Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 81was irrelevant here. Thus, this case was distinguishable fromcases involving entitlement to disability benefits during a strike."The Board in Murphy Oil also held that the "zipper clause" inthe parties' collective-bargaining agreement did not give the respondentthe right to make certain unilateral changes in termsand conditions of employment.The record showed, inter alia, that the respondent unilaterallyimplemented new work rules and changed the method by whichit computed overtime. In rejecting the respondent's contentionthat the "zipper clause" gave it the right to make these changes,the panel found that the zipper clauses at issue here do not purportto affect either party's statutory duty to bargain beforemaking such changes. Rather, the panel pointed out, the normalfunction of such clauses is to maintain the status quo. Furthermore,the evidence of bargaining history and of past practicepertaining to such changes was at best equivocal and did notshow a clear waiver by the union of its right to notice and opportunityto bargain.In Francis J. Fisher, Inc.," the administrative law judge foundthat the respondent violated Sections 8(a)(5) and 8(d) by unilaterallychanging employees' wages and benefits at a time it had notreached an agreement with the union and had not reached impasse.The judge acknowledged that given the respondent's direfmancial circumstances, together with the union's unwillingnessto consider changes of the magnitude proposed by the respondent,there existed the high probability that the parties would infact ultimately have reached impasse. Nevertheless, he found thatthe respondent's decision to make unilateral changes after onlytwo negotiation sessions was premature, particularly where therespondent first delayed negotiations and then sought to compressthem into two meetings during 1 week's time, and whereevidence of the respondent's owner's belief that the employmentconditions set by the collective-bargaining agreement ended withthe agreement's expiration suggested a predetermined plan to setlimits on negotiations.The Board adopted the judge's fmdings that the respondent'sunilateral actions were premature. In doing so, moreover, itoverruled the decision in Bell Transit Co." to the extent that itheld that impasse can be found on the basis of subsequent eventsrather than on the state of negotiations at the time of the unilateralaction and to the effect that an impasse and tentative agreementmay exist simultaneously.61 See slip op. at 3 fn. 3, where the Board agreed with the judge that this case is distinguishablefrom Conoco, Inc., 265 NLRB 819 (1982), enfd. 740 F.2d 811 (10th Cir. 1984), which was supersededin Texaco, Inc., 285 NLRB No. 45 (Aug. 6, 1987).62 289 NLRB No. 104 (Chairman Stephens and Members Johansen and Babson).es 271 NLRB 1272 (1984), enf. denied sub nom. Teamsters Local 175 v. NLRB, 788 F.2d 27 (D.C.Cir. 1986).