Washington Post

National Labor Relations Board - Administrative Judge Opinions

Nov 15, 2011

05-CA-036485 (N.L.R.B. Nov. 15, 2011)

JD-70-11
Washington, DC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WP COMPANY, LLC D/B/A THE WASHINGTON
POST
and Cases 5-CA-36485
5-CA-36574
WASHINGTON MAILERS’ UNION NO. 29
PRINTING, PUBLISHING, AND MEDIA
WORKERS SECTOR OF THE COMMUNICATION
WORKERS OF AMERICA, AFL-CIO
Gregory M. Beatty, Esq., of Baltimore, MD,
for the Acting General Counsel.
Mark B. Pullium, Sr., of Mechanicsville, MD,
for the Charging Party-Union.
Jacqueline M. Holmes, Esq., and Thomas R. Chiavetta, Jr. Esq.,
of Washington, DC for the Respondent-Employer.
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me
on September 19 and 20, 2011, in Washington, DC, pursuant to an order consolidating
cases issued by the Regional Director for Region 5 of the National Labor Relations
Board (the Board). The complaint, based upon original charges filed on various dates in
2011 by Washington Mailers’ Union No. 29, Printing, Publishing, and Media Workers
Sector of the Communication Workers of America, AFL-CIO (Charging Party or Union),
alleges that WP Company, LLC d/b/a The Washington Post (Respondent or Employer),
has engaged in certain violations of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act). The Respondent filed a timely answer to the complaint denying
that they had committed any violations of the Act.
Issues
The complaint alleges that the Respondent violated Section 8(a)(1) and (5) of the
Act when in or around November 2010,1 it implemented a new lunch policy regarding

1 All dates are in 2010 unless otherwise indicated.
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working through lunch without prior notice to the Union, and without affording the Union
an opportunity to bargain with the Respondent concerning the conduct and/or the effects
of this conduct. Additionally, in or around the same time, the Respondent bypassed the
Union and dealt directly with bargaining unit employees regarding working through lunch
under the new policy. Lastly, the Respondent in or around January 2011, unilaterally 5
implemented a new policy regarding work assignments without notice or bargaining with
the Union.
On the entire record,2 including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the Acting General Counsel and the10
Respondent, I make the following
Findings of Fact
I. Jurisdiction
Respondent, a Delaware limited liability company, with its principal office and 15
place of business in the District of Columbia, has been engaged in the publication of the
Washington Post, a daily newspaper. Respondent in conducting its business operations
derived gross revenues in excess of $200,000, subscribed to various interstate news
services, including the Associated Press, published various nationally syndicated
features, including The Color of Money, and advertised nationally and sold products 20
including insurance from Allstate Corporation. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the meaning of Section 2(5) of the
Act.
25
II. Alleged Unfair Labor Practices
A. Background
Since at least 1986, the Union has been the designated Section 9(a) exclusive
collective-bargaining representative of the Respondent’s mailroom employees, and since
then has been recognized as such by the Employer. This recognition has been 30
embodied in successive collective-bargaining agreements, the most recent of which was
effective from May 18, 1998 to May 18, 2003. The parties’ did not extend their
collective-bargaining agreement; rather, they commenced negotiations for a successor
collective-bargaining agreement in 2003, and ultimately reached a comprehensive
tentative agreement in December 2009 (GC Exh. 3).3 That agreement, however, was 35

2 While I issued a “Protective Order” to cover Respondent and Charging Party off-the
record bargaining notes and proposals, no exhibits subject to the Order were introduced
into the record (ALJ Exh. 1).
3 During the summer of 2006 and 2007, the parties had a number of “off the record”
bargaining sessions, however, no progress was made. The parties met again in August
2009, and it was at that time that the Respondent due to financial challenges especially
in decreasing print advertising revenue and reduced circulation in daily and Sunday
newspapers, was forced to close its College Park, Maryland production operations. The
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rejected on two separate occasions in January and April 2010 by the Union membership,
and presently no successor collective-bargaining agreement exists between the parties
(R Exh. 22-25). Accordingly, the Respondent informed the Union that the
comprehensive tentative agreement was their last, best, and final contract offer.
5
The mailroom, which is the department involved in this proceeding, sits
operationally between the press room, where the papers are printed, and the circulation
department, that delivers the papers. The Respondent employs approximately 400
employees in its mailrooms to collate, assemble, and prepare the newspaper for
distribution. The bargaining unit is comprised of journeyman mailers, mailroom helpers, 10
and utility mailers.4 The Respondent also employs approximately 200 individuals known
as “hand inserters”, who are hired as a casual labor force on a daily basis to insert flyers
manually into each bundled newspaper. The “hand inserters” are not part of the
collective-bargaining unit (GC Exh. 2, sec. 6 and 7), and are precluded from performing
bargaining unit work as described in section 6 of the parties’ expired collective-15
bargaining agreement.
In accordance with the expired collective-bargaining agreement, employees work
seven hours, exclusive of a 30 minute non-paid lunch period five days a week. During
the workday, employees are entitled to three paid 15 minute breaks, one paid 15 minute 20
coffee break for a total of one hour daily, and two paid 5 minute wash-up breaks.
Section 14(b) of the expired agreement provides that the present practice providing for a
coffee break, wash-up times, a break between doubleheader shifts, fifteen minutes for
monthly chapel meetings, and time to get lunch when it is necessary to work through
lunch shall be continued.525
B. The 8(a)(1) and (5) Allegations
1. Implementation of the New Lunch Policy
The Acting General Counsel alleges in paragraph 6 of the complaint that in or

collective-bargaining sessions that commenced in August 2009 and continued through
December 2009 ultimately produced the comprehensive tentative agreement.
4 The mailers operate the collating machines, the helpers operate rolling stock to
move products, and the utility mailers perform either mailer or helper work depending on
production needs.
5 Due to operational needs and when equipment malfunctioned, a practice was
established wherein employees were requested by their foreman to work through lunch
and were compensated for doing so. If employees then wanted time to get lunch they
were permitted to do so. No set time limit was established nor does one appear in the
parties past and present collective-bargaining agreements (GC Exh. 2, sec. 14(b) and R
Exh. 3, sec. 26). While a few of the foremen permitted 15-20 minutes to get lunch, this
occurred on an isolated basis. Indeed, the record confirms that other foremen permitted
less time and no firm practice was established that ripened into a term and condition of
employment concerning the length of time permitted to get lunch. The record also
establishes that some employees who worked through lunch did not seek or request
time to get lunch either because they previously took lunch during one of their paid
breaks or skipped lunch on days that they worked through lunch. The record further
shows that no employee was disciplined if they declined the request of a foreman to
work through lunch.
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around November 2010, Respondent implemented a new lunch policy regarding working
through lunch without affording prior notice to the Union and affording it the opportunity
to bargain with the Employer with respect to this conduct, and the effects of this conduct.
The Acting General Counsel further clarified this alleged violation by arguing that the
practice of permitting employees who worked through lunch to have a 20 minute period 5
to then get lunch ripened into a term and condition of employment that cannot be
changed without notice and bargaining with the Union.
Facts
On October 28, 2009, the Union filed a grievance alleging that one of 10
Respondent’s foremen on the run of press (ROP) night shift violated the parties’
collective-bargaining agreement (Sec. 14(b)) by not giving an employee who worked
through lunch an allotted amount of time to get something to eat and requested to meet
in an effort to resolve the matter (R Exh. 32).
15
On November 10, the Union filed a grievance alleging that a practice has been
established that if an employee works through lunch they are entitled to a 20 minute
period to get lunch and this practice is not being followed (GC Exh. 6).
On February 24, 2011, the Union filed a grievance alleging that mailroom 20
managers were soliciting employees to work through lunch and were not providing them
the opportunity to get lunch once they completed the work (GC Exh. 7).
Discussion
Section 10(b) of the Act precludes the issuance of a complaint “based upon any 25
unfair labor practice occurring more than six months prior to the filing of the charge with
the Board and the service of a copy thereof upon” the charged party. Although the
General Counsel may rely on evidence outside the 10(b) period as “background”, he is
barred from bringing any complaint in which the operative events establishing the
violation occurred more than six months before the unfair labor practice charge has been 30
filed and served. Allied Production Workers Union Local 12 (Northern Engraving Corp.),
337 NLRB No. 6 (2001). The statute of limitations under Section 10(b) begins to run,
however, only when a party has “clear and unequivocal notice” of a violation of the Act.
Id. Notice can be actual or constructive. Thus, the Board has found sufficient notice to
start the limitations period where a party, “in the exercise of reasonable diligence, should 35
have become aware” of facts indicating that the Act had been violated. Moeller Bros.
Body Shop, 306 NLRB 191, 192-193 (1992). The burden of showing that a charging
party was on notice of a violation of the Act is on the Respondent. A&L Underground,
302 NLRB 467, 468 (1991).
40
The charge in Case 5-CA-36485, that alleges the implementation of a new lunch
policy, was filed on March 7, 2011, and a copy was served on the Respondent on March
8, 2011. To satisfy its burden under Section 10(b), the Respondent has to show that the
Union knew or could have known by the exercise of reasonable diligence before
September 7 that it was aware of the Employer’s policy to prevent employees from 45
getting lunch after they worked through their regular lunch period. In the particular
circumstances of this case, I find that the Union had notice of any alleged change in the
policy of permitting employees to get lunch pursuant to its October 28, 2009 grievance
that raised this issue.
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Additionally, the Union admitted that at no time between October 2009 and the
present date, did they ever request the Respondent to negotiate over any new lunch
policy including permitting employees to enjoy a 20 minute period to get lunch assuming
that they worked through their regular lunch period. While the Acting General Counsel 5
argues that in certain circumstances a grievance can serve as a request to negotiate, I
reject the proposition in this case for the following reasons. First, while the Union
requested to meet for the purpose of resolving the matter in the October 28, 2009
grievance, it framed the request under the provisions of the parties’ collective-bargaining
agreement and did not reference a request to negotiate over terms and conditions of 10
employment. Second, in the November 10 grievance, the Union did not request to meet
or negotiate with the Respondent. Under Board law, “a valid request to bargain need not
be made in any particular form, or in haec verba, so long as the request clearly indicates
a desire to negotiate and bargain on behalf of the employees in the appropriate unit
concerning wages, hours, and other terms and conditions of employment.” Marysville 15
Travelodge, 233 NLRB 527, 532 (1977) (quoting Al Landers Dump Truck, Inc., 192
NLRB 207, 208, (1971), enfd. sub nom. NLRB v. Confer, 637 F. 2d 1309 (9th Cir. 1981).
Here, no such clear request to negotiate and bargain on behalf of employees has been
made in either the 2009 or 2010 grievance particularly noting that the Union was
previously aware of alleged violations of the lunch policy when employees worked 20
through lunch.
I further find that the Acting General Counsel did not conclusively establish that
the Respondent made any changes to the existing policy that permitted employees after
working through lunch to get something to eat for the following reasons. First, the record 25
shows that there are approximately 53 salaried foremen employed at the Respondent’s
Springfield, VA, facility where the mailroom employees work. While the Acting General
Counsel alleges that the new lunch policy was unilaterally implemented in November
2010, the evidence presented to support this assertion is not persuasive. For example,
representatives of the Union that testified during the hearing such as James Forsythe 30
and Barbara Grossman could only point to a small number of the 53 salaried foremen
that were not adhering to the policy of permitting employees to get something to eat after
they worked through lunch. Indeed, Grossman testified that after November 2010 the
practice of permitting employees to get something to eat after they worked through lunch
continued under a majority of the foremen some of whom permitted 20 minutes to get 35
lunch. She further testified that while most foremen permitted employees to get lunch,
the period was less then 20 minutes, but only a small number of foremen discontinued
the practice. Grossman testified that on all occasions that she was requested and
agreed to work through lunch after November 2010, her foreman always permitted her
time to get lunch. Respondent’s Foreman Wanda Jackson testified, due to operational 40
needs, that she has regularly requested employees to work through lunch and while
none of her assigned employees has requested to get something to eat after working
through their lunch, she would permit an employee to get something to eat if they
requested it.
45
Second, I note the provision in the expired collective-bargaining agreement that
provides in Section 14(b), that the practice of granting time to get lunch when it is
necessary to work through lunch shall be continued. Significantly, no specific amount of
time to get something to eat is set forth in that section of the agreement. Thus, I find that
no new lunch policy has been implemented at the Respondent’s facility. At most, the 50
Acting General Counsel established that a small number of the 53 salaried foremen in
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6
the mailroom were not adhering to the provisions of Section 14(b), but the majority of
foremen were doing so. Such evidence, standing alone, does not amount to a material
change in terms and conditions of employment that requires a bargaining obligation
under the Act.
5
Under these circumstances, and based on the discussion above, I find that the
Respondent did not violate Section 8(a)(1) and (5) of the Act as alleged in paragraph 6
of the complaint.
2. Bypass of the Union and Dealing Directly with Employees10
The Acting General Counsel alleges in paragraph 7 of the complaint that the
Respondent bypassed the Union and dealt directly with its employees in the Unit
regarding working through lunch under the new policy.
Facts 15
The Acting General Counsel’s evidence in support of this allegation is that
Grossman’s superintendent Allen Martin informed her that he had worked out deals with
employees who agreed to work through their lunch. Union President Pullium testified
that he worked through lunch on two occasions after November 2010. He was permitted
to get something to eat after working through lunch on the first occasion and the second 20
time he was paid 15 minutes of overtime even though he had previously eaten his lunch.
Discussion
Section 8(a)(5) of the Act provides that an employer commits an unfair labor
practice by refusing to bargain collectively with the exclusive representative of its 25
employees. The duty to bargain is defined in Section 8(d). The obligation to bargain in
good faith requires, “at a minimum recognition that the statutory representative is the
one with whom the employer must deal in conducting negotiations, and that it can no
longer bargain directly or indirectly with employees.” General Electric Co., 150 NLRB
192, 194 (1964), enfd. 418 F.2d 736 (2nd Cir. 1069), cert. denied 397 U.S. 965 (1970). 30
Indeed, it is not enough that the employer communicates with its employees about
wages, hours or working conditions; such communication must be made with the intent
to, or for the purpose of, circumventing bargaining with the union. Emhart Industries,
Inc., 297 NLRB 215, 225 (1989). The Board in The Permanente Medical Group, Inc.,
332 NLRB 1143, 1144 (2000), citing Southern California Gas Co., 316 NLRB 979 (1965) 35
held that in order to prove unlawful direct dealing in violation of Section 8(a)(5) of the Act
the following criteria must be established:
(1) the employer was communicating directly with union-represented
employees; (2) the discussion was for the purpose of establishing or 40
changing wages, hours, and terms and conditions of employment or
undercutting the union’s role in bargaining; and (3) such communication
was made without notice to, or to the exclusion of the union.
In Emhart, the Board found that an employer did not engage in direct dealing 45
even though it conducted several mandatory employee meetings, without notice to the
union, on procedures for productivity and quality control, topics that were also the
subjects of ongoing negotiations with the union. Since the employer was not promising
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7
any benefits in these meetings to the exclusion of the union, the Board held that its intent
was not to undermine the union and thus there was no unlawful direct dealing.
Under these circumstances, and particularly noting that no material changes in
conditions of employment were established or implemented with respect to the lunch 5
policy, it cannot be found that the Respondent bypassed the Union and dealt directly
with employees regarding working through lunch as alleged in paragraph 6 of the
complaint. E.I. DuPont de Nemours & Company, 301 NLRB 155 (1991) (Board held that
employees understood that their participation in the video was voluntary and that the
alleged direct dealing did not erode the union’s representational status). 10
3. Unilateral Implementation of Work Assignments
The Acting General Counsel alleges in paragraph 8 of the complaint that in or
around January 2011, the Respondent implemented a new policy regarding work
assignments without prior notice to the Union and affording it the opportunity to bargain 15
with the Employer with respect to this conduct, and the effects of this conduct.
Facts
On August 3, 1999, the Union filed a grievance asserting that “hand inserters” by
putting bundles on the conveyor belts at the Respondent’s College Park, MD facility 20
violated Section 6 of the parties’ collective-bargaining agreement as these employees
were performing bargaining unit work. On September 21, 1999, the Union referred the
underlying grievance to arbitration. The Respondent defended its conduct by arguing
that the disputed work had been performed by the “hand inserters” for some time and it
did not intend to change the practice. 625
By letter dated September 27, 1999, the Respondent replied to the Union’s
referral to arbitration of the helpers’ jurisdiction grievance and pointed out that the
mailroom has been making similar assignments to the “hand inserters” for quite some
time including even before the parties’ collective-bargaining agreement was signed in 30
May 1998. The Union ultimately decided not to refer the matter to arbitration.
On November 24, 2009, the Union filed a grievance alleging that the “hand
inserters” were observed stacking complete bundles onto skids which is bargaining unit
work that should be performed by helpers (R Exh. 17).35
On September 1, the Union filed a grievance alleging that “hand inserters” were
stacking behind the tie machine lines in violation of Section 6 of the parties’ expired
collective-bargaining agreement (R Exh. 1). Forsythe testified that this is the same issue
(stacking behind the tying machines) that the Charging Party was concerned about when 40
it filed the subject unfair labor practice charge and is alleged in paragraph 8 of the
complaint.
On November 3, the Union filed a grievance alleging that the “hand inserters”
were placing complete bundles on the lines in violation of the parties’ expired collective-45

6 The 1991-1997 collective-bargaining agreement between the parties covering
helpers indicates that “hand inserters” may be assigned to put complete bundles on two
designated lines at each of the Respondent’s mailrooms (R Exh. 3-page 2, sec. 3(b)).
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bargaining agreement (GC Exh. 4).
On March 1, 2011, the Union filed a grievance asserting that the “hand inserters”
are putting bundles of papers on the lines and taking them off the press lines in violation
of Section 6 and 7 of the parties’ expired collective-bargaining agreement (GC Exh. 5). 5
None of the grievances filed by the Union in 2010 or 2011 have been referred to
arbitration.
Discussion
First and foremost, it is noted that the Acting General Counsel did not introduce 10
any evidence in its case in chief that the Respondent, as alleged in paragraph 8 of the
complaint, implemented a new policy regarding work assignments in and around
January 2011. For this reason alone, it cannot be established that the Respondent
violated Section 8(a)(1) and (5) of the Act concerning this allegation.7 I further find,
based on the reasons discussed below, that the Respondent did not violate Section 15
8(a)(1) and (5) of the Act regarding the implementation of a new policy regarding work
assignments as alleged in paragraph 8 of the complaint.
The charge in Case 5-CA-36574, that alleges the implementation of a new policy
regarding work assignments, concerns the issue of “hand inserters” performing 20
bargaining unit work. That charge was filed on April 20, 2011, and a copy was served
on the Respondent on April 26, 2011. To satisfy its burden under Section 10(b), the
Respondent has to show that the Union knew or could have known by the exercise of
reasonable diligence before October 20 that it was aware of the Employer’s policy to
assign bargaining unit work involving the placement and removal of complete bundles on 25
the conveyor belts or press lines, to “hand inserters.” In the particular circumstances of
this case, I find that the Union had notice of any alleged change in the policy of
permitting “hand inserters” to perform the work of placing or removing complete bundles
from the conveyor belts or press lines pursuant to the grievances it filed on August 3 and
November 24, 1999, and September 1, that raised the same or similar issues. Under 30
these circumstances, the April 20, 2011 charge is untimely and the underlying allegation
must be dismissed. El Paso Elec. Co. 355 NLRB No. 95 (2010) (filing a grievance over
the same practice more than six months before filing its unfair labor practice charge is
grounds for finding the charge untimely).
35
Additionally, the Union admitted that at no time between August 1999 and the
present date, did they ever request the Respondent to negotiate over the issue of “hand
inserters” performing bargaining unit work. While the Acting General Counsel argues
that in certain circumstances a grievance can serve as a request to negotiate, I reject the
proposition in this case for the following reasons. First, while the Union requested to 40
meet for the purpose of resolving the matter in the August 3 and November 24, 1999
grievances, it did not do so in the grievance filed on Sept 1. Moreover, any request to
meet with the Respondent was framed under the provisions of the parties’ collective-
bargaining agreement and did not reference a request to negotiate over terms and
conditions of employment. McGraw-Hill Broadcasting Co., Inc. 355 NLRB No. 213 45
(2010) (just filing a grievance does not satisfy the union’s affirmative duty to request

7 The Acting General Counsel conceded that if he did not introduce evidence on the
record regarding a January 11, 2011 unilateral change in work assignments, those
allegations could be dismissed.
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9
bargaining). Under Board law, “a valid request to bargain need not be made in any
particular form, or in haec verba, so long as the request clearly indicates a desire to
negotiate and bargain on behalf of the employees in the appropriate unit concerning
wages, hours, and other terms and conditions of employment.” Marysville Travelodge,
233 NLRB 527, 532 (1977) (quoting Al Landers Dump Truck, Inc., 192 NLRB 207, 208, 5
(1971), enfd. sub nom. NLRB v. Confer, 637 F. 2d 1309 (9th Cir. 1981). Here, no such
clear request to negotiate and bargain on behalf of employees has been made in either
the 2009 or 2010 grievances particularly noting that the Union was previously aware of
“hand inserters” performing bargaining unit work.
10
The Respondent further defends its conduct and asserts that no policy changes
regarding work assignments were implemented requiring a bargaining obligation, that
the parties bargained to a good faith impasse on the terms of a successor collective-
bargaining agreement with some or all of the alleged changes being encompassed in
there pre-impasse bargaining proposals, and that the Union, based on past practice, 15
clearly and unmistakably waived its right to bargain over any changes in work
assignments involving “hand inserters”.
Section 8(a)(5) of the Act makes it unlawful for an employer to make unilateral
changes to benefits that are mandatory subjects of bargaining without negotiations with 20
the exclusive collective-bargaining representative of its employees. NLRB v. Katz, 369
U.S. 736 (1962). Therefore, an employer may not make unilateral changes in conditions
of employment unless the union expresses a clear and unmistakable waiver of its right to
bargain. American Broadcasting Co. 290 NLRB 86, 88 (1988); California Pacific Medical
Center, 337 NLRB 910 (2002). 25
A waiver occurs when a union “knowingly and voluntarily relinquishes its right to
bargain about a matter. . . . When a union waives its right to bargain about a particular
matter, it surrenders the opportunity to create a set of contractual rules that bind the
employer, and instead cedes full discretion to the employer on that matter. For that 30
reason, the courts require ‘clear and unmistakable’ evidence of waiver and have tended
to construe waivers narrowly.” Dep’t of the Navy, Marine Corps Logistics Base v. FLRA,
962 F. 2d 48, 57 (D.C. Cir. 1992). Waiver of a statutory right may be evidenced by
bargaining history, but the Board requires the matter at issue to have been “fully
discussed” and “consciously explored” during negotiations. Davies Medical Center, 303 35
NLRB 195, 204 (1991). Failure to mention a mandatory subject of bargaining does not
constitute a waiver of the right to bargain; rather, the Board requires “a conscious
relinquishment by the union, clearly intended and expressed.” Elizabethtown Water Co.,
234 NLRB 318, 320 (1978).
40
The Board has relied upon several factors in assessing whether a clear and
unmistakable waiver exists: (1) language in the collective bargaining agreement, (2) the
parties’ past dealings, (3) relevant bargaining history, and (4) other bilateral changes that
may shed light on the parties’ intent. See Johnson-Bateman, 295 NLRB 180, 184-87
(1989); American Diamond Tool, 306 NLRB 570 (1992). The party asserting the waiver 45
bears the burden of establishing the existence of the waiver. Pertec Computer, 284
NLRB 810 (1984).
The record conclusively establishes that during negotiations prior to the
expiration of the parties’ collective-bargaining agreement on May 18, 2003 and through50
December 16, 1999, when the parties reached a comprehensive tentative agreement
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10
(GC Exh. 3),8 there were numerous instances when the issue of “hand inserters”
performing bargaining unit work was “fully discussed” and “consciously explored”. For
example, Respondent’s collective-bargaining notes fully support this assertion (R Exh. 8
at page 7, R Exh. 9 at pages 7 and 19, R Exh. 10 at pages 2, 19, and 21, R Exh. 11 at
pages 3, 4, 7, and 13, R Exh. 12 at pages 2, 3, and R Exh. 13 at page TWP007470). 5
Moreover, the parties agreed to include in Section 7 of the comprehensive tentative
agreement the results of their negotiations permitting “hand inserters” to continue to be
assigned the placing of complete bundles on, and unstacking of complete bundles from,
the conveyor lines (GC Exh. 3).
10
Therefore, I find that the Union waived any right to engage in negotiations over
the allegations alleged in paragraph 8 of the complaint.
In determining whether there was an impasse in negotiations, one begins with
the proposition that the burden of establishing an impasse rests on the party asserting it, 15
in this situation, the Respondent. North Star Steel Co., 305 NLRB 45 (1991). A lead
case on this issue, Taft Broadcasting Co., 163 NLRB 475, 478 (1967), stated:
Whether a bargaining impasse exists is a matter of judgment. The
bargaining history, the good faith of the parties in negotiations, the length of the 20
negotiations, the importance of the issues as to which there is disagreement, the
contemporaneous understanding of the parties as to the state of negotiations are all
relevant factors to be considered In deciding whether an impasse in bargaining existed.
As regards the last of these factors, the “contemporaneous understanding of the 25
parties as to the state of the negotiations,” if either negotiating party remains wiling to
move further toward an agreement, this would support a finding of no impasse. In Hi-
Way Billboards, Inc., 206 NLRB 22, 23 (1973), the Board stated: “A genuine impasse in
negotiations is synonymous with a deadlock; the parties have discussed a subject or
subjects in good faith, and despite their best efforts to achieve agreement with respect to 30
such, neither party is willing to move from its respective position.” In AMF Bowling Co.,
314 NLRB 969, 978 (1994), citing Pillowtex Corp., 241 NLRB 40 (1979), and PRC
Recording Co., 280 NLRB 615 (1986), the Board stated that it has defined an impasse
as the point in time during negotiations when the parties are warranted in assuming that
further bargaining would be futile and when both parties believe “that they are at the end 35
of their rope.”
Applying these cases to the lengthy negotiations between the Respondent and
the Union in an effort to reach a successor collective-bargaining agreement, I find that
the Respondent has sustained its burden of establishing that an impasse existed in April 40
2010 when the Union membership rejected for the second time the last, best, and final
contract offer proffered by the Respondent.
As background to this finding the record establishes that the parties engaged in
protracted and difficult negotiations for a successor collective-bargaining agreement 45
commencing in March 2003 (prior to the expiration of their collective-bargaining
agreement on May 18, 2003) up to and including December 16, 2009 when the parties

8 While the parties continued to meet on a sporadic basis between 2003 and 2009,
no substantial progress was made until the comprehensive tentative agreement was
reached in December 2009.
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reached a comprehensive tentative agreement subject to ratification by the Union
membership. There is no dispute that the Union membership rejected the
comprehensive tentative agreement on two occasions, and the Respondent made it
crystal clear in a letter dated April 20 that the comprehensive tentative agreement is the
Employer’s last, best, and final contract offer, and its terms will not improve with time (R 5
Exh. 24). I also note that on April 1, the Union submitted revised proposals to the
Respondent, however, none of those proposals made any changes to the “hand
inserters” issue concerning performing bargaining unit work (R Exh. 18 and 21).
Likewise, those proposals did not change the provisions of Section 7 of the
comprehensive tentative agreement that privileged the “hand inserters” to be assigned 10
the placing of complete bundles on, and unstacking of complete bundles from the
conveyor lines (R Exh. 7 and 8). The last formal negotiating session between the parties
occurred on April 1, as evidenced from the Respondent’s collective-bargaining notes of
that date (R Exh. 20). Those notes confirm that the Respondent did not agree to any of
the Union’s proposals. 15
The record establishes, and all parties agree, that no additional proposals have
been exchanged by the parties since April 1, and no additional collective-bargaining
sessions have been scheduled or held.
20
Under these circumstances, I conclude that the parties were at the end of their
rope and hopelessly at impasse in their negotiations to reach a successor collective-
bargaining agreement. GATX Logistics, Inc., 325 NLRB 413 (1998). Therefore, I find
that Section 7 in the comprehensive tentative agreement privileges the Respondent to
continue assigning the “hand inserters” the placing of complete bundles on, and 25
unstacking of complete bundles from the conveyor lines without engaging in negotiations
with the Union (GC Exh. 3).
The Respondent further argues that a unilateral change made pursuant to a
longstanding practice is essentially a continuation of the status quo and not a violation of 30
Section 8(a)(5) of the Act. The Courier-Journal, 342 NLRB 1093, 1095 (2004).
In this regard, the Respondent conclusively established that the practice of
assigning the “hand inserters” the placing of complete bundles on and the unstacking of
complete bundles form the conveyor lines had existed for many years prior to the 35
allegation in paragraph 8 of the complaint that a new policy was implemented regarding
work assignments. Indeed, the record confirms that the Union raised this issue in
grievances filed in 1999 about “hand inserters” performing bargaining unit work and that
the work being challenged by the Union has always been performed by the “hand
inserters”. Haddon Craftsmen, Inc., 299 NLRB 462 (1991) (dismissing union’s claim that 40
the employer violated Section 8(a)(5) by transferring certain insert work to non-unit
employees because the record established that non-unit employees had “customarily
performed” the same type of work in the past). Moreover, the parties agreed in
negotiations leading to the comprehensive tentative agreement that “hand inserters”
were authorized to perform the disputed work (GC Exh. 3, section 7). 45
For all of the above reasons, I find that the Respondent did not violate Section
8(a)(1) and (5) of the Act as alleged in paragraph 8 of the complaint.
JD-70-11

12
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.5
3. The Respondent did not unilaterally implement a new lunch policy regarding
working through lunch, did not bypass the Union and deal directly with bargaining
unit employees regarding the new lunch policy nor did it implement a new policy
regarding work assignments without notice to or bargaining with the Union. 10
Therefore, the Respondent did not fail and refuse to bargain collectively and in
good faith with the Section 9(a) representative of its employees within the
meaning of Section 8(d) of the Act, in violation of Section 8(a)(1) and (5) of the
Act.
15
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended9
ORDER
The complaint is dismissed. 20
Dated, Washington, D.C. November 15, 2011
_____________________25
Bruce D. Rosenstein
Administrative Law Judge

9 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.