Connecticut State Conference Board, Amalgamated Transit Union

National Labor Relations Board - Board Decisions

Jul 16, 2003

339 N.L.R.B. 760 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
Connecticut State Conference Board, Amalgamated
Transit Union and H.N.S. Management Com-
pany, Inc.

Amalgamated Transit Union Local 425 and H.N.S.
Management Company, Inc.

Amalgamated Transit Union Local 443 and H.N.S.
Management Company, Inc.

Amalgamated Transit Union Local 281 and H.N.S.
Management Company, Inc. Cases 34–CB–
2506, 34–CB–2507, 34–CB–2508, and 34–CB–
2509
July 16, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 3, 2002, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Respon-
dents filed exceptions and a supporting brief, and the
Charging Party filed a reply 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 decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Con-
necticut State Conference Board, Amalgamated Transit
Union, East Hartford, Connecticut, Amalgamated Transit
Union Local 425, East Hartford, Connecticut, Amalga-
mated Transit Union Local 443, Stamford, Connecticut,
and Amalgamated Transit Union Local 281, New Haven,
Connecticut, their officers, agents, and representatives,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).

1 We shall modify par. 2(a) of the judge’s recommended Order to in-
clude the customary affirmative bargaining language used to remedy an
unlawful insistence to impasse on the inclusion of an interest arbitration
clause in violation of Sec. 8(b)(3). E.g., Sheet Metal Workers Local 38,
231 NLRB 699, 702 (1977).
We shall also substitute a new notice in accordance with our recent
decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
Chairman Battista would not modify the judge’s recommended Or-
der. In his opinion, the language of the recommended Order requiring
the Respondents to notify the Employer that they are willing to sign the
collective-bargaining agreement without the interest arbitration clause,
is narrowly tailored to the factual circumstances underlying the viola-
tion found and is sufficiently similar to the Board’s customary remedial
language.
“(a) On request, bargain in good faith with the Em-
ployer over terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement.”
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
“(b) Notify H.N.S. Management Company, Inc., that
the Respondent Unions will not insist to impasse, as a
condition of a new collective-bargaining agreement, on
the inclusion of an interest arbitration provision.”
3. Substitute the attached notices for those of the ad-
ministrative law judge.
APPENDIX A
NOTICE TO MEMBERS
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 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 on your behalf
with your employer
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 in good faith with
H.N.S. Management Company, Inc. (the Employer), by
insisting to the point of impasse on the inclusion of an
interest arbitration clause in our collective-bargaining
agreement with the Employer.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of their rights guaran-
teed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Employer over terms and conditions of employment and,
if an understanding is reached, embody the understand-
ing in a signed agreement.
WE WILL notify the Employer that we will not insist to
impasse, as a condition of a new collective-bargaining
agreement, on the inclusion of an interest arbitration pro-
vision.

CONNECTICUT STATE CONFERENCE BOARD,
AMALGAMATED TRANSIT UNION
339 NLRB No. 89
CONNECTICUT STATE CONFERENCE BOARD, AMALGAMATED TRANSIT UNION 761
APPENDIX B
NOTICE TO MEMBERS
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 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 on your behalf
with your employer
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 in good faith with
H.N.S. Management Company, Inc. (the Employer), by
insisting to the point of impasse on the inclusion of an
interest arbitration clause in our collective-bargaining
agreement with the Employer.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of their rights guaran-
teed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Employer over terms and conditions of employment and,
if an understanding is reached, embody the understand-
ing in a signed agreement.
WE WILL notify the Employer that we will not insist to
impasse, as a condition of a new collective-bargaining
agreement, on the inclusion of an interest arbitration pro-
vision.

AMALGAMATED TRANSIT UNION LOCAL 425
APPENDIX C
NOTICE TO MEMBERS
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 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 on your behalf
with your employer
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 in good faith with
H.N.S. Management Company, Inc. (the Employer), by
insisting to the point of impasse on the inclusion of an
interest arbitration clause in our collective-bargaining
agreement with the Employer.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of their rights guaran-
teed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Employer over terms and conditions of employment and,
if an understanding is reached, embody the understand-
ing in a signed agreement.
WE WILL notify the Employer that we will not insist to
impasse, as a condition of a new collective-bargaining
agreement, on the inclusion of an interest arbitration pro-
vision.

AMALGAMATED TRANSIT UNION LOCAL 443
APPENDIX D
NOTICE TO MEMBERS
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 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 on your behalf
with your employer
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 in good faith with
H.N.S. Management Company, Inc. (the Employer), by
insisting to the point of impasse on the inclusion of an
interest arbitration clause in our collective-bargaining
agreement with the Employer.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of their rights guaran-
teed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Employer over terms and conditions of employment and,
if an understanding is reached, embody the understand-
ing in a signed agreement.
WE WILL notify the Employer that we will not insist to
impasse, as a condition of a new collective-bargaining

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
agreement, on the inclusion of an interest arbitration pro-
vision.

AMALGAMATED TRANSIT UNION LOCAL 281

Terri Craig, Esq., for the General Counsel.
Douglas Taylor, Esq. (Gromfine & Taylor, P.C.), for the Re-
spondent.
Hugh Murray III, Esq. (Murtha Cullina, L.L.P.), for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. I heard this
case on September 12, 2002, in Hartford, Connecticut. The
consolidated amended complaint herein, which issued on Janu-
ary 2, 2002, was based upon unfair labor practice charges that
were filed on September 6, 2001,1 by H.N.S. Management
Company, Inc. (HNS or the Employer). The amended consoli-
dated complaint alleges that Connecticut State Conference
Board, Amalgamated Transit Union (Conference Board),
Amalgamated Transit Union Local 425 (Local 425), Amalga-
mated Transit Union Local 443 (Local 443), and Amalgamated
Transit Union Local 281 (Local 281), and collectively referred
to herein as the Respondents or the Unions, the collective-
bargaining representatives of certain of the Employer’s em-
ployees, insisted as a condition of reaching a collective-
bargaining agreement with the Employer that the Employer
agree to the inclusion of an interest arbitration clause in the new
agreement, and bargained to impasse in support of this demand,
in violation of Section 8(b)(3) of the Act.
FINDINGS OF FACT
I. JURISDICTION
The Employer manages and operates a public bus transit sys-
tem in the State of Connecticut, principally in the cities of Hart-
ford, New Haven, and Stamford. The Respondents, while ad-
mitting in its answer that during the 12-month period ending
October 31, 2001, the Employer derived gross revenues in ex-
cess of $250,000, and purchased and received at its various
facilities in Connecticut goods valued in excess of $50,000
directly from points outside the State of Connecticut, does not
admit the complaint allegation that the Employer is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Rather, its answer states that it
neither admits nor denies this allegation, “but note that the ac-
tual Employer is the Department of Transportation of the State
of Connecticut.” Other than its defense that the State of Con-
necticut is the actual employer herein because of the financial
assistance that it provides to the Employer, counsel for the Re-
spondents entered into a stipulation with counsel for the Gen-
eral Counsel and counsel for the Employer at the hearing that
“whichever the actual identity of the employer, all potential

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2001.
employers involved meet the other requisite standards of the
Act.”
David Lee, the general manager for First Transit, Inc. (First
Transit), was the sole witness herein. As he was a totally
credible witness, the facts recited herein are based upon his
testimony and the documentary evidence introduced by the
parties. First Transit has a contract with the Connecticut De-
partment of Transportation (DOT), to operate the local public
bus services in the cities of Hartford, New Haven, and Stam-
ford, under the name (CT Transit). Other entities, not related to
the Employer, operate bus transit in other cities in Connecticut
also under the CT Transit name. First Transit has a contract
with a different entity to provide management services to the
city of Norwich, Connecticut, but that is not relevant to the
issues herein. HNS, a subsidiary of First Transit, was set up to
operate the bus services in these cities pursuant to the contract
with the DOT. CT Transit or Connecticut Transit is the name
recognized by the public for transit systems operating in the
State of Connecticut, most of which are operated by HNS.
Prior to 1976, the transit system in the three cities involved
herein was operated by an entity called the Connecticut Com-
pany, a private, for profit, company, that went out of business
in 1976. The DOT, with the help of a grant from the Federal
Government, acquired the assets of the Connecticut Company
and established the name, Connecticut Transit, to be placed on
the side of the buses and to be a name that would be recognized
by the public. The DOT then hired a company to operate this
system and, in 1979, in a competitive bidding process, a prede-
cessor of First Transit was chosen to operate these systems, and
has been operating it ever since through HNS.
As part of its agreement with the DOT, HNS provides the
services of five senior managers of First Transit: the general
manager, Lee, the assistant general manager for transit services,
who oversees the bus operation, the dispatching and the bus
drivers, the assistant general manager for maintenance, who
oversees vehicle and facility maintenance operations, the assis-
tant general manager for administration, who oversees finance,
payroll, accounting, human resources and purchasing, and the
assistant general manager for planning and marketing. First
Transit receives a monthly fee (approximately $70,000 at the
present time and increasing to approximately $77,000 at the
conclusion of the term of the agreement in March 2006), from
the DOT that covers the salaries of the five managers as well as
all other services that the Employer provides. The DOT pro-
vides the facilities and equipment needed to run the transporta-
tion system and maintains ownership of these assets. All bus
operators, maintenance employees, clerical employees, and
similar employees are employed by the Employer “at the
State’s expense.” The Employer agrees to manage, supervise
and run the three transportation systems involved herein and to
turn over all revenue received, from the fare box and advertis-
ing on the buses, to the State of Connecticut.
When the Employer pays vendors for equipment or supplies,
such as bus engines or transmission parts, it pays by checks
with the name CT Transit at the top. The same is true for the
paychecks to its drivers and mechanics. The money that goes
into these checking accounts comes from the DOT. HNS hires,
fires, and supervises these employees; the DOT has no role in

CONNECTICUT STATE CONFERENCE BOARD, AMALGAMATED TRANSIT UNION 763
these actions. Lee is the principal negotiator for the Employer
with the Unions; the DOT has no role in these negotiations.
HNS also pays for the employees’ unemployment insurance,
medicare and social security taxes. If the Employer is in need
of a new bus, it will be provided by the DOT, primarily from
funds received from the Federal Government, and the State
retains title to the bus. In addition, the DOT regulates the Em-
ployer’s routes and services.
On the side of each bus operated by the Employer is a decal:
in the middle of the decal is a nine inch high logo of the DOT
with the words: “CONNECTICUT DEPARTMENT OF
TRANSPORTATION.” On the bottom of the decal, in one-
inch high letters, are the words: “Operated by HNS Manage-
ment Company.” In addition, the name “CT TRANSIT” is on
all sides of the bus in letters about a foot high, and the drivers’
uniforms say “CT TRANSIT.” Pursuant to petitions filed by
Local 425, in 1984 and 1985, the Region issued decisions and
directions of elections involving HNS. In addition, the Re-
spondents filed an unfair labor practice charge herein with the
Board alleging that the Employer violated Section 8(a)(5) of the
Act by insisting on the deletion of section 87.
As stated above, the Respondents, in its answer, admit that
during the period of time involved herein, the Employer de-
rived gross revenue in excess of $250,000 and purchased and
received in Connecticut goods valued in excess of $50,000
directly from points outside the State of Connecticut. However,
its answer also alleges that the “actual Employer” herein is the
DOT. As affirmative defenses, the Respondents allege that the
Employer provides no financial or physical support for the
transportation systems, which operate under the trade name of
Connecticut Transit, that the “actual” employer of the bargain-
ing unit employees is the DOT, that the Employer exercises no
independent control over any significant aspect of employment
of the bargaining unit employees, and that jurisdiction should
not be asserted herein because the State of Connecticut is not an
employer within the meaning of the Act. In other words, the
Respondents appear to be alleging that the employer herein is
really the DOT, which is an exempt employer under Section
2(2) of the Act, which exempts, inter alia, the United States, or
any wholly owned Government corporation . . . or any State or
political subdivision thereof.”
In Concordia Electric Cooperative, 315 NLRB 752, 753
(1994), the Board stated:

Section 2(2) of the Act exempts from the Board’s jurisdiction,
inter alia, “any State or political subdivision thereof . . . .” As
noted in Fayette Electric Cooperative, 308 NLRB 1071
(1992), the Supreme Court stated in NLRB v. Natural Gas
Utility District of Hawkins County, 402 U.S. 600, 604–605
(1971), that for an entity to be exempt from the Board’s juris-
diction as a political subdivision, it must either: (1) have been
created directly by a State, so as to constitute an arm or de-
partment of the Government; or (2) be administered by indi-
viduals who are responsible to public officials or to the gen-
eral electorate.

It is clear that HNS and First Transit were not created by the
State of Connecticut or by the DOT. Rather, a predecessor of
the Employer obtained the contract to provide bus transporta-
tion in the cities involved through competitive bidding in 1979,
and HNS and First Transit have operated these systems since
that time pursuant to agreements with the State or the DOT. In
addition, Lee and the other managers of the Employer are not
responsible to public officials or to the general electorate.
Rather, pursuant to its agreement with the DOT, the Employer
agrees to operate the public transportation systems in Hartford,
New Haven, and Stamford, and agrees to turn over all revenue
received to the DOT. The DOT pays a specified monthly sum
to the Employer and maintains ownership of the assets used in
the transportation system.
In Res-Care, Inc., 280 NLRB 670 (1986), the Board held
that in determining whether to assert jurisdiction over an em-
ployer with close ties to exempt Governmental entities, it
would examine the extent of the control exerted by the exempt
entity over essential terms and conditions of employment re-
tained by the employer and the exempt entity in order to deter-
mine whether the employer was capable of engaging in mean-
ingful collective bargaining. In Management Training Corp.,
317 NLRB 1355 (1995), the Board decided not to follow this
test anymore, finding it “unworkable and unrealistic,” and de-
cided that in determining whether to assert jurisdiction, “the
Board will only consider whether the employer meets the defi-
nition of “employer” under Section 2(2) of the Act, and
whether such employer meets the applicable monetary jurisdic-
tional standards.” In Teledyne Economic Development v.
NLRB, 108 F.3d 56 (4th Cir. 1997), the Court found that the
Board’s decision in Management Training was a permissible
exercise of the Board’s jurisdiction under the Act.
Unlike Management Training and Teledyne, which operated
job corp facilities pursuant to contracts with the U.S. Depart-
ment of Labor, and FiveCAP, Inc., 331 NLRB 1165 (2000), a
nonprofit corporation engaged in the operation of head start,
housing, and other public assistance programs, the Employer
herein is engaged in a regular commercial enterprise that re-
ceives financial assistance from the State, apparently, because
experience has shown that it could not survive economically
without such assistance. Neither the State nor the DOT has any
control over the Employer outside of the financial assistance
provided and the resulting ownership of the Employer’s assets.
I therefore find that the Employer does not satisfy either of the
tests set forth in Natural Gas Utility of Hawkins County, and
that the Employer is not a Section 2(2) exempt employer, but,
rather is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
The Respondents admit, and I find, that the Conference
Board, Local 425, Local 443, and Local 281 are each labor
organizations within the meaning of Section 2(5) of the Act.
III. THE FACTS
The prior contract between HNS and Locals 281, 425, and
443 was for the period April 1, 1999 through March 31, 2001.
section 86 contains the no-strike, no-lockout clause, and section
87 contains an interest arbitration clause, the issue herein. This
clause states, inter alia:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764
Should written notice terminating either the basic wage scale,
or any of these working conditions, or both, be given in ac-
cordance with Section 102 hereof, then any difference or dif-
ferences concerning the basic wage scales or these working
conditions, or both, as the case may be, may be submitted to
arbitration as provided in the paragraph (a) of this Section,
unless an adjustment be made by negotiation between the par-
ties.

Paragraph (a) states that the Employer and the employees
shall each select one arbitrator, who shall attempt to settle the
differences and, if unsuccessful, shall choose the third arbitra-
tor. Subparagraph (c) states that “the decision of the majority
of the Board, submitted in writing to the Company and the
Employees, shall be binding upon both parties.”
By letter to Lee dated January 15, Alvin Douglas, chairman
of the Conference Board, advised the Employer that the Unions
wanted to negotiate a new agreement to be effective April 1.
The letter stated, inter alia: “Please note that it continues to be
the position of this Union that rights and obligations of both
parties under section 87 of the current contract are not, and
cannot be, affected.” By letter dated January 16, Lee wrote to
Douglas confirming receipt of his letter. In addition, Lee
stated, inter alia:

Please note that it continues to be the position of the Company
that Section 1022 does not allow either party to selectively
terminate some provisions of the contract, while leaving oth-
ers in force. If other sections of the contract, such as Section
86, cease to be binding on the parties when the contract ter-
minates, the same must hold true for Section 87. In any case,
we share your earnest desire to negotiate a mutually agreeable
new contract before the current agreement expires.

On February 5, the Conference Board sent the Employer
proposed changes for the new contract. The preamble states:
“All sections and subsections not affected by these proposals
are to continue unchanged.” There are about 60 proposed
changes; the letter does not refer to section 87. HNS responded
with 37 proposals for the new contract, none of which refer to
section 87. On February 20, Lee and Douglas signed an
agreement allowing HNS, until February 20, to give written
notice to terminate the contract, and, by letter dated February
20, Lee notified Douglas of its intention to cancel and terminate
the contract effective April 1. In this letter, Lee stated that
HNS was canceling and terminating all provisions of the expir-
ing contract, “including but without limitation, Section 87.” On
February 21, HNS submitted a one-page contract proposal,
which included: “Delete Section 87.” HNS submitted an eight-
page proposal dated March 1. His proposal modified, with-
drew, or stood by its prior proposals. It states: “The Company
stands on its proposal of February 21, 2001 to delete Section
87.” The Unions made a “Comprehensive Counter-proposal”
dated March 2. In response to HNS’ proposals of the prior day,
the Unions accepted many of the proposals, some with a “pro-
vided.” The letter says: “Any topic not addressed is rejected.”

2 Sec. 102 provides that the contract remains in effect until March
31, and unless terminated by either side at least 60 days prior to that
date, it continues in effect.
Section 87 is not mentioned. The next proposal is from HNS
dated March 22 comprising eight pages. This proposal agrees
to, withdraws, stands on, or modifies prior proposals. It states:
“The Company stands on its proposal of February 21, 2001, to
delete Section 87.” The Conference Board’s counterproposal
dated later that same day contains 14 items, none of which refer
to section 87.
A three-page document entitled: “Tentative Agreements
Through 3/23/01,” amends, deletes, adds to, or clarifies con-
tractual provisions. Section 87 is not mentioned therein. The
Conference Board’s proposal dated March 28 begins by stating:
“In addition to those provisions already agreed, the Union pro-
poses the following terms of a 2-year agreement, from April 2,
2001 through midnight, March 31, 2003. It contains about 25
items, none of which refer to section 87.
The Unions’ negotiation notes for March 28 states that HNS
delivered a typed set of tentative agreements reached earlier
and when they reconvened, HNS presented a new comprehen-
sive proposal consisting of six items, including: “continued to
insist on deleting Section 87 entirely.” The Conference
Board’s “Final Offer” dated later that day, lists 12 items as “All
matters previously agreed to, plus.” It does not mention section
87. By letter to Lee dated March 29, Douglas wrote, inter alia:

As you know, we have been unable to resolve our differences
over certain changes proposed by both sides with respect to
our collective bargaining agreement. Accordingly, the Con-
necticut State Conference Board, including Locals 281, 425,
and 443 of the Amalgamated Transit Union hereby submits
all disputed issues to binding arbitration, in accordance with
Section 87 of our Agreement.

The letter names Douglas Taylor, Esq., its counsel at the
hearing herein, as its “arbitrator.” By letter dated April 2, Lee
responded:

I am in receipt of your letter dated March 29, 2001, seeking to
invoke interest arbitration in our current negotiation of a new
collective bargaining agreement. As you know, the Company
contends that interest arbitration can only be invoked by mu-
tual decision, and that the contract does not empower either
party to compel the other to interest arbitration unilaterally.
For the reasons we have discussed on several occasions, the
Company does not and will not agree to interest arbitration to
establish a new contract.

. . . .

Finally, I want to convey in the strongest terms our dismay
that the Union is attempting to invoke interest arbitration even
before the negotiation process has run its course. The Com-
pany is still ready and willing to negotiate a new contract.
There are still more than two weeks before our next scheduled
bargaining session and over three weeks before the Union has
scheduled a membership meeting. We have not yet made
anything like a final offer, nor has any offer been presented to
the membership. It is deeply disturbing that the Union ap-
pears to be pursuing interest arbitration—and has been, since
literally our first negotiating session—with such vigor while
bargaining is still in process. This concern is frankly magni-
fied by the fact that the Union’s “final offer” is so vastly in

CONNECTICUT STATE CONFERENCE BOARD, AMALGAMATED TRANSIT UNION 765
excess of every settlement reached between the parties in the
history of CT TRANSIT.

Lee named himself as HNS’ arbitrator. By letter dated April 4,
in response to Lee’s April 2 letter, Taylor wrote to Lee, inter
alia:

As we have, respectively, been named as the parties’ arbitra-
tors under Section 87 of the parties’ agreement, it is incum-
bent on us to attempt to resolve the parties’ dispute. How-
ever, since a negotiation is scheduled for April 18, there is
certainly no need for us to act until that date has passed. This
is because the Union will utilize interest arbitration only as a
last resort, if all attempts at negotiation have failed. However,
unless there is some tangible reason to believe that an agree-
ment will be reached, it would be improper and even negli-
gent for the Union to fail to assert on a timely basis, the right
of the members to arbitrate rather than strike.

. . . .

Why did the management team not make a final offer on
Wednesday or Thursday, when there would have been time to
present the offer to the members before the contract expired?
Well, we cannot say . . . The Union refuses to accept the in-
sidious implication that management has placed on the table
as its last offer before the contract expires, the worst overall
package offered to employees in the past 20 years, while re-
fusing to arbitrate—merely to induce its employees into a
strike . . . . Until an impasse has actually occurred, the Union
would appreciate a similar understanding on your part.

Meanwhile, the Union bargaining team is, I know, examining
its own position soberly—and I trust that management is do-
ing the same and seeking to supplement its planned expendi-
tures for the coming year.

By letter dated April 6, Taylor wrote to Hugh Murray, Esq.,
counsel for HNS at the hearing herein, inter alia:

The parties have legal differences which have come to the
fore because management was unwilling or unable to give its
final offer in contract negotiations and was unwilling to ex-
tend the contract for the time necessary to return to the bar-
gaining table. However, there is another bargaining session
scheduled and we have every hope that conscientious negotia-
tions will result in an agreement, not an impasse . . . .

Second, I checked further into the language history of what is
now Section 87 of the Agreement, without any luck, so far
. . . .

Third, we are convinced that the parties’ dispute over the ap-
plicability/vitality of Section 87 is one, initially, of contract in-
terpretation which belongs in arbitration . . . .

I hope that this letter has been helpful and informative and
that we never need to discuss or write about a contract im-
passe again.

By letter dated April 16, Lee wrote to Taylor, copied to
Murray and others, responding to Taylor’s April 4 letter and
“in order to set the record straight.” The letter states, inter alia:

By mutual agreement, the Company and the Union extended
the expiration date of our collective bargaining agreement
from March 31, to April 1, 2001, in order for the membership
to vote, as it has historically done, on a Sunday. The Com-
pany has said since Day 1 of these negotiations that it in-
tended to have a settlement agreement, or at least a final offer,
to present to the membership for a vote on April 1.

When the Company came to the bargaining table on Wednes-
day, March 28, we were shocked when the Union made a “fi-
nal offer.” In effect, the Union outlined what it stated were
the minimum acceptable criteria for a settlement. Anything
less, you said, would result in the Union recommending that
the membership vote no. That was the only time in the his-
tory of this Company that the Union has drawn such a “line in
the sand” demanding a minimum acceptable package of wage
increases and fringe benefit and pension plan improvements.
Notably, the Union’s minimum acceptable demand signifi-
cantly exceeded in terms of total cost every settlement in the
transit system’s history. Also notably, the Union made its “fi-
nal offer” when the parties still had two and a half days of ne-
gotiations scheduled.

I am stunned by your question, “Why did the management
team not make a final offer on Wednesday or Thursday, when
there would have been time to present the offer to the mem-
bers before the contract expired?” Since these negotiations
began, the Company has made a diligent and good faith effort
to negotiate a new agreement. We agreed to extend the expi-
ration date until Sunday, April 1, with the expressed intention
of completing negotiations by Friday, March 30. When both
parties returned to the table on March 28, it was with the ex-
pressed intention of continuing the negotiating process. We
stated repeatedly our desire to reach a mutual agreement that
the members could ratify on April 1, but also that we would
not agree to extend the contract past April 1 and that, if neces-
sary, we intended to give you our best and final offer by Fri-
day, March 30.

The bargaining process came to a screeching halt on Wednes-
day when the Union made its unprecedented “final offer.”
Nevertheless, we expressed hope that progress might still be
possible and that we could, perhaps, consider a one-year,
rather than a multi year, agreement. We were, therefore, fur-
ther shocked to learn on Thursday that the Union had never
scheduled membership meetings on Sunday, April 1. More-
over, you informed us that morning that due to a personal
emergency the Union was canceling our Friday meeting.

Doug, as you know full well, the reason we did not make a fi-
nal offer on Wednesday was because we still had two full
days of scheduled negotiations left to go. Just because the
Union chose to stifle negotiations by making an intractable fi-
nal demand, management was nowhere near ready to end the
bargaining process with so much time left before the deadline
and the parties still far apart on major economic issues. Fur-
ther, we did not make a final offer on Thursday because, as
we discussed specifically during our sidebar meeting with the
mediator, we learned the Union never intended to hold a
membership meeting on Sunday, April 1 . . . .

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766
Your letter accuses management of placing on the table “as its
last offer before the contract expires the worst overall package
offered to the employees in the last 20 years.” The last offer
you received was, as we made perfectly clear, not the Com-
pany’s best or final offer. It was precisely the kind of offer
you should expect from management when there are still sev-
eral rounds of bargaining—and nearly two full days of nego-
tiations—left to go. When both parties left the table on
Thursday, it was with the mutual understanding that man-
agement could not present a final offer before that day’s end,
that the Union was unavailable to meet the next day, and that
it was undesirable for a final offer to fester in the Union’s
hands for nearly three weeks before a membership meeting.
Hence, we agreed to meet at the next available opportunity,
April 18, and to schedule membership meetings for Sunday,
April 23.

On April 18, HNS gave a seven page “Settlement Agreement”
to the Respondents regarding the disputed contact issues. In-
cluded was: “Delete Section 87.”
On April 27 and April 30, HNS and the Respondents exe-
cuted a submission agreement in which they submitted “certain
specific issues to final and binding arbitration.” The agreement
states that the Conference Board was invoking interest arbitra-
tion under section 87 of the contract, that the Employer does
not wish to conduct interest arbitration and claims that it is not
obligated to submit to interest arbitration under section 87 “un-
der the present circumstances,” but “rather than litigate in an-
other forum whether the parties are obligated to arbitrate the
dispute over obligatory interest arbitration, the parties have
agreed to submit the matter to arbitration as provided herein.”
The stated issue is:

Has the Company violated the expired collective bargaining
agreement by refusing to submit to interest arbitration over
the terms of a new collective bargaining agreement? If the
answer to the above issue is “yes,” HNS shall submit to arbi-
tration under Article 87 of the expired collective bargaining
agreement without further litigation over the issue. If the an-
swer is “no,” CSCB shall not take any legal action designed to
force H.N.S. to participate in interest arbitration.

An arbitration hearing was held on June 28. Taylor was the
union member of the panel, Murray was the management
member, and Dana Eischen was the impartial chairman selected
by the parties. At the hearing, Taylor and Murray stated their
positions, together with numerous joint exhibits. No witnesses
were called at the hearing. The relevant statements by Taylor
at this hearing are that “the parties are far apart” in the negotia-
tions (at p. 19). At page 26, Taylor stated: “By this time [April
27], the parties were emphatically at impasse in the sense there
had been a final offer which had been rejected by the member-
ship.” At page 45, Taylor, referring to section 87, stated:
“Management wants to remove the clause from the contract.
The Union says no.” On August 30, the arbitration panel, with
Murray dissenting, found in the Respondent’s favor and found
that the Employer violated the terms of its contract by refusing
to submit to interest arbitration.
On August 24, HNS sent a proposed “Settlement Agree-
ment” to the Respondents in an attempt to settle the contractual
dispute. The agreement, six pages, proposes numerous changes
to the expired agreement, including the elimination of section
87. On, apparently, the same day, the Union responded that all
of the Employer’s proposals were acceptable with the exception
of eight items, including pensions, COLA, and “Keep Section
87.”
On October 5, the Respondents filed a charge with the Board
alleging that the Employer violated Section 8(a)(1) and (5) of
the Act by insisting during negotiations that section 87 be re-
moved, stating, “The employer’s proposal is a permissive sub-
ject of bargaining.” The Region dismissed this charge on No-
vember 21, and the Respondents’ appeal of this dismissal was
turned down by the General Counsel’s office by letter dated
February 13, 2002. In a statement of position letter of counsel
for the Respondents, dated October 5, responding to the allega-
tions herein, counsel states, inter alia:

First, while the question of whether a proposal to conduct in-
terest arbitration is a permissive subject of bargaining is set-
tled law under NLRB precedents . . . the Union believes that
the question can and should be reconsidered by the Board
. . . . [Citation omitted.] Second, to the extent that the parties
are at impasse in this case over the question of whether to in-
clude an interest arbitration provision in future collective bar-
gaining agreements, that impasse has been caused by the em-
ployer, not by the Union.”

By letter dated November 15, the arbitrator scheduled a
number of dates, commencing March 11, 2002, for the interest
arbitration hearing. The Employer made an undated series of
proposals for the interest arbitration, including the deletion of
section 87. The Respondents also presented its proposals for
the interest arbitration, not referring to section 87, and stating
that all sections not affected shall continue unchanged. At the
hearing, the Employer’s representative noted that while its posi-
tion was that section 87 should be deleted,

There is an unfair labor practice pending on that issue, and the
parties have jointly agreed to put the hearing of that issue
aside. There will be no presentation here on that issue until
the unfair labor practice issue is resolved. At that point, if it is
resolved in favor of the company, there will be no presenta-
tion and the unfair labor practice ruling will be controlling. If
it’s resolved in favor of the union, then this board will hear the
issue and determine whether or not an interest arbitration
clause will continue in the next succeeding contract.

On July 18, 2002, the board of arbitration issued its arbitra-
tion award. The award made adjustment to wages and cost-of-
living provisions, the pension plan, and other of the employees’
terms and conditions of employment. Pursuant to the agree-
ment of the parties, it made no decision on the continued appli-
cability of section 87, pending a Board decision in this matter.
After the receipt of this award, the Unions and the Employer
attempted to put it into a written agreement; however, problems
arose over how to word section 87. There was a series of e-
mails between the parties, principally Lee and Douglas in Au-
gust. On August 12, Lee wrote that the contract should specifi-
cally note what the panel had decided: that it was reserving
action on section 87 pending a Board decision on the Em-

CONNECTICUT STATE CONFERENCE BOARD, AMALGAMATED TRANSIT UNION 767
ployer’s unfair labor practice charge and complaint. On August
13, Douglas responded, inter alia, “On the other point, how-
ever, we must insist. Section 87 must stay in the text as writ-
ten.” On August 14, Lee wrote Douglas asking why it was not
a reasonable compromise to let section 87 “stay in the text as
written” with a note stating that its continuation in the contract
was the subject of pending litigation. He suggested the follow-
ing contract language: “The Board of arbitration has retained
jurisdiction concerning the inclusion of this section in the con-
tract, pending the outcome of pending litigation.” Douglas
responded later that morning: “It’s not reasonable because sec-
tion 87 was not amended and there should be no implication
that it has been amended. On the contrary, the Board [the Arbi-
tration panel] specifically agreed not to amend it.” He recom-
mended, instead, “that we might append to the end of the con-
tract that sentence or two from the award which retains jurisdic-
tion.” On the following morning, Lee responded that Douglas’
suggestion was not acceptable, and no written agreement was
agreed upon.
IV. ANALYSIS
There can no longer be any doubt that interest arbitration is a
permissive subject of bargaining and, therefore, a party cannot
insist upon it in negotiations to the point of impasse. Sheet
Metal Workers Local 38, 231 NLRB 699 (1977); Sheet Metal
Workers Local 20 (George Kach Sons), 306 NLRB 834, 839
(1992); NLRB v. Columbus Printing Pressmen, 543 F.2d 1161,
1163 (5th Cir. 1976). In addition, Board law precludes a party
from using an existing interest arbitration clause to perpetuate
that clause. In Columbus Printing, supra, the court stated:

There are several important reasons why a new contract arbi-
tration clause should not be enforceable to perpetuate inclu-
sion of the clause in successive bargaining agreements. The
contract arbitration system could be self-perpetuating: a party
having once agreed to the provision, may find itself locked
into that procedure for as long as the bargaining relationship
endures. Exertion of economic force to rid oneself of the
clause is foreclosed, for the continued inclusion of the term is
for resolution by an outsider. Parties may justly fear that the
tendency of arbitrators would be to continue including the
clause, for that is exactly what happened in this case.

As a party cannot bargain to impasse on a nonmandatory
subject of bargaining such as section 87 herein, the initial issue
herein is whether there was an impasse in negotiations between
the parties. An impasse is most often defined as the point in
negotiations when the parties are warranted in assuming that
further bargaining would be futile. GATX Logistics, Inc., 325
NLRB 413, 418 (1997); and AMF Bowling Co. v. NLRB, 63
F.3d 1293, 1301 (4th Cir. 1995). In CJC Holdings, Inc., 320
NLRB 1041, 1044 (1996), the judge stated:

A genuine impasse in negotiations is synonymous with dead-
lock. Where there is a genuine impasse, the parties have dis-
cussed 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.

I find that the evidence supporting impasse herein is compel-
ling. Although section 87 does not refer to impasse or a similar
term, the usual presumption is that a party invoking interest
arbitration considers that further negotiations would be futile,
and that appears to be the case herein. On March 29, Douglas
wrote to Lee that “. . . we have been unable to resolve our dif-
ferences over certain changes proposed by both sides . . . .” In
addition, at the arbitration hearing on June 28, Taylor told the
panel: “By this time [April 27] the parties were emphatically at
impasse in the sense there had been a final offer which had
been rejected by the membership.” Although the parties had
failed to reach agreement on a number of issues, section 87 was
clearly the subject that was deadlocking them. From February
20 through the present time, the Employer proposed eliminating
section 87, and the Unions rejected that proposal outright.
There were no negotiations, nor has there been any movement,
on that issue. As Taylor stated in his presentation to the panel
on June 28: “Management wants to remove the clause from the
contract. The Union says no.” In addition, in a position letter
to the Region dated October 5, counsel admitted that there was
an impasse over whether to include an interest arbitration pro-
vision in the next contract, but blamed the Employer for the
impasse. Counsel for the Respondents, in its brief, argues that
even if there was an impasse, it was not caused by the Unions’
demand that section 87 remain in the agreement, but was
caused by the Employer’s insistence that the section be deleted
from the contract. In Sheet Metal Workers Local 38, supra, the
Board, in finding a violation of Section 8(b)(3) of the Act, dis-
cussed nonmandatory subjects of bargaining and stated: “no
party may insist upon its inclusion in the bargaining agreement
to the point of impasse.” The essence of this is that the insis-
tence to impasse upon the inclusion of a permissive subject
violates the Act. On the other hand, the Employer was lawfully
entitled to demand the exclusion of this nonmandatory subject.
This defense is therefore rejected.
As stated above, the Board does not allow a party in negotia-
tions to use an existing interest arbitration clause to perpetuate
that clause. That is what the Respondents attempted to do in
the negotiations herein. The Respondents invoked an arbitra-
tion proceeding in order to force the Employer to arbitrate the
provisions of a new collective-bargaining agreement. When the
arbitration panel found in the Respondents’ favor, the parties
each then submitted their proposals to the panel for determina-
tion. Although the Respondents’ proposals did not specifically
include section 87, the preamble to its proposals states: “All
sections and subsections not affected by these proposals are to
continue unchanged.” The Respondents were therefore propos-
ing that section 87 be preserved in the next contract. The Em-
ployer’s proposal requested that section 87 be deleted. It was
only because of the pending Board complaint herein that the
Respondents agreed with the Employer to hold the section 87
issue in abeyance pending a Board decision herein. Further
evidence of the Respondents’ insistence on continuing section
87 into the new contract is the Respondent’s reluctance to com-
promise on this issue in preparing a written contract containing
the panel’s findings. Douglas would not even agree to lan-
guage that the panel was reserving action on it pending a Board
decision, stating: “Section 87 must stay in the text as written.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768
For these reasons, I find that by insisting on retaining section
87 in negotiations up to the point of impasse, and by insisting
that any new collective-bargaining agreement also contain an
interest arbitration provision, the Respondents violated Section
8(b)(3) of the Act.
CONCLUSIONS OF LAW
1. The Employer has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Conference Board, Local 425, Local 443, and Local
281 have each been labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondents insisted that the Employer agree to an
interest arbitration clause as a condition of reaching a new
agreement, and bargained to impasse in support of that demand,
in violation of Section 8(b)(3) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices in violation of Section 8(b)(3) of the Act, I rec-
ommend that it be ordered to cease and desist therefrom and
that it take certain affirmative action designed to effectuate the
policies of the Act. In that regard, the Respondents shall notify
the Employer, in writing, that it is withdrawing its insistence
that any new collective-bargaining agreement contain an inter-
est arbitration provision, and that it will sign a contract setting
forth the terms found by the arbitration panel in its award dated
July 18, 2002.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondents, Connecticut State Conference Board,
Amalgamated Transit Union, Amalgamated Transit Union Lo-
cal 425, Amalgamated Transit Union Local 443, and Amalga-
mated Transit Union Local 281, their officers, agents, and rep-
resentatives, shall

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.
1. Cease and desist from
(a) Refusing to bargain collectively with the Employer by in-
sisting to impasse that the Employer agree to include an interest
arbitration provision in any new collective-bargaining agree-
ment.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Notify H.N.S. Management Company, Inc. and First
Transit, Inc. that the Unions are willing to sign a collective-
bargaining agreement pursuant to the terms contained in the
interest arbitration award dated July 18, 2002, but without an
interest arbitration clause.
(b) Within 14 days after service by the Region, post at its un-
ion offices in East Hartford, Stamford, and New Haven, Con-
necticut, copies of the attached notice marked “Appendix A
through Appendix D.”4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 34, after being
signed by the Respondents’ authorized representatives, shall be
posted by the Respondents immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by any other
material.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

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.”