A.M.F. Bowling Co.

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 969 (N.L.R.B. 1994)

969
314 NLRB No. 160
A.M.F. BOWLING CO.
1 On May 29, 1991, the National Labor Relations Board issued its
Decision and Order in this proceeding in which it found that the Re-
spondent, inter alia, bargained in bad faith by failing to provide the
Union with wage surveys it conducted to justify the necessity for the
substantial economic reductions contained in its bargaining proposals
and, therefore, that the parties did not reach a valid impasse. See 303
NLRB 167. The Respondent filed with the court a petition for re-
view of this portion of the Board’s Order, and the Board filed a
cross-petition for enforcement.
In an opinion dated October 5, 1992, the court reversed the Board
on this issue and remanded the case to the Board to consider other
issues, described below, that the Board had not addressed because
of its disposition of the wage surveys issue. A.M.F. Bowling Co. v.
NLRB, 977 F.2d 141 (4th Cir. 1992).
By letter dated January 13, 1993, the Board notified the parties
that it had accepted the court’s remand and that statements of posi-
tion could be filed with respect to the issues raised by the remand.
The General Counsel, the Charging Party, and the Respondent each
filed statements of position with the Board.
We deny the Respondent’s motion to correct the record to include
copies of its appellate briefs. We also deny the Charging Party’s mo-
tion to supplement the record with the docketing statement that the
Respondent filed with the court.
2 The court on review enforced the Board’s finding that the Re-
spondent violated Sec. 8(a)(1) by excluding unit employees from
participating in its severance plan. This violation is no longer an
issue in this proceeding. The court also enforced the Board’s finding
that the Respondent’s proposal concerning the assignment of unit
work to nonunit employees was a mandatory subject of bargaining
and therefore that the Respondent could insist on this proposal. The
court indicated, however, that the Board on remand could determine
‘‘whether AMF’s overall behavior during the negotiations leading to
the impasse on the unit-work proposal constituted bad-faith bar-
gaining.’’ 977 F.2d at 149.
3 Our recitation of the facts does not depend on the testimony of
Burtch, the Respondent’s chief negotiator. The judge discredited
Burtch generally, noting that he was particularly unimpressed with
Burtch’s demeanor. We do not view our decision reversing the
judge’s finding that the Respondent bargained in bad faith as a re-
versal of the judge’s demeanor-based credibility resolutions. We
find, however, that in making certain credibility resolutions against
Burtch, the judge relied in substantial part on his improper subjective
view of the Respondent’s bargaining proposals, which is discussed
more fully below. Thus, our assessment of the parties’ conduct dur-
ing negotiations is based on the record as a whole, including our
Continued
A.M.F. Bowling Company, Inc. and United Steel-
workers of America, AFL–CIO, CLC, District
4. Cases 3–CA–13625 and 3–CA–13982
August 31, 1994
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
This case is on remand from the United States Court
of Appeals for the Fourth Circuit. The court asked the
Board to determine whether the Respondent’s overall
behavior during collective-bargaining negotiations con-
stituted bad-faith bargaining, and whether the Respond-
ent’s declaration of impasse was premature.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The complaint alleged, inter alia, that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by bar-
gaining in bad faith and by the following
postdeclaration-of-impasse conduct: withdrawing rec-
ognition from the Union, making unilateral changes,
dealing directly with unit employees by encouraging
and forming employee grievance committees, refusing
to provide, and delaying in providing, requested pen-
sion information, refusing to bargain with the Union
unless the Union dramatically altered its position, and
summarily rejecting the Union’s offer, at the final bar-
gaining session, to accept economic reductions.
The judge found that the Respondent’s overall con-
duct during negotiations, including its failure to
produce wage surveys it conducted to justify its de-
mands for economic concessions, constituted bad-faith
bargaining. The judge further found that even if the
Respondent had bargained in good faith, the Respond-
ent’s declaration of impasse was premature because
collective bargaining was not sufficiently exhausted.
The Board in its original decision did not pass on
the judge’s finding that the Respondent engaged in
general bad-faith bargaining during contract negotia-
tions with the Union. Rather, the Board concluded that
the Respondent’s failure to provide the Union with its
wage surveys violated Section 8(a)(5) and prevented a
valid bargaining impasse from occurring. Relying on
the absence of a valid impasse, the Board found that
the Respondent further violated Section 8(a)(5) by en-
gaging in the additional postimpasse conduct described
above.
On review, the court reversed the Board’s finding
that the Respondent’s failure to produce the wage sur-
veys constituted an unfair labor practice, holding that
the Union’s request for the Respondent to open its
books and to justify its position was a ‘‘general re-
quest’’ that did not put the Respondent on notice that
the Union sought the wage charts. The court remanded
the case, however, for the Board to review ‘‘the ALJ’s
determination that the impasse resulted from general
bad-faith bargaining and that it was prematurely de-
clared.’’ 977 F.2d at 147.2
The Board has accepted the court’s remand and ana-
lyzes the relevant issues below. For the reasons set
forth below, we reverse the judge’s finding that the
Respondent engaged in bad-faith bargaining, but we
find, in agreement with the judge, that there was no
valid impasse when the Respondent implemented the
economic terms of its January 14, 1987 offer. Accord-
ingly, we reaffirm our finding that the Respondent vio-
lated Section 8(a)(5) by its various unilateral actions
taken subsequent to the alleged impasse.
The relevant facts, based on both the credited testi-
mony and the uncontroverted evidence in the record,
are as follows.3 The Respondent manufactures and
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
finding that the judge improperly substituted his judgment for that
of the Respondent in assessing the appropriateness of certain of the
Respondent’s bargaining proposals.
4 The Union had maintained a stable bargaining relationship with
the Respondent’s predecessors for about 20 years at Lowville.
5 All subsequent dates in December are in 1986. All other dates
are in 1987 unless otherwise indicated.
6 As found by the judge, the Union’s proposed changes on non-
economic subjects were minor.
7 These proposals included clarification of the contract to note spe-
cifically the composition of the Union’s bargaining committee, the
provision of leave for volunteer firemen, assurance that the union
president could observe the employees’ exercise of bumping rights,
specification of a funeral leave policy, and the provision of a bulletin
board in plant 3.
8 Mallette did not participate in any further negotiations, but was
present at each of the caucuses held by the Respondent’s bargaining
representatives to discuss the negotiations.
sells bowling lanes and equipment. About August 24,
1986, a group of private investors signed a purchase
agreement to acquire the bowling division of A.M.F.
from Minstar. As a condition of the purchase, the Re-
spondent agreed to adopt all of Minstar’s existing col-
lective-bargaining agreements, including a contract
with the Union, which was set to expire on December
8, 1986, covering about 75 production and mainte-
nance employees at the Lowville, New York plant in-
volved here.4
At the time of the purchase, Minstar’s domestic
manufacturing division also included a plant in Shelby,
Ohio. During the summer of 1986, Minstar had nego-
tiated a new collective-bargaining agreement with an-
other labor organization representing the Shelby em-
ployees. The agreement provided for wage reductions
of 24 percent and benefit reductions of 14 percent.
Mallette, the general manager at the Lowville plant,
testified that the Shelby concessions were common
knowledge in the plant.
After purchasing A.M.F., the investors cut expenses
by $10 million. These cost-cutting measures included
layoffs among the salaried, nonbargaining unit employ-
ees at the Lowville and Shelby plants. In late summer
of 1986, the Respondent retained Jack Burtch, an attor-
ney, to negotiate with the Union. On September 24,
1986, the Union notified the Respondent that it was
terminating the existing agreement and requested bar-
gaining.
The first bargaining session was held on December
3, 1986.5 The Union’s bargaining committee consisted
of District Representative Prenatt, Local President Ritz,
and a group of unit employees. Burtch, the chief nego-
tiator for the Respondent, was assisted by General
Manager Mallette and other company officials. The
Union proposed a 2-year agreement with 8-percent
wage increases each year and increased benefits.6
Thereafter, Burtch told the Union that A.M.F. was a
new and smaller company, and that the Respondent
needed to be more competitive and would require eco-
nomic concessions. The Respondent claimed that the
wages at the Lowville plant were much higher than
wages for comparable jobs in the area, and referred to
manufacturing losses and the economic concessions
that had been accepted at the Shelby plant. Stating that
the new owners had taken over the business in Novem-
ber and had not yet reviewed either the contract or the
operation of the business, Burtch requested that the
contract be extended. The parties agreed to a 30-day
extension of the contract until January 8. Genovese,
one of the Respondent’s owners, testified that in No-
vember and December, the Respondent devised bar-
gaining objectives rather than specifics.
Early in the second bargaining session on December
16, Burtch described cost-cutting measures that the
new owners had implemented outside the unit, includ-
ing layoffs at the Shelby and Lowville plants. The Re-
spondent then presented a single language proposal to
eliminate the Respondent’s right to file a grievance.
During this session, the Respondent agreed to several
of the Union’s noneconomic proposals.7 During the
afternoon, the Respondent presented its first economic
proposal which, along the lines of the Shelby contract,
sought a 24-percent wage reduction for unit employees
in each of the 10 existing job grades. Regarding bene-
fits, the Respondent’s proposal stated: ‘‘Approximately
14% reduction in fringe benefits. Reduction can be
achieved by higher deductibles, etc. Same vacation and
holiday plan as salaried employees.’’ When presenting
this proposal, Burtch reiterated that the Respondent
needed economic concessions in order to be competi-
tive. Ritz counterproposed that the Union would reduce
its wage proposal from an 8-percent increase the first
year to a 6-percent increase, and suggested profit shar-
ing. Burtch did not respond.
The Respondent’s new owners, Genovese and Good-
win, toured the Lowville plant on December 23, re-
viewed the job grades and classifications for unit em-
ployees, and determined that the wage spread between
the lowest and the highest grades was too compressed.
Based on this conclusion, Genovese instructed Mallette
to review the entire Lowville operation and to assign
what he believed were fair market wage rates for the
type of work being performed. Genovese and Goodwin
met with Burtch on December 31 and again on January
2 to prepare a document outlining the Respondent’s
bargaining objectives.
The third bargaining session was held on January 6.8
The Respondent presented its initial noneconomic bar-
gaining proposals which, as found by the judge, sought
significant modifications in the existing contract. The
Respondent, inter alia, presented three proposals
which, along with wage and benefit levels, were the
focus of the remaining bargaining sessions. First, the
Respondent proposed eliminating the contract’s union-
shop clause. Regarding this proposal, Burtch stated
971A.M.F. BOWLING CO.
9 The provision stated:
It is understood that ‘‘non-bargaining personnel’’ may perform
the work ordinarily performed by the Employees covered by this
Agreement under the following conditions:
(1) To experiment with equipment, machinery parts, material
or products or with new methods of performing the operation.
(2) To train new Employees or to give old Employees addi-
tional instructions.
(3) To assist on jobs or operations where machinery malfunc-
tions occur.
(4) To manufacture and assemble prototype and experimental
models.
(5) To perform the work of an Employee where there is ex-
cessive absenteeism and such work is necessary, provided there
are no other Employees available to do the work.
10 The Respondent also proposed removing the contract’s provision
for pay for time spent processing grievances, requiring the losing
party in arbitration to pay the full cost, changing the employee pro-
bationary period from 30 to 90 days, and eliminating the Union’s
right to grieve job grading.
11 During the course of the January 6 negotiations, Ritz asked if
the Respondent’s December 16 wage proposal was still on the table
and Burtch stated that it was. The judge found that Burtch’s state-
ment was ‘‘untruthful’’ because Mallette had already prepared an en-
tirely new economic proposal. As discussed below, Mallette’s pro-
posal included new job classifications and an increased number of
job grades. Under the circumstances, we find that it was not unrea-
sonable for the Respondent to expend some time examining that pro-
posal before presenting it to the Union on January 7; and we note
also that the December 16 economic proposal was literally still on
the table on January 6, i.e., if the Union had accepted it, the Re-
spondent could not reasonably have asserted that it had been with-
drawn. Hence, we do not agree with the judge that Burtch’s state-
ment on January 6 was ‘‘untruthful’’ in any meaningful sense.
12 For example, Ritz stated that the Union would agree to the Re-
spondent’s arbitration-cost proposal if the Respondent dropped its
proposals on union-security, seniority on bidding and bumping, and
no grading grievances.
13 The judge found that this wage proposal was regressive when
compared to the Respondent’s December 16 wage proposal.
14 At this session, the Respondent proposed changing the ‘‘bidding
and bumping’’ language in its prior proposal to ‘‘decrease, increase,
or transfer of employees.’’
that he came from a right-to-work state and had a phil-
osophical belief against a union shop and that the own-
ers felt that it was an employee’s right to belong to a
union or not.
Second, the Respondent sought to modify the exist-
ing contract’s ‘‘bidding and bumping’’ provision,
which specified that seniority governed, to provide that
selection would be based on ability, as determined by
the Company’s judgment. The Respondent’s proposal
further stated that where the Company determined that
ability was equal, seniority would govern, and that the
Company’s judgment was not subject to the grievance
procedure. When questioned as to whether the Re-
spondent explained why it wanted to make ability the
primary criterion, Ritz stated that Burtch asserted that
the owners had to run the business ‘‘the best possible
way to make money.’’ Ritz further testified that Burtch
expressed concern that employees had bid on jobs and
then disqualified themselves, thus causing chaos in the
bidding process.
Third, the Respondent sought to change a provision
in the existing contract that provided that ‘‘non-bar-
gaining personnel’’ could perform unit work under five
very limited conditions.9 The Respondent proposed
that, without limitation, ‘‘non-bargaining unit per-
sonnel (e.g., supervisors) may perform the work ordi-
narily performed by the employees covered by this
agreement.’’ Burtch testified that the language was de-
signed to give the Respondent the flexibility to have
supervisors step in on the production line in cases of
absenteeism or trouble, but admitted that the provision
as drafted extended beyond supervisors.10
Regarding benefits, Burtch proposed that employees
contribute $14 per month to the pension plan, and pre-
sented the Respondent’s cost-shifting measures for
health and medical insurance as well as the elimination
of dental coverage. Ritz testified that Burtch did not
provide an explanation of the proposal, a copy of the
pension plan, or pension information that the Union
had previously requested.11
When bargaining resumed on the afternoon of Janu-
ary 6, the Union made clear that many of the Respond-
ent’s proposals were not acceptable. As detailed in the
judge’s decision, the Union accepted some of the Re-
spondent’s proposals, and offered compromise posi-
tions with respect to other proposals.12 Ritz stated that
the Union would consider accepting proposed benefit
reductions if the Respondent would reconsider its posi-
tion on wage reductions.
A Federal mediator was present when the parties
met again on January 7. Burtch presented the wage
proposal that Mallette had prepared during the Christ-
mas break, which included new job classifications and
increased the number of job grades from 10 to 16. The
proposal did not include a term length.13
During a caucus, Ritz informed the mediator that the
Union’s position was that the Respondent’s proposals
on open shop, bidding and bumping,14 and nonbar-
gaining unit personnel performing bargaining unit
work had been offered without sufficient explanation,
and that, without justification, the Union was not will-
ing to ignore many years of bargaining history in those
areas. Ritz again agreed to accept the Respondent’s ar-
bitration-cost proposal in exchange for concessions re-
garding seniority and the grieving of job grading. Ritz
also protested the Respondent’s wage proposal and
questioned the changed classifications. He proposed in-
stead a two-tiered wage structure in which the Re-
spondent would freeze wages for present employees,
but apply its wage-reduction proposal to new hires.
Burtch did not respond to this suggestion, but proposed
a 3-year contract term.
After the parties caucused and reconvened, Burtch
handed the Union a revised job classification schedule
in which the new job classifications from its previous
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 See the Board’s initial decision in this case, 303 NLRB at 169
fn. 6.
16 Contrary to the Respondent’s contention in its statement of posi-
tion, the judge admitted the letter into evidence. The letter stated in
pertinent part:
A charitable donation has been made available to the Lowville
Mennonite Church to assist employees of AMF Incorporated
who have experienced extreme pay cuts and are now experi-
encing financial difficulties. Anyone experiencing large medical
proposal were fitted into the existing number of 10,
rather than 16, grades. There was no corresponding
wage schedule. At the hearing, Ritz discussed the
Union’s concern with what the reclassification scheme
‘‘would do to pensions, vacations . . . bumping
rights.’’
During this session, the Respondent dropped its pro-
posal that union representatives would not be paid for
time spent resolving grievances. The parties agreed on
a 60-day probationary period. Burtch also stated that
the Respondent would drop its cost-of-arbitration pro-
posal if the Union would accept its proposals on no
union-shop, seniority, and unit work being done by
nonbargaining unit personnel. Following a caucus, the
Union rejected that offer and instead accepted the Re-
spondent’s arbitration-cost proposal. The Union asked
Burtch various questions about job classifications, and
was referred to Mallette. Union Representative Prenatt
then offered to accept a wage freeze and to move on
economic benefits if the Respondent would agree to
union security. He also indicated that the employees
needed to keep their medical coverage intact but would
be willing to move on holidays and vacations. Burtch
responded that the Respondent was seeking wage cuts
and that the parties were far apart on wages.
The parties met again on January 8, the contract ex-
piration date. Burtch presented the wage rates that cor-
responded with the job grades and classifications that
had been proposed the previous day. The wage pro-
posal did not contain a time period. The Respondent
dropped its demands that job selection and job grading
would not be subject to the grievance procedure.
Ritz inquired about certain jobs that were eliminated
under the classification scheme, and Burtch replied that
he would have to check to get that information. Ritz
stated that the Union would agree to the Respondent’s
benefit package in exchange for a wage freeze the first
year. Burtch responded that the Union was not ad-
dressing the Respondent’s proposed wage cut, and re-
jected, without explanation, the Union’s request for a
profit-sharing plan. Later that day, the Respondent
dropped its proposal on employee contributions to the
pension plan, and offered a 2-year wage proposal with
a weighted hourly average of $7.10.
On the evening of January 8, the Union held a ratifi-
cation vote on the Respondent’s latest contract offer.
The unit employees voted unanimously to reject the
proposals, but they voted against a strike. Ritz in-
formed Burtch of the employees’ vote and requested
an additional extension of the contract, but Burtch re-
fused his request, testifying that he felt a further exten-
sion would simply delay resolution of the bargaining
issues.
When the parties met again on January 14, Burtch
presented a new economic proposal which involved a
restructuring of job classifications and an average
hourly wage of $7.25. The parties did not reach agree-
ment.
The next bargaining session was held on January 15
with a mediator present. Neither party submitted any
new proposals. Burtch told the Union that he had put
the Respondent’s final proposals on the table on Janu-
ary 14. Burtch asked whether there were any non-
economic concessions that the Respondent could make
to make its economic package acceptable to the
Union.15 The Union did not identify any precise con-
cessions.
On January 16, the Union received a telegram from
the Respondent stating that unless the Union agreed to
break the ‘‘impasse’’ and accept the Respondent’s
final January 14 proposal prior to January 20, the Re-
spondent would implement the wages and benefits of
that offer. On January 20, the unit employees voted
unanimously to reject the Respondent’s final offer. On
January 21, the Respondent implemented the wages
and benefits proposed in its January 14 offer, but did
not implement any noneconomic terms. That same day,
the Union by telegram denied the existence of an im-
passe, asked for the ‘‘immediate resumption of nego-
tiations,’’ and indicated that it was prepared to offer a
counterproposal.
Further negotiations were held on January 27 with
a Federal mediator present. The Union presented a
counteroffer, proposing, inter alia, the use of Blue
Cross/Blue Shield medical insurance coverage and the
elimination of two holidays if the Respondent would
agree to a union-security clause. The Union also
agreed to certain cost-saving medical insurance pro-
posals that the Respondent had made and to the elimi-
nation of dental coverage.
At this bargaining session, Prenatt told Burtch that
if the Respondent would modify its demands for wage
cuts, the Union would modify its proposed wage freeze
and accept some cuts. Additionally, the mediator in-
formed the Respondent that the Union was flexible on
wages and benefits and holidays. In response, Burtch
stressed that the Respondent was not going to modify
its January 14 offer, and continued to insist that the
parties were at impasse.
In about February, one of the Respondent’s owners
donated $10,000 to a local church. The church sent a
letter to the Respondent’s employees informing them
about the availability of the funds.16 Interested persons
973A.M.F. BOWLING CO.
bills or difficulty in meeting other payments will be given top
priority.
17 Mallette testified that at that time there were 104 unit employ-
ees.
18 Specifically, the Union requested copies of the summary plan
description, the trust instrument and the plan instrument for the new
plan, and records of current accrued benefits under the new plan.
19 The Respondent sent a statement of total monthly retirement
contributions for 1987, a 1985 pension plan summary, and docu-
ments regarding the transfer of assets between the Respondent and
Minstar, and the Respondent’s obligation to designate a successor
pension plan.
were to contact Evan Zehr, who served on the distribu-
tion committee and was also one of the Respondent’s
supervisors. A number of unit employees subsequently
received financial aid.
On March 4, the Union sent the Respondent a letter
requesting further bargaining. By letter dated March
16, Burtch reiterated the Respondent’s position that the
parties were at impasse, and noted that at the January
27 bargaining session, the Union ‘‘modified its pro-
posals in some minor areas, but made no significant
changes in position.’’ Burtch concluded that ‘‘unless
the Union’s position has altered dramatically, further
meetings would . . . be futile.’’
Despite the Respondent’s position, a mediator ar-
ranged a final meeting for April 30. Corcoran, the
Union’s subdistrict director and spokesperson for the
meeting, indicated that the Union continued to be
flexible and had come ‘‘in the spirit of negotiation.’’
Regarding wages, the Union proposed a 10-percent re-
duction in the rate from the expired contract in the first
year, a 3-percent increase in the second year, and a 4-
percent increase the third year. The Union accepted the
Respondent’s January 14 proposals regarding job se-
lection based on ability rather than seniority, holiday
cuts, and job classifications, as well as some of the Re-
spondent’s health care and vacation accrual proposals.
At the session, Corcoran asked Burtch if the union-se-
curity provision of the contract was causing any dis-
ruption and inquired as to what the problems were in
the area of unit work being performed by nonunit em-
ployees so that the parties could try to arrive at an ac-
ceptable compromise.
Stating that he did not view the Union’s proposal as
‘‘realistic,’’ Burtch asserted that he had wasted his
time in coming to the bargaining session and that the
Respondent wanted the complete acceptance of its Jan-
uary 14 offer. Burtch further suggested that if he were
to devise a counteroffer, it might include changes in
the seniority section of the agreement.
When questioned as to why the Respondent had not
responded favorably to the Union’s proposed wage
cuts, Burtch responded that, because the employees
were actually working at the lower wage rates which
the Respondent had implemented in January, the
Union’s April 30 proposal actually involved an in-
crease in the prevailing wage rates. Burtch admitted
that he did not cost out the Union’s counterproposal.
On May 17, the Respondent informed the Union and
its members that it was unilaterally changing the vaca-
tion accrual system to conform to that of the salaried,
nonunit employees.
On May 28, the Respondent withdrew recognition
from the Union based on a petition signed by 69 unit
employees stating that they no longer wished to be
represented by the Union.17 Beginning in June, the Re-
spondent applied the policies contained in its salaried
employees’ personnel manual to its unit employees.
The Respondent also encouraged and established an
employee grievance committee, and implemented pro-
duction bonuses, a profit-sharing plan, a merit-review
program, a 401(k) plan, and employee cash awards.
On August 6, the Union submitted a written request
for information regarding the establishment of the new
pension plan, and the amount and manner of contribu-
tions under that plan.18 The Union stated that it needed
the information to verify that contributions deducted
from the employees’ paychecks were being remitted to
the new plan. By letter dated August 25, the Respond-
ent indicated that it was reviewing the information re-
quested, and that it would respond ‘‘as soon as it is
available, to the extent appropriate.’’ On October 15,
the Respondent sent the Union some of the requested
information.19 Burtch testified that he did not provide
the Union with a copy of the plan because it was not
drawn up until January 1988, and attributed the 2-
month delay in providing some of the information to
difficulties he had in ‘‘pull[ing] all this, these different
pieces together.’’
1. In analyzing the complaint’s allegation that the
Respondent bargained in bad faith during contract ne-
gotiations with the Union, we first note that Section
8(d) of the Act does not require either party in collec-
tive bargaining to agree to a proposal or to make a
concession. See, e.g., Houston County Electric Cooper-
ative, 285 NLRB 1213 (1987). To determine whether
an employer has bargained in bad faith, it is necessary
to examine the totality of the employer’s conduct. See,
e.g., Atlanta Hilton & Tower, 271 NLRB 1600, 1603
(1984).
Applying these principles to the facts here, we find,
for the following reasons, that the several factors relied
on by the judge do not establish that the Respondent
engaged in bad-faith bargaining. In particular, we find
that the judge’s finding of bad faith was based in large
part on his subjective evaluation of the Respondent’s
proposals, and that the judge failed to consider ade-
quately the totality of the circumstances. For the rea-
sons set forth below, however, we agree with the
judge’s finding that there was no genuine impasse
when the Respondent implemented the economic terms
of its January 14 offer.
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 For the above reasons, we also find, contrary to the judge, that
the Respondent’s adherence to its noneconomic proposals was not
evidence that Burtch lacked the authority to make bargaining conces-
sions. Rather, we find that the Respondent engaged in lawful hard
bargaining by standing firm on certain of its proposals.
The judge found that, throughout the entire course
of bargaining, the Respondent made both economic
and noneconomic proposals that were designed to frus-
trate agreement. The judge found that the Respondent
insisted on noneconomic proposals that would elimi-
nate provisions from the contract that were essential to
the Union’s role as bargaining representative. In par-
ticular, the judge found that the Respondent’s pro-
posals to eliminate the union-security clause from the
existing contract; to provide that selections for bidding
and bumping would be made according to ability, as
determined by the Company, rather than by seniority;
and to provide without limitation that nonbargaining
unit personnel could perform unit work indicated a
bad-faith bargaining posture. The judge also cited as
evidence of bad faith the Respondent’s proposals to
eliminate disputes relating to job grades and seniority
from the grievance procedure, finding that such pro-
posals were ‘‘predictably unpalable [sic] to the
Union.’’
Examining the proposals relied on by the judge, we
find that they do not establish that the Respondent en-
gaged in bad-faith bargaining, or undertook to deni-
grate the Union’s representational role. First, we dis-
avow the judge’s characterization of certain of the Re-
spondent’s proposals as ‘‘inflammatory’’ or
‘‘unpalatable.’’ The Board stated in Reichhold Chemi-
cals, 288 NLRB 69 (1988), revd. on other grounds sub
nom. Teamsters Local 515 v. NLRB, 906 F.2d 719
(D.C. Cir. 1990), that its examination of specific bar-
gaining proposals will not involve decisions ‘‘that par-
ticular proposals are either ‘acceptable’ or ‘unaccept-
able’ to a party.’’ Rather, the Board will examine pro-
posals, when appropriate, and will consider whether,
on the basis of objective factors, a proposal is clearly
designed to frustrate agreement on a collective-bar-
gaining contract. Id. at 69.
In finding that the Respondent’s proposal to elimi-
nate union security evidenced bad-faith bargaining, the
judge emphasized that the only reason the Respondent
advanced for its proposal was a philosophical one, and
faulted the Respondent’s failure to trade off union se-
curity in order to achieve from the Union the wage cut
that it was seeking or to present alternative union-secu-
rity proposals. We disagree on both counts.
The existence of a union-security clause in previous
contracts does not by itself obligate the parties to in-
clude it in successive agreements. Challenge-Cook
Bros., 288 NLRB 387, 388 (1988) (and cases cited
therein). Further, a party may stand firm by a bar-
gaining proposal legitimately proffered. Atlas Metal
Parts Co. v. NLRB, 660 F.2d 304, 308 (7th Cir. 1981).
In this case, the General Counsel has failed to dem-
onstrate that the Respondent asserted its proposal dis-
ingenuously or was unwilling to discuss union security
with the Union. Nor is there sufficient evidence that
the Respondent adhered to its proposal with the intent
to frustrate agreement. See Logemann Bros. Co., 298
NLRB 1018, 1020 (1990); Challenge-Cook Bros.,
above.
With regard to the question of whether the Respond-
ent adhered to its position on union security in order
to frustrate agreement, we note that, on January 15,
Burtch asked if there were any noneconomic conces-
sions the Respondent could offer to make its economic
proposals acceptable, but the Union failed to identify
any such concessions. Finally, to the extent that the
judge suggested that the Respondent should have prof-
fered alternative proposals or cited problems or com-
plaints with the existing union-security provision, we
find that he attempted to substitute his judgment for
that of the Respondent in assessing the appropriateness
of the substantive terms of its bargaining proposals.
That the Board may not do. See Commercial Candy
Vending Division, 294 NLRB 908, 910 (1989).
Similarly, we find no evidence of bad-faith bar-
gaining based on the Respondent’s adherence to the re-
maining proposals relied on by the judge. In our earlier
decision, we reversed the judge’s finding that the Re-
spondent’s insistence on its proposal giving nonunit
employees the right to perform unit work without limi-
tation was per se unlawful. We find no evidence that
the Respondent’s overall behavior during the negotia-
tions on the unit-work proposal constituted bad-faith
bargaining. Although the judge faulted the Respond-
ent’s failure to propose changing the language to apply
only to supervisors, we note that the Respondent’s pro-
posal was arguably more focused than the provision in
the existing contract which, unlike the bargaining pro-
posal presented, did not specify ‘‘supervisors’’ par-
enthetically. In any event, the law does not require par-
ties to present their proposals in any particular fashion,
or to offer them in the way that would be most appeal-
ing to the other party. Id. at 909 fn. 11. In addition,
the Respondent’s bargaining posture strengthened over
time as the union members voted on January 8 not to
strike. Therefore, the Respondent’s adherence to its
noneconomic proposals was not necessarily indicative
of an intent to avoid reaching agreement with the
Union. See L. W. Le Fort Co., 290 NLRB 344, 345
(1988).20
The judge also relied on the Respondent’s proposals
to eliminate seniority as a factor in determining bump-
ing and bidding rights and to remove job grading from
the grievance procedure as evidence that the Respond-
ent was seeking to denigrate the Union’s representa-
tional role. In our prior decision, we corrected the
975A.M.F. BOWLING CO.
21 In Logemann Bros., the respondent proposed a broad manage-
ment-rights clause and the elimination of union-shop and dues-
checkoff provisions. In Sage Development Co., the respondent pro-
posed a voluntary hiring hall, unilateral employer classification of
new employees, and a no-strike clause with no exceptions.
22 In view of the court’s holding, we do not rely on the Respond-
ent’s failure to provide the Union with its wage surveys as evidence
of bad faith.
23 In Anaheim Plastics, the Board adopted the judge’s finding that
the respondent did not bargain in bad faith. In so finding, the judge
relied on the fact that the respondent, inter alia, adhered to its eco-
nomic proposals based on its position that the labor market did not
compel higher compensation to attract workers.
24 As additional evidence of the confusion, we note that the judge
was internally inconsistent in his opinion about the value of various
of the Respondent’s wage proposals. For example, the judge charac-
terized the Respondent’s December 16 wage proposal as both a 24-
percent cut and a 22-percent cut, and assigned inconsistent values to
the weighted hourly average of the January 7 offer and to the value
of the pay cut that it represented. We further note Mallette’s testi-
mony that the Respondent’s December 16 and January 7 proposals
were essentially different, and thus difficult to compare, because
they involved different numbers of job grades to be used in com-
puting their weighted hourly average wage rates.
judge’s findings that the Respondent insisted through-
out negotiations on a proposal to make job selection
and grading nongrievable, finding that the Respondent
dropped these proposals during the January 8 negoti-
ating session. Further, we do not agree with the
judge’s finding that the Respondent’s noneconomic
proposals would have denigrated the Union’s represen-
tational role or rendered substantial portions of the
contract unenforceable. As the Respondent notes in
this regard, it did not seek, for example, to expand the
management-rights clause, limit the Union’s right to
strike, expand its authority over discharge and dis-
cipline, or modify the dues-checkoff arrangement.
Thus, we find that this case is distinguishable from
Prentice-Hall, Inc., 290 NLRB 646 (1988), relied on
by the judge, in which the Board inferred from the
combination of proposals that the employer was seek-
ing—including a sweeping management-rights clause
and a broad no-strike clause with no effective griev-
ance-and-arbitration procedure—that it did not want to
reach agreement because the union would be in a bet-
ter position simply relying on its certification than
agreeing to the employer’s proposed contract offer,
substantial portions of which would have been vir-
tually unenforceable. Rather, the Respondent’s pro-
posals are more analogous to those offered in
Logemann Bros., above, and Sage Development Co.,
301 NLRB 1173 (1991), in which, in the context of fi-
nancial losses suffered by the respondents and an ap-
parent need for economic concessions, the Board found
that the respondents’ proposals did not involve virtual
abolition of the unions’ representational roles.21
With regard to the Respondent’s economic pro-
posals, which were central to the negotiations, the
judge found that the Respondent bargained in bad faith
by rigidly adhering to its demands for huge wage cuts
and severe reductions in benefits and then, in the face
of demonstrated flexibility by the Union as to its eco-
nomic proposals, making wage proposals that were re-
gressive.22 Again, we disagree.
Proposals that seek deep reductions in allegedly
noncompetitive existing benefits do not necessarily in-
dicate a desire to frustrate negotiations. Concrete Pipe
& Products Corp., 305 NLRB 152, 153 (1991), enfd.
983 F.2d 240 (D.C. Cir. 1993). Here, the court found
that the Respondent’s new owners made clear through-
out negotiations their position that the wages at
Lowville were higher than wages elsewhere and that
the plant was losing money. The court further found
that there was no evidence that the Union disbelieved
the Respondent’s claim about the Lowville wage rates
or disputed the Respondent’s point that the Company’s
previous owners had recently negotiated a collective-
bargaining agreement with the Shelby workers in
which the workers agreed to a 24-percent wage cut.
Mallette testified that the Union was aware of the con-
cessions negotiated at the Shelby plant. Thus, it is ap-
parent that the Respondent viewed itself as being in a
strong bargaining position and not readily susceptible
to pressure to make concessions. See Anaheim Plas-
tics, 299 NLRB 79, 100 (1990).23 As the Board stated
in Concrete Pipe, 305 NLRB at 153, ‘‘[a]n employer’s
desire to bring its labor costs in line with its competi-
tors, standing alone, is not an illegitimate bargaining
goal.’’
We also reject the judge’s finding that the Respond-
ent demonstrated bad faith by making a regressive
wage proposal on January 7. In our initial decision, al-
though we found that the Respondent’s January 7 pro-
posal was regressive when compared to the Respond-
ent’s December 16 proposal, we noted that the evi-
dence concerning the number of unit employees that
the Respondent employed on January 7, necessary for
computing the weighted hourly average wage rates, is
not clear. See 303 NLRB at 168 fn. 5.24 In any event,
we do not find that the Respondent’s regressive pro-
posal on January 7 establishes bad faith. A regressive
economic position during bargaining is not of itself
dispositive of the good-faith issue where economic
considerations and the ability to compete motivate the
regressive bargaining stance. See Hyatt Regency Mem-
phis, 296 NLRB 259, 314 (1989). Moreover, here it is
undisputed that the Respondent’s January 8 and 14 of-
fers, which had weighted averages of $7.10 and $7.25,
respectively, were in fact more generous than the De-
cember 16 and January 7 offers.
We also disavow the judge’s finding that the Re-
spondent demonstrated bad faith in February by estab-
lishing a $10,000 fund through a local church for the
purpose of assisting employees who had experienced
financial difficulties as a result of the economic cuts
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 For these reasons, we do not rely on the judge’s finding that
Burtch’s testimony concerning the Respondent’s lack of time to pre-
pare for negotiations by December 3 was untruthful and dem-
onstrated a lack of credibility.
26 Cf. Hayward Dodge, 292 NLRB 434, 465–466 (1989) (not evi-
dence of bad-faith bargaining that during the first bargaining session
respondent refused to submit a contract proposal to the union until
after respondent first considered the union’s proposal).
that the Respondent implemented after declaring im-
passe. Mallette, whom the judge credited, testified that
Goodwin, one of the Respondent’s owners, donated
money to the church ‘‘for use as they saw fit,’’ and
that Zehr, who was one of the Respondent’s super-
visors, was a member of the church’s committee that
reviewed requests for money. A letter was sent to em-
ployees to inform them about the funds but it did not
identify the source of the money. There is no evidence
that the employees were aware, or even suspected, that
the donation was a personal contribution from the Re-
spondent’s owner. Under the circumstances, we are un-
able to find that the church’s fund was an indicium
that the Respondent bargained in bad faith.
In support of his finding that the Respondent bar-
gained in bad faith, the judge also found that the Re-
spondent was not prepared to bargain. Specifically, the
judge found that although the Respondent had several
months to prepare for collective bargaining, it was un-
prepared to submit any proposal at the initial bar-
gaining session on December 3 and submitted an in-
complete economic proposal on December 16. The
judge further relied on the fact that the Respondent did
not begin to prepare figures and proposed job classi-
fications until after the December 16 meeting, and did
not submit its initial wage offer and job classification
structure until January 7, a day before the extended
agreement was to expire. In finding this conduct to be
evidence of bad faith, the judge cited Professional Eye
Care, 289 NLRB 1376, 1392 (1988), in which the
Board found that the respondent engaged in bad-faith
bargaining where, inter alia, its negotiator was unin-
formed regarding terms and conditions of employment
and had not either consulted the owners or obtained
sufficient bargaining authority to make proposals vary-
ing from the status quo. The Board in Professional Eye
Care further found that the respondent ‘‘did not en-
gage in bargaining in a businesslike way.’’ For exam-
ple, the respondent never submitted written proposals
to the union, lost the union’s proposals, and usually
did not return the union’s calls.
Here, by contrast, Burtch responded promptly when
the Union requested bargaining. The Respondent met
with the Union on seven occasions between December
3 and January 15, 1987. There is no contention that the
Respondent failed to meet at reasonable times and
places. Unlike the judge, we do not find that the Re-
spondent’s failure to prepare a complete wage proposal
until after the second bargaining session is an indica-
tion of bad-faith bargaining. The Board has recognized
that it is not uncommon in the field of collective bar-
gaining for one of the parties to come to the bargain-
ing table with a new negotiator, unfamiliar with the
collective-bargaining history and the informal relations
between the parties. A certain ‘‘breaking in’’ is some-
thing to be expected.25 See U.S. Marine Corp., 293
NLRB 669, 689 (1989); 88 Transit Lines, 300 NLRB
177, 178 (1990), enfd. mem. 937 F.2d 598 (3d Cir.
1991). Here, not only was Burtch a ‘‘new negotiator,’’
but the Respondent at the time of negotiations was
under new ownership. Under the circumstances, we
find that it was not bad faith for the Respondent to lis-
ten to the Union’s proposals at the initial bargaining
meetings before submitting its own proposals.26
Mallette testified that he talked to Burtch a couple
of times on the phone prior to the commencement of
negotiations. In addition, there were conference calls
among Genovese, Burtch, and Mallette in November
and December, and the Respondent in mid-December
decided that its opening offer would start out at the
Shelby level of wages and benefits. The Respondent’s
new owners toured the plant on December 23, and met
with Burtch in late December and early January to dis-
cuss modifications to the Respondent’s initial wage
proposal and the Respondent’s noneconomic bar-
gaining objectives. At this time, the owners presented
Burtch with a document outlining the Respondent’s
bargaining objectives.
As the Board in I.T.T. Rayonier, Inc., 305 NLRB
445, 446 fn. 6 (1991), observed:
there is nothing improper in an employer’s com-
mencing negotiations with a broad outline of pro-
posals that are nonspecific and attempting to ob-
tain through negotiations the Union’s cooperation
in developing contract language to resolve a spe-
cific concern. However, if the Union is unwilling
to participate in that form of negotiation, and the
company nonetheless wishes to achieve its aims,
the company must, to fulfill its bargaining obliga-
tions, put ‘‘meat on the bone.’’ It must submit
proposals that are specific so that the Union can
analyze the impact of the company’s proposals
and take a position on them.
Here, unlike in I.T.T. Rayonier, Inc., the Respond-
ent’s economic proposals became more specific. The
Respondent announced at the initial bargaining session
that it would seek economic concessions because of
manufacturing losses and its perceptions regarding the
market wage rate. After the Union rejected the Re-
spondent’s initial economic proposal on December 16,
which sought the same percentage of wage and benefit
reductions as were in effect at the Shelby plant, the
Respondent on January 7, 8, and 14 presented a series
977A.M.F. BOWLING CO.
27 Similarly, we reject the General Counsel’s contention that the
Respondent demonstrated bad faith by failing to invest Burtch with
sufficient authority to engage in meaningful collective bargaining.
Thus, Burtch reached agreement with the Union on significant con-
tractual items. See Industrial Chrome Co., 306 NLRB 79, 84 (1992).
For example, as discussed above, the Respondent through Burtch
withdrew its proposals to eliminate the Union’s ability to grieve job
grading and job selection decisions. Additionally, there is no evi-
dence that Burtch engaged in other activity that the Board has found
indicative of insufficient bargaining authority. Cf. Wycoff Steel, 303
NLRB 517, 524 (1991); Professional Eye Care, above. Finally, as
we discussed above, under the circumstances present in this case, the
fact that the Respondent stood firm on certain of its noneconomic
proposals is not evidence that Burtch lacked the authority to engage
in meaningful bargaining.
28 This case is distinguishable from Viking Connectors Co., 297
NLRB 95, 106 (1989), cited by the General Counsel, in which the
Board found that the respondent sought to delay negotiations past
the certification year when recognition could be withdrawn.
29 See Coastal Electric Cooperative, 311 NLRB 1126 (1993) (ab-
sent indicia of bad faith, including no evidence of animus or conduct
away from the bargaining table establishing an intent by respondent
to frustrate agreement, the respondent’s failure to make concessions
is not a sufficient manifestation of bargaining with intent to avoid
agreement).
We find that the instant case is distinguishable from American
Meat Packing Corp., 301 NLRB 835 (1991), relied on by the Gen-
eral Counsel. The General Counsel contends that in that case, the re-
spondent offered work preservation and reclassification of job classi-
fications and wage rates proposals that were similar to those offered
by the Respondent here, and that evidenced a ‘‘take-it-or-leave-it’’
approach to bargaining. The General Counsel, in analogizing these
cases, also relies on the fact that in American Meat Packing, the re-
spondent predicted 3 days after the announcement of its new classi-
fication scheme that implementation would take place unilaterally in
the future.
Here, we have found that the Respondent’s insistence on its pro-
posal to permit nonunit employees to perform unit work was not per
se unlawful. Unlike the situation in American Meat Packing, above
at 837 fn. 9, there is no evidence that the Union proposed specific
modifications to the language of the proposal which the Respondent
rejected outright. Additionally, in finding that the respondent in
American Meat Packing bargained in bad faith, the Board relied on
the totality of the circumstances in that case, including the following
factors which are not present here: statements by negotiators indi-
cating that agreement would be reached only by the union accepting
the respondent’s proposals; insistence on contract provisions that to-
gether would effectively nullify the union’s ability to serve as the
employees’ collective-bargaining representative; a systematic cam-
paign directed at employees to disparage and discredit the union; and
threats of job loss and plant closing. Finally, the Board found that
the respondent in American Meat Packing imposed an unlawful con-
dition on the provision of financial information. Here, the court held
that the Respondent’s failure to open its books to the Union was not
a violation of the Act. Thus, the totality of the circumstances in
American Meat Packing, unlike here, manifested an intent to under-
mine employee support for the union and to impose what the re-
spondent had determined at the outset was a fair set of terms and
conditions of employment.
of economic proposals that involved restructuring job
classifications and varying numbers of job grades.
Thus, there is no indication that, as in Professional Eye
Care, the Respondent refused to conduct negotiations
in a ‘‘businesslike manner,’’ by, inter alia, failing to
submit to the Union written proposals.27
Regarding the Respondent’s submission of its eco-
nomic proposals, the judge found that the Respondent
purposefully delayed submitting its wage proposals and
deliberately withheld from the Union the proposed
wages from its written proposal on January 7, the day
before the contract expired, as ‘‘part of its overall
scheme to frustrate bargaining and to rid itself of the
Union.’’ He further found that this conduct was delib-
erate and was evidence of bad-faith bargaining. Citing
the Respondent’s failure to grant the Union a requested
contract extension on January 8 in order to evaluate
the Respondent’s proposals, the judge concluded that
the Respondent bargained in bad faith by failing to
give the Union reasonable time to evaluate and re-
spond to its January 8 and 14 proposals.
Under all the circumstances, we do not find that a
preponderance of the evidence establishes that the Re-
spondent avoided presenting its proposals or concealed
wage rates, or both, in order to avoid reaching agree-
ment with the Union. On January 7, when presented
with the wage proposal that Mallette had prepared dur-
ing the Christmas break, Local President Ritz protested
the wage proposal and questioned the changed job
classifications and number of grades. After the parties
caucused and reconvened, Burtch handed the Union a
revised job classification schedule in which the new
job classifications from its previous proposal were
fitted into the preexisting number of 10 rather than 16
grades. Although the new schedule did not contain
proposed wage rates, the Respondent provided the
missing wage rates on January 8. We are unable to
conclude that, in terms of timing, and the cir-
cumstances of this case, the presentation of these pro-
posals including the absence of wage rates on one of
the January 7 proposals, was designed to frustrate
agreement.28 In particular, we disagree with the
judge’s finding that the Respondent engaged in a cam-
paign to undermine the Union. Examining the Re-
spondent’s conduct prior to its declaration of impasse
on January 16, there is no evidence of animus or pre-
impasse conduct away from the bargaining table estab-
lishing an intent by the Respondent to frustrate agree-
ment.29 Additionally, although the Respondent did not
grant the Union an extension of the contract, we note
that the Union requested the extension after its mem-
bers had voted not to strike. Thus, the Respondent was
in a position of increased bargaining strength. See
L. W. Le Fort Co., 290 NLRB 344 (1988).
On these facts and for all of these reasons, we do
not agree with the judge that the Respondent has dem-
onstrated the kind of intransigence and insistence on
its own proposals that evidences bad faith. Accord-
ingly, we reverse the judge’s finding that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by bar-
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 A party can prematurely declare impasse, but do so in good
faith. See Hayward Dodge, 292 NLRB 434, 466 (1989).
31 See generally Taft Broadcasting Co., 163 NLRB 475, 478
(1967).
32 Under the unaltered proposal in the existing contract, for exam-
ple, employees in certain job grades could bump by seniority into
gaining in bad faith prior to its declaration of impasse.
We shall dismiss that portion of the complaint’s allega-
tions.
2. Although we have found that the Respondent did
not bargain in bad faith before declaring impasse, we
nevertheless find, in agreement with the judge, that the
Respondent’s declaration of impasse on January 16
was premature.30 The Board has defined impasse as
the point in time of negotiations when the parties are
warranted in assuming that further bargaining would
be futile. Pillowtex Corp., 241 NLRB 40, 46 (1979).
‘‘Both parties must believe that they are at the end of
their rope.’’ PRC Recording Co., 280 NLRB 615, 635
(1986), enfd. 836 F.2d 289 (7th Cir. 1987).31 Applying
these principles here, we find no basis for concluding
that the parties were at impasse on January 16. Prior
to the Respondent’s statement of impasse on that date,
the parties had met on seven occasions in December
and January. However, the Respondent had presented
only a general economic proposal on December 16, at
which time Burtch had not yet familiarized himself
with the existing contract. Further, the various and
more detailed economic proposals that the Respondent
presented on January 7, 8, and 14 differed from one
another and from the existing wage and grade/class-
ification system in terms of the number of job grades,
the classifications in each grade, and the wage rates as-
signed to each job grade.
The Union demonstrated flexibility throughout the
course of bargaining. For example, with respect to the
parties’ economic proposals, the Union initially moved
from requesting an 8-percent wage increase to a 6-per-
cent wage increase. On January 6, the Union indicated
that it would consider benefit reductions if the Re-
spondent would reconsider its demand for reduced
wages. On January 7, the Union proposed a bifurcated
wage structure involving a wage freeze for the Re-
spondent’s present employees and a wage reduction for
new hires, and then offered to accept a wage freeze
and move on economic benefits if the Respondent
would agree to the retention of a union-security clause
in the contract. Finally, on January 8, the Union of-
fered to accept the Respondent’s benefit package in ex-
change for a first-year wage freeze in lieu of cuts, and
also raised the possibility of implementing a profit-
sharing program. Given this movement by the Union,
the Respondent was not justified in concluding that ne-
gotiations were at impasse simply because the Union’s
concessions were not more comprehensive or suffi-
ciently generous. See Larsdale, Inc., 310 NLRB 1317,
1319 (1993) (and cases cited therein); Wycoff Steel,
supra (no impasse where, inter alia, both parties had
moved during seven bargaining sessions and the union
consistently and continuously advised the respondent
of its willingness to be flexible). Similarly, the Re-
spondent was not justified in failing to explore the
Union’s offers to discuss potential tradeoffs for, or al-
ternatives to, wage reductions because of its asserted
perception that the Union would not agree to wage re-
ductions. Rather, the Respondent was required to give
the bargaining process a chance to work. See Stephen-
son-Yost Steel, 294 NLRB 395, 396 (1989). As the
court held in NLRB v. Eltec Corp., 870 F.2d 1112,
1117 fn. 2 (6th Cir. 1989):
Respondent’s duty to bargain . . . is not negated
by the possibility or even the substantial prob-
ability that the Union would not agree to respond-
ent’s proposed economic concessions. The pur-
pose of the duty to bargain is to give the collec-
tive bargaining process a chance to operate re-
gardless of the possibility of success. To hold oth-
erwise would allow employers and unions to skip
the bargaining stage altogether based upon their
perceptions regarding the low probability of
reaching an agreement.
We acknowledge that on January 15, the Union,
when asked by Burtch if there were any noneconomic
concessions that the Respondent could make to make
its economic package acceptable, did not identify any
precise concessions. However, the Union, which had
already demonstrated substantial flexibility through its
various counterproposals, did not indicate that no fur-
ther concessions could be expected. Moreover, we note
that at this time, the Respondent had not furnished the
Union with requested information regarding its pension
plan and health insurance plans, and many of the ques-
tions that the Union had asked during negotiations re-
mained unanswered, including questions about job
classifications that had been eliminated. The Respond-
ent had also refused, without explanation, even to con-
sider the Union’s suggestion of profit sharing. We fur-
ther find that the Respondent’s failure to settle the du-
ration of the contract that it had proposed precluded
final resolution of its economic package. This omission
further supports our finding that the Respondent failed
to establish that further bargaining would have been
futile when it declared impasse on January 16. See
Outboard Marine Corp., 307 NLRB 1333, 1336
(1992).
Regarding the Respondent’s January 14 final offer,
Local President Ritz testified that the Union was trying
to determine how the new classifications in the pro-
posal would affect benefits and other terms and condi-
tions of employment, such as bumping and bidding
rights.32 In this regard, we note that it was not until
979A.M.F. BOWLING CO.
positions in specified grades. By reducing the number of job classi-
fications in some of the grades, the Respondent’s proposals limited
the number of job classifications in which to move.
33 We note, in fact, that at the meeting on January 27, after the
Respondent had implemented its last proposal, the Union offered to
accept wage cuts for current employees, as well as for new hires.
We do not regard this evidence postdating the alleged impasse as in
any way essential to the finding that there was no impasse on the
date that the Respondent declared it. Rather, we cite it as further evi-
dence that the union representatives’ statements that no concessions
would be made unless the Respondent opened its books were not,
as in Concrete Pipe, manifestations of an attitude that would make
‘‘the collapse of negotiations . . . ‘inevitable.’’’ 305 NLRB at 153.
January 8 that the Respondent dropped its proposals
that job selection and grading would not be grievable.
Under the circumstances, we find that, as in Herman
Bros., Inc., 307 NLRB 724 (1992), ‘‘further bargaining
was clearly required before impasse could be reached,
even if only to provide the Union a basis for under-
standing the economic significance of the totally new
wage formula.’’ See also NLRB v. WPIX, 906 F.2d
898, 901–902 (2d Cir. 1990), enfg. 293 NLRB 10
(1989).
In finding that the parties were not at impasse in
January, we reject the Respondent’s contentions that
what it characterizes as the Union’s repeated assertions
that it would not consider wage cuts until the Respond-
ent opened its books presented an obstacle to settle-
ment and ‘‘stymied the negotiations.’’ In making this
argument, the Respondent relies on Concrete Pipe &
Products Corp., 305 NLRB 152, 153–154 (1991), in
which, as in this case, the Steelworkers Union was rep-
resented at negotiations by Business Agent George
Prenatt. In Concrete Pipe, following the respondent’s
demands at the outset of negotiations for substantial re-
ductions in existing benefits, Prenatt stated that it was
a policy of the International Union ‘‘not to negotiate
for concessions unless they were given the company
books.’’ The Board found that the collapse of negotia-
tions in Concrete Pipe was attributable to the union’s
insistence that the respondent furnish financial infor-
mation and the respondent’s refusal to do so, which
the Board found was justified.
We acknowledge the similarities between Prenatt’s
demands to see the company’s books during the nego-
tiations at issue in Concrete Pipe and his demands to
see the Respondent’s books during the negotiations at
issue here; but we see certain crucial differences that
warrant a finding here that the parties were not at im-
passe on January 16 when the Respondent declared im-
passe or on January 21, when the Respondent imple-
mented the wages and benefits proposed in its latest
offer. According to some of the testimony on which
the Respondent relies, on December 3, the union rep-
resentatives had responded to the Respondent’s de-
mands for concessions in wages and benefits by main-
taining that no concessions would be considered unless
the Respondent opened its books. Yet at the January
6 session the Union stated it would consider accepting
benefit reductions, and on January 7 it offered to ac-
cept cuts in the wage levels for new hires. This bar-
gaining table conduct was a clear indication that the
demands for financial information, even if not com-
plied with by the Respondent, were not immutable bar-
riers to the Union’s agreement to make concessions.
Furthermore, as the Respondent concedes in its brief in
support of its exceptions, it had been advised by the
mediator on January 14 that the Union was prepared
to take a wage cut of $1 an hour. Although the Re-
spondent’s negotiators were annoyed that the Union
did not actually make that offer on January 15, it was
not clear that further bargaining would be futile, i.e.,
that the Union would make no further movement on
items important to the Respondent and that the parties
had ‘‘exhausted the prospects of concluding an agree-
ment.’’ Taft Broadcasting Co., 163 NLRB 475, 478
(1967).33
For these reasons, we agree with the judge that there
was not a genuine impasse on January 16, and that by
prematurely declaring impasse and by subsequently
implementing its economic proposals on January 21,
the Respondent violated Section 8(a)(5) and (1) of the
Act. See Larsdale, Inc., above, 310 NLRB at 1319.
3. Relying on the absence of a valid impasse, we re-
affirm our findings that the Respondent committed ad-
ditional violations of Section 8(a)(5) of the Act. Re-
garding the Respondent’s May 28 withdrawal of rec-
ognition, it is well settled that a good-faith doubt as
to a union’s continuing majority status can arise only
in a context free of the coercive effect of unfair labor
practices of such a character as to either affect the
union’s status, cause employee disaffection, or improp-
erly affect the bargaining relationship itself. Lee Lum-
ber & Building Material, 306 NLRB 408, 424 (1992).
The Board has recognized that unlawful unilateral
changes made in the absence of a genuine impasse in
negotiations tend to cause employee disaffection with
their bargaining representative. See NLRB v. Powell
Electrical Mfg., 906 F.2d 1007 (5th Cir. 1990), enfg.
as modified on other grounds 287 NLRB 969 (1987).
We therefore find that the Respondent was not privi-
leged to withdraw recognition from the Union on the
basis of the employees’ petition, and that the Respond-
ent’s withdrawal of recognition was unlawful. Addi-
tionally, we find that the Respondent violated Section
8(a)(5) by thereafter implementing additional unilateral
changes and by dealing directly with employees re-
garding terms and conditions of employment, including
forming and encouraging employee grievance commit-
tees. See Allied-Signal, Inc., 307 NLRB 752, 753–754
(1992); T.L.C. St. Petersburg, 307 NLRB 605, 610
(1992). We further find that the Respondent violated
Section 8(a)(5) by refusing to provide the Union with
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 In the underlying case, the Board inadvertently failed to con-
sider the General Counsel’s contention, made in his cross-exceptions,
that the Respondent’s unexplained 2-month delay in providing some
of the information constituted a further violation of Sec. 8(a)(5). We
find merit in the General Counsel’s contention, and shall amend our
previous Order and notice accordingly. See Radisson Plaza Min-
neapolis, 307 NLRB 94, 95 (1992), enfd. 987 F.2d 1376 (8th Cir.
1993); D.J. Electrical Contracting, 303 NLRB 820 fn. 1 (1991);
Champ Corp., 291 NLRB 803, 879 (1988), enfd. 933 F.2d 688 (9th
Cir. 1990).
35 Cf. Hospitality Care Center, 307 NLRB 1131, 1135–1136
(1992) (judge rejected the respondent’s defense that its refusal to
meet unless the union demonstrated flexibility was motivated by its
belief that impasse had been reached, finding that the respondent’s
actions were motivated by the filing of a decertification petition).
36 We further note that Burtch admitted that he did not cost out
the Union’s April 30 proposal.
37 We have modified our previous Order and notice to conform to
the violations found.
Member Cohen does not pass on whether Burtch’s 8(a)(5) state-
ment was an additional violation of the Act. In this regard, he has
substantial doubt as to the correctness of the majority’s conclusion,
and he notes that a finding of such a violation would not add signifi-
cantly to the remedy.
information that was requested on August 6 regarding
the Respondent’s pension plan.34
Additionally, we reaffirm our finding that the Re-
spondent violated Section 8(a)(5) by its March 16 let-
ter in which Burtch reiterated the Respondent’s posi-
tion that the parties were at impasse and indicated that
the Respondent would not bargain further unless the
Union ‘‘altered dramatically’’ its bargaining proposals.
As we discussed, in the absence of a valid impasse, the
Respondent could not legitimately precondition further
negotiations on the Union’s willingness to alter its bar-
gaining stance. 303 NLRB at 170.35
Finally, we reaffirm our finding that Burtch’s state-
ment at the April 30 bargaining session that the Union
had ‘‘wasted his time’’ by arranging to meet, consid-
ered in the context of significant concessions by the
Union, demonstrated an intent not to reach agreement
and thus violated Section 8(a)(5). In 88 Transit Lines,
300 NLRB at 179, the Board found that similar state-
ments made by the respondent’s representatives at the
early ‘‘get acquainted’’ bargaining sessions were not
manifestations of bad faith. In so finding, the Board re-
lied on the fact that at least one of the statements ap-
peared not to be a response to bargaining generally,
but was ‘‘the result of momentary pique at what was
viewed as a demand by the Union that the Respondent
agree to the Union’s entire initial contract proposal.’’
Additionally, the Board in 88 Transit Lines focused on
the parties’ actual conduct at subsequent bargaining
sessions, finding that agreement was reached on a
number of issues.
‘‘An opening negotiating position often bears little
resemblance to the conditions ultimately accepted after
rounds of serious bargaining.’’ NLRB v. WPIX, 906
F.2d at 902. Here, however, unlike the situation in 88
Transit Lines, Burtch’s statement that negotiations
would be a waste of time were not part of the bluster
and banter of bargaining table rhetoric during the early
stages of negotiations. See also D.C. Liquor Whole-
salers, 292 NLRB 1234, 1235 fn. 6 (1989), enfd. 924
F.2d 1078 (D.C. Cir. 1991). Rather, the statement was
made at the final bargaining session after the Union
demonstrated significant movement by proposing a 10-
percent reduction in the wage rate from the expired
contract for the first year. In view of the Union’s pro-
posal, the Respondent’s contention that the Union
never moved on the pivotal wage issue is plainly with-
out merit. Considered also in the context of the Re-
spondent’s unlawful unilateral changes and its March
6 statement unlawfully conditioning any further bar-
gaining, we find that Burtch’s statement demonstrated
an intent not to reach agreement.36 See White-Evans
Service Co., 285 NLRB 81, 97 (1987) (respondent’s
statement that further negotiations were a waste of
time impeded the possibility of a bargaining agree-
ment).37
SECOND AMENDED CONCLUSIONS OF LAW
Substitute the following for Amended Conclusion of
Law 5.
‘‘5. The Respondent has engaged in unfair labor
practices in violation of Section 8(a)(5) of the Act by:
(a) making unilateral changes in its employees’ terms
and conditions of employment; (b) refusing to bargain
with the Union unless there was a dramatic alteration
in the Union’s bargaining proposals; (c) accusing the
Union of wasting its time during contract negotiations;
(d) withdrawing recognition from the Union; (e) deal-
ing directly with unit employees with respect to terms
and conditions of employment by forming and assist-
ing employee grievance committees; and (f) failing to
provide or delaying in providing the Union with infor-
mation regarding the employees’ pension plan.’’
ORDER
The National Labor Relations Board reaffirms its
Order in the underlying proceeding, 303 NLRB 167
(1991), as modified, and orders that the Respondent,
A.M.F. Bowling Company, Inc., Lowville, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Prematurely declaring an impasse in collective-
bargaining negotiations.’’
2. Substitute the following for paragraph 1(g).
‘‘(g) Failing to provide to the Union or delaying in
providing, on request, pension plan information regard-
ing the terms and provisions of the plan and contribu-
tions made on the unit employees’ behalf.’’
3. Delete paragraph 2(e) and reletter the remaining
paragraphs.
981A.M.F. BOWLING CO.
4. Substitute the attached notice for that set forth in
our underlying decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT prematurely declare an impasse in
collective-bargaining negotiations.
WE WILL NOT withdraw recognition from the Union
as the exclusive collective-bargaining representative of
employees in the unit described below.
WE WILL NOT refuse to meet and bargain with the
Union until the Union has dramatically altered its bar-
gaining proposals.
WE WILL NOT accuse the Union of wasting our time
during collective-bargaining negotiations.
WE WILL NOT unilaterally institute wage reductions
for our employees or change their pension, health, in-
surance plans, and other benefits.
WE WILL NOT encourage our employees to bypass
the Union by forming and assisting employee griev-
ance committees.
WE WILL NOT on request fail to provide or delay in
providing the Union with pension plan information re-
garding the terms and provisions of the plan and con-
tributions made on behalf of the unit employees.
WE WILL NOT maintain portions of our employee
manual that indicate that our severance benefits plan
automatically excludes employees who are members of
bargaining units.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, recognize and bargain in good
faith with the Union as the exclusive collective-bar-
gaining representative of the employees in the unit de-
scribed below with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment and, if an understanding is reached,
embody that understanding in a written, signed agree-
ment. The bargaining unit is:
All hourly paid plant production and maintenance
employees including janitors at our plants located
at Trinity Avenue, South State Street and Utica
Blvd., all in Lowville, New York; excluding of-
fice and clerical employees, technicians, guards
(firemen-watchmen), foremen and all other super-
visors as defined in the Act.
WE WILL restore and place in effect all terms and
conditions of employment provided by the contract
that expired on January 8, 1987, which we unilaterally
changed, except in such cases in which the Union may
request that a particular change not be revoked.
WE WILL make whole the unit employees for any
loss of wages or other benefits they suffered by the
implementation of our January 14, 1987 contract pro-
posals or by the unilateral changes we made following
our withdrawal of recognition from the Union.
WE WILL make contributions to any fund established
by our collective-bargaining agreement with the Union
which was in existence as of January 8, 1987, and
which would have been paid but for the unlawful uni-
lateral changes we made.
WE WILL, on request, furnish the Union with pen-
sion plan information regarding the terms and provi-
sions of the plan and the contributions made to the
plan on behalf of the unit employees.
WE WILL eliminate from our employee manual lan-
guage indicating that employees who are members of
bargaining units are automatically excluded from par-
ticipation in our severance benefit plans.
A.M.F. BOWLING COMPANY, INC.