Coastal Cargo Co.

COASTAL CARGO CO. 353 NLRB No. 86 819 Coastal Cargo Company, Inc. and International Brotherhood of Teamsters, Local Union No. 270. Case 15–CA–18215 January 30, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On September 29, 2008, Administrative Law Judge Michael A. Marcionese issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings, and conclusions1 and to adopt the recommended Order.2 1 The General Counsel charged the Respondent with unilaterally in- creasing the wage rate of unit employees without affording the Union notice and an opportunity to bargain in violation of Sec. 8(a)(5). The Respondent contends, inter alia, that the unilateral wage increase was lawful because the Union failed timely to request bargaining despite adequate notice. An independent waiver-by-inaction defense is un- available if the parties are engaged in negotiations for a collective- bargaining agreement. See generally Bottom Line Enterprises, 302 NLRB 373 (1991); RBE Electronics of S.D., 320 NLRB 80 (1995). Although the judge discussed the status of negotiations, he did not determine if negotiations were in progress as contemplated in Bottom Line, or how the status of negotiations was affected by the Respon- dent’s earlier unlawful declaration of impasse and implementation of new terms of employment in 2005. See Coastal Cargo Co., 348 NLRB 664 (2006). We find it unnecessary to address these issues because we agree with the judge that the Respondent’s waiver defense lacks merit. For the reasons stated by the judge, we reject the Respondent’s con- tention that its letter of October 18, 2005, regarding wages provided adequate notice to the Union. Assuming, arguendo, that the Respon- dent’s letter of September 26, 2006, did provide adequate notice, the Union promptly objected to the Respondent’s action. See, e.g., Inter- mountain Rural Electric Assn., 305 NLRB 783 (1991). In assessing the adequacy of the Union’s objection, we further note that the September 26 letter was sent against the backdrop of the Respondent’s prior unlawful unilateral changes, including cuts in wages and benefits. See Coastal Cargo Co., supra. Under the circumstances, we find that the Union did not waive its right to bargain over the proposed wage rate increase. Member Schaumber adheres to his partial dissent in Port Printing Ad & Specialties, 351 NLRB 1269, 1272–1273 (2007), a case cited by the judge. In that case, Member Schaumber found exigent circum- stances sufficient to excuse bargaining over staffing decisions imple- mented by the employer within days after Hurricane Rita devastated the surrounding area. In so doing, he relied upon the magnitude of damage caused by Hurricane Rita and the timing of the employer’s actions. Here, there are no such exigent circumstances. 2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Coastal Cargo Company, Inc., New Orleans, Louisiana, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. Joseph A. Hoffman Jr., Esq. and Fernando de Juan, Esq., for the General Counsel. Peyton S. Irby Jr., Esq., for the Respondent. Louis L. Robein Jr., Esq., for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in New Orleans, Louisiana, on July 8, 2008. The Union (International Brotherhood of Teamsters, Local Union 270) filed the initial unfair labor practice charge on February 28, 2007, and amended it three times, on April 27, and June 7, 2007, and March 18, 2008. Based upon the charge, as amended, the General Counsel issued the complaint on March 28, 2008, alleging that Coastal Cargo, Inc. (the Respondent) violated Section 8(a)(1) and (5) of the Act by increasing the wages of unit employees on October 2, 2006, without affording the Un- ion adequate notice and an opportunity to bargain about this change, and/or without first bargaining to a good-faith impasse. On April 7, 2008, the Respondent filed its answer to the complaint, admitting that it increased its employees’ wages on October 2, 2006, but denying that it committed any unfair labor practice by doing so. Although it raised no affirmative defenses in the answer, the Respondent argued at the hearing and on brief that it was permitted to act unilaterally because of exigent circumstances beyond its control. The Respondent also argued that the Union had waived any right to bargain about this wage increase by agreeing in advance that the Respondent could increase wage rates in response to labor market conditions fol- lowing Hurricane Katrina. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and Respondent,1 I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, engaged in the longshoreman and stevedoring industry at the Port of New Orleans in Louisi- ana, annually derives gross revenues in excess of $500,000 for decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 1 Counsel for the General Counsel and Respondent filed reply briefs with motions for leave to do so. Both motions indicated that opposing counsel did not object to the filing of reply briefs. In the absence of any objection, I have received the General Counsel’s and the Respondent’s reply briefs and considered the arguments made there in reaching my decision. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820 the transportation of freight from the State of Louisiana directly to points outside the State of Louisiana. The Respondent admits that it also performs services valued in excess of $50,000 in States other than Louisiana and that it derives gross revenues in excess of $500,000 for the transportation of freight in interstate commerce under arrangements with and as agent for various common carriers, each of which operates between various States of the United States. Based on its operations, I find that the Respondent is an essential link in the transportation of freight in interstate commerce and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent admitted that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES As noted above, the Respondent admitted increasing its em- ployees’ wages on October 2, 2006. There is also no dispute that the Respondent and the Union have been parties to a col- lective-bargaining relationship since about 1985, that the most recent collective-bargaining agreement expired on September 30, 2005, and that the parties have been negotiating for a new agreement since before that date, without success.2 The parties’ negotiations have already resulted in one Board Order finding that the Respondent violated Section 8(a)(1) and (5) of the Act, about October 17, 2005, when it implemented its “last, best and final offer” in the absence of a good-faith impasse. Coastal Cargo Co., 348 NLRB 664 (2006). The Respondent was or- dered to rescind any changes made to employees’ terms and conditions of employment as a result of the implementation of its contract proposal, to refrain from making any other changes in employees’ wages, hours, and terms and conditions of em- ployment, and to bargain in good faith for a new collective- bargaining agreement. The charge in this case was filed by the Union during the compliance phase of the prior case.3 On October 18, 2005, the day after unlawfully implementing its contract proposal, which took away many benefits that ex- isted under the last contract, the Respondent’s executive vice president and chief operating officer, David Mannella, hand- delivered the following letter to the Union’s chief negotiator, Business Manager David Negrotto: As we discussed during the time we were trying to re- store operations after Hurricane Katrina and in negotia- tions, it may be necessary to pay in excess of the wage rate. As you were advised, if that unusual condition arises, the roster employees will receive equal to or excess of any rate paid to casual employees. If you have any question, please advise. Negrotto did not respond to the letter at that time. He testi- fied that the only time he and Mannella “discussed” wages 2 The unit represented by the Union, as defined in the collective- bargaining agreement, consists of “all checkers, lift drivers, loaders, flagmen, etc, but excluding Company Supervisory Clerks.” Although the agreement established separate wage rates for roster and casual employees, the parties do not agree on the inclusion of casuals in the unit. This is an issue I need not address here. 3 Neither the General Counsel nor the Respondent has filed for en- forcement or review of the Board’s Order in the court of appeals. prior to receiving this letter was in the context of contract nego- tiations, when the parties were discussing the rate to be in- cluded in the contract. Negrotto denied that there was any dis- cussion about raising the wage rate specifically as a result of Katrina. At most, according to Negrotto, he and Mannella dis- cussed generally the impact of Katrina on themselves and peo- ple in the New Orleans area. This was essentially trading “war stories.” Negrotto testified that he never agreed that the Re- spondent could raise wages unilaterally because of the hurri- cane. Mannella had a somewhat different recollection of events preceding this letter. According to Mannella, he and Negrotto had “numerous discussions,” post-Katrina, before he hand- delivered the October 18 letter. Mannella testified that a com- mon theme throughout these “discussions” was the effect of the hurricane on the supply of labor in New Orleans, such as the high wages being paid even to fast-food workers because of the shortage of workers. Mannella testified that Negrotto “under- stood” what he was talking about. However, he did not testify to any specific statements made by Negrotto that led him to this belief. On cross-examination, Mannella admitted that Negrotto did not explicitly agree that the Respondent could unilaterally raise wages. He nevertheless insisted that Negrotto “under- stood” that the Respondent might have to do this. Negrotto testified that he heard nothing further from the Re- spondent on this subject until he received another letter from Mannella, dated September 26, 2006, almost 1-year later.4 In this letter, Mannella advised the Union: In accordance with our letter to you of October 18, 2005, the current labor market requires Coastal to offer in- creased wages to attract qualified lift operators. As stated previously, roster employees will receive no less than any casual employee. If you have any questions or comments, please advise. Negrotto denied having any conversation with Mannella before receiving this letter. Mannella testified that he spoke to Ne- grotto a couple days before sending the letter. According to Mannella, he told Negrotto that he was going to be providing this letter to the Union, which he described as “confirmation” that, due to labor market conditions, the Respondent was going to increase the wage rate. Again, Mannella claims that Negrotto “understood” that and voiced no objection. Mannella admitted, however, that he never specifically told Negrotto the specific amount of the increase, which employees would be receiving it and when it would go into effect. The only thing he recalled telling Negrotto was that the new rate for roster employees would be higher than that for casuals. This time, the Union responded to Mannella’s letter. On Sep- tember 29, 2006, Negrotto wrote to Mannella as follows: Please be advised that Teamsters Local Union 270 does not recognize your letter of October 18, 2005, be- 4 There is no dispute that the parties did not have any negotiation sessions in the interim, since the Respondent implemented its contract proposal. The parties instead were focused on the investigation and litigation of the prior unfair labor practice charge. COASTAL CARGO CO. 821 cause your current contract is in appeal with the National Labor Relations Board. Additionally, be advised that if there is a change with the current Collective Bargaining Agreement between [the Respondent and the Union] a charge will be filed with the National Labor Relations Board. Mannella testified that he was surprised by the Union’s ob- jection to his letter because he thought he had an agreement to the wage increase. Mannella sent Negrotto a letter on October 3, 2006, expressing his surprise, stating that Negrotto “ac- knowledged and did not object to our October 18, 2005 letter and indicated verbally your agreement to our September 26 letter.” Mannella went on to inform the Union that it was hav- ing difficulty attracting qualified lift operators and would not be able to continue in business without a higher wage. When Ne- grotto did not respond to the October 3 letter, Mannella sent another one, on October 5, stating that this issue is causing Coastal to not be able to compete for skilled labor. We do not want to have to turn away customers due to inability to perform the work. Please give consideration to my earlier letter as the roster employees will benefit from this option. While the parties were exchanging this latest correspon- dence, the Board issued its order in the prior case. By the time Negrotto responded to Mannella’s October 3 and 5, 2006 let- ters, he had received the Board’s order. On October 5, he wrote to Mannella advising him that he had received the order and enclosing a copy for Mannella. Negrotto referred to that portion of the Board’s decision stating that the Respondent could not unilaterally make changes to employee’s wages, etc. He con- cluded the letter with the following: While I understand your position, it is imperative that both parties adhere to the original contract. As stated in my previous letter, any change to the current Collective Bargaining Agreement between [the Respondent and the Union] will result in a charge with the National Labor Re- lations Board. Upon receipt of this letter, we stand ready to negotiate any terms and conditions of the current contract. After exchanging further correspondence, the parties ulti- mately met for the first time since the prior unfair labor practice on October 19, 2006. At that meeting, the Respondent gave the Union a letter stating that it had “rescinded any changes made to employees’ wages, hours, and other terms and conditions of employment as reflected in our October 13, 2005 contract pro- posal, that were implemented on or after October 17, 2005.” According to Negrotto, the parties met for about 1 hour and discussed what the “status quo” should be in terms of roster size.5 No contract proposals were exchanged and there was no discussion of the October 2 wage increase. Mannella admitted 5 Before Hurricane Katrina, there were about 23 roster employees. By October 2006, there were only nine employees on the roster. The Respondent had been supplementing its work crews with casual em- ployees who did not receive any benefits under the contract and were not covered by the grievance procedure. that he did not specifically tell the Union on October 19, 2006, that the Respondent had already raised employees’ wages, but he believed the Union was aware of this.6 Negrotto testified that he did not find out the exact amount of the wage increase until the parties last meeting on June 23, 2008, although he had heard from at least one unit employee that Respondent was paying higher wages that were “all over the board.” Negrotto acknowledged that he never specifically asked the Respondent what they were paying the employees, assuming he would learn this through the General Counsel’s compliance officer. Mannella admitted raising the rate for roster employees from $13.25 to $14.50 an hour on October 2, 2006. The Respondent also raised the hourly rate it paid casual employees I and II from the $9 and $10.25 rate in the last contract to $10 and $12, respectively. The Respondent attempted to show that the Union had agreed to this change by citing a contract proposal made at the June 23, 2008 meeting in which the Union was seeking the same rate for roster employees as part of a new collective- bargaining agreement. I rejected this proffer because the pur- pose of the meeting was as much to try to settle the instant case as it was to negotiate a contract. I also ruled that any proposal the Union made after the change was irrelevant to whether the change itself, more than 8 months earlier, was unlawful. The above evidence does not establish, as the Respondent argues, that Negrotto or the Union “agreed” with the Respon- dent’s proposal to raise the wage rate of unit employees on October 2, 2006. Although there is no dispute that Negrotto did not respond to the October 18, 2005 letter, the letter made no specific proposal regarding any change. At most, it advised the Union of the possibility that a wage increase might be needed in the future. Silence in the face of such a notice was not acqui- escence in any future wage increase, regardless of its amount and timing. As the Board and courts have historically held, any waiver by a union of the right to bargain about wages or any other mandatory subject of bargaining must be “clear and un- mistakable,” and will not be lightly inferred. Metropolitan Edi- son Co. v. NLRB, 460 U.S. 693, 708 (1983); Georgia Power Co., 325 NLRB 420 (1998). See also Melody Toyota, 325 NLRB 846, 848 (1998). Here, the Respondent sent the Union this letter the day after it unlawfully implemented its last con- tract proposal, which action the Union protested by filing unfair labor practice charges. Clearly, under the circumstances, I can not find that the Union acquiesced in giving the Respondent carte blanche to raise employees’ wages whenever it wanted in any amount. Mannella’s testimony, that Negrotto “agreed” to the wage increase before the September 26, 2006 letter was sent, is not credible. Even Mannella acknowledged that Negrotto never explicitly agreed to the wage increase that was implemented. The most that can be said of Mannella’s testimony is that he believed that Negrotto “understood” the labor market condi- 6 The parties held several negotiation sessions between October 19, 2006, and the filing of the instant charge in February 2007, without reaching any agreement on wages or a contract. The last meeting oc- curred shortly before the hearing, on June 23, 2008, during which the parties discussed settlement of the unfair labor practice charge in addi- tion to contract terms. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822 tions affecting the Respondent’s operations and was sympa- thetic to the need to attract and retain employees. In fact, Ne- grotto said as much in his October 5, 2006 letter, when he ob- jected to any unilateral change. What Negrotto proposed in- stead is that the parties resume negotiations and address the Respondent’s concerns as part of an overall contract settlement. This is hardly an “agreement” that Respondent could raise wages by $1.25 an hour on October 2, 2006. Having rejected the Respondent’s “waiver by agreement” ar- gument, I must address the more substantial defense raised by the Respondent, i.e., “exigent circumstances.” In Bottom Line Enterprises,7 the Board held that, “when parties are engaged in negotiations for a collective-bargaining agreement, an em- ployer’s obligation to refrain from unilateral changes extends beyond the mere duty to give notice and an opportunity to bar- gain about a particular subject matter. It encompasses a duty to refrain from implementation at all, unless and until an overall impasse has been reached in bargaining for an agreement as a whole.” The Board recognized only two exceptions to this rule, i.e., delay or avoidance of bargaining by the Union; or “eco- nomic exigencies that compel prompt action.” Id. The Board has consistently maintained a narrow view of the latter excep- tion, imposing a heavy burden on an employer that seeks to avoid bargaining because of “economic exigency.” This excep- tion has, thus, been limited to “extraordinary events which are an unforeseen occurrence, having a major economic effect re- quiring the company to take immediate action. . . . Absent a dire financial emergency, the Board has held that economic events such as loss of significant accounts or contracts, opera- tion at a competitive disadvantage, or supply shortages do not justify unilateral action.” RBE Electronics of S.D., 320 NLRB 80, 81 (1995), and cases cited therein (citations omitted). Ac- cord: Harmon Auto Glass, 352 NLRB 152, 154–155 (2008); Pleasantview Nursing Home, Inc., 335 NLRB 961, 962–963 (2001), enfd. in rel. part 351 F.3d 747, 755–756 (6th Cir. 2003). The Board, in RBE Electronics, supra, further refined the “economic exigency” exception to the general duty to bargain by holding that there may be other economic exigencies that, although not sufficiently compelling to excuse bargaining alto- gether, would permit an employer to take action without an overall impasse in negotiations. In such circumstances, an em- ployer will satisfy its bargaining obligation by providing ade- quate notice to the union and an opportunity to bargain over the particular subject matter. Bargaining in good faith in such time sensitive circumstances need not be protracted. (320 NLRB at 81–82.) Even in these circumstances, the Board still requires the employer to prove that its proposed changes are “com- pelled” by external events that are beyond the employer’s con- trol or not reasonably foreseeable. The exception is limited to situations where “time is of the essence.” Id. In Port Printing AD & Specialties,8 the Board applied the above principals to a case where an employer had unilaterally laid-off employees and thereafter used nonbargaining unit em- ployees and supervisors to perform bargaining unit work. The layoff at issue occurred when the employer was forced to close 7 302 NLRB 373 (1991), enfd. 15 F.3d 1087 (9th Cir. 1994). 8 351 NLRB 1269 (2007). its facility by a mandatory evacuation order from the mayor due to the impending arrival of Hurricane Rita, Katrina’s sister in wreaking havoc and destruction. About a week later, when the Respondent resumed operations, it used the nonunit employees to perform the work done by laid-off unit employees. The Board found that the hurricane and evacuation order were the type of economic exigency recognized in Bottom Line and its progeny and excused the employer’s unilateral action in laying off the employees. However, a majority of the Board found that the decision to use nonunit employees to perform unit work was not excused by the hurricane. The Board found that the need for immediate decisionmaking created by the hurricane was over by the time the employer made this decision. The employer had sufficient time to bargain over this decision but failed to do so. The Board thus found a violation of the Act. In Pleasantview Nursing Home, supra, the Board dealt with a situation similar to that here. In the midst of negotiations for a new collective-bargaining agreement, the employer unilaterally raised the wages of certain employees in the unit, claiming that it was unable to attract new recruits due to a tight labor market. The Board rejected the employer’s economic exigency defense, finding that it was not the type of extraordinary event justifying unilateral action. Nor was the employer entitled to rely upon the lesser bargaining obligation recognized in RBE Electronics, supra. As the Board found, the employer failed to show that “time was of the essence” with respect to its employment situa- tion, and that “prompt action” was “compelled independent of the overall ongoing bargaining process. (335 NLRB at 962.) In this case, Mannella testified that the Respondent was “compelled” to increase the wage rate of its roster employees on October 2, 2006, because of the labor market conditions in New Orleans post-Hurricane Katrina. According to Mannella, the Respondent’s roster had been reduced by half as a result of employees not returning to New Orleans following the storm. Mannella also testified that two roster employees chose to leave for higher pay in the construction industry. However, when pressed for specifics, Mannella was unable to identify a single employee who left for higher pay. In addition, although the Respondent’s roster had been depleted since the storm, and despite requests from the Union in negotiations that Respon- dent increase the size of the roster, the Respondent chose not to add any casual employees to the roster. Although the labor shortage in New Orleans following Katrina is documented by Labor Department reports placed in evidence by the Respondent, Mannella admitted this had been a problem since immediately after the storm. Nevertheless, the Respondent waited more than a year to increase the wage rate to address this shortage. According to Mannella, the Respon- dent had been “monitoring” labor conditions since the October 18, 2005 letter to the Union, but only decided to raise its wage rates a few days before September 26, 2006, the date it notified the Union that “the current labor market requires Coastal to offer increased wages to attract qualified lift operators.” When pressed on cross-examination, Mannella could not point to a specific event that dictated this decision at that time. The Respondent also relies on the testimony of its Hiring Superintendent John Duke and General Manager Don Zemo to establish the need to raise wages. However, as with Mannella, COASTAL CARGO CO. 823 this testimony is devoid of any specifics that would explain why the Respondent had to act unilaterally on October 2, 2006. Duke testified that roster employees had been coming to him threatening to leave for higher pay since soon after Hurricane Katrina. He cited the higher pay available at two competitors in the port, one an ILA-represented company and the other a nounion one. But both employers had historically paid higher wages than the Respondent, even before the storm. Duke and Zemo also testified that the Respondent attempted to address the labor shortage by offering forklift training to new hires, presumably casuals, but that the individuals receiving this train- ing would leave for higher pay in construction once they got their OSHA certification. Again, this was an ongoing problem which started with the first class of trainees in late 2005. As with Mannella, when pressed to identify a single employee who quit for higher pay, Duke was unable to do so. Zemo testified that he was aware of the employees’ concern about pay from reports he received from Duke, yet he also could not cite any specifics as to employee and date. What Zemo did acknowl- edge is that the Respondent’s management had been discussing an increase in the wage rate for roster employees since mid- 2006, but did not make a decision to make a change until late September. When asked if the date chosen for the increase, October 2, was a “magic date,” Zemo said it was not. Zemo candidly testified that it would not have made a difference if the rate was increased on September 2 or November 2, 2006. Having considered the evidence offered by the Respondent, I conclude that the Respondent has not met its heavy burden of proof that “exigent circumstances” required the Respondent to act unilaterally. As is clear from the above recitation of the evidence, there was no extraordinary unforeseen event in Sep- tember 2006 that required immediate action. The extraordinary event here, as in Port Printing AD & Specialties, supra, was the hurricane itself. But that occurred more than a year before the Respondent took action. Respondent’s own witnesses acknowl- edged that the labor shortage was an ongoing problem for that whole period but never once did the Respondent approach the Union with a specific proposal to increase wages. In fact, ac- cording to Zemo, Respondent had been considering a wage increase since June or July 2006, yet it never sought the Un- ion’s input on such a matter of critical concern to the employ- ees it represented. Under these circumstances, the Respondent was not privileged to act unilaterally and change employees’ wages outside the process of collective bargaining. Even considering the Respondent’s actions under the lesser standard of RBE Electronics, supra, I find that the Respondent has not met its burden. The Respondent has not shown here that “time was of the essence” in raising its roster employees’ rates. In fact, according to Zemo, the Respondent could have waited until November 2, and it would not have made a difference. So, why not bargain with the Union before implementing the change? Even if the Respondent had shown that it faced the type of exigent circumstances that would permit a more limited bargaining obligation, it certainly did not satisfy even that lower standard. See Pleasantview Nursing Home, 335 NLRB at 963. The Respondent gave the Union no notice before imple- menting the change regarding the amount of the increase it was proposing or even when it would go into effect. Moreover, the Respondent went ahead and implemented the increase on Octo- ber 2, in the face of the Union’s objection and demand for bar- gaining. The Respondent’s action also coincided with an order from the Board directing the Respondent to rescind previous changes and to refrain from making any more changes until it bargained in good faith with the Union. Any “negotiations” that may have occurred between October 19, 2006, and June 2008 were tainted by the Respondent’s unilateral action and could not have retroactively cured the violation. Based on the above and the record as a whole, I find that the Respondent increased the wage rate of unit employees on Oc- tober 2, 2006, without providing the Union with adequate no- tice and an opportunity to bargain. Accordingly, I find that the Respondent violated Section 8(a)(1) and (5) of the Act as al- leged in the complaint. CONCLUSION OF LAW By unilaterally increasing the wage rate of unit employees on October 2, 2006, the Respondent has failed and refused to bar- gain collectively with the Union and has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. At a minimum, the Respondent will be ordered once again to refrain from changing the wages, hours, and other terms and conditions of its employees until it has satisfied its statutory bargaining obligation to the Union, to bargain with the Union upon request, and to post a notice to employees. The more difficult aspect of fashioning a remedy here involves how to restore the parties’ relationship to the status quo that existed before the Respondent’s unlawful con- duct. The General Counsel specifically requests an order requiring the Respondent to return the wages of roster employees to the rates set forth in the collective-bargaining agreement that ex- pired in September 2005. According to the General Counsel, this is the only remedy that will restore the Union to the bar- gaining position it held prior to the unlawful conduct, thus, giving it leverage to engage in meaningful bargaining. Such a remedy, however, would reduce employees’ wages by $1.25 an hour. The Respondent objects to such a remedy, arguing that it would surely result in the exodus of the majority of the em- ployees remaining on the roster and leave the Respondent inca- pable of operating its business. Under the Respondent’s view, the parties should start bargaining from the current rate of pay, citing the Union’s June 23 proposal as an acknowledgment that this rate is satisfactory. The problem with the General Counsel’s recommended rem- edy is that, while the Union would gain leverage in bargaining since it could trade the wage increase the Respondent wants for something the Union wants, it would almost surely lead to dis- affection of the employees from the Union. On the other hand, the remedy proposed by the Respondent would essentially leave the Union with nothing left to bargain over, thereby con- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824 tinuing the corrosive effect of the Respondent’s two unfair labor practices. Having considered the matter, I shall adhere to the policy of the Board enunciated in Boise Cascade Corp.: In cases where the Respondent has granted benefits to unit employees unilaterally but on a nondiscriminatory basis, the Board makes clear that, absent a request by the employees’ union to bargain over a particular grant of benefits, the Board’s order is not to be construed as requiring the employer to rescind benefits. When benefits are in the hands of employ- ees and the only unlawfulness in their original grant is that the union was not consulted, it makes sense to leave it at the op- tion of the union whether to leave things as they are or to re- open the subject and bargain over the particular grant. A Board order requiring a change in the status quo to the detri- ment of all the employees would not effectuate the purposes of the Act. 304 NLRB 94, 96 (1991). See also Steel-Fab, Inc., 212 NLRB 363 fn. 1 (1974). Accordingly, I shall recommend that the Respondent be or- dered to rescind the wage increase only if requested to do so by the Union, after it has had an opportunity to consult its mem- bers and the employees it represents as to an appropriate course of action.9 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended10 ORDER The Respondent, Coastal Cargo Company, Inc., New Or- leans, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally changing the wages, hours, or other terms and conditions of employment of its employees in the bargain- ing unit represented by International Brotherhood of Teamsters, Local Union No. 270 (the Union). (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Upon a request from the Union, rescind the wage increase granted to unit employees on October 2, 2006, until such time as the parties have bargained in good faith to an agreement or impasse on the wages to be paid to unit employees. (b) On request, bargain with the Union as the exclusive rep- resentative of the employees in the following appropriate unit 9 The General Counsel requested as part of the remedy a “make whole order.” It is hard to imagine how any employee lost money as a result of the Respondent’s unilateral wage increase. In the absence of such evidence, I shall not recommend the traditional make whole relief for a unilateral change. 10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended 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 purposes. concerning terms and conditions of employment and, if an un- derstanding is reached, embody the understanding in a signed agreement: All checkers, lift drivers, loaders, flagmen, etc. employed at the Respondent’s New Orleans, Louisiana facility excluding Company Supervisory Clerks, guards and supervisors as de- fined in the Act. (c) Within 14 days after service by the Region, post at its fa- cility in New Orleans, Louisiana, copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous 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 material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since October 2, 2006. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 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 Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT unilaterally make changes to your wages, hours, or other terms and conditions of employment without bargaining in good faith to agreement or impasse with your Union, the International Brotherhood of Teamsters, Local Un- ion No. 270. 11 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” COASTAL CARGO CO. 825 WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, upon a request by the Union, rescind the wage in- crease we unlawfully granted you on October 2, 2006, until we are able to bargain in good faith to an agreement or impasse on the subject of wages. WE WILL, upon request, bargain in good faith with your Un- ion concerning your terms and conditions of employment and, if an agreement is reached, embody the understanding in a signed agreement. COASTAL CARGO CO.