United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 1999 Decided March 24, 2000
No. 99-1118
Chicago Local No. 458-3M,
Graphic Communications International Union, AFL-CIO,
Petitioner
v.
National Labor Relations Board,
Respondent
White Cap, Inc.,
Intervenor
On Petition for Review of an Order of the
National Labor Relations Board
Thomas D. Allison, Jr., argued the cause for petitioner.
With him on the briefs was N. Elizabeth Reynolds.
Steven B. Goldstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Linda Sher, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, and Fred L.
Cornnell, Supervisory Attorney.
Harry J. Secaras argued the cause for intervenor. With
him on the brief was Howard L. Bernstein.
Before: Henderson, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: The Chicago Local No. 458-3M,
Graphic Communications International Union, AFL-CIO
("union"), appeals the National Labor Relations Board's
("Board") decision that White Cap, Inc. ("company"), did not
violate s 8(a)(1), (3), and (5) of the National Labor Relations
Act ("Act"). See 29 U.S.C. s 158(a)(1), (3), (5) (1994). As a
threshold contention, the union maintains that there is no
discernible rationale underlying the Board decision because
the three separate opinions of the Board members are in
conflict. Indeed, there are some expressions of uncertainty
in the opinions regarding Board precedent governing the
practice of "regressive bargaining." We conclude, however,
that there is more agreement than is first apparent and that
there is a majority-supported rationale for the decision that
we can review. As to the union's other challenges to the
Board's decision, we hold that the Board reasonably conclud-
ed that the company bargained in good faith when it, with
good cause, replaced a proposal with a less favorable propos-
al; that the company's unilateral implementation of its final
offer was justified because a bargaining impasse had been
reached; and that the company's lockout of its employees was
lawful because it was in support of a legitimate bargaining
position.1
Accordingly, we deny the petition.
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1 The union's further contention that the company violated the
Act by refusing to bargain over certain mandatory subjects of
bargaining is not properly before the court, and, therefore, we do
not address it. The union never raised this issue in its charge, it
was not contained in the General Counsel's complaint, and the
parties did not litigate the issue before the ALJ, who never
I.
White Cap, Inc., manufactures metal and plastic caps for
beverage and food containers in several cities in the United
States, including Hazelton, Pennsylvania, Hayward, Califor-
nia, Chicago, Illinois, and Champaign, Illinois. Since about
1970, the union has been the exclusive collective-bargaining
representative of thirty-one lithographic production employ-
ees in the company's manufacturing facility in Chicago.
In December 1993, the company informed the union that it
wanted to implement a new work schedule in the Chicago
facility by January 31, 1994, and presented a written proposal
setting out the terms. By then, the company had already
implemented the new schedule in its Hazelton, Hayward, and
Champaign facilities, and it explained to the union that the
new work schedule was necessary in order to increase pro-
ductivity and efficiency. Under the proposed schedule, the
employees would work twelve hours per day, three consecu-
tive days per week, whereas under the collective-bargaining
agreement then in effect,2 the employees worked five days
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addressed it. The issue was first raised by Member Liebman in
her separate opinion. See White Cap, Inc., 325 N.L.R.B. No. 220,
7-8 (July 24, 1998). The court has previously held that "[t]he
Board may not make findings or order remedies on violations not
charged in the ... complaint or litigated in the subsequent hear-
ing." NLRB v. Blake Constr. Co., 663 F.2d 272, 279 (D.C. Cir.
1981); see also Conair Corp. v. NLRB, 721 F.2d 1355, 1371-72
(D.C. Cir. 1983). As the court explained in Trident Seafoods, Inc.
v. NLRB, 101 F.3d 111 (D.C. Cir. 1996), each party "must have a
full and fair opportunity to litigate the issues to be decided by the
agency," and "[w]hen one party utterly fails to raise a significant
issue before the ALJ, the record developed with regard to that
issue will usually be inadequate to support a substantive finding in
its favor." Id. at 116. The same rationale dictates that we reject
the union's argument on the issue without considering its merits.
2 Because the existing agreement did not expire until April 30,
1994, the company first sought the union's consent to modify the
agreement in order to implement the new schedule by January 31,
1994. Soon after the negotiations began, however, the company and
the union agreed to commence negotiations for a new contract, in
per week, on day or night shifts lasting seven-and-a-half
hours.3 This proposal led to a series of negotiating meetings
as the parties attempted to reach a new agreement. A major
stumbling block to any agreement, however, was the union's
insistence on a wage increase and the company's refusal to
offer one. Although the company agreed to some of the other
demands by the union, the parties never came to an agree-
ment that they could both approve, and the union member-
ship voted down the company's proposal by a wide margin in
February 1994.4 For the next few months, the parties contin-
ued to meet and negotiate, focusing on whether a wage
increase in some form would be acceptable to both parties.5
For purposes of this appeal, we focus on the company's
proposals of June 13th and September 14th and 22nd.
On June 13, 1994, the company presented a proposal pro-
viding for the new work schedule to take effect on July 11,
1994. The proposal included a two percent wage increase
effective August 1, 1994, no increase the following year, and a
one percent wage increase in the third year. The proposal
also provided for a signing bonus in the event the new
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addition to negotiations for the company's proposal of an immediate
modification of the existing contract.
3 The new proposal also contained several other changes from
the existing contract, such as: forty hours pay for thirty-six hours
worked; overtime pay at time-and-a-half for hours worked in excess
of thirty-six hours per week or twelve hours a day; increased pay
for holiday and vacation time; and increased paid break periods.
4 By the time of the union membership's first vote in February,
the company had improved its December proposal by adding a
night-shift differential, an increase in the company's contribution to
the monthly fringe benefit fund by fifty dollars per employee, and
double pay for overtime (limited to time-and-a-half for hours in
excess of thirty-six per week). In addition, the company had
offered a one-time lump-sum bonus of one week's pay, to be given
to the employees when the new schedule went into effect.
5 Because the existing contract was set to expire on April 30,
the parties agreed to extend the original contract on a day-to-day
basis, with a provision allowing for a ten-day notice to terminate.
schedule was implemented on July 11th, but no signing bonus
if the schedule was phased in to be implemented by Septem-
ber 12, 1994. These provisions were in addition to the
company's proposal that the union membership had rejected
in February. See supra note 4. Although the union ex-
pressed the view that the June 13th proposal was "very
excellent," the membership rejected it.6 By letter of June
23rd, the company urged the union to resubmit the June 13th
proposal to the membership with "the strongest possible"
message that the company "absolutely will not make any
further improvements to its proposal" and "will not back off
its plans to convert to 12-hour scheduling." The company
also alerted the union that if the June 13th offer was not
ratified by the membership by July 1, 1994, the company
would withdraw the proposed wage increases, increased over-
time, increased vacation pay and holiday pay, as well as
increased employer contributions to employee health and
welfare benefits. The union sought an extension of the
deadline until July 10th, but the company agreed to extend it
only until July 5th, citing the costs of the delay in implement-
ing the new schedule. The July 5th deadline passed without
a new vote by the membership.
On July 11th, the company implemented the new work
schedule for all non-lithograph production employees at its
Chicago facility. The company begged off the union's request
to resume negotiations on the basis of its busy schedule.
Consequently, the parties did not meet again until the fall.
On September 14th, the company, noting its prior warning
of June 23rd, proposed six changes to its June 13th proposal:
withdrawal of two wage increases; calculation of overtime
pay (to begin after forty hours instead of thirty-six); with-
drawal of increased holiday and increased vacation pay; and a
phased increase in the company's health and welfare contribu-
__________
6 There was testimony that because the vote occurred on Fa-
ther's Day many employees stayed home while those who opposed
the twelve-hour day attended the meeting to vote against it. The
membership had, by a show of hands, approved the twelve-hour day
in May.
tions, rather than an immediate fifty dollars per month
increase. In addition, the company made four changes in the
parties' agreement that had not been mentioned in the June
23rd letter: termination of the cost of living adjustment
provision; time-and-a-half, not double, pay for hours in excess
of twelve per day; reduction in the night shift differential;
and deletion of the voluntary overtime provision. The union
offered a counterproposal on September 22nd that called for
maintaining the five-day work week in effect under the prior
contract. The company rejected the counterproposal and
then rejected the union's revised counterproposal to postpone
implementation of the new work schedule for one year. The
company also stated that same day, September 22nd, that all
but four of the items in its September 14th proposal were
final; it remained open to negotiations only on wages, vaca-
tion and holiday pay, and night shift differential.
A few days later, the company notified the union of its
intention to terminate the contract extension agreement, see
supra note 5, effective October 7, 1994, and the parties met
for further negotiations on October 4th. At that time the
company asked if the union had a new counterproposal; the
union had none, inquiring only whether the company would be
willing to meet with a federal mediator. The company reject-
ed that idea and stated that its September 22nd offer was its
final offer in light of the union's failure to offer a new
counterproposal. The union then asked if they were at an
impasse. The company's lawyer responded, "As third party
observer, we are." The following day, the company notified
the union by letter that the parties were "obviously and
hopelessly deadlocked," and that the company would imple-
ment the new work schedule and its September 22nd proposal
on October 10th, noting that "business circumstances compel"
the new work schedule. Shortly after 9 a.m. on October 10th,
the union advised the company that the membership had
voted to accept the company's June 13th proposal. The
company advised the union that that proposal had expired
and been replaced by the September 22nd proposal, which the
company was implementing that day.
The company met at the union's request on November 9th
and took the same position in rejecting the union's renewed
request to return to the June 13th proposal. Instead, the
company proposed a wage increase over three years and
restored its proposals for increases in vacation and holiday
pay, benefit contributions, and night shift differential. The
company also offered to modify the contract language regard-
ing mandatory overtime. The union said it could not accept
the new proposal without a cost of living adjustment. When
the November 9th proposal was nevertheless submitted to the
members for a vote, it was overwhelmingly rejected.
On November 21st, the company locked out the bargaining
unit employees pending ratification of the November 9th
proposal. The lockout lasted for nearly eleven months, until
October 16, 1995, when the parties entered into a new collec-
tive bargaining agreement. During the lockout, the company
hired at least twelve temporary replacements.
The union filed an unfair labor practice charge. An Admin-
istrative Law Judge ("ALJ") found that the company engaged
in an unfair labor practice by engaging in regressive bargain-
ing without good cause when it threatened to withdraw
several provisions from the June 13th proposal and when it
actually withdrew those provisions and more in the Septem-
ber 14th proposal. See White Cap, Inc., 325 N.L.R.B. No.
220, 20 (July 24, 1998). The ALJ based this conclusion on the
Board's decision in Driftwood Convalescent Hospital, 312
N.L.R.B. 247, 252 (1993), which observed that:
the law is settled that "[t]he withdrawal of a proposal by
an employer without good cause is evidence of a lack of
good faith bargaining by the employer in violation of
Section 8(a)(5) of the Act where the proposal has been
tentatively agreed upon...."
Id. (quoting Mead Corp. v. NLRB, 697 F.2d 1013 (11th Cir.
1983)) (alteration in original). The Driftwood opinion, which
was an adoption by the Board of the ALJ's findings and
recommended order,7 explained that regressive bargaining
__________
7 Although the Board in Driftwood stated merely that it was
"adopt[ing] the recommended Order" by the ALJ, Driftwood, 312
"has the inevitable and foreseeable effect of obstructing and
impeding the collective-bargaining process," id., and that the
relevant inquiry is " 'not whether the Respondent acted in
good faith, but whether the Respondent had good cause in
unilaterally withdrawing from tentative agreements and con-
cessions made.' " Id. (quoting Arrow Sash & Door Co., 281
N.L.R.B. 1108, 1108 n.2 (1980)). In the instant case, the ALJ
noted that the company's regressive bargaining was not
justified by good cause because the company failed to show
that economic pressure led to the company's actions. See
White Cap, at 17-20. The ALJ also found that the company's
unilateral implementation of the final offer in the absence of a
legally cognizable impasse, as well as its locking out of the
unit employees, constituted unfair labor practices. See id.
The Board reversed, and by a two to one vote, dismissed
the complaint. Chairman Gould and Member Hurtgen, in
separate opinions, agreed that the company satisfied its duty
to bargain in good faith. Member Liebman dissented in part
on the basis that the company violated the Act by refusing to
bargain on mandatory subjects of bargaining. We examine
each opinion as background for our consideration of the
union's threshold challenge to the Board's decision.
Member Hurtgen began his analysis by observing some-
what enigmatically that he found it "unnecessary to pass on
the continued viability of Driftwood because ... the [ALJ]
erred in his application of these principles to the facts of [the
instant] case." Id. at 2. He then proceeded to apply the
good cause standard and found that both the company's
threats to withdraw the six provisions of the June 13th
proposal and its withdrawal of those provisions and others in
the September 14th proposal were supported by good cause
and thus did not constitute unlawful regressive bargaining.
__________
N.L.R.B. at 247, its summary affirmance of the ALJ's "rulings,
findings, and conclusions," id., constitutes an adoption of the ALJ's
findings as well. See Cities of Bethany v. FERC, 727 F.2d 1131,
1145 (D.C. Cir. 1984); see also City of Frankfort v. FERC, 678 F.2d
699, 708 (7th Cir. 1982).
See id. at 3. Specifically, he pointed to the fact that "the six
tentatively agreed to items [in the June 13th proposal] had
already been rejected at the time the [company] threatened
to withdraw them" in the June 23rd letter. Id. at 2. He
considered this factor, not discussed by the ALJ, to be "an
important one that distinguishes this case from Driftwood ...
where the employer withdrew from tentative agreements with
the union before any ratification vote had been held." Id.
He noted also that, unlike in the instant case, in Driftwood
the employer had offered the union "no explanation whatsoev-
er for withdrawing from the tentative agreements." Id. at 2
n.4. In addition, he emphasized that "the record evidence
establishes an intent, even a desire, by [the company] to
reach agreement," id. at 4, and that there was "no evidence
that the [company] sought to avoid reaching an agreement."
Id. at 5. Then, turning to the other issues, he found that the
company's unilateral implementation of its final offer and its
lockout of the employees were lawful because they occurred
following a bargaining impasse and because the lockout was
"for the sole purpose of bringing economic pressure to bear in
support of a legitimate bargaining position." Id. at 5 (citing
American Ship Bldg. v. NLRB, 380 U.S. 300, 310-11, 318
(1965)).
Chairman Gould concurred in Hurtgen's conclusion that the
ALJ erred in finding that the company had violated the Act
by its conduct in the bargaining negotiations. See id. He
disagreed, however, with Member Hurtgen's discussion of the
regressive bargaining doctrine. Stressing that "the default
practice of collective-bargaining negotiations ... allow[s]
withdrawal at will from tentative agreements prior to final
agreement," id. at 6, Chairman Gould stated that "[t]he
applicable standard here must be only whether the [compa-
ny's] tactics provided full scope for good-faith bargaining."
Id. at 7. Chairman Gould concluded, "[s]ince the evidence [in
the instant case] clearly indicates that the [company] was
seriously negotiating in order to obtain an agreement, we
must find that it was bargaining in good faith." Id. To make
his point about the lawfulness of regressive bargaining even
clearer, Chairman Gould noted that:
Member Hurtgen does not pass on this rule, but distin-
guishes [the company's] conduct on the basis that it
provided a "good cause" explanation to the Union for its
change of position. I would find this "rule" to be utterly
inconsistent with both the Supreme Court's "freedom of
contract" trilogy as well as long-held principles of collec-
tive bargaining. Inasmuch as the cases cited by the
[ALJ] do support this standard, they should be over-
ruled.
Id. at 6. Thus, in Chairman Gould's view, regressive bargain-
ing is lawful, with or without good cause, as long as "it is not
undertaken [with] ... an intent to evade coming to an
agreement." Id.
Member Liebman concurred in part and dissented in part.
She expressly joined Hurtgen's conclusion that the company's
withdrawal of provisions of the June 13th proposal was not
unlawful regressive bargaining because the company had
good cause.8 See id. at 7 & n.2. In noting her concurrence,
Member Liebman emphasized that she "agree[d] with the
legal principles cited by the [ALJ]," and that her "disagree-
ment [was] solely with the way these principles were applied
[by the ALJ] to the facts of this case." Id. at 7 n.2. Member
Liebman parted company with Member Hurtgen and Chair-
man Gould, however, in her conclusion that the company
engaged in an unfair labor practice by refusing to negotiate
over two mandatory subjects of bargaining (cost of living
adjustment and voluntary overtime) in September and Octo-
ber 1994. See id. at 7. Thus, Member Liebman did not
reach the issue of the validity of the company's September
14th proposal. See id. at 7-8.
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8 In Member Liebman's words: "For the reasons stated in ...
Member Hurtgen's opinion, I join him in finding that the [company]
did not bargain in bad faith in June 1994 following the employees'
rejection of the contract it negotiated with the Union." Id. at 7
(footnotes omitted).
II.
In order for the court properly to review the Board's
decision, it "must be able to discern the rationale" underlying
the Board's conclusions. Oil, Chemical & Atomic Workers
Int'l Union v. NLRB, 46 F.3d 82, 90 (D.C. Cir. 1995); see
also Acme Die Casting v. NLRB, 26 F.3d 162, 166 (D.C. Cir.
1994); United Food & Commercial Workers Int'l Union v.
NLRB, 880 F.2d 1422, 1436 (D.C. Cir. 1989). The union
contends that the Board, by issuing three conflicting opinions,
failed to articulate a rationale that the court can review, and
left uncertain whether regressive bargaining in the absence of
good cause violates the Act. Although the union raises a
legitimate concern about the troubling division within the
Board, the union overstates its position in maintaining that
the three opinions "reduce [the] established principles of
regressive bargaining law to chaos." Unlike the situation in
Oil, Chemical, on which the union relies, an examination of
the separate opinions shows that there is " 'a majority-
supported statement of the rule that the Board applied and
will be applying ... in the future.' " Oil, Chemical, 46 F.3d
at 91 (quoting United Food, 880 F.2d at 1436-37).
In examining whether there is a Board decision that the
court can review, the underlying question is the continued
vitality of Driftwood. In that case, as noted above, the Board
stated that "the law is settled that '[t]he withdrawal of a
proposal by an employer without good cause is evidence of a
lack of good faith bargaining by the employer in violation of
Section 8(a)(5) of the Act where the proposal has been
tentatively agreed upon.' " Driftwood, 312 N.L.R.B. at 252
(citation omitted). The Driftwood Board further explained
that in a regressive bargaining situation, the key issue is
"whether the Respondent had good cause in unilaterally
withdrawing from tentative agreements and concessions
made." Id. (quotation omitted) (citation omitted). A review
of Board precedent confirms this summary of the law. See,
e.g., Transit Serv. Corp., 312 N.L.R.B. 477, 483 (1993); Nati-
co, Inc., 302 N.L.R.B. 668, 670-71 (1991); Arrow Sash, 281
N.L.R.B. at 1108 n.2; Food Serv. Co., 202 N.L.R.B. 790, 803
(1973).
The ALJ relied on Driftwood in finding that the company
violated s 8(a)(1) and (5) of the Act by failing to show good
cause to withdraw the six provisions from the June 13th
proposal. The Board, in reversing, left the good cause rule of
Driftwood untouched. Neither Member Hurtgen nor Mem-
ber Liebman adopted Chairman Gould's view that the good
cause rule of Driftwood should be abandoned; to the con-
trary, they expressly relied on the Driftwood rule in reaching
their findings. Member Hurtgen applied the good cause
standard to find that the company's regressive bargaining
tactics in June and September were lawful. See White Cap,
at 2. Member Liebman joined Member Hurtgen's opinion
with respect to the company's conduct in June, specifically
noting the good cause standard of Driftwood as the basis of
her concurrence. See id. at 7 n.2. Therefore, the Driftwood
rule remains the law of the Board.
The difficulty to which the union points arises from the
apparent indication that the good cause standard may not
stand on a firm footing. In addition to Chairman Gould's
criticism that the good cause requirement was contrary to the
law and reality of labor practice, Member Hurtgen stated
that he was avoiding the issue of "the continued viability of
Driftwood" even though he was applying Driftwood in the
instant case. Id. at 2. But the union's concern about the
future viability of the Driftwood rule may be premature.
Unlike the situation in Oil, Chemical, the Board in White Cap
was not faced with a question of first impression. See Oil,
Chemical, 46 F.3d at 84. Neither, as in Acme Die, or United
Food, was the Board dealing in an area characterized by long-
standing ambiguity or confusion in Board precedent. See
Acme Die, 26 F.3d at 165-66; United Food, 880 F.2d at 1436.
By contrast, the good cause rule had been established and
repeatedly applied by the Board. See, e.g., Transit Serv., 312
N.L.R.B. at 483; Natico, 302 N.L.R.B. at 670-71; Arrow
Sash, 281 N.L.R.B. at 1108 n.2; Food Serv., 202 N.L.R.B. at
803. Even Chairman Gould acknowledged the existence of
Board precedent requiring good cause in urging that it be
overruled. See White Cap, at 6-7. The legal significance of
the disagreement among the Board members must be evalu-
ated in its context, and, contrary to the union's contention, the
court cannot reasonably interpret the tension among the
views of the Board members as upsetting Board precedent
without a more express statement by the Board indicating
such a change in the law. See Motor Vehicle Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983).
Of course, that the majority of the Board supported the
good cause rule does not fully resolve the issue whether there
is a majority-supported conclusion of law that the court can
review. With respect to the legality of the company's threat
in June 1994 to withdraw items from the June 13th proposal
unless it was ratified by July 4th, Members Hurtgen and
Liebman are in agreement that no violation of the Act
occurred. However, because Member Liebman never ad-
dressed whether the company's September actions constitut-
ed unlawful regressive bargaining, there is no majority deci-
sion on the issue unless Chairman Gould joined Member
Hurtgen's opinion or vice versa. Chairman Gould's separate
opinion makes clear that he agreed with Member Hurtgen
that the company's regressive bargaining in September was
not an unfair labor practice. It is also clear that Chairman
Gould disapproved of Member Hurtgen's reliance on the good
cause requirement of Driftwood. What is not as clear is the
extent to which Chairman Gould and Member Hurtgen
agreed or disagreed on whether the reasons for the compa-
ny's regressive bargaining met the Driftwood good cause
standard. For the following reasons, we conclude that Chair-
man Gould joined Member Hurtgen's opinion on the issue.
A comparison of the two Board members' opinions shows
that their analyses bear more substantive resemblance to
each other than might initially be evident. For his finding
that there was good cause for the company's regressive
bargaining in September, Member Hurtgen reasoned that the
company "was seeking timely ratification and implementation
of the new work schedule in exchange for improved contract
terms," and that the union's refusal to approve the June 13th
proposal within the stated time period thus justified the
company's withdrawal of certain terms. White Cap, at 4.
Member Hurtgen did not stop his analysis there, however.
He also stated that the "essential element" of good-faith
bargaining is "the serious intent to adjust differences and to
reach an acceptable common ground." Id. at 4-5. He ob-
served that the company satisfied this standard because "the
record evidence establishes an intent, even a desire, by [the
company] to reach agreement" as is clear from the company's
"willingness to compromise and make concessions," id. at 4,
and there was "no evidence that the [company] sought to
avoid reaching an agreement." Id. at 5.
Member Hurtgen noted that Chairman Gould "concur[red]
in this result," id. and Chairman Gould's opinion shows the
extent to which his opinion should be read as concurring in
the analysis, as well as in the result, of Member Hurtgen's
opinion. For example, Chairman Gould, like Member Hurt-
gen, thought that "the evidence here clearly indicates that
[the company] was seriously negotiating in order to obtain an
agreement," id. at 7, and placed much emphasis on the
company's apparent "willingness to reach agreement." Id. at
6. After his general discussion of the legality of regressive
bargaining, Chairman Gould stressed that "[h]ere, it would be
particularly inappropriate to find the [company's] withdrawals
unlawfully regressive because the [company] was clearly ...
adjusting its proposals ... in the course of bargaining in
order [to] obtain agreement on a crucial issue." Id. at 7.
From these statements, we conclude that Chairman Gould
and Member Hurtgen were in agreement that the company's
reasons for resorting to regressive bargaining constituted
good cause. Chairman Gould's separate opinion, then, should
not be read to be expressing any doubt as to whether the
company met the good cause requirement. Rather, in our
view, his opinion stems from his position that the good cause
requirement should not be applied in future cases even
though, in the instant case, the existence of the requirement
did not change the ultimate outcome.
In reaching this conclusion, we emphasize that it would
have been preferable for the Board to have stated more
explicitly that Member Hurtgen's opinion represented the
majority position of the Board rather than requiring the court
to decide that issue. Be that as it may, for the reasons noted,
we treat Member Hurtgen's opinion as the opinion of the
Board and review its findings of fact and application of the
law to the facts under the familiar substantial evidence stan-
dard. See NLRB v. United Insurance Co., 390 U.S. 254, 260
(1968); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951).
III.
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer "to refuse to bargain collectively with the
representatives of [its] employees." 29 U.S.C. s 158(a)(5).
Under s 8(d), "to bargain collectively is the performance of
the mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and
conditions of employment." Id. s 158(d). The union con-
tends that the company's withdrawal of certain terms from its
proposals in June and September 1994 violated its s 8(a)(5)
duty to bargain in good faith and that the Board erred in
finding otherwise. Because there is substantial evidence in
the record to support the Board's conclusion, we reject the
union's challenge.
The Board concluded that the company had good cause for
its threat to withdraw six provisions in the June 13th proposal
and for its subsequent withdrawal of those six provisions plus
more in September. The Board stated that, unlike in Drift-
wood, where the employer engaged in regressive bargaining
before the union held a ratification vote on the tentative
agreement, "the six tentatively agreed to items had already
been rejected at the time the [Company] threatened to with-
draw them." White Cap, at 2. In addition, the Board
observed that the company had "stressed from the inception
of negotiations its desire for timely implementation of the
new schedule" and that the "improved contract terms were
linked to timely implementation of the new work schedule."
Id. at 3. The Board concluded from these considerations that
the company's threat to withdraw the June 13th proposal was
"an effort to secure ratification of the agreement it reached
with the Union, rather than an attempt to obstruct meaning-
ful bargaining." Id. In addition, the Board relied as further
support on the fact that the company offered the union
another opportunity to ratify the proposal after the union's
rejection and that the company had given the union sufficient
"opportunity to digest, understand, evaluate, and vote on the
June 13 contract proposal." Id. For essentially the same
reasons, that the company "was seeking timely ratification
and implementation of the new work schedule in exchange for
improved contract terms" id. at 4, and that "the record
evidence establishes an intent, even a desire, by [the compa-
ny] to reach agreement," the Board found that the company's
withdrawal of several provisions in its September proposal
did not constitute an unfair labor practice. Id.
There is substantial evidence in the record to support the
Board's findings. During the parties' extended negotiations
for nearly a year, the company made repeated efforts to
reach common ground with the union. The company made
clear from the beginning of the negotiations that it could not
offer a wage increase and that it sought a timely implementa-
tion of the new work schedule. However, the company was
willing to offer a shift differential, increased contributions to
the monthly fringe benefit fund, and increased overtime pay,
all in response to specific demands by the union as a condition
for approving the new work schedule. When those conces-
sions proved to be inadequate, the company gave up its initial
position and agreed to give wage increases, in a proposal that
the union characterized as "very excellent." Even after the
membership rejected the proposal on June 19th, the company
gave the union a second chance and expressed its hope that
they reach an agreement soon. In addition, throughout the
period, the company stressed that the improved contract
terms it was offering were linked to timely implementation of
the schedule, and this link was emphasized in its June 23rd
letter. The union membership's failure to ratify timely the
proposal triggered the company's withdrawals, and these
circumstances hardly demonstrate that the company sought
to frustrate the collective bargaining process. Therefore, the
Board's finding of good cause in the company's regressive
bargaining is supported by substantial evidence.
Contending that the Board erred in its application of the
good cause standard, the union asserts that Board precedent
recognizes only two types of good cause to justify regressive
bargaining--changed economic circumstances and a change in
the party's relative bargaining power. This misrepresents
the law. The cases cited by the union support its position
only to the extent that each case can easily be placed in one of
the two categories that the union puts forward. See, e.g.,
A.M.F. Bowling Co., 314 N.L.R.B. 969, 975 (1994), enf. denied
on other grounds, 63 F.3d 1293 (4th Cir. 1995); Aero Alloys,
289 N.L.R.B. 497, 497 (1988); Cook Bros. Enters., 288
N.L.R.B. 387, 387-89 (1988); O'Malley Lumber Co., 234
N.L.R.B. 1171, 1179-80 (1978). However, no case cited by
the union has limited the definition of good cause to the two
categories only. Of the cases cited by the union, the closest
the Board came to the union's position was in the following
passage in Hyatt Hotels Corp., 296 N.L.R.B. 289, 314 (1989):
A regression in economic position during bargaining is
not of itself dispositive of the good-faith issue where
economic considerations and the ability to compete moti-
vate the regressive bargaining stance. Furthermore, it
is no manifestation of bad faith for an employer to
change his bargaining posture to one less favorable when
he does so in "flexing economic muscle" in consequence
of an intervening circumstance....
Id. at 314 (citation omitted). However, nowhere did the
Board state in Hyatt Hotels that these categories exhausted
the possible types of good cause. On the contrary, the Board
also defined the general issue of justifiable regressive bar-
gaining as whether a party's "proffered reasons for its
changed bargaining stance were so illogical or unreasonable
as to necessarily warrant an inference of bad faith." Id. at
315. In Barry-Wehmiller Co., 271 N.L.R.B. 471, 473 (1984),
another case cited by the union, the Board stated that, in
evaluating the legality of an instance of regressive bargaining,
"[w]hat is important is whether [the proffered reasons for
regressive bargaining] are 'so illogical' as to warrant the
conclusion that the [party] by offering them demonstrated an
intent to frustrate the bargaining process and there-by pre-
clude the reaching of any agreement." Id. (emphasis added).
This view, that the key issue in evaluating the propriety of
regressive bargaining is whether it is designed to "frustrate
the bargaining process," is the principle applied by the Board
in the instant case, and is the predominant theme in the
Board's regressive bargaining decisions. In addition to the
cases already discussed, the following cases, all cited by the
union, are illustrative: Fairhaven Properties, Inc., 314
N.L.R.B. 763, 771 (1994); Transit Serv., 312 N.L.R.B. at 483;
Toyota of San Francisco, 280 N.L.R.B. 784, 801 (1986);
Pacific Grinding Wheel Co., 220 N.L.R.B. 1389, 1390 (1975).
Therefore, the Board here has not departed from Board
precedent. On the other hand, to generalize, as the union
does, that Board precedent requires changes in either a
party's economic circumstances or bargaining power for good
cause to exist is to make an illogical leap from "If x is the
case, regressive bargaining is justified" to "If x is not the
case, regressive bargaining is not justified." The root of this
elementary error on the union's part is its perception that the
good cause requirement is a narrow exception to the general
rule that regressive bargaining constitutes bad faith bargain-
ing, a view that has no basis in Board precedent.
The union also cites several Supreme Court and circuit
courts of appeals cases to contend that the Board's opinion
frustrates the purpose of s 8(a)(5) of the Act. This conten-
tion has no merit. In order to make NLRB v. Katz, 369 U.S.
736 (1962), applicable to the instant case, the union resorts to
quoting general statements prohibiting "behavior which is in
effect a refusal to negotiate, or which directly obstructs or
inhibits the actual process of discussion," Katz, 369 U.S. at
747, without explaining how such statements demonstrate
that the Board reached the wrong decision in the instant case.
Neither is Daily News of Los Angeles v. NLRB, 73 F.3d 406
(D.C. Cir. 1996), another case relied on by the union, of much
help in that it was also about what the court saw as " 'behav-
ior which is in effect a refusal to negotiate.' " Id. at 414
(quoting Katz, 369 U.S. at 747). In the instant case, the
starting point of the Board's analysis was precisely that "the
withdrawal of previous proposals does not per se establish the
absence of good faith," White Cap, at 4, and thus does not
constitute "behavior which is in effect a refusal to negotiate."
Katz, 369 U.S. at 747. Therefore, the union's reliance on
Katz and Daily News is misplaced.
Similarly, the union's contention based on Charles D. Bo-
nanno Linen Serv., Inc. v. NLRB, 454 U.S. 404 (1982), and
McClatchy Newspapers, Inc. v. NLRB, 131 F.3d 1026 (D.C.
Cir. 1997), has no merit. The union cites the two cases for
the proposition that certain bargaining tactics are so destabi-
lizing that they are improper even if there is no showing of
subjective bad faith. The cases may well stand for that
proposition; however, the union's further inference that the
Board therefore erred in not finding a violation of the Act is a
nonsequitur. Again, the Board started from the assumption,
firmly supported by Board precedent, that regressive bar-
gaining is not so harmful to the collective bargaining process
as to require a general prohibition. Therefore, the Board's
findings simply do not contradict the propositions of law that
the union contends are dispositive. In the end, the union
offers no reason for the court to disturb the Board's conclu-
sions.
IV.
The union further contends that the company violated
s 8(a)(5) of the Act by unilaterally changing terms and condi-
tions of employment in October, 1994 without a bargaining
impasse. See NLRB v. McClatchy Newspapers, Inc., 964
F.2d 1153, 1165 (D.C. Cir. 1992) (in banc); American Fed'n of
Television & Radio Artists, Kansas City Local v. NLRB, 395
F.2d 622, 624 (D.C. Cir. 1968). We have previously stated
that "[t]here is no fixed definition of an impasse ... which
can be applied mechanically to all factual situations." Dallas
Gen. Drivers, Warehousemen and Helpers, Local No. 745 v.
NLRB, 355 F.2d 842, 845 (D.C. Cir. 1966). The Board
"considers a number of factors, including 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, [and] the contempo-
raneous understanding of the parties as to the state of
negotiations.' " Teamsters Local Union No. 639 v. NLRB,
924 F.2d 1078, 1083 (D.C. Cir. 1991) (quoting Taft Broad. Co.,
163 N.L.R.B. 475, 478 (1967), aff'd, 395 F.2d 622 (1968))
(alteration in original). We hold that there is substantial
evidence in the record supporting the Board's application of
these factors in finding an impasse. See White Cap, at 5.
First, at the time of the unilateral implementation, the
company had bargained in good faith with the union for
approximately ten months, making many concessions along
the way. In addition, as the Board observed, "the parties on
October 4 were at impasse on the critical issue of the [new
work] schedule, which precluded reaching an agreement."
Id. The new work schedule was a critical issue for the
company, as it had made clear at the beginning of the
negotiations. After rejecting the company's proposals con-
taining the new schedule several times, the union proposed
maintaining the old work schedule in its September 22nd
proposal. When the company rejected the union's attempt to
revive the old work schedule, the union proposed that imple-
mentation of the new work schedule be postponed for one
year, which the company also rejected. In their last meeting
before October 10th, the union failed to offer any new propos-
al. The contemporaneous understandings of the parties fur-
ther support the Board's finding. On October 4th, the Union
offered no new proposal and brought up the subject of
whether there was an impasse, and did not disagree when the
company's attorney stated that he believed the parties were
at an impasse. The union's contention that the impasse was
broken when it ratified the June 13th offer before the unilat-
eral implementation is meritless, considering how the June
13th offer had expired months earlier. Thus, applying the
relevant factors shows that there was substantial evidence for
the Board's finding that there was an actual impasse before
the company's unilateral implementation of its final offer on
October 10th.
Finally, the union maintains that even if there were an
impasse, it did not justify the company's unilateral implemen-
tation because the impasse was caused by the company's
unlawful regressive bargaining. See United Packinghouse,
Food & Allied Workers Int'l Union v. NLRB, 416 F.2d 1126,
1131 (D.C. Cir. 1969). We reject this contention because, as
noted, the Board reasonably concluded that the company's
regressive bargaining did not constitute an unlawful labor
practice. Similarly, the union contends that the company's
lockout was unlawful because the company's unlawful labor
practice deprived it of the claim that the purpose of lockout
was to "bring[ ] economic pressure to bear in support of [its]
legitimate bargaining position." American Ship Bldg. Co. v.
NLRB, 380 U.S. 300, 318 (1965); see also Teamsters Local
Union No. 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir.
1991). Again, as the Board found, the company did not
engage in an unfair bargaining practice, and there is substan-
tial evidence in the record to support the Board's decision
that the lockout was lawful because the company's purpose
was to apply economic pressure on the employees in order to
support its "legitimate bargaining position." American Ship
Bldg., 380 U.S. at 318.
Accordingly, we deny the petition.