Matanuska Electric Association

National Labor Relations Board - Board Decisions

Jun 13, 2002

337 N.L.R.B. 680 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
Matanuska Electric Association, Inc. and Interna­
tional Brotherhood of Electrical Workers, Local
1547, affiliated with International Brotherhood
of Electrical Workers, AFL–CIO. Case 19–CA–
26525
June 13, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS COWEN
AND BARTLETT
On August 29, 2001, Administrative Law Judge James
L. Rose issued the attached decision. The Charging
Party filed exceptions and a supporting brief. The Re­
spondent filed an answering 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,1 findings, and conclusions and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge, and
the complaint is dismissed.
Nia Renei Cottrell, Esq., for the General Counsel.
William F. Mede and Thomas P. Owens Jr., Esqs., of Anchor-
age, Alaska, for the Respondent.
Laurie Constantino, Esq., of Anchorage, Alaska, for the Charg­
ing Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Anchorage, Alaska, on May 22–24, 2001, on
the General Counsel’s complaint which alleged that the Re­
spondent (sometimes MEA) engaged in conduct violative of its
duty to bargain and unlawfully implemented its collective-
bargaining proposal all in violation of Section 8(a)(5) of the
National Labor Relations Act (the Act).
The Respondent generally denied that it committed any vio­
lations of the Act and affirmatively contends that prior to im-
1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 None of the members of the panel deciding the instant case was on
the panel that decided Royal Motor Sales, 329 NLRB 760 (1999), the
case cited by the judge in his impasse analysis. The panel does not pass
on the correctness of the decision in Royal Motor Sales.
plementing its final proposal, the parties had reached an im­
passe in negotiations or if not, by the actions of the Charging
Party during bargaining the Respondent was permitted to im­
plement its final proposal.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I hereby make the
following findings of fact, conclusions of law, and recom­
mended Order.
I. JURISDICTION
The Respondent is an electrical power utility serving cus­
tomers in an area north of Anchorage, Alaska, with its principal
office at Palmer, Alaska. During course and conduct of its
business, the Respondent annually purchases goods, products
and materials directly from points outside the State of Alaska
valued in excess of $5000 and annually receives gross revenues
in excess of $250,000. The Respondent admits, and I conclude
that it is an employer engaged in interstate commerce within
the meaning of Sections 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATI ON INVOLVED
International Brotherhood of Electrical Workers, Local 1547,
affiliated with International Brotherhood of Electrical Workers,
AFL–CIO (the Union) is admitted to be, and I find is, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR L ABOR PRACTICES
A. Factual Overview
The Respondent has about 120 employees in four bargaining
units, all of which are represented by the Union. The Union
and the Respondent have had a bargaining relationship for
about 40 years and have negotiated many collective-bargaining
agreements covering these units. For reasons not fully ex­
plained in the record, since late 1998 the parties have been
engaged in “open warfare” and this has resulted in extensive
litigation involving all the units; however, this matter concerns
only the “outside unit”—the 30 linemen/wiremen, meter read­
ers, mechanics, and others.
The last agreement prior to the events here covering the out-
side unit was due to expire on December 31, 1998, however, it
was extended by agreement during negotiations for a successor
until the Respondent implemented its final proposal on June 3,
1999.3 On February 28, 2001, the parties executed a successor
agreement.
The parties exchanged aggressive reopener letters and on
November 10, 1998, had their first meeting. Thereafter they
met 23 times in formal sessions until June 8, and had numerous
“sidebar” or informal meetings between the Union’s principal
negotiator, Larry De Peal (and later its attorney, Laurie Otto,
now Constantino) and William Mede, the Respondent’s princi­
pal spokesperson.
From the beginning the Respondent informed the Union that
there would have to be changes in its ability to subcontract
work and that all past practices would have to be eliminated.
The Respondent argued that the current language on mutual
determination and loss of work gave the Union a virtual veto on
3 All dates are in 1999, unless otherwise indicated.
337 NLRB No. 101
681 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its ability to subcontract. And the Union seemed to have a
superior institutional memory of past practices. On this, the
Union had filed something like 75 grievances during the course
of the contract, 27 of which went to arbitration, with the Union
winning, or partially winning, 20 due to the believability of its
position on the past practice.
The Union consistently took the position that it would agree
to no changes in the subcontracting language. Indeed it pro-
posed even more restrictive language. And it consistently re-
fused to agree to language eliminating past practices.
Both parties agree that these were the two critical issues in
negotiations. In fact, Mede told DePeal that the Respondent
would take a strike rather than keep the current contracting
language or to keep past practices.
In a sidebar meeting in early January between DePeal and
Mede, they agreed that if these two issues were resolved, the
rest of the contract, including wages and benefits, would fall
into place. However, these issues were not resolved, nor was
any movement made by either side on them. The parties did
make tentative agreements to about 50 less important clauses.
As will be discussed in more detail below, basically the Re­
spondent stated that “all” past practices would have to be
eliminated; and suggested a “Davis-Bacon approach” to sub-
contracting, whereby, presumably, the “prevailing wage” would
be that set forth in the parties’ collective-bargaining agreement
and would have to be paid by the subcontractor.
Given the Union’s consistent and adamant rejection of the
Respondent’s proposals on these two issues, on April 12, the
Respondent declared an impasse. This was rescinded 2 days
later when the Union agreed to further bargaining sessions, and
the parties continued to meet in late April and on May 6 and 20.
And in subsequent sidebar discussions, the Union made sub­
stantial movement on both issues. On May 27, DePeal wrote
Thomas Owens, who was substituting for Mede at the time,
requesting the Respondent agree to four meetings in June and
requesting certain information. The Respondent agreed to meet
on June 8, but then in a letter dated June 1, to Bob Zehnder
(who had just taken over from DePeal as the Union’s chief
negotiator), Mede stated that in his opinion “further bargaining
would be futile and not likely to produce an agreement.” Thus
he said MEA intended to implement its April 29 proposal on
June 3, but nevertheless agreed to meet on June 8, as scheduled,
to explore whether the deadlock could be broken.
The Respondent did in fact implement its April 29 proposal
and the parties did meet on June 8, for a short time, but no
agreement was reached. Ultimately, the parties did execute a
collective-bargaining agreement, but the process leading to its
agreement is not a part of this record.
B. Analysis and Concluding Findings
For decision in this proceeding are 11 allegations arguably
demonstrating that the Respondent engaged in overall bad-faith
bargaining from and after December 2, 1998. Though unclear,
it does not appear that the General Counsel contends that any of
these 11 allegations is per se a violation of Section 8(a)(5).
Rather, they allegedly evidence a totality of conduct designed
to frustrate good-faith bargaining. As the Board said in Altorfer
Machinery Co., 332 NLRB 130 (2000), citing Atlanta Hilton &
Tower, 271 NLRB 1600 (1984), “good faith or the lack of it
depends upon a factual determination based on overall con-
duct.” The Respondent contends that these 11 specific acts did
not occur. Many of these assertions are redundant, nevertheless
they will be considered separately, seriatim as they appear in
the complaint.
In addition, it is alleged that the Respondent unlawfully im­
plemented the April 29 proposal. The Respondent argues that
either the parties were at an impasse in negotiations or by its
actions the Union made further bargaining futile therefore it
was permitted to implement its final offer.
1. Refused to explain or answer questions about its proposal
This allegation, I conclude, is not supported by credible evi­
dence. Thus, DePeal testified that during the first 3 or 4 days of
negotiations, the parties “walked through” the Respondent’s
proposal so “we knew where the—where the MEA was coming
from.” DePeal went on to testify that Mede explained some but
not all of the MEA proposals and answered some but not all of
the Union’s questions. In his letter of April 20, DePeal wrote:
“For the very first time since negotiations began, MEA was
willing to clearly explain its reasons for seeking specific lan­
guage changes in the collective bargaining agreement, and to
identify its intent on a section-by-section basis.”
DePeal admitted that at various times throughout the nego­
tiations MEA explained its position on an issue and DePeal
stated that the Union understood. And in bargaining notes there
are repeated references that DePeal said the Union understood
the Respondent’s position on a proposal. Given the extensive
bargaining notes in evidence, I cannot accept so much of De-
Peal’s unreferenced and general testimony that sometimes the
Respondent did not explain or answer specific questions.
I reject and discredit the testimony of Constantino that the
Respondent refused to answer specific questions at the April 29
meeting; but even if this occurred as she testified, such does not
negate DePeal’s testimony that in fact throughout negotiations
MEA was responsive. I note that Constantino was a late comer
to the negotiations, as was Owens. Though new personalities
were inserted into negotiations, the fact remains that by April
29, the parties had met 19 times in formal sessions and numer­
ous times informally.
Demanding answers to innumerable questions about each
proposal, Constantino testified, was “collective bargaining
101.” Owens referred to such as “twenty questions,” “filibus­
tering,” and “slow rolling.”
I believe, and conclude, that the Union’s statements in letters
and meetings that the Respondent refused to answer questions
was posturing and not supported by credible evidence. To the
contrary, I believe that the Union’s negotiators well knew
throughout negotiations what the Respondent had in mind with
the proposed contract changes, particularly on the two key is-
sues.
2. Demanded and insisted that all Union questions concerning
Respondent’s proposals be in writing, as would any responses
from Respondent
Again, the testimony of DePeal and the bargaining notes do
not support this allegation. DePeal agreed that throughout ne-
MATANUSKA ELECTRIC ASSN. 682
gotiations the Respondent answered the Union’s questions
without demanding that they be put in writing, even assuming
such would be evidence of bad faith.
The parties do agree that during the May 20 meeting Owens
told the Union: “I’ll give same answer to every question—
she’ll (Constantino) ask what did you intend and I’ll say what-
ever the words say, every question will get the same answer—
you can make a list of questions that we might answer.” He
further said: “As far as curing your lack of understanding or
professed lack of understanding to what is on the table, we are
willing to bargain with you about that by specific written ques­
tions about the language you [do] not understand. We will give
you back a concise, prompt, written clarification answer.”
This occurred after months of bargaining, wherein the Re­
spondent’s negotiators in fact answered questions about spe­
cific proposals. Based on the total record, I do not credit the
assertion by the General Counsel and Union that all the ques­
tions asked by Constantino were in fact a good-faith effort to
understand the Respondent’s proposal. The bargaining notes
reveal that questioning was a tactic and not a serious effort, in
most cases, to gather information. The total record does not
establish that by demanding written questions the Respondent
evidenced its bad faith in bargaining.
3. Made blanket negative responses to all of the Union’s indi­
vidual proposals or requests to discuss individual proposals,
while insisting that the Union present only entire packages that
Respondent could accept or reject as a unit
According to DePeal’s testimony, as confirmed by the bar-
gaining notes, this assertion did not happen. In fact throughout
negotiations, the Union made individual proposals which were
considered and the parties reached tentative agreement on some
50 contract clauses.
During the later stages of negotiations, characterized by
Owens as the “end game,” the Respondent did suggest that each
party submit to the other a comprehensive “concept” proposal,
which if accepted in its entirety, then the parties could negotiate
specific language. The concept proposals are sometimes re­
ferred to in the record as a “got to have list.” The Respondent
further stated that if the Union refused to accept its concept
proposal in its entirety, then the parties would revert to the last
formal proposal for continued negotiations.
After about 6 months of negotiations such does not seem to
be an unreasonable position, nor does such suggest that the
Respondent was not bargaining in good faith.
4. Refused to consider anything other than a complete proposal
package from the Union, or to discuss individual elements, or
to discuss tentative agreement to individual elements
This allegation is not supported even by the testimony of the
General Counsel’s witnesses or the Joint Exhibits. In fact, as
DePeal wrote in his May 19 letter to the Respondent, the parties
exchanged proposals then in negotiations they discussed the
contract section by section, tentatively agreeing to many sec­
tions. The parties made tentative agreement to 50 sections, the
last of which was made on April 29.
Again, only in the latter stages did the idea of dealing in
package proposals arise. Thus on April 5, the Union submitted
a “Package Proposal.” And, the Union submitted another pack-
age proposal with its May 19 letter.
The fact that after 6 months of negotiations on a section by
section basis both parties sought to deal in package proposals
does not demonstrate an intent on the part of the Respondent
not to reach an agreement.
5. Took a “take it, or leave it” stance in negotiations
DePeal testified that the Respondent in fact moved off its
original proposal on several sections and the parties in fact
reached tentative agreements. Importantly, on the critical issue
of eliminating past practices, when the Union changed its posi­
tion, it proposed language different from that proposed by the
Respondent, which the Respondent stated it would accept. The
totality of the record here simply does not establish that the
Respondent took a “take it, or leave it” stance in negotiations.
6. Refused to consider union concessions during negotiations
Apparently this allegation is based on the General Counsel’s
understanding of the posture of negotiations in May. At that
time both parties had presented formal proposals and each had
presented a package proposal. Both sides took the position that
their respective package proposal had to be accepted by the
other in total, and if not they would return to the formal propos­
als.
In its package proposal the Union, for the first time, made
concessions on subcontracting and past practices, though in
previous sidebar discussions union negotiators stated they were
willing to move on these issues. Again, however, the Union
clearly stated to the Respondent that these concessions were
part of a total package. While the Respondent did indicate
acceptance of the proposed past practice language, it was not
required to accept the Union’s package proposal. E.g., J & C
Towing Co., 307 NLRB 198 (1992). The fact that the Respon­
dent did not accept the Union’s package does not imply that it
was not considered.
7. Repeatedly, falsely, and in bad faith, declared impasses
On April 12, Mede wrote DePeal stating that due to a lack of
movement on significant issues and the Union’s refusal to meet
between April 9 and 29, the Respondent considered negotia­
tions at a impasse. Given that the parties had bargained off and
on for 5 months and their respective positions on the admittedly
two critical issues remained fixed, that there was an impasse
was not an unreasonable conclusion. Nevertheless, following
DePeal’s reply of April 13, on April 14 Owens wrote that the
impasse had been rescinded and the parties scheduled four sub-
sequent meetings.
Then after meetings in April and May and the exchange of
concept proposals, on June 1, Mede wrote that “further bargain­
ing would be futile and not likely to produce and [sic] agree­
ment.” Thus Mede stated the Respondent’s intention to imple­
ment its final (April 29) offer on June 3.
Whether there has been an impasse in negotiations is a sub­
ject repeatedly treated by the Board and courts. E.g., Taft
Broadcasting Corp., 163 NLRB 475 (1967); Tom Ryan Dis­
tributors, 314 NLRB 600 (1994); Royal Motor Sales, 329
NLRB 760 (1999) (noting that impasse is almost always a tem­
porary deadlock which is eventually broken). Impasse in nego-
683 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tiations is a fact specific determination that further bargaining
would be futile, and absent some intervening act (for instance
economic pressure) there is no reasonable likelihood of the
parties reaching an agreement.
In Taft, the Board said that impasse is a matter of judgement
that at the time continuation of bargaining would not likely
cumulate in the parties reaching an agreement. Relevant fac­
tors to be considered are the parties’ bargaining history, the
importance of the issues separating them and their contempora­
neous understanding as to the state of negotiations (not that
both had to agree there was an impasse). The Board noted that
the existence of other unresolved issues does not negate the
existence of impasse. “[A] deadlock is still a deadlock whether
produced by one or a number of significant and unresolved
differences in positions.” 163 NLRB at 478.
Given the significance of the two principal issues and the
parties’ respective adamant positions, regardless of other tenta­
tive agreements and concessions, and other unresolved issues,
they were unlikely to reach an agreement when on April 12,
Mede wrote that they were at an impasse.
While the determination of impasse was unilateral, the basis
for it was mutual—the opposing and intransigent positions on
eliminating past practices and changing subcontracting lan­
guage. I therefore conclude that Mede’s announcement of im­
passe was neither false nor in bad faith.
In May the Union stated its willingness to move on both is-
sues. The Respondent argues that this announcement was
merely in sidebar discussions. Since the Union made no
changes in its formal proposal, there was impasse. I do not
accept this argument. Such would give dominance to form over
substance. Whether formal or sidebar, statements of position
and declarations of movement on important issues must all be
considered when evaluating whether there is a likelihood of
reaching an agreement.
But the Union’s statement that it no longer adhered to its po­
sition on these two issues was questionable. Notwithstanding
that the Respondent had proposed substantial changes in the
existing contract, DePeal agreed that if the parties were able to
resolve the past practices and subcontracting issues, the rest of
the contract would fall into place. The Respondent’s concept
list included the Union’s proposed language on past practices
and a Davis-Bacon approach on subcontracting. But the rest of
the contract did not fall into place. Indeed the Union rejected
the Respondent’s concept proposal and then approached nego­
tiations in a more stringent and less compromising manner.
In rejecting the Respondent’s concept proposal, DePeal
claimed (and the General Counsel argues) that the “got to have
list” included 112 items (the last being a proposed global set­
tlement of all litigation and was withdrawn at the May 20 meet­
ing). I count 21 changes from its April 29 proposal, most of
which appear minor. The Respondent argues, and I conclude,
that its “got to have list” included all items necessary to a com­
plete collective-bargaining agreement and was, as to the minor
issues, similar to the Union’s concept proposal of May 19.
During the first several months of negotiations, the Union’s
principal negotiator stated that he understood the various pro­
posals of the Respondent. However, in May, the Union began
asking innumerable questions about each proposal. I conclude
that the Union’s posturing could only have been for the purpose
of delaying finalization of an agreement. That protracted nego­
tiations were at the core of the Union’s agenda is demonstrated
by Counsel’s statement in her brief that “the speed of negotia­
tions was consistent with prior negotiations between the parties,
both in the Outside and other bargaining units. For example,
the record reflects that IS negotiations between MEA and
IBEW had been on-going for more than 10 years, with ap­
proximately 10 relatively simple contract changes on the table,
and that negotiations between MEA and IBEW for an Eklutna
agreement had also been ongoing for over 2 years. In short, the
Outside negotiations were proceeding at a normal and consis­
tent pace, until MEA began bargaining in bad faith.” Counsel
refers to the Respondent’s desire to conclude a contract before
the construction season began as “needing to complete negotia­
tions more quickly than normal.”
In his May 19 letter, DePeal stated that “(n)egotiations pro­
ceeded in this straight-forward and productive manner until
March 1999, when MEA began aggressively pushing for an
unreasonably accelerated pace in negotiations.” In fact the
Union had refused to meet at all between February 18 and
March 25, and again between April 9 and 29 on grounds that
DePeal was too busy. The Respondent’s charge of bad-faith
bargaining was dismissed by the Acting Regional Director
(affirmed on appeal) with the caveat “that the Union could have
been more diligent in scheduling meetings for the Outside unit
in March and April.”
Regardless of what might or might not have been occurring
with regard to other bargaining units, given the parties 40 bar-
gaining history, I conclude that 7 months was ample time to
complete a contract in the absence of impasse on substantive
issues, had there been a serious desire to do so.
The threat of stalling negotiations was stated by DePeal in
his letter to the Respondent of May 20, when he wrote “it will
be necessary for MEA to explain its reasons and motivations
for seeking specific amendments in the collective bargaining
agreement, and for the parties to bargain over those amend­
ments.” As an attachment, he listed 29 clauses which “IBEW
requires explanation of the following MEA Outside Proposals
which have never been explained by MEA.”
The Union began taking the position that all words are am­
biguous, therefore to have a bargaining history for purposes of
future grievance litigation, the Union wanted the Respondent’s
intent and motivation explained. The Respondent took the
position that the words proposed mean what they mean. In
negotiations, the Respondent did not say that it was opposed to
bargaining history, but only that it need not answer repeated
questions about clauses which have a plain meaning. Further,
even while claiming movement on the critical issues in his May
19 letter, DePeal wrote “Moreover, IBEW continues to wait for
an answer from MEA on the information request IBEW submit­
ted over MEA’s proposed past practice section and anticipates
the need for extensive negotiations over this proposed section.”
Such seems to belie an intent to reach an agreement without
protracted negotiations on a clause it states it capitulated to the
Respondent.
In a recent, complicated and extensive ruling on impasse, the
Board held that the test of whether there is a genuine impasse is
MATANUSKA ELECTRIC ASSN. 684
whether the union indicated its willingness to move on the
critical issues such as to suggest the possibility of reaching an
agreement. Royal Motor Sales, supra. Nothing in Anderson
suggests that impasse has to be mutually agreed to, notwith­
standing some language to the contrary in Ryan. I note also
that the Board indicated that “delay and obfuscation” can be a
basis for impasse, though finding, contrary to the judge, such
not to be case. Finally, in reversing the judge’s finding of im­
passe in Anderson, the Board concluded that the respondent did
not explore the union’s movement on the critical issue and its
declaration of impasse occurred in the context of unfair labor
practices.
Here the Union did change its adamant position on past prac­
tices (while demanding extensive information and declaring the
necessity for “extensive negotiations” on this clause) and to an
extent moved on subcontracting, though its new position was a
long way from capitulation. In its May 19 package proposal,
the Union offered, “signatory to IBEW or pay ‘State Davis
Bacon.’ Delete ‘mutual determination’. . . .” Though appar­
ently representing a change in position, this proposal was still
far from the Respondent’s offer, given the Union’s understand­
ing of “State Davis Bacon.”
Nevertheless, unlike Anderson, while declaring impasse, the
Respondent left the door open to consider the Union’s new
position when Mede wrote on June 11, “MEA remains willing
to continue to bargain with the union in an effort to break the
impasse. If IBEW wishes to attempt to break the impasse, it
should submit a complete package proposal to MEA. MEA
will be willing to schedule another bargaining session if it re­
ceives a package proposal from IBEW which contains signifi­
cant changes from IBEW’s current proposal, suggesting that
further bargaining would be productive.” The Union did not
respond to this letter.
On these facts, I conclude that the parties were in fact at an
impasse when negotiations concluded in May. At best, the
Union had simply traded one intransigent position, on past
practices and subcontracting, for another, the form of bargain­
ing.
8. Refused to provide written copies of past practices known to
it, while insisting that the Union agree to the blanket abolition
of all past practices
Repeatedly, during discussions of the Respondent’s proposal
to eliminate all past practices, the union negotiators would ask
for a list of those past practices. The Respondent’s negotiators
would decline to furnish such a list, stating that “all” means
“all” and to make out a list would risk leaving out a practice
known to some employee but unknown to, or not remembered
by, management. However, as early as November 1998, the
Respondent’s negotiators did suggest that if the Union had in
mind a specific past practice it wanted to keep, to make such a
proposal and the Respondent would negotiate concerning it.
The Union did not do so, always insisting that the Respondent
list those past practices it meant by “all” and demanding all
bargaining notes and other documents from the time the Union
was certified (about 40 years) which could define a past prac­
tice.
I do not comprehend how the Respondent’s position demon­
strates a refusal to bargain in good faith. To the contrary, the
Union’s apparent inability to understand the word “all” and its
insistence on a comprehensive list does not seem calculated to
move in the direction of reaching an agreement.
9. Refused to accept any tentative agreements, unless such
tentative agreements were linked to an entire “package,” while
refusing to identify the nature of such packages
It is unclear exactly what the General Counsel contends by
this allegation. In fact the parties had tentative agreements
which were included in the Respondent’s April 29 proposal.
They were never in issue. Further, there can be no doubt what
the Respondent was proposing. There was the April 29 formal
proposal and the May 20 concept proposal
10. Refused, while physically present at the bargaining table,
to set dates for further bargaining, and insisted that the Union
request dates by mail for further bargaining.
According to DePeal’s bargaining notes, the May 20 meeting
was scheduled for noon to 4 p.m. He wrote that the meeting
adjourned at 3:55 and “MEA walked out. Would not set up
further dates. Said to write a letter and ask for dates.” The
Respondent does not dispute this, noting only that the sched­
uled time had practically expired and the Respondent consid­
ered that the Union’s negotiators were “playing games” in ask­
ing repeated questions about every aspect of the Respondent’s
proposals. Therefore, in response to the Union’s request for
additional bargaining dates, Owens said to write a letter. This
occurred only at the last substantive bargaining session before
the Respondent declared impasse. During the previous 7
months, the parties typically set future bargaining dates (which
the Union often did not meet for a variety of reasons).
11. Interjected new language in its subcontracting proposal
after the Union had accepted Respondent’s subcontracting
language
The General Counsel argues that the Respondent changed its
position on subcontracting, first offering “Davis-Bacon” lan­
guage and then, after the Union agreed, said this meant some-
thing other than the common understanding Davis-Bacon.
Without proof, the General Counsel states: “Davis-Bacon as
commonly understood would encompass not only the wages
and pension amounts equivalent to those of Respondent’s Unit
employees, but would also include health and welfare contribu­
tions, and other benefits, in establishing the pay-rate of subcon­
tractor employees.”
In general, “(t)he Davis-Bacon Act (40 U.S.C. § 276a et
seq.) requires that the wages of workmen on a Government
construction project shall be ‘not less’ than the ‘minimum
wages’ specified in a schedule furnished by the Secretary of
Labor. The schedule ‘shall be based upon the wages that will
be determined by the Secretary of Labor to be prevailing’ for
corresponding work on similar projects in the area.” United
States v. Binghamton Construction Co., 347 U.S. 171, 172
(1954). Though individuals dealing in labor law might know
Davis-Bacon to be a prevailing wage law in the construction
industry, I doubt that the total impact of the Davis-Bacon Act is
685 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
common knowledge, particularly among those involved in
other industries, such as electrical power distribution. Further,
there is no evidence what the Union’s proposed “State Davis
Bacon” might encompass.
Beyond that, I credit the Respondent’s witnesses that they
suggested one possible resolution to the subcontracting issue
would be a “Davis-Bacon approach.” By this the Respondent
would agree that any subcontractor would have to pay the
wages and pension benefits enjoyed by unit employees. Such
would seem to meet the potential worry that the Respondent
would subcontract to employers who undercut the Union’s
wages. In fact Constantino agreed that at the May 20 session,
Owens said he used the term “Davis-Bacon” as a label for a
concept and that MEA was willing to agree to restrict its right
to subcontract by placing certain compensation limits on the
successful contractor.
This might not have been sufficient for the Union and could
have been the basis of negotiation but I do not believe that the
Respondent’s understanding of a Davis-Bacon approach was
“idiosyncratic” as the General Counsel and Union argue. I do
not believe that the Respondent reneged on subcontracting
language agreed to by the Union.
Finally, DePeal testified that he was unaware that the Union
in fact accepted the Respondent’s proposal on subcontracting. I
therefore conclude that the credible evidence does not support
this fact allegation.
12. Unilaterally implementing its contract proposal at a time
when the parties were not at impasse and the Respondent had
not bargained in good faith
Since the parties have now concluded a collective-bargaining
agreement, the principal issue in this matter is whether the Re­
spondent’s June 3 implementation of its April 29 proposal was
unlawful. The General Counsel argues it was because the par-
ties were not at impasse in negotiations and the Respondent had
been bargaining in bad faith. The Respondent argues that the
implementation was lawful since the parties were at impasse,
and even if not, by its actions the Union made reaching an
agreement unlikely.
An employer cannot change terms and conditions of em­
ployment of its represented employees unless it and the union
representing them have reached an overall impasse in negotia­
tions. Taft Broadcasting Corp., supra. However, where there is
a genuine impasse in negotiations or the union has engaged in
conduct which prevents agreement, then the employer can law-
fully implement terms and conditions of employment it has
offered in negotiations. E.g., M&M Building & Electrical
Contractors, Inc., 262 NLRB 1472 (1982); Jefferson Smurfit
Corp., 311 NLRB 41 (1993).
Though the question of impasse here is difficult, for the rea­
sons given above, I conclude that the Union’s bargaining tactics
made reaching an agreement a virtual impossibility. I conclude
that the Respondent had no reason to believe that the Union
would change tactics in the foreseeable future and therefore
was permitted to declare impasse and implement its final offer.
I conclude that the Respondent did not bargain in bad faith
and did not violate the Act by declaring impasse in negotiations
and implementing its April 29 proposal on June 3. Accord­
ingly, I conclude that the complaint should be dismissed in its
entirety.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 4
ORDER
The complaint is dismissed in its entirety.
4 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.