NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Area Trade Bindery Co. and Graphic
Communications Union Local 404, Graphic Communications Conference of the
International Brotherhood of Teamsters. Cases 31–CA–26970 and 31–CA–27500
February 29, 2008
DECISION AND ORDER
By Members Liebman and Schaumber
On May 16, 2006, Administrative Law Judge Jay R. Pollack
issued the attached decision. The Respondent
filed exceptions with supporting argument, and the General Counsel and
the Charging Party each filed cross-exceptions with supporting argument.
The Charging Party filed an answering brief to the Respondent’s exceptions and
to the General Counsel’s cross-exceptions.
The National Labor
Relations Board1 has considered the
decision and the record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions3
as modified and to adopt the recommended Order as modified.4
Amended Remedy
Having found that the Respondent has engaged in certain
unfair labor practices, we shall order it to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to bargain with
the Union as the exclusive collective-bargaining representative of the bargaining
unit and, if requested by the
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the Respondent,
Area Trade Bindery Co.,
1. Substitute the following for
paragraph 2(a) and reletter the succeeding paragraphs accordingly.
“(a) Recognize the
2.
Substitute the following for paragraph 2(c) and reletter the succeeding
paragraphs accordingly.
“(c)
Make whole all employees adversely affected by the Respondent’s unilateral
changes, as provided in the ‘amended remedy’ section.”
3.
Substitute the attached notice for that of the administrative law judge.
Dated,
Wilma B. Liebman, Member
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not refuse
to bargain collectively with Graphic Communications Union Local 404, Graphic
Communications Conference of the International Brotherhood of Teamsters, by
unilaterally implementing its final contract offer to the
We will not withdraw
recognition from the
We will not refuse
to meet and bargain with the Union as the exclusive collective-bargaining
representative of our employees in the appropriate bargaining unit with respect
to rates of pay, hours of employment, and other terms and conditions of
employment including contributions to our 401(k) plan, union security, and
wages.
We will not refuse
to bargain collectively by unilaterally implementing changes in our contributions
to our employees’ 401 (k) plans.
We will not in any
like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them in Section 7 of the Act.
We will recognize
the
We will, upon request, meet and bargain with the
Included: All full
time and regular part time production and maintenance employees, including
machine operators, employed by us at our facility located at
Excluded: All other employees, including professional employees, office clerical employees, drivers, guards and supervisors as defined in the Act.
We will rescind any
unilateral changes we have implemented in our employees’ terms and conditions
of employment.
We will make whole all of our employees who were adversely affected by the unilateral changes, with interest.
Area Trade Bindery Co.
Brian D,
Gee, Esq. and Joanna F. Silverman, Esq.,
for the General Counsel.
Andrew B.
Kaplan, Esq. and Jeffrey W. Mayes, Esq. (Silver
& Freedman), of
Daniel B.
Smith, Esq. (O’Donnell, Schwartz & Anderson P.C.), of
DECISION
Statement of the Case
Jay R. Pollack, Administrative Law Judge. I heard this case in
trial at
The parties have
been afforded full opportunity to appear, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my observation
of the demeanor of the witnesses,[1]
and having considered the post-hearing briefs of the parties, I make the following
Findings of Fact
i. jurisdiction
The Respondent
is a
Respondent
admits and I find that the
ii. alleged unfair labor practices
Respondent
operates a commercial bindery in
On August 13,
2004, the Union filed a charge in Case 31–CA–26970 alleging that Respondent had
violated Section 8(a)(1) and (5) of the Act by
withdrawing recognition from the Union, refusing to bargain with the
Union, and unilaterally changing its practice of making contributions to its
employees’ 401(k) plans.
On November 17,
2004, the parties entered into an informal settlement agreement resolving the
case. As part of the settlement
agreement Respondent posted a notice stating that it would not: (1) refuse to
meet and bargain with the Union; (2) withdraw recognition from the
On December 15,
2004, and on January 28, 2005, the parties met in an unsuccessful attempt to
negotiate an initial contract. The parties
did not reach agreement and on March 17, 2005, Respondent implemented
the terms of its “last, best and final offer” to the
Within this
factual framework, the General Counsel alleges that Respondent unlawfully
implemented its final proposal in the absence of a lawful bargaining
impasse. Respondent contends that the
parties were at impasse and, therefore, it could lawfully implement the terms
of its final proposal.
Thus, the
principal issue, involving Respondent’s implementation of its “last, best, and
final offer” and the resultant changes in the bargaining unit employees’ terms
and conditions of employment, is whether the parties had reached an impasse in
their contract negotiations so as to have permitted the implementation of the
proposed contract.
The Facts
As stated above,
the
The
Thereafter, on
August 13, 2004, the
The first
bargaining session following the settlement agreement occurred on December 15,
2004. Kaplan, Chris Planter, plant
manager, and Doug Moore, a representative from the local printer’s association,
were present for Respondent. O’Connor,
Paul Garcia, president, Doug Brown, vice president, Jorge Perez, International
representative, and employees Daniel Solorzano and Alain Beechdikian, were
present for the
Later on
December 15, Kaplan wrote O’Connor requesting a formal counterproposal by
December 27, 2004, and stating that if Respondent did not receive a formal
response by that date, Respondent would consider its December 15 written
proposal to be its “last, best, and final offer.” Kaplan further warned that Respondent would
“treat the
On December 27,
O’Connor sent Kaplan the
On January 28,
the parties met for the second time following the settlement agreement. Kaplan stated that the December 15 proposal
was his final proposal and that he believed the parties were at impasse. O’Connor stated he believed that the parties were
not at impasse and suggested that the parties look into Federal mediation. Kaplan refused to meet with a Federal mediator. This meeting lasted approximately 20 minutes.
On March 17,
2005, Kaplan wrote O’Connor stating that Respondent’s offer of December 15,
2004, was its last best and final offer, that the
On June 25 and
26, 2005, the
On September 1,
O’Connor wrote Kaplan requesting dates to resume bargaining. On September 7, Kaplan responded that Respondent’s
proposal of December 15, 2004, was its last, best, and final offer and since
the
iii. analysis and conclusions
A. The Alleged
Impasse
As stated
earlier, the first issue is whether the parties reached impasse in their
negotiations so as to permit Respondent to implement its final offer. By definition, an impasse occurs whenever
negotiations reach that point at which the parties have exhausted the prospects
of concluding an agreement and further discussions would be fruitless. Laborers
Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484
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 contemporaneous understanding of the parties as to the state
of the negotiations are all relevant factors to be considered in deciding whether
an impasse in bargaining existed.
The Board has
further held that, even if impasse is reached over an issue, it may be broken
if one of the parties moves off its previously adamant position. Tom Ryan Distributors, 314 NLRB 600,
604–605 (1994), enfd. mem. 70 F.3d 1272 (6th Cir. 1995) (no impasse found where
union demonstrated intent to move on key issue, parties had met only eight
times before employer declared impasse, and the key issue had been discussed
conceptually but not in detail). “As a recurring feature in the bargaining
process, impasse is only a temporary deadlock or hiatus in negotiations ‘which
in almost all cases is eventually broken, through either a change of mind or
the application of economic force.’” Charles
D. Bonanno Linen Service v. NLRB, 454
Finally, because
impasse as a defense to a charge of an unlawful unilateral change, the burden
of proof rests on the party asserting that impasse exists. North
Star Steel Co., 305 NLRB 45 (1991); Roman
Iron Works, 282 NLRB 725 (1987).
In the instant
case, the parties met in 15 bargaining sessions from August 5, 2002, to May 21,
2003, prior to the settlement agreement in Case 31–CA–26970. However, the parties only met two times after
the November 17, 2004 settlement agreement.
Both of these sessions were very short and there was no discussion
concerning either party’s proposals. There was no discussion of Respondent’s
changes in prior tentative agreements.
After the first session, Kaplan was threatening to declare impasse. At the second session Respondent was already
declaring impasse over the protest of the
Respondent
argues that there was no prospect of an agreement and that the
While Respondent
argued in January and March 2005 and again at the instant hearing that the
parties were at impasse, “both parties must believe they are at the end of
their rope.” Larsdale, Inc., 310 NLRB 1317, 1318 (1993); Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1177 (5th Cir. 1982). See also NLRB
v. Powell Electrical Mfg. Co., 906 F.2d 1007, 1011–1012 (5th Cir.
1990). In Grinnell Fire Protection Systems Co., 328 NLRB 585 (1999), the
Board concluded that the parties had not yet reached a legal impasse even
though the employer asserted that it had reached its final position, as during
the final session, the charging party union “not only continued to declare its
intention to be flexible, but demonstrated this throughout its dealings with
the Respondent that day.” The Board
stated:
Where as here, a
party who has already made significant concessions indicates a willingness to
compromise further, it would be both erroneous as a matter of law and unwise as
a matter of policy for the Board to find impasse merely because the party is
unwilling to capitulate immediately and settle on the other party’s unchanged
terms. . . . Further, even assuming
arguendo that the Respondent has demonstrated it was unwilling to compromise
any further, we find that it has fallen short of demonstrating that the
In this case,
the
That there was
no impasse when the Company declared is not to suggest that if the parties
continued their sluggish bargaining indefinitely there would have been
agreement on a new contract. Such a
finding is not needed, nor could it be made without extra-record speculation,
to find on this record that when the Company declared an impasse there was not
one, even as far apart as the parties were.
They had most of their work ahead of them, and judging by the opening sessions
clearly had different goals in mind for a contract. Whether their differences ever would have
been resolved cannot be known; but that is the nature of the process. It is for the parties through earnest,
strenuous, tedious, frustrating and hard bargaining to solve their mutual
problem—getting a contract—together, not to quit the table and take a separate
path.
As stated above,
the fact that Kaplan believed that the
Here, in
September 2005, O’Connor proposed an agreement, which Respondent had not agreed
to, without union security and dues checkoff.
Obviously Respondent was not required to agree to or sign such an agreement. Thus, any alleged impasse was broken by the
I find that in
March 2005 there was still more bargaining remaining before agreement or impasse
was reached. In general, impasse on one
or several issues does not suspend the obligation to bargain on remaining,
unsettled issues. Patrick & Co., 248 NLRB 390 (1980), enfd. mem. 644 F.2d 889
(9th Cir. 1981); Atlas Tack Corp.,
226 NLRB 222 (1976), enfd. mem. 559 F.2d 1201 (1st Cir. 1977).
In summation, I find
that in light of the limited bargaining after the settlement and Kaplan’s rush
to declare impasse, I cannot find the parties had reached a lawful impasse or
deadlock in their negotiations in March 2005.
Further, Respondent’s lack of good faith, evidenced by its unfair labor
practices in June and July 2004, discussed below, supports a finding that no
good-faith impasse was reached in March 2005.
As I have found
that on March 17, 2005, no lawful impasse existed, Respondent’s implementation
of the terms of its final offer that day, without the agreement of the Union,
was violative of Section 8(a)(1) and (5) of the Act. Royal Motor Sales, 329 NLRB 760 (1999); WPIX, Inc., 293 NLRB 10 fn. 1 (1989), enfd. 906 F.2d 898 (2d Cir.
1990);
B. The
Withdrawal of Recognition in June 2004
As stated
earlier, when O’Connor sought to resume negotiations in June 2004, Kaplan
stated that Respondent had appropriately withdrawn recognition from the
In Levitz Furniture Co. of the Pacific,
333NLRB 717, 717 (2001), the Board held:
After careful consideration, we have
concluded that there are compelling legal and policy reasons why employers should
not be allowed to withdraw recognition merely because they harbor uncertainty
or even disbelief concerning unions’ majority status. We therefore hold that an
employer may unilaterally withdraw recognition from an incumbent union only
where the union has actually lost the support of the majority of the bargaining
unit employees, and we overrule [Celanese
Corp., 95
NLRB 664 (1951)] and its
progeny insofar as they permit withdrawal on the basis of good-faith
doubt. Under our new standard, an employer
can defeat a post withdrawal refusal to bargain allegation if it shows, as a
defense, the union’s actual loss of majority status.
In the instant case, Respondent
merely contended that it believed the Union had abandoned the unit, it did not
offer any evidence that the
In Mountain Valley Care & Rehabilitation Center, 346 NLRB 281, 283
(2006), the Board rejected an employer’s attempt to justify withdrawal of
recognition by claiming that it thought that the union had abandoned the bargaining
unit: “Any uncertainty the Respondent
may have had could have been resolved simply by asking the International Union
about its intentions or by filing an RM petition.” Additionally, the Board has held, “The Union’s
reassertion of its bargaining rights . . . negate[s] any inference to be drawn
from the preceding period of inactivity.”
Spillman Co., 311 NLRB 95,
95–96 (1993). In the instant case, there
is no evidence that the
Conclusions of Law
1. Respondent is
an employer engaged in commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The
3. Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the
4. Respondent
has violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from
the Union and refusing to bargain with the
5. Respondent
violated Section 8(a)(1) and (5) by unilaterally changing its contribution to
its employees’ 401 (k) plan in July 2004, without notice to and bargaining with
the
6. Respondent’s
conduct in paragraphs 3, 4, and 5 above are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found
Respondent engaged in certain unfair labor practices, I shall recommend that it
be ordered to cease and desist therefrom and take certain affirmative action to
effectuate the purposes and policies of the Act.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended[3]
ORDER
The Respondent,
Area Trade Bindery Co., of
1. Cease and
desist from
(a) Refusing to
bargain collectively by unilaterally implementing its final contract offer to
the
(b) Withdrawing
recognition from the
(c) Refusing to
meet and bargain with the Union as the exclusive collective-bargaining
representative of Respondent’s employees in the appropriate bargaining unit
with respect to rates of pay, hours of employment, and other terms and conditions
of employment including contributions to health insurance, union security, and
wages.
(d) Refusing to
bargain collectively by unilaterally implementing changes in its contributions
to its employees’ 401(k) plan.
(e) In any like
or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them in Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Upon
request, meet and bargain with the
Included: All full time and regular part time
production and maintenance employees, including machine operators, employed by
the Employer at its facility located at
Excluded: All other employees, including professional employees,
office clerical employees, drivers, guards and supervisors as defined in the
Act.
(b) On request
by the
(c) Within 14
days after service by the Region, post at its facility in
(d) Within 21
days after service by the Region, file with the Regional Director for Region
31, a sworn certification of a responsible official on a form provided by Region
31 attesting to the steps the Respondent has taken to comply herewith.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National
Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or
assist a union
Choose
representatives to bargain with us on your behalf
Act together with
other employees for your benefit and protection
Choose not to
engage in any of these protected activities.
We will not refuse to bargain collectively by unilaterally implementing
our final contract offer to the
We will not withdraw recognition from the
We will not refuse to meet and bargain with the Union as the exclusive
collective-bargaining representative of our employees in the appropriate bargaining
unit with respect to rates of pay, hours of employment, and other terms and
conditions of employment including contributions to health insurance, union security,
and wages.
We will not refuse to bargain collectively by unilaterally implementing
changes in our contributions to our employees’ 401 (k) plans.
We will not in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
We will upon request, meet and bargain with the Union as the
exclusive collective-bargaining representative of its employees in the appropriate
bargaining unit described below with respect to rates of pay, hours of employment,
and other terms and conditions, and if an understanding is reached, embody such
understanding in a signed agreement. The appropriate bargaining unit is:
Included: All full time and regular part time
production and maintenance employees, including machine operators, employed by
the Employer at its facility located at
Excluded: All other employees, including professional employees,
office clerical employees, drivers, guards and supervisors as defined in the
Act.
We will on request by the
Area Trade Bindery Co.