Area Trade Bindery Co.

National Labor Relations Board - Board Decisions

Feb 29, 2008

352 N.L.R.B. 172 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 29
172
Area Trade Bindery Co. and Graphic Communica-
tions Union Local 404, Graphic Communica-
tions Conference of the International Brother-
hood of Teamsters. Cases 31–CA–26970 and 31–
CA–27500
February 29, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On May 16, 2006, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions with supporting argument, and the Gen-
eral Counsel and the Charging Party each filed cross-
exceptions with supporting argument. The Charging
Party filed an answering brief to the Respondent’s excep-
tions and to the General Counsel’s cross-exceptions.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions3 as modified
and to adopt the recommended Order as modified.4

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh. Pursuant to this delegation, Board Members Lieb-
man and Schaumber constitute a quorum of the three-member group.
As a quorum, they have the authority to issue decisions and orders in
unfair labor practice and representation cases. See Sec. 3(b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(5) and (1) of the Act by: (i) withdrawing
recognition from the Union and refusing to bargain with the Union
from June to November 2004, and (ii) unilaterally changing its contri-
bution levels for the employees’ 401(k) plan in July 2004, without
notice to or bargaining with the Union.
The Charging Party excepts to the judge’s failure to find separate
violations of the Act for certain proposals implemented by the Respon-
dent, including its wage, no-strike, management-rights, subcontracting,
and union-security proposals. The Charging Party, citing McClatchy
Newspapers, 321 NLRB 1386, 1390 (1996), enfd. 131 F.3d 1026 (D.C.
Cir. 1997), cert. denied 524 U.S. 937 (1998), argues that those propos-
als could not have been implemented even if the parties had been at
impasse. We deny the Charging Party’s exception because it imper-
missibly enlarges upon the General Counsel’s theory of the case, which
does not include any allegation that the Respondent’s implementation
of those proposals independently violated the Act. Kimtruss Corp., 305
NLRB 710, 711 (1991).
3 In adopting the judge’s conclusion that the parties were not at im-
passe on March 17, 2005, we consider the factors identified in Taft
Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub nom. Televi-
sion Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968), and
weighed by the judge. In particular, we rely on the limited number of
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to bargain with the Union as the exclusive
collective-bargaining representative of the bargaining
unit and, if requested by the Union, to rescind any unilat-
eral changes in wages, benefits, and conditions of em-
ployment implemented on March 17, 2005, and thereaf-
ter. We shall order the Respondent to make whole the
unit employees and former unit employees for any loss
of wages or other benefits they suffered as a result of the
Respondent’s implementation of new terms and condi-
tions of employment in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, we shall require Respondent, upon request of
the Union, to rescind the changes in the 401(k) plan that
it made on July 30, 2004, restore the 401(k) plan that
existed before the unlawful change, and make employees
whole for the losses they suffered in the manner set forth
in Merryweather Optical Co., 240 NLRB 1213 (1979).

postsettlement negotiation sessions held prior to the Respondent’s
declaration of impasse, the Respondent’s failure to explain its regres-
sive changes to prior tentative agreements and proposals, and the Re-
spondent’s rejection of the Union’s counteroffer and its subsequent
declaration of impasse without any discussion over the Union’s propos-
als. In making this finding, however, we do not rely on the judge’s
citation to Jano Graphics, Inc., 339 NLRB 251 (2003), nor do we rely
on the parties’ conduct after March 17, 2005.
Member Schaumber, in adopting the judge’s conclusion that the par-
ties were not at impasse on March 17, 2005, reasserts his general views
that a party’s unwillingness to engage in mediation is not necessarily an
indicia of bad faith, and that both parties need not agree that an impasse
has been reached in order for the Board to find the parties are at im-
passe.
4 We shall modify the judge’s remedy to include the Board’s tradi-
tional make-whole language for any loss of wages and benefits result-
ing from the Respondent’s unilateral implementation of its final offer in
violation of Sec. 8(a)(5) and (1) of the Act. In addition, we shall mod-
ify the judge’s recommended Order and substitute a new notice to
conform to our findings and to the Board’s standard remedial language.
The Charging Party requests that the Board order the Respondent to
reinstate tentative agreements that were rescinded in the Respondent’s
final offer. The Charging Party cites cases in which the Board ordered
a similar remedy. See Driftwood Convalescent Hospital, 312 NLRB
247 (1993), and Suffield Academy, 336 NLRB 659 (2001). The cases
cited by the Charging Party, however, involve instances in which the
Board found a violation for unlawful regressive bargaining. Here, the
General Counsel did not allege that the Respondent’s withdrawal from
tentative agreements independently violated the Act, nor did the judge
find such a violation. Accordingly, although we consider the Respon-
dent’s withdrawal from tentative agreements as evidence that the par-
ties were not at impasse when the Respondent implemented its final
offer, we deny the Charging Party’s request for a separate remedy
because the violation was not alleged or found.
AREA TRADE BINDERY CO. 173
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Area
Trade Bindery Co., Burbank, California, its officers,
agents, successors, and assigns shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(a) and
reletter the succeeding paragraphs accordingly.
“(a) Recognize the Union as the exclusive collective-
bargaining representative of Respondent’s employees in
the unit described below.”
2. Substitute the following for paragraph 2(c) and
reletter the succeeding paragraphs accordingly.
“(c) Make whole all employees adversely affected by
the Respondent’s unilateral changes, as provided in the
‘amended remedy’ section.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with
Graphic Communications Union Local 404, Graphic
Communications Conference of the International Broth-
erhood of Teamsters, by unilaterally implementing its
final contract offer to the Union on March 17, 2005.
WE WILL NOT withdraw recognition from the Union as
the exclusive collective-bargaining representative of our
employees in the unit described below.
WE WILL NOT refuse to meet and bargain with the Un-
ion as the exclusive collective-bargaining representative
of our employees in the appropriate bargaining unit with
respect to rates of pay, hours of employment, and other
terms and conditions of employment including contribu-
tions to our 401(k) plan, union security, and wages.
WE WILL NOT refuse to bargain collectively by unilat-
erally implementing changes in our contributions to our
employees’ 401 (k) plans.
WE WILL NOT in any like or related manner interfering
with, restraining, or coercing employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
WE WILL recognize the Union as the collective-
bargaining representative of our employees in the unit
described below.
WE WILL, upon request, meet and bargain with the Un-
ion as the exclusive-bargaining representative of our em-
ployees in the appropriate bargaining unit described be-
low with respect to rates of pay, hours of employment,
and other terms and conditions of employment, and if an
understanding is reached, embody such understanding in
a signed agreement. The appropriate bargaining unit is:
Included: All full time and regular part time production
and maintenance employees, including machine opera-
tors, employed by us at our facility located at 157 W.
Providencia Avenue, Burbank, California.
Excluded: All other employees, including professional
employees, office clerical employees, drivers, guards
and supervisors as defined in the Act.
WE WILL rescind any unilateral changes we have im-
plemented in our employees’ terms and conditions of
employment.
WE WILL make whole all of our employees who were
adversely affected by the unilateral changes, with inter-
est.
AREA TRADE BINDERY CO.
Brian D. Gee, Esq. and Joanna F. Silverman, Esq., for the
General Counsel.
Andrew B. Kaplan, Esq. and Jeffrey W. Mayes, Esq. (Silver &
Freedman), of Los Angeles, California, for the Respondent.
Daniel B. Smith, Esq. (O’Donnell, Schwartz & Anderson P.C.),
of Washington, D.C., for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Los Angeles, California, on March 6–8, 2006.
On August 13, 2004, Graphic Communications Union, Lo-
cal 404, Graphic Communications Conference of the Interna-
tional Brotherhood of Teamsters (the Union) filed the charge in
Case 31–CA–26970 alleging that Area Trade Bindery Co. (Re-
spondent) committed certain violations of Section 8(a)(5) and
(1) of the National Labor Relations Act (the Act). On Septem-
ber 13, 2005, the Union filed the charge in Case 31–CA–27500
against Respondent. On January 12, 2006, the Regional Direc-
tor for Region 31 of the National Labor Relations Board (the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD174
Board) issued a consolidated complaint and notice of hearing
against Respondent, alleging that Respondent violated Section
8(a)(5) and (1) of the Act. Respondent filed a timely answer to
the complaint, denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation, with an office
and principal place of business in Burbank, California, where it
has been engaged in business as a commercial bindery. Re-
spondent, in conducting its business operations, annually sells
and ships goods or services valued in excess of $50,000 directly
to points outside the State of California. Accordingly, Respon-
dent admits and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent operates a commercial bindery in Burbank, Cali-
fornia. On May 8, 2002, the Union was certified as the exclu-
sive collective-bargaining representative of Respondent’s pro-
duction and maintenance employees.
On August 13, 2004, the Union filed a charge in Case 31–
CA–26970 alleging that Respondent had violated Section
8(a)(1) and (5) of the Act by withdrawing recognition from the
Union, refusing to bargain with the Union, and unilaterally
changing its practice of making contributions to its employees’
401(k) plans.
On November 17, 2004, the parties entered into an informal
settlement agreement resolving the case. As part of the settle-
ment agreement Respondent posted a notice stating that it
would not: (1) refuse to meet and bargain with the Union; (2)
withdraw recognition from the Union; and (3) implement any
unilateral changes.
On December 15, 2004, and on January 28, 2005, the parties
met in an unsuccessful attempt to negotiate an initial contract.
The parties did not reach agreement and on March 17, 2005,
Respondent implemented the terms of its “last, best and final
offer” to the Union.
Within this factual framework, the General Counsel alleges
that Respondent unlawfully implemented its final proposal in
the absence of a lawful bargaining impasse. Respondent con-

1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
tends that the parties were at impasse and, therefore, it could
lawfully implement the terms of its final proposal.
Thus, the principal issue, involving Respondent’s implemen-
tation of its “last, best, and final offer” and the resultant
changes in the bargaining unit employees’ terms and conditions
of employment, is whether the parties had reached an impasse
in their contract negotiations so as to have permitted the im-
plementation of the proposed contract.
The Facts
As stated above, the Union was certified as the exclusive col-
lective-bargaining representative of Respondent’s production
and maintenance employees on May 8, 2002. From August 5,
2002, through May 21, 2003, the Respondent and the Union
met for 15 bargaining sessions. At the May 21, 2003 bargain-
ing session Respondent’s attorney stated that Respondent was
opposed to the Union’s proposal of a union-security agreement,
requiring employees to join a labor organization and pay money
in order to work. Respondent’s attorney also stated that Re-
spondent was opposed to the Union’s dues-checkoff proposal
because Respondent did not want to be the Union’s bill collec-
tor. The Union’s attorney and chief negotiator stated that in
light of the Employer’s position on union security and dues
checkoff there was no point in continuing bargaining that date
or setting another date for bargaining.
The Union did not request further bargaining until June
2004. In January 2004, the Union elected a new president and
vice president. In March or April, the Union retained a new
attorney. In June 2004, the Union asked Joseph O’Connor, an
International representative, to be its chief negotiator with Re-
spondent. On or about June 8, 2004, O’Connor called Andrew
Kaplan, Respondent’s attorney and chief negotiator, in an at-
tempt to resume collective bargaining. Kaplan stated that he
believed that the Union had abandoned the bargaining unit
since he had not heard from the Union in over a year.
O’Connor insisted that the Union had not abandoned the bar-
gaining unit. Kaplan said he would discuss the matter with his
client. O’Connor sent Kaplan two written requests to bargain
in June 2004. On June 29, 2004, Kaplan responded stating that
Respondent had appropriately withdrawn recognition from the
Union. On or about July 30, unknown to Kaplan, Respondent
ceased making contributions on behalf of its employees to its
401(k) plan. Respondent did not give the Union notice or an
opportunity to bargain over the change in 401(k) contributions.
Thereafter, on August 13, 2004, the Union filed its charge in
Case 31–CA–26970. On November 17, 2004, the parties en-
tered into a settlement agreement whereby the Respondent
agreed, inter alia, to bargain in good faith with the Union and
not to make unilateral changes.
The first bargaining session following the settlement agree-
ment occurred on December 15, 2004. Kaplan, Chris Planter,
plant manager, and Doug Moore, a representative from the
local printer’s association, were present for Respondent.
O’Connor, Paul Garcia, president, Doug Brown, vice president,
Jorge Perez, International representative, and employees Daniel
Solorzano and Alain Beechdikian, were present for the Union.
The parties reviewed their prior tentative agreements. There
were several open issues on which the parties had not yet
AREA TRADE BINDERY CO. 175
reached tentative agreement including, wages, health care, un-
ion security, dues checkoff, bereavement, and holidays. After
an hour of reviewing the prior tentative agreements, Kaplan
presented the Union with a document entitled “Area Trade
Collective Bargaining Proposal December 16, 2004.”2 Kaplan
then stated that since the Union had requested bargaining he
expected a counterproposal from the Union. O’Connor an-
swered that the Union was not prepared to respond that day.
O’Connor stated that he would like to respond to the Em-
ployer’s proposal the next day and at a later date provide Kap-
lan with the Union’s counterproposal. Kaplan did not agree to
negotiate the following day on the ground that the Union was
not prepared to negotiate. Kaplan stated that he expected a
union counterproposal by December 27, 2004. The parties then
adjourned for the day.
Later on December 15, Kaplan wrote O’Connor requesting a
formal counterproposal by December 27, 2004, and stating that
if Respondent did not receive a formal response by that date,
Respondent would consider its December 15 written proposal
to be its “last, best, and final offer.” Kaplan further warned that
Respondent would “treat the Union’s failure to make any
counter offer as a rejection of [Respondent’s] ‘last, best, and
final offer’ and the parties would be at impasse.” Kaplan ex-
pressed his position that the parties were at impasse over the
issue of union security. Kaplan reiterated his position that Re-
spondent “was philosophically opposed to the concept of mak-
ing people pay money to any third party, including a union, in
order to retain their jobs.” Finally, Kaplan stated that he would
not agree to meet again until Respondent received the Union’s
formal response to Respondent’s proposal of December 15.
On December 27, O’Connor sent Kaplan the Union’s formal
proposal and he requested further dates for negotiation sessions.
The following day, Kaplan wrote O’Connor stating that the
Employer stood by all of its proposals and rejected the Union’s
counterproposals in its entirety. While Kaplan agreed to meet
with the Union, he stated, “[T]he Company is not certain as to
the purpose of this meeting.” Kaplan then wrote that “the
Company’s proposal of December 15, 2004 represents its last,
best and final offer.” Kaplan added that if the Employer’s
proposal was not accepted at the parties’ next meeting, “the
parties will be at impasse, in which case the Company will
implement selected portions of its last, best and final offer.”
O’Connor agreed to meet with Kaplan on January 28, 2005.
On January 28, the parties met for the second time following
the settlement agreement. Kaplan stated that the December 15
proposal was his final proposal and that he believed the parties
were at impasse. O’Connor stated he believed that the parties
were not at impasse and suggested that the parties look into
Federal mediation. Kaplan refused to meet with a Federal me-
diator. This meeting lasted approximately 20 minutes.
On March 17, 2005, Kaplan wrote O’Connor stating that Re-
spondent’s offer of December 15, 2004, was its last best and
final offer, that the Union’s counterproposal was rejected in its
entirety. Kaplan wrote that the offer of the use of Federal Me-
diation and Conciliation was rejected and that the parties were

2 Of the 11 proposals submitted by Kaplan, 4 were changes from
prior tentative agreements and 5 were regressive proposals.
at impasse. Finally, Kaplan notified the Union that Respondent
had implemented its proposals on management rights, subcon-
tracting, no strikes, validity, premium pay, vacation, wages,
layoff and recall, hours, holidays, 401(k) plan, pay day, and
union security.
On June 25 and 26, 2005, the Union held a ratification vote
of a proposed contract. However, the proposed contract was
not Respondent’s last, best, and final offer but rather a contract
O’Connor put together from the prior tentative agreements,
Respondent’s final offer and the Respondent’s employee hand-
book. The employees voted in favor of this document. How-
ever, Kaplan wrote O’Connor asking why the Union was hold-
ing ratification on a document Respondent had not offered to
the Union. On August 10, O’Connor forwarded the document
ratified by the employees to Kaplan for Respondent’s signature.
On August 15, Kaplan wrote back raising questions as to
whether the proposed contract was consistent with that offered
to the employees. Further, Kaplan stated that Respondent
would not sign the proposed document because it was not con-
sistent with its last, best, and final offer.
On September 1, O’Connor wrote Kaplan requesting dates to
resume bargaining. On September 7, Kaplan responded that
Respondent’s proposal of December 15, 2004, was its last, best,
and final offer and since the Union was not prepared to accept
it, the parties were at impasse. Thereafter, on September 13,
2005, the Union filed the charge in Case 31–CA–27500, alleg-
ing that Respondent refused to bargain in good faith.
III. ANALYSIS AND CONCLUSIONS
A. The Alleged Impasse
As stated earlier, the first issue is whether the parties reached
impasse in their negotiations so as to permit Respondent to
implement its final offer. By definition, an impasse occurs
whenever negotiations reach that point at which the parties
have exhausted the prospects of concluding an agreement and
further discussions would be fruitless. Laborers Health &
Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484
U.S. 539, 543 (1988). After an impasse has been reached on
one or more subjects of bargaining, an employer may imple-
ment any of its preimpasse proposals. Western Publishing Co.,
269 NLRB 355 (1984). “A genuine impasse in negotiations is
synonymous with a deadlock; the parties have discussed a sub-
ject or subjects in good faith, and, despite their best efforts to
achieve agreement with respect to such, neither party is willing
to move from its respective position.” Hi-Way Billboards, Inc.,
206 NLRB 22, 23 (1973). In Taft Broadcasting Co., 163
NLRB 475, 478 (1967), enfd. sub. nom. Television Artists
AFTRA, 395 F.2d 622 (D.C. Cir. 1968), the Board listed the
following factors for determining whether an impasse existed:
The bargaining history, the good faith of the parties in nego-
tiations, the length of the negotiations, the importance of the
issue or issues as to which there is disagreement, the contem-
poraneous understanding of the parties as to the state of the
negotiations are all relevant factors to be considered in decid-
ing whether an impasse in bargaining existed.
The Board has further held that, even if impasse is reached over
an issue, it may be broken if one of the parties moves off its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD176
previously adamant position. Tom Ryan Distributors, 314
NLRB 600, 604–605 (1994), enfd. mem. 70 F.3d 1272 (6th Cir.
1995) (no impasse found where union demonstrated intent to
move on key issue, parties had met only eight times before
employer declared impasse, and the key issue had been dis-
cussed conceptually but not in detail). “As a recurring feature in
the bargaining process, impasse is only a temporary deadlock
or hiatus in negotiations ‘which in almost all cases is eventually
broken, through either a change of mind or the application of
economic force.’” Charles D. Bonanno Linen Service v. NLRB,
454 U.S. 404, 412 (1982), quoting 243 NLRB 1093–1094
(1979). See Royal Motor Sales, 329 NLRB 760 (1999), enfd.
mem. Royal Motor Sales v. NLRB, 2 Fed. Appx. 1 (D.C. Cir.
2001).
Finally, because impasse as a defense to a charge of an
unlawful unilateral change, the burden of proof rests on the
party asserting that impasse exists. North Star Steel Co., 305
NLRB 45 (1991); Roman Iron Works, 282 NLRB 725 (1987).
In the instant case, the parties met in 15 bargaining sessions
from August 5, 2002, to May 21, 2003, prior to the settlement
agreement in Case 31–CA–26970. However, the parties only
met two times after the November 17, 2004 settlement agree-
ment. Both of these sessions were very short and there was no
discussion concerning either party’s proposals. There was no
discussion of Respondent’s changes in prior tentative agree-
ments. After the first session, Kaplan was threatening to de-
clare impasse. At the second session Respondent was already
declaring impasse over the protest of the Union and refusing
the offer of Federal mediation. I find the fact that such bargain-
ing took place for such a short period of time weighs against a
finding of impasse. See Jano Graphics, Inc., 339 NLRB 251
(2003). The refusal of the Respondent to agree to mediation is
another factor supporting a finding that a point of impasse had
not yet been reached.
Respondent argues that there was no prospect of an agree-
ment and that the Union was never going to agree to an agree-
ment without union security and dues checkoff. Prior to the
Union’s counterproposal, Kaplan was already declaring that the
parties were at impasse on union security and dues checkoff.
His declarations of impasse preempted bargaining as did his
total rejection of the Union’s counterproposal. Subsequent to
the unilateral changes of March 17, 2005, the Union proposed
an agreement which did not contain union security or dues
checkoff but Kaplan still refused to meet and negotiate.
While Respondent argued in January and March 2005, and
again at the instant hearing that the parties were at impasse,
“both parties must believe they are at the end of their rope.”
Larsdale, Inc., 310 NLRB 1317, 1318 (1993); Huck Mfg. Co. v.
NLRB, 693 F.2d 1176, 1177 (5th Cir. 1982). See also NLRB v.
Powell Electrical Mfg. Co., 906 F.2d 1007, 1011–1012 (5th
Cir. 1990). In Grinnell Fire Protection Systems Co., 328
NLRB 585 (1999), the Board concluded that the parties had not
yet reached a legal impasse even though the employer asserted
that it had reached its final position, as during the final session,
the charging party union “not only continued to declare its in-
tention to be flexible, but demonstrated this throughout its deal-
ings with the Respondent that day.” The Board stated:
Where as here, a party who has already made significant con-
cessions indicates a willingness to compromise further, it
would be both erroneous as a matter of law and unwise as a
matter of policy for the Board to find impasse merely because
the party is unwilling to capitulate immediately and settle on
the other party’s unchanged terms. . . . Further, even assum-
ing arguendo that the Respondent has demonstrated it was
unwilling to compromise any further, we find that it has fallen
short of demonstrating that the Union was unwilling to do so.
[Id. at 586.]
In this case, the Union argued that the parties were not at im-
passe. The Union suggested that the parties meet with the Fed-
eral Mediation and Conciliation Service. It is not sufficient for
a finding of impasse to simply show that the Employer had lost
patience with the Union or its chief negotiator. Impasse re-
quires a deadlock. As the Board stated in Powell Electrical
Mfg. Co., 287 NLRB 969, 973 (1987):
That there was no impasse when the Company declared is not
to suggest that if the parties continued their sluggish bargain-
ing indefinitely there would have been agreement on a new
contract. Such a finding is not needed, nor could it be made
without extra-record speculation, to find on this record that
when the Company declared an impasse there was not one,
even as far apart as the parties were. They had most of their
work ahead of them, and judging by the opening sessions
clearly had different goals in mind for a contract. Whether
their differences ever would have been resolved cannot be
known; but that is the nature of the process. It is for the par-
ties through earnest, strenuous, tedious, frustrating and hard
bargaining to solve their mutual problem—getting a con-
tract—together, not to quit the table and take a separate path.
As stated above, the fact that Kaplan believed that the Union
would never agree to Respondent’s contract proposals does not
establish an impasse. In light of the limited bargaining after the
settlement, Kaplan’s rush to declare impasse and the Union’s
willingness to continue bargaining, I cannot find the parties had
reached a deadlock in their negotiations. Kaplan could not
create an impasse simply by insisting that he was not going to
move from his bargaining position and completely rejecting the
Union’s proposals, without discussion.
Here, in September 2005, O’Connor proposed an agreement,
which Respondent had not agreed to, without union security
and dues checkoff. Obviously Respondent was not required to
agree to or sign such an agreement. Thus, any alleged impasse
was broken by the Union’s significant change in position.
However, Kaplan still refused to meet and negotiate.
I find that in March 2005, there was still more bargaining
remaining before agreement or impasse was reached. In gen-
eral, impasse on one or several issues does not suspend the
obligation to bargain on remaining, unsettled issues. Patrick &
Co., 248 NLRB 390 (1980), enfd. mem. 644 F.2d 889 (9th Cir.
1981); Atlas Tack Corp., 226 NLRB 222 (1976), enfd. mem.
559 F.2d 1201 (1st Cir. 1977).
In summation, I find that in light of the limited bargaining
after the settlement and Kaplan’s rush to declare impasse, I
cannot find the parties had reached a lawful impasse or dead-
lock in their negotiations in March 2005. Further, Respon-
AREA TRADE BINDERY CO. 177
dent’s lack of good faith, evidenced by its unfair labor practices
in June and July 2004, discussed below, supports a finding that
no good-faith impasse was reached in March 2005.
As I have found that on March 17, 2005, no lawful impasse
existed, Respondent’s implementation of the terms of its final
offer that day, without the agreement of the Union, was viola-
tive of Section 8(a)(1) and (5) of the Act. Royal Motor Sales,
329 NLRB 760 (1999); WPIX, Inc., 293 NLRB 10 fn. 1 (1989),
enfd. 906 F.2d 898 (2d Cir. 1990); Sacramento Union, 291
NLRB 552, 557 (1988).
B. The Withdrawal of Recognition in June 2004
As stated earlier, when O’Connor sought to resume negotia-
tions in June 2004, Kaplan stated that Respondent had appro-
priately withdrawn recognition from the Union. Kaplan con-
tended that he believed that the Union had abandoned the bar-
gaining unit.
In Levitz Furniture Co. of the Pacific, 333 NLRB 717, 717
(2001), the Board held:
After careful consideration, we have concluded that there are
compelling legal and policy reasons why employers should
not be allowed to withdraw recognition merely because they
harbor uncertainty or even disbelief concerning unions’ ma-
jority status. We therefore hold that an employer may unilat-
erally withdraw recognition from an incumbent union only
where the union has actually lost the support of the majority
of the bargaining unit employees, and we overrule [Celanese
Corp., 95 NLRB 664 (1951)] and its progeny insofar as they
permit withdrawal on the basis of good-faith doubt. Under
our new standard, an employer can defeat a post withdrawal
refusal to bargain allegation if it shows, as a defense, the un-
ion’s actual loss of majority status.
In the instant case, Respondent merely contended that it be-
lieved the Union had abandoned the unit, it did not offer any
evidence that the Union had actually lost the support of the
majority of the bargaining unit employees.
In Mountain Valley Care & Rehabilitation Center, 346
NLRB 281, 283 (2006), the Board rejected an employer’s at-
tempt to justify withdrawal of recognition by claiming that it
thought that the union had abandoned the bargaining unit:
“Any uncertainty the Respondent may have had could have
been resolved simply by asking the International Union about
its intentions or by filing an RM petition.” Additionally, the
Board has held, “The Union’s reassertion of its bargaining
rights . . . negate[s] any inference to be drawn from the preced-
ing period of inactivity.” Spillman Co., 311 NLRB 95, 95–96
(1993). In the instant case, there is no evidence that the Union
was not willing or able to represent the employees at the time
its majority status was questioned. Nor was there any evidence
that the Union had lost the support of the majority of the bar-
gaining unit employees. Accordingly, I find that Respondent
violated Section 8(a)(1) and (5) of the Act by withdrawing
recognition from the Union in June 2004, and refusing to bar-
gain collectively with the Union between June and November
2004. It follows that Respondent violated Section 8(a)(1) and
(5) by changing its contributions to its employees’ 401(k)
plans, without notice to and bargaining with the Union, on or
about July 30, 2004.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union, and by unilaterally imple-
menting its final contract proposal on March 17, 2005.
4. Respondent has violated Section 8(a)(1) and (5) of the Act
by withdrawing recognition from the Union and refusing to
bargain with the Union from June to November 2004.
5. Respondent violated Section 8(a)(1) and (5) by unilater-
ally changing its contribution to its employees’ 401(k) plan in
July 2004, without notice to and bargaining with the Union.
6. Respondent’s conduct in paragraphs 3, 4, and 5 above are
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effectu-
ate the purposes and policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Area Trade Bindery Co., of Burbank, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively by unilaterally imple-
menting its final contract offer to the Union on March 17, 2005.
(b) Withdrawing recognition from the Union as the exclusive
collective-bargaining representative of Respondent’s employ-
ees in the unit described.
(c) Refusing to meet and bargain with the Union as the ex-
clusive collective-bargaining representative of Respondent’s
employees in the appropriate bargaining unit with respect to
rates of pay, hours of employment, and other terms and condi-
tions of employment including contributions to health insur-
ance, union security, and wages.
(d) Refusing to bargain collectively by unilaterally imple-
menting changes in its contributions to its employees’ 401(k)
plan.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD178
(a) Upon request, meet and bargain with the Union as the ex-
clusive collective-bargaining representative of its employees in
the appropriate bargaining unit described below with respect to
rates of pay, hours of employment, and other terms and condi-
tions, and if an understanding is reached, embody such under-
standing in a signed agreement. The appropriate bargaining unit
is:
Included: All full time and regular part time production and
maintenance employees, including machine operators, em-
ployed by the Employer at its facility located at 157 W. Provi-
dencia Avenue, Burbank, California.
Excluded: All other employees, including professional em-
ployees, office clerical employees, drivers, guards and super-
visors as defined in the Act.
(b) On request by the Union, rescind any unilateral changes
it has implemented in its employees’ terms and conditions of
employment.
(c) Within 14 days after service by the Region, post at its fa-
cility in Burbank, California, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 2004.
(d) Within 21 days after service by the Region, file with the
Regional Director for Region 31, a sworn certification of a
responsible official on a form provided by Region 31 attesting
to the steps the Respondent has taken to comply herewith.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”