Mail Contractors of America v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2007 Decided January 29, 2008

No. 06-1338

MAIL CONTRACTORS OF AMERICA,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

Consolidated with
06-1380

On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board

Jeffrey W. Pagano argued the cause for petitioner. With
him on the briefs was Herbert I. Meyer.

Kira Dellinger Vol, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Ronald E. Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, and Julie B. Broido, Supervisory
Attorney. Fred B. Jacob, Attorney, entered an appearance.
 2

Before: GINSBURG, Chief Judge, and TATEL and BROWN,
Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: The National Labor Relations
Board held Mail Contractors of America violated its duty to
bargain with a union when, following an impasse in
negotiations, it unilaterally changed a “relay point” on one of its
trucking routes. We grant MCA’s petition for review of the
Board’s order and deny the Board’s cross-application for
enforcement.

I. Background

MCA primarily transports bulk mail for the United States
Postal Service among its 17 terminals nationwide. The
American Postal Workers Union, Des Moines Area Local,
represents approximately 90 employees who work for MCA at
the Urbandale, Iowa terminal. In 2001, the Union and MCA
negotiated a new collective bargaining agreement (CBA) for
Urbandale, which agreement expired in September 2003.

Because MCA’s terminals are far apart, its trucks are
typically driven to and from “relay points” between terminals,
where one driver turns the truck over to another who takes the
truck on toward its destination. The 2001 Urbandale CBA
contained a management rights clause providing that the
Company had “the right ... to decide the location of its
terminal(s) and relay points” without further bargaining. While
the 2001 CBA was in effect, MCA switched relay points serving
the Urbandale terminal six times. It did so five times to satisfy
the needs of the USPS or to comply with new regulations issued
 3
by the Department of Transportation and once at the request of
the Union. Because compensation is determined by hours spent
driving, the location of a relay point may affect the
compensation of the drivers who serve that relay point. Each
time the Company changed a relay point, it first bargained with
the Union even though, under the CBA, it was not required to do
so.

After the CBA expired in 2003, the Union and MCA
reached a tentative new agreement for Urbandale that again
included a clause providing management retained the right
unilaterally to change the location of relay points. The tentative
agreement also included a new “bumping” provision, which
gave any driver whose run was changed in such a way that his
compensation decreased by 15% or more the right to take over
a more junior driver’s run. In September 2004, when
negotiations reached an impasse rather than a final agreement,
MCA lawfully implemented its final offer, including the
provisions of the tentative agreement.

In March 2005 the Urbandale drivers struck. When one
driver refused an order to drive to the relay point in York,
Nebraska, MCA moved the relay point about 50 miles east along
Interstate 80 to Havelock, Nebraska, where it had more
resources. It did not give the Union notice of this change,
although the striking workers were, of course, aware the
Company was not using the York relay point. The effect of the
change was that the drivers who drove from Urbandale to
Havelock drove less and therefore earned less than they had
earned prior to the strike, and the drivers who drove from
Havelock to the next relay point drove more and therefore
earned more than they had done prior to the strike. Because no
driver’s compensation decreased by 15%, however, the change
did not trigger the bumping provision.
 4
After the strike ended, MCA decided to keep the I-80 relay
point at Havelock. Certain employees protested, but MCA
refused to negotiate with the Union over the change.

The Union filed an unfair labor practice charge with the
National Labor Relations Board and the General Counsel issued
a complaint against MCA for refusing to bargain, in violation of
Sections 8(a)(1) and (5) of the National Labor Relations Act, 29
U.S.C. §§ 185(a)(1) and (5). After a hearing, an Administrative
Law Judge held MCA had indeed violated the Act by
unilaterally changing the relay point.

The ALJ first found the change to the relay point materially
affected employees’ wages and working conditions, and was
therefore a mandatory subject of bargaining. See Mail
Contractors of Am., 347 N.L.R.B. No. 88, at 6 (2006) (MCA).
He acknowledged that under the expired CBA management had
the right to change relay points without bargaining, but noted
that under Board precedent, the Union’s waiver of the right to
bargain presumptively expired when the CBA expired. Id.
Although the parties had tentatively agreed to a new contract
that included a similar management rights clause, the ALJ noted
they had never come to a final agreement. Id. at 6-7.

Next, the ALJ rejected MCA’s argument that the
management rights clause in its final offer gave it the right
unilaterally to move the relay point. He acknowledged that the
parties had reached an impasse in negotiations, which would
ordinarily entitle the employer to implement its final offer.
Applying the Board’s decision in McClatchy Newspapers, Inc.,
321 N.L.R.B. 1386 (1996), enf’d, 131 F.3d 1026 (D.C. Cir.
1997), however, he concluded MCA could not lawfully
implement the management rights clause because it granted
MCA unlimited discretion to determine the location of relay
points, and thereby to affect the wages and hours of employees.
MCA, 347 N.L.R.B. No. 88, at 7. The ALJ also rejected MCA’s
 5
alternative contention that unilaterally changing the relay point
was permissible as the continuation of a practice that had
developed under the expired contract. Although the 2001 CBA
contained a clause granting MCA discretion unilaterally to
change relay points, MCA had never actually done so while that
agreement was in force. Id. at 7-8.

The ALJ concluded that because neither post-impasse
implementation of the final offer nor the past practice of the
parties gave MCA the right to move a relay point, MCA’s
failure to bargain with the Union, after the strike had ended,
over the move to Havelock from York was an unfair labor
practice. Id. at 8. Accordingly, he ordered MCA to move the
relay point back to York and pay back wages to the drivers
whose routes had been shortened. Id. at 9.

MCA filed exceptions with the Board, a panel of which
unanimously affirmed the findings and conclusions of the ALJ.
Id. at 1 & nn.1-2. Two Members, relying upon McClatchy,
voted to affirm because “the unilateral change had a direct effect
on wages.” Id. at 1 n.2. Chairman Battista reasoned more
narrowly that under the 2001 contract the Company gave the
Union advance notice of any relay point change, and “[t]here is
no evidence that a change in this past practice was contemplated
by the newly implemented management-rights clause.” Id.

II. Analysis

MCA argues, among other things, that the Board erred in
concluding the Company was not entitled to implement the relay
point provision when negotiations with the Union had reached
an impasse. Because we agree and grant the petition upon that
basis, we have no occasion to reach MCA’s other arguments.
 6
A. Standard of review

We apply a deferential standard of review to orders of the
Board, which has “considerable authority to interpret the ...
[Act]. If the Board adopts a rule that is rational and consistent
with the Act, then the rule is entitled to deference from the
courts.” Fall River Dyeing & Finishing Corp. v. NLRB, 482
U.S. 27, 42 (1987) (citation omitted). We will, however, set
aside an order “when the Board has failed to apply the proper
legal standard ... or when it [has departed] from established
precedent without reasoned justification.” Titanium Metals
Corp. v. NLRB, 392 F.3d 439, 446 (D.C. Cir. 2004).

B. Implementation after impasse

Section 8 of the Act requires an employer to bargain with
the union representing its employees with respect to “wages,
hours, and other terms and conditions of employment.” 29
U.S.C. § 158(a), (d). When a CBA expires without a new
agreement having been reached, the employer must continue to
bargain in good faith for a new agreement and maintain the
status quo during negotiations. See NLRB v. Katz, 369 U.S. 736,
743, 746 (1962).

The duty to bargain does not, however, “compel either party
to agree to a proposal or require the making of a concession.”
29 U.S.C. § 158(d). The Act “does not contemplate that unions
will always be secure and able to achieve agreement even when
their economic position is weak.” H.K. Porter Co., Inc. v.
NLRB, 397 U.S. 99, 109 (1970). The Board is charged only with
ensuring the parties satisfy their duty to bargain; it may not “act
at large in equalizing disparities of bargaining power between
employer and union.” NLRB v. Ins. Agents’ Int’l Union, 361
U.S. 477, 490 (1960). Nor may the Board impose a substantive
provision upon the parties. “[A]greement may in some cases be
impossible, and it was never intended that the Government
 7
would in such cases step in, become a party to the negotiations
and impose its own views of a desirable settlement.” H.K.
Porter, 397 U.S. at 103-04.

Either party to collective bargaining may lawfully insist to
the point of impasse upon any provision related to a “mandatory
subject of bargaining,” which is to say “wages, hours, [or] other
terms and conditions of employment.” See 29 U.S.C. § 158(d);
NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349
(1958). An employer may even insist upon a provision granting
it discretion unilaterally to change certain conditions of
employment during the term of the CBA. NLRB v. Am. Nat’l
Ins. Co., 343 U.S. 395, 409 (1952) (“Whether a contract should
contain a clause fixing standards for such matters as work
scheduling or should provide for more flexible treatment is an
issue for determination across the bargaining table, not by the
Board”).

When an employer and a union reach an impasse over a
mandatory subject of bargaining, either side may resort to
economic warfare – a strike, a lockout, etc. – and “the
employer’s statutory duty to maintain the status quo during
postcontract negotiations ... end[s].” Laborers Health &
Welfare Trust Fund v. Advanced Lightweight Concrete Co., Inc.,
484 U.S. 539, 543 n.5 (1988). The employer then may “mak[e]
unilateral changes that are reasonably comprehended within his
preimpasse proposals.” Am. Fed’n of Television & Radio Artists
v. NLRB, 395 F.2d 622, 624 (D.C. Cir. 1968) (internal quotation
mark omitted). The rationale for this rule is that the employer’s
unilateral imposition of the final offer “breaks the impasse and
therefore encourages future collective bargaining.” McClatchy
Newspapers, Inc. v. NLRB, 131 F.3d 1026, 1032 (D.C. Cir.
1997). It “moves the process forward by giving one party, the
employer, economic leverage.” Id.

An employer’s right to deploy its economic weapons
 8
following an impasse is not absolute: The Supreme Court has
held the Board, in order to facilitate the process of collective
bargaining, may place certain restrictions upon what an
employer may do after impasse. In Charles D. Bonanno Linen
Service, Inc. v. NLRB, 454 U.S. 404 (1982), for example, the
Court upheld a Board order barring an employer from
withdrawing from a multi-employer unit after bargaining had
reached an impasse. Id. at 412. The Court stated more
generally that the Board may “deny an employer a particular
economic weapon ... in the interest of the proper and pre-
eminent goal, maintaining the stability of the multiemployer
bargaining unit.” Id. at 419; see also NLRB v. Great Dane
Trailers, Inc., 388 U.S. 26, 32 (1967) (upholding Board decision
prohibiting employer from granting benefits to strike-breakers
but not strikers because of “discouraging effect on ... future
concerted activity”); NLRB v. Erie Resistor Corp., 373 U.S. 221,
231 (1963) (upholding Board decision prohibiting employer
from granting super-seniority to strike-breakers because
“[s]uper-seniority renders future bargaining difficult, if not
impossible”); cf. Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 309
(1965) (holding lockout was not unfair labor practice because
“the employer’s intention was [not] to destroy or frustrate the
process of collective bargaining”).

C. The McClatchy doctrine

In McClatchy Newspapers, 299 N.L.R.B. 1045 (1990)
(McClatchy I), the Board announced a new exception to the
implementation-after-impasse rule, again in order to facilitate
post-impasse bargaining. In that case the employer, after an
impasse in negotiations, implemented its proposed merit pay
system, which gave it almost complete discretion to determine
wages. Initially the Board held the employer had committed an
unfair labor practice because the union had not “waived” its
right to bargain over wages. Id. at 1046-47. This court found
the Board’s explanation inconsistent with Board precedent,
 9
granted the employer’s petition for review, and remanded the
case for the Board to give a more adequate account of its
position. NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153,
1153-54 (D.C. Cir. 1992) (per curiam) (McClatchy II). In
separate concurring opinions, Judges Edwards and Silberman
proposed a variety of alternative theories upon which the Board
might justify its result. Among them was Judge Edwards’s
theory that “a unilateral, discretionary merit pay scheme ... may
pose a substantial threat to the union’s role as the employees’
representatives.” Id. at 1172. He explained:

If ... the employer can make unconstrained wage
adjustments, the futility of union representation may be
driven home to each employee in much the same way the
unilateral change doctrine seeks to avoid. Admittedly, the
unilateral change doctrine generally presumes that
implementing changes post-impasse does not hurt
collective bargaining. But if the employer can indefinitely
adjust employee wages ... impasse will no longer be [a]
“temporary” phenomenon .... Where the employer has the
unconstrained authority to adjust wages to respond to
changing conditions, it will have substantially smaller
incentives to restart collective bargaining.

Id. at 1172-73 (footnote omitted).

On remand, the Board again held the employer had
committed an unfair labor practice, essentially adopting Judge
Edwards’s rationale. See McClatchy Newspapers, Inc., 321
N.L.R.B. 1386, 1390-91 (1996) (McClatchy III) (“[C]arte
blanche authority over wage increases” would be “inherently
destructive of the fundamental principles of collective
bargaining”) (emphasis and footnote omitted). If the employer
had complete discretion to set wages, the Board explained, then
the union would be unable to participate knowledgeably in
further bargaining. Id. at 1391. Moreover, the merit pay
 10
provision would “disparage the [union] by showing, despite its
resistance to this proposal, its incapacity to act as the
employees’ representative in setting terms and conditions of
employment.” Id. Emphasizing the “paramount importance of
wages as a mandatory subject of bargaining,” id. at 1391 n.22,
the Board concluded the provision was “inimical to the policies
of the Act” because it excluded the union “from any meaningful
bargaining as to the procedures and criteria governing the merit
pay plan.” Id. at 1391.

McClatchy again petitioned for review, and this time we
enforced the Board’s order. McClatchy Newspapers, Inc. v.
NLRB, 131 F.3d 1026 (D.C. Cir. 1997) (McClatchy IV). Citing
Bonanno Linen, we noted that “the Board has wide latitude to
monitor the bargaining process.” Id. at 1031. We deferred to
the Board’s opinion that the provision at issue might
“irreparably undermine [the union’s] ability to bargain. Since
the union could not know what criteria, if any, petitioner was
using to award individual salary increases, it could not bargain
against those standards; instead, it faced a discretionary cloud.”
Id. at 1032. We also accepted the Board’s rationale that the
union would appear impotent to its members if it had no
information to relay. Id. at 1033. Recognizing the principle of
Insurance Agents that the Board may not “act at large in
equalizing disparities of bargaining power between employer
and union,” id. (quoting Insurance Agents, 361 U.S. at 490)
(alteration and internal quotation marks omitted), we concluded
“this case is marginally closer to Bonanno Linen”; “as in
Bonanno Linen, the Board has denied the employer a particular
economic tactic for the sake of preserving the stability of the
collective bargaining process.” Id. Most important for purposes
of the present case, we noted the Board had confined its decision
to provisions governing wages because wages are “a key term
and condition of employment and a primary basis of
negotiations,” id. at 1035 (internal quotation marks omitted).
We concluded:
 11

[T]he Board is free to draw on its expertise to determine
that wages are typically of paramount importance in
collective bargaining and to suggest that wages, unlike
scheduling or a host of other decisions generally thought
closely tied to management operations, are expected to be
set bilaterally in a collective bargaining relationship.

Id.

The Board has since held employers ran afoul of the rule in
McClatchy in four cases, three of which involved wage
provisions. We approved the Board’s application of McClatchy
to a wage provision that gave “unfettered discretion to the
employers at every stage of the pay determination process,”
Anderson Enters., 329 N.L.R.B. 760 (1999), enf’d, 2 Fed. App’x
1, 3 (2001), but vacated an order in which the Board applied
McClatchy to a relatively nondiscretionary unilateral wage
provision. Detroit Newspaper Agency, 326 N.L.R.B. 700
(1998), vacated sub nom. Detroit Typographical Union No. 18
v. NLRB, 216 F.3d 109, 118 (2000). The First Circuit vacated
the third Board decision, which concerned a provision giving an
employer the discretion either to pay a predefined wage or to
abide by “current marketplace pay practices,” and remanded the
case for further consideration. See Edward S. Quirk Co., Inc.,
330 N.L.R.B. 917 (2000), vacated and remanded, 241 F.3d 41,
45 (2001) (“McClatchy is based on employer discretion and
discretion is a matter of degree, implicating policy judgments
informed by Board expertise. However ... the Board owes the
employer and a reviewing court ... a reasoned explanation of
where it draws the line ....”), reinstated, 340 N.L.R.B. 301, 301-
02 (2003). In the fourth case, which was not reviewed by any
court, the Board applied McClatchy to a highly discretionary
provision involving health benefits. KSM Indus., Inc., 336
N.L.R.B. 133, 135 (2001), modified in part, 337 N.L.R.B. 987
(2002).
 12

D. The relay point change

As recounted above, the Board held MCA ran afoul of
McClatchy when it unilaterally imposed a provision reserving
the right to change relay points. That decision was arbitrary and
capricious for three reasons. First, the management rights
provision at issue is utterly unlike the provision in McClatchy or
the provision at issue in any subsequent case to which the Board
has applied McClatchy. Second, it is inconceivable the
provision will jeopardize collective bargaining in the affected
unit – the stated concern underlying McClatchy. Finally, the
Board’s decision here would impinge upon the employer’s
ability to run its business more severely than did McClatchy
itself or any of its sequellae.

First. The Board’s decision is inconsistent with both the
plain terms and the reasoning of McClatchy, which was based
upon and limited by the “paramount importance of wages as a
mandatory subject of bargaining.” 321 N.L.R.B. at 1391 n.22.
We expressly predicated our approval of the Board’s decision
upon the distinction between wages and “scheduling or a host of
other decisions generally thought closely tied to management
operations.” 131 F.3d at 1035. Indeed, the Board has
consistently limited its application of McClatchy to provisions
giving an employer discretion to determine wages (or, in one
case, benefits) rather than discretion to configure “management
operations” – until this case.

The placement of a relay point is a quintessentially
managerial decision; its location presumably will affect the
efficiency of the Company’s operations but it will have no
material effect upon the Company’s wage bill. If, as a result of
changing a relay point, some drivers lose work, then other
drivers gain as much work; meanwhile, the bumping provision
that MCA implemented as part of its final offer prevents
 13
management from manipulating relay points to give
significantly more hours to less senior drivers.

The Board contends the placement of a relay point is
nonetheless subject to the McClatchy doctrine because it will
have a “direct effect on wages.” MCA, 347 N.L.R.B. No. 88, at
1 n.2. The effect is no more significant, however, than the effect
of any management decision about the scheduling of work or its
allocation among plants or shifts. Cf. Clinton’s Ditch Coop.
Co., Inc. v. NLRB, 778 F.2d 132, 135, 140 (2d Cir. 1985)
(management’s right to change drivers’ assignments had only
“indirect, limited connection to ... any ... aspect of labor
relations”). In McClatchy IV we deferred to the Board’s view
that wages are such a fundamental subject of collective
bargaining that they are uniquely “expected to be set bilaterally
in a collective bargaining relationship.” 131 F.3d at 1035. The
placement of a relay point, with its incidental effect upon wages,
simply is not comparable.

Second. Neither of the pragmatic reasons for the Board’s
holding in McClatchy applies to this case: If an employer could
unilaterally set wages, then the union (1) would be “unable to
bargain knowledgeably” and (2) would appear impotent to its
members because of its “incapacity to act as the employees’
representative in setting terms and conditions of employment.”
McClatchy III, 321 N.L.R.B. at 1391. As to the former,
management’s change in the location of a relay point did not
preclude “meaningful bargaining as to the procedures and
criteria governing” wages, id.; nor, because wage rates and other
terms of employment were fixed in nondiscretionary provisions
of the final offer, did the change require the Union to bargain
against a “discretionary cloud.” McClatchy IV, 131 F.3d at
1032.

As for threatening to render the Union impotent and
collective bargaining pointless in the eyes of employees, as
 14
applied here the idea is fanciful. The change in the relay point
at issue here, like each of the six changes MCA made during the
two year term of the 2001 CBA, was made in response to an
unexpected event. Having moved the relay point merely in
order to keep trucks rolling during the strike, the Company then
found it was more efficient to retain the new location. As the
strike-induced move illustrates, the events that prompt the
Company to change a relay point are both sporadic and
sufficiently unexpected that the parties could not realistically
have addressed them in the CBA; accordingly, management’s
reservation of the right to respond to them posed no realistic
threat to the process of collective bargaining. Were it otherwise,
the Union would not have agreed to the management rights
clause in the 2001 CBA. More significant, with the benefit of
experience under that agreement, the Union tentatively agreed
to the clause again in the 2003 bargaining for a new agreement;
indeed, the bargaining history shows the Union was concerned
not with eliminating management’s right to move relay points
but with adding a more robust bumping provision in order to
protect more senior drivers from any significant loss of work
when a relay point is changed.

Third. The Board’s decision impedes the employer’s ability
after impasse to implement its final offer to a far greater extent
than had any prior decision. Bear in mind that in McClatchy
itself the employer was prohibited only from implementing a
system in which it would have determined wages on a purely
discretionary basis; nothing in that decision bars an employer
from implementing a final offer in which wages are determined
according to fixed criteria. In this case, the ALJ correctly noted
the management rights provision at issue left MCA with
complete discretion to move relay points, MCA, 347 N.L.R.B.
No. 88, at 7, but neither the ALJ nor the Union ever suggested
there might be fixed criteria MCA could have offered and then
implemented after impasse to govern the placement of relay
points. Nor does that seem feasible for, as we have seen, relay
 15
points, unlike wages, are changed in response to infrequent and
exogenous events. In other words, because no nondiscretionary
provision appears possible, the Board’s decision would
effectively preclude MCA from ever changing a relay point after
impasse. That would be both anomalous, considering that MCA
was free unilaterally to implement provisions regarding more
fundamental subjects of bargaining, see, e.g., E.I. du Pont de
Nemours & Co., 346 N.L.R.B. No. 55, at 11-12 (2006)
(permitting unilateral imposition of nondiscretionary health care
plan), enf’d, 489 F.3d 1310, 1320 (D.C. Cir. 2007), and
inconsistent with the narrow exception in McClatchy to the
general rule allowing the employer to implement its final offer
after impasse.

The ALJ justified the application of McClatchy to this case
as follows:

Section 8(d) of the Act requires the parties to bargain over
“wages and hours.” It would undermine this specific
statutory mandate if an employer could relegate to itself the
discretion to determine [relay points after impasse]. In
addition, to allow an employer to do so unjustifiably affects
the balance of power between labor and management and
thereby undermines an important goal of the Act of
encouraging the parties to reach a collective-bargaining
agreement. This is so because ... if an employer can
relegate to itself this discretion a union’s bargaining
strength is diminished and the likelihood of reaching an
agreement is decreased.

347 N.L.R.B. No. 88, at 7.

The ALJ’s analysis is in effect a broadside attack upon the
implementation-after-impasse doctrine. His concern that an
employer would undermine the statutory mandate to bargain by
unilaterally implementing its final offer after impasse overlooks
 16
the very purpose of the doctrine, which is to “break[] the
impasse and therefore encourage[] future collective bargaining
... by giving one party, the employer, economic leverage.”
McClatchy IV, 131 F.3d at 1032. His other point – that
unilateral implementation means the union could no longer
“seek concessions from the employer” in return for its
agreement, MCA, 347 N.L.R.B. No. 88, at 7 – ignores the
Supreme Court’s teaching that it is not the Board’s role to
“equalize[e] disparities of bargaining power between employer
and union.” Insurance Agents, 361 U.S. at 490.

In affirming the ALJ, the Board rather limply stated only
that “here, as in McClatchy, the unilateral change had a direct
effect on wages,” MCA, 347 N.L.R.B. No. 88, at 1 n.2, without
any more particularized examination of the significance of that
effect. The Board gave no reason to believe the relay point
provision here at issue would impede collective bargaining.
Therefore, we think it necessary to reiterate a point we made in
McClatchy IV: The Board must proceed cautiously in applying
the McClatchy doctrine, taking care to tether its applications to
the pragmatic justification for that decision, namely, to facilitate
the process of collective bargaining.

III. Conclusion

For the reasons set out above, we hold MCA, after
collective bargaining had reached an impasse, lawfully relocated
its relay point to Havelock from York pursuant to the
management rights provision of its final offer. Therefore, it did
not commit an unfair labor practice when, after the strike ended,
it kept the relay point at Havelock without first bargaining with
the Union. Accordingly, the petition for review is granted and
the Board’s cross-application for enforcement is denied.

So ordered.