Chas. P. Young Houston

958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fidelity Printing Company, Inc., d/b/a Chas. P. Young Houston and Gulf Coast Printing and Graphic Communications Union Local 71M, AFL-CIO. Case 16-CA-13972 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On February 13, 1990, Administrative Law Judge J Pargen Robertson issued the attached de- cision The Respondent filed exceptions and a sup- porting brief, the General Counsel filed a motion to strike Respondent's bnef and exceptions and also filed an answering bnef, and the Respondent filed a response to the General Counsel's motion 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 rulmgs, 2 findings, and conclusions and to adopt the recommended Order as modified 1 We agree with the judge that the Respondent unilaterally implemented terms and conditions of employment on February 13, 1989, 3 in violation of Section 8(a)(5) and (1) of the Act for the followmg reasons Dunng the negotiating sessions conducted between October 14, 1988, and the date of imple- mentation, the Respondent offered substantive pro- posals involving a limited number of subjects, i e, the extension of the expired collective-bargaining agreement until July 31, the institution of a stag- I The General Counsel's motion to strike the Respondent's exceptions and brief asserts that the Respondent failed to comply with the page limi- tations of Sec 102 46(b) and (j) of the Board's Rules Pnor to the Board s receipt of the General Counsel's motion, however, the Board's Office of the Executive Secretary returned to the Respondent Exhs A and B of its brief because the documents submitted exceeded the 50-page limitation of Sec 102 46(j) R Exh C was retained because It merely contained the texts of decisions cited in the Respondent's bnef The remainder of the brief is in accordance with the page limitation specified in the Board's Rules, and therefore we consider the General Counsel's motion moot The Respondent has requested oral argument The request is denied asthe record, exceptions, and briefs adequately present the issues and the positions of the parties 2 We agree with the judge's denial of the Respondent's motion to dis- miss or stay this proceeding in view of the Respondent's proceeding under Chapter 11 of the Bankruptcy Code The Respondent argued that the Board's order in this proceeding may hinder the Respondent's efforts to reorganize, and that the Board should have sought an authorizing order from the bankruptcy court The case relied on by the Respondent, NLRB v Edward Cooper Painting, 804 F 2d 934 (6th Cif 1986), does not support its argument Rather, in that case the court held that the auto- matic stay provision of the Bankruptcy Code did not apply to the Board's unfair labor practice proceeding, and that the Board was not re- quired to petition the court for permission to go forward with its pro- ceeding The court further held that the Board may enter a money judg- ment against the debtor, although the enforcement of the money judg- ment would be subject to the automatic stay 3 All dates are 1989 unless otherwise indicated gered workweek for layoffs, certain changes in va- cation scheduling, and the elimination of the M110 press from the contract In the November 14, 1988 bargaining session, the Respondent proposed only a contract extension until July 31, and withdrew its other proposals When the parties met on January 5, their last meeting before the unilateral implemen- tation, the Respondent informed the Union that the simple contract extension was the best offer it could make The membership of the Union subse- quently rejected that offer Even assuming arguendo that the parties were at impasse as of February 13, the Respondent would have been free to implement only its last offer to the Union See Storer Communications, 294 NLRB 1056 (1989), and cases cited therein Here the Re- spondent's last offer entailed simply an extension of the terms of the expired agreement Its notice to unit employees on February 13, however, an- nounced that the Respondent "will no longer honor the terms of the collective bargaining agree- ment which expired on July 13, 1988, and no longer will maintain the status quo as to its work rules and wage rates" The notice then delineated numerous specific changes involving wages, bene- fits, and hours of work We find that the February 13 notice was clearly inconsistent with the last offer made by the Respondent, and that the imple- mentation of the terms and conditions contained in the notice constitutes a violation of Section 8(a)(5) and (1) Because we conclude that the Respond- ent's conduct was unlawful even if the parties were at impasse before implementation, we find it unnec- essary to pass on the judge's findmg that impasse had not been reached 2 We also agree with the judge that the Re- spondent violated Section 8(a)(5) and (1) by its re- fusal to meet with the Union for the purpose of collective bargaining after March 8 unless the Union agreed to the continuation of the terms and conditions implemented on February 13 We have already concluded that the initial implementation of these terms and conditions was unlawful There- fore, the Respondent's msistence on the continued implementation of the same terms and conditions as a precondition to meeting with the Union as the designated bargaining representative of its employ- ees was also unlawful See Lehigh Portland Cement Co, 287 NLRB 978 (1988) Although the Union agreed on February 23 to allow the Respondent to maintain these working conditions through March 31, we agree with the judge that the agreement was a temporary one made for the purpose of fa- cilitating continued negotiations and that the Union did not thereby waive its bargammg rights More- over, this temporary agreement did not have the 299 NLRB No 146 CHAS P YOUNG HOUSTON 959 effect of validating the unilateral changes made by the Respondent or of altering the status quo with respect to the parties' negotiations for a collective- bargaining agreement Thus, the refusal of the Union to agree to an extension of the agreement could not result in impasse as the Respondent con- tends 4 We amend the make-whole remedy recom- mended by the judge, however, to exclude the penod from February 23 to March 31, during which the February 13 notice was temporarily im- plemented pursuant to the agreement of the parties We also amend the remedy to provide that the Re- spondent shall remit any payments owed to em- ployee benefit funds and reimburse employees for any expenses resulting from the Respondent's fail- ure to make these payments 5 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Fidelity Printing Company, Inc , d/b/a Chas P Young Houston, Houston, Texas, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 2(c) "(c) Make employees whole for any loss of earn- ings and other benefits suffered as a result of the February 13, 1989 unilateral changes in their terms and conditions of employment in the manner set forth in the remedy section of the judge's decision as amended The penod for such compensation shall run from February 13, 1989, until the terms and conditions prior to the changes are restored, except for the penod from February 23 to March 31, 1989, during which the changes were temporar- 4 The Respondent also argues that the parties were at Impasse because they could not agree on any dates for further meetings pnor to the expi- ration of the February 23 agreement In this regard, the Respondent con- tends that the Judge erred in finding that Union Vice President Boland testified that the parties did not discuss at their February 23 meeting whether to meet on March 30-31 The record shows that Respondent Executive Vice President Yarochowicz testified that the Respondent In- formed the Union of its unavailablity on February 23, but that Union Representative Meyer testified that the Union was not informed until March 8 and Boland testified that he did not recall being told that the Respondent would not be available on those dates until March 8 We find It unnecessary to resolve the conflict in the testimony of these witnesses because our conclusion would not be affected whether the Respondent had notified the Union of its March 30--31 unavailability on February 23 or March 8 The Respondent further challenges Boland's credibility, asserting that he testified the parties were not at impasse on February 8 and that he was not involved in the negotiations until after that date The record shows that Boland testified that following the March 8 meeting he sent a letter to the Respondent stating, Inter aim, that he did not think that the parties were at Impasse 5 Kroft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd 661 F 2d 940 (9th Cir 1981) Any additional amount that the Respondent must pay Into the benefit funds shall be determined in the manner set forth in Menywearher Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) ily implemented pursuant to the February 23, 1989 agreement with the Union" 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTIcE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain with Gulf Coast Printing and Graphic Communications Union Local 71M, AFL-CIO (the Union) by unilaterally implementing terms and conditions of employment and by refusing to bargain unless the Union extends an agreement permitting us to continue to impose illegally implemented terms and conditions of em- ployment WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and bargain in good faith with the Union regarding terms and conditions of employment of unit employees WE WILL restore unit employees' terms and con- ditions of employment as they existed before the February 13, 1989 changes and continue them in effect unless or until a new agreement is reached or an impasse is reached in bargaining WE WILL make employees whole for any loss of earnings and other benefits suffered as a result of the February 13, 1989 unilateral changes in their terms and conditions of employment, with interest The period for such compensation shall run from February 13, 1989, until the terms and conditions prior to the changes are restored, except for the period from February 23, 1989, to March 31, 1989, during which the changes were temporanly 960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mented pursuant to the February 23, 1989 agree- ment with the Union FIDELITY PRINTING COMPANY, INC , D/B/A CHAS P YOUNG HOUSTON Robert G Levy a Esq , for the General Counsel Dean A Dicke, Esq , of Chicago, Illinois, for the Re- spondent Thomas J Wood, of Houston, Texas, for the Charging Party DECISION STATEMENT OF THE CASE J PARGEN ROBERTSON, Administrative Law Judge This case was tried in Houston, Texas, on November 8 and 9, 1989 The charge was filed on March 31, 1989 The complaint issued on May 9, 1989 The complaint alleges that Respondent engaged in conduct violative of Section 8(a)(1) and (5) of the Na- tional Labor Relations Act (Act) Respondent admitted that during the past 12 months, a representative period, it, in the course and conduct of its business operations at its Houston, Texas facility, pur- chased and received goods and materials valued in excess of $50,000 directly from places located outside the State of Texas On the basis of that admission, and the record evidence which shows that Respondent was an employer at material times, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Additionally, I find, on the entire record, which shows that the Charging Party (Union) has continuously repre- sented specified employees of Respondent in matters concerning terms and conditions of employment, that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act All parties were given the opportunity to file briefs Bnefs were filed by Respondent and General Counsel Pursuant to stipulation I received Respondent's Exlubit 50 as evidence of testimony that would have been made by Respondent's president and chief executive officer, Nick Kane, if Kane had been called in these proceedings As to paragraph 10 of Respondent's Exhibit 50, follow- ing General Counsel's objection that that paragraph in- cluded opinion testimony and should be inadmissible, I agreed to take that objection under advisement I over- rule that objection I shall consider the entire exhibit (R Exh 50) as evidence In his brief counsel for Respondent moved for a new trial on the contention that both Thomas Wood and Clarence Meyer were present dunng examination of wit- nesses other than themselves and that Respondent was prejudiced An examination of the record shows that Wood was present as the Charging Party and that he designated Meyer as his assistant under the sequestration rule Respondent who was represented by Dean Dickie, designated Michael Yarochowicz as its assistant General Counsel, who was represented by Robert Levy, did not have an assistant The above evidence shows that all par- ties were given an opportunity to designate assistants in accordance with standard procedures under the seques- tration rule, both Respondent and Charging Party elect- ed to designate assistants while General Counsel waived his right to an assistant, and both the assistant for Charg- mg Party and the assistant for Respondent were subse- quently called by their respective party as a witness I find that there was no action taken in violation of the rule of sequestration Moreover, my findings did not turn on credibility determinations regarding the testimony of Thomas Wood or Clarence Meyer Therefore, Respond- ent was not prejudiced by the presence of Wood or Meyer during the hearing Respondent's motion for a new trial is denied On the entire record, I make the following findings What the Evidence Revealed The record illustrated that Respondent and the Union historically have been parties to collective bargaining The last collective-bargaining agreement before com- mencement of these proceedings was effective on its terms from August 1, 1985, to July 31, 1988 As shown, the parties agreed to extend those terms That collective- bargaining agreement shows in section 2, that the Union represents the employees in the following bargaining unit all pressmen, apprentices and press assistants en- gaged in operating or assisting in the operation of the Employer's gravure, offset and letterpress print- ing presses and all other printing presses operated by the Employer, irrespective of the method or process of printing utilized, all the Employer's em- ployees engaged in the job classifications utilized in the preparation of offset plates, including but not limited to offset camera, dark room, stnppmg, layout, etching, dot etching, opaquing and offset platemakmg, and all accretions to the bargaining unit as herembefore defined, including but not limit- ed to new or related processes of printing or substi- tutions therefore connected with the operation of the Employer's offset printing plates 1 In short the complaint alleges that Respondent made unilateral changes in terms and conditions of employ- ment for the bargaining umt employees, on February 13, 1989 General Counsel contends that Respondent made those changes before negotiating about the changes with the Union and that an impasse in negotiations did not occur before the changes were made Although Respondent denied the complaint allegations regarding the description of the bargaining unit, and Respondent refused to agree during the hearing, that the unit description did not change following ex- piration of the last collective-bargaining agreement, the testimony of Re- spondent Vice President Charles Mitchell shows that Respondent did not, through bargaining, seek to change the described unit Moreover, as late as March 27, i989,—again according to the testimony of Mitchell— Mitchell corresponded with bargaining unit members along recognized lines of descnption as set forth in the collective-bargaining agreement I find that the described unit was a recognized unit, which is presumed to be appropnate, and that unit description did not change during material times CHAS P YOUNG HOUSTON 961 Additionally, the complaint alleges that after the Union agreed to temporarily permit Respondent to con- tinue to apply the terms of employment implemented on February 13, Respondent refused to continue bargaining after March 11, 1989, unless the Union agreed to addi- tional extensions of its agreement to permit Respondent to apply the alleged unilateral changes Charles Mitchell, Respondent's vice president of human resources testified that he was present during col- lective-bargaining negotiation sessions between Respond- ent and the Union on October 14, November 4 and 14, 1988, and January 5, February 23, and March 8, 1989 The evidence regardmg those dates, and other dates, mcludes that mentioned below May 17, 1988 By letter dated May 17, 1988, the Union wrote Re- spondent, This letter is to advise you that the contract be- tween your firm, Chas P Young, and Houston Graphic Communications Union No 71-M expires on July 31, 1988 We wish to modify such Agree- ment as to wages and other conditions of employ- ment We ask that you meet and confer with us and we offer to meet and confer with you at mutually con- venient times and places for the purpose of reaching a new Agreement Will you please contact us to ar- range for such meetmg9 May 19, 1988 On May 19, 1988, Respondent replied to the Union's May 17 letter That response included the following, Service Resources Corporation is currently con- sidering several offers for the purchase of Chas P Young Company It is anticipated that the sale of Chas P Young Company will be successfully con- cluded and that there will be a new owner some- time during the summer In view of the anticipated change of ownership and the expectation that the new owner will expect to have a voice in contract negotiations, Chas P Young Houston requests a delay in the start of ne- gotiations for approximately 90 days until Septem- ber 1, 1988 If this request is approved, the Company agrees that the current Agreement will remain m effect without change until October 31, 1988 Further, the Company agrees that any changes negotiated in the economic provisions of the Agreement will be ret- roactive to August 1, 1988 unless a settlement is not reached within 30 days of new expiration date of the Agreement, October 31, 1988 In such event, retroactively shall become a bargamable issue as set forth in the second paragraph of Section 1 (Dura- tion) of the Agreement July 7, 1988 On July 7, 1988, the Union wrote Respondent that as membership had agreed to the Respondent's proposed 90-day extension of the contract October 14, 1988 The parties met and negotiated on October 14, 1988, at which time the Union presented Respondent with pro- posals for changes in the collective-bargaining contract Regarding the October 14 negotiations, Respondent Vice President Charles Mitchell testified The Mr Carlton had a copy of the proposal to the Company but had typed it up, as I recall, the night before There were errors in it and what kind of errors I don't know So he chose to verbally go through each of the proposals to the Company, and we discussed them at that point in time When the meetmg was concluded, at my request, he was to go back and retype the Union proposal and present it to the Company at a later date But most of the day was spent discussing the various recom- mendations in the Union's proposal Respondent's Executive Vice President Michael Yar- ochowicz also testified about the October 14 session Yarochowicz recalled that he told the Union of the fi- nancial condition of the Respondent and of the pending sale of Respondent Yarochowicz testified that the Union, in their contract proposal asked for a 10-percent wage increase and that he responded that he could not agree to that request because of the financial condition of Respondent Yarochowicz told the Union there had not been increases granted to any of the other, except on a very limited basis, to the other employees of the Company durmg the year of 1988 The Union's former secretary-treasurer and business agent, Carlton Johnson, testified in substantial accord with the above testimony of Charles Mitchell regarding the October 14 negotiations November 4, 1988 Respondent Vice President Mitchell testified about the November 4 negotiation session The primary emphasis at that meeting was the fi- nancial condition of the Company We were trying to pass on to the Union's bargaining committee that the Company was not in a good financial condition locally or nationally We went through some of the same things we discussed at the prior meeting on October 14th We also discussed the sale on that date, the status of the sale, which had been pushed out to some time in December I think, at that point in time, it looked like it would be concluded by De- cember 31st of 1988 As I recall, (Dean Dickie, Respondent's attorney) stated that the corporate officers had indicated to 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (him) that we needed to cut our labor costs, our contract costs And that in conferring with local management that they had prevailed upon corporate to maintain the current agreement for labor stability and try to get (the local collective bargaining) con- tract extended till July 31st, 1989 It was either at that meeting or the meeting on November 14th that we proposed that the contract be extended to July 31st, 1989 We proposed that we the Company would have a staggered work week for lay-offs We proposed an extension or a yeah, the extension of the vacation penod, ex- pandmg it to from May 1st to September 30th That employees who had one week's vacation be required to take one week within that period People who had three or four weeks to take two weeks within that period from May 1 to September 30th And to eliminate the M1lo press from the con- tract since the Company had sold that press Michael Yarochowicz also testified for Respondent re- garding the November 4 meeting Among other things, Yarochowicz recalled that he told the Union during the November 4 meeting, that further increases at this point in time was not something that the Company was was going to be considering since it was considering reductions what (Diclue) explained to them was that the corporation was really seeking some major reduc- tions in wages, major changes in the operations of the of the Company, more flexibility Certain items were discussed such as four-day work weeks, reduction in how vacations were to be handled, that and, basically, I would term I would use the term economic concessions that were to be that what the corporation really wanted was us to seek economic concessions Yarochowicz testified that Respondent made a propos- al to the Union which included three items Those items were elimination of all references to the Milo press, insti- tution of a 4-day staggered workweek, and changes in vacation arrangements to require all or part of each em- ployee's vacation be taken during the May 1 through September 30 period Carlton Johnson also testified about the November 4 negotiations Johnson recalled that the meeting started with Respondent Attorney Dickie discussing the unprof- itable situation with Respondent Johnson recalled that Respondent proposed that the contract term run from August 1, 1988, to July 31, 1989 Johnson testified that Dickie, wanted to move the posting of vacations back one month He wanted a staggered or sliding work week And further that employees be directed to take their vacations between May and September And the ability to move employees around I asked Mr Dickie if if he was ever going to if he was going to address any of the Union's proposals Q Did Mr Diche respond to your question'? A He said this is what we need to make the Company profitable You ought to be glad we didn't come in and ask for wage reductions November 14, 1988 Charles Mitchell testified about the November 14 ne- gotiation session Well, we kind of started back from the beginning in the sense that Mr Meyer (Clarence Meyer, Inter- national Representative for the Union, attending his first negotiation session) had to be brought up to speed And we discussed the sale, we discussed the financial condition of the Company and, again, I think we were faced with a possible purchase date by the 31st of December, and and discussed and reviewed the financial condition of the Company There had been some question about whether or not we were telling the employees the truth, and we tried to about our financial con- dition And tried our best to present the facts as best we could that the Company was and had been having senous financial problems We again requested an extension of the contract till July 31st, 1989 And I believe we withdrew our request for the staggered work week and the changes in the vacation I believe and the M1lo I believe those were withdrawn at that point in time The parties stipulated that Respondent, on November 14, offered to the Union a simple contract extension to July 31, 1989, with no other conditions That proposal was subsequently rejected by the Union Union International Representative Clarence Meyer agreed that Respondent reviewed their situation regard- ing the pending sale and poor financial condition of Re- spondent Meyer recalled that he (the Union) presented Respondent with a written offer to extend the contract for 1 year, until October 31, 1989, That would give them more than what they asked for Then I asked and I told him that we could go along with the slide work week in emergencies, but we needed some kind of cap on it If they would do it if they got to where they did it five or six, seven, eight times a year, we didn't feel like that was fair But we needed some kind of cap, and I think I stated it to him that-a-way Some kind of a cap The vacations, I think that we said that, best I can remember, that we couldn't go along with the vacations having to be taken as the Com- pany wanted to do that We might could agree with the posting thing, but we couldn't agree with the other part CHAS P YOUNG HOUSTON 963 Meyer testified that he then brought up two issues contained in the Union's October 1988 written proposal regarding seniority and work rules Meyer testified Mr Dickie said to the committee that while we while it appeared that we, you know, we had some some area that we could agree to, and I think he specifically named the contract extension or the the date the date that we would specify for the termination duration is the word I want to use While we were agree we could were close to agreement there, or we could have an agreement there, we also could while the vacation I mean the work week, it ap- peared we had some agreement there The other areas that the Company did not want to reopen the contract on any other issues at this time Q Was there any discussion between yourself and Mr Diclue in connection with proposals where the subject matter of wages or money came up? Was that mentioned at all? A No, it was not at this meeting Michael Yarochowicz testified that the Union present- ed a package proposal on November 14 There were there were about six or seven items And one being extending the contract 12/1/88 to 11/30/1989 The staggered work week, there was a vacation request but that the request be that the that there would be no deduction for vacation time if the staggered work week was em- ployed There was a point being made about new equipment, that there were new processes intro- duced there were a number of other thmgs the Company was asked if it would if it would consider that proposal, but would have to accept all of them at one time (the Company considered) the proposal and rejected it November 29, 1988 On November 29, 1988, the Union wrote Respondent At a meeting, November 27, 1988, the bargaining unit members at Chas P Young, unanimously re- jected the concept in re, staggered work week At our last contract meetmg, November 14th, the union put on the table a compronuse proposal which was subsequently rejected by the company and to date no further meetings between the parties have been scheduled With the November 30th dead lme around the corner, the union feels it would be in the best interest of all concerned that the current contract be extended on a day to day basis while both parties attempt to reconcile their differences and reach a[n] equitable settlement December 5, 1988 On December 5, 1988, the Union wrote Respondent To date my office has not received a response to a letter dated November 29, 1988, it is with some ur- gency that I am again writing and requesting a prompt reply to the above referenced letter It has also come to my attention that bargaining unit em- ployees have been and or in the process of being laid off Please notify this office by written commu- nication as to the reason for such lay off and the status of such lay off December 13, 1988 On December 13, 1988, the Union wrote Respondent This letter is to advise you that the bargaining unit members represented by GCU Local 71-M at a meeting Saturday, December 10, 1988 voted unani- mously to reject an offer by the company in re, extend current conditions as per old contract until July 31, 1989 The membership further voted to send the committee back to the table and extend the conditions as per the old contract on a day to day basis until a negotiated settlement can be achieved January 5, 1988 After Respondent was sold on January 4, 1989, the parties met for a negotiation session on January 5 Re- spondent's new president and chief executive officer, Nick Kane, was present during that session Charles Mitchell testified The sale of the Company was discussed, the fi- nancial condition of the Company was discussed The particular reason for Mr Kane being there was to emphasize the financial condition of the Compa- ny and the fact that the Company's offer to extend the contract to July 31st, 1989 was the best offer that they would receive The Company could not make a better offer than that Mepeated that the extension was the best offer that the Company could make at that point in time in view of its financial condition And the desire of the new owners to not get involved in a contract until they were able to understand what the, you know, real financial situation of the Company was Q When you say not get involved in a contract, what do you mean? A Well in negotiating a Union contract which would bind them for two or three years when they weren't aware of the full, you know, the details of the financial condition of the Company We specifically asked (the Union) to go back to the membership again And they had indicated to us we've gone to them twice And we said we would like for you to go back to them one more time be- cause this is the best the best offer we can make And they agreed to do that On cross-examination Mitchell testified that someone for Respondent remarked that if the Union did not agree 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to their proposal to extend the contract to July 31, 1989, "if we went Into traditional bargaining then (cuts, and wage reductions, and reductions in benefits) could con- ceivably happen" Michael Yarochowicz testified in support of Respond- ent regarding the January 5 meeting Yarochowicz testi- fied along the lines of the testimony of Charles Mitchell Clarence Meyer testified that, on January 5, Respond- ent again brought up the matter of its poor financial con- dition, their desire to extend the contract to July 31, and the slide workweek and vacation period issues Meyer recalled that the Union brought up a question of the Re- spondent farming our work and the Committee's concern with Respondent farming out work Mr ache said there's a logical explanation I think I said But he said that we will we will find out for you And we had, later on during the day, I can't remember if it was before we broke for lunch or after, Mr Richards, I believe, came to the came to the negotiations and he had information about these jobs and why they were why the work was done at other places besides the Compa- ny, and we were satisfied Meyer recalled that the Union proposed accepting the Respondent's proposed extension to July 31 provided the Company guarantee no layoffs and 40-hour weeks Re- spondent was unwilling to make those guarantees Meyer told Respondent that he would take their proposal to the membership January 27, 1989 According to Charles Mitchell the membership voted on January 27 to reject Respondent's offer to extend the contract to July 31, 1989 February 8, 1989 On February 8, 1989, Respondent wrote the Union As you are aware, Chas P Young Houston (the Company ) and the Graphic Communications Union No 71M of Houston, Texas (GCIU), have met on numerous occasions to negotiate and discuss the terms and conditions of a possible new collective bargaining agreement Following its December 10, 1988 meeting of Local 71M unit members, the GCIU advised the Company by letter on December 13, 1988 that the bargaining unit members unani- mously rejected the Company's offer to extend the terms of the expired agreement to July 1989 The Company was also advised by the GCIU that al- though negotiations were to continue, the members would continue to work under the old contract only on a day-to-day basis Since December 13, 1988, the parties have con- ducted formal and informal negotiations and discus- sions In fact, during the January 5, 1989 formal meeting in Houston, the Company, after again re- viewing its precarious financial position and poor fi- nancial performance over the last several years, re- newed its offer to extend the terms and conditions of the expired agreement until July 31, 1989 Subse- quently, on January 27, 1989, GCIU members met to consider the Company's renewed offer That offer was rejected by the membership Based on the rejection of the Company's best offer it has come to the conclusion, albeit reluctant- ly, that a negotiated settlement cannot be achieved at this time Consequently, the parties are now at impasse Please be advised, therefore, that effective with the morning shift on Monday, February 13, 1989, the Company shall no longer work under the terms of the expired agreement, but instead shall conduct its business pursuant to terms and condi- tions which will be posted by 600 a m of that day February 13, 1989 Respondent posted the followmg as a notice to unit employees, dated February 13, 1989 Please be advised that although the Company and the Union have been negotiating to arrive at a new agreement, the parties now are at an economic impasse Consequently, Chas P Young Houston has determined that it will no longer honor the terms of the collective bargaining agreement which expired on July 13, 1988, and no longer will main- tain the status quo as to its work rules and wage rates Effective Monday, February 13, 1989, the fol- lowing changes are being implemented by the Com- pany 1 All Press and Prep department employees, like all other employees not covered by a separate col- lective bargaining agreement, shall now be consid- ered Chas P Young Houston employees, not just members of a single department and as such, shall be available for work as, when, and where needed within the Company 2 Although your primary job is in the Press or Prep department, from time to time you may be re- quired to perform functions outside your depart- ment in order to expedite work through the shop or to prevent further layoffs 3 Effective February 13, 1989, wage rates for employees in the Press and Prep departments shall be as set forth in Exhibit A 4 The Company is withdrawing from all of the multiemployer GCU plans in which it is now a par- ticipant All affected full-time employees shall have the right to participate in the Company's Insurance and benefit programs on the same terms as non- union employees Eligibility will be based on re- quirements set forth in each of those plans The nght to participate in these plans is expressly condi- tioned upon the employee remaining as a full-time employee of Chas P Young Houston Chuck Mitchell will provide specific information and ap- propnate forms 5 Each employee shall be expected to work overtime and such overtime will be distributed equi- tably As much advance notice of overtime work will be given as is feasible CHAS P YOUNG HOUSTON 965 6 If any further reduction in the work required or, it is necessary to fill a job opening, the length of service with the Company will be one, but not the sole, consideration in determining the employees to be laid off, reclassified or transferred to a different shift Employees may be reassigned to achieve opti- mum crew efficiency 7 Hours of Work A Hours of work are established for each de- partment Three (3) shift operations will be worked when necessary and will consist of a Day (First), Night (Second), and Lobster (Third) shift B Other than the lunch period, production will not be interrupted except for reasonable use of the washroom facilities or by permission of the Foreman or General Foreman C Each employee will be at his or her place of work at starting time and shall work until quit- tmg time D Employees will not leave their assigned work station during working hours without per- mission of the Foreman Lunch is the only excep- tion E The workday normally shall consist of eight (8) hours but may run later as the dictates of the work require, the regular workweek shall consist of forty (40) hours Overtime will be paid as fol- lows time and one-half after 40 hours Paid days of absence such as vacation, holiday, jury duty and bereavement days will be considered as days worked for computing overtime Time and one- half will be paid for hours worked on holidays in addition to holiday pay Double-time will be paid for all hours worked on Sundays F The Company will utilize a staggered work week of less than 5 days if and when such be- comes necessary or otherwise appropriate 8 Employees temporarily assigned to perform work out of their classification will be paid their regular rate 9 Vacations A Employees must have 15 or more full years of continuous service to earn paid vacation time of 160 hours This is the maximum vacation time that may be earned B Employees must take one of two weeks va- cation, two of three or four weeks vacation, earned as of any May 31, between May 1 and September 30 of that year Such vacations must be taken for full calendar weeks only No vaca- tions will be scheduled from the third Monday of February through the second Friday in April C Vacation schedules shall be posted by April first, bids submitted by April 15 and the ap- proved vacations schedules posted by April twenty-fifth D An employee with more than six months of full-time continuous service will be permitted to take accrued vacation time E Vacation pay shall be paid in the first pay check following the employee's return from va- cation F A terminating employee will be paid for unused earned and accrued vacation time if he/she has completed six months of full-time, continuous service 10 Employees must hold full-time situations for six months to qualify for a birthday holiday and one year to qualify for a floating holiday 11 Jury duty pay will be limited to ten days be- tween June 1 and May 31 of any year 12 Employees laid off in a classification will not be permitted to bump employees in an equal or lower-rated job classification 13 There will be no apprentice program 19 Enforcement All Supervisors and Foremen are directed to en- force Company rules by direct action with respect to any employee found violating the rules Enforce- ment to the extent possible under the circumstances will be accomplished with written violation warn- ings which will be placed in the violator's personnel file A violation of Company rules may result m dis- ciplinary action including, without limitation, dis- charge Additionally the notice listed, in section 14, "Tardi- ness," 15, "Absences," 16, "Time Cards," 17, "Stealing," 18, "Miscellaneous," 20, "Statement of Confidentiality/- Conflict of Interest," 21, "Manning of the web press (Color King) "and at 22, When less than 4 units of a 6 unit press are oper- ated, manning shall be at the discretion of the V P, Manufacturing The posted notice continued with exhibit A, which listed new wage rates for unit employees effective Febru- ary 13, 1989, with the proviso The Company shall retain the right to modify any of these rates at anytime as its business may require February 23, 1989 Charles Mitchell testified that the parties met with Federal Mediator Dale Johnson on February 23 At that meeting, the Union and Respondent entered into the fol- lowing February 23, 1989 This will confirm that the Company and the Union have agreed to negotiate towards a new collective bargaining agreement from today forward to Friday, March 31, 1989 During this period of time the Union shall not engage in any form of labor dis- ruption or strike and the Company shall not engage in a lock-out of Union employees The "NEW WAGE RATES AND RELATED OPER- ATIONS PROVISIONS" posted by the Company 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on February 13, 1989 shall remain in place and op- erative throughout the period to March 31, 1989, except that the Company will make regular contri- butions to the Union Employees GCU multiem- ployers plans from today to March 31, 1989 Mitchell along with Michael Yarochowicz, testified that in discussing future meetings on February 23, Re- spondent advised the Union that it could not meet on March 30 or 31, 1989 Raymond Boland, International Union vice president, testified about the February 23 meeting According to Boland the parties discussed meeting on March 8 and 9, 1989, but they did not, at that meeting, discuss whether to meet on March 30 and 31 March 8, 1989 Respondent and the Union met in negotiations on March 8, 1989 Respondent's vice president/human re- sources Mitchell testified that Respondent refused to meet again after March 8, unless the Union agreed to extend its no strike agreement for an additional 30 days beyond March 31, 1989 Clarence Meyer testified that the Union went over Re- spondent's February 13 memo to the employees and agreed to permit the Company to continue several items therein We told the Company we could agree to their item #7(b), (c), (d), and we would agree with their (f) We'd agree with their work we would agree with their (f) if we could get some sort of a cap on it We agreed to item #9(b) I mean item #9(c) I think (c), (d), and I can't remem- ber if we did (f) or not, but I believe we did thmk we agreed to #10, #11, #16, #17, #18, #19 and #20 I think we had something that we wanted in a yeah, we agreed to #20 There was some- thing else mentioned on there about the Union and I can't quite remember what it was Mr Dickie said that the Union the Union's proposal did not get at get at the issues It did not get at the things that they needed to keep this Company operating, something to that effect And it was inadequate, and he didn't didn't feel like that any further meetings would be productive On cross-examination Meyer admitted that the Union's acceptance of the above-mentioned items was contingent on Respondent agreeing to accept the balance of the old contract Raymond Boland of the Union, also testified about the Union's proposal on March 8 in item #7, under Hours of Work, that we would agree to item (b), (c) and (d) In article #9, headed Vacations, that we would agree to (b), (c), (d) and (0 That we would agree to articles #10, ar- ticle #11, article #15, #16, #17, #18, #19 and #20 In #20, we said that item #20 ought to be in a memorandum or agreement instead of embodied in the agreement We also indicated that we felt in #9, subparagraph (b) that the employees ought to be allowed to take their vacation one day at a time After we advised the Company committee that that was our modified position, Mr Dickie indicat- ed that he was very upset by the proposal, that it didn't cover those things that he thought was im- portant to the Company And that indicating if that was the Union's position he didn't see any reason for meeting any longer or again Responsive to that, I said to him that I thought that we had a meeting set for 9th March the 9th, that we ought to use that day because I thought it would be productive [Dickle's] response was that he didn't think it was necessary to meet because we hadn't addressed their problems Boland testified that pursuant to his suggestion, he and Dickie met one on one [Diclue] said that he was disappointed and upset at the position of the Company, that we're dealing with a serious matter And I indicated that I said that I understood it was a serious matter and thought we should continue to meet And then said to him that if we didn't want to meet on the 9th, I couldn't make him meet, however, I thought we should continue to meet sometime between that date and the 31st which was the expiration date of the agreement dunng those discussions, the dates of March 30th and 31st came up, and Mr Diclue's response to that was that he could not meet on those dates because he had other commit- ments Suggested other dates, the 20th of March His response was that he couldn't meet on that date either Michael Yarochowicz testified regarding the end of the March 8 meeting, after the Union had agreed to only some of the provisions included in Respondent's Febru- ary 13 notice to the employees Pickle asked the Union] if there was there was if that's all he had to offer And he said yes And [Dickie] stated that that, based on that, should we if that's all you had, the Com- pany could not agree to that And would was there and since we could not agree to that, was there any reason to meet tomorrow? The Com- pany made an offer to extend the agreement that the federal mediator had worked out on the 23rd through the end of April The [Union] re- sponse was no March 11, 1989 On March 11, 1989, the Union wrote Respondent's at- torney and chief negotiator Relative to the negotiations between Chas P Young Houston and Houston, Texas GCU #71M, CHAS P YOUNG HOUSTON 967 at our last meeting on March 8, 1989 held in the Company headquarters in Houston, Texas, you indi- cated to me and the Federal Mediator, Dale John- son, that you were not interested in meeting on March 30th and 31st, or at any other time The Union wishes to make its position clear on meetings prior to the expiration of the agreement of February 23, 1989, which ends at midnight on the 31st of March We want to meet with the Chas P Young Company on those dates At our meeting on March 8, 1989, the Union, by acceptable negotiating standards, made a proposal to the Company that addressed certain conditions that the Company posted in their working condi- tions of February 13, 1989 The Union believes that it is vital that we meet again pnor to the expiration of the agreement of February 23, 1989 The Union is asking that the days of March 30th and 31st be set for meetmgs an effort to consummate an agreement If these dates are not acceptable, we are available to meet on the 23rd and 24th of March, as I indicated at the March 8, 1989 meeting We are interested in negotiating the remaining issues confronting the parties towards the end to re- solving these issues to the mutual satisfaction of both the Union and the Company It is the Union's position that the parties, Chas P Young and Hous- ton GCU #71M are not at an impasse We believe that continuing to meet would be productive to- wards the end of arnvmg at an agreement March 20, 1989 On March 20, 1989, Respondent wrote the Union Regarding your letter of March 11, 1989, please be advised that Chas P Young Houston [the "Company"] and GCU Local 71M are at impasse and have been for some time As the Company ex- plained to you on March 8, 1989, the Company is not available on March 30th or 31st Moreover, unless the Union is willing to negotiate under an ex- tension of the February 23, 1989 agreement, no useful purpose, in our opinion, will be served by an eleventh hour meeting Absent an agreed extension, the February 23, 1989 agreement shall expire on March 31, 1989 At that time, the Company shall discontinue all pay- ments to the Union Health and Welfare and Pension funds March 27, 1989 Raymond Boland of the Union testified that he phoned Respondent Executive Vice President Yarochowicz on March 23 On cross examination Boland corrected his earlier testimony by admitting that he called Yar- ochowicz on March 27 And asked him if he would if he would be available to meet on the 30th 31st, and asked if he would he would be willing to meet without counsel since he indicated he couldn't be there Yarochowicz called called me back and told me that, no, they would not meet without Mr Dickie, and that, in any event, if they would meet at all they had to have an extension of the agree- ment of February 23rd Q Was a time frame mentioned at all as to how much of an extension the Company wished if there was to be a meeting? A Thirty days On March 27 Respondent sent the following letter to bargaining unit employees Effective April 1, 1989, the Company shall cease making contributions to the CGIU—Employee Re- tirement Fund and the GCU No 71-M Commercial Printing Health Care Fund If you remain at work on a full-time basis, you will be eligible to participate in the Company's ben- efit plans as follows Medical/Dental, Basic Life and AD&D, Personal Accident, Long Term Dis- ability and Retirement Income Contact Chuck Mitchell if you wish to be a participant in these plans You must apply for these benefits no later than April 27, 1989 Charles Mitchell testified that he met with each em- ployee in the bargaining unit after he mailed the above letter and before April 27, and explained to each employ- ee the employee's options and potential costs Mitchell admitted that the above-mentioned plans would result in costs to each participating employee whereas the GCIU programs had all been paid by the Respondent March 31, 1989 Raymond Boland testified On March the 31st I contacted Mr Yarochowicz again, and asked him if we could set up a meeting for the 3rd and 4th of April, and he he told me that they needed an extension of the agreement for 30 days before they could meet I suggested to him that we could meet on a day-to-day basis rather than making that kind of commitment, and I indi- cated to him that I said to him that the Union could not commit itself to a 30-day extension He responded that the Company had to have the 30-day extension before they would meet Q All right, sir In fact, from March the 8th until today, have there been any other bargaining ses- sions between the parties as far as you know? A No, there haven't Findings The record shows that Respondent's February 13, 1989 notice to employees in the bargaining unit encom- passed by the last collective-bargaining agreement be- tween Respondent and the Umon, involved terms and conditions of employment That notice effected changes in the terms and conditions as expressed in that last col- 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lective-bargaining agreement including, among others, wages, assigned departments, work duties, employee ben- efits, overtime work, hours of work, pay for temporary assignments, vacations, holiday entitlement, jury duty, lay off bumping rights, apprentice program, enforcement policy, tardiness and absentee rules, time cards, stealing, manning, and other rules Section 8(a)(5) of the National Labor Relations Act, 29 U S C Sec 158(a)(5), makes it an unfair labor practice for an employer "to refuse to bargain col- lectively with the representatives of his employees" Until the parties bargain to an impasse, an employ- er's unilateral change in the terms and conditions of employment constitutes a refusal to bargain [Case citations omitted ] An employer must maintain the status quo after the expiration of the collective bar- gaining agreement until a new agreement is reached or until the parties bargain in good faith to impasse [Case citation omitted ] Where, as in this case, an impasse is reached, "the employer may unilaterally impose changes in the terms of employment if the changes were reasonably comprehended in the terms of its contract offers to the union" [Case cita- tion omitted ] Unilateral changes not comprehended in pre-impasse proposals constitute a refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act [Case citation omitted ] Southwest Forest Indus- tries v NLRB, 841 F 2d 270, 273 (9th Cir 1988) The above-cited rule from Southwest Forest, illustrates several issues present in this case In consideration of that rule I shall first consider whether the changes an- nounced by Respondent to its employees on February 13, were changes which "were reasonably comprehend- ed in the terms of its contract offers to the Union," in view of the rule's pronouncement that that particular condition must be met even if the parties are at impasse Secondly, I shall consider whether the parties were at impasse before February 13 As to the question of whether Respondent ever made an offer to the Union which incorporated the provisions included in the notice to unit employees dated February 13, 1989, the record evidence shows Respondent did not make a written contract proposal to the Union and the verbal proposals made by Respond- ent included only a few of the items contained in their memo to employees dated February 13, 1989 Clarence Meyer, in his testimony reviewed the Re- spondent's February 13, 1989 memo to employees Meyers recalled that only two of the items contained in that memo were ever brought up by Respondent during the negotiation sessions he attended Meyers recalled dis- cussions including the staggered workweek (item 7 F of the memo), and vacations (items 9 B, C, etc) The complete record showed that those two items mentioned by Clarence Meyers were the only two items from the February 13 notice that were presented to the Union by Respondent Respondent's vice president, Charles Mitchell, testified that the Respondent did propose going to a "staggered 4- day work week" Mitchell admitted that there were ne- gotiations over that Issue and that the Union countered with a modification of the staggered workweek Howev- er, Respondent found that counterproposal unacceptable Mitchell testified that Respondent also proposed a con- tract change which would require unit employees to take their vacations to some degree during the May 1 to Sep- : tember 30 timeframe as set out in the February 13 memo Mitchell testified that the Union agreed to that particular company proposal The full record shows that Respondent did not offer the Union a contract which included the items imple- mented on February 13 with the exception of the items mentioned above Respondent, in its brief, argues that it negotiated with the Union as early as the negotiation session of October 14, 1988, regardmg the reduced wages included in its February 13 notice However, an examination of the record fails to support Respondent's argument What ac- tually occurred on October 14 was that the Union made a contract proposal which included a 10-percent pay in- crease Yarochowicz testified that he responded to the Union to the effect that such a pay increase could not be agreed to because of Respondent's financial condition While the above does show some discussion over the general issue of wages, there was no showing that Re- spondent ever presented the Umon with proposed pay cuts along the lines of the February 13 memo Therefore, on this particular question, the record evi- dence, even when considered in the light most favorable to Respondent by crediting the testimony of agents of Respondent, Mitchell and Yarochowicz, shows that Re- spondent never did make an offer to the Union which in- cluded the items included in its February 13, 1989 change in terms and conditions of employment for unit employees In view of my finding that Respondent's contract offers did not include the bulk of the matters included in , its February 13 memo to employees, I find that Respond- ent refused to bargain with the Union in accord with Section 8(a)(1) and (5) of the Act In Southwest Forest, the Employer notified the Union that it intended to implement unspecified changes some 7 days before those changes were implemented The court discussed that matter, Southwest contends, however, that the Union failed to respond to any of its bargaining overtures after receiving notice of the changes and that this failure resulted in a waiver of the Union's statutory right to bargain prior to implementation The Union cannot be found to have waived its bargaining rights unless the notice it received provided ade- quate time to consider and respond to Southwest's proposals Southwest Forest Industries v NLRB, 841 F 2d 270, 273 (9th Cir 1988) I find that the Union did not waive its bargammg rights by failing to demand negotiations over Respond- , ent's planned umlateral changes Respondent's February 8 letter to the Union did not give the Union adequate notice before the changes were implemented on Febru- ary 13 See also Cisco Trucking Co, 289 NLRB 1399 CHAS P YOUNG ,HOUSTON 969 (1988), cf NLRB v Tex-Tan, Inc , 318 F 2d 472 (1963), which was cited by Respondent, but where, unlike here, the Employer actually bargained with the Union over the items involved in the alleged unilateral changes Here, Respondent notified the Union some 5 days before implementation of its intent to make unspecified unilateral changes m working conditions Moreover, I find that the evidence does not support Respondent's claim that the Union waived its bargaining rights when the Union agreed with Respondent on Feb- ruary 23 to permit Respondent to continue to impose the February 13 changes The evidence shows that agree- ment was a temporary one made to permit the parties to continue negotiations until March 31, 1989 As to the question of whether there was a bargammg impasse, the record shows that Respondent continually insisted that the Union accept its proposal to extend the contract to July 31, 1989 From time to time dunng ne- gotiations Respondent insisted on a few other items to be included in the extended contract including a staggered workweek, revised posting of vacations, and a limited period for the taking of all or a portion of each employ- ee's vacation However, Respondent continually refused to engage in item by item negotiations As shown above Respondent refused to negotiate regarding the Union's contract proposals The Board has long held that an impasse occurs "after good faith negotiations have exhausted the prospects of concluding an agreement" Employer Implemented changes in terms and conditions of employment consistent with preimpasse proposals may be unilaterally instituted only after an impasse has occurred As the Board has held with court approval Whether a bargaining impasse exists is a matter of judgment The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the con- temporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse m bargammg existed Sierra Publishing , 291 NLRB 552 (1988) Despite the fact that Respondent insisted that its offer to extend the collective-bargaining agreement to July 31, 1989, was the best offer the Union could hope to receive, the Union is, in accordance with law, entitled to reject that judgment and engage in collective bargammg over all mandatory subjects of bargaimng Respondent by continually refusing to bargain on individual items, pre- cluded the Union from negotiating over terms and condi- tions of employment In effect Respondent's offer was a rejection of the Union's contractual and statutory right to negotiate changes in the collective-bargaining agreement Re- spondent told the Union that, despite the Umon's timely notice to negotiate changes in the last agreement, Re- spondent would do nothing more than agree to an exten- sion of the terms and conditions of that agreement By taking the position that it would not negotiate in view of the Union's refusal to agree to its proposed ex- tension of the contract, Respondent did not effect an im- passe Rather Respondent prevented negotiations toward agreement Respondent cited NLRB v H & H Pretzel Go, 831 F 2d 650 (6th Cir 1987), to support its argument that an impasse existed before February 13 However, the court in H & H found, and the evidence proved, that the par- ties had engaged in give and take bargaining Unfortu- nately, such was not the case here Moreover, as to the contract extension issue, the record shows that the parties continued to negotiate on that issue and the testimony of Clarence Meyer, which I credit, shows that during the negotiation session of March 8, 1989, the Union offered a counterproposal re- garding contract extension On the basis of that testimo- ny, and the entire record, I find that the parties were not at impasse on the issue of contract extension The record shows that Respondent continually refused to negotiate over the written proposals of the Union and, as to the bulk of the items contained in its February 13 memo, Respondent did not advise the Union of those matters until those items were implemented The February 13 memo evidenced unilateral action by Respondent In NLRB v Cauthorne, 691 F 2d 1023 (D C Cir 1982), the court held that if, following an employer's ille- gal unilateral action, the parties bargained to impasse, restoration of the status quo may not be ordered beyond the date impasse is reached The court in Southwest Forest distinguished Cauthorne as follows, The court distinguished the facts in Cauthorne from the "usual case" in which "no substantial bargaining has occurred between the parties after the employ- er's unilateral change," and in which "consequently the typical make-whole order runs from the date of the unilateral change until the employer and union negotiate a new agreement or reach an impasse" Id at 1025 Cauthorne only serves to support the Board's Order here, for this is the "usual case" Southwest, and the Union engaged m no substantial bargaimng following the unilateral changes and thus could not have reached an impasse Southwest Forest Industries v NLRB, 841 F 2d 270, 274 (9th Cir 1988) Here, like Southwest Forest, we have the "usual case" Although the parties met, negotiated, and actually reached an agreement to bargain, the record shows there was no impasse after February 13 In fact, although the Union agreed to a number of Respondent's February 13 unilateral changes, Respondent rejected the Union's offer on the grounds that it was not substantial enough An employer may not establish an impasse by insisting on continuation of working conditions which it unlawfully Implemented Lehigh Portland Cement Go, 287 NLRB 978 (1988) After meeting with the Union on March 8, 1989, Re- spondent continually refused to meet and bargain unless the Union first agreed to extend the February 23 agree- 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment beyond its March 31 expiration date In view of my findings herein it is apparent that Respondent had a con- tinuing bargaining obligation By msisting that it would not bargain absent the Union agreeing to permit Re- spondent to continue to enforce unlawful changes in working conditions, Respondent engaged in additional violative action CONCLUSIONS OF LAW 1 Fidelity Printing Company, Inc , d/b/a Chas P Young Houston, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Gulf Coast Printing and Graphic Communications Union Local 71M, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 The Union has been at times matenal, the exclusive representative for the purposes of collective bargaining of the following employees all pressmen, apprentices and press assistants en- gaged in operating or assistmg in the operation of the Employer's gravure, offset and letterpress print- ing presses and all other printing presses operated by the Employer, irrespective of the method or process of printing utilized, all the Employer's em- ployees engaged in the job classifications utilized in the preparation of offset plates, including but not limited to offset camera, dark room, stnppmg, layout, etching, dot etching, opaqumg and offset platemalung, and all accretions to the bargaining unit as herembefore defined, mcludmg but not limit- ed to new or related processes of printing or substi- tutions therefore connected with the operation of the Employer's offset printing plates 4 Respondent, by unilaterally implementing terms and conditions of employment among its employees in the above-described bargammg umt on February 13, 1989, without having first proposed those terms and conditions of employment to the Union during contract negotia- tions, at a time when it and the Union were not at a bar- gaining impasse, and by conditiomng future negotiations on the Union agreeing to extend an agreement permitting Respondent to continue and apply its unilaterally imple- mented terms and conditions of employment, violated Section 8(a)(1) and (5) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act I shall recommend that Respondent be ordered to re- store to status quo conditions that existed before its uni- lateral changes in terms and conditions of employment on February 13, 1989, that it be ordered to meet and bar- gain in good faith with the Union, and that it make whole all employees who suffered financial losses as a result of the unilateral changes Respondent's liability which requires it to compensate employees for reduced wages, and actual losses because of reduced and eliminat- ed benefits including, where applicable, expenses includ- ing medical or hospital expenses that would have been paid but for Respondent's unlawful action, shall run from the date of the unilateral changes until the terms and conditions are restored in accordance with the law Storer Communications, 294 NLRB 1056 (1989), South- west Forest Industries, 278 NLRB 228 (1986), enfd 841 F 2d 270 (9th Or 1988) Backpay shall be computed as described in F W Woolworth Go, 90 NLRB 289 (1950), with interest as described in New Horizons for the Retard- ed, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 2 ORDER The Respondent, Fidelity Printing Company, Inc , d/b/a Chas P Young Houston, Houston, Texas, its offi- cers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with Gulf Coast Printing and Graphic Communications Union Local 71M, AFL-CIO by unilaterally implementing terms and conditions of em- ployment and by refusing to bargain unless the Union extend an agreement permitting it to continue to impose illegally implemented terms and conditions of employ- ment (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Recognize and bargain in good faith with Gulf Coast Printing and Graphic Communications Union Local 71M, AFL-CIO regarding terms and conditions of employment of unit employees (b) Restore unit employees' terms and conditions of employment as they existed before the February 13, 1989 changes and continue them in effect unless or until a new agreement is reached or an impasse is reached in bargain- ing (c) Make employees whole for the losses they incurred as a result of the February 13, 1989 unilateral changes in employees' terms and conditions of employment, in the manner set forth in this decision (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, and time- cards, personnel records, reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order 2 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 CHAS P YOUNG HOUSTON, 971 (e) Post at its facility in Houston, Texas, copies of the attached notice marked "Appendix " 3 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's au- 3 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" thonzed representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customanly posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other matenal (0 Notify the Regional Director in wntmg within 20 days from the date of this Order what steps the Re- spondent has taken to comply