CJC Holdings

National Labor Relations Board - Board Decisions

Mar 27, 1996

320 N.L.R.B. 1041 (N.L.R.B. 1996)

1041
320 NLRB No. 122
CJC HOLDINGS
1 We find without merit the Respondent’s allegations of bias on
the part of the judge. On our full consideration of the record, we
find no evidence that the judge prejudged the case, made prejudicial
rulings, or demonstrated bias in his credibility resolutions, analysis,
or discussion of the evidence.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) by announcing its intention to implement its last offer relat-
ing to dental insurance, we note that the promise itself, even if not
immediately carried out, changed the terms and conditions of em-
ployment. ABC Automotive Products Corp., 307 NLRB 248 (1992).
In agreeing with the judge’s conclusion that the Respondent vio-
lated the Act by refusing to bargain in good faith on the subject of
dues checkoff, Member Cohen does not rely on the judge’s finding
that a company’s fundamental opposition to dues checkoff, on policy
grounds, is not a legitimate reason for opposing such a contract pro-
vision. Rather, he relies on the judge’s finding that the Respondent’s
primary goal was to avoid agreement and reach impasse.
1 At trial counsel for the General Counsel withdrew from the com-
plaint par. 12(C), which had previously alleged Respondent’s imple-
mentation of a provision allowing Respondent to give wage in-
creases to individual members of the unit.
Following the trial, counsel for the General Counsel withdrew
from the complaint pars. 12(A) and 12(E), which were previously al-
legations that Respondent implemented its management-rights clause
and its zipper clause, and deleted the collective-bargaining agree-
ment’s previous provision for dues checkoff.
CJC Holdings, Inc. and United Brotherhood of Car-
penters and Joiners of America, AFL–CIO,
Local 1751. Case 16–CA–16778–2
March 27, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 29, 1995, Administrative Law Judge
Frederick C. Herzog issued the attached ruling on mo-
tion for reconsideration and amended decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed an answering brief. The Re-
spondent filed a reply to the General Counsel’s an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, CJC Holdings, Inc., Aus-
tin, Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Elizabeth Kilpatrick, Esq., for the General Counsel.
Steven Rahhal, Esq. (McFall Law Firm), of Dallas, Texas,
for the Respondent.
Davis Van Os, Esq. (Van Os & Vasquez), of Austin, Texas,
for the Charging Party.
RULING ON MOTION FOR RECONSIDERATION AND
AMENDED DECISON
FREDERICK C. HERZOG, Administrative Law Judge. This
case was decided by me on August 17, 1995. On August 24,
1995, counsel for the General Counsel filed a motion for re-
consideration. Essentially, the basis for the motion is counsel
for the General Counsel’s assertion that I erred in my deci-
sion by giving an overly broad interpretation to her prior par-
tial withdrawal of complaint, regarding the subject matter of
Respondent violating Section 8(a)(5) and (1) of the Act by
insisting on discontinuing a provision for checkoff. Her con-
tention is that, as a result of an erroneous interpretation by
me of her partial withdrawal of complaint, I was led to the
further error of failing to fully decide the allegations of para-
graphs 10 and 11 of the complaint.
On August 25, 1995, Respondent filed its response in op-
position to counsel for the General Counsel’s motion for re-
consideration. Essentially, Respondent’s opposition is based
on its contention that the General Counsel should not be
given the unfair advantage of a ‘‘second bite at the apple.’’
Having considered the matter, I have concluded that coun-
sel for the General Counsel’s motion has merit, and that, for
the reasons stated in her motion, I should have decided more
in my decision than I did.
The error made by me is, on reflection, apparent. It is of
the sort which would clearly cause the Board to someday re-
mand the case to me for further consideration. Thus, I regard
it as being within my discretion to correct at this early date
following my original decision. I do so on the original record
and based on the arguments advanced by the parties briefs.
Accordingly, IT IS ORDERED that counsel for the General
Counsel’s motion for reconsideration should be granted, and
my decision is amended by the issuance nunc pro tunc of the
following amended decision.
AMENDED DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. I heard
this case in Austin, Texas, on April 6 and 7, 1995. It is
based on a complaint1 issued by the Regional Director for
Region 16 of the National Labor Relations Board on Novem-
ber 18, 1994. United Brotherhood of Carpenters and Joiners
of America, AFL–CIO, Local 1751 (the Union) filed the
charge in Case 16–CA–16778–2 on July 7, 1994, alleging
that CJC Holdings, Inc. (Respondent) committed certain vio-
lations of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act).
All parties appeared at the hearing, and were afforded full
opportunity to appear, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, and to file briefs. On the
entire record, from my observation of the demeanor of the
witnesses, and having considered the posthearing briefs of
the parties, I make the following
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As the complaint alleges, and as the answer admits, I find that
the unit appropriate for collective bargaining here is described as fol-
lows:
All production and maintenance employees employed by CJC
Holdings, Inc. at its Austin, Texas facility, formerly operated by
Artcarved Class Rings as successor to John Roberts, Incor-
porated, excluding all other employees including office and fac-
tory clerical employees, inventory purchasing clerks, security
guards, nurses, professional and technical employees, employees
involved in new product design and development and super-
visors as defined in the Labor Management Relations Act of
1947, as amended, as certified by the National Labor Relations
Board in Case No. 23–RC–3979 on August 13, 1973.
3 Each number, set off by a slash, represents the amount by which
wages were to increase, expressed in cents per hour, over each of
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
Respondent is a Texas corporation with an office and place
of business in Austin, Texas; that at all times material it has
manufactured school rings and other jewelry at its facility lo-
cated there; and that it annually purchases goods and mate-
rials valued in excess of $50,000 directly from suppliers lo-
cated in States other than Texas.
Accordingly, I further find that Respondent is now, and at
all times material has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
As noted above, the allegation regarding unilateral imple-
mentation of the management rights and the ‘‘zipper’’
clauses, and the allegation regarding the deletion of the dues-
checkoff provision have each been withdrawn from the com-
plaint following the trial. Accordingly neither of these allega-
tions can be addressed further, since they are no longer be-
fore me for decision.
Thus, after giving effect to the specific wording of the
withdrawals of various allegations from the complaint, the
remaining issues are:
First, whether or not on or about July 4th, 1994, Re-
spondent unlawfully unilaterally implemented a 40-
cent-per-hour wage increase.
Second, whether Respondent also then unlawfully
unilaterally implemented a provision extending dental
insurance coverage to bargaining unit employees.
Third, whether or not Respondent failed to bargain
in good faith with the Union, as evidenced by such
matters as the insistence upon discontinuing the dues-
checkoff provision of the prior contract.
B. Background
Respondent is a jewelry manufacturer, with a factory lo-
cated in Austin, Texas. It employs about 160 production and
maintenance employees at that location. Respondent and its
predecessors have had a collective-bargaining agreement with
the Union since 1973, when the Union was first certified as
the exclusive collective-bargaining representative. Its most
recent collective-bargaining contract was a 5-year agreement
which began on June 7, 1989, and ended on June 6, 1994.2
During the term of this agreement Respondent engaged in
activities later held to constitute unfair labor practices, i.e.,
in March 1992, Respondent refused to provide the Union
with information relevant to collective bargaining, and later,
it refused to bargain in good faith with the Union pursuant
to the contract’s midterm wage reopener provision. On Sep-
tember 22, 1993, Administrative Law Judge James M. Ken-
nedy determined that Respondent’s conduct violated Section
8(a)(1) and (5) of the Act. The Board affirmed Judge Ken-
nedy’s ruling on December 16, 1994. CJC Holdings 315
NLRB 813 (1994). Thus, in the first half of 1994, in addition
to upcoming negotiations for a new collective-bargaining
agreement, Respondent was ordered to bargain in good faith
pursuant to the midterm wage reopener set forth in the col-
lective-bargaining agreement.
C. The Facts of the Current Case
In a letter dated March 3, 1994, Union Representative Ray
White notified Respondent’s personnel manager, Suzie
Adams, that the Union wished to begin negotiations for a
new contract. Adams responded by letter dated March 10,
1994, stating that Respondent was willing to negotiate items
‘‘including but not limited to those covering the period from
June 7, 1992.’’ The Union then did not contact Respondent
until late April. Negotiations did not begin until May 13.
The parties met and negotiated on eight occasions between
May 13 and June 21, 1994. However, they did not reach a
complete agreement. On July 4, 1994, Respondent imple-
mented the terms of its ‘‘final proposal’’ to the Union.
Since then, counsel for the General Counsel has asserted
that Respondent unlawfully implemented its final proposal in
the absence of a lawful bargaining impasse. Respondent con-
tends that the parties were at impasse and, therefore, that Re-
spondent was lawfully free to, and did, implement the terms
of its final proposal.
Prior to the final meeting on June 21, the parties were able
to bargain and reach agreement on several issues, including
a new attendance policy, layoff and seniority rights, and
overtime procedures. All contractual issues were resolved ex-
cept:
(1) the management-rights clause.
(2) the complete agreement or ‘‘zipper clause.’’
(3) wages.
(4) dues checkoff.
(5) dental insurance.
At the initial May 13 meeting, the Union proposed a 50-
cent-per-hour increase for each of the 3 years of the contract.
Respondent made its first counteroffer at the third meeting,
held June 2, offering in the first year a 30-cent-per-hour in-
crease and in the second and third year of the contract a 10-
cent-per-hour increase in both. As the parties referred to it,
the offer was ‘‘30/10/10.’’3 The Union’s initial proposal did
1043CJC HOLDINGS
the 3 years contemplated for the new collective-bargaining agree-
ment.
not include a dental plan for employees, although dental in-
surance was listed as a topic for bargaining.
At the fourth meeting, held on June 6, the Union re-
sponded to Respondent’s wage offer by lowering its demand
to 50/45/45. Respondent initially offered 30/15/15, and then
30/20/15. The Union then countered with an offer of
50/45/40. Also at this meeting, the Union made its first pro-
posal concerning a dental plan, asking to be included in Re-
spondent’s dental insurance program for office employees.
Respondent stated that it would be difficult to discuss dental
insurance problems when there was no agreement on wages.
Further progress was made at the next meeting, on June
8th, with the Union lowering its wage demand to 50/40/40,
and requesting the inclusion of bargaining unit employees in
the dental program. Respondent countered with an offer of
35/25/20 and stated that it would consider employee inclu-
sion in the dental plan.
The parties were scheduled to meet next on June 10.
But, the meeting was canceled due to an emergency in-
volving Respondent’s attorney and chief negotiator, John
McFall.
The parties next met on June 17. Respondent demanded
that any cost for dental insurance be included within the
hourly wage increase as part of an overall economic pro-
gram. The Union requested that Respondent provide a cents-
per-hour figure reflecting the cost of providing dental insur-
ance. Respondent told the Union that it would not agree to
the Union’s latest offer of 50/40/40, plus dental insurance,
and that any dental coverage had to be mandatory.
Prior to the final meeting on June 21, Respondent advised
the Union that it would cost Respondent approximately $.085
per hour per employee for dental coverage.
At the June 21 meeting, the Union then revised its wage
increase demand to 50/35/35. However, this request also in-
cluded dental coverage on an optional basis, and a request
that rates remain the same throughout the contract period.
Respondent told the Union that this proposal amounted to an
increase in its previous economic demands, because when the
$.085-per-hour dental estimate was factored into the wage
figure, the Union’s proposal increased to $.585 per hour in
the first year and a $.435 per hour increase in the second and
third years. Furthermore, Respondent contends that it had
made it clear that any dental insurance program had to be
mandatory. Despite this demand, the Union maintained its
demands for optional dental coverage.
Respondent claims that it was due to these perceived in-
creases in the Union’s demands that it then proposed its
‘‘best and final offer,’’ which it was prepared to unilaterally
implement.
This included a wage increase of 40/25/25, and a willing-
ness to include the bargaining unit employees in Respond-
ent’s dental program during the second year, assuming that
costs did not increase. David Van Os, attorney and chief ne-
gotiator for the Union, told McFall that he was extremely
disappointed with the offer and that ‘‘it is not a surprise that
it is [Respondent’s] intention to express great disrespect to
the Union,’’ and that the ‘‘offer [was] inadequate to rectify
bad faith bargaining during the [1992] wage reopener.’’ Van
Os then requested a written copy of the final offer, telling
McFall that ‘‘we would like to know exactly what you are
arrogantly pushing down our throats, if we are getting
screwed we want to know what we are getting screwed
with.’’ McFall refused to provide a written copy, and the
talks broke off.
After the June 21 negotiations broke down, Respondent
posted the following ‘‘Announcement’’ at the plant.
We met with the Union today and no agreement was
reached. We believe we are at an impasse in negotia-
tions because the Company and the Union cannot agree
on the dues collection process.
We believe it is unfair for employees to go without
a pay increase since the contract expired on June 6th.
We have told the Union that the Company’s final
offer for a new contract is 40 cents this year, 25 cents
the next year and 25 cents the third year. In addition,
next year we intend to add dental coverage. Effective
July 4 everyone in the factory will have their pay in-
creased 40 cents per hour. Also merit increases will be
continued where deserved.
No further negotiation sessions were held following the
June 21 meeting, and neither party has attempted to contact
the other party to reopen negotiations.
With respect to ‘‘dues checkoff,’’ the expiring collective-
bargaining agreement between the parties included a provi-
sion for deduction of union dues by checkoff. During the ini-
tial meeting of May 13, Respondent proposed that the dues-
checkoff provision be discontinued. At the second meeting,
held on May 24, Respondent explained its position ‘‘that the
collection of dues should be an issue between the Union and
the employees and that it did not want to be in the collection
business. However, Respondent advised that it was willing to
discuss the issue of the dues checkoff further.’’
During the next meeting, held June 2, McFall explained
the Respondent’s position regarding the dues checkoff to Jim
Tudor, the union spokesman. McFall testified that, as with
the previous contract negotiations in 1989, the Respondent
‘‘was fundamentally opposed to the checkoff.’’ Among the
problems cited were that the Company had managers who
had no experience with such a clause and did not want it,
that the Union promised it would police the execution of the
clause to avoid problems and did not, and that the Company
did not want to know the identity of union employees in
order to avoid discrimination suits.
At the next meeting, held June 6, the day the contract ex-
pired, the Union held firm on the demand for a dues-check-
off provision and requested that if there were any administra-
tive problems, they would like an explanation. At the end of
the meeting, the Union requested a contract extension and
the Respondent responded that, per the March 10 letter from
Suzie Adams and the terms of the contract itself, the contract
terminated at midnight and that the Company would not con-
tinue to observe the dues checkoff at that time.
At the sixth meeting, held June 17, the Union again re-
quested that Respondent explain any administrative problems
with the dues-checkoff provision and its basis for opposition.
The Union stated that dues checkoff was an issue of respect
and that Respondent’s position was a sign of disrespect and
that it was a major impairment to the contract negotiations.
Respondent disagreed, saying it was not simply an adminis-
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 It has been stated that an impasse cannot exist concerning only
one issue. Cf. Buck Creek Coal, 310 NLRB 1240 (1993). But, the
Board has long distinguished between an impasse on a single issue
(that would not ordinarily suspend the duty to bargain on other
issues) and the situation in which impasse on a single, critical issue
brings about a breakdown in the entire negotiations. And, it is only
in this latter context, when there has been a breakdown in the entire
negotiations, that an employer is free to implement its last, best, and
final offer.’’ Sacramento Union, 291 NLRB 552, 554 (1988), enfd.
888 F.2d 1394 (9th Cir. 1989).
trative problem and that it did not see the dues checkoff as
an issue of respect. Respondent felt that entering into a col-
lective-bargaining agreement was a sign of respect to the
Union, and that their respect for the Union was shown by
the Company’s willingness to have discussions with union
stewards. Respondent also stated that the Company was
‘‘fundamentally opposed’’ to such a clause, and that the
‘‘company did not want to be in the dues collection busi-
ness.’’ Respondent also noted that this was the same position
it took in 1989.
At this same meeting, Van Os stated that ‘‘if the Respond-
ent was truly concerned about friction at the plant regarding
Union dues, checkoff would minimize the opportunity for co-
ercion or misunderstandings.’’ After caucusing briefly to dis-
cuss the ‘‘friction’’ issue, Respondent concluded that the
Union’s concern was not persuasive and stated its reasons for
opposition to participation in the dues checkoff:
(1) The Respondent was being blamed by Union
membership for problems caused.
(2) The Respondent did not want to know the iden-
tity of Union members in order to prevent discrimina-
tion suits.
(3) The collection of dues was an issue between the
Union and its members.
D. Analysis and Conclusions
The primary issue to be answered is whether the negotia-
tions between the parties had reached a valid impasse and,
if so, whether Respondent was justified in implementing the
unilateral changes.
In the leading case discussing impasse, Taft Broadcasting
Co., 163 NLRB 475, 478 (1967), enfd. sub nom. Television
Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968), the
Board stated:
An employer violates his duty to bargain if, when nego-
tiations are sought or are in progress, he unilaterally in-
stitutes changes in existing terms and conditions of em-
ployment. On the other hand, after bargaining to an im-
passe . . . an employer does not violate the Act by
making unilateral changes that are reasonably com-
prehended within his pre-impasse proposals.
At least on the issue of wages, there is no question as to
whether Respondent made unilateral changes. I find from the
undisputed evidence that it did.
Thus, the critical question is whether the parties reached
a genuine impasse.
A genuine impasse in negotiations is synonymous with
deadlock. Where there is a genuine impasse the parties have
discussed a subject 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, 206 NLRB 22, 23 (1973).4 ‘‘The Board
does not lightly find an impasse. It requires ‘that the parties
have reached that point . . . in negotiations when the parties
are warranted in assuming that further bargaining would be
futile.’ Futility is what must appear, not some lesser level of
frustration, discouragement or apparent gamesmanship.’’
Powell Electrical Mfg. Co., 287 NLRB 969, 973 (1987). An
impasse is reached ‘‘after good-faith negotiations have ex-
hausted the prospects of concluding an agreement’’ and there
is no realistic possibility that continuation of discussion at
that time would be fruitful. Television Artists AFTRA, supra
at 624, 628.
In Taft Broadcasting Co., supra, the Board looked to the
following ‘‘relevant factors’’ when considering whether an
impasse exists:
1. The bargaining history.
2. The good faith of the parties in negotiations.
3. The length of the negotiations.
4. The importance of the issue or issues as to which
there is a disagreement.
5. [and] the contemporaneous understanding of the
parties as to the state of negotiations . . . . [Taft at
478.]
The burden of proving that an impasse exists is on the
party asserting the impasse. Outboard Marine Corp., 307
NLRB 1333, 1363 (1992).
Applying these factors to the facts stated above, my view
is that the parties did not reach impasse. Additionally, the re-
cent Board finding, cited above, that Respondent had en-
gaged in violations of Section 8(a)(1) and (5), makes Re-
spondent’s declaration of impasse seem suspicious and con-
trived.
In explanation, I turn to those factors, among those listed
above, which I find dispositive here.
In the instant case, the parties’ bargaining history is taint-
ed. In December 1994, the Board held that Respondent re-
fused to supply the bargaining representative with relevant
information and also refused to bargain in good faith pursu-
ant to the terms of a midterm wage reopener. The timing of
this decision coincided with the expiration of the then exist-
ing contract, which ran from June 7, 1989, to June 6, 1994.
The order from the Board required Respondent to bargain in
good faith over the wage reopener. At the outset of negotia-
tions, Respondent stated that it was willing to negotiate items
‘‘including but not limited to those covering the period from
June 7, 1992.’’
Thus, in order for Respondent to remedy the prior unfair
labor practice charge, it needed to bargain in good faith over
the 1992 wage reopener during these discussions.
Accordingly, this requirement was also essential to declar-
ing a valid impasse. The Board has made it clear that ‘‘a
finding of impasse presupposes that the parties prior to the
impasse have acted in good faith.’’ Circuit-Wise, Inc., 309
NLRB 905, 918 (1992). ‘‘Generally, a lawful impasse cannot
be reached in the presence of unremedied unfair labor prac-
tices.’’ Id. at 918. An impasse is invalid if it is partially
based on the declarant’s unremedied unfair labor practices.
Laborers Funds of Northern California, 302 NLRB 1031,
1033 (1991). ‘‘A party cannot parlay an impasse resulting
1045CJC HOLDINGS
from its own misconduct into a license to make unilateral
changes.’’ Wayne’s Dairy, 223 NLRB 260 (1976).
In the present case, the Union’s members had not received
a wage increase in 3 years, which is at least partially attrib-
utable to Respondent’s failure to negotiate over this topic.
This tainted history created the negotiating atmosphere which
I find to have been genuinely hostile, and was partially re-
sponsible for the gap between the parties over wages. The
wage demands by the Union were in part driven by a belief
that it had to make up for ‘‘lost ground,’’ due to the salary
freeze since 1992. And, of course, the long salary freeze was
caused in substantial part by Respondent’s engagement in il-
legal activities.
Moreover, even though the Union ‘‘prevailed’’ in the en-
suing litigation, such tactics by management tend to damage
the credibility of the Union among its membership, and thus
weaken its bargaining position, especially when, as here, Re-
spondent later presents itself, rather than the Union, as the
champion of employees’ rights to a higher wage rate.
To allow Respondent to take advantage of this tainted bar-
gaining environment, which it created by prematurely declar-
ing impasse, would go against the spirit of the Board’s hold-
ings in Wayne’s Dairy and its progeny. Thus, these holdings
dictate that Respondent’s conduct during negotiations be held
to a higher than normal standard due to the bargaining his-
tory of the parties.
As stated above, in order for Respondent to validly claim
impasse, it must have bargained in good faith. As defined in
NLRB v. Insurance Agents’ Union, 361 U.S. 477, 485
(1960), ‘‘[C]ollective bargaining is not simply an occasion
for purely formal meetings between management and labor,
while each maintains an attitude of ‘take it or leave it’; it
presupposes a desire to reach ultimate agreement, to enter
into a collective bargaining contract.’’ Furthermore, ‘‘the
Board has repeatedly asserted that good faith on the part of
the employer is an essential ingredient of collective bargain-
ing.’’ Id. at 485. A party must ‘‘bargain with a sincere desire
to adjust its differences . . . in order to reach an acceptable
common ground for agreement.’’ U.S. Gypsum Co., 200
NLRB 1098, 1101 (1972), enf. denied 484 F.2d 108 (8th Cir.
1973).
However, under Section 8(d) the obligation to bargain col-
lectively ‘‘does not compel either party to agree to a pro-
posal or require the making of a concession.’’ If a term ‘‘is
genuinely and sincerely held, if it is not mere window dress-
ing, it may be maintained forever though it produces a stale-
mate.’’ NLRB v. Herman Sausage Co., 275 F.2d 229, 231
(5th Cir. 1960). ‘‘But this statutory right to refuse to agree
to a particular proposal or to make a concession, may not be
used ‘as a cloak . . . to conceal a purposeful strategy to
make bargaining futile or fail.’’’ H. K. Porter Co., 153
NLRB 1370, 1372 (1965). ‘‘Bad faith is prohibited though
done with sophistication and finesse. . . . [Good-faith bar-
gaining] takes more than mere ‘surface bargaining’ or ‘shad-
ow boxing to a draw.’’’ Id. at 232. ‘‘It is necessary to scruti-
nize an employer’s overall conduct to determine whether it
has bargained in good faith.’’ Atlanta Hilton & Tower, 271
NLRB 1600, 1603 (1984).
Finally, while Respondent’s understanding that the parties
were at impasse was clearly voiced by Respondent, it is
equally clear that the Union did not share that viewpoint.
Based on the fact that a number of agreements had been
reached by the parties, and the further fact that even on the
wage issue I have found no impasse to have existed, I find
that the contemporaneous understanding of the state of nego-
tiations by the parties fails to support Respondent’s position
that there was an impasse.
Thus, looking at the overall facts in the present case, it ap-
pears to me that Respondent’s declaration of impasse and
subsequent implementation of a wage increase was hurried
and premature, and was, thus, indicative of bad-faith bargain-
ing. The negotiations between the parties had not in my
opinion reached that point of ‘‘deadlock’’ or ‘‘futility’’ that
the Board requires before declaring impasse. On the critical
issue of wages, positive progress was being made. The par-
ties started out 20 cents per hour apart in the first year and
40 cents per hour apart in the second and third years. Argu-
ably, by the June 21 meeting, this gap had been closed to
10 cents per hour in the first year and 10 cents per hour for
each of the next 2 years.
The introduction of the cost of dental insurance into the
wage mix midway through the negotiations doubtless added
an extra element which complicated these discussions.
At the June 17 meeting, Respondent reasonably demanded
that any dental cost be included within the hourly wage in-
crease. At this same meeting, Respondent also stated that it
would not agree to a wage increase of 50/40/40 plus dental
and that any dental coverage had to be mandatory. After this
request, the Union proposed a 50/35/35 increase plus op-
tional dental coverage which, when combined with Respond-
ent’s cost estimate for dental insurance, called for an actual
increase of .585/.435/.435.
Respondent asserts that the Union’s June 21 wage pro-
posal was an increase over its previous wage demand of
50/40/40 plus dental, which comes to a total increase of
.585/.485/485. However, the Union’s June 21 request of
50/35/35 plus dental is actually a combined increase of
.585/.435/.435. Thus, in the first year their wage demand did
not increase while in the second and third year, the Union’s
demand actually decreased by 5 cents from its June 17 pro-
posal. Therefore, some progress on wages was still being
made. These figures do not support Respondent’s assertion
that the June 21 union proposal was an increase.
As indicated, the parties’ wage proposals were moving
slowly, but steadily closer. The June 21 proposal by the
Union was their first which included Respondent’s dental
cost estimates. Respondent wrongly rejected this proposal as
an increase and used it as a means to implement unilateral
changes without making a counteroffer or requesting an addi-
tional proposal. Such conduct neither ‘‘reflect[s] a desire to
reach ultimate agreement, to enter into a collective bargain-
ing contract’’ nor ‘‘the serious intent to adjust differences
and to reach an acceptable common ground.’’ Insurance
Agents’ Union, 361 U.S. at 485 (1960); U.S. Gypsum Co.,
supra. Nor can it be reasonably said that at this point ‘‘there
was a complete breakdown in the entire negotiations, ‘‘ al-
lowing the employer to implement its last, best, and final
offer. See footnote 2, supra, citing Sacramento Union, 291
NLRB 552, 554 fn. 2 (1988).
The conduct of Respondent shows a lack of good-faith
bargaining and does not comport with the standards the
Board requires of an employer declaring impasse. The facts
show that the declaration of impasse was premature since ne-
gotiations were still making progress. Furthermore, since Re-
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent prematurely cut off negotiations, it did not comply
with the Board’s order to bargain in good faith over the 1992
wage reopener. Thus, ‘‘a lawful impasse [could] not be
reached in the presence of [this] unremedied unfair labor
practice[ ].’’ Circuit-Wise Inc., 309 NLRB at 918.
Respondent’s fall-back argument also fails. It argues that
the implementation of the wage increase was lawful even in
the absence of impasse ‘‘because Respondent notified the
Union that it intended to institute the change and gave the
Union the opportunity to respond to that notice’’ and that the
Union failed to request to bargain in a timely manner. Re-
spondent specifically cites NLRB v. Pinkston-Hollar Con-
struction Services, 954 F.2d 306 (5th Cir. 1992); and Nabors
Trailers v. NLRB, 910 F.2d 268 (5th Cir. 1990), cert. granted
500 U.S. 903 (1991), cert. dismissed pursuant to Rule 46,
501 U.S. 1266 (1992); both citing NLRB v. Citizens Hotel
Co., 326 F.2d 501, 505 (5th Cir. 1964), where the court stat-
ed:
It is true of course . . . that an employer may make
changes without the approval of the Union as the bar-
gaining agent. The Union has no absolute veto power
under the Act. Nor do negotiations necessarily have to
exhaust themselves to the point of so-called impasse.
But there must be a discussion prior to the time the
change is initiated. An employer must at least inform
the Union of its proposed actions under circumstances
which afford a reasonable opportunity for counter ar-
guments or proposals. [Emphasis added.]
Respondent’s line of authority is misapplied to the facts of
the present case because, here, Respondent declared impasse.
Under Citizen’s Hotel and its progeny, ‘‘impasse and the
Citizen’s Hotel standards are distinct exceptions to the gen-
eral rule that an employer’s unilateral change in the terms
and conditions of employment constitutes an unfair labor
practice.’’ Nabors Trailers v. NLRB, 910 F.2d at 275. Re-
spondent here declared impasse stating that its offer was final
and further bargaining would be futile.
It seems unreasonable to expect a union to continue nego-
tiating after such a position has been taken. The union was
not so much presented with an opportunity to bargain about
the wage increase as it was afforded a chance to give ap-
proval to the Respondent’s decision to grant it. Furthermore,
as the Board has stated, impasse and the Citizen’s Hotel
standard are distinct concepts. Therefore, Respondent cannot
attempt to use one, and on failing, fall back on the other.
Here, Respondent declared impasse and implemented its
‘‘final’’ offer. It was not interested in further bargaining
from the Union beyond having the Union accept its propos-
als.
Finally, the Respondent ignores the Board’s holding in
Bottom Line Enterprises, 302 NLRB 373 (1991), concerning
an employer’s duty to refrain from implementing unilateral
changes during contract negotiations.
Where as here, the parties are engaged in negotiations,
an employer’s obligation to refrain from unilateral
changes extends beyond the mere duty to give notice
and an opportunity to bargain. [I]t encompasses a duty
to refrain from implementation at all, unless and until
an overall impasse has been reached on bargaining for
the agreement as a whole. [Id. at 374.]
The Board has recognized but two exceptions to this gen-
eral rule.
The first occurs ‘‘when a union, in response to an employ-
er’s diligent and earnest efforts to engage in bargaining, in-
sists on continually avoiding or delaying bargaining.’’ Id. at
374. There is no evidence in the record showing that the
Union intentionally engaged in dilatory tactics. Moreover,
Respondent did not make ‘‘diligent and earnest efforts in
bargaining.
The second exception occurs ‘‘when economic exigencies
compel prompt action.’’ Id. at 374. Here, Respondent argues
that it needed to unilaterally implement the wage increase
because the employees had not had a raise in 3 years. Yet,
it was Respondent’s own bad-faith failure to negotiate over
the midterm wage reopener that caused this predicament.
Therefore, this claim fails under Wayne’s Dairy, 223 NLRB
260 (1976).
Thus, Respondent cannot claim that either exception ex-
cuses its actions.
Accordingly, I conclude that Respondent’s refusal to bar-
gain, based on its having prematurely declared impasse and
unilaterally implemented the wage increase, violated Section
8(a)(1) and (5) and Section 8(d) of the Act.
Nevertheless, I go on to discuss Respondent’s ‘‘Announce-
ment’’ of its final offer; which stated ‘‘in addition [to the
wage increase], next year we intend to add dental coverage.’’
Yet, the dental plan was to have been one part of a 3-year
economic package, which included wage increases in each of
the 3 years and dental insurance beginning in the third year.
Two weeks later on July 4, Respondent implemented the first
component of the economic package, the wage increase.
Here, it appears that Respondent could have rescinded its
promise to implement the dental plan in the absence of a
contract. However, such speculative is pointless. Based on
Respondent’s implementation of the first year wage increase,
there was no reason to assume that the later components of
the economic plan would not be implemented. Although, Re-
spondent’s employees did not incur any immediate benefit
from the promise of implementation of a dental plan in the
second year, such a promise of benefit by an employer by-
passes the Union and thus immediately affects it detrimen-
tally.
Regarding the issue of the dues checkoff, the question is
whether the Respondent refused to bargain collectively over
the subject of the dues checkoff in violation of Section
8(a)(1) and (5) of the Act. A union-dues checkoff is a man-
datory subject of bargaining. NLRB v. J. P. Stevens & Co.
538 F.2d 1152, 1165 (4th Cir. 1976). While an employer
does not have to agree to include such a provision, it is re-
quired to bargain in good faith over the term. Id. at 1165.
In order to satisfy the good-faith requirement, any opposition
to such a provision ‘‘must reflect a legitimate business pur-
pose.’’ Id. at 1165.
In the present case, the Respondent offered two legitimate
business purposes as to why they were opposed to the dues-
checkoff provision. First, the Respondent was being blamed
by the Union and its membership for problems caused by the
checkoff. Second, the Respondent did not want to know the
identity of union members to prevent discrimination suits. In
addition to these reasons, the Respondent stated ‘‘we are fun-
damentally opposed to [a dues-checkoff provision]’’ and that
1047CJC HOLDINGS
‘‘the company did not want to be in the dues collection busi-
ness.’’
For the purposes of this opinion, I accept arguendo the
first two reasons provided by the Respondent as legitimate
business reasons.
However, the Company’s fundamental opposition to a dues
checkoff and its desire not to ‘‘be in the dues collection busi-
ness’’ are not viewed by me as legitimate business purposes.
The Board has held that ‘‘A ‘philosophical opposition’ to [a
dues] checkoff, a union-security device, may constitute evi-
dence of bad faith bargaining.’’ Langston Cos., 304 NLRB
1022, 1050 (1991), citing Tiffany & Co., 268 NLRB 647,
650 (1984).
Here, the Respondent’s attorney and chief negotiator, John
McFall, never explained what he actually meant by ‘‘fun-
damental.’’ While Webster’s gives many definitions for the
word ‘‘fundamental,’’ the definition closest to the context of
the word used here is ‘‘belonging to one’s innate or in-
grained characteristics, deep rooted.’’ Webster’s Third Inter-
national Dictionary, 921 (G&C Merriam Co. 1963). While
not exactly synonymous with ‘‘philosophical,’’ such a ‘‘deep
rooted’’ opposition is still indicative of a prior fixed and firm
intent, and, thus, of bad-faith bargaining. For a party ‘‘to en-
gage in negotiations with a fixed, preconceived, and
unshakable intention of refusing to bargain about a subject
relating to wages, hours, or any other term or condition of
employment is to reject, to that extent, the principle of col-
lective bargaining as prescribed by the Act.’’ Preterm, Inc.,
240 NLRB 654, 673 (1979).
Similarly, the statement ‘‘that the company did not want
to be in the dues collection business’’ is not a legitimate
business purpose. Checking off union dues generally imposes
no burden on an employer. H. K. Porter Co., supra.
Respondent cannot have failed to have been fully aware
that the Union, like others similarly situated, perceived
checkoff as an issue of ‘‘respect.’’ For, if it somehow failed
to grasp that concept on its own, the Union’s attorney spe-
cifically told it that the Union felt that way on the issue. By
removing checkoff from the collective-bargaining agreement,
Respondent would effectively cause the Union to lose respect
and prestige among its membership. The Respondent was
similarly aware of the Union’s claim that in-person collection
by union stewards would probably cause friction within the
plant between union officials and its membership. Despite
these considerations, the Respondent remained inflexible on
the issue.
‘‘From the context of an employer’s total conduct, it must
be decided whether the employer is engaging in hard bar-
gaining to achieve a contract that it considers desirable or is
unlawfully endeavoring to frustrate the possibility of arriving
at any agreement.’’ Atlanta Hilton & Tower, 271 NLRB
1600, 1603 (1984). Given the totality of the circumstances,
the Respondent’s actions with regard to the dues-checkoff
provision once again show bad-faith bargaining versus hard
bargaining. An employer with ‘‘clean hands’’ could bargain
to impasse over a checkoff provision provided legitimate
business reasons are provided. J. P. Stevens & Co., 538 F.2d
at 1165. Here, the Respondent does not have clean hands,
and its opposition to the dues checkoff seems to be an at-
tempt to frustrate the bargaining process and weaken the
Union in the eyes of its membership.
Here, the Respondent offered legitimate business reasons
for continuing the checkoff; however, these reasons appear
suspect when balanced against their total conduct. First the
Respondent freely admits that they were ‘‘fundamentally’’
opposed to a dues checkoff. Because of this fundamental op-
position, any efforts by the Union to assist with any adminis-
trative problems were dismissed without any real consider-
ation. Also, the Respondent was unsympathetic to the
Union’s claims that this was an issue of respect between the
Union and its membership and that the collection of dues by
a union steward would cause friction at the plant. Finally,
there is the issue of the Respondent’s bargaining history. In
addition to the 1992 violations, the Respondent also engaged
in bad-faith tactics during these negotiations by declaring a
premature impasse and implementing unilateral changes.
These repeated violations demonstrate an antiunion animus.
Once again, it appears that the Respondent’s conduct in its
totality neither ‘‘reflect[s] a desire to reach ultimate agree-
ment, to enter into a collective bargaining contract’’ nor ‘‘the
serious intent to adjust differences and to reach an acceptable
common ground.’’ Insurance Agents’ Union, supra, 361 U.S.
at 485; U.S. Gypsum Co., supra, 200 NLRB at 1101. Rather,
it appears that the Respondent’s primary goal was to reach
impasse, and an unwavering stance on a prestige issue such
as a dues-checkoff provision is further evidence of that goal.
Accordingly, I conclude that the Respondent did not bargain
in good faith over the union-dues checkoff provision in vio-
lation of Section 8(a)(5) and Section 8(d) of the Act.
Accordingly, I conclude that Respondent’s overall conduct
was indicative of a general refusal to bargain, and, further,
based on its having prematurely declared impasse and unilat-
erally implemented the dental plan, also violated Section
8(a)(1) and (5) and Section 8(d) of the Act.
REMEDY
Having found Respondent to have engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent shall affirmatively be required to bargain in
good faith with the Union over the terms of a new collective-
bargaining agreement and, in addition, shall be required to
bargain over the terms of a retroactive, midterm wage re-
opener as set forth in the previous collective-bargaining
agreement.
Respondent shall also be required to revoke all the unilat-
eral changes in wages and the dental plan unlawfully insti-
tuted by it on July 4, 1994.
However, with regard to the unilateral change involving
wages, since this change involved the granting of a benefit,
this Order will require rescission of the beneficial change
only if the Union seeks such rescission. See Great Western
Broadcasting Corp., 139 NLRB 93, 96 (1962).
As for the dental plan, since Respondent has never imple-
mented the plan as promised, and it is not bound to in the
absence of a contract, no affirmative action needs to be
taken.
Summarizing, I find and conclude that counsel for the
General Counsel has proven each of the allegations of viola-
tions of Section 8(a)(5) and (1) of the Act made and con-
tained in the complaint, as amended, against Respondent, and
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 All outstanding motions, if any, inconsistent with this rec-
ommended Order are denied. 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 purposes.
6 I provide for a broad remedy here due to the repeat nature of
Respondent’s offenses.
7 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
I shall order an appropriate remedy for all such illegal ac-
tions.
CONCLUSIONS OF LAW
1. The Respondent, CJC Holdings, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, Local 1751, United Brotherhood of Car-
penters and Joiners of America, AFL–CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Since on or about June 21, 1994, Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing to bar-
gain collectively with the Union by declaring that negotia-
tions were at an impasse and implementing it’s last offer re-
lating to wages and dental insurance, and by inflexibly insist-
ing on deleting provision for checkoff from its agreement
with the Union without valid business justification.
4. The bargaining unit described below is an appropriate
unit for collective bargaining within the meaning of Section
9(b) of the Act:
INCLUDED:
All production and maintenance employees employed
by CJC Holdings, Inc. at its Austin, Texas facility, for-
merly operated by Artcarved Class Rings as successor
to John Roberts, Incorporated,
EXCLUDED:
All other employees including office and factory
clerical employees, inventory purchasing clerks, secu-
rity guards, nurses, professional and technical employ-
ees, employees involved in new product design and de-
velopment and supervisors as defined in the Labor
Management Relations Act of 1947, as amended, as
certified by the National Labor Relations Board in Case
No. 23–RC–3979 on August 13, 1973.
5. The above unfair labor practices have an effect on com-
merce as defined in the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, CJC Holdings, Inc., Austin, Texas, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively in good
faith with the Union, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO, Local 1751, as the exclusive
bargaining representative of its employees in the appropriate
bargaining unit set forth below, by implementing the terms
of its last offer to the Union without first having bargained
in good faith to a lawful impasse, or by insisting upon delet-
ing provision for checkoff from any contract which may be
agreed on without valid business justification.
(b) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.6
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act.
(a) On request, bargain collectively in good faith with
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO, Local 1751, as the exclusive collective-bargaining
representative of the employees in the unit specified above
and, if requested by the Union, rescind the changes in wages,
hours, and working conditions implemented on or about June
21, 1994.
(b) Post at its office and facility in Austin, Texas, copies
of the attached notice marked ‘‘Appendix.’’7 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 16, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail or refuse to bargain collectively in good
faith with United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, Local 1751, in the following unit which
is appropriate for the purposes of collective bargaining:
INCLUDED:
All production and maintenance employees employed
by CJC Holdings, Inc. at its Austin, Texas facility, for-
1049CJC HOLDINGS
merly operated by Artcarved Class Rings as successor
to John Roberts, Incorporated.
EXCLUDED:
All other employees including office and factory
clerical employees, inventory purchasing clerks, secu-
rity guards, nurses, professional and technical employ-
ees, employees involved in new product design and de-
velopment and supervisors as defined in the Labor
Management Relations Act of 1947, as amended, as
certified by the National Labor Relations Board in Case
No. 23–RC–3979 on August 13, 1973.
WE WILL NOT fail or refuse to bargain collectively in good
faith with United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, Local 1751, by unilaterally implement-
ing the terms of our last offer to the above-named labor or-
ganization when there has been no lawful impasse in negotia-
tions, or by insisting on an agreement without provision for
dues checkoff without valid business justification.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, on request, recognize and bargain collectively in
good faith with United Brotherhood of Carpenters and Join-
ers of America, AFL–CIO, Local 1751, as the exclusive col-
lective-bargaining representative of our employees in the unit
described above with respect to the wages, hours, and work-
ing conditions of all the employees in the above-described
unit and, if requested by the above named labor organization,
we will rescind the unilateral changes we implemented on
June 21, 1994.
CJC HOLDINGS, INC.