transcript has Kilroy saying seniority classifications (Tr 8 143) it is clear from other portions of the record that he either said or meant seniority within classifications as is shown by his later testi mony (Tr 8 148) and the testimony of Hopkins and colloquy on the sub ,sect (Tr 1 28 2 156-158) Under that system the layoff is by job classifi cation with the person in the classification having the least plant senion ty being laid off while the one with more plant senionty remains even if the former has more seniority in that classification than the latter Thus one must distinguish between the three possible systems plant seniority classification senionty and (plant) seniority with job classifications on January 4-5, 1978, at the Union s hall in New Orleans (Tr 8 149) d 1978 When the subject of notice of impending layoffs arose at the meetings of January 4-5, 1978, the Union was told that notice of `yard and business would be given as we had it ' Kilroy also explained that the reason for laying off by seniority within classification was to assure the Company that it would be able to retain experienced personnel in the classifications being laid off (Tr 8 105- 151) Kilroy testified that the only change coming from the negotiations concerned wages, and he could not recall whether they simply put a 5 percent increase into effect or wrote a new addendum (Tr 8 152) No addendum was offered in evidence Kilroy testified that in about January 1978, facilities were being constructed at both Hall Street in St Louis, Missouri, and at Louisville Kentucky (Tr 8 152-153) In mid March 1978, the parties (Kilroy and Wofford, and Union Representative James A Martin) met for about an hour in Jeffersonville, Indiana, and agreed on a 1 page addendum covering the employees at Louisville (G C Exh 15 Tr 8 154) In the addendum, dated March 17, 1978, the parties agreed to the terms of the master contract of 1976-1981, and accepted the Cairo addendum January 15 1977, with certain wage and classification differences A mechanic terminal operator classifica tions was listed for Louisville at a $5 35 pay rate, and a leadman at $5 70 Laborers were to be paid at $4 for their first 6 months and $4 35 thereafter It is uncertain how much the laborers pay differed from the rate in Cairo The last specific figure there was the January 15 1977 rate of $3 25 for the first 6 months and $3 41 there after (G C Exh 12) Presumably the Cairo rates were in creased by 5 percent Even so, the experienced laborers in Louisville would receive about 77 cents more per hour than their Cairo counterparts ($4 35 compared to about $3 58) The second paragraph of the Lousiville ad dendum recites (G C Exh 15) This is to verify that a representative from the union advised us that they had pledge cards for 100% of the employees at the Louisiana Dock Company coal transfer facility located at Louisville Kentucky In the next paragraph Respondent recognizes the UIW to be the exclusive bargaining representative of the em ployees at the above mentioned transfer terminal " Kilroy testified that the Louisville facility had been in operation about 2 weeks when the foregoing agreement was signed (Tr 8 153) UIW Port Agent Worley presented the master agree ment and the Cairo addendum to the Louisville employ ees who except for wages, would be covered by the Cairo addendum The Louisville employees voted to accept (Tr 4 433, 439-440) Because of some confusion over the applicable holi days, Kilroy sent a letter, dated May 30 1978 to the Union listing the seven paid holidays (G C Exh 16 Tr 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 440, 8 154) Cairo had six holidays The different hole day is the Friday after Thanksgiving As already noted, Hall Street opened in 1978 as a coal transfer facility ACBL Western, Inc (Western), an ACL subsidiary, was the operating firm It later was succeeded by ACT Negotiating principally with Kilroy, the latter sometimes joined by Company Official James A White, Worley obtained a collective bargaining agreement, of fective July 1, 1978 until midnight, October 31, 1981, for all production and maintenance employees at the Hall Street location (R Exh 63) The facility was barely open when, Worely testified, he obtained pledge cards from the two hourly employees This was before production began (Tr 4 397, 398 409) 13 Kilroy testified that the eventual employee complement at Hall Street was 28 (Tr 8 157) As Worley testified, the discussions he had with Kilroy began on the basis that they already had a con tract covering Hall Street, and it was simply a question of which addendum would apply, and whether rates and benefits could be increased without increasing them at all facilities Worley initially stated that health and welfare benefits should be increased at all locations Kilroy said that could not be done because the other sites did not generate enough income, but that management anticipat ed the Hall Street operation would generate enough income to justify higher levels To accomplish the twin goals of getting higher pay and benefits at Hall Street and to avoid the problems of another addendum, Worley and Kilroy agreed to cover Hall Street by a separate contract (Tr 4 401-408) Although some of the general clauses in the Hall Street contract are similiar to others in the master agree ment, many of the items pertaining to employees such as wages and benefits are different The wages effective July 1 1978, begin at $5 50 for a utility employee, the lowest of four classifications There is no classification for laborers Shift mechanics were paid $6 75 terminal operator $7 50, and Electrical received $8 Seven hole days are set forth, with the seventh being the employee s birthday 14 Because most of the classifications are different, a comparison of wage rates may not be precise Neither Harahan nor Cairo listed either electricians or terminal operators, the two highest paid classifications at Hall Street It cannot be said that a shift mechanic at Hall Street is a similar classification to the Mechanics 1st Class All Departments in effect at Harahan, for the latter sounds more like a journeyman in the various crafts such as an electrician There is no evidence coin paring the work and skills required in the various classifi cations Thus, although a Utility Man at Hall Street may have earned $5 50 an hour in July 1978 for doing 18 Kilroy testified that Respondent made no effort to check the UIW s majority status when this location or those at Hennepin and Louisville began operation (Tr 9461) 14 As earlier discussed the January 15 1977 addendum for Cairo pro vided for six holidays (G C Exh 12) The extensive addendum of Janu ary 15 1977 for Harahan provides for seven but two are different from those at Hall Street (G C Exh 14) At Harahan the employee could qualify for the paid holidays with only 2 weeks service but it is 4 weeks at Hall Street the same kind of work a laborer did at Harahan for $437 15 or at Cairo for $3 58 16 there is no direct evi dence to that effect The vacation period of 1 week after 1 year and 2 weeks after 2 years is the same It appears that the July 14, 1978 memorandum of un derstanding (R Exh 64) provides greater welfare and pension benefits for the Hall Street employees than did the 1976-1981 master agreement The later specifies a total of $3 per employee for each day worked by each employee for the welfare and pension plans, whereas the Hall Street memo calls for hourly contributions of 40 cents for each employee for each day worked Payments to the pension plan for Hall Street were not to begin until July 1, 1979, when they would be 12 5 cents in creasing to 25 cents on July 1, 1980 The 1976-1981 master agreement has no provision re garding the role of seniority in layoffs In the January 1977 addendum for Harahan, it is provided that In cases of lay-off and recall, seniority shall apply where skill and ability are equal' (G C Exh 14) Moreover four situa tions are set forth in which seniority may be terminated In the Hall Street contract, seniority is defined as the plant concept ( continuous service with the Company), and the applicable clause states that it shall apply to lay offs, recalls, promotions, and vacation scheduling pro vided the senior employee has the skill and ability to per form the work In November 1978 the International Longshoremen s Association AFL-CIO (ILA) filed an unfair labor prac tice charge against ACBL Western (Western) in Case 14-CA-12020 On April 4, 1979, the Regional Director for NLRB Region 14 issued a complaint against ACBL Western and ACT its successor, based on the initial charge as amended in 1979 (R Exh 59) The complaint alleged that on or about June 15 1978, Western ACT recognized the UIW at Hall Street and on or about July 3 1978 entered into a contract with the UIW containing a union security clause calling for membership in the UIW within 31 days as a condition of employment The complaint further alleged that on such dates Western ACT was not engaged in normal business operations with a representative complement of employees and that the UIW did not represent an uncoerced majority at the time of such events The complaint alleged that by such conduct Western ACT was violating Section 8(a)(1) (2), and (3) of the Act On May 15 1979, the Re gional Director approved an informal settlement of the case which contained a nonadmission clause The settlement included a notice to employees in which ACT, as successor to Western among other pro visions, informed employees that it would not recognize the UIW unless the Union was certified by the NLRB and that the Employer would not give effect to the con tract of July 3 1978 unless the UIW became the certi feed representative From the testimony of Worley and Kilroy it is clear that the Hall Street contract was no longer in effect after i s The $4 16 shown for January 1977 plus 5 percent in January 1978 is The $3 41 shown for January 1977 plus 5 percent in January 1978 Presumably Hennepin received the Cairo rates although that is not cer tam LOUISIANA DOCK CO May 15, 1979 That summer several labor organizations, including the ILA and the United Mine Workers en gaged in an organizing campaign at Hall Street The UIW was not listed on the ballot in the ensuing NLRB conducted election, held about January 1980 which the Mine Workers won (Tr 4 422, 8 158) In October 1978 the parties began communicating re garding a date for the annual wage reopener Kilroy's letter of October 13, 1978 specifies Harahan (R Exh 13), as does the UIW s October 20 1978 notice to the Federal and state mediation agencies (R Exh 14) As of that time Kilroy testified the facilities at Cairo Henne pin Louisville and Hall Street were in operation (Tr 8 161) 17 Although only Harahan was mentioned in set ting up the first meeting of November 24, 1978 (R Exh 13, Tr 8 158) the Company s bargaining proposals (the UIW presented no proposals) include a provision on the second page on the subject of wage reopener that (R Exh 58) These negotiations conclude all economic items for the life of this Agreement at all locations covered by this Agreement [Emphasis added ] Because the proposals included wage increases to become effective January 16 of 1979, 1980 and 1981 the document further proposed the elimination of further ne gotiations (such as reopening for wages) until no sooner than 60 days before the expiration date of August 19 1981 Other proposals covered holidays, fringe benefits ( no increase to be made ), an incentive pay program for a new classification of combination mechaninc (with an ap pendix of several pages covering the training to be un dertaken in relation to the incentive program) and pre mium pay This was followed by Kilroy s letter, dated December 18 1978, to UIW Port Agent Gerry Brown outlining certain modifications in the Company s offer (R Exh 17) e 1979 The result of November 1978-January 1979 negotia tions regarding Harahan and the master contract is re flected in an addendum effective January 16, 1979 (G C Exh 17) The training program, already described and now a part of the addendum, applied only to the Hara han shipyard as did the new wage rates (Tr 8 166) Worley received word from Brown that he and Kilroy had wrapped up everything except for wages upriver, meaning Cairo Hennepin and Louisville and for Worley to work those out with Kilroy (Tr 4 519 521, 526) Kilroy testified that when he and Brown reached agreement regarding Harahan Westwego in January 1979 Brown asked him to contact Worley about wage rates upriver (Tr 9 409) Kilroy thereafter called Worley (Tr 9 409), apparently on January 18 1979 (Tr 4 522 17 Kilroy s testimony that there was no contract in effect then at Hall Street gets into an immaterial issue (Tr 8 161) It is unclear just when if ever the UIW signed the Hall Street contract for by letter dated Octo ber 25 1978 Kilroy demanded of Worley that the UIW sign the contract (R Exh 15) As noted NLRB Region 14 treated the contract as being effective as of July 3 1978 247 525, 527) They reached agreement in either one tele phone conversation (Tr 4 528), or no more than a few (Tr 9 409) Kilroy confirmed their agreement by letter addendum dated Janaury 19, 1979, on which Worley penned his acknowledgement 6 days later on January 25 (G C Exh 19) As with the Harahan addendum (G C Exh 17), the letter addendum for the other four loca tions set the new wage rates for January 16 in 1979, 1980, and 1981 (G C Exh 19) That closed the reopener negotiations and completed the contract through August 19 1981 It is of some interest to observe that Kilroy, in the letter addendum agreed to by Worley, refers to the Cairo Hennepin bargaining units and the Louisville bar gaining unit (G C Exh 19) Although Harahan Westwego has seven job classifica tions Cairo Hennepin four and Louisville three some comparison can be made of the wage rates effective Jan uary 16, 1979, at the locations as shown below Classification Harahan Cairo Louisville Westwego Hennepin Leadman $7 59 None $6 13 Mechanic I 7 28 $5 63 None Mechanic Terminal Operator None None 5 75 Mechanic II 6 46 5 03 None Mechanic III 5 77 4 86 None Laborer' 8 3 65 3 85 4 68 As the rates differ so also do the increases in 1980 and 1981 with the higher classifications at Harahan receiving more money However that simply results from the ap plication of a percentage factor apparently 5 5 percent to the figures A mechanic I in Harahan Westwego re ceived a 40 cent increase in 1980 to $7 68 and 42 cents in 1981 to advance to $8 10 Over the same period a me chanic I in Cairo received a total increase of 64 cents bringing his 1981 pay rate to $6 27-nearly $2 an hour less than his counterpart in Harahan The mechanic ter mural operator in Louisville received total increases over that span of 65 cents bringing his 1981 wage rate to $640 In like fashion, the laborers at Louisville fared better than their counterparts elsewhere because their base rate was higher By letter dated January 23, 1979 Kilroy advised the Union that ACT was the successor to LDC effective January 1, 1979 (G C Exh 18) Although Kilroy did not specify Louisville in the letter, it is undisputed that ACT became LDC s successor at the Louisville coal transfer facility on such date Our attention now focuses on Cairo By letter dated July 16 1979, to Kilroy, Frank Drozak executive vice president of SIUAG asserted that the Company had vio lated the contract by failing to pay overtime rates for weekends and holidays and over 8 hours a day at Cairo 18 The laborer rates shown are those applicable for a laborer who has completed his 30-day probationary period 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (R Exh 19 Tr 8 169) 19 The practice at Cairo had been to pay overtime after 40 hours After a series of letters between the parties, the Union accepted the fact that by contract the Harahan overtime rates (including overtime after 8 hours a day) had never been extended to Cairo By letter dated August 3, 1979 UIW National Director Frank Drozak then requested that the contract be re opened to discuss these matters (R Exh 22) 20 Kilroy granted the request by letter of August 9, 1979, suggest ing that they meet in Jeffersonville, Indiana (R Exh 23) Drozak designated SIU Representatives Don Anderson and Pat Pillsworth to meet with Kilroy on the matter Kilroy testified that two meetings were held that August regarding Cairo, and that he and Jack Bullard, vice president of operations for ACBL represented the company in the sessions with Anderson and Pillsworth (Tr 7 170) No written proposals were exchanged To the Unions oral request for a pay increase and daily overtime, Kilroy Bullard countered that the Company would make such adjustments if the Union would agree to a 1 year extension of the contract or enter into a new 3 year agreement Anderson Pillsworth responded they could do that (apparently either) and would contact Kilroy Bullard after the Union had presented the matter to the members No agreement was reached (Tr 9 400), for as Kilroy testified, We never heard any more from them (Tr 8 171 ) Kilroy is wrong As the discussion shows under the next topic in April 1980 Pillsworth wrote to Kilroy on the subject On October 10, 1979, the parties met to discuss the of fects of a plan by LDC to implement a new absenteeism policy They also discussed a couple of other items The testimony is rather bnef about this meeting, and it appar ently ended with no agreement (Tr 8 172-173 9 400) In December 1979 the parties met at Sclafani s Restau rant in New Orleans (Tr 7 174 9 399) Representing the Company were Kilroy and Norman Sonny Ivey Bill Ellis represented the UIW and he presented Kilroy and Ivey with a proposal drafted in the form of a 17 page contract, with a recognition clause covering all employ ees at the following six locations Harahan Westwego Cairo, Hall Street, Columbia Bottoms, and Louisville (R Exh 61) Hennepin is not mentioned 21 and there is no explanation in the record concerning why the UIW would have the temerity, or gross oversight to include Hall Street That is the location which was the subject of a settlement in Case 14-CA-12020 approved barely 7 months earlier by the Regional Director for NLRB 19 It is interesting to note that Drozak refers to units and unit by stating This contract covers [the] Cairo Illinois fleeting and repair fa cility as well as units in Louisville Columbia Bottoms Harahan and Westwego Louisiana (Article I Section I Recognition) This Harahan Yard Addendum includes a wage schedule applicable only to the Hara ban unit (Emphasis added) Drozak s language could be interpreted as using unit as a synonym for facilities but that would seem strange for an experienced labor practitioner Worley testified that Frank Drozak subsequently became president of the SIU (Tr 4 520) 20 As shown on SIUAG s masthead Frank Drozak was executive vice president and his brother Paul Drozak was a vice president of that or ganization (R Exh 24) Frank Drozak also was national director of the UIW and as just noted has since become president of the SIU (Tr 4 520) 21 Its omission was apparently through inadvertence for it is linked to Cairo at p 13 under the article for classifications and wage rates Region 14, as described above It is likely that the elec tion already was scheduled by December 1979, for it was about January 1980, as already noted, that the United Mine Workers was certified by the NLRB as the exclu sive bargaining representative of the Hall Street employ ees Columbia Bottoms as Kilroy explained has never been anything more than vacant land At one time it fig ured as a site for a potential facility, but it lost that chance when the Hall Street location was chosen (Tr 7 117-118) Regarding the UIW's proposal, Kilroy and Ivey told Ellis that they would entertain a new 3 year agreement for Harahan, but at no other location (Tr 8 175 327, 9 400) The balance, if any, of that meeting is not de scribed, and the next session occurred in January 1980 22 f 1980 On January 18-19 1980, the parties met again They considered grievances on January 18 and on January 19 they discussed the UIW s proposals (Tr 8 176) Shipyard Manager Hopkins had joined the management team for these meetings and joining the UIW s group were Her bert Boudreaux and Ralph Quinnoniz The UIW s writ ten proposal, by my calculations, requested wage in creases at Harahan Westwego ranging from 5 48 percent for laborers ($3 65 to $3 85) to 6 72 percent for leadmen ($7 59 to $8 10) at Cairo Hennepin ranging from 5 45 percent for laborers ($3 85 to $4 06), to 6 22 percent for mechanic I ($5 63 to $5 98), and at Louisville ranging from 5 77 percent for laborers ($4 68 to $4 95) to 6 26 percent for mechanic terminal operator ($5 75 to $6 11) Kilroy testified that at the meeting of January 19 the UIW upped its wage increase demand to 10 percent (Tr 8 176) Management (the speaker frequently is not identified in the testimony) expressed the position that wage rates were closed for the balance of the contract However they told the UIW that the Company could possibly grant an 8 percent increase in exchange for relief in the area of production and work rules and so forth They also discussed the UIW s proposal for absences and late ness The union representatives said they would think about the Company s counterproposal regarding an 8 percent increase tied to a change in work rules (Tr 8 178) and also concerning the Company s position that it was interested in discussing only a 3 year agreement and only at Harahan (Tr 8 329) The parties met again on either January 30 or 31, 1980 at which time the Company Kilroy testified offered an 8 percent wage increase over the scheduled increase which was about seven percent (Tr 8 179 )23 Once 22 Shipyard Manager Stanhope Hopkins also described a late Decem her meeting not at the Sclafani Restaurant as well as the meetings in early 1980 (Tr 9 507 et seq) To the extent his sequence or factual de scnption vanes from the description given by Kilroy I credit Kilroy who appeared to have a better recollection of this series of events 23 Kilroy s testimony is imprecise LDC clearly did not add 8 to 7 to make a 15 percent wage offer Furthermore the scheduled wage increase computes to about 5 5 percent not 7 percent I find that Kilroy meant that management offered an 8 percent wage increase less than the 10 percent the UIW wanted by its amended request but greater than the 5 5 percent called for in the contract LOUISIANA DOCK CO 249 again the UIW said it would have to get back to the Company Their meeting was held in March 1980 In mid January 1980 LDC disciplined several employ ees for picket activity at a facility When Kilroy met with UIW Representative James Martin in March 1980, Martin took the position that the UIW was not going to discuss the pending proposals unless the Company settled the grievances on the disciplined employees in the fash ion desired by the UIW 24 Kilroy declined, and the matter was closed when Kilroy, by letter dated March 7, 1980, addressed to Gerry Brown, formally withdrew the Company s offer (R Exh 26) There were no other negotiations until those of July- August 1981-the ones which gave rise to this case In the meantime however, the parties exchanged some rele vant correspondence By letter dated April 9, 1980, UIW Port Agent Pat Pillsworth wrote LDC recalling that the parties had met the previous fall in Jeffersonville, Indi ana, to discuss economic issues affecting Cairo Pills worth requested that the talks resume (R Exh 27) Kilroy replied by letter of April 16, 1980, reading (R Exh 28) Dear Mr Pillsworth Thank you for your letter of April 9, 1980 The last time representatives of the Company and Union met in Jeffersonville the Company offered to increase wages by seven (7) percent in January 1980 This offer was rejected by the Union Recently the Union rejected an eight (8) percent increase for our employees in New Orleans In Cairo the Union refused a new three year agreement and in New Orleans the Union demand ed a new three year agreement In view of the Union s first you will and then you won t attitude we have no alternative but to continue our present collective bargaining agree ment which terminates in August 1981 However if in the meantime the Union can agree on what it specifically wants, we would be happy to discuss the matter with you Very truly yours Robert W Kilroy The next letter bearing on the subject is the July 9, 1980 letter of UIW Vice President Mike Sacco to Kilroy reading (C P Exh 12) 25 Dear Mr Kilroy Relative to multiple negotiation sessions the past several months for modification of the Agreement between this Union and your company which you seek to limit, however, to only one of the covered 24 Shipyard Manager Hopkins identified a company proposal dated February 7 1980 showing the Employer s offer on wages benefits and on an absentee policy (R Exh 77 Tr 9 513) It is unclear whether the document was presented on February 7 1980 but the question is immate nal It is clear however that the proposal relates to Harahan as revealed by the job classifications 25 It is not clear precisely which organization (s) Mike Sacco is vice president of The letter is on the letterhead stationery of SIUAG and the masthead lists him as a vice president locations, Harahan, Louisiana, such limitation we reiterate is not acceptable We are prepared to negotiate a new Collective Bargaining Agreement provided it is applicable to all locations as contractually provided and subject however to membership ratification of any terms agreed to by the negotiators We stand ready to negotiate forthwith and await your reply Sincerely, Mike Sacco Vice President SIU, UIW Kilroy confirmed that he did receive Sacco s letter (Tr 9 401), but the record does not show what response he gave, if any Sacco s letter is the first expression by the UIW that any contract had to cover all locations The implication is that the UIW viewed the locations as one bargaining unit There is no mention of the separate contract parties made for Hall Street, which contract the Government in May 1979 required ACT to cease honoring because of the allegedly unlawful circumstances from which it was created But the main point about Hall Street is that the UIW voiced no concern in 1978 about carving Hall Street previously a nonentity, from the recognition clause of the master contract and making it the subject of a separate contract 5 Related litigation a Background litigation Already mentioned is the Board s decision in Mac Towing 262 NLRB 1331 (1982) Because that proceeding involved a UC petition in Case 9-UC-174 there is sub stantial discussion of the corporate organization On the other side of the ledger is the case of Seafarers Atlantic District (American Barge Lines), 244 NLRB 641 (1979), involving Case 14-CB-3849 and the Seafarers' exclusive hiring hall arrangement Of more recent vintage is the March 31 1983 decision JD-133-83, of Administrative Law Judge Thomas D Johnston in a consolidated proceeding involving 15 cases (13 CA and 2 CB ) beginning with Case 9-CA- 14657 That decision of 177 pages is too lengthy to sum marize here, but I observe that it involved allegations of violations of Section 8(a)(1), (2), (3), and (5) and 8(b)(3) of the Act b Regarding Louisville Beginning about March 30, 1982, Administrative Law Judge Robert M Schwartzbart heard a group of cases consolidated for trial, relating to the Louisville loca tion 26 The UIW, in our case, offered copies of the com plaints pending before Judge Schwartzbart 27 Initially 26 The date of March 30 1982 was supplied to me by UIW Attorney Cutler on the record (Tr 145) in another Louisville case which will be described momentarily 27 In Case 9-CA-16703 an amended complaint issued on June 12 1981 alleging a violation of Sec 8 (a)(1) and (5) by unilaterally failing to Continued 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the pleadings alleged a single unit at Louisville (the first case) or a multisite unit involving the five locations (the second and third complaints), as an appropriate unit but at trial all were amended to allege both unit theories in the alternative (C P Exhs 14-16, Tr 9 420) Judge Schwartzbart s decision is pending At the instant hear mg, the parties entered into stipulations concerning vari ous aspects of the pleadings and evidence adduced before Judge Schwartzbart (Tr 4 495 et seq ) The second Louisville proceeding Case 9-CA-18193, referred to above, was heard by me in Louisville, Ken tucky on January 18, 1983 My decision, JD-(ATL)-52- 83 issued in that case on July 11 1983 For the reasons described there I denied the General Counsels trial motion to amend the bargaining unit from the single lo cation of Louisville (the production and maintenance em ployees of ACT s coal transfer facility) to a multifacility unit encompassing employees of the five locations (Hara han Westwego, Cairo Hennepin, and Louisville) How ever, I found that ACT had violated Section 8(a)(1), (2) and (5) of the Act by unilaterally withdrawing recogni tion from the UIW and recognizing Teamsters Local 89 on February 15, 1982, and thereafter, on March 12, 1982, entering into a contract with Teamsters Local 89 cover mg the Louisville employees Exceptions to that decision are pending before the Board Some reference should be made here to the representa tion petitions filed regarding the Louisville employees in 1981 A brief description of such proceedings, Cases 9- RC-13768 and 9-RC-13876, appears at slip opinion pages 15-16 of my July 11, 1983 decision in the Louis ville case The parties also stipulated here to the essential facts regarding those petitions (Tr 6 941-942) Thus on May 20, 1981 the Inland Rivermen s Association (IRA) filed a petition in Case 9-RC-13768 seeking to represent the production and maintenance employees and on August 19 1981, Teamsters Local 89 filed a petition in Case 9-RC-13876 seeking to represent essentially the same Louisville employees These cases were consolidat ed for hearing Before a hearing was conducted howev er the Unions requested to withdraw their petitions (the IRA so requested on December 3 1981 and Teamsters Local 89 in mid February 1982) The Regional Director for NLRB Region 9 (Cincinnati Ohio) approved each request As we shall see very shortly, the IRAs petition of May 20, 1981, figures prominently in the bargaining pose tion taken by ACT in the contract negotiations held in the summer of 1981 deduct union dues from the wages of two employees since September 15 1980 A complaint issued August 13 1983 in Case 9-CA-17053 alleging a violation of Sec 8(a)(1) and (5) by Respondents June 1 1981 failure to discharge 14 named employees who failed to pay dues under a union se curity clause in the collective bargaining agreement And in Cases 9-CA- 17553-1 9-CA-17553-2 9-CA-17553-3 a complaint issued November 27 1981 alleging violations of Sec 8 (a)(1) and (5) because Respondent allegedly (a) implemented a health and welfare plan in May 1981 without notice to the UIW (b) repudiated certain hiring hall provisions of the contract in May 1981 and (c) hired 15 employees between April 21 and July 29 1981 without utilizing the contractual hiring hall The latter averment also is alleged to violate Sec 8(a)(3) 6 Procedural matters a The UIWs motion to consolidate On September 20, 1982, the UIW sought to have the Louisville proceeding , Case 9-CA-18193 consolidated with the instant cases (G C Exh Is) Respondent and ACL filed an opposition to the motion to consolidate By his order dated October 15, 1982 Associate Chief Ad ministrative Law Judge John M Dyer denied the motion to consolidate, but he provided that the same administra tive law judge would be assigned to hear both cases (G C Exh lz) b The General Counsels special appeal Toward the close of the hearing, I indicated that I might take official notice of any portion of the Louisville case pending before me if I felt such procedure would assist in writing a more understandable decision here (Tr 8 192, 9 580) The General Counsel and the UIW vigor ously objected on several grounds, including that such a procedure would deny their due process rights of being able to inspect and voir dire as to exhibits, to cross exam me witnesses, and to introduce other relevant evidence They argued that such would in effect, serve to consoli date the cases when an earlier motion to consolidate had been denied Pursuant to Section 102 26 of the Board s Rules the General Counsel filed with the Board a five page request dated April 20, 1983 for special permission to appeal from my ruling 28 By its request of April 25, 1983 the UIW joined in the General Counsels request The par ties restated and elaborated on their earlier positions The UIW added that I should give advance notice of what ever portion of the Louisville case I intended to refer to and argued that the parties should have the opportunity to present evidence in response thereto Respondent did not file any position statement with the Board nor did it express any position on the matter at the hearing other than to say that Respondent would avoid duplicat mg any exhibits received at Louisville which would be the subject of official notice here (Tr 8 189) By its tele graphic order dated April 28 1983 the Board ruled The General Counsels request for special permis sion to appeal Administrative Law Judge s ruling is denied without prejudice to the General Counsel s right to renew its contentions through the filing of an appropriate exception Under section III F,1 infra I discuss the background of certain layoffs During that discussion I take official notice of a payroll document offered by Respondent as an exhibit in the Louisiana hearing c Production of affidavit When the UIW s turn came to cross examine Kilroy during Respondents case in chief Unions attorney Irwin Cutler, citing Senftner Volkswagen Corp 257 28 I had overruled the General Counel s objection to my contemplated procedure (Tr 8 191) LOUISIANA DOCK CO NLRB 178 (1981) moved for production of any affida vits Kilroy had given to Board agents (Tr 8 341) Kilroy explained that although he had not submitted an affidavit in connection with the charges filed against Respondent, he had furnished one in a CB case (a charge filed against the UIW) dealing with the subject matter of his testimo ny on direct examination 29 Respondent objected to the motion and the General Counsel asserted that she would comply with whatever ruling was made Respondent's objection was twofold First, the UIW waived any right to inspect the affidavit when it did not call for production the day before when it called Kilroy as a witness under Fed R Evid 611(c) Second, as Sec tion 102 118(b)(1) of the Board s Rules grant the right of production only to a respondent, it would violate the Administrative Procedure Act for the Board to order production in this situation without official rules having been changed pursuant to the Board s rulemaking author ity 30 Respondents first ground is without merit In any event, in ordering that the affidavit be produced, I exer cised my discretion to require that it be furnished even if the UIW could have obtained it the day before As for the second ground, I overruled Respondents objection on the basis of Senftner Volkswagen Corp, supra at 186- 187 fn 1 C The Contemporary Facts in this Case 1 Introduction The bargaining sessions of 1981 occurred on July 9-10 and on August 19 Before examining those sessions we may note some correspondence between the parties By letter dated March 3 1981, Kilroy wrote the UIW, atten tion Mike Sacco requesting certain information regard ing the UIW s welfare plan (G C Exh 19) Kilroy as serted that the information was requested in relation to our upcoming negotiations, and because over the past few years Respondent had received complaints from em ployees with the setup and procedures of the UIW wel fare plan Kilroy requested the number of claims filed by employees in 1978 1979 and 1980 and the number of claims denied by the plan He also asked for the dates the UIW would be available to begin negotiations for a new contract Before we leave this letter, it is interesting to observe that Kilroy, after a short greeting began the second paragraph as follows 29 Counsel for the General Counsel represented that the parties had cross filed refusal to bargain charges I day apart (Tr 8 343) It seems that the Region dismissed the charge which Respondent filed against the UIW 30 Sec 102 118(b)(1) provides Notwithstanding the prohibitions of subsection (a) of this section after a witness called by the General Counsel or by the charging party has testified in a hearing upon a complaint under Section 10(c) of the Act the administrative law judge shall upon motion of the respondent order the production of any statement (as hereinafter de fined) of such witness in the possession of the General Counsel which relates to the subject matter as to which the witness has testa fled If the entire contents of any such statement relate to the subject matter of testimony of the witness the administrative law judge shall order it to be delivered directly to the respondent for his examina Lion and use for the purpose of cross examination 251 As you are aware, the collective bargaining agreement between the UIW and Louisiana Dock Company for the various bargaining units expires on August 19, 1981 [Emphasis added ] The UIW, by Joe Sacco, Gulf Coast director of the UIW, informed Kilroy by letter dated March 12 1981, that SIU Vice President Mike Sacco had forwarded to him Kilroy s letter regarding the upcoming negotiations He notified Kilroy that although Respondents request for information had been forwarded to officials of the welfare plan, the UIW would like to have a more specif is explanation of why the information was necessary since several of the requests for information seem to not be related directly to the needs of collective bargaining He enclosed a booklet describing the plan Finally Sacco suggested that negotiations begin July 9/10 in New Or leans, Louisiana, and he advised Kilroy that the UIW would be happy to host the negotiations at our hall in New Orleans He recommended that Kilroy call Jerry [sic] Brown or Jimmy Martin to set the place, time of day for negotiations " (G C Exh 66) Gerry (the correct spelling) Brown is in charge of the UIW's New Orleans office 31 Through further correspondence the parties agreed to meet on July 9 1981, at 10 am at the UIW hall in New Orleans In his June 22 letter to UIW Representative Gerry Brown Kilroy asserted that he had received no response to his request for information regarding the welfare plan, and he requested that Brown bring it to the meeting of July 9 (R Exh 39) 2 The July-August 1981 bargaining sessions a The July 9 1981 session Present for the UIW at the meeting of July 9 1981, were Union Repersentatives Gerry Brown, James Martin, Pat Pillsworth, Nick Marrone, and Mike Worley, Attorneys Irwin H Cutler Jr and Paul Barker and three employees James Brown, Dearal Stass, and Benny White Attending for Respondent were Stanhope F Hopkins Jr Norman Sonny Ivey and Kilroy (Tr 2 280, 8 182 9 409) At least Ivey, and perhaps Martin were not present for the entire meeting As of July 9 it appears that Gerry Brown was port agent for the UIW at New Orleans James Martin was a representative in the UIW s New Orleans office who as part of his duties serviced employees at Harahan Westwego 32 Marrone, from the UIW s Paducah Kentucky office serviced the employees at Cairo, and Pillsworth, from the UIW s St Louis office did the same for the Hennepin employees Worley who then was port agent at Jeffersonville, Indi 31 Brown was present at the beginning of the instant trial as one of the UIW s designated representatives (Tr 1 59) Unfortunately he was sen ously injured when struck by an automobile one evening (Tr 6 769) Al though resumption of the hearing was postponed several times (Tr 6 994 7 4) Brown apparently never recovered sufficiently to permit him to tes tify (7 4) Therefore the hearing was completed without his becoming a witness 32 Although Worley testified that UIW Representative David Carter was present (Tr 2 280) Carter testified that he attended only the August 19 1981 session (Tr 6 795) 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ana serviced the Louisville employees UIW Representa tive Carter identified James Brown, Dearal Stass and Benny White as being shop stewards at Harahan (Tr 6 778) Hopkins was the shipyard manager at Harahan, Ivey was ACBL s general manager for the fleeting operation on the lower portion of the Mississippi River (Tr 2 202 7 106, 8 174, 9 938), and Kilroy was vice president of labor relations for ACBL Brown was the chief spokesman for the UIW on con tract matters with Cutler speaking on legal matters, and Kilroy was Respondents chief spokesman The meeting started a little after the scheduled 10 a in starting time Brown opened the session with a statement that the ex piring agreement did not meet the needs of the Union and its members employed at the five locations He added that the fleeting at Westwego was scheduled to be moved upriver Kilroy responded with the Company s position that the contract did not meet the Employer s needs at Harahan and Cairo that the wages there were inadequate, and that Respondent was prepared to raise the wages there Hopkins announced that for all practical purposes the fleeting operation had already been moved Brown asserted that the Union would want to include language in the new contract which would cover a situa tion where existing operations are transferred to another location Around that point the parties began going through the Union's contract proposals Initially as Kilroy testified, Brown tendered one article at a time Each article was on a separate page Eventually he gave Kilroy the whole 26 page package of proposed articles numbered 1 to 19 (Tr 8 198, G C Exh 22) 33 As they went through the articles one by one before the lunch recess, only a few observations were expressed It appears that the pream ble or article IA as it is referred to (Tr 2 212) was ten dered out of order sometime before lunch The preamble denotes that the agreement is between the UIW and Louisiana Dock Company/American Commercial Termi nals, Inc Attorney Cutler inserted after the company name and its successors and assigns (Tr 2 287) The lunch recess lasted about 3 hours during which time Respondent prepared its response After lunch the parties discussed the 19 numbered articles in some detail We need not to pause to consider that discussion in full, for only the remarks pertaining to recognition are mate nal here This is not to overlook paragraph 12(a) of the primary complaint which alleges that since on or about July 9, 1981 Respondent has negotiated in bad faith and with no intention of entering into any final or bind ing collective bargaining agreement That normally is an allegation of surface bargaining There is no conten tion that this is the usual type of surface bargaining case The parties do not address this specific allegation Be cause the evidence does not support this allegation, I shall dismiss it Further reference to this allegation is made later As noted much earlier, the primary issue revolves around the question of whether there was a single bar gaining unit with five locations, or five bargaining units 33 Some of the proposals and pages are as short as one or two lines covered by individual addendums to one master collec tive bargaining agreement The recognition clause, ap pearing as the UIW s Proposal No 1 ' contains two sections The second which we are not concerned with, merely provides that the Company will not enter into any individual contracts with the employees which would conflict with the Union s contract The first sec tion reads PROPOSAL NO 1 RECOGNITION Section 1 The Company recognizes the Union as the sole collective bargaining agent for wages, hours and conditions of employment for all employ ees at its Harahan and Westwego, Louisiana fleeting and repair facility its Cairo, Illinois fleeting and repair facility, its Hennepin, Illinois barge cleaning and unloading facility, and its coal transfer facilities and manhole cover product facilities located at American Commercial Terminals in Louisville, Kentucky excluding guards and supervisors, as de fined in the National Labor Relations Act The em ployees included in the bargaining unit for which the Union is recognized and who are covered by this Agreement, are sometimes referred to as Em ployees As we see the UIW's proposal would do at least two things First, it eliminates references to Hall Street and Columbia Bottoms and contains references to existing sites only 34 Second, for the first time it would refer to the employees in these locations as constituting the bar gaining unit I take note of Kilroy s testimony, setting forth his interpretation that in the past the recognition clause was formulated for the sole purpose of granting recognition and not for the purpose of defining a bar gaining unit (Tr 8 310) When the parties resumed bargaining after the lengthy lunch recess on July 9 they quickly reached the recogni tion clause There is practically no dispute concerning the positions the parties expressed From a composite of the testimony of Kilroy, Hopkins and Worley (the only attendees who were witnesses), I find their positions ex pressed by Kilroy and Brown Cutler to be as follows Kilroy informed the group that the different facilities had always been treated as separate bargaining units, that there were different wage rates different conditions, sep arate operations, and no interchange of employees He said it was the Company s desire to have separate agree ments one covering Harahan Westwego as a separate unit, and a second one covering Cairo Hennepin as a separate unit He said the Company would offer suffi dent economic incentives to persuade the UIW to agree to separate contracts As for Louisville, Kilroy contin ued, there was a question concerning representation (QCR), and the Company would not bargain with the UIW regarding Louisville until the QCR was resolved as The Westwego operation of course was in the process of being transferred LOUISIANA DOCK CO 253 In support of Respondents position regarding Louis ville, Kilroy told the UIW that he was relying on two cases, Midwest Pipmg35 and Shea Chemical 36 He pointed out that NLRB Region 9 had recently issued a complaint (Case 9-CA-16703) against ACT in which the Louisville facility was described as an appropriate unit in and of itself (Tr 3 320) 37 Cutler responded that the bargaining unit description in the Region 9 case was merely a pro forma allegation (Tr 3 320) Kilroy said Respondent would not bargain regarding Louisville because of the QCR Cutler asked if the mere filing of the petition there would make it illegal for the Company to bargain regarding Louisville 38 Kilroy re sponded affirmatively and stated that he would be happy to reconsider if Cutler could cite him some case law Kilroy further stated that the Company would contin ue to bargain as to the other facilities in the hope of reaching agreement, that he would not insist to impasse on combining Harahan Westwego and Cairo Hennepin into two separate units under separate contracts, and that in the event Louisville was released from the QCR, the employees there would be included under the contract (as a separate bargaining unit, apparently) The parties spent the balance of the afternoon discussing the remain ing proposals Agreement was reached on some, as modi fled by the bargaining Following a caucus break toward the close of the ses sion, Brown addressed the unit topic He said that all five locations were historically part of the same unit, that the UIW was there to bargain for all five locations, and that it could not bargain for less than five locations be cause the Union was under a duty to bargain for all the employees in the unit Kilroy stated that Louisville had always been a separate unit, and that the Company would be committing an unfair labor practice by bargain ing regarding the Louisville employees Cutler asked Kilroy to reconsider the Company s position and Kilroy replied that he would be happy to do so if Cutler would show him some cases At that point the meeting ended The parties agreed to meet the following morning five locations, that it was the Union s understanding that the Company was not willing to bargain for all five loca tions, and that the UIW was not going to bargain or submit any proposals unless the Company agreed to bar gain on one bargaining unit which would include Louis ville Kilroy replied that the locations had always existed as separate units under one master contract, that the parties had bargained collectively on separate sites at separate times, that the Company desired to bargain for separate contracts, and that the parties should put Louisville aside until the NLRB issued a final ruling regarding that loca tion Cutler, and also Attorney Barker, said that the UIW had a legal and moral obligation to bargain for the employees at all five locations because historically the lo cations were all part of one unit Kilroy responded that they disagreed about the facts Attorney Barker asked how many employees were em ployed at the locations, and Kilroy and Ivey told him that Harahan Westwego fluctuated between 175-200, Cairo had 35, Hennepin 8 and Louisville 16 Cutler asked if Kilroy was going to allow a petition for 16 people block negotiations for nearly 250 employees Kilroy replied that the Company would not bargain while the QCR was pending, and that Louisville was an appropriate unit by itself Cutler stated that Kilroy s pro posal about holding negotiations as to Louisville in abey ance was unacceptable to the UIW because of its duty to represent the Louisville employees as well as the others Cutler stated that the UIW had filed charges alleging that the authorization cards at Louisville had been ob tamed with illegal assistance from ACT Kilroy replied that he had come there to negotiate a contract, not to discuss unfair labor practices Moments later the meeting broke up That very day the UIW filed its initial charge in this proceeding The following day as Kilroy testified the Company filed its own charge against the UIW It appears that the Compa ny s charge was dismissed or withdrawn b The July 10 1981 session Most of the same participants of the previous session met the morning of July 10 1981 The session lasted only about 30 minutes however Brown opened by re marking that the parties had made progress the day before and he thought they could do likewise that day Brown then yielded to Cutler who restated the UIW s position regarding the UIW being there to bargain for all 35 Midwest Piping & Supply Co 63 NLRB 1060 (1945) 38 Shea Chemical Corp 121 NLRB 1027 (1958) 34 A copy of the original complaint in Case 9-CA-16703 was not of fered in our proceeding However the amended complaint of June 12 1981 not only describes the Louisville employees as being a unit appro pnate but links the unit to the master contract 1976-1981 by alleging that recognition for such unit has been embodied in successive contracts the last one being the 1976-1981 agreement (C P Exh 14) As earlier noted at the hearing before Judge Schwartzbart the General Counsel amended the complaint to add the alternative allegation that the Louis ville employees alone or the employees at all five locations would con stitute an appropriate unit 38 We recall that the pending petition had been filed on May 20 1981 in Case 9-RC-13768 by the Inland Rivermen s Association c Interim correspondence After the July 10 meeting, and before the August 19 1981 session the parties mailed certain letters Kilroy s July 13 letter to Brown, after expressing personal greet ings, disappointment over the failure to reach a new agreement and a contention that the UIW s failure to ne gotiate was a failure to represent suggested several meeting dates in July and August The penultimate para graph reads (G C Exh 67) We are asking the UIW to meet with the Compa ny to negotiate wages, hours and conditions of em ployment at Harahan/Westwego and at Cairo/Hen nepin on the above dates We are also asking for a meeting on July 29 1981 to discuss our proposals on absentee control and overtime allotment at Hara ban To date we have submitted information re quested by the UIW on these matters, but have had no response or counterproposals Please advise on this matter and if we have no response we will 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD assume the UIW has no objections and the Compa ny will implement the proposals Brown replied by letter of July 21 After responding to certain matters in Kilroy s letter and asserting that the UIW was unwilling to participate in fragmenting an ap propriate bargaining unit, he asked Kilroy to reconsider his refusal to negotiate as to the Louisville employees Brown added When you are ready to negotiate for a new contract for the appropriate unit, and for all the em ployees in that unit, the union will certainly meet with you and is eager to do so " Brown's final two paragraphs read (G C Exh 68) With regard to your request for a meeting on July 29, 1981 to discuss your proposals on absentee control and overtime allotment at Harahan From a study of the information and charts you submitted, it appears that the overtime and absentee problem is occasioned by a shortage of manpower We will be glad to discuss this with you and aid you in correcting the problem, but it appears that any modification of the contract requiring compul sory overtime and setting penalties for absenteeism would affect the entire overall unit We will await further word from you Some men appear to be working an unreasonable amount of overtime In the meantime, on July 16, Hopkins mailed to all his Harahan shipyard employees copies of the following letter (C P Exh 2, Tr 2 243) By mutual agreement, representatives of Louisi ana Dock Company met with representatives of the United Industrial Workers on Thursday, July 9, 1981 to begin negotiations on a new labor agree ment After the usual pleasantries and chit chat, the Union presented its proposals and they were consid ered by the Company A number of items were readily agreed to, such as union security and dues check off One area of disagreement surfaced, both Thursday morning and Thursday afternoon the coverage of the contract to employees The Company has traditionally treated the bar gaining units at Harahan/Westwego Cairo/Henne pin, St Louis and Louisville as separate bargaining units, each with different wages, hours and condi tions of employment Last month another labor organization filed a pe tition for an election with the National Labor Rela tions Board in Cincinnati to represent the sixteen employees in Louisville At this time it would be unlawful for the Company to bargain with the UIW on the wages hours and conditions of employment of these employees until the NLRB determines who represents them The UIW had demanded that the Company bar gain on these employees now and that they be in eluded in a larger bargaining unit of Harahan/ Westwego and Cairo/Hennepin To enforce this demand the UIW has refused to bargain with the Company for more than two hundred employees at Harahan/Westwego and at Cairo/Hennepin The Company has filed refusal to bargain charges at the NLRB in New Orleans over this matter The Company wants to negotiate a new agree ment and is ready to meet with the UIW to negoti ate a new agreement The Company and Union had set aside a number of days for these meetings in New Orleans, but now the Union refuses to meet In the meantime, we plan to continue to operate our facilities and provide jobs for our employees Hopefully the Union will reconsider its position and resume negotiations so that we can reach a new agreement The UIW filed a charge in Case 15-CA-8268 appar ently alleging that such letter was unlawful, for on August 31 , 1981, the Regional Director for NLRB Region 15 dismissed the charge on the following ground (R Exh 72, Tr 9 549-552) As a result of the investigation, it appears that fur ther proceedings are not warranted The investiga tion failed to disclose that the Employer violated Section 8(a)(1) and (5) of the Act by sending letters dated July 13, 1981, and July 16, 1981, to unit em ployees describing the status of collective bargain ing negotiations These letters merely presented the Employer's position during bargaining on July 9 and 10, 1981, which regardless of merits is based upon legal principles Moreover, these letters were clearly not an attempt to bargain individually with unit employees or part of a calculated plan to un dermine the Union as the collective bargaining rep resentative of unit employees I am, therefore, refus ing to issue a complaint in this matter The UIW s appeal was denied by letter dated October 7, 1981, from the General Counsels Office of Appeals addressed to Cutler in the following language (R Exh 73) Your appeal in this matter has been duly consid ered The appeal is denied substantially for the reasons set forth in the Regional Directors letter dated August 31 1981 The content and context of the two letters sent by the Employer to employees were deemed insufficient evidence to establish a violation of the Act The Procter & Gamble Maniac turfing Co 160 NLRB 334, accord Peat Manufactur ing Co 251 NLRB 1117, (JD) 1134 1137 and cases cited With respect to your contention that the instant case should be remanded for consideration with the new charge (Case No 15-CA-8317), we note that there is presently no Section 10(b) problem of time liners and that the letters forming the predicate of the instant case could be again raised in connection with other evidence presented in Case No 15-CA- 8317 Accordingly, further proceedings were deemed unwarranted in respect to this matter LOUISIANA DOCK CO 255 Counsel for the UIW recalled at the hearing that Hop kins' letter had been offered as an admission, Respondent expressed the view that it was offered simply as back ground, and counsel for the General Counsel asserted that it was not offered for background (Tr 9 551-552) The parties make no arguments in their briefs on the matter I consider Hopkins letter, and the dismissal cor respondence, as part of the background By letter dated August 11, 1981, Kilroy wrote Brown as follows, with copies to various representatives of the Company and the UIW (G C Exh 69) Dear Gerry It is obvious at this point the National Labor Re lations Board will be some time resolving our re spective refusal to bargain charges It is even more obvious that our employees are expecting some sort of adjustment to the wages and benefits on August 20, 1981 In order to satisfy these employee expectations, the Company is requesting a meeting with the Union in New Orleans on August 19, 1981 to make an economic offer on wages and benefits and other outstanding items We intend to make a proposal covering the Harahan/Westwego unit, as well as the Cairo, Hennepin units No proposals will be made on the Louisville unit As always, if you have any questions, please do not hesitate to call Sincerely, Robert W Kilroy Brown's August 17 reply, conveyed by mailgram (G C Exh 70), was Your letter of August 11, 1981, was not received by the undersigned until August 17 because I was in Louisville As we advised the last time we met, the union is willing and ready to meet at any time for the benefit of employees it represents As per your request for a meeting on August 19, we will be available to receive your proposals at 1 p m on that date at 630 Jackson Avenue, New Orleans d The August 19 1981 session Most of the same representatives attended the August 19 session, although General Manager Ivey was not present The meeting began shortly after 1 p in and con cluded about 4 p in The session commenced with Kilroy stating that the Company wanted to propose changes in wages and bene fits for the bargaining units at Harahan Westwego and Cairo Hennepin Although Worley testified that Kilroy started off saying he wanted two contracts but then switched to one contract with two units Worley admit tedly had difficulty separating the sessions (Tr 3 336- 337) The difference is not particularly material In any event, Brown restated the UIW's position regarding the Union s unwillingness to negotiate unless the bargaining covered the entire bargaining unit of in its view all five locations Thus it appears that the UIW was present to hear what the Company proposed Kilroy passed out two sheets, one for Harahan Westwego (H W) and the second for Cairo Hennepin (C H) The pages contain wages, classifications, and benefit figures for health, welfare, and pension The sheet for H W also proposed one additional holiday, the day after Thanksgiving, and an overtime and absentee policy ` as [previously] discussed with Union (G C Exh 4) These two topics do not appear on the C H sheet, but a vaca tion benefit of "3 weeks after 8 years" does (G C Exh 3) Kilroy explained to the group that the vacation bene fit had been omitted inadvertently from the H W page (Tr 9 416) The classifications and wage rates proposed to be of fective on August 20, 1981, are as follows HW CH Master Machinist $1100 (No such Combination Mechanic 1000 classification) (NSC) Utilityman 9 35 (NSC) Mechanic I 900 $710 Mechanic II 800 6 25 Mechanic III 700 600 Sandblaster 6 30 (NSC) Helper 5 87 (NSC) Laborer 4 45 5 10 Laborer (1st 30 days) (No such classification) 400 Shift differentials were to be increased to 35 cents for the second shift and to 50 cents for the third shift Lead men were to receive an additional 50 cents an hour in both units As Kilroy testified this was an elimination of leadman as an independent classification (Tr 8 235-238) Hopkins described the new classification of master ma chinist, combination mechanic, and utilityman in detail by reading the standards necessary to qualify for the new classifications Hopkins and one of the stewards present engaged in a discussion on a criterion for the tolerance for fitting steel Hopkins then asked Brown if he were going into much detail, and Brown replied in the affirm ative Brown remarked that the Harahan employees already had the day after Thanksgiving as a holiday and that the Union wanted an additional one Some of the other loca tions did not enjoy that date as a holiday Either Kilroy or Hopkins asked Brown to come back to us and tell us" what additional holiday the UIW desired for Hara han (Tr 1 195) Kilroy then explained the proposal for increased bene fits which were to be under plans administered and paid by the Company 39 Kilroy added, however that if the UIW could furnish such levels of coverage at a competi tive cost, the Company would be glad to discuss the pos sibility of adopting such plans Kilroy then observed that he unsuccessfully had been requesting the Union to fur nish him detailed information on the UIW's plans since 99 The existing plans were those of the UIW to which the Company contributed (G C Exhs 75 75 1-6) 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1978 He reiterated that request At that point, the parties broke for a caucus to permit the UIW representatives to consider the Company s proposals When the parties had reassembled Brown stated that he assumed the Company intended to follow through on Kilroy s letter and implement the changes He said that the UIW could not legally negotiate at this time because of the Company s refusal to include the Louisville em ployees in the negotiations Brown said that although the pay increases were inadequate, the UIW did not object to them, but it did object to the other changes although it wished the Company would increase its contributions to the Union s plans Kilroy asked what Brown suggest ed Cutler said the Union was not proposing any specific amount of contributions Brown stated that he would furnish copies of the UIW s plans to Kilroy Kilroy asked for a breakout of certain data under the plans, and Cutler stated that the UIW would promptly submit an answer on that request Cutler asked which items Kilroy planned to imple ment and Kilroy said he did not know Brown said that he needed time, a week or a least a few days, to report to the membership concerning the changes the Company planned to implement Kilroy said he would hold off but stated that he needed something more definite than that Kilroy said he would call Brown the next morning 40 Brown said that as the UIW hall would be closed the next day in honor of Paul Halls birthday,41 he would call Kilroy at the LDC office and give the latter a number where Brown could be reached Kilroy told Brown that he would be at the shipyard office the next morning until noon, and he gave Brown a number where he could be contacted Kilroy added that he was not sure he could wait the time Brown wanted The meeting ended shortly thereafter Brown and Kilroy failed to contact each other the fol lowing day August 20 1981 and there is a sharp dispute regarding the cause The General Counsel and the UIW contend that the evidence demonstrates that Kilroy promised to call Brown the next day after lunch to let Brown know which items Kilroy was going to imple ment The Company s version is that Brown was to con tact Kilroy before noon on August 20, and give him the specific time Brown needed to talk to his membership Kilroy left around 12 15 p m for lunch and then mo tored to the New Orleans airport where he took a 4 30 p in flight to Louisville enroute to Jeffersonville Indiana (Tr 7 33-34 8 250) Admittedly Kilroy did not place a call to Brown on August 20 before his flight left that afternoon On the other hand, Brown, on arriving at the UIW hall shortly before noon did call (apparently 12 15 p m) for Kilroy and learned that he was at lunch David Carter testified about Browns call (Tr 6 781) More over, Kilroy s letter of September 1, 1981, to Brown, about which more in a moment, confirms that Brown did call after Kilroy had gone (G C Exh 73) There is evidence in the form of incomplete notes by Hopkins (C P Exh 1), and a sketchy note by Kilroy (C P Exh 17a) that Kilroy was to call Brown the next day after lunch According to Hopkins, he stopped taking notes before the parties discussed the fact that the UIW hall would be closed the following day and that the conversation thereafter modified what went before (Tr 2 230) Brown reiterated the UIW s version in a letter from him to Kilroy on August 27, 1981 (G C Exh 72), and Kilroy reiterated the Company s version in his reply of September 1 (G C Exh 73) Although the sub ject is not free from doubt, I find that Kilroy was to con tact the Union and tell Brown which items the Company was going to implement e Subsequent correspondence in August 1981 In its brief at 31-32 Respondent contends that the dif ference in the version is immaterial because it is clear that the respective concerns of Brown (time to communi cate with his membership) and Kilroy (time to make a final decision on what items to implement) were accom modated before LDC implemented the changes Thus Respondent argues Kilroy wrote a letter to Brown on August 21, confirming a telephone conversation of that date with Brown Kilroy advised Brown of the extent of the economic increases which would be implemented and he offered to renew bargaining (G C Exh 71) The parties stipulated that the announcement was not made to employees until August 25, 1981 42 Notwithstanding the stipulation, the parties also stipu lated (Tr 1 26) that on or about August 19, 1981 A] Pannier mailed to all Cairo employees a letter (G C Exh 7) attaching a photo of the proposal LDC had made to the UIW on August 19 for the Cairo Hennepin employees which ended with remarks that the contract had expired that date and asserting Hopefully representatives of the Union will accept their responsibilities and meet with repre sentatives of the Company and negotiate a new col lective bargaining agreement Until they do we can only offer to increase wages and benefits on a piece meal basis The parties further stipulated (Tr 1 24-25) that on or about August 20 1981 Hopkins mailed a letter (G C Exh 5) to his shipyard employees 43 As Hopkins letter is alleged in complaint paragraph 12(h) as being violative of Section 8(a)(1) and (5) of the Act by virtue of bypass mg the Union and dealing with unit employees it ap pears appropriate to quote the letter in full As was explained to you earlier the Union has refused to meet with the Company for more than a month For more than four months now the Union has refused to provide information on health and 40 Testimony on this portion of the meeting is sharply divided and a bit confusing 41 Paul Hall was president of the SIU before his death During Hall s tenure as president it was not the practice to close union offices on his birthday Beginning in 1981 the Union started that practice (Tr 4 511- 512 Worley) 42 Stipulation 6 on G C Exh 2 is that certain items made effective as of August 20 were not announced until August 25 1981 43 Although the stipulation refers to the Harahan employees it is clear that Hopkins has no jurisdiction over the fleeting employees and appar ently never communicated with them about anything LOUISIANA DOCK CO 257 welfare benefit administration For that reason we have proposed a Company paid and administered health and welfare program Proposals have also been made to the Union for a Company paid pen sion plan The combination Mechanic rates applies to those Welders, Fitters and Outside Machinists who can perform first class work in each occupation and to encourage 1st Class mechanics to improve their welding, fitting, or outside machinist skills The util ity man rate rewards those employees who can per form work in two more classifications such as pipe fitter and operator These are similar to our present premium and combination man rates As the contract has expired on August 19, 1981, we will continue to operate the facilities We en courage each employee to report on their regular shift Hopefully, representatives of the Union will accept their responsibilities and meet with repre sentatives of the Company and negotiate a new col lective bargaining agreement Until they do, we can only offer to increase wages and benefits on a piece meal basis If you have any questions, please do not hesitate to visit me or call There is no testimony in the record explaining why these two letters, particularly the one from Hopkins, in view of the recently filed unfair labor practice charge, were mailed before Brown and Kilroy conferred In fact, Brown and Kilroy did not confer until a telephone con versation they held Friday morning, August 21, 1981 That afternoon Kilroy wrote Brown as follows (G C Exh 71) Per our conversation of this morning and Wednesday afternoon, it is my understanding that the Union has no objections to the economic in creases proposed for the Harahan/Westwego, Cairo and Hennepin bargaining units They will be effec tive as of August 20 1981 If my understanding is not correct please advise As to our other proposals it is my understanding the Union objects to any changes which were pro posed It is also my understanding, per Mr Cutler s remarks of Wednesday afternoon that no proposals or counterproposals will be made by the Union until the Company agrees to bargain in the unit that the Union feels is appropriate If my understanding is not correct, please advise We again renewed our long standing request for information on the Health & Welfare Fund We ad ditionally requested for the years 1976 1977, 1978 1979 and 1980, a listing of all payments made by the fund to the Seafarers International Union of North America AGL&IWD, or the United Indus trial Workers of North America for services of their agents, as opposed to the purchase of benefits for their agents We expect a prompt reply to these re quests as we are quite concerned with what we be lieve may be illegal payments under Section 302 of the National Labor Relations Act As to the Union s position that it will make no proposals or counterproposals we find it unaccept able and inexcuseable We have had numerous dis cussions on Absenteeism and Overtime policies and the Union has not even offered a counterproposal to solve these two serious problems Please be advised that if the Union makes no re sponse to our proposals as submitted on August 20, 1981, they will be effectuated on September 1, 1981 We wish to continue to negotiate for new agree ments at Harahan/Westwego, Cairo and Hennepin whenever the Union is ready to meet, negotiate and offer proposals on these respective bargaining units Please advise when and where the Union wishes to meet again As always, if you have any questions please call Brown s reply letter of August 27, after acknowledg ing receipt of Kilroy s August 21 letter, reads as follows (G C Exh 72) Although doing so under protest because of your refusal to negotiate in the appropriate unit, the Union does not object to wage increases in the ex isting job classifications, increases in shift differen teal, additional holidays and additional vacation, except that the amounts you proposed are grossly inadequate to fairly compensate your employee You refer in your letter inaccurately to the bar gaining units As you know the unit includes all the locations you mentioned in your letter plus the Louisville location Because the Company has failed to negotiate in the appropriate unit and thus has not fulfilled its ob ligations under the National Labor Relations Act the Union will consider any changes such as you proposed (namely changes in the Health and Wel fare Plan Pension Plan Overtime and Absentee Policy, Job Classification Requirements and New Job Classifications) as unilateral changes made by the Company without having bargained in good faith with the Union Your request for information made at the meeting on August 19, 1981, is under consideration and we will reply to that request promptly You incorrectly state the Union s position as being that it will make no proposals or counter pro posals For example at our meeting on July 9 1981, we gave you nineteen written proposals and were prepared to submit additional proposals on July 10 Indeed, on August 19, if you had been prepared to negotiate legally, the Union was prepared to make additional proposals and, as I said, to build a con tract" with you You, however persisted in your refusal to negotiate for all employees After the Union responded to your two written proposals on August 19, you were asked what changes you were going to implement the next day and you said that you did not know I asked you to advise me what the Company intended to ample 258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment before it was, in fact, done, and you left the meeting assuring me that you would call me the next afternoon with that information However, you failed to do so and instead the Company went di rectly to the employees and began discussions directly with them Your direct communications to employees such as Mr Hopkins ' August 20 letter which contains grossly misleading statements, reveal the Company s attitude as one not conducive to good faith bargain ing and make meaningful negotiations difficult [Emphasis added ] Nevertheless, the Union is, as it has always been, ready, willing, and eager to meet with you for lawful negotiations so that your employees can secure improved wages and benefits and enjoy the other benefits of collective bargaining Wholly aside from the August 25, 1981 conferences Respondent conducted with employees , to be discussed shortly, it is clear that Brown was bitter over Hopkins letter on August 20 to the shipyard employees Hopkins jumped the starting gun with his letter of August 20 (not to mention Pannier's letter of August 19) Ostensibly, Hopkins letter did not give Brown the opportunity to alert employees of the Company s proposals As previ ously summarized, Kilroy and Brown did not confer on August 20 It would seem that Kilroy could have made some effort to call Brown at some point on August 20- even if by placing the call from the New Orleans airport Kilroy s failure to make that effort reflects unfavorably on the question of his good faith Respondents good faith is drawn into question all the more by the letters issued by Pannier and Hopkins There is no testimony that the letters were mistakenly re leased without Kilroy's authorization I therefore must presume and I find , that Respondent intended to release the letters when it did The timing of such a release, while Respondent was fully aware that there was yet a conversation to be held between Kilroy and Brown, was less than constructive As a practical matter , the Harahan employees (fleeting and shipyard) learned of the pay increases, and apparent ly some of the other items, when UIW Representative David Carter and UIW steward Dearal Stass, reported on these matters to the night shift the evening of August 19, 1981, and when Carter and UIW Representative Nick Marrone explained them to the day shift as it reported for work the morning of August 20 1981 (Tr 6 797) 44 Indeed, Carter testified that the employees were ready to strike over the absence of a contract until the UIW rep resentatives persuaded them to go to work 45 Under all the circumstances , including the fact that Hopkins' letter of August 20 relies in part on the descnp tion of the bargaining positions set forth in his letter to employees of July 16 , 1981 (C P Exh 2), it does not 44 UIW Representative Worley testified that it was on either July 10 1981 August 19 1981 or the day after those dates that he Dave Carter and Pat Pillsworth reported to the employees on the negotiations (Tr 4510-511) 45 Carter testified that after the employees decided to go to work the morning of August 20 1981 Respondent did not permit them to enter This point is not the subject of any allegation or litigation in the case appear that Respondent, through Hopkins letter of August 20 sought to bypass the Union or deal directly with employees (other than permissible reporting on the status of negotiations) as alleged The timing was coun terproductive, but the contents were permissible report ing Accordingly, I shall dismiss that portion of com plaint paragraph 12(h) D Discussion and Conclusion Regarding the Scope of the Unit For the benefit of the appellate process, I have de scribed, in some detail , the background and history of the negotiations through the August 19 1981 termination of the 1976 collective bargaining agreement Actually, such history is looked to only when the parties contrac tual intent is unclear from the face of the agreement be cause the language of that agreement is ambiguous But the language in the recognition clause of the 1976 con tract is clear, not ambiguous It is framed in traditional words recognizing a labor organization as the exclusive bargaining representative of all employees at several lo cations It is not necessary that such description refer to the grouping as a bargaining unit That is implied by tra dition On the other hand , had the description explicitly indicated that the locations were separate bargaining units, then it could be said that the parties made their intent clear that recognition ran to separate units and not to an overall multifacility unit Master agreements for multiplant units are not new See, for example, General Motors Corp 120 NLRB 1215 (1958) And there can be master contracts covering sepa rate units See Swift & Co, 124 NLRB 50 (1959) How ever, where the language is not ambiguous , resort to parol evidence to modify the language is not permissible Prestige Bedding Co , 212 NLRB 690, 700 (1974) But if the Board considers this recognition clause am biguous, or that parol evidence is otherwise admissible to establish the mutual intent of the parties and the meaning of their 1976 language , then a further word here is in order First, it matters not that in 1976 the recognition clause identified three locations-Hall Street, Columbia Bottoms, and Louisville-which then were nothing but vacant lots (Tr 8 131 ) This is so because recognition clauses encompassing after acquired facilities are valid However the Board imposes as a matter of law the condition for recognition that the labor organization demonstrate to the employer that it represents a majority of the employees at the new store or facility Save It Dis count Foods, 263 NLRB 689 (1982), Joseph Magnin Co, 257 NLRB 656 (1981 ) Kroger Co , 219 NLRB 388 (1975) In the case of Hall Street as we saw an unfair labor practice charge was filed a complaint issued, and ACT entered into a settlement which included canceling its recognition of the UIW there based on as alleged premature recognition Kilroy s testimony reveals a strong clue that the reason Respondent so enthusiastically extended recogni tion to nonexistent facilities was a mutual desire for a single multiplant bargaining unit He testified that the reason these nonexistent operations were included in the recognition clause was (Tr 8 130-131) LOUISIANA DOCK CO Paul Drozak and Jack Wofford labored under the misconception that if they gave each other recogni tion in an agreement no other union could come in and organize the facilities 46 As Kilroy so picturesquely described the relationship of Respondent and the Union on a related subject, they were in bed together (Tr 9 458 ) Although another union is free, under Kroger Co supra, to organize a newly opened facility which is not an accretion, the after acquired clause gives that union which is a party to the contract a leg up," as the saying goes, in the organizing campaign That is, the incum bent' union has the psychological and practical advan tage of a contract it can lay before the new employees in urging them to join Furthermore, the incumbent enjoys access to advance information concerning the opening of a new facility, particularly where, as here, there has been mutual cooperation between the parties As soon as a representative employee complement has been hired, the incumbent' union is free to move quick ly in obtaining the signed authorization cards of a major ity of the new employees In metropolitan areas, such as St Louis and Louisville, it is conceivable that the in cumbent" could have the new employees organized before any outside labor organizations become aware that there is a new operation at the location A real ad vantage to contractual parties in January 1976 were that an employer, if the incumbent union demonstrated its majority status at the new location (at least if done before any rival union filed an election petition), could extend recognition to the incumbent' without running afoul of the prohibition ennuciated in Midwest Piping & Supply, 63 NLRB 1060 (1945) 47 And the UIW, at least, would have an added incentive in desiring a single overall bargaining unit This extra in centive would be that a decertification petition cannot be filed for only a portion (such as one location) of a unit, but must be coextensive with the entire certified or rec ognized unit Utah Power & Light Co, 258 NLRB 1059, 1061 (1981) General Electric Co 180 NLRB 1094 (1970) 48 It surely is reasonable to draw the inference, which I draw, that Drozak and Wofford, either from their own experience in labor matters or through the advice of Kilroy were aware of the Board s decertifica tion rule Given the parties acknowledged desire to insulate the facilities from the organizing activities of rival unions of the UIW it is only natural that the parties would intend the recognition clause to define a multiplant bargaining unit 46 We recall that Paul Drozak was a vice president of the SIUAG and Gulf Coast area director of the UIW with Jack Wofford until August 1978 being vice president of operations for ACBL and also in charge of operations at LDC (Tr 7 104) 47 The Board modified Midwest Piping to some extent in the recent case of Bruckner Nursing Home 262 NLRB 955 (1982) but that change came after January 1976 48 Consequently a petition timely filed during a contracts window period would be dismissed if the petitioner sought to decertify the em ployees in only one plant of a certified or recognized multiplant bargain mg unit 259 Beyond the foregoing, the facts can be read to support the argument of either party For example, the different wage rates and holidays can be described as merely re flecting local conditions in an overall unit, or the eco nomic result achieved by bargaining in separate units Regarding the widely spaced geography and the differ ent business functions and administrative divisions, it can be concluded that the very fact such diverse factors are included under a master contract is strong evidence of an intent to create an overall unit Conversely, the same fac tors can be construed as being too diverse to be reason ably considered as anything but separate units under a master contract One of the strongest factors revealing an underlying understanding by the parties that the recognized unit consisted of all the locations specified in the recognition clause is the conduct of the parties relating to their agreement on a separate contract for Hall Street They clearly expressed a desire to treat Hall Street separately from the overall unit in order to permit them to provide an enhanced economic package to the employees there without having to do the same for employees at the other locations To accomplish that goal, they recog nized the necessity of carving Hall Street from the over all unit and placing it under a separate contract inde pendent of the master agreement This they did Perhaps the strongest factor suggestive of single units under a master contract is the absence of any express statement by the UIW during the years before July 9, 1981, that the Union considered the several locations to constitute one bargaining unit The closest the UIW came to that in writing was the July 9 1980 letter from the SIUAG Vice President Michael Sacco to Kilroy pro testing the latter's seeking to limit bargaining sessions ` to only one of the covered locations (C P Exh 12) Sacco went on to assert that any new contract had to cover `all locations as contractually provided " When we look to earlier times we see that in the De cember 1979 negotiations, the Company took the post tion that it would entertain a new 3 year agreement at Harahan but not elsewhere (Tr 8 175) There is no evi dence that the UIW protested that such an action would break up an overall unit Nor is there evidence that the UIW protested when Kilroy by letter dated January 19, 1979, wrote to Worley regarding the Cairo Hennepin bargaining units and the Louisville bargaining unit (G C Exh 19) But in the summer of 1981, when the fate was already in the fire, the UIW through Brown s letters in August 1981 to Kilroy, did not hesitate to correct the latter s references to separate units (G C Exhs 65, 72) On the other hand, when Frank Drozak, then the UIW s executive vice president, wrote Kilroy on July 16, 1979 about a difference in overtime pay between Cairo and Harahan, he referred to units and the Harahan unit (R Exh 19) Thus This contract covers Cairo, Illinois fleeting and repair facility as well as units in Louisville, Colum bia Bottoms, Harahan and Westwego, Louisiana (Article I, Section I, Recognition) This Hara han Yard Addendum includes a wage schedule ap 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plicable only to the Harahan Yard unit [Emphasis added ] Arguably the word units in the quotation is used as a synonym for business units, as in the reference to the Cairo facility, and when he also refers to unit" re garding the Harahan Yard As previously observed when covering the events of 1979, it seems strange that an ex penenced representative of a labor organization would select that critical term as a synonym for business facile ties Notwithstanding the use of units by the parties in their correspondence of pnor years, the fact remains that the language of the recognition clause is not ambiguous Therefore, in searching for the mutual intent of the par ties, I find that the more reliable test and the most work able, is simply to read the language of the parties in the recognition clause Using traditional prose they defined a multiplant bargaining unit If Respondent did not want a unit of that scope it should have said no and expressly contracted for separate units The Board s language in Young & Hay Transportation Co 49 seems quite apropos Had such a subgrouping been intended, we believe the terms of the agreement would have specifically so provided In light of the foregoing it is clear that Respondent s reliance on events at Louisville was misplaced because Louisville was covered by a contract with a multiplant bargaining unit The IRA filed its petition several months too soon, so the petition was barred by the existing con tract Moreover, as the IRA sought to represent only a portion of a larger unit, the petition failed to comply with the coextensive rule Kilroy s testimony, not sum maned in this decision about a good faith doubt that the UIW represented a majority of the Louisville em ployees becomes meaningless when we recognize that even if such were true it would be irrelevant, for the 16 employees at Louisville were but a small fraction (much less than the required majonty) of the over 200 employ ees of the multiplant bargaining unit At the July August 1981 bargaining sessions Respond ent placed itself in the position of refusing to bargain for all of the recognized unit That is the same as insisting to impasse on modifying the recognized bargaining unit Such conduct violates the statute Accordingly I find that Respondent, by refusing to bargain for the Louis ville portion of the recognized multiplant bargaining unit, violated Section 8(a)(1) and (5) of the Act as al leged in complaint paragraphs 12(b), (c), (d), and (e) 50 On July 11 of this year I found, in Case 9-CA-18193 that the Louisville employees constituted an appropriate unit and that ACT must bargain with the UIW as the representative of the employees in that separate unit JD-(ATL)-52-83 Whether a multiplaint unit was appro prate was not in issue in Case 9-CA-18193 On the other hand, the unit scope alleged and litigated here en compasses the Louisville employees as well as those else where Therefore the order in this case directing Re 49 214 NLRB 252 253 (1974) enfd 522 F 2d 562 (8th Cir 1975) 50 Par 12(d) was amended at the hearing (Tr 7 17) spondent to bargain as to all locations as part of a single unit will control E The Unilateral Changes of 1981 1 Introduction Certain changes made by Respondent in the misplaced reliance on the correctness of its legal position regarding the scope of the bargaining unit similarly violated the statute For example it follows from my finding on the scope of the unit that unilateral changes in job classifica tions wage rates benefit plans and similar items speci feed in the contract are illegal This is so because there was no lawful impasse Indeed, there could be no lawful impasse when Respondent declined to bargain over the full unit and the Union exercised its right to set aside bargaining for the Louisville employees on a contingen cy basis As Respondent implemented these unilateral changes without bargaining with the UIW, I shall pro vide a remedial correction in my recommended Order Most of these changes are stipulated 2 New classifications Complaint paragraph 12(f)(1) as amended at tnal, al leges that on or about August 20, 1981, Respondent uni laterally instituted the new classifications of combination mechanic utilityman and master machinists at Harahan Westwego, Cairo and Hennepin (G C Exh 86) The parties stipulated to the facts as alleged except that the date is August 25 1981 (G C Exh 2 items 2 6) I find Respondents conduct unlawful 3 Increase of certain wage rates Paragragh 12(f)(2) of the October 7, 1982 complaint al leges that on or about August 20 1981, Respondent uni laterally increased the existing hourly wage rates for cer tarn unit job classifications, and increased the shift differ ential for certain unit job classifications at H W C H Al though the parties stipulated to these facts (G C Exh 2 items 3 6) UIW Port Agent Brown, as previously sum marized agreed on August 19 under protest that they could be implemented His letter of August 27 1982 to Kilroy restates that agreement under protest (G C Exh 72) Accordingly I find the wage increases to have been unlawfully granted because Respondent was excluding the Louisville employees from the bargaining process 4 Additional paid holiday Complaint paragraph 12(f)(3) as amended at tnal, al leges that on or about August 20, 1981 Respondent an nounced the granting of an additional paid holiday at Harahan Cairo and Hennepin and increased the number of paid holidays available to unit employees at Cairo and Hennepin by granting the day after Thanksgiving (as a holiday) for these employees (G C Exh 86) The parties stipulated that the holiday was so granted at Cairo and Hennepin (G C Exh 2 items 4 6) but the matter is disputed regarding implementation at Harahan When Hopkins announced the extra holiday at Harahan on August 25, the employees told him they already had LOUISIANA DOCK CO 261 that day I credit Hopkins in his testimony that he told them to have the Union (not the employees themselves) let him know what other day was desired as a substitute (Tr 1 116) There is no evidence this was ever done Hopkins testified that the holiday proposal was not im plemented at Harahan (Tr 1 111) I therefore find viola tions alleged except as to the implementation at Harahan 5 Overtime and absentee policy Complaint paragraph 12(f)(4), as amended at the trial, alleges that on or about August 20, 1981, Respondent unilaterally announced an overtime and absentee policy affecting unit employees at H W C H and implemented an absentee policy affecting unit employees at Harahan (G C Exh 86) Evidence supports the announcement by documents and by Hopkins oral statements on August 25, 1981 However, I credit Hopkins in his testimony that the overtime and absentee policy was never imple mented at Harahan following the earlier settlement in volving a unilaterally instituted absentee program (Tr 1 111-112, 9 527-528, 574-575) To the extent there is any conflict on the issue, I credit Hopkins Except for finding no implementation at Harahan, I find a violation as alleged 6 Group insurance and pension benefits Paragraph 12(g) of the October 7, 1982 complaint al leges that on or about September 1, 1981, Respondent unilaterally implemented changes in group life, medical and/or health and welfare insurance and pension benefits affecting all employees' at Harahan, Westwego Cairo, and Hennepin By letter dated September 1, 1981, Kilroy advised UIW Port Agent Gerry Brown as follows in relevant part (G C Exh 73) Please be advised that effective September 1, 1981, LDC will cease making contributions to the UIW Welfare Plan at Harahan/Westwego Cairo and Hennepin bargaining units We will implement in these bargaining units the Company paid and ad ministration of health welfare and pension plans proposed on July 9, 1981 and August 19, 1981 511 The parties stipulated that on or about September 1, 1981, LDC implemented its proposal to the Union on such insurance and pension matters (G C Exh 2, item 5) The parties also stipulated that on September 8, 1981 Respondent posted a notice (G C Exh 6) to its Harahan employees informing them of informational meetings to be conducted September 15-16, 1981 by Ruth Emily and Renee Baines, from Respondents employee relations department in Jeffersonville Indiana concerning the new insurance and pension benefits coverage (Tr 1 25), and further stipulated that such meetings were held (G C Exh 2, item 7) In view of the foregoing, I find that Respondent vio lated Section 8(a)(5) of the Act as alleged 51 The proposals are in evidence as G C Exhs 3 and 4 7 Direct dealing Paragraph 12(h) of the October 7 1982 complaint al leges that Respondent unlawfully refused to bargain with the UIW when (h) On or about August 20 and September 8, 1981, by written communication and on or about August 25, September 15 and 16, 1981, by employee meet ings, Respondent, acting through Stan Hopkins, Norman Ivey, Ruth Emily and Renee Baines at its Harahan and Westwego, Louisiana facilities, by passed the Union and dealt directly with its employ ees in the unit by announcing and implement ing the unilateral changes described in paragraphs 12(f) and (g), above The undisputed and mostly stipulated facts establish the foregoing allegation except as my findings on para graphs 12(f) and (g) otherwise indicate Accordingly, I find that Respondent violated Section 8(a)(5) of the Act by its direct dealing 8 Discontinuation of welfare and pension contributions Paragraph 12(i) of the October 7, 1982 complaint, as amended at trial (G C Exh 86) alleges that on or about September 1, 1981, LDC unilaterally discontinued pay ments of $3 per unit employee per day for welfare and pension to the UIW welfare and pension plans The paragraph further alleges that ACT unilaterally discon tinued such payments for its Louisville employees effec tive on or about April 1, 1982 The parties stipulated to the factual accuracy of the foregoing allegation (G C Exh 2, item 10) Accordingly, I find that Respondent violated Section 8(a)(5) of the Act, and I shall recommend an appropriate remedy F The Layoffs 1 Background The General Counsel alleges that Respondent violated the Act by unilaterally laying off employees on various dates in June July September and October 1982 with out providing the Union prior notice and/or an oppor tunity to bargain about the effects of the layoffs 1152 The Charging Party independently contends that Respondent additionally violated the statute by failing to bargain over the decision to lay off Respondents primary de fense is that the contractual language is unclear and it merely followed its past practice (1977 and 1981) of laying off employees without notice to the UIW The Union counters that the past practice" is substantially different in nature (of short duration, averaging about a month compared to the indefinite layoffs in 1982) and scope (far fewer employees laid off in 1977 and 1981) 82 The June-July 1982 layoffs are covered by par 13(a) of the October 7 1982 complaint As noted at the beginning of this decision the sole violation alleged by the other trial complaint dated October 20 1982 covers the September-October 1982 layoffs in par 11 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from the 1982 layoffs and that the prior layoffs do not constitute an authorizing past practice Addressing, first of all, the Charging Party s conten tion that Respondent unlawfully failed to bargain over the decision to lay off employees in 1982, I note that the General Counsel limited the complaint allegations to 'ef fects The General Counsels trial attorney confirmed at the hearing that the allegations were so limited (Tr 7 48) Respondent gave notice that it had no intention of expanding its defense to litigate the UIW s claimed viola tions (Tr 7 46, 9 453-454) As articulated at trial, the UIW seemed to contend that the requirement of prior notice, referred to in the complaint allegations, encom passes the concept of a bargaining duty regarding Re spondent's decision to lay off (Tr 7 49) This was stated during colloquy over whether the Charging Party would be seeking in effect, to amend the complaint The UIW makes no contention that the issue of decision bargaining was otherwise litigated It is clear that the allegation phrase of prior notice ' simply modifies effects" and has nothing to with the de cision to lay off 53 The "prior notice requirement simply refers to Respondent's obligation, as alleged to provide the Union an opportunity to bargain about the effects" before the layoff occurs The UIW s argument on brief, citing cases defining an obligation to bargain over the decision to lay off, is misdirected to me, for the complaint does not allege a failure to bargain over the economic decision to lay off and the matter was not litigated Accordingly, I reject the Charging Party s con tentions on that matter in the posture of this case The contractual language regarding seniority appears under a heading for that topic in the six page Harahan addendum of January 16 1977 (G C Exh 14 9 447) As reflected on the first page of the document, the parties agreed In cases of layoff and recall, seniority shall apply where skill and ability are equal' Some 20 employees of the Harahan shipyard were laid off in September 1981 54 Most were recalled in about a month (R Exh 68) There is no dispute that they were laid off, as their layoff letters from Hopkins reflect by seniority within each classification 55 ss Par 13 (a) of the October 7 1982 complaint reads (a) On or about June 28 1982 and July 30 1982 Respondent refused to recognize and/or bargain with the Union by unilaterally laying off unit employees at its Harahan Louisiana facility in the unit as de scribed in paragraph 7 above without providing the Union prior notice and/or an opportunity to bargain about the effects thereof [Emphasis added ] Par I1 of the October 20 1982 complaint reads in relevant part Since on or about September 3 1982 and continuing thereafter to date Respondent has refused to bargain with the Union in that on or about September 16 September 17 and October 8 1982 Respondent has refused to recognize and/or bargain with the Union by unilaterally laying off employees at its Harahan Louisiana facile ty without providing the Union prior notice and/or an opportu nity to bargain about the effects thereof [Emphasis added ] 64 A listing (R Exh 68) names 19 employees but there are copies of letters to 20 employees The letters reflect that copies were mailed to UIW Representative Dave Carter Ss That is to be distinguished from classification seniority which means the length of service within a classification Under the system used seniority within the classification employees are laid off by classifi cation In the affected classification employees with the least plant se nionty are laid off before those with greater overall seniority even though the former may be more experienced (have more seniority) in the In 1977 there were 15 employees laid off (2 of whom were laid off twice) between late August and mid Octo ber Most were recalled in about a month (R Exh 67) Kilroy testified that the 1977 layoffs were effected by se nionty within the classification (Tr 8 148-149) On cross examination by the UIW, Kilroy was emphatic in stating that layoff by seniority within job classification was indeed the shipyards past practice and not merely the Company s perception of the past practice (Tr 9 446) As described earlier, the parties met for wage reopener negotiations in November 1977 In addition to the changes it desired in wage rates, the UIW presented a two page list of topics with requested modifications (R Exh 66) The last item on the list reads LAY OFF No lay off shall be implemented without having five (5) work days notice to any and all employees When describing the bargaining sessions, Kilroy testi feed that one of the Union's demands was that layoffs be by strict seniority The Company responded that it could not lay off in that fashion, and that layoffs would have to be by seniority within the classification (Tr 8 143) It is not clear whether Kilroy was describing an oral expression by the UIW, or whether he overstated the extent of the Union s written demand The written pro posal (R Exh 66) was not available for Kilroy to identi fy until the day after he initially described the November 1977 negotiations (Tr 8 147, 9 384) Kilroy testified that no agreement was reached to give the Union the layoff notice it requested (Tr 8 254) On cross examination by the General Counsel, Kilroy described an early 1977 discussion he had with Elvis An derson, then the shipyard manager, concerning layoff by seniority within the classification Anderson told Kilroy that UIW Representative Jim Martin wanted the layoffs to be by strict seniority ' Kilroy testified that the idea of laying off by seniority within classification was basi cally Anderson s (Tr 8 137) Kilroy testified that on that occasion Anderson laid off by seniority within classifica tion 56 During the January 4-5, 1978 wage reopener negotia tions the layoff procedure was mentioned again al though apparently not as a written proposal by the UIW On one of those days, as Kilroy testified, Chief Union Steward Herbert Boudreaux, a member of the UIW s ne gotiating committee, asked about notice of layoffs Kilroy or one of the Company's representatives told Boudreaux and the UIW that notice of 'yard and busi ness conditions (and presumably any necessary layoffs) would be given as we had it They also discussed the layoff method and in Kilroy s words (Tr 8 150) classification than the latter (Tr 2 157-158) The system of seniority within the job classification was used by the employer in Gulf States Mfrs. v NLRB 704 F 2d 1390 (5th Cir 1983) 55 It is possible that the layoff Kilroy described at this point in his tes timony was the September 1977 layoff That would be consistent with the record evidence regarding the September 1977 layoff and the No vember 1977 negotiations LOUISIANA DOCK CO 263 We told them we had to lay off by seniority for classification in order to keep the shipyard working Kilroy testified that he explained the reason for this by giving an example In a layoff, he explained, where the shipyard had 30 first class welders, 30 fitters, and 30 out side machinists but only 10 of each classification were needed, the shipyard could not risk laying off by plant seniority or it might end up not having the people we need (Tr 8 151) To assure it would have experienced hands in those classifications, it would retain the 10 senior' welders, fitters, and outside machinists By "se niority, Kilroy's example evidently meant hire date (plant) seniority within each classification, and not classi fication seniority (the latter being length of service within the classification, (Tr 2 158) 57 During cross examination by the General Counsel, Kilroy also testified that there was a layoff of unit em ployees at Louisville in the summer or fall of 1981, and that the method utilized was seniority within the classifi cation (Tr 8 289) 58 Kilroy possibly was referring to the January 29, 1982 layoff of 5 employees (31 25 percent of the 16 unit employees) as described at slip opinion page 13 of my July 11, 1983 decision, JD-(ATL)-52-83, in Case 9-CA-18193 As disclosed on the 10 page payroll listing, in evidence there as Respondent's exhibit 2, cov ering the Louisville facility for the period of July 1, 1980, through March 28, 1982, the only employee laid off in 1981 was Wilson Rice who was recalled the week ending January 24, 1982 I take official notice of Re spondent's Exhibit 2 in the Louisville case The method of that layoff was not described in the record for Case 9-CA-18193 Although Kilroy s placement of the Louisville layoff was off by a few months, I credit his recollection regard ing the method of the layoff The witnesses in this case were asked to recall many details of events reaching back several years Some inaccuracy is to be expected As previously discussed, the Union presented 26 pages of proposals (G C Exh 2) at the bargaining session of July 9 1981 Proposal 5 covers the topic of seniority and it contains four numbered sections relating to various subtopics Section 1 for example, would change the pro bationary period from 90 days to 30 days Section 2 per tarns to layoffs and it reads Section 2 On layoffs recall choice of shifts, over time and vacations the principle of seniority shall apply as set forth in this Agreement Seniority shall be determined by the length of service of an em ployee from the employees date of hire A seniority list shall be established and monthly maintained and 57 It would appear that the system of (plant) seniority within the classi fication serves the twin goals of retaining experience in the needed job classification while keeping the employees with overall senionty Classifi cation seniority on the other hand would retain the most experienced first-class welder for example but would (or could) sacrifice to lay off an employee of 25 years overall service who although a first-class welder had 2 days less service as a first class welder than a retained em ployee whose plant seniority totaled only 5 or 6 years 58 Kilroy could not recall any layoffs having occurred at either Cairo or Hennepin (Tr 8 289) kept posted, a current list will be furnished to the Union monthly Union Representative Michael Worley's testimony was quite brief about the bargaining on this, and consists of his stating that Kilroy said layoffs, recalls and choice of shifts would be by departments (Tr 2 295, 4 464) Worley, on cross examinination, stated that he did not recall UIW Port Agent Gerry Brown s agreeing that lay offs would continue to be by classification at Harahan, but that the UIW wanted to modify that method to give bumping privileges (Tr 4 465) I note that the UIW filed a grievance in August 1982 claiming that laid off employees should have the option of bumping into lower rated classifications on the basis of plant seniority (G C Exh 24) UIW Representative Dave Heindel confirmed in this testimony that such was the theory of the grievance (Tr 5 620) Indeed, Heindel articulated this theory of the grievance in his August 24, 1982 letter to Hopkins (G C Exh 27) In the letter Hein del asserted that he had checked with Gerry Brown re garding the matter of an oral agreement prohibiting such bumping 59 The Union," Heindel stated, has no recol lection of such an `oral' agreement Heindel added, I therefore take the position that bumping is required under the Addendum provision Heindel then quotes the seniority language of the January 1977 adden dum concerning seniority applying where skill and abili ty are equal Kilroy testified that at the July 9, 1981 session he asked Brown (for his agreement that) layoffs were to continue to be as in the past, by seniority in the classifi cation, and that Brown said yes (Tr 8 204-205) I credit Kilroy on this point Worley was unable to recall much about this important topic Actually, Worley s recollec tion that Kilroy referred to layoffs by departments is not at all inconsistent with Kilroy's testimony, and it is even consistent with the apparent method Respondent used in laying off employees in 1982 as shown by Respondent's Exhibit 69 60 The listing of layoffs on that document in dicates that the layoffs could well have been by depart ment, and then by plant seniority within each job classifi cation 2 Applicable legal principles Layoffs are considered a mandatory subject for bar gaining Thus, although an employer may properly decide that an economic layoff is required, once such a decision is made the employer must nevertheless notify the bargaining representative and, on request bargain with it concerning the layoffs, including the manner in which the layoffs and any recalls are to be effected Eltra Corp, 263 NLRB No 106, slip op at 5 (Aug 31, 1982) (unpublished) Clements Wire & Mfg Co, 257 NLRB 1058, 1059 (1981) This is true without regard to 59 The UIW apparently filed no grievance over the September 1981 layoffs which expressly were by senionty within the classification So R Exh 69 is a 2 page document giving the last names of the 56 em ployees laid off between June 28 and October 20 1982 along with their department job classification (hire date) seniority layoff date recall date (where appliable) and second layoff date (where applicable) 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a past practice regarding layoffs flits is so because a past practice exonerates unilateral action only where three conditions are met (1) the employers action fol lowed past practices (2) the impact on unit employees is de minimis, and (3) the employer did not refuse to honor a request to bargain Kal-Equip Co, 237 NLRB 1234, 1238 (1978) Layoffs, particularly when, as here, they in volve some 56 employees in 1982, are anything but de minimis However, the foregoing principles are not necessarily controlling here In our case there was a contractual pro vision That contractual clause is rather ambiguous, for it could apply to any layoff system When the contract is unclear, extrinsic factors may be examined to ascertain the intent of the parties Here we have the following rel evant past practice September 1977 Layoffs by seniority within job classification November 1977 UIW unsuccessfully seeks to have layoffs be by strict seniority ' January 1978 Company again explains to UIW that layoffs must be by seniority within the classifi cation, but agrees to give notice of yard and bust ness conditions (and, presumably, of any impending layoffs) to the UIW as we had it July 9 1981 UIW (Brown) concurs that layoffs to continue to be by seniority within each classifica tion Company (Kilroy) rejects UIW demand that downward bumping into lower classifications be permitted September 10, 1981 Layoff of 20 employees by seniority expressly within each job classification (G C Exh 23 R Exh 68) Although copies of the layoff letters went to the UIW, the Union apparent ly filed no grievance over the layoff procedure It seems clear, and I so find, that the contractual intent as shown by Respondents established past prac tice for layoffs was to utilize the method of laying off on the basis of a ranking of employees within job classifi cation by their plant hire dates Employees with the last senior hire dates were the first to be laid off from the of fected classification As Kilroy credibly testified (Tr 8 152) I find that there was no downward bumping (into lower classifications) in any of the past layoffs I further find that the practice of notice was a bit mixed Although Kilroy, or another company bargaining representative, stated in January 1978 that notice of con ditions, presumably including impending layoffs would be given to the Union it appears that the only notice the UIW received of the September 1981 layoffs was copies of the letters to the affected employees Hopkins recalled that the Union s copies were not sent early and he did not recall telephoning UIW Representative Carter to give him advance notice (Tr 1 123) 61 Carter could recall very little about the matter (Tr 6 827) 61 Carter was the UIW s representative who serviced the Harahan em ployees in 1981 (Tr 6 776) David Heindel testified that he succeeded Carter in about October 1981 (Tr 5 605 646) 3 The 1982 layoffs a Introduction As the quoted complaint allegations disclose, the Gen eral Counsel alleges, and contends on brief, that Re spondent unilaterally laid off employees on or about" June 28, July 30, September 16-17, and October 8, 1982 The record reflects that additional employees were laid off on other dates in this period, including nine on August 11, six on August 26, three on October 19, and a scattering of ones and twos on four other dates in June, August, and September 1982 As the allegations are of the on or about type, and as nearly all the dates not specifically alleged fall within the timeframe (lust over 3 months) of the specific dates, I shall treat all these layoffs (a total of 56) as encompassed within the on or about allegations Not only did the economic layoffs affect the 56 em ployees at least once, some were affected twice Thus, of the 56 laid off, 10 were recalled between August 9 and October 11, 1982 But four of these were laid off again, three on October 19, 1982 (a different group from the other three laid off that date) and one on October 20, 1982 (R Exh 69) The list apparently ends with October 20 because that is the date of the last complaint, and the allegation, quoted above, speaks of a refusal to bargain from September 3, 1982 to date The initial layoff dates in 1982, and the numbers of employees laid off, are shown below (R Exh 69) Date Layoffs June 28 12 June 29 1 July 30 6 August 2 1 August 6 2 August 11 9 August 13 1 August 26 6 September 2 2 September 10 2 September 16 2 September 17 8 October 8 1 October 19 3 As earlier noted, some were recalled and four were laid off a second time (three on October 19 and one on October 20) b Layoff of June 28 1982 Hopkins admits that he did not give the Union any ad vance or contemporaneous notice of the June 28 layoffs (Tr 1 117-118) There is a dispute over whether Union Representative Dave Heindel learned about the layoffs from the employees in July and , at a July 13, 1982 meet ing regarding employees discharged for smoking mart Juana asked Hopkins for notice in the future , or whether the June 28 layoff was first mentioned to the UIW at a meeting of the parties on September 2, 1982 , in the law LOUISIANA DOCK CO office of Andrew Partee, Respondents counsel here 62 Hopkins and Kilroy gave the former version, and the second version is that of Heindel and the UIW Having replaced Dave Carter as the UIW s representative for the Harahan employees, David Heindel serviced the em ployees during late 1981 and also during 1982 (Tr 5 645- 646) This point is discussed in more detail under the topic of the September-October 1982 layoffs June 28, 1982, fell on a Monday Hopkins testified that it was about Thursday, June 24, that he decided a layoff was necessary and determined that some 12 employees would have to be laid off (Tr 1 118-119) His thought was to lay them off on Friday, June 25 but the timing was too close for preparing paychecks and the like and he had to settle for the June 28 date When asked why he did not call the Union and see if it wanted to meet and discuss the effects of the layoff, Hopkins testified, We had never done this in the past when we had lay offs (Tr 1 119) Aside from the contemporary notice Hopkins gave the UIW in September 1981, Kilroy (or some official) did agree in January 1978 to give the Union notice of yard and business conditions," and presumably impending lay offs, as we had it Despite his testimony about this on the second day that he was a witness (Tr 8 150), Kilroy, the following day, testified that it had never been the Company s practice to give the Union notice of layoff (Tr 9 442) The two points may not be inconsistent in logic, but they are incompatible in spirit I find that by early Friday, June 25 1982, Respondent could have notified the UIW of its economic decision to lay off 12 employees, and apparently could have named the 12 selected, and that it would have done so had it followed its January 1978 promise to the Union Aside from Respondents January 1978 promise to give notice, the pertinent fact is that Respondent was under a statutory duty to give whatever reasonable notice it could This it failed to do c Layoff of July 30 1982 Six employees were laid off on Friday July 30, 1982 As previously mentioned , Hopkins testified that at the July 13 grievance meeting on the marijuana discharges, the union representatives complained that it was embar rassing to receive notice of a layoff from employees who had been laid off He and Kilroy agreed to give such notice as they had on future layoffs (Tr 1 124 2 259 9 442, 553 555) Hopkins testified that on July 27 and 28 he surveyed the lack of work situation and on July 29 possibly on July 28 he decided that a layoff was necessary (Tr 2 143, 9 534) On either July 28 or 29, Hopkins conferred with Kilroy over his plans to lay off by seniority within the classification Kilroy confirmed that such was the correct procedure and he reminded Hopkins to call and notify the Union per their July 13 agreement , a matter Hopkins had forgotten (Tr 1 124, 2 144 8 269, 341) Hopkins then, on July 29 telephoned Heindel As Heindel was out Hopkins left a message for Heindel to 62 It appears that Partee was not present Kilroy was present howev er as was Hopkins among others 265 call him When Heindel returned the call the morning of Friday, July 30 1982 Hopkins informed him that he had called the previous day to alert him of the layoffs Hop kins was implementing the day of their conversation, July 30 Heindel complained about the lack of prior notice Hopkins said prior notice was not the practice Heindel asked to bargain about the matter Hopkins re plied that although it was not Respondents practice to bargain about layoffs, Heindel could come over and talk about it (Tr 1 124-125, 2 144-145) About 10 50 am July 30, Heindel and UIW Repre sentative James McGee arrived at Hopkins office (Tr 5 557) In the meeting that followed, Heindel asked why there was no prior notice Hopkins replied that if prior notice had been given to the employees they would not have done any work to speak of thereafter and that notice was given to the Union on July 29, the day of the layoff decision (Tr 2 146, 5 558) They then discussed the selection procedure of seniority within the classifica tion, with Hopkins furnishing the names of the employ ees being laid off that day and reading from a c'assiffca tion sheet (R Exh 3, Tr 5 659) Heindel asked for a se niority list, and Hopkins promised to provide one Hein del asked about bumping from the day shift to the night shift, and from a higher rated to a lower rated classifica tion There is a conflict over exactly what Hopkins said about the bumping but it is undisputed that Hopkins conceded that there had been no bumping and that he agreed to call Kilroy concerning the bumping Hopkins informed Heindel that two welders could have bumped onto the night shift, and that several employees could have bumped into lower classifications (Tr 5 557) Hop kins also made reference to a supposed agreement with Gerry Brown at the August 1981 bargaining session to the effect that there would be no downward bumping in layoffs Heindel asserted that he would check with Brown on the subject Heindel departed on the note that the Union probably would file grievances When Hopkins called Kilroy apparently on July 30 the latter told him that because the day shift and night shift had always been treated as one shift for layoff pur poses, that there should have been bumping from the day shift to the night shift but that Respondent had never permitted bumping into lower classifications To Hop kins' report that Heindel wanted layoffs by strict seniori ty Kilroy advised Hopkins that Respondent would con tinue to lay off by seniority within the classification (Tr 8 269-270) Kilroy also advised Hopkins to give notice to layoffs to the Union before the layoffs were effectuat ed 63 Rather than first calling the UIW regarding the news that there could be bumping from the day to the night shift because they were deemed one shift for layoff pur poses, Respondent, there is no dispute contacted the two senior day shift welders who had been laid off Hopkins 63 This portion of Kilroy s testimony is not precise It seems clear from the entire record that Kilroy advised that Hopkins could tell Heindel that Respondent would give the Union whatever notice Respondent itself had 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD testified that one accepted and bumped into the night shift (Tr 2 147, 155) On Wednesday August 4, 1982, Heindel and McGee carried three grievances to Hopkins The first grieves the failure to give the option of bumping to lower classifica tions (G C Exh 24) The second protests that the men were not given prior warning of their layoff (G C Exh 25), and the third complains that the Union was not note feed in time to negotiate a fair and equitable layoff proce dure (G C Exh 26) After Hopkins read them, he in formed Heindel that he had talked to Kilroy who had confirmed that Heindel was correct about employees bumping from the day to night shift in a layoff More over Hopkins added that he had offered the night to the two welders who had been laid off and one had accept ed When Heindel asked about the downward bumping Hopkins referred to the alleged August 1981 oral agree ment with Gerry Brown calling for no downward bump mg Heindel requested a seniority list and Hopkins said one would be provided Hemdel said that if the griev ances went to arbitration the one over the shift to shift would be dropped since the matter was resolved (Tr 5 529-560) Hopkins testified that he thought some of the forego ing occurred in a telephone conversation on July 31 (Tr 2 147) He testified with less assurance and specificity on this general area than did Heindel, and I credit Heindel regarding any material conflicts In any event on August 6 Hopkins inscribed No violation of contract Griev ance denied on each of the grievances and passed them to the union steward (Tr 2 152) Hopkins was the second step in the grievance procedure and step 3 was Kilroy (Tr 2 152) There is no testimony in the record concerning one Phoenix a mechanic II laid off from the welding depart ment on August 2, 1982 (R Exh 69) Heindel testified that on August 5 1982 Hopkins called him and said he was going to have to lay off two pipefitters, that Hopkins said they were classified as me chanic II and were lowest in seniority with no one to bump (Tr 5 561) The layoff list, Respondents Exhibit 69, confirms that two mechanic II employees were laid off from the pipe department on August 6 1982 Heindel replied, Okay Fine Can I have my seniority list Hop kins said he was working up one then, a new one for the month Hopkins, it appears agreed to mail a copy to Heindel and to give a copy to the job steward, Dearal Stass (Tr 5 561) Heindel further testified that on August 11 Hopkins called and informed him that he had to lay off three welders classified as mechanic I, that they had more se niority than employees on the night shift and that when he had offered them the night positions, two declined and one accepted Heindel acknowledged the informa tion and asked about downward bumping Hopkins re plied that one could do that, but that there were more layoffs forthcoming three helpers and two in the me chanic III classification (Tr 5 562) The layoff list dis closes the nine employees were laid off on August 11 and one on August 13 (R Exh 69) As stipulated by the parties (Tr 1 182) about August 18 1982, Heindel followed up the August 11 layoff with a bumping grievance (G C Exh 37) The grievance names five employees but only a couple or so match the names appearing on the layoff list d The August 1982 corrspondence By letter dated August 5, 1982, Attorney Robem, on behalf of the UIW, wrote Kilroy as follows (G C Exh 60) Dear Bob As you know Dave Heindel has contacted Stan Hopkins concerning the layoffs effected at the Har ahan shipyard last week Dave has also filed griev ances protesting the lack of reasonable notice to the Union and the affected employees, as well as griev ances protesting various individual layoffs Both Dave and I are somewhat confused over the layoff plan implemented at Harahan, as it has been explained to us by Stan Hopkins Dave has this date requested an updated seniority roster I, on behalf of the United Industrial Workers, would be appreciative if you could provide us with a written explanation of the layoff plan, as implemented today and, if additional layoffs are being considered, as will be implemented in the future Your prompt reply would be appreciated Very truly yours Louis L Robein Jr On August 17 Robem wrote Kilroy again and, among other matters stated that he was still awaiting Kilroy s reply to his request for an explanation of the layoff plan or system being implemented by Louisiana Dock at the Harahan facility (G C Exh 59) Kilroy in his letter of August 20 replied as follows (G C Exh 58) Dear Mr Robein Thank you for your letters of August 5 and 17 1982 With two exceptions which have been corrected per our last conversation layoffs will continue at Louisiana Dock Company, Harahan Louisiana as they have in the past, by seniority in the classifica tion There is no layoff plan implemented or to be implemented Additionally there is no requirement for notice to the Union for layoff and never has been in practice or in the Agreement Mr Hopkins call to Mr Heindel advised him of proposed layoffs and a proposal on staggered shifts We also dis cussed that matter In the absence of any response from you or the UIW, we will continue to lay off as needed by seniority in the classification This has not only been our consistent past practice over the years, but agreed upon by Mr Brown at negotia tions in July 1981 As always if you have any questions please do not hesitate to call Sincerely Robert W Kilroy LOUISIANA DOCK CO On August 24, 1982, Heindel wrote Hopkins as fol lows, in relevant part (G C Exh 27) Dear Mr Hopkins, One aspect of the layoffs previously implemented (but not the only aspect) that the Union challenges is the failure or refusal of the Company to permit bumping of less senior employees in lower classi fications You have stated that an oral agreement prohibiting such to exist 64 I have checked with Gerry Brown on this matter The Union has no recollection of such an alleged oral agreement I therefore take the position that bumping is required under the Addendum provision cited in the forego ing paragraph SENIORITY An Employees seniority shall commence ninety (90) days after the end of his probationary period In cases of lay off and recall seniority shall apply where skill and ability are equal I am still awaiting receipt of an updated seniority list from your office It is also most imperative, and it is hereby formally requested that you supply me with updated addresses and telephone numbers for all laid off employees This information and the se ntority listing is essential for meaningful discussion of this grievance We wish to reserve our rights with respect to possible bumping rights for the following night shift employees already laid off S Abbot R Lockett As you know, Abbot and Lockett were bumped off the night shift by day shift workers It may very well be that Abbott and Lockett have their own bumping rights against lower seniority workers Again only an accurate seniority list will resolve these questions Very truly yours D W Heindel Hopkins replied to Heindel by letter of August 31 in which he stated , as relevant that the classification sheet dated August 4 1982 (R Exh 3) which you have ac knowledged receipt has the hire dates for all of our em ployees listed in the right hand column ' e Layoffs alleged for September-October 1982 On Thursday, September 2 1982 the parties held a conference at the New Orleans law office of Partee & Waldrip, Respondents counsel in this case Present for the UIW were Attorney Louis L Robein Jr and UIW Representative Dave Heindel Attending for LDC were Shipyard Manager Stanhope F Hopkins Jr and Attor ney Robert W Kilroy (Tr 2 161, 5 548 9 437) We recall that effective September 1 1982 Kilroy had opened his 84 This sentence of the letter is more easily understood if the phrase does exist is substituted for the words to exist 267 own law practice and, although still representing Re spondent in labor relations matters was no longer em ployed as vice president of labor relations and labor counsel (Tr 7 26, 103) The purpose of the meeting, as Kilroy testified was to discuss the layoffs and certain other changes LDC had effected, including the changes in leadmen s pay and classification (Tr 9 438) The meeting started around 4 p in (Tr 5 549) It began with a discussion of the situa tion involving the leadmen That subject is treated else where here From the leadmen topic the group shifted into a dis cussion of the depressed business conditions, and this prompted Robein to inquire whether there were going to be future layoffs Hopkins replied that an employee was going to be laid off that very night from the toolroom, and two employees the next day Heindel asked why Hopkins had not notified him, and Hopkins responded Well, I in notifying you now (Tr 5 551) Robein pro tested, stating, Well that s the problem You decide to lay off, then you tell Dave Heindel Hopkins said that was not true, for he was informing Heindel right then Robein replied that Hopkins should not do it that way because Hetndel then learns from the members after the fact To a further inquiry Hopkins answered that he had just made the decision to lay off that same day As the conversation moved into the subject of recall Hopkins stated that recalls depended on the nature of the work For instance Hopkins remarked Winn was re called because we needed some propeller work done Heindel asked when Winn was laid off for he had no record of that (Tr 5 552 674) Hopkins responded that Winn was in the first group to be laid off (that summer) and he placed the date erroneously, as June 11, 1982 65 This led to Hopkins calling his office and being remind ed that the first layoff occurred June 28 As discussed earlier under the topic of the June 28 1982 layoff there is a dispute concerning when Respond ent notified the UIW about the June 28 layoff Hopkins (Tr 2 260 265 9 555) and Kilroy (Tr 9 440) assert that such notice was given on July 13, and Heindel contends that the first notice was in this very conversation on Sep tember 2 Thus at the September 2 meeting Heindel complained that the first notice he had received of any layoffs was (the telephone message of) July 29 He tests feed that Hopkins sat back and stated, I believe you re correct (Tr 5 553) Robein then asked if there had been any other layoffs in June and Hopkins made the call to his office whereupon he learned that the correct date of the June layoff was June 28 rather than June 11 Heindel testified that he did not remember any statement by him or Gerry Brown at the July 13 meeting remarking about being embarrassed over a lack of notice about layoffs (Tr 5 657) Neither did he recall asking for notice or Kilroy promising to give it 65 The very first name on the layoff list is that of one Winn a mechan is I who was laid off from the wheel department on June 28 1982 and recalled August 9 1982 (R Exh 69) It is possible that wheel should read weld for welding for there is no wheel department shown on the August 4 1982 list of departments and classifications (R Exh 3) 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although Hopkins and Kilroy assert that notice of the June 28 layoff was given in July 13 1982 meeting re garding the marijuana discharges they essentially agree with Henidel s version (Tr 5 553) that Hopkins did call his office from the telephone in Partee s library on Sep tember 2 and ascertained that the correct layoff date in June was June 28 (Tr 2 262, 9 439) The confirmation of this point of Heindel s testimony is one factor supporting Heindel's overall version regarding the disputed timing of the notice Although Hopkins appeared to be a sincere witness, his memory was demonstrated to be faulty on occasion An example is his testimony that he had never previously given notice to the UIW of any layoffs only to acknowledge that he sent the UIW copies of the Sep tember 10 1981 layoff letters (Tr 1 121) Although I do not consider that acknowledgement a direct impeach ment because Hopkins could have been thinking of prior notice rather than any notice I do consider it in the nature of a failure to recall a significant point relating to the subject of notice On the other hand, a strong indication that Respond ent s version is the correct one is the fact that Kilroy re minded Hopkins to call Heindel in accordance with their promise to the Union at the July 13 1982 meeting to is cuss the grievance on the marijuana discharges At the meeting of September 2, Robein asked why notice had not been given to the UIW regarding the June 28 layoff Kilroy responded that such had not been the Company s past practice When Heindel and Robein requested that notice be given on all future layoffs, Kilroy replied, We would be happy to give as much notice as we have (Tr 9 442) Kilroy, in his testimony, described this as the same position LDC expressed at the July 13 1982 meeting us I do not credit Heindel in his testimony that Kilroy stated that no notice was given because it had not been done in the past and we won't do it in the future " (Tr 5 553) Heindel apparently confused this with Kilroy s re sponse when Heindel subsequently asked why there had been no downward bumping (Tr 5 555 676) There was some discussion of economics at the Sep tember 2 meeting Kilroy mentioned the burden rate, which Hopkins described Robein asked if LDC would open its books Kilroy responded that the Company was not pleading poverty but simply stating that there was a lack of business To inquiry Kilroy responded that LDC had not sought assistance from ACBL (Tr 5 554) At about that point Robein said that the Union would make written demand for economic information `and also that layoffs and cutbacks in pay be suspended pending bar gaining (Tr 5 555) Robein requested that there be no future layoffs without bargaining (Tr 2 186 Hopkins 9 454, Kilroy) Kilroy replied that LDC would bargain over the effects of layoffs, but not the decision to layoff (Tr 9 443, Kilroy) 67 86 In light of the conclusions I reach concerning the layoffs I find it unnecessary to resolve the dispute over whether the subject of notice about layoffs was discussed as the July 13 1982 marijuana grievance meeting 61 I have not overlooked the testimony of Hopkins on cross-examina Lion by Robein for the Charging Party that Kilroy said LDC would not bargain over the effects (Tr 2 248) Not a lawyer Hopkins was being The reference to bumping was made, as noted above Heindel asserted that it was not fair to lay off an employ ee who has been with LDC for 6 or 7 years and keep an employee that s been there for 2 months (Tr 5 555 ) Kilroy replied Make a proposal Heindel was unable to fashion a proposal at that point Robein said they would be contacting them, and the meeting concluded On September 3 the day after the foregoing meeting, Robein sent to Kilroy the following telegraphic message (C P Exh 3, Tr 2 251) On behalf of U I W I demand that no layoffs or re ductions in pay of bargaining unit employees be im plemented pending ongoing negotiations and bar gaining Informational requests follow this telegram U I W will engage in further bargaining on these matters Following up his telegraphic message, Robein on Sep tember 7, 1982, wrote Kilroy requesting the followng in formation in furtherance of and in support of ongoing bargaining over past and possible future layoffs of bar gaining unit employees (G C Exh 38) The 11 items so requested are (a) A list of all customers of Louisiana Dock, Harahan Louisiana, for the period of June 1 1982 through the present (b) A list of all bids placed by Louisiana Dock, Harahan, Louisiana on any and all work for the same period, (c) Comparative lists of customers and work bid for June 1 1981 through September 1, 1981 (d) An itemized account of all work bid by Lou isiana Dock Harahan, Louisiana with and from American Commercial Barge Lines, Inc or any other subsidiary or affiliated company of Texas Gas Transmission for the period of January 1 1982 through the present, (e) A list of all jobs bid or otherwise, considered by Louisiana Dock Harahan at the present to be potential future work for bargaining unit employees of Louisiana Dock Harahan, (f) An itemized statement of burden rate for Louisiana Dock Harahan as of June 1 July 1 August 1 and September 1 1982, (g) An itemized statement of labor costs (bargain ing unit and all other employees at Harahan) for Louisiana Dock, Harahan as of June 1 July 1, August 1 and September 1, 1982, (h) A comparative set of statements for burden rate and labor costs for Louisiana Dock, Harahan for June 1 July 1 August 1 and September 1, 1981 (i) An itemized statement of medical and hospital ization group insurance costs for Harahan bargain ing unit employees for the periods of September 1 asked about an exchange between two lawyers on a legal subject involv mg a fine distinction I find Kilroy to be a more reliable witness on such matters Moreover I note that Heindel did not testify that Kilroy reject ed the obligation to bargain over effects LOUISIANA DOCK CO 269 1980 through August 31, 1981 and September 1 through September 1, 1982 V) A complete description of all cost saving measures undertaken by Louisiana Dock at Harahan since January 1, 1982, (k) The names and classifications of the ten (10) bargaining unit employees that, under Louisiana Dock s plans, would be the next ten (10) employees subject to a possible future layoff or layoffs On completing that list, Robein then returned to the subject of the layoffs with the following words Since bargaining over proposed or possible lay offs and proposed reductions in the pay of leadmen, as initially discussed on September 2, 1982 is still in progress and by all means subject to the foregoing bargaining informational requests, it is demanded that no action be taken with respect to any pro posed layoffs or any reductions in the pay of any bargaining unit employees The UIW, furthermore, strongly protests and hereby grieves the June 28 1982 layoffs of bargain ing unit employees without any advance or subse quent notice and opportunity to bargain being ex tended to UIW As stated yesterday, the UIW was first made aware of this layoff in yesterdays bar gaining session It is the UIW s position that the law and the Agreement mandates such notice and op portunity to bargain Robein ended his letter with this final paragraph In addition to this demand for sufficient advance written notice on all future layoffs, I attach a gnev ance contesting the June 28, 1982 layoffs The grievance Robein attached complains of Respond ent s laying off the below named 12 employees on June 28, 1982, without prior notice to the Union and in vio lation of the 1976 Addendum to the Agreement by not allowing bumping against the day or night shifts and by not allowing downward bumping in lower classifications where the laid off employees had equal or greater skill and ability than those employees in lower classifica tions For the remedy sought, Robein, who signed the gnevance, stated Reinstatement with full backpay and benefits The 12 employees named are Booker Coller J Leicher M Cornelius Claude Martin L Fleming Fred Mullinax A Gauthier A Owens P Hensley L Ramce Dave Jackson Frank Walker There are two differences between the foregoing list and the layoff list (R Exh 69) First, although Winn is not named above he appears at the top of the group laid off on June 28 1982 68 Second mechanic III Cornelius 68 On the second page of the August 4 1982 sheet (R Exh 3) under the machine shop department day shift R Winn is shown in layoff status is shown on the layoff list as having been the one person laid off on June 29, 1982 69 Writing to Kilroy on September 10 1982 Robein refers to Kilroy s letter to him of September 7, 1982 That letter of Kilroy s is not in evidence Kilroy appar ently had asserted in the missing letter that the UIW was demanding a unilateral change by seeking prior notice of layoffs Replying to the assertion that the Union was demanding a unilateral change, Robein stated (G C Exh 56) [P]lease be advised that the Union is not demanding such but, as noted, only demanding that it be no ticed, consulted with and bargained with as re quired by the National Labor Relations Act, as amended Robein also argued in his letter that true bargaining had not occurred primarily because Louisiana Dock has taken the position, and acted accordingly, that advance notice of layoffs to the Union or its representatives is not required by law or by the contract Responding to Robein s September 7 letter, Kilroy, by letter dated September 13, 1982 (G C Exh 55), asserted that LDC is more than willing to share its economic in formation with you as to costs, revenues and business problems in an effort to help you make alternative pro posals to layoffs However, Kilroy asked for (1) infor mation concerning who was going to pay for researching and copying the information requested, and (2) an articu lation of the theory of relevance regarding the 11 enu merated items 70 Stating that it was obvious the UIW was attempting to establish a refusal to bargain on the in formation request, we are offering the UIW the oppor tunity to come to the Company and review any docu ments which are relevant and/or necessary to your pro posed alternatives to layoffs on behalf of the employees at the Harahan shipyard Toward the end of his letter, Kilroy reiterates that no layoff plan exists that layoffs are the result of a lack of repair business at Harahan and that layoffs have been and will continue to be, implemented by seniority in the classification per our expired agreement and past prac tice Again I will tell you that there was and is no requirement under the agreement for notice to the UIW on layoffs Therefore Kilroy added, the notice given in July and thereafter was simply an accommoda tion to the UIW Robein s reply of September 16, 1982, after debating certain matters and stating that he and Heindel would be responsible for the requested research and copying, states (G C Exh 54) I take it from your letter that the Company takes the position that there is no set layoff plan Con versely, I can only assume that Louisiana Dock is " The layoff list shows last names only On the sixth page of the clas sification sheet M Cornelius 3rd class is shown as being in layoff status from the shipfitting department day shift (R Exh 3) 70 There is no complaint allegation that Respondent unlawfully refused to comply with the UIW s request for information The requested items have been mentioned to give more complete understanding of events 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD laying off employees on the basis of what appears to be some loose seniority system Can I assume that the layoffs, as planned, take into account paral lel seniority in the day and the night shifts? Again I must disagree with you when you con tend that there is no requirement under the agree ment or under the law to give the United Industrial Workers proper and timely notice of any proposed or actual layoffs We further disagree with your characterization of the July notice as an accommo dation to the UIW To the contrary it was at best, an attempt to comply with the law The layoff list reflects that 10 employees were laid off over the September 16-17, 1982 period with 2 being laid off on September 16 and 8 the following day (R Exh 69) By letter dated September 21, 1982, Robein wrote Kilroy as follows (G C Exh 53) Dear Mr Kilroy I was informed today by Dave Heindel that a new layoff of approximately ten (10) employees was put into effect at Harahan on or about September 16, 1982 and September 17, 1982 This layoff was accompanied by a telephone message left with a secretary at the UIW office from Stan Hopkins on the first day of the layoff to the effect that the layoff would take place that day and continue into the next day Dave Heindel immediately returned Stan Hopkins phone call on the morning of Sep tember 17, when Dave arrived back from a day out of the office on September 16 and the morning of September 17 He spoke to Stan at approximately 100 p in on September 17 After verifying the names of the laid off employees Dave asked Stan if the employees were allowed to bump to lower clas sifications to which Stan responded no Again, the UIW is not receiving any advance notice of layoffs A telephone call on the day of a layoff hardly gives the UIW an opportunity to bar gain over the meets of the layoff or the effects of the layoff For instance, how could the UIW nego tiate over bumping rights (day vs night or higher vs lower classification) days or possibly weeks (as determined by your flight schedule) subsequent to this layoff? Furthermore, you have yet to provide the bar gaining information requested in my September 7 1982 letter How could you possibly contend that the parties have reached an impasse if negotiations over layoffs, first initiated on September 2, 1982 in New Orleans, are continuing? The UIW demands that the Company take imme diate action to reinstate all employees laid off on or after September 2, 1982 The rights of employees laid off prior to September 2, 1982, are subject, I assume, to your yet to be communicated decision to arbitrate or not to arbitrate such layoffs Very truly yours Louis L Robein Jr If Kilroy responded in writing a copy of the document was not placed in evidence Hopkins testified that on September 16 (he was clear on the date at first, but then stated he was uncertain) he telephoned Heindel and named the employees and classi fications of the employees being laid off Heindel asked how much prior notice the employees were receiving and Hopkins said none To Heindel s inquiry about bumping to lower classifications Hopkins said there was not going to be any The conversation closed then with Heindel stating that Hopkins would be hearing from him (Tr 2 184 256, 9 547) Hopkins confirmed that he heard from Heindel in the form of a grievance According to Heindel, he was out of the office on September 16 when Hopkins called and left the names of the employees to be laid off, and it was not until the fol lowing day that he and Hopkins spoke on the matter when Heindel returned the call and verified the names (Tr 5 563) Heindel could recall nothing else I credit Hopkins whose testimony was more specific and com plete on this point 71 Moreover, I note that Hopkins version is corroborated by Robein s September 21 letter to Kilroy quoted above In answer to questions by the General Counsel Hop kins stated that he did not call the Union before Septem ber 16 and 17 and request the UIW to bargain over the effects of the layoff (Tr 2 183) Such questions distort the duty picture Whatever notice obligation Respondent has is nothing more than a requirement to notify the UIW of the impending event It is the Union s burden to request an opportunity to meet and bargain Hopkins frankly admitted that at the September 2 1982 meeting, Robein asked that LDC not lay off any employees until it bargained with the Union about it Re sponding to a question as to why he did not call the Union and give it the opportunity to bargain, Hopkins stated that it was Because that was not the past practice of laying people off, and because there had been no change in the practice And (Tr 2 186) Q You didn t consider that you had an obligation to bargain over the effects of the layoffs did you? A No I didn t Hopkins testified that a couple of days before the Sep tember 16-17, 1982 layoffs or about September 14 he telephoned Kilroy and informed him of LDC s need to have more layoffs (Tr 2 254) He asked whether he should proceed as before, and Kilroy replied affirmative ly Indeed, some 3 days before that conversation, after receiving a copy of Robein s letter on September 7 1982 to Kilroy, in which Robein demanded that no unilateral action be taken regarding future layoffs (G C Exh 38 quoted earlier here), he called Kilroy to discuss the 11 " Hopkins initially testified regarding this point at our October 28 1982 session When he again was asked about the matter the last day of the hearing April 13 1983 he was uncertain and then specified on or about September 15 as the date he called (Tr 9 547 556) As his testi mony on October 28 1982 was more convincing I accept it and find that the date of his call was September 16 LOUISIANA DOCK CO enumerated items demanded by Robein (Tr 2 255) Al though Hopkins could not separate Robein's layoff notice demand in the letter from that Robein made at the September 2 meeting (Tr 2 256) the pertinent point here is that he and Kilroy were discussing Robein s demand letter less than a week before the layoff 72 It is clear from Hopkins own testimony that he knew as of Tuesday September 14 that a layoff was necessary At the very latest, therefore, Hopkins could have so in formed Heindel the first thing Wednesday morning, Sep tember 15, 1982-a day earlier than he did call As Hopkins testified, and the layoff roster reflects, Re spondent laid off mechanic II Burnell Williams, a pipefit ter in the pipe deparment on Fnday, October 8, 1982 (Tr 2 185, R Exh 69) I think on October 7th I called Dave Heindel and informed him that Williams would be laid off the following day (Tr 2 185) Kilroy recalled only that Hopkins told him that he had given Heindel notice (Tr 8 339) When he testified over 5 months later, Hopkins could recall practically nothing about the call, and he testified that on every layoff since July 13 1982 he had called and notified Heindel, or left a message for him, as soon as the decision was made (Tr 9 547, 557) 73 Heindel was no more confident than Hopkins, testify ing that the notice from Hopkins came on October 8, I believe (Tr 5 565) As for the hour, Heindel surmised, It was in the morning sometime, I believe I in not sure of the time I find the evidence insufficient to establish anything more specific than that Hopkins gave notice on either October 7 or 8 1982 Thus the record does not reflect when Hopkins reached a decision that a layoff was necessary Heindel asked if Williams had been given any notice Hopkins replied, Just the usual, Dave He confirmed that Williams would be recalled when needed, and in formed Heindel that two welders had been recalled when two others recalled had not reported for work (Tr 5 565) Heindel testified that he did not file a grievance over Williams layoff because he thought the unfair labor practice charge would be adequate Heindel apparently was referring to the charge filed September 28 1982 in Case 15-CA-8736 Although the charge of course at tacked only September 16-17 1982 layoffs, the com plaint of October 20 1982 did allege, as previously quoted that Respondent acted unlawfully in unilaterally laying off employees on September 16-17 and on Octo ber 8 1982 42 As Hopkins placed the earlier conversation about 3 days before the second conversation I find that he and Kilroy discussed Robein s letter on either Friday September 10 or Saturday September 11 1982 73 Hopkins is in error if he meant the layoff decision for the record clearly reflects that he sometimes waits a day or two after the decision before he calls Heindel However Hopkins probably had in mind the de cision as to the employees selected for layoff The selection frequently was not made until the day before or even the day of the layoff In that sense Hopkins usually did call promptly Nevertheless the extra day or two would have given the Union the opportunity to discuss the effects with Hopkins and to avoid such mistakes as occurred with the July 30 1982 layoff-Hopkins failure to treat the day and night shifts as one shift for layoff purposes 271 f The layoffs not specifically alleged As discussed in the introduction to the general topic of layoffs, the General Counsels complaint alleges that the 1982 layoffs of on or about June 28, July 30, Septem ber 16-17, and October 8 were unilaterally implemented without giving the Union an opportunity to bargain over the effects The General Counsels bnef and proposed order and notice do not vary from the allegation How ever, as the General Counsel's proposed order calls for Respondent to cease and desist from unilaterally laying off unit employees at Harahan without providing the Union an opportunity to bargain about the effects there of, it is clear that the General Counsel contemplates that such a bargaining order would prevent similar incidents in the future Because the proposed order contains no of firmative provisions, it is unclear whether the General Counsel seeks to require Respondent to bargain now over the effects of the specified layoffs Nor does the General Counsel contend that Respondent should be or dered to pay backpay to the employees laid off on the specified dates In its bnef the Charging Party addresses all the lay offs Citing Eltra Corp, 263 NLRB No 106 (Aug 31, 1982) (unpublished), Gulf States Mfrs, 261 NLRB 852 (1982), and Clements Wire & Mfg Co, 257 NLRB 1058 (1981), the Union seeks an affirmative order that Re spondent be required to pay backpay to the laid off em ployees until one of four enumerated conditions is met In Gulf States the court of appeals declined to enforce the backpay portion of the Board s order, and remanded for a finding on whether bargaining would have resulted in any change in the number or timing of the layoffs, or whether the company s economic situation would have required the layoffs in any event Gulf States, 704 F 2d 1390 (5th Cir 1983) 74 Digressing for a moment, I note that notwithstanding the Union s contention that the allegations here can be construed to reach the decision to lay off I earlier have found that the allegations are limited to bargaining over the effects only Bargaining over the effects goes to mat ters such as severance pay and extended insurance cover age It also would include discussion of a layoff proce dure which would ensure that the day shift and night shift are treated as one shift for layoffs and discussions of a proposal that LDC give the UIW notice immediate ly after the decision has been made that a layoff of nec essary-without waiting until the employees have been selected It would cover a proposal that there should be downward bumping in layoffs As all of these matters go only to the impact of the decision to lay off it seems clear that the layoffs would have taken place as sched uled Thus a general backpay order does not appear to be an appropriate remedy here Returning now to the subject of the layoffs not specifi cally alleged it is evident that a decision must be made concerning whether they are fairly encompassed within the allegations and/or within the matters litigated This is so because if merit is found and an affirmative remedy 74 In the event of a conflict an administrative law judge is required to follow the Boards precedents Iowa Beef Packers 144 NLRB 615 (1963) 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ordered it seems that the affirmative provision would re quire Respondent to bargain over monetary benefits such as severance pay and insurance coverage for specific em ployees Clearly the one employee laid off on June 29 is en compassed within the allegation of on or about June 28, 1982 I find the same to be true regarding B Phoenix laid off on August 2 and P Jerry and J Mendez laid off on August 6, 1982 (R Exh 3) All these layoffs occurred within the span of 1 week The same can be said of the two employees laid off on September 10-within a week of the alleged date of September 16, 1982 That leaves the following layoffs which might not be said to be clearly encompassed within the allegations (R Exh 69) Date August 11 Layoffs 9 August 13 1 August 26 6 September 2 2 October 19 3 Turning for the moment to the evidence, I note that Heindel testified without objection concerning some of these dates Regarding the August 11 layoff, Heindel tes tified that on the date of the layoff, Hopkins called and informed him that he was laying off three welders that day, Dread, Logan, and Martinez (Tr 5 562, 6 873) Hopkins reported that because the three, all classified as mechanic I, had seniority over the night shift, he had of fered them night positions Dread accepted but the other two declined Heindel said Fine and inquired about downward bumping Hopkins said one would be eligible but that he had more layoffs to report, and he told of five more three helpers and two in the mechanic III classification Heindel did not request further bargaining, nor did he express any request for severance pay ex tended insurance coverage, or anything else 11 He did, however file a grievance on August 18 protesting Re spondent s failure to permit downward bumping (G C Exh 37) The grievance names P Jerry and J Mendez (laid off on August 2), two employees laid off on August 11 and the single employee laid off on August 13 g The conference of October 11 1982 As with the meeting of September 2 1982 the parties held a conference on October 11 1982, in the law office of Partee & Waldrip It began about 4 p m and contin ued until after 6 p m (Tr 6 896) Attending the October 11 meeting on behalf of the Union were Attorney Robert Urann, a law partner of Robein and Heindel, and for Re spondent were Kilroy and Hopkins (Tr 2 245, 6 909) From Urann we learn that Attorney Partee was not present at the meeting (Tr 6 909) The principal descrip tions of the conference were given by Hopkins, during his appearance as a witness called by the General Coun sel under Federal Rule of Evidence 611(c), and Urann 75 Hopkins testified that Respondent unilaterally extended insurance coverage for 2 months for all employees laid off from June 28 through October 1982 with the laid off employeee having the option to purchase 4 months more coverage at the group rate (Tr 2 256-258) who addressed only this subject Heindel testified about the meeting to a limited extent on cross examination and Kilroy merely confirmed that it occurred (Tr 8 271) The initiating subject of discussion was Robein s Sep tember 7, 1982 letter to Kilroy containing an enumerated list of 11 items of economic information requested by the Union (G C Exh 38) Kilroy asked why the UIW wanted the information So that the UIW can evaluate the effects of the layoffs, Urann replied (Tr 6 897) When Kilroy asked for the case law holding that Re spondent was obligated to bargain about the effects of the layoffs Urann said First National Maintenance's After Kilroy stated he would not furnish a list of cus tomers because of the customer relations factors," the parties began a discussion of the enumerated items with Kilroy asking for the relevance of each one as they came to it During the course of the conference Kilroy and Hopkins furnished Urann and Heindel with various charts and graphs Copies of most of these were placed in evidence here (G C Exhs 47-52) Among the items supplied was an itemization of the 1982 operating burden through August Kilroy explained to them that operating burden is Respondents term for overhead (Tr 6 900), and Hopkins so testified at the hearing (Tr 2 190) The list shows all fixed expenses in cluding the totals for such matters as supervisors Sala nes, bonuses, pensions rent, and the like Under variable expenses are listed subjects like holidays vacations pay roll taxes, certain insurance, maintenance supplies, and others One graph related to manhours worked at the shipyard and the machine shop through September, and another pertains to barges and boats in operation A chart depicts the information Hopkins gathered on a Sep tember 23 1982 telephone survey of the status of the barge repair business in terms of the number of the work force working at various employers in New Orleans area (G C Exh 48) Hopkins testimonially described the em ployment situation at the 10 shipyards surveyed as pretty horrible (Tr 2 192) That is some of the ship yards had only about 10 percent of their regular work force employed The barge repair business it seems, might have been described as almost dead in the water The General Counsel has not alleged that Respondent refused to bargain by failing to furnish requested infor mation, and there is no allegation directed specifically to the meeting of October 11 1982 Actually, it appears that a good portion of the exchange at the October 11 conference could be labeled as a discussion bearing on the need, i e the decision, to lay off There seems to have been very little effort by the UIW to make or ex plore proposals designed to lessen the impact of the lay offs In fact Urann testified that at no point did he say that he wanted LDC to bargain specifically over the of 75 First National Maintenance Corp v NLRB 452 U S 666 (1981) 77 By letter dated November 2 1982 Robein persisted in seeking a list of customers because of its relevance to effective bargaining on both the decision to and the effect of past current and future layoffs at the Hara ban shipyard Robein also declared that the Union was concerned over the apparent shifting of work by former customers such as ACBL to other shipyards in the area (C P Exh 10) Kilroy s two page reply of November 11 1982 reiterated Respondents position LOUISIANA DOCK CO fects of the layoffs (Tr 6 905) When Kilroy asked whether the Union was going to make any formal pro posals, Heindel replied that the Union was interested in saving jobs and that it would be contacting LDC in a week or so (Tr 6 903, Urann) Toward the end of the meeting, Urann asked Kilroy to agree that LDC would notify the UIW of future layoffs when they occurred rather than afterward and Kilroy said that they would do so (Tr 6 905, 908) That request and agreement seem to fall short of the advance notice the Union had been requesting At this conference Hop kins explained that the LDC shipyard worked on small jobs, that its work was day to day, and that it therefore did not know ahead of time when there would be a layoff or who would be laid off (Tr 2 192, 6 905) h Layoff of October 19-20 1982 The final layoff of record occurred on Tuesday, Octo ber 19, and Wednesday, October 20, 1982, when seven employees were laid off (R Exh 69) The seven are (R Exhs 3, 69) A Beech, F Deleon, R Grant, C Hoang, D Martinez, and W Robinson, with J Dread being the one employee laid off on October 20 Heindel testified that at some point between October 11 and 15, or on about the 15th of October," Hopkins called and notified him of the layoff (Tr 5 691, 6 884) At that time, Heindel testified, he requested bargaining (Tr 6 884-885) Whatever response Hopkins gave is not recorded In any event, it is clear that this was the most notice Hopkins had given on any of the 1982 layoffs By letter dated October 18, 1982, Heindel wrote Hop kins demanding that LDC bargain with the UIW over the decision 'as well as the effects" of the October 19 layoff of six named employees (C P Exh 9) Heindel s list includes Beech and Deleon, but not Robinson, and names the other three laid off on October 19, R Grant, C Hoang, and D Martinez plus the sole person laid off on October 20, J Dread 78 In his letter Heindel asked Hopkins to `call as soon as possible to discuss' He ended by advising Hopkins Please be prepared to negotiate such matters as bumping, call back and seniority rights Heindel testified that no bargaining took place regard ing the October 19-20 layoff and that in early Novem ber he received a written reply from Hopkins (Tr 6 886) Hopkins reply letter, not available at that point, was never offered in evidence i The UIW's proposals on effects By letter dated October 26 1982 Kilroy wrote Hein del as follows (G C Exh 45) 79 Dear Mr Heindel At the conclusion of our meeting on October 11, 1982, I inquired of you if the Union was going to present some specific proposals You stated that you 78 I have spelled the name in accordance with Respondents lists (R Exhs 3 69) rather than the Dred shown in Heindel s letter 79 The hearing it will be recalled opened on October 27 1982 273 would be making some proposals in a few days When I inquired how many was a few, you stated a few days, a week, we will get back to you To date I have received no communication from you on any proposal Please be advised that I will be in New Orleans through Friday, October 29, 1982, and if you wish to have a meeting to discuss any proposals you may reach me through the office of Andrew C Partee, Jr, 528-9279 Sincerely, Robert W Kilroy Heindel replied with his letter of October 28 in which he contends that Kilroy has a lack of recall about the conclusion of the October 11 meeting,80 asserts that Kilroy has failed to return four calls Heindel has left for him at Partee's office, and concludes, I trust that when you are truly available to meet, you will so advise (G C Exh 44) When Kilroy responded on November 11 to Robein s letter of November 2 insisting on the customer list date, Kilroy wrote, in the penultimate paragraph (C P Exh 11) At the conclusion of our meeting I asked Heindel when we could expect some proposals, and he stated within a few days When I asked him how many days was a few, he said a few days, a week, we 11 get back to you Again, we have had no pro posals from the Union Finally, by letter dated November 15, 1982, from Heindel to Kilroy, the Union submitted its proposals (G C Exh 46) The six enumerated proposals, some bearing on the layoff decision as well as those relating to effects, are as follows Dear Mr Kilroy The United Industrial Workers proposes the follow ing as an alternative to the company's current layoff at Harahan shipyard I Mandatory forty eight (48) hours notice and affected employee(s) of any proposed layoff(s) 2 Emergency layoff conference with union, at union request at least twenty four (24) hours prior to actual layoff to discuss both underlying basis for layoff(s) effects of layoff(s) and possible alternative to layoff(s) 3 Mandatory severance pay to all employees laid off-union now proposes two (2) weeks regular pay 4 Mandatory continuance or extension of hospi talization and medical insurance coverage to laid off employee(s) and family for three (3) months beyond laid off date (Union does not waive legal rights to have U I W plan reinstituted at Harahan by ad 90 Notwithstanding Hemdel s contention at this point I note that Kul roy s first paragraph is consistent with the description Urann gave (Tr 6 903 908) 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vancing this demand) This coverage is to be paid for and financed by the company 5 Immediate meetings with union to discuss cost saving measures to be taken by company as alterna tive to layoffs of bargaining union employees, such as, but not be limited to reduction of benefits to su pervisory and management personnel 6 Joint meetings with company and union on one hand and past and current customers of company including but not limited to A C B L , to discuss future work for company and reasons for current decline in work for company This letter is being hand delivered to Louisiana Docks local attorney [Partee] with a copy to Stan Hopkins We understand that you are now or soon will be in Newbrleans We trust you will be re ceiving this letter by today, November 15 or by to morrow, November 16, 1982 We hope to meet with you and Stan Hopkins this week to begin ear nest negotiations Sincerely, David Heindel Union Representative When asked on cross examination at trial what he meant by effects in his letter, Heindel stated that it in cluded checking to make sure the laid off employees re ceived any vacation pay due severance pay, and ascer taming whether they were laid off according to seniority (Tr 6 889) He testified that by decision he meant pos sible alternatives to a layoff of unit employees including the possibility of laying off nonunit employees In fair ness it should be noted that Attorney Robein who was not being questioned about the letter coauthored the letter with Heindel (Tr 6 890) Heindel confirmed that the suggestions contained in the letter were the first con crete proposals made by the UIW regarding the effects of the layoffs (Tr 6 891) This is due, Heindel testified, to the fact he had no material to work with He testified that possibly some of that material came from the Oc tober 11 meeting Although Kilroy did not make an item by item re sponse to Heindel s proposals until his letter of January 7 1983 81 he did acknowledge receipt of the proposals by his letter of December 1 (R Exh 41) He was unable to resist adding I cannot close without stating that it certainly has taken the Union long enough to put some proposals together Kilroy s response to each proposal is set forth in his letter of January 7 1983 (R Exh 42) Dear Mr Heindel Per your letter of November 15, 1982 and our meeting of January 5 1983 the following is the Company s response to the Union s proposals Item # 1 requests forty eight (48) hours' notice to the Union and affected employees of any proposed layoff As was explained to you on several other oc 81 This is not to overlook a meeting the parties apparently held on Jan uary 5 1983 but which is not described in the record casions, the nature of the maritime repair business makes this impossible The Company attempts to keep its employees and facilities busy at all times The amount of work in the yard at any time de pends on the Company s ability to bid on jobs suc cessfully as the low bidder When these bids and jobs do not materialize it is not always with forty eight hours notice Therefore when the present work in the yard at any particular time is completed and there is no new work to replace it, employees must be laid off We will continue to give employees and the Union as much notice as possible under the circumstances 82 As to Item #2 representatives of the Company will meet with representatives of the Union to discuss an ticipated layoff if the Union so requests on being note fled of the layoff As has been demonstrated in the past mistakes have been made and we have correct ed them The basis for layoffs will continue to be the same lack of business, and the Company will certainly consider any alternative proposals to layoff that the Union may propose [Emphasis added ] As to Item #3, we must deny this request at this time As you well know the river industry as well as the economy in general is down and any in creases in cost, such as severance pay is unaccept able at this time Hopefully as business increases and a new agreement is negotiated it could be con sidered at that time for those permanently laid off, as opposed to temporary layoffs As to Item #4 the Company will continue to carry group hospitalization and medical coverage for two full calendar months following the month in which an employee is laid off Again, the economics of the business climate preclude any further exten sion of this coverage at Company expense As to Item #5 I will assume unless I hear to the contrary and with specific proposals from the Union that our past meetings have satisfied this re quest As to Item #6 the Company will continue to meet with the Union to discuss wages hours and conditions of employment As to your request for a meeting with past and current customers we will deny this request for what it is specious and banal As always if you have any questions please do not hesitate to write or call Sincerely, Robert W Kilroy Minor correspondence was exchanged thereafter with the last record date of such being March 10 1983 The main points of the succeeding letters is a proposal by Re spondent concerning its absenteeism program and work rule changes and the suggestion by LDC that the Hara han shipyard might have to be closed 82 It appears that the portions which I have italicized in Kilroy s pars graphs for items I and 2 fairly well sum up Respondents legal obligation The question in this case is whether Respondent complied with that stat utory requirement LOUISIANA DOCK CO 275 Before concluding the description of this topic, it is only fair to note that Robein, in responding on January 17, 1983, to Kilroy s letter of January 7, quoted above, wrote in part (R Exh 43) I am disappointed over the outright rejection of all proposals and particularly distressed over the char acterization of one demand-customer informa tion-as banal j Conclusions regarding 1982 layoffs As previously noted, Kilroy summed up Respondent s statutory obligation to give the UIW notice, and the op portunity to bargain, in his letter of January 7, 1983 That obligation is to give reasonable83 notice to the UIW of the fact of an impending layoff That, is to say, notice after the decision to lay off as distinguished from the decision on who is to be selected If the UIW re quests a meeting, the Respondent must forthwith meet with the UIW to discuss the effects of the layoff In our case the record discloses that Hopkins admit tedly did not notify the UIW of the June 28 layoff until well after the event Of the remaining layoffs however, the evidence establishes that Hopkins delayed notifying the UIW only as to the September 16-17 layoffs As for the other layoffs, the evidence reflects that he either gave notice on the day of his decision to lay off, or the record is silent regarding when that decision was made This loss of an extra day or two on the September 16-17 layoff was unnecessary, detrimental to the employees and to the UIW and illegal The parties could have used the extra day or two to bargain over the impact To that extent I find that Respondent unlawfully refused to bar gain as alleged in complaint paragraph 11 Respondent also failed to give notice and bargain regarding the June 28 layoff as alleged in paragraph 13(a) The General Counsel has not argued that the laid off employees should be paid backpay between the date of their layoff and some other date The Union does seek backpay However, the UIW has had ample opportunity to bargain over the effects of the layoffs during the Sep tember 2 and October 11 1982 conferences No evidence was presented in this case outlining either known benefits denied those laid off or listing items such as extended insurance the UIW wanted to discuss but which Re spondent refused to discuss It is not Respondents fault that the first comprehensive set of proposals, or layoff plan submitted by the UIW did not come until Heindel's letter of November 15 1982-over 3 months after it ad mittedly knew of the July 30 layoff for example Until that time the only effects subject raised by the UIW was bumping In that respect it was successful in obtain ing the correction of Hopkins mistake regarding no bumping between the day and night shifts That points up the need for Respondent to give the Union reasonable notice-before the employees are laid off and, as here, have to be recalled Even though the Union was unable to persuade LDC to allow downward bumping, it had the opportunity to, and did, propose that alternative Re spondent chose not to depart from its past practice in that regard The allegation on refusal to agree to arbitra tion of that topic is the subject of another allegation and is treated elsewhere here There is a reference in the record concerning whether the employees laid off on June 28 1982 were accorded the right to bump between the day and night shifts Hop kins, according to Heindel said at the September 2, 1982 meeting that such was not applicable (Tr 5 553) This is unclarified in the record To the extent that Heindel was testifying that Hopkins was saying that bumping was in applicable generally between the day and night shifts, I do not credit Heindel Hopkins had admitted his mistake in that respect when he and Heindel discussed the July 30 layoff To the extent that Hopkins meant that he had checked the seniority dates and no one was eligible to bump to another shift, neither the General Counsel nor the Union offered any contradicting evidence or argu ment In short, I shall order Respondent to cease and desist from failing to give the UIW reasonable notice and the opportunity to bargain over the effects of layoffs I shall not order Respondent to pay backpay inasmuch as the UIW has had the belated opportunity to bargain and be cause the employees would have been laid off in any event Thus this is not a case where, under Board law 84 a respondent is required to pay backpay between the time of the layoff and the date it begins to bargain in good faith Conceivably bargaining could obviate the need for a layoff But those are situations involving the decision to layoff Typically they are cases such as those cited by the UIW, where Respondent has acted unilater ally without bargaining with a newly certified union Fi nally, there is no point in ordering Respondent to bar gain now with the UIW over the effects of the June 28 and September 16-17 1982 layoff, for the UIW has al ready had ample opportunity to engage in such bargain ing Thus, the meeting of October 11 1982 could have served that purpose well Accordingly I shall not order Respondent to bargain now over the effects of either lay offs I shall dimiss complaint allegations as to the dates of the other layoffs because the evidence establishes that Hopkins promptly gave whatever notice he could about some dates and regarding other dates the evidence fails to disclose just what notice Hopkins could have given G Some Unilateral Changes of 1982 1 Introduction Several 1982 changes are alleged to be unlawful Two topics discussed here are the 1982 wage increases and the changes the same year in the leadmen s pay includ ing overtime The alleged refusal to arbitrate certain grievances is covered in a later section 83 In the circumstances of the short lead time LDC itself has as much notice as possible would be reasonable All possible notice is not the usual legal requirement however 84 Such as Eltra Corp 263 NLRB No 106 (Aug 31 1982) Gulf States Mfrs 261 NLRB 852 (1982) and Clements Wire & Mfg Co 257 NLRB 1058 (1981) 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 August 1 1982 wage increases Paragraph 13(c)(1) of the October 7, 1982 complaint alleges that on or about August 1, 1982 Respondent um laterally instituted a 5 percent wage increase for unit em ployees at Cairo and Hennepin Paragraph 13(c)(2) al leges that on the same date Respondent unilaterally im plemented a 25 cent per hour wage increase for the unit employees at all five locations Except for one discrepan cy, the parties stipulated to the factual portion of these allegations (G C Exh 2, items 9 1 9 2) The discrepancy is that the stipulation regarding the 25 cent per hour in crease refers to Harahan only The other four sites are not covered by the stipulation The pay increases were preceded by correspondence By letter dated April 26, 1982, Kilroy requested UIW Port Agent Gerry Brown to advise when the UIW would be available to meet with LDC to discuss wage increases hours, and other conditions of employment for the Harahan/Westwego, Cairo and Hennepin units (G C Exhs 62 76) Attorney Cutler responded at length by letter of May 3, 1982 (G C Exh 63) Observing that Kilroy had omit ted Louisville from the bargaining unit, Cutler bitterly accused Respondent of failing to bargain in good faith Two such paragraphs read It appears that the Company has not altered the position which it took during the negotiation ses sions last July and August Your refusal to bargain in an appropriate unit was then and continues to be, an unlawful violation of Section 8(a)(5) The UIW would not then and will not now become a party to your unlawful conduct The appropriate unit for collective bargaining is the historical unit including Harahan, Westwego Cairo Hennepin and Louisville your failure to include Louisville in your description of the bargaining unit can indicate to us only that you are still unwilling to negotiate regard ing the Louisville employees and thus are unwilling to negotiate in the approporiate multi location unit This is of course, the subject of Case No 15-CA- 8234 which is still under investigation Your April 26 letter to Mr Brown is clearly a continuation of your past conduct of refusing to bargain in an appropriate unit, engaging in dilatory tactics to delay and evade a Board determination of the appropriate unit and finally signing a collective bargaining agreement with Teamsters Local 89 in the face of an obligation to bargain with the UIW Toward the end of the letter and after reference to certain events surrounding a scheduled hearing on the representation case in Louisville, Cutler s frustration as sumed a personal note Thus As you know, on November 30 1981 Regional Director Farkas set for hearing on December 8 the question of whether employees at the Louisville fa cility constitute a part of the broader, multi location unit Rather than permit the matter to be heard, you sought postponement after postponement including the filing of a Complaint in US District Court seeking to enjoin the representation hearing Final ly, after the hearing was scheduled for February 16 1982, and the day of reckoning was at hand, you took steps to recognize another labor organization and ultimately signed a contract with that organiza tion containing a Union security clause All this was done at a time when the Regional Director had issued and set for hearing numerous Complaints against American Commercial Terminals and Lou isiana Dock Company alleging that the UIW is the collective bargaining agent and that your Company has refused to bargain with the UIW We hope that, with your anticipated departure from the Company at the end of the summer, con duct such as that exemplified by your April 26 letter and by your past history of dealing with the UIW in total disregard of your bargaining obliga tions, will come to a stop Kilroy s quick response of May 5, 1982 after an open ing dig about Cutler s spiced luncheon meat style of letter, wrote (G C Exh 64) I have read your letter several times in an effort to discern whether or not the UIW wishes to meet to discuss wages, hours and conditions of employ ment at Harahan, Westwego, Cairo and Hennepin Your gratuitous remarks concerning unfair labor practices and hearings scheduled by the NLRB waltz around the question, but never really answer it As you know the Company also has filed refusal to bargain charges against the UIW and these mat ters are still pending before the luminaries of the NLRB in Washington It is a sad state of affairs that the agency finds it difficult to make a resolution of the matter It is also unfortunate that the Regional office attempted to use a representation case hearing in order to make discovery on the pending unfair labor practice charges I can only infer from your letter that the union does not wish to meet to discuss any wage increases at Harahan Westwego Cairo and Hennepin If I am wrong please advise specifically as to what dates representatives of the UIW will be available to meet with representatives of Louisiana Dock If we do not hear from you with specific dates we will implement changes necessary to remain com petitive in the respective labor markets and will give you notice of these changes Your attenuated hope that my departure from the Company will bring an end to the current labor dis putes with the SIU/UIW is misplaced I only repre sent the position of the Company and articulate said position and it is not expected that the Company s position will change after my departure As always the Company is willing to sit down and bargain in good faith on wages hours and conditions of em ployment and hopefully reach an agreement, but just because the Company will not accede to the SIU/UIW demands of more trust funds and/or in appropriate bargaining units does not imply we are violating the law It is interesting to note that the LOUISIANA DOCK CO respective refusal to bargain charges of the parties are still pending and no complaint has been issued at this time against the Company Once again, if you wish to meet, please send me dates on which representatives of the union will be available Otherwise we will give the union notice of our proposed changes and an opportunity to re spond prior to implementing the changes So far as the record discloses no reply was made to Kilroy By letter dated July 27, 1982, Kilroy wrote Cutler as follows (G C Exh 61) Dear Mr Cutler Per my letter to you of May 5, 1982, please be advised as follows Effective August 1, 1982 the wage rates for all classifications at the Cairo/Hennepin bargaining unit will be increased five (5) percent Effective August 1, 1982 the wage rates for all classifications at the Harahan/Westwego bargaining unit will be increased twenty five (250) per hour Additionally, the welding/fitting combination me chanic will be expanded to master mechanic and in clude the combination of any two or more occupa tional skills As per our prior requests to meet and bargain on these changes, the Union saw fit not to meet If and when the Union changes its position on meeting and negotiating on wages, hours and conditions of em ployment for employees at the above mentioned lo cations and units, please advise Sincerely Robert W Kilroy Brown answered Kilroy this time by letter of August 11 in which he mentions the unilateral changes,' cor rects Kilroy s reference to the separate locations as indi vidual units and contends that the August 1 1982 wage increases are grossly inadequate (G C Exh 65) He concludes by stating, It is only your refusal to partici pate in good faith negotiations that prevents these em ployees from being more fairly paid Resolution of the wage increase issue follows the unit scope determination As I have found Respondents posi tion on the unit scope question to be erroneous, I now find the 1982 wage increases to be unlawful 85 That por tion of complaint paragraph 13(c)(2) alleging a 25 cent wage increase at locations other than Harahan Westwego shall be dimissed for lack of any supporting evidence A cease and desist order shall issue as to the remainder, al though nothing shall require Respondent to rescind the wage increases it has granted unless the UIW so requests in writing 85 Were Respondent s position on the unit scope question correct then the wage increases would he lawful inasmuch as it would have been the UIW and not LDC which would have been insisting to impasse on a modification of the bargaining unit Young & Hay Transportation Co 214 NLRB 252 (1974) enfd 522 F 2d 562 (8th Cir 1975) 277 3 Reduction of leadmen s pay Paragraph 13(d) of the October 7, 1982 complaint al leges that on or about August 27, 1982, Respondent uni laterally reduced leadmen s hourly pay and eliminated their 30 minute daily overtime These changes are not only alleged as violations of Section 8(a)(5) of the Act, but also as violations of Section 8(a)(3) Because the complaint does not include the usual motive language, nor inherently destructive phraseology, regarding the 8(a)(3) allegation, because the General Counsel does not argue on beef that the changes constitute an 8(a)(3) vio lation,86 and because the circumstances do not support either a motive or inherently destructive theory, I con clude that the allegation was incorporated into the com plaint through inadvertence, and I therefore shall dismiss the 8(a)(3) allegation appearing as paragraph 14 of the October 7, 1982 complaint Regarding the refusal to bargain aspect, it is clear that in 1982 employees in the leadmen classification at Hara han received an extra 50 cents per hour (Tr 2 159) 87 It also seems undisputed that LDC did not eliminate the leadmen classification Furthermore, it is equally clear that LDC did not suffer, permit, or require employees to perform leadmen duties without receiving leadmen s pay What LDC did was to bump a certain number of em ployees out of their leadmen classification In some in stances it appears the affected employees were not nor mally classified as leadmen but, because they were per forming leadmen duties, they were receiving the pay of that higher classification They lost that pay when they lost their leadmen duties UIW Representative David Heindel testified that he first received word of such bumping or cutting back from Dearal Stass a shop steward who called him the morning of August 30, 1982, and reported the news to him (Tr 5 568) Heindel immediately called Hopkins and told him he had just heard that LDC was cutting back on the number of employees receiving leadman s pay Hopkins confirmed the correctness of that information Heindel complained that Hopkins had not notified him To Hopkins inquiry of how Heindel had learned, the UIW representative said from one of the affected em ployees Hopkins laughed and stated That s not good enough notice? (Tr 5 570) Heindel told Hopkins that anytime LDC decides to cut the pay of any employee or lay off anyone that it was obligated to bargain over it Hopkins said he would confer with Kilroy and call him back A couple of hours later Hopkins called back and reported that Kilroy wanted to discuss the subject that week The subject was one of the several topics the par ties discussed at the conference of September 2, 1982 Before reviewing the discussion on this point at the September 2 meeting we should consider Hopkins testa monial explanation for the action on the leadman s pay Hopkins explained that the leadmen s differential pay of 50 cents an hour was not changed, and that he did noth 88 Respondent does not address the changes at all in its brief 87 As Kilroy explained in his testimony one of the August 1981 changes was the elimination of an independent leadmen classification Leadmen became an add-on premium for welders machinists etc when such employees performed leadmen duties (Tr 2 236 334) 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing to the classification (Tr 2 159- 160) On questions by counsel for the General Counsel while a witness under Federal Rule of Evidence 611(c), Hopkins testified (Tr 2 160) Q Okay And so what did you do with the lead man classification? A I didn t do anything with the classification, but several people that were receiving the leadman differential for performing leadman activities in ad dition to their either master machinists or utility man or Mechanic I duties would drop back to just Mechanic I or utility or master machinists without the leadman responsibilities and without the lead man pay Q Now why did you do that? A Because the size of our work force had been reduced so greatly by these layoffs that we didn t need as many leadmen as we had needed when we brought them up and added that differential to their pay Q So it was because of lack of work? A Indirectly, lack of work Directly, lack of numbers of men Hopkins proceeded to list several employees who had been stripped of their leadmen duties, and their lead men s pay of 50 cents an hour, beginning with Mike Le Compte on July 6 1982 (Tr 2 163) and ending, for a total of eight employees with Steve LeBlanc on October 18 1982 (Tr 2 166) One other had been reduced on July 16 and five including Stass were reduced effective Sep tember 6 1982 Hopkins admitted that he never gave the Union advance notice of his decision and the opportunity to discuss it When asked why not Hopkins, answering in his typically candid fashion, stated (Tr 2 166) It never entered my mind Hopkins further explained that some leadmen who also received an extra one half hour overtime pay and one leadman who had been receiving an hour of overtime pay lost this overtime pay when their overtime duties were eliminated This, too was done without notice to the Union Hopkins testified that such had been done in the past, specifying 1981 at one point (Tr 2 160, 170) At the conference of September 2 1982 one of the first topics was the cutback of leadman s pay for several employees Heindel testified that Attorney Robein asked for the names of the employees affected by the cutback (Tr 5 5490) Hopkins named five employees, apparently those losing the pay on September 6 1982 He also named those not affected Robein asked about seniority and Hopkins replied that it was skill plus seniority Hopkins testified that at the conference of September 2, 1982, the Union both Robein and Heindel, objected to Hopkins' announcement that LDC planned to reduce the number of leadmen in the shipyard (Tr 2 167) Hopkins testified that either he or Kilroy stated that LDC had the right to do it and intended to reduce the number of lead men in the shipyard Heindel concedes that Hopkins explained that any em ployee who continued to perform leadman duties would continue to receive the extra 50 cents per hour (Tr 5 635) Hopkins also explained that no one on the second shift would perform leadman duties because only seven employees remained on that shift after the layoffs (Tr 5 636 6 875) A foreman and superintendent remained on duty on that shift Heindel admitted on cross examination that he did not present any evidence to Hopkins between September 2 and November 16, 1982 (the date Heindel was testifying) showing that an employee whose pay had been reduced was still performing leadman duties (Tr 5 639) Heindel further testified that he was unaware of any past practice on reducing leadmen to regular craft status nor had he investigated that point (Tr 5 640) On September 7, 1982, Robein wrote Kilroy a lengthy letter (G C Exh 38) Aside from several items of infor mation Robein requested and remarks about layoffs he also included the following paragraph bearing on the leadmen s pay issue Some bargaining over proposed or possible lay offs and proposed reductions in the pay of leadmen as initially discussed on September 2, 1982, is still in progress and by all means subject to the foregoing bargaining informational requests, it is demanded that no action be taken with respect to any pro posed layoffs or reductions in the pay of any bar gaining unit employees Toward the end of a two page response of September 13 Kilroy wrote (G C Exh 55) Again I will tell you leadmen in the classification continue to receive their premium There has been no reduction in leadman pay only a reduction in the number of leadmen who, in accordance with past practice resume their former classification No unilateral changes in wages, hours or condi tions of employment in respect to these layoffs and reductions and if you have information that is con trary, please advise The Union s position on the unilateral change aspect appears in an earlier letter, dated September 10, 1982 from Robein to Kilroy in which Robein wrote that the Union was not demanding a unilateral change but only demanding that it be noticed consulted with and bar gained with as required by the Act (G C Exh 56) A recapitulation of the reduction results discloses Pay Reduced Overtime Eliminated 7682 Hayward Hill Mike LeCompte 9682 Mike LeCompte Lionel Ferran Lionel Ferran 0 18 2 Troy Kirklin Johnny Lightell C Pertuit Dearal Stass Steve LeBlanc Troy Kirklm Dearal Stass Hopkins was able to name only the above four as having their overtime eliminated although he testified LOUISIANA DOCK CO that eight and not all the same eight as had their pay re duced, were affected (Tr 2 170) Dearal Stass, the night shift steward for the UIW, gave testimony which is somewhat confusing On direct examination with some leading by the General Counsel, he testified that after his leadman s pay was cut he con tinued to direct the other men as he had done before and that he continued to direct the work of four to six men (Tr 5 698) He was never informed that his leadman duties were being eliminated, although he was told his overtime duties of lineup were being dropped (Tr 5 698, 700) On cross examination , Stass seems to have testified that his crew and that of (former) leadman Troy Kirklin were combined into one crew of about four or so em ployees Thus from a high of about 30 employees on the night shift in May 1982 the employee level dropped around early fall 1982 to a total of 7 employees, includ ing 2 in the machine shop (which had its own leadman) It is unclear whether Stass included the night superin tendent and a foreman in this count of seven In any event, Stass testified that his duties were cut back to those of a craftsman working with his tools and some times having a helper assigned to him As the sense of the record appears to be that the lead man duties of Stass were eliminated in their entirety, and not simply the 30 minute overtime lineup survey of the jobs before the night shift began I find such to be the fact 4 Conclusion on leadman issue The testimony of Hopkins concerning a past practice regarding reduction of leadmen s pay is skimpy and too unreliable to support a finding of such a past practice His reference to 1981 is peculiar Respondent offered let ters regarding the September 1981 layoffs but it present ed no documentary evidence at all showing past reduc tions in leadmen s pay Although Hopkins was a sincere witness, his recollection of events was not always accu rate about the facts That is understandable when a case such as this one, covers the events of several years The cutback in leadmen s pay for eight employees and the elimination of daily lineup overtime for eight em ployees (with some overlap in names on an incomplete listing of the second group), is similar in nature to an economic layoff of employees The complaint is not re stricted as the layoff allegations to a failure to bargain over the impact Here the allegation implicitly asserts that Respondent refused to bargain over the decision to reduce the pay and eliminate the overtime Moreover the Union was presented with a fait accompli concerning seven of the eight when the parties met on September 2 1982 Although the reduction was not effective for five until 4 days later, Stass and the others had been informed in August It never entered Hopkins mind to call the UIW In accordance with Board precedent I shall order Re spondent to reinstate the status quo ante by restoring the leadmen s pay rates, paying the affected employees" 88 A complete listing of employees whose leadmen s pay was reduced and whose lineup overtime was eliminated will have to be ascertained at the compliance stage 279 backpay as set forth in the remedy section and, on re quest bargaining with the Union about its decision, and its effect to reduce the leadmen s pay and eliminate the lineup overtime Eltra Corp 263 NLRB No 106 (Aug 31, 1982), Gulf States Mfrs, 261 NLRB 852, 853 (1982) enf denied as to backpay, 704 F 2d 1390 (5th Cir 1983), Clements Wire & Mfg Co, 257 NLRB 1058, 1059 (1981) 89 Only where the status quo ante has been re stored can the Union bargain from a position of equality Until that has occurred, there is no way of knowing what results will flow from the collective bargaining process H Respondents Refusal to Arbitrate Grievances on Economic Layoffs and Marijuana Terminations 1 Introduction There are two final allegation topics, and they are con tained in paragraphs 13(b) and (e) of the October 7, 1982 complaint Paragraph 13(b) relates to what is called the marijuana discharges Paragraph 13(b) alleges that since on or about July 26, 1982 Respondent has refused to bargain with the UIW by Refusing to arbitrate the discharge grievance of Steven D Schwartz [and seven others], Refusing to arbitrate the vacation pay grievance of Steven D Schwartz, and Refusing to arbitrate the show up pay grievance of Steven D Schwartz [and the same seven others] Complaint paragraph 13(e) alleges that since on or about September 2, 1982 Respondent has violated Sec tion 8(a)(5) of the Act by refusing to arbitrate the em ployee grievances of the employees laid off on June 28 and July 30, 1982, as such grievance relate to seniority and/or bumping rights 2 The marijuana discharge grievances On May 28, 1982, LDC, as Heindel testified, fired sev eral employees for alleged use or possession of marijuana on company time and property (Tr 5 573) Heindel testi feed that he filed a grievance on their behalf (Tr 5 575) The grievance names the following nine employees (G C Exh 30) Robert A Autin Steve D Schwartz Alan C Bankston Michael Wyatt Ed Bossier Charles P Winzy Larry Hall Russell P Zeller Rene J Poursine The grievance claims that the group was fired because of their union activities Article II section 4, of the con tract prohibits discrimination on such a basis (G C Exh 10) Apparently through oversight, the General Counsel named only eight in complaint paragraphs 13(b)(1) and 89 An administrative law judge is required to follow established Board precedent notwithstanding the disagreement of a circuit court Iowa Beef Packers 144 NLRB 615 616 (1963) 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (3) Poursine s name was omitted Hopkins testified that Poursine and one or two others yet not identified were among the group (Tr 2 176) The grievance is dated June 1, 1982, and Heindel testified that he filed it the next day A separate grievance was filed under the vacation sec tion of the contract on behalf of Schwartz asserting that he was denied vacation pay of 2 weeks (G C Exh 29) The third grievance, also dated June 1, 1982, asserts that the nine employees were improperly denied the min imum 3 hours showup pay called for in article VI of the contract (G C Exh 28) Hopkins testified that he denied the grievances a day or two after they were filed (Tr 2 174) Kilroy, in his June 17, 1982 letter to Robein, upheld the discharges (G C Exh 35) Kilroy s letter apparently constituted the third step, and prearbitration answer, under the contract Referring to a conversation Kilroy and Robein apparent ly had the previous day Kilroy wrote that he and Hop kins would be quite willing to meet with Robein at the SIU hall on July 13, 1982, to discuss the matter further By mutual agreement the parties met the afternoon of July 13, 1982, at the SIU hall in New Orleans to discuss the grievances (Tr 2 176 5 576, 8 264) Representing LDC were Kilroy and Hopkins Attending for the UIW were Attorney Jerry Gardner (Robein s law partner), UIW Port Agent Gerry Brown, and UIW Representa tive David Heindel Heindel inquired whether LDC had any tapes or photographs of the alleged conduct and Hopkins replied that the principal evidence came from an undercover agent Gardner asked if LDC would arbi trate the grievances and Kilroy replied that the Compa ny would not do so unless the Union would give up its right to strike (Tr 8 226, Kilroy) Gardner said the Union just wanted to arbitrate Kilroy testified that he took the position that the right to arbitration does not survive the expiration of the col lective bargaining agreement (Tr 8 268) He explained that LDC did arbitrate one grievance relating to a refus al to collect dues under the checkoff provision on the distinction that the subject matter of that grievance argu ably arose during the life of the contract Rather than go through a Section 301 action in Federal court with the possibility of being told to arbitrate Kilroy testified that LDC simply submitted the matter to an arbitrator (Tr 8 267) By letter dated July 16 1982, to Kilroy, Robein re quested in writing that LDC proceed to arbitration on the discharge grievances (G C Exh 32) Kilroy submit ted his written denial of the request 10 days later (G C Exh 34) 3 The layoff grievances Substantial reference already has been made to the layoff grievances in the discussion of the layoff allega tions Three grievances are dated August 4 1982 They protest that LDC failed to give eight named employees (K Alphonse L Boudreaux, J Cortez, R Grant, A Morgan, T Williams A Withrow and W Wright) the option to bump to lower positions or to the night shift on a seniority basis (G C Exh 24) that they had no prior warning of their layoff (G C Exh 25) and that the Union was not notified in time to negotiate a fair and equitable lay-off procedure (G C Exh 26) As Hopkins testified and the documents show, he denied these on August 6, 1982, on the basis of no violation of the con tract (Tr 2 174) The grievance of August 18, 1982, relying on the se niority clause ( seniority shall apply where skill and abil ity are equal ) of the January 13 1977 addendum 90 as serts that five named employees (J Dread, P Jerry J Logan, D Martinez, and J Mendez) were laid off with out the opportunity to bump employees with less senion ty [apparently, i e , to the night shift], and/or to bump employees of a lower classification with less seniority (G C Exh 37) Heindel in his letter of August 24, 1982, to Hopkins, cited and quoted the seniority clause (G C Exh 27) That letter already has been mentioned earlier Heindel was contending that downward bumping should have been permitted He confirms their August 18, 1982 con versation where the Company waived the 72 hour filing rule under the contract in the processing of the original and this supplemental grievance " He then names eight employees (K Alphonse to W Wright) who were ad versely affected by LDC s failure to allow bumping The final grievance, dated September 7, 1982, names Booker Collor and 11 other employees laid off on June 28, 1982 The text reads (G C Exhs 36, 38) The above named grievants were laid off without prior notice to the Union and in violation of the 1976 [sic] Addendum to the Agreement by not al lowing bumping against the day or night shifts and by not allowing downward bumping in lower classi fications where the laid off employees had equal or greater skill and ability than those employees in lower classification Robein mailed a copy of the grievance to Kilroy by letter dated September 7 1982 (G C Exh 38) Kilroy re turned the copy on September 13 advising (at the end of a two page letter covering other topics) that it should be filed with Hopkins (G C Exh 55) At one point in Ro bein s lengthy September 16 position about the layoffs he informs Kilroy that the grievance form was merely a courtesy copy he had mailed Kilroy and that in fact the actual grievance had been hand delivered to Hopkins office contemporaneous with the September 7, 1982 mailing of same to you (G C Exh 54) There is no contention that the grievance was not filed with Hop kins Returning now to the September 2 1982 conference in the office of Partee & Waldrip we see that when Robein asked Kilroy if LDC would submit the matter including downward bumping to arbitration Kilroy refused on the ground that the contract had expired (Tr 1 128 5 555 678) Kilroy asked if the Union would give up the right to strike in exchange for an agreement to submit the mat ters to arbitration but Robein declined Kilroy stated 90 Although the grievance picks up the erroneous year of 1976 the record reflects that the addendum is that of January 19 1977 (G C Exh 14 Tr 9 447) LOUISIANA DOCK CO that such was the quid pro quo for any agreement to ar bitrate, and that when the UIW waived its right to strike over those issues LDC would agree to arbitrate them (Tr 1 128-129 and 2 266, Hopkins, 8 281-282 and 9 448, 452, 459, Kilroy) Kilroy specifically confirmed this posi tion regarding the marijuana discharge grievances (Tr 8 338) 4 Discussion and conclusion Citing American Sink Top & Cabinet Co, 242 NLRB 408 (1979), and Digmor Equipment & Engineering Co, 261 NLRB 1175 (1982), the General Counsel and the Charging Party contend that Respondent is obligated to arbitrate the grievances American Sink Top and Digmor pertain to situations where the parties intended , through their contractual language, that the arbitration provision survive the expiration of the contract and the grievance is over a matter arguably created by the expired agree ment The relevant grievance arbitration provisions appear in the January 1977 addendum and read (G C Exh 14) GRIEVANCE PROCEDURE A Grievances are any disputes arising between the parties hereto relating to arising out of or in connection with, or involving questions of interpre tation or any acts, conduct, or relations between the parties hereto or their members Should grievances, as defined herein, arise, there shall be no suspension of work and an earnest effort shall be made to settle such difficulties promptly in the manner hereafter outlined There follows a description of the first three steps Step 4 is arbitration Thus (A) 4 Fourth Step In the event that no settle ment is reached in the said third step the parties shall within fifteen (15) working days, refer the grievance for final determination to an arbitrator [one or two lines were lost here in the photocopy ing process] upon the arbitrator to arbitration from the Federal Mediation and Conciliation Service, whose decision shall be final and binding upon both parties in any court of competent jurisdiction The matter or matters in dispute shall remain in status quo until determination by the arbitrator (F) It is expressly understood and agreed that the arbitrator shall not have the power to amend, modify, alter, or in any way add to or subtract from this Agreement or any provision hereof, but nothing herein mentioned shall limit, in any way the powers and duties of the arbitrator who may, as part of his award, issue any and all mandatory di rections prohibtions or orders directed to or against any party breaching this agreement or any part thereof (H) This Article shall be a complete and bona fide defense to any action or proceeding instituted contrary to the terms hereof 281 Respondents counter argument is that the cited cases do not grant arbitration rights on matters arising after the contracts expiration In any event , Respondent con tends the contractual language contains bilateral com mitments The duty to arbitrate Respondent argues, is conditioned upon the absence of a work stoppage in the self same clause which creates the arbitration obligation The Union declined to abide by that contractual Ian guage in declining to honor its contractual commitment not to strike during the arbitration of the matters At page 39 of its brief, Respondent contends The consent to arbitrate survives the agreement only to the extent of the consent which was con tained in the agreement, which was expressly based upon the quid pro of the Union refraining from strike activity The Union at page 85 of its brief, responds to that contention by arguing The Company's position that it is not obligated to honor the arbitration clause unless the Union waives its statutory right to strike is completely untenable There is no support in law for this proposition The right to strike, especially in response to serious unfair labor practices, is a statutory right There is no quid pro quo for arbitration under the circum stances Moreover such a condition was not recog nized in American Sink, supra, or Digmor, supra Of course, there is no strike being waged against the Company at this time, or at any time since the expi ration of the contract The Company s denial of such an important bargaining tool to the Union on the basis of such a speculative legal position is not supported by the law or the evidence As I view the issue, Respondent has the better of the argument Kilroy apparently was willing to waive any contention that the contract had expired, and all he asked was that the UIW agree that it would honor its contractual agreement not to strike pending arbitration of the issues The UIW declined It is no answer to say that the right to strike is statutory Certain rights under the Act can be waived in the proper circum stances By its contractual commitment the UIW waived its right to strike over the issues submitted to arbitration pending the arbitrator's decision on those same issues Kilroy merely asked if the Union would honor that Ian guage He testified that LDC is willing to arbitrate the issues whenever the Union agrees that it will not strike over the issues which have been submitted to the arbitra tor (Tr 9 448, 452) Of course, neither could a strike ensue if the arbitrator's decision were adverse to the Union, for by contractual agreement the arbitrators deci sion is final and binding It is unclear whether some problem on semantics of communication has caused the parties to allow this issue to go this far Moreover it is my finding that the con tract has never expired because of the illegal position adopted by Respondent regarding the scope of the unit Stated differently all provisions of the contract have 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been extended by operation of law until Respondent bar gains in good faith for the appropriate unit To find oth erwise would be to grant a willing party a method for effectively escaping contractual obligations In view of the foregoing, I shall dismiss complaint paragraphs 13(b) and (e) CONCLUSIONS OF LAW 1 LDC and ACT each is an employer within the meaning of Section 2(2), (6), and (7) of the Act 2 The UIW is a labor organization within the meaning of Section 2(5) of the Act 3 On or about January 1, 1979, ACT became a succes sor to LDC at LDC's coal transfer and manhole cover product facility in Louisville, Kentucky 4 When ACT became the successor of LDC at Louis ville, Kentucky, ACT adopted the collective bargaining agreement LDC had with the UIW covering the em ployees employed at Louisville, Kentucky 5 The following employees constitute a unit appropri ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 91 All employees employed by Respondent at its Hara han and Westwego, Louisiana, fleeting and repair facility, its Cairo, Illinois fleeting and repair facility, its Hennepin Illinois barge cleaning and unloading facility, and the coal transfer and manhole cover product facilities of American Commercial Termi nals, Inc located in Louisville, Kentucky, exclud ing all office clerical employees, professional em ployees, guards and supervisors as defined in the Act 6 At all times material, the UIW has been the exclu sive collective bargaining representative of all the em ployees employed in the unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 7 By insisting to impasse on August 19, 1981, that the appropriate bargaining unit is not a multilocation unit, and that Respondent ACT could lawfully decline to bar gain regarding its Louisville, Kentucky employees, Re spondent has refused to bargain with the UIW in viola tion of Section 8(a)(5) of the Act 8 By making various unilateral changes regarding wages and other terms and conditions of employment on and after August 20 1981, Respondent has refused to bargain with the UIW in violation of Section 8(a)(5) of the Act 9 By unilaterally laying off employees at Harahan Louisiana, on June 28 1982, and September 16-17, 1982, Respondent has refused to bargain with the UIW in vio lation of Section 8(a)(5) of the Act 10 In bypassing the UIW and dealing directly with unit employees in August and September 1981, Respond ent has refused to bargain with the UIW in violation of Section 8(a)(5) of the Act 91 Although the Westwego Louisiana operation apparently has been merged with the Harahan operation I shall leave Westwego in the unit description to ensure that the UIW has the opportunity to review the sit uation in the collective bargaining process 11 The foregoing unfair labor practices affect com coerce within the meaning of Section 2(6) and (7) of the Act 12 Respondent did not refuse to bargain by insisting, as a condition to arbitrating certain grievances, that the UIW honor the contractual language prohibiting a strike over the matters submitted to arbitration 13 Respondent did not bargain with the bad faith in tention of not entering into a final and binding collective bargaining agreement with the UIW 14 Respondent did not violate Section 8 (a)(3) of the Act by its August-September 1982 action of unilaterally cutting back on the number of employees performing leadmen's duties and drawing leadmen s pay THE REMEDY Having found that Respondent LDC ACT has en gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act I shall recommend that it be ordered to cease and desist therefrom and to take such affirmative action as will effectuate the pur poses of the Act Respecting layoffs, I shall order Respondent to give the UIW as much advance notice as is reasonably possi ble Ordinarily this will be as soon as it decides that a layoff is necessary and before it selects the employees to be laid off With regard to the August-September 1982 cutback on employees performing leadmen s duties, including overtime and receiving leadmen's pay I shall order Re spondent to restore the status quo ante by making such employees92 whole with interest, by paying them their normal leadman wages with overtime where applicable, until the earliest of the following conditions is met (1) mutual agreement is reached with the Union, (2) good faith bargaining results in a bona fide impassse (3) the failure of the Union to commence negotiations within 5 days of the receipt of Respondents notice of its desire to bargain with the Union, or (4) the subsequent failure of the Union to bargain in good faith Eltra Corp, 263 NLRB No 106 (Aug 31 1982) Gulf States Mfrs. 261 NLRB 852, 853 (1982) Backpay shall be based on the earnings which the affected employees would have re ceived during the applicable period less any net interim earnings, and shall be computed in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950) with in terest thereon computed in the manner set forth in Flori da Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) In addition Respondent shall be ordered to resume contributions to the contractual benefit funds until the earliest of the four conditions set forth above (pertaining to leadmen s pay) is met, and to make whole its employ ees by making the fringe benefit fund payments, required by the collective bargaining agreement 93 which Re 92 In view of the uncertainty regarding an accurate list of the employ ees and their correct names I shall leave for the compliance stage the task of ascertaining a complete list with correct names 93 Because the provisions of employee benefit fund agreements are variable and complex the Board does not provide at the adjudicatory Continued LOUISIANA DOCK CO spondent ceased making effective August 20, 1981, and by reimbursing its employees for any expenses ensuing from Respondents unlawful failure to make such re quired payments as set forth in Kraft Plumbing & Heat ing, 252 NLRB 891 fn 2 (1980) enfd 661 F 2d 940 (9th Cir 1981) In measuring actual damages, employees should be reimbursed for actual costs, plus interest, to the extent that those costs would have been paid by the stage of a proceeding for the addition of interest at a fixed rate on unlaw fully withheld fund payments The Board leaves to the compliance stage the question of whether Respondent must pay any additional amounts into the benefit funds in order to satisfy the make whole remedy Merryweather Optical Co 240 NLRB 1213 (1979) 283 funds less costs which were actually paid by Respond ent's insurance carrier Hassett Maintenance Corp, 260 NLRB 1211, 1212 fn 7 (1982) Respondent shall be or dered to notify, in writing all persons employed in the bargaining unit after expiration of the extended insurance benefits of their entitlement to damages for the loss of in surance benefits Hassett Maintenance Corp, supra at 1211-1213 (1982) Unless requested in wasting by the Union Respondent shall not be required to rescind any increases in pay or benefits which it has granted to the employees in the unit found to be an appropriate bargaining unit [Recommended Order omitted from publication ]