American Commercial Barge Lines Co.

960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Inland Tugs Division of American Commercial Barge Lines Company and Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO. Case 9- CA-24866 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On July 19, 1988, Administrative Law Judge Claude R. Wolfe issued the attached decision. Thereafter, the Respondent and the Union filed ex- ceptions and supporting briefs, and the Union filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by dealing direct- ly with employees concerning its method of paying wages and by unilaterally altering practices with respect to employee travel to and from their as- signed vessels. For the reasons stated below, we agree. We reject, as did the judge, the Respondent's contentions that the unit was improperly alleged in the complaint,3 and that it had no obligation to bargain with the Union because the latter unlawful- ly insisted to impasse on expanding the bargaining unit to include subsidiary Mac Towing's employees and on the Respondent's continuance of contribu- tions to illegal trust funds in negotiations for a con- tract to succeed the 1976-1979 collective-bargain- ing agreements.4 i The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. 2 We shall modify the judge's recommended Order to require that the Respondent, on the Union's request, rescind the unlawful unilateral changes made We shall further modify the Order to provide broad cease-and-desist language, like that added in American Commercial Lines, 291 NLRB 1066 (1988), hereafter ACL /. See generally Hickmott Foods, 242 NLRB 1357 (1979). 5 We note that the unit question was resolved by the Board in Mac Towing, 262 NLRB 1331 ( 1982), and followed in ACL I, supra, and that the units alleged in the complaint , as amended, are identical to those found appropriate in ACL 1, supra at 1067 fn. 7. 4 No successor agreement has yet been negotiated In part, the judge premised his rejection of the Respondent's impasse defense on Administrative Law Judge Johnston's finding in ACL I that the Respondent engaged in bad-faith bargaining during negotiations for successor agreements. Administra- tive Law Judge Wolfe found that this conduct pre- cluded impasse, and that therefore the Respondent had a continuing obligation to bargain with the Union. Noting that exceptions to Administrative Law Judge Johnston's decision were pending before the Board, however, Administrative Law Judge Wolfe further found that "the existence or nonexistence of impasse is irrelevant" to the issue of accumulated time off (ATO) pay because the issue did not involve a unilateral change but rather an impermissible evasion of the Respondent's duty to bargain. Regarding the unilateral change in travel practices, the judge reasoned, as well, that "even if impasse had been reached, Respondent was only privileged to make changes consistent with offers rejected by the Union." The Board has reversed Administrative Law Judge Johnston's bad-faith bargaining finding in its decision in ACL I. We therefore do not rely on this ground in affirming the violations found by Admin- istrative Law Judge Wolfe in this case.5 We find that, although the Union reiterated its position re- garding the inclusion of the subsidiary's employees (i.e., Mac Towing's employees) in the unit as late as June 1987, and consistently sought to maintain contributions to its established trust funds, it did not condition all bargaining on acquiescence to its position, and, in fact, engaged in protracted bar- gaining with the Respondent for a contract to suc- ceed the expired agreement, and met or otherwise communicated with the Respondent when notified of proposed changes in employees' wages and terms and conditions of employment and other matters potentially affecting employees. In this connection, the record establishes that the parties met in response to the Respondent's notification to the Union of proposed changes in employment conditions in December 1980, 1981, 1982, and 1984, and exchanged correspondence regarding these meetings and proposals. In fact, in a letter to the Respondent dated January 17, 1985, the Union spe- cifically requested to be kept advised of intended and implemented changes in employment condi- tions. Although there is no evidence regarding union responses to the Respondent's notification of The Respondent contends that the Union's trust funds contravene Sec. 302 of the Labor Management Reporting and Disclosure Act. As dis- cussed below, we find it unnecessary to resolve this issue. 5 However, we do agree with the judge's rationale for rejecting the Respondent's impasse defense insofar as it relates to the direct-dealing al- legation 296 NLRB No. 124 AMERICAN COMMERCIAL LINES intended changes in employment conditions in 1985 and 1986, the record establishes that the parties met in June 1987, at the Union's request, to discuss the reorganization of the Respondent. Thus, the Union did not condition bargaining on the inclusion in the unit of the Mac Towing employees or the Re- spondent's continuance of contributions to the Union's trust funds; and it continued to respond and meet with the Respondent concerning pro- posed changes in wages and terms and conditions of employment. 6 Therefore, we find that the Union's conduct does not constitute a waiver of its right to bargain with the Respondent, either in fact or by operation of law, and does not vitiate the Re- spondent's obligation to bargain with the Union rather than employees about changes in the payroll system and before implementation of the changes in travel procedures. Additionally, inasmuch as ATO pay and travel procedures, including excess travel time compensa- tion, are mandatory subjects of bargaining and bear no relation to the expanded unit sought by the Union or to the Union's trust funds that the Re- spondent contends are illegal, we find that the Union's proposals for an expanded unit and contri- butions to the funds do not provide the Respondent with a lawful basis for ignoring its bargaining obli- gation regarding these other subject matters. Cf. BASF Wyandotte Corp., 274 NLRB 978 (1985), enfd. 798 F.2d 849 (5th Cir. 1986).7 Finally, in adopting the judge's finding that the Respondent unilaterally implemented new travel procedures in violation of Section 8(a)(5) and (1) of the Act, we do not rely on the judge's interpreta- tion of the travel provisions in the parties' expired contract. We do not agree that this provision man- dates air travel, or even that it specifies that air travel is the preferred method of transporting em- ployees to and from vessels. On its face, the provi- sion stating, "Employees shall use economy fare air transportation, if available," merely indicates that employees who travel by air shall do so at econo- my fares. Notwithstanding our rejection of the judge's interpretation, however, we conclude that 6 Young & Hay Transportation Co, 214 NLRB 252, 253 (1974), enfd 522 F 2d 562 (8th Cir. 1975), on which the Respondent relies, is distin- guishable in that there the union "at all times rejected [the employer's] offer to bargain with the [u]nion " in the certified unit and insisted that it would bargain only on an "insupportable" multilocation unit basis ° In BASF Wyandotte the union filed an 8(a)(5) charge against the em- ployer for unilaterally discontinuing an employee benefit The employer defended its unilateral action on the basis that the terminated benefit vio- lated Sec. 302 of the LMRDA. In those circumstances, when there was a direct nexus between the alleged 8 (a)(5) conduct and the employer's LMRDA defense, the Board considered the Sec 302 arguments and re- jected them as lacking in merit Conversely, when , as here, there is no direct link between the Respondent's unilateral acts and direct dealing and the trust fund provisions which legality the Respondent challenges, we find it unnecessary to evaluate the Sec 302 defense. 961 other evidence establishes the unilateral change violation. Thus, the parties' stipulation establishes that for at least 20 months prior to September 1987, air travel constituted nearly half of all employee trips to and from vessels. The sheer frequency of air travel during that period warrants a finding that this mode of transportation was favored, and clear- ly indicates that it had effectively become a term of employment. After the Respondent announced the implementation of different travel procedures in late August 1987, the percentage of employee air- line trips dropped precipitously, and bus and car travel rose significantly. Further, the Respondent characterized its own actions in terms of changing existing travel practices. Its August 28 memo an- nounces the institution of "different procedures" for transport and reimbursement, and its October 7 memo advises employees of its intention to com- pensate employees for extra travel time (i.e., time in excess of 6 hours spent traveling) caused by the inconvenience of the use of alternatives to airline travel. Despite the contentions to the contrary made in the Respondent's brief, these memos dem- onstrate that the Respondent itself considered the new travel procedures to be changes in the em- ployees' established terms and conditions of em- ployment relating to their traveling between the boats and their residences. Because the Respondent did not give notice to the Union about these changes or afford the latter an opportunity to bar- gain about them, their implementation was unlaw- ful as alleged in the complaint. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Inland Tugs Division of American Com- mercial Barge Lines Company, Jeffersonville, Indi- ana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following as paragraph 1(c). "(c) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following as paragraph 2(a). "(a) On request of the Union, rescind the unlaw- ful unilateral changes regarding employee travel, and reinstate the policy and practice in effect until September 21, 1987, concerning employee travel between their homes and the boats to which they are assigned." 3. Substitute the attached notice for that of the administrative law judge. 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail to bargain collectively with Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, as the exclusive representative of our employees in appropriate units about changes in our policy and practice concerning employee travel between their homes and the boats to which they are assigned. WE WILL NOT bypass the above-named Union and deal directly with employees whom they rep- resent concerning changes in our pay system. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the National Labor Relations Act. WE WILL, on the request of the above-named Union, rescind the unlawful unilateral changes in employee travel , and reinstate the policy and prac- tice in effect prior to September 1, 1987, concern- ing employee travel between their homes and the boats to which they are assigned. WE WILL bargain in good faith with the Union, as the exclusive bargaining representative of our employees in appropriate units, concerning any proposed change in the reinstituted policy and practice concerning employee travel. INLAND TUGS DIVISION OF AMERI- CAN COMMERCIAL BARGE LINES COMPANY David L. Ness, Esq.. for the General Counsel. David W. Miller, Esq., for the Respondent. Irwin H. Cutler, Esq., for the Charging Union. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This proceeding was litigated before me at Louisville, Ken- tucky, on March 15, 1988 , pursuant to an amended com- plaint issued February 29, 1988, after the filing and serv- ice of unfair labor practice charges on November 18, 1987. The complaint alleges Inland Tugs Division (Re- spondent or IT) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by unilaterally implementing new travel practices and bypassing the Charging Union (the Union) and dealing directly with employees represented by the Union. Respondent denies the commission of unfair labor practices and raises sever- al affirmative defenses. Upon the entire record, and after considering the able posttrial briefs of the parties, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent Inland Tugs is a division of American Commercial Barge Lines Company, a corporation, and has an office and principal place of business at Jefferson- ville, Indiana, and is engaged in the transportation of freight and commmodities . During the 12 months pre- ceding the issuance of the complaint, a representative period, Respondent, in the course and conduct of the above described business operations, derived gross reve- nues in excess of $50,000 for the interstate transportation of freight from points within the State of Indiana to points outside the State of Indiana . Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE BARGAINING UNITS AND REPRESENTATION The amended complaint alleges the following to be ap- propriate units for purposes of collective bargaining. Unit A: All head deckhands, deckhands, cooks, trainee engineers and tankermen employed by [Respondent in its River Division ] on boats owned, operated or chartered on a bareboat basis by it, excluding pro- fessional employees, guards and supervisors as de- fined in the Act, and all other employees. This rec- ognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidi- ary of affiliated companies. Unit B: All engineers and assistant engineers employed by [Respondent in its River Division] on boats owned, operated or chartered, on a bareboat basis by it, excluding professional employees, guards and supervisors as defined in the Act, and all other em- ployees. This recognition shall not apply to bare- boat charters to other operators nor to crews of towboats of subsidiary or affiliated companies. Unit C: All chief engineers, head deckhands, cooks, train- ee engineers and tankerman employed by [Respond- ent in its Canal Division] on boats owned, operated or chartered on a bareboat basis by it, excluding professional employees, guards and supervisors as defined in the Act, and all other employees. This AMERICAN COMMERCIAL LINES 963 recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidi- ary or affiliated companies. These unit descriptions are identical to those found ap- propriate by Judge Johnston in American Commercial Lines, 291 NLRB 1066 (1988), and followed by Judge Schwarzbart in American Commercial Lines, 296 NLRB 622 (1989). Respondent denies the unit allegations of the amended complaint, and affirmatively states the following unit is set out in the latest contract between Respondent and the Union, and is appropriate for purposes of collective bar- gaining: All head deckhands, deckhands, cooks, trainee engi- neers and tankermen on boats owned , operated or chartered on a bareboat basis by the Company when the crews on board such boats are employees of and on the payroll of the Company . This recog- nition shall not apply to bareboat charters , to other operators nor to crews of tugboats of subsidiary or affiliated companies. This unit description advanced by Respondent is identi- cal to that set forth in the Union's latest contract with Respondent's River Division expiring December 30, 1979, and includes the same employees as Unit A alleged in the complaint. I conclude that Respondent therefore concedes the appropriateness of Unit A. Moreover, I per- ceive no reason in the record to second-guess Judge Johnston's unit determinations which were based on the Board's decision in MAC Towing, 262 NLRB 1331 (1982), and the last collective-bargaining agreements be- tween the parties . Respondent agrees that the Union has, since about 1963, been the exclusive representative of the unit Respondent sets forth as appropriate . This amounts to an admission the Union represents the employees in Unit A. Judge Johnston found the Union represented the employees in all three units, and I will adopt and rely on that finding for the purposes of this decision. IV. THE ALLEGED UNFAIR LABOR PRACTICES Paragraph 8 of the amended complaint alleges as fol- lows: On or about July 17, 1987, Respondent acting through Chris Brinkop, bypassed the Union and dealt directly with its employees in the Units by mailing letters and ballots to all employees asking them to vote concerning a change in Respondent's pay system. IT employees usually work 30 consecutive days on board boats. They then are off work for a 15-day period, at the end of which time they reboard for another 30 days. Prior to the time of the conduct alleged , employees received weekly paychecks during the 30-day working period, but none during the 15 days they were off. For several years prior to 1987, during regular employee meetings which are held two or three times a year with 25 to 30 deckhands in attendance , there had been inquir- ies from employees regarding the possibility of receiving paychecks during the period they were not at work. In 1981, Respondent polled IT employees to determine their interest in a paid accumulated time-off program (ATO) under which they would receive weekly checks at two-thirds of their wages, the remainder to be placed in escrow, during the 30 days they worked, and weekly checks at two-thirds earnings during the 15 days they were not working. A majority of the employees noted against participation in the program in 1981. Neverthe- less, some employee interest in the program continued, and it was discussed at the regular employee meetings in 1987. Chris Brinkop, vice president of River Operations for American Commercial Barge Lines, conducted these 1987 meetings . He credibly testifies that during a June 1987 meeting, when employees inquired what they had to do to receive ATO pay, he told them a majority of the employees had to want the program and he would need a formal request from employees before he could poll them on the issue. Shortly thereafter, 20 employees signed and delivered to Respondent a petition reading as follows: We, the undersigned employees of Inland Tugs Company, desirous of receiving our pay in a more regular manner, do hereby petition for a change in our payroll procedure to the effect that part of our pay is received while we are working and part of it is paid to us while we are on our time-off. Those employees working a regular rotation would re- ceive approximately the same pay each pay period, whether working or on time-off. Those working in excess of a regular rotation desire the option of sell- ing the extra days in addition to receiving regular checks. On July 17, 1987, Brinkop issued the following letter with ballot attached:' To: All Inland Tugs Deckhands, Lead Deckhands and Cooks Re: ATO Pay At recent deckhands' meetings there has been much interest expressed in ATO pay for Inland Tugs Division employees. I have been petitioned to bring this matter to a vote. ATO pay is basically a system whereby employ- ees can count on a regular paycheck whether they are on or off the vessel provided that they have days coming to them. Let me cite an example of how this system would work. Take for instance a lead deckhand whose current rate of pay is $80.50 per day. Under the current system that leadman would receive checks for the thirty days he was on, totaling $2,415.00 and then his checks would stop. Under the ATO system this person's wages would be, paid at the rate of $53.67 per day for forty-five days for a total of $2,415.15. Sanitary and overtime pay would continue to be paid at the full ' The ballot requires a printed name, date, and signature , and contains two choices "I vote in favor of ATO pay," or "I vote against ATO pay 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rate on the checks while you are on the vessel. In- centive pay would not be affected. There are many advantages to this system: (1) You have a regular paycheck you can count on while you are off on ATO. (Checks would cease when you run out of ATO days and you do not catch a vessel.) (2) When you have days built up you can sell those in excess of fourteen that you have banked. (3) If you work long hitches and/or take a short time off you have those days banked and do not lose them, as you currently do. In other words, you can work extra to build up time off to be taken in the future, or days can be sold for a major pur- chase. The trade off is that you defer a portion of your pay to be paid to you while you are off the vessel. Attached is a ballot for you to mark. Please return this to me as soon as possible with your pref- erence indicated . All ballots need to be returned to me by September 15 so that if the change is voted in, we can complete the administrative procedures necessary prior to the implementation of this pro- gram. On September 16 I will count all ballots and the majority will rule. I will notify everyone shortly thereafter of the results . It is important that you voice your opinion because the results of this poll will affect you. I realize that it is difficult to explain this system in a letter. However, the crew dispatchers , the port captains or I will be happy to answer any questions that you might have at any time. The parties stipulated, and therefore I find, that Brinkop mailed and/or distributed the letter and ballot without prior notice to or consultation with the Union. A majori- ty of the employees voted in favor of the ATO program. Brinkop, on October 7, 1987, issued a memo to the deck- hands and cooks notifying them ATO had been ap- proved and would be implemented on January 1. It was implemented January 1, 1988, and remains in effect. There is no allegation or contention that the implementa- tion or maintenance of the program is an unfair labor practice. The basic principles applicable to this matter have been settled almost from the Act's beginnings. Thus, the Supreme Court stated in NLRB v. Jones & Laughlin Steel Corp.,2 that "the obligation to treat with the true repre- sentative was exclusive and hence imposed the negative duty to treat with no other," and repeated this holding in Medo Photo Supply Corp. v. NLRB,3 wherein it found that an employer who negotiated directly with employ- ees rather than their bargaining representative violated the Act. This remains the state of the law.4 When Brin- 2301 US 144(1937) 8 321 U.S. 678, 684 (1944) See. e g . KrohcA, Wholesale Meats, 270 NLRB 941 ( 1984); Shenango Steel Buildings, 231 NLRB 586 (1977) kop outlined the advantages of ATO in his July 17 memo, he was plainly seeking to persuade employees to select the plan, and thus was bargaining with them. The General Counsel has set forth a prima facie case that Re- spondent violated Section 8(a)(5) and (1) of the Act when it bypassed the Union and dealt directly with em- ployees by polling them regarding ATO pay, a change affecting wage computation and therefore a mandatory subject of bargaining, and a benefit the employees did not then have. Paragraph 9 of the amended complaint alleges, in rele- vant part, the following: During September 1987, ... Respondent unilat- erally implemented new practices affecting employ- ees' travel between their homes and the ports at which they get on or off the boat to which they are assigned. Respondent engaged in the acts and conduct de- scribed above . . . without prior notice to the Union and without bargaining to an impasse with the Union over such acts and conduct and without having afforded the Union an opportunity to negoti- ate and bargain as the exclusive representative of Respondent's employees with respect to such acts and conduct and the effect to such acts and con- duct. At the hearing, the parties entered into the following stipulation of facts: [F]or calendar year 1986 and all of 1987 until on or about September 1, 1987, crew changes of the Respondent's employees to and from employees homes and the boats to which employees are as- signed were accomplished in the following approxi- mate percentages : forty-six percent by airline; five percent by bus; twenty-three percent by crew van; eleven percent by automobile, which means person- al automobile or rental car; fifteen percent, which is port change. Since on or about September 1, 1987, through the end of February, 1988, the approximate percentages are as follows : twenty-four percent by airline; six- teen percent by bus ; twenty-seven percent by crew van; eighteen percent by automobile , which is either personal or rental vehicle; and fifteen percent port change. And further stipulate that the Respondent did not notify the Union or offer to bargain with the Union before this change in the mode of transportation be- tween the employees homes and the boats to which the employees are assigned. The latest collective-bargaining agreements between the parties, expiring December 30, 1979, contained a rather lengthy section entitled Transportation setting out when and how much crew members would be reim- bursed for travel expenditures, and specifically reciting: The Company shall reimburse each employee for expenses incurred in travelling (sic) between his AMERICAN COMMERCIAL LINES 965 home and the vessel when relieving or being re- lieved . Employees shall use economy fare air trans- portation, if available. Prior to and during the above agreement's term, em- ployees arranged their own travel, paid for it, and were reimbursed . Commencing in 1980, Respondent furnished employees with prepaid tickets for air travel. In 1982, Respondent began using crew vans when it appeared ad- vantageous to so do. Employees who would not fly were permitted to drive their own vehicle if they so chose. Anita Sharp, Respondent's supervisor of crew dispatch- ing, credibly explained that van usage increased in 1985 because air costs increased and it was cheaper to operate vans then pay air fare. In 1986 was the first full year that Respondent operated three vans . Air costs continued to be high, and Brinkop sent a memo to all crew members5 on August 28, 1987, advising in relevant part: Due to the spiraling costs of airline travel we are going to have to look at alternative means of trans- portation, including buses, trains, vans, and personal vehicles. This change will mean getting used to dif- ferent procedures. As of this time we cannot prepay bus or train fares. These fares will have to be paid by you and submitted for reimbursement . We will work with you to procure wage advances wherever possible. Please submit your expenses promptly so that we can get your money back to you. I encourage any employee who wishes to drive to a vessel to check with the crew dispatchers to see if this is an economical alternative. This memo to crew members was followed by another on October 7, 1987, stating: Since we have started using buses and trains for crew travel we have gotten significant saving in our transportation expenses. There, of course, has been some inconvenience to you and I want to thank you for your cooperation and forbearance . I also want to assure you that it is our intention to compensate you for extra time caused by this change in oper- ation. Right now I am reviewing every change made by bus or train and taking into account the time re- ceived on board a vessel for that day, and time in transit to arrive at the number of hours pay due to you. I consider six hours to be an acceptable transit time whether you are driving or flying . Hours in excess of this will be eligible for compensation to you, depending on your hours of compensation on board for that day. I don 't want you traveling all day to or from a vessel and getting off or on with no time! Please be assured that we want to be fair and above board with you on this. I don 't want travel time to cost you either money or ATO time. If you have any questions about pay you received or didn't receive, I will be happy to discuss it with you. B Brinkop testified that "crew members" means lead deckhands, deck- hands, and cooks Once again, thanks for your cooperation in help- ing us to be a more cost effective company. The cutting back on air travel is contrary to the provi- sion in the latest collective-bargaining agreement that "Employees shall use economy fare air transportation, if available." Moreover, Brinkop, in his October 7 memo, propounds a formula by which he will calculate the wages due employees on days they are in transit and also spend some time on board. This memo implies that the travel changes caused employee inconvenience and wage computation problems. Work-related travel and reim- bursement therefor are patently terms and conditions of employment and mandatory subjects of bargaining. So too are changes that affect wage computations. The foregoing stipulations and findings of fact are suf- ficient to establish a prima facie case of a unilateral change in terms and conditions of employment violative of Section 8(a)(5) of the Act. Respondent posits the following affirmative defenses: 1. The bargaining unit in which the Charging Party has, since on or about October 1979 to the present, insisted on bargaining is not the unit al- leged in the Complaint nor the unit embodied in the most recently-expired collective bargaining agree- ment with IT and is not the appropriate unit for purposes of collective bargaining. The Charging Party's insistence to impasse to bargain in a unit other than the historically- recognized, appropriate unit releases IT from any duty to bargain and pre- cludes a finding of a Section 8(a)(5) violation against IT. 2. Since on or about 1980, the Charging Party has repeatedly refused and failed to meet with IT to engage in collective bargaining, despite repeated offers by IT to do so, and the Charging Party has thus waived its right to notice of changes in work- ing conditions and the opportunity to prior bargain- ing. 3. Since on or about October 1979, the Charging Party has engaged in bad faith bargaining with IT, as reflected in the record in Case No. 9-CA-14657, et al., and thereby released IT from any obligation to bargain and precludes a finding or a Section 8(a)(5) violation against IT. The Charging Party's bad faith bargaining includes, without limitation, in- sisting to impasse that IT contribute to Charging Party's sponsored trust funds which are unlawful under Section 302 of the Act. 4. The bargaining unit alleged in the instant Com- plaint is contrary to, and inconsistent with, the bar- gaining unit(s) alleged by the General counsel in all prior litigation between the Charging Party and IT. With respect to Respondent's contention that an im- passe existed, Judge Johnston specifically found that Re- spondent engaged in bad-faith bargaining without any in- tention of reaching an agreement with the Union, and that this bad-faith bargaining negated the asserted de- 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fense of impasse during bargaining .6 This is consistent with the well-settled principle that no valid impasse can exist in the presence of bad -faith bargaining.' Judge Johnston's finding of bad-faith bargaining is the law of the case to date, and, so far as the record shows, this unfair labor practice remains unremedied. Whether Judge Johnston was correct in his analysis of Respond- ent's conduct, and therefore whether there could be a valid impasse, is a matter for the Board to decide, not the undersigned, but, even if impasse had been reached, Respondent was only privileged to make unilateral changes consistent with offers rejected by the Union.8 The unilateral changes in travel arrangements here com- plained of was clearly never offered to the Union. Ac- cordingly, Respondent was not privileged to make the change. Turning to the direct dealing allegation, I am persuaded that the existence or nonexistence of impasse is irrelevant to this issue . This is not a matter of unilater- al change, but is an impermissible evasion of Respond- ent's duty to bargain with no one other than the Union which represents the affected employees . This is all that is alleged. The change on which the employees voted is not in issue. In affirmative defense 3 , Respondent is, in effect, asking the undersigned to (1) reverse Judge Johnston's findings regarding the legality of certain union -sponsored trust funds, and (2) to find on the basis of the record in Judge Johnston's case that the Union engaged in bad- faith bargaining to impasse . These arguments amount to exceptions to Judge Johnston's decision which should more properly be addressed to the Board, and are there- fore rejected. Respondent's contention that the Union insisted on bargaining in an inappropriate unit is contrary to Judge Johnston's conclusion that the parties engaged in collec- tive bargaining in the units urged by Respondent as ap- propriate, and so found by Judge Johnston . Here again Respondent is excepting to Judge Johnston 's conclusion, and the matter was resolved by the Board in American Commercial Lines, supra. Affirmative defense 2 posits waiver of the Union's bar- gaining rights by virtue of its refusal and failure to meet and bargain with Respondent. In support of this argu- ment Respondent refers to portions of various docu- ments. One of these is Judge Johnston's finding that the Union, by letter of October 31, 1980 , denied Respond- ent's request for a bargaining meeting because there were issues of unit clarification and Respondent's alleged unfair labor practice, including bad-faith bargaining, pending before the Board. Respondent also points to communications it received from the Union after Judge Johnston's decision issued . The extracts from these docu- ments upon which Respondent relies read as follows: (1) August 4, 1983 letter from the Union 's Counsel to Respondent. You have misread Mr. Sacco's letter of June 29; he did not invite the company to bargain on the op- 6 American Commercial Lines, supra at 1152. 7 See, a g., United Contractors Inc., 244 NLRB 72, 73 (1979) 8 Royal Himmel Distilling Co., 203 NLRB 370 fn. 3 (1973). eration of the hiring halls under the Shipping Rules. He urged your client to remedy its massive unfair labor practices, including the granting of proper access to the boats, utilization of the SIU hiring halls, and payment to the trust funds, and then to bargain in good faith with the Union. At such time as the Company remedies its unfair labor practices, the Union is willing and eager to engage in good faith negotiations and discuss all mandatory subjects of bargaining. (2) Entire statement presented to Respondent by Union 's counsel on December 7, 1983. As I stated in my letter of November 12 to Bob Kilroy, the Union has accepted your invitation to meet with representatives of Inland Tugs Company in order to discuss and to receive Company propos- als regarding changes in wages, hours, and condi- tions of employment for bargaining unit employees. We look forward to receiving the company propos- als and hope that they show a willingness on the Company's part to make real improvements in the wages and working conditions of its employees. By receiving the Company's proposals, by dis- cussing them, and by making proposals of its own, Union does not waive its legal position that the ap- propriate bargaining unit is that which we have urged before the National Labor Relations Board, namely, a unit including deck personnel , cooks, and engineering department employees in one unit to- gether with employees of MAC Towing. Neverthe- less, until such time as an appropriate Court has an opportunity to rule on the merits of the unit deter- mination, the Union is willing to meet with Inland Tugs Company in the unit found appropriate by the NLRB. As we have stated in the past, however, no meaningful negotiations or good faith bargaining can take place until the Company has remedied those unfair labor practices which are the subject of proceedings before the Board or its administrative law judges . We, therefore, urge the Company, as we have in the past, to correct its past unfair labor practices and comply with the recommended order of Judge Johnston. Unless and until the Company dissipates the effect of its unfair labor practices, the Company is but continuing its unlawful course of conduct which began four years ago. We, therefore, again ask the Company to remedy the ULPs and comply with Judge Johnston's recommended order. (3) Extract from January 17, 1985 letter from Union's Counsel to Respondent's attorney The Union continues to demand that the Compa- ny resume contributions to the trust funds and remedy the massive unfair labor practices which are currently pending before the National Labor Rela- tions Board, including the payment of back wages to employees and the payment of back contributions to the trust funds. When that is done, meaningful negotiations with the Company can be achieved. AMERICAN COMMERCIAL LINES 967 Preceding this paragraph relied on by Respondent as evi- dence of a union refusal to bargain are the following in- troductory paragraphs: On December 19, 1984, you and other represent- atives of Inland Tugs Company met with Mr. Sacco and Mr. Pillsworth as representatives of the Union at the Union's offices in New Orleans. At that meet- ing, you handed a written proposal to the Union representatives to be effective December 31, 1984, and you received those proposals and outlined the reasons for the proposed changes. The Union repre- sentatives restated the Union's position regarding the trust funds and stated that the wage portion of the Company's proposal is not nearly enough. At the meeting, the Union representatives also advised that they would reply to your proposal in writing. It is the Union's response that the proposed increases in economic benefits are grossly inad- equate and insufficient to provide adequate compen- sation for Inland Tugs Company's employees. We believe that your proposed wage increases should be implemented, plus much more. It must be re- membered that your client operates one of the larg- est, if not the largest, towboat companies on the inland river system, and yet the wages paid are among the lowest. The closing paragraph of the letter follows immediately after the paragraph cited by Respondent, and states: In any case, please advise Mr. Sacco, Mr. Pills- worth, and me what changes, if any, the Company intends to implement or has implemented. In addition to documentary references, Respondent cites the Union's failure to reply to letters of December 1985, December 1986, and November 1987, wherein Respond- ent set forth proposals for wage increases and other im- provements in benefits and conditions of employment, and asked the Union to provide meeting dates if it wished to meet and discuss the proposals. The Union did not choose to meet with the Respondent on these pro- posals, but had previously met with the Respondent in response to similar letters in 1981, 1982, 1983, and 1984. Respondent may draw no comfort from Judge John- ston's finding the Union declined to meet with Respond- ent in 1980 because it did meet with Respondent thereaf- ter as Respondent's attorney, Robert W. Kilroy, con- cedes and the Union's January 17, 1985 letter reflects. In- sofar as the Union's communications relied on by Re- spondent are concerned , they do not reflect a waiver of bargaining rights . What they do reflect is a willingness and eagerness to bargain in the units found appropriate by Judge Johnston if Respondent abandons its past be- havior in negotiations, which Judge Johnston found was not good-faith bargaining , and engages in good-faith ne- gotiations. Respondent continues, as is its right, to con- test Judge Johnston's decision. In this posture, with the Union believing and the judge finding Respondent had displayed a penchant for less than good-faith negotia- tions, and the Respondent maintaining its conduct was proper, the Union was not required to engage Respond- ent in what had been found to be bad-faith bargaining and was entitled to assurances from Respondent, as a condition precedent to further negotiations, that Re- spondent would bargain in good faith as the Act re- quires. The Board has recently reaffirmed its longstanding po- sition on waivers of statutory bargaining rights in Owens- Corning Fiberglas Corp., 282 NLRB 609 (1987), as fol- lows: The Board will not lightly infer waivers of statuto- ry rights. See, e.g., Rockwell International Corp., 260 NLRB 1346, 1347 (1982). Where, as here, the terms of an employee purchase program were never dis- cussed during contract negotiations, we will not infer a waiver by the Union of its right to bargain over proposed changes in that program . Rockwell, supra. Nor does the fact that the Respondent previ- ously changed the terms of the program without bargaining preclude the Union from effectively de- manding to bargain over the most recent change. A union's acquiescence in previous unilateral changes does not operate as a waiver of its right to bargain over such changes for all time . Ciba-Geigy Pharma- ceuticals Division , 264 NLRB 1013, 1017 (1982), enfd. 722 F.2 1120 (3d Cir. 1983); NLRB v. Miller Brewing Co., 408 F.2d 12 (9th Cir. 1969); Rockwell International Corp., supra, fn 6. "[W]here, as here, an employer relies on a purported waiver to estab- lish its freedom unilaterally to change terms and conditions of employment not contained in the con- tract, the matter at issue must have been fully dis- cussed and consciously explored during negotiations and the union must have consciously yielded or clearly and unmistakably waived its interest in the matter." 260 NLRB at 1347. [Emphasis added.] Respondent has stipulated that no notice of the im- pending poll was given the Union prior to the mailing of the ballot on July 17, and states in its brief that the Union presumably became aware of the intended change in payroll policy as a result of Respondent's October 7 communication to employees . Respondent also stipulated that no notice was given to the Union of the change in transportation policy which was announced to employees on August 28 and appears to have been implemented in September 1987. There is no precise evidence regarding exactly when the Union became aware of the poll and/or the change in transportation policy. Considering that the charge in the case was signed by the Union on November 17 and docketed as filed on November 18 and there is no showing the Union had anything but the shortest notice of the matters complained of before it filed the charge, it cannot be concluded that the Union waived its rights by inaction once it gained knowledge of Respondent's conduct here in issue. Justesen's Food Stores, Inc.,9 upon which Respondent relies to find waiver is distinguishable on its facts because there the union had notice of the conduct complained of within 2 days thereafter but did not raise the issue of the validity of Justesen 's unilateral action until it filed charges on the 9 160 NLRB 687 (1966) 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD matter 6 months later . Similarly, in Coppus Engineering Corp., 1° also cited by Respondent, the decision does not specifically state but strongly implies that the union in that case became aware of the impending elimination of a benefit on or about February 13, but did not object, re- quest bargaining on the subject, or file a charge with the Board covering the action until June 3. Here again there is knowledge several months before protest, and Coppus is not applicable to the instant case . I conclude and find that Owens-Corning Fiberglas, supra, and the cases cited therein are dispositive of Respondent's waiver argument. That defense is therefore rejected. The amended complaint herein alleges the bargaining units contended for by the Respondent before Judge Johnston and found appropriate by him. Affirmative de- fense 4 is therefore rejected. For the reasons set forth hereinabove, and assuming, without deciding, the correctness of Judge Johnston's de- cision in American Commercial Lines, supra, I find Re- spondent has not rebutted the General Counsel 's prima facie case, and the General Counsel has therefore proved by a preponderance of the evidence that Respondent has violated Section 8(a)(5) and (1) of the Act as alleged in the complaint before me. If, however, the Board does not affirm the several findings of Judge Johnston touch- ing on this case, it is quite possible it may reverse my de- cision in whole or part. Nevertheless, I believe it prefera- ble to expedite this decision by proceeding on the as- sumption Judge Johnston will be sustained , rather than to further delay matters by awaiting a Board decision on his case before issuing this decision American Commercial Lines I, supra. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondent constitute units appropriate for purposes of collective bargaining: Unit A: All head deckhands, deckhands, cooks, trainee engineers and tankerman employed by [Respondent in its River Division] on boats owned , operated or chartered on a bareboat basis by it, excluding pro- fessional employees, guards and supervisors as de- fined in the Act, and all other employees. This rec- ognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidi- ary or affiliated companies. Unit B: All engineers and assistant engineers employed by [Respondent in its River Division ] on boats owned, operated or chartered on a bareboat basis by it, excluding professional employees , guards and supervisors as defined in the Act, and all other em- 10 195 NLRB 595 (1972) ployees. This recognition shall not apply to bare- boat charters to other operators nor to crews of towboats of subsidiary or affiliated companies. Unit C: All chief engineers, head deckhands, cooks, train- ee engineers and tankerman employed by [Respond- ent in its Canal Division] on boats owned, operated or chartered on a bareboat basis by it, excluding professional employees, guards and supervisors as defined in the Act, and all other employees. This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidi- ary or affiliated companies. 4. The Union is, and has been at all times material to this proceeding, the exclusive representative of all the employees in the aforesaid appropriate units for the pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By bypassing the Union and dealing directly with its employees by mailing letters and ballots to said employ- ees asking them to vote concerning a change in Re- spondent's pay system, Respondent violated Section 8(a)(5) and (1) of the Act. 6. By unilaterally implementing new practices affecting employees' travel between their boats and the ports at which they get on or off the boat to which they are as- signed, without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain thereon as the exclusive collective-bargain- ing representative of said employees, Respondent violat- ed Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) the Act. On the foregoing findings of fact and conclusions of law, I recommend the following' 1 ORDER The Respondent, Inland Tugs Division of American Commercial Barge Line Company Jeffersonville, Indi- ana, its officers, agents, successors , and assigns, shall 1. Cease and desist from (a) Bypassing the Union and dealing directly with em- ployees in units represented by the Union concerning changes in Respondent's pay system. (b) Implementing changes in existing policy and prac- tice concerning employee travel between their homes and the boats to which they are assigned and reimburse- ment therefor without giving the Union prior notice and opportunity to bargain thereon. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 11 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses AMERICAN COMMERCIAL LINES 969 (a) Reinstitute the policy and practice in effect until September 1, 1987, concerning employee travel between their homes and the boats to which they are assigned. (b) Bargain in good faith with the Union, as the exclu- sive collective-bargaining representative of Respondent's employees in appropriate units, concerning any proposed changes in the reinstituted policy and practice concern- ing employee travel. (c) Post at its Jeffersonville, Indiana facility, and at all its other facilities where its employees are normally em- ployed, including vessels, copies of the attached notice marked "Appendix."12 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other materi- al. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "