Chicago Local No. 458-3M, Graphic Communications International Union v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 1999 Decided March 24, 2000

No. 99-1118

Chicago Local No. 458-3M,

Graphic Communications International Union, AFL-CIO,

Petitioner

v.

National Labor Relations Board,

Respondent

White Cap, Inc.,

Intervenor

On Petition for Review of an Order of the

National Labor Relations Board

Thomas D. Allison, Jr., argued the cause for petitioner.

With him on the briefs was N. Elizabeth Reynolds.

Steven B. Goldstein, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Linda Sher, Associate General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, and Fred L.

Cornnell, Supervisory Attorney.

Harry J. Secaras argued the cause for intervenor. With

him on the brief was Howard L. Bernstein.

Before: Henderson, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: The Chicago Local No. 458-3M,

Graphic Communications International Union, AFL-CIO

("union"), appeals the National Labor Relations Board's

("Board") decision that White Cap, Inc. ("company"), did not

violate s 8(a)(1), (3), and (5) of the National Labor Relations

Act ("Act"). See 29 U.S.C. s 158(a)(1), (3), (5) (1994). As a

threshold contention, the union maintains that there is no

discernible rationale underlying the Board decision because

the three separate opinions of the Board members are in

conflict. Indeed, there are some expressions of uncertainty

in the opinions regarding Board precedent governing the

practice of "regressive bargaining." We conclude, however,

that there is more agreement than is first apparent and that

there is a majority-supported rationale for the decision that

we can review. As to the union's other challenges to the

Board's decision, we hold that the Board reasonably conclud-

ed that the company bargained in good faith when it, with

good cause, replaced a proposal with a less favorable propos-

al; that the company's unilateral implementation of its final

offer was justified because a bargaining impasse had been

reached; and that the company's lockout of its employees was

lawful because it was in support of a legitimate bargaining

position.1

Accordingly, we deny the petition.

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1 The union's further contention that the company violated the

Act by refusing to bargain over certain mandatory subjects of

bargaining is not properly before the court, and, therefore, we do

not address it. The union never raised this issue in its charge, it

was not contained in the General Counsel's complaint, and the

parties did not litigate the issue before the ALJ, who never

I.

White Cap, Inc., manufactures metal and plastic caps for

beverage and food containers in several cities in the United

States, including Hazelton, Pennsylvania, Hayward, Califor-

nia, Chicago, Illinois, and Champaign, Illinois. Since about

1970, the union has been the exclusive collective-bargaining

representative of thirty-one lithographic production employ-

ees in the company's manufacturing facility in Chicago.

In December 1993, the company informed the union that it

wanted to implement a new work schedule in the Chicago

facility by January 31, 1994, and presented a written proposal

setting out the terms. By then, the company had already

implemented the new schedule in its Hazelton, Hayward, and

Champaign facilities, and it explained to the union that the

new work schedule was necessary in order to increase pro-

ductivity and efficiency. Under the proposed schedule, the

employees would work twelve hours per day, three consecu-

tive days per week, whereas under the collective-bargaining

agreement then in effect,2 the employees worked five days

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addressed it. The issue was first raised by Member Liebman in

her separate opinion. See White Cap, Inc., 325 N.L.R.B. No. 220,

7-8 (July 24, 1998). The court has previously held that "[t]he

Board may not make findings or order remedies on violations not

charged in the ... complaint or litigated in the subsequent hear-

ing." NLRB v. Blake Constr. Co., 663 F.2d 272, 279 (D.C. Cir.

1981); see also Conair Corp. v. NLRB, 721 F.2d 1355, 1371-72

(D.C. Cir. 1983). As the court explained in Trident Seafoods, Inc.

v. NLRB, 101 F.3d 111 (D.C. Cir. 1996), each party "must have a

full and fair opportunity to litigate the issues to be decided by the

agency," and "[w]hen one party utterly fails to raise a significant

issue before the ALJ, the record developed with regard to that

issue will usually be inadequate to support a substantive finding in

its favor." Id. at 116. The same rationale dictates that we reject

the union's argument on the issue without considering its merits.

2 Because the existing agreement did not expire until April 30,

1994, the company first sought the union's consent to modify the

agreement in order to implement the new schedule by January 31,

1994. Soon after the negotiations began, however, the company and

the union agreed to commence negotiations for a new contract, in

per week, on day or night shifts lasting seven-and-a-half

hours.3 This proposal led to a series of negotiating meetings

as the parties attempted to reach a new agreement. A major

stumbling block to any agreement, however, was the union's

insistence on a wage increase and the company's refusal to

offer one. Although the company agreed to some of the other

demands by the union, the parties never came to an agree-

ment that they could both approve, and the union member-

ship voted down the company's proposal by a wide margin in

February 1994.4 For the next few months, the parties contin-

ued to meet and negotiate, focusing on whether a wage

increase in some form would be acceptable to both parties.5

For purposes of this appeal, we focus on the company's

proposals of June 13th and September 14th and 22nd.

On June 13, 1994, the company presented a proposal pro-

viding for the new work schedule to take effect on July 11,

1994. The proposal included a two percent wage increase

effective August 1, 1994, no increase the following year, and a

one percent wage increase in the third year. The proposal

also provided for a signing bonus in the event the new

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addition to negotiations for the company's proposal of an immediate

modification of the existing contract.

3 The new proposal also contained several other changes from

the existing contract, such as: forty hours pay for thirty-six hours

worked; overtime pay at time-and-a-half for hours worked in excess

of thirty-six hours per week or twelve hours a day; increased pay

for holiday and vacation time; and increased paid break periods.

4 By the time of the union membership's first vote in February,

the company had improved its December proposal by adding a

night-shift differential, an increase in the company's contribution to

the monthly fringe benefit fund by fifty dollars per employee, and

double pay for overtime (limited to time-and-a-half for hours in

excess of thirty-six per week). In addition, the company had

offered a one-time lump-sum bonus of one week's pay, to be given

to the employees when the new schedule went into effect.

5 Because the existing contract was set to expire on April 30,

the parties agreed to extend the original contract on a day-to-day

basis, with a provision allowing for a ten-day notice to terminate.

schedule was implemented on July 11th, but no signing bonus

if the schedule was phased in to be implemented by Septem-

ber 12, 1994. These provisions were in addition to the

company's proposal that the union membership had rejected

in February. See supra note 4. Although the union ex-

pressed the view that the June 13th proposal was "very

excellent," the membership rejected it.6 By letter of June

23rd, the company urged the union to resubmit the June 13th

proposal to the membership with "the strongest possible"

message that the company "absolutely will not make any

further improvements to its proposal" and "will not back off

its plans to convert to 12-hour scheduling." The company

also alerted the union that if the June 13th offer was not

ratified by the membership by July 1, 1994, the company

would withdraw the proposed wage increases, increased over-

time, increased vacation pay and holiday pay, as well as

increased employer contributions to employee health and

welfare benefits. The union sought an extension of the

deadline until July 10th, but the company agreed to extend it

only until July 5th, citing the costs of the delay in implement-

ing the new schedule. The July 5th deadline passed without

a new vote by the membership.

On July 11th, the company implemented the new work

schedule for all non-lithograph production employees at its

Chicago facility. The company begged off the union's request

to resume negotiations on the basis of its busy schedule.

Consequently, the parties did not meet again until the fall.

On September 14th, the company, noting its prior warning

of June 23rd, proposed six changes to its June 13th proposal:

withdrawal of two wage increases; calculation of overtime

pay (to begin after forty hours instead of thirty-six); with-

drawal of increased holiday and increased vacation pay; and a

phased increase in the company's health and welfare contribu-

__________

6 There was testimony that because the vote occurred on Fa-

ther's Day many employees stayed home while those who opposed

the twelve-hour day attended the meeting to vote against it. The

membership had, by a show of hands, approved the twelve-hour day

in May.

tions, rather than an immediate fifty dollars per month

increase. In addition, the company made four changes in the

parties' agreement that had not been mentioned in the June

23rd letter: termination of the cost of living adjustment

provision; time-and-a-half, not double, pay for hours in excess

of twelve per day; reduction in the night shift differential;

and deletion of the voluntary overtime provision. The union

offered a counterproposal on September 22nd that called for

maintaining the five-day work week in effect under the prior

contract. The company rejected the counterproposal and

then rejected the union's revised counterproposal to postpone

implementation of the new work schedule for one year. The

company also stated that same day, September 22nd, that all

but four of the items in its September 14th proposal were

final; it remained open to negotiations only on wages, vaca-

tion and holiday pay, and night shift differential.

A few days later, the company notified the union of its

intention to terminate the contract extension agreement, see

supra note 5, effective October 7, 1994, and the parties met

for further negotiations on October 4th. At that time the

company asked if the union had a new counterproposal; the

union had none, inquiring only whether the company would be

willing to meet with a federal mediator. The company reject-

ed that idea and stated that its September 22nd offer was its

final offer in light of the union's failure to offer a new

counterproposal. The union then asked if they were at an

impasse. The company's lawyer responded, "As third party

observer, we are." The following day, the company notified

the union by letter that the parties were "obviously and

hopelessly deadlocked," and that the company would imple-

ment the new work schedule and its September 22nd proposal

on October 10th, noting that "business circumstances compel"

the new work schedule. Shortly after 9 a.m. on October 10th,

the union advised the company that the membership had

voted to accept the company's June 13th proposal. The

company advised the union that that proposal had expired

and been replaced by the September 22nd proposal, which the

company was implementing that day.

The company met at the union's request on November 9th

and took the same position in rejecting the union's renewed

request to return to the June 13th proposal. Instead, the

company proposed a wage increase over three years and

restored its proposals for increases in vacation and holiday

pay, benefit contributions, and night shift differential. The

company also offered to modify the contract language regard-

ing mandatory overtime. The union said it could not accept

the new proposal without a cost of living adjustment. When

the November 9th proposal was nevertheless submitted to the

members for a vote, it was overwhelmingly rejected.

On November 21st, the company locked out the bargaining

unit employees pending ratification of the November 9th

proposal. The lockout lasted for nearly eleven months, until

October 16, 1995, when the parties entered into a new collec-

tive bargaining agreement. During the lockout, the company

hired at least twelve temporary replacements.

The union filed an unfair labor practice charge. An Admin-

istrative Law Judge ("ALJ") found that the company engaged

in an unfair labor practice by engaging in regressive bargain-

ing without good cause when it threatened to withdraw

several provisions from the June 13th proposal and when it

actually withdrew those provisions and more in the Septem-

ber 14th proposal. See White Cap, Inc., 325 N.L.R.B. No.

220, 20 (July 24, 1998). The ALJ based this conclusion on the

Board's decision in Driftwood Convalescent Hospital, 312

N.L.R.B. 247, 252 (1993), which observed that:

the law is settled that "[t]he withdrawal of a proposal by

an employer without good cause is evidence of a lack of

good faith bargaining by the employer in violation of

Section 8(a)(5) of the Act where the proposal has been

tentatively agreed upon...."

Id. (quoting Mead Corp. v. NLRB, 697 F.2d 1013 (11th Cir.

1983)) (alteration in original). The Driftwood opinion, which

was an adoption by the Board of the ALJ's findings and

recommended order,7 explained that regressive bargaining

__________

7 Although the Board in Driftwood stated merely that it was

"adopt[ing] the recommended Order" by the ALJ, Driftwood, 312

"has the inevitable and foreseeable effect of obstructing and

impeding the collective-bargaining process," id., and that the

relevant inquiry is " 'not whether the Respondent acted in

good faith, but whether the Respondent had good cause in

unilaterally withdrawing from tentative agreements and con-

cessions made.' " Id. (quoting Arrow Sash & Door Co., 281

N.L.R.B. 1108, 1108 n.2 (1980)). In the instant case, the ALJ

noted that the company's regressive bargaining was not

justified by good cause because the company failed to show

that economic pressure led to the company's actions. See

White Cap, at 17-20. The ALJ also found that the company's

unilateral implementation of the final offer in the absence of a

legally cognizable impasse, as well as its locking out of the

unit employees, constituted unfair labor practices. See id.

The Board reversed, and by a two to one vote, dismissed

the complaint. Chairman Gould and Member Hurtgen, in

separate opinions, agreed that the company satisfied its duty

to bargain in good faith. Member Liebman dissented in part

on the basis that the company violated the Act by refusing to

bargain on mandatory subjects of bargaining. We examine

each opinion as background for our consideration of the

union's threshold challenge to the Board's decision.

Member Hurtgen began his analysis by observing some-

what enigmatically that he found it "unnecessary to pass on

the continued viability of Driftwood because ... the [ALJ]

erred in his application of these principles to the facts of [the

instant] case." Id. at 2. He then proceeded to apply the

good cause standard and found that both the company's

threats to withdraw the six provisions of the June 13th

proposal and its withdrawal of those provisions and others in

the September 14th proposal were supported by good cause

and thus did not constitute unlawful regressive bargaining.

__________

N.L.R.B. at 247, its summary affirmance of the ALJ's "rulings,

findings, and conclusions," id., constitutes an adoption of the ALJ's

findings as well. See Cities of Bethany v. FERC, 727 F.2d 1131,

1145 (D.C. Cir. 1984); see also City of Frankfort v. FERC, 678 F.2d

699, 708 (7th Cir. 1982).

See id. at 3. Specifically, he pointed to the fact that "the six

tentatively agreed to items [in the June 13th proposal] had

already been rejected at the time the [company] threatened

to withdraw them" in the June 23rd letter. Id. at 2. He

considered this factor, not discussed by the ALJ, to be "an

important one that distinguishes this case from Driftwood ...

where the employer withdrew from tentative agreements with

the union before any ratification vote had been held." Id.

He noted also that, unlike in the instant case, in Driftwood

the employer had offered the union "no explanation whatsoev-

er for withdrawing from the tentative agreements." Id. at 2

n.4. In addition, he emphasized that "the record evidence

establishes an intent, even a desire, by [the company] to

reach agreement," id. at 4, and that there was "no evidence

that the [company] sought to avoid reaching an agreement."

Id. at 5. Then, turning to the other issues, he found that the

company's unilateral implementation of its final offer and its

lockout of the employees were lawful because they occurred

following a bargaining impasse and because the lockout was

"for the sole purpose of bringing economic pressure to bear in

support of a legitimate bargaining position." Id. at 5 (citing

American Ship Bldg. v. NLRB, 380 U.S. 300, 310-11, 318

(1965)).

Chairman Gould concurred in Hurtgen's conclusion that the

ALJ erred in finding that the company had violated the Act

by its conduct in the bargaining negotiations. See id. He

disagreed, however, with Member Hurtgen's discussion of the

regressive bargaining doctrine. Stressing that "the default

practice of collective-bargaining negotiations ... allow[s]

withdrawal at will from tentative agreements prior to final

agreement," id. at 6, Chairman Gould stated that "[t]he

applicable standard here must be only whether the [compa-

ny's] tactics provided full scope for good-faith bargaining."

Id. at 7. Chairman Gould concluded, "[s]ince the evidence [in

the instant case] clearly indicates that the [company] was

seriously negotiating in order to obtain an agreement, we

must find that it was bargaining in good faith." Id. To make

his point about the lawfulness of regressive bargaining even

clearer, Chairman Gould noted that:

Member Hurtgen does not pass on this rule, but distin-

guishes [the company's] conduct on the basis that it

provided a "good cause" explanation to the Union for its

change of position. I would find this "rule" to be utterly

inconsistent with both the Supreme Court's "freedom of

contract" trilogy as well as long-held principles of collec-

tive bargaining. Inasmuch as the cases cited by the

[ALJ] do support this standard, they should be over-

ruled.

Id. at 6. Thus, in Chairman Gould's view, regressive bargain-

ing is lawful, with or without good cause, as long as "it is not

undertaken [with] ... an intent to evade coming to an

agreement." Id.

Member Liebman concurred in part and dissented in part.

She expressly joined Hurtgen's conclusion that the company's

withdrawal of provisions of the June 13th proposal was not

unlawful regressive bargaining because the company had

good cause.8 See id. at 7 & n.2. In noting her concurrence,

Member Liebman emphasized that she "agree[d] with the

legal principles cited by the [ALJ]," and that her "disagree-

ment [was] solely with the way these principles were applied

[by the ALJ] to the facts of this case." Id. at 7 n.2. Member

Liebman parted company with Member Hurtgen and Chair-

man Gould, however, in her conclusion that the company

engaged in an unfair labor practice by refusing to negotiate

over two mandatory subjects of bargaining (cost of living

adjustment and voluntary overtime) in September and Octo-

ber 1994. See id. at 7. Thus, Member Liebman did not

reach the issue of the validity of the company's September

14th proposal. See id. at 7-8.

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8 In Member Liebman's words: "For the reasons stated in ...

Member Hurtgen's opinion, I join him in finding that the [company]

did not bargain in bad faith in June 1994 following the employees'

rejection of the contract it negotiated with the Union." Id. at 7

(footnotes omitted).

II.

In order for the court properly to review the Board's

decision, it "must be able to discern the rationale" underlying

the Board's conclusions. Oil, Chemical & Atomic Workers

Int'l Union v. NLRB, 46 F.3d 82, 90 (D.C. Cir. 1995); see

also Acme Die Casting v. NLRB, 26 F.3d 162, 166 (D.C. Cir.

1994); United Food & Commercial Workers Int'l Union v.

NLRB, 880 F.2d 1422, 1436 (D.C. Cir. 1989). The union

contends that the Board, by issuing three conflicting opinions,

failed to articulate a rationale that the court can review, and

left uncertain whether regressive bargaining in the absence of

good cause violates the Act. Although the union raises a

legitimate concern about the troubling division within the

Board, the union overstates its position in maintaining that

the three opinions "reduce [the] established principles of

regressive bargaining law to chaos." Unlike the situation in

Oil, Chemical, on which the union relies, an examination of

the separate opinions shows that there is " 'a majority-

supported statement of the rule that the Board applied and

will be applying ... in the future.' " Oil, Chemical, 46 F.3d

at 91 (quoting United Food, 880 F.2d at 1436-37).

In examining whether there is a Board decision that the

court can review, the underlying question is the continued

vitality of Driftwood. In that case, as noted above, the Board

stated that "the law is settled that '[t]he withdrawal of a

proposal by an employer without good cause is evidence of a

lack of good faith bargaining by the employer in violation of

Section 8(a)(5) of the Act where the proposal has been

tentatively agreed upon.' " Driftwood, 312 N.L.R.B. at 252

(citation omitted). The Driftwood Board further explained

that in a regressive bargaining situation, the key issue is

"whether the Respondent had good cause in unilaterally

withdrawing from tentative agreements and concessions

made." Id. (quotation omitted) (citation omitted). A review

of Board precedent confirms this summary of the law. See,

e.g., Transit Serv. Corp., 312 N.L.R.B. 477, 483 (1993); Nati-

co, Inc., 302 N.L.R.B. 668, 670-71 (1991); Arrow Sash, 281

N.L.R.B. at 1108 n.2; Food Serv. Co., 202 N.L.R.B. 790, 803

(1973).

The ALJ relied on Driftwood in finding that the company

violated s 8(a)(1) and (5) of the Act by failing to show good

cause to withdraw the six provisions from the June 13th

proposal. The Board, in reversing, left the good cause rule of

Driftwood untouched. Neither Member Hurtgen nor Mem-

ber Liebman adopted Chairman Gould's view that the good

cause rule of Driftwood should be abandoned; to the con-

trary, they expressly relied on the Driftwood rule in reaching

their findings. Member Hurtgen applied the good cause

standard to find that the company's regressive bargaining

tactics in June and September were lawful. See White Cap,

at 2. Member Liebman joined Member Hurtgen's opinion

with respect to the company's conduct in June, specifically

noting the good cause standard of Driftwood as the basis of

her concurrence. See id. at 7 n.2. Therefore, the Driftwood

rule remains the law of the Board.

The difficulty to which the union points arises from the

apparent indication that the good cause standard may not

stand on a firm footing. In addition to Chairman Gould's

criticism that the good cause requirement was contrary to the

law and reality of labor practice, Member Hurtgen stated

that he was avoiding the issue of "the continued viability of

Driftwood" even though he was applying Driftwood in the

instant case. Id. at 2. But the union's concern about the

future viability of the Driftwood rule may be premature.

Unlike the situation in Oil, Chemical, the Board in White Cap

was not faced with a question of first impression. See Oil,

Chemical, 46 F.3d at 84. Neither, as in Acme Die, or United

Food, was the Board dealing in an area characterized by long-

standing ambiguity or confusion in Board precedent. See

Acme Die, 26 F.3d at 165-66; United Food, 880 F.2d at 1436.

By contrast, the good cause rule had been established and

repeatedly applied by the Board. See, e.g., Transit Serv., 312

N.L.R.B. at 483; Natico, 302 N.L.R.B. at 670-71; Arrow

Sash, 281 N.L.R.B. at 1108 n.2; Food Serv., 202 N.L.R.B. at

803. Even Chairman Gould acknowledged the existence of

Board precedent requiring good cause in urging that it be

overruled. See White Cap, at 6-7. The legal significance of

the disagreement among the Board members must be evalu-

ated in its context, and, contrary to the union's contention, the

court cannot reasonably interpret the tension among the

views of the Board members as upsetting Board precedent

without a more express statement by the Board indicating

such a change in the law. See Motor Vehicle Mfrs. Ass'n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983).

Of course, that the majority of the Board supported the

good cause rule does not fully resolve the issue whether there

is a majority-supported conclusion of law that the court can

review. With respect to the legality of the company's threat

in June 1994 to withdraw items from the June 13th proposal

unless it was ratified by July 4th, Members Hurtgen and

Liebman are in agreement that no violation of the Act

occurred. However, because Member Liebman never ad-

dressed whether the company's September actions constitut-

ed unlawful regressive bargaining, there is no majority deci-

sion on the issue unless Chairman Gould joined Member

Hurtgen's opinion or vice versa. Chairman Gould's separate

opinion makes clear that he agreed with Member Hurtgen

that the company's regressive bargaining in September was

not an unfair labor practice. It is also clear that Chairman

Gould disapproved of Member Hurtgen's reliance on the good

cause requirement of Driftwood. What is not as clear is the

extent to which Chairman Gould and Member Hurtgen

agreed or disagreed on whether the reasons for the compa-

ny's regressive bargaining met the Driftwood good cause

standard. For the following reasons, we conclude that Chair-

man Gould joined Member Hurtgen's opinion on the issue.

A comparison of the two Board members' opinions shows

that their analyses bear more substantive resemblance to

each other than might initially be evident. For his finding

that there was good cause for the company's regressive

bargaining in September, Member Hurtgen reasoned that the

company "was seeking timely ratification and implementation

of the new work schedule in exchange for improved contract

terms," and that the union's refusal to approve the June 13th

proposal within the stated time period thus justified the

company's withdrawal of certain terms. White Cap, at 4.

Member Hurtgen did not stop his analysis there, however.

He also stated that the "essential element" of good-faith

bargaining is "the serious intent to adjust differences and to

reach an acceptable common ground." Id. at 4-5. He ob-

served that the company satisfied this standard because "the

record evidence establishes an intent, even a desire, by [the

company] to reach agreement" as is clear from the company's

"willingness to compromise and make concessions," id. at 4,

and there was "no evidence that the [company] sought to

avoid reaching an agreement." Id. at 5.

Member Hurtgen noted that Chairman Gould "concur[red]

in this result," id. and Chairman Gould's opinion shows the

extent to which his opinion should be read as concurring in

the analysis, as well as in the result, of Member Hurtgen's

opinion. For example, Chairman Gould, like Member Hurt-

gen, thought that "the evidence here clearly indicates that

[the company] was seriously negotiating in order to obtain an

agreement," id. at 7, and placed much emphasis on the

company's apparent "willingness to reach agreement." Id. at

6. After his general discussion of the legality of regressive

bargaining, Chairman Gould stressed that "[h]ere, it would be

particularly inappropriate to find the [company's] withdrawals

unlawfully regressive because the [company] was clearly ...

adjusting its proposals ... in the course of bargaining in

order [to] obtain agreement on a crucial issue." Id. at 7.

From these statements, we conclude that Chairman Gould

and Member Hurtgen were in agreement that the company's

reasons for resorting to regressive bargaining constituted

good cause. Chairman Gould's separate opinion, then, should

not be read to be expressing any doubt as to whether the

company met the good cause requirement. Rather, in our

view, his opinion stems from his position that the good cause

requirement should not be applied in future cases even

though, in the instant case, the existence of the requirement

did not change the ultimate outcome.

In reaching this conclusion, we emphasize that it would

have been preferable for the Board to have stated more

explicitly that Member Hurtgen's opinion represented the

majority position of the Board rather than requiring the court

to decide that issue. Be that as it may, for the reasons noted,

we treat Member Hurtgen's opinion as the opinion of the

Board and review its findings of fact and application of the

law to the facts under the familiar substantial evidence stan-

dard. See NLRB v. United Insurance Co., 390 U.S. 254, 260

(1968); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951).

III.

Section 8(a)(5) of the Act makes it an unfair labor practice

for an employer "to refuse to bargain collectively with the

representatives of [its] employees." 29 U.S.C. s 158(a)(5).

Under s 8(d), "to bargain collectively is the performance of

the mutual obligation of the employer and the representative

of the employees to meet at reasonable times and confer in

good faith with respect to wages, hours, and other terms and

conditions of employment." Id. s 158(d). The union con-

tends that the company's withdrawal of certain terms from its

proposals in June and September 1994 violated its s 8(a)(5)

duty to bargain in good faith and that the Board erred in

finding otherwise. Because there is substantial evidence in

the record to support the Board's conclusion, we reject the

union's challenge.

The Board concluded that the company had good cause for

its threat to withdraw six provisions in the June 13th proposal

and for its subsequent withdrawal of those six provisions plus

more in September. The Board stated that, unlike in Drift-

wood, where the employer engaged in regressive bargaining

before the union held a ratification vote on the tentative

agreement, "the six tentatively agreed to items had already

been rejected at the time the [Company] threatened to with-

draw them." White Cap, at 2. In addition, the Board

observed that the company had "stressed from the inception

of negotiations its desire for timely implementation of the

new schedule" and that the "improved contract terms were

linked to timely implementation of the new work schedule."

Id. at 3. The Board concluded from these considerations that

the company's threat to withdraw the June 13th proposal was

"an effort to secure ratification of the agreement it reached

with the Union, rather than an attempt to obstruct meaning-

ful bargaining." Id. In addition, the Board relied as further

support on the fact that the company offered the union

another opportunity to ratify the proposal after the union's

rejection and that the company had given the union sufficient

"opportunity to digest, understand, evaluate, and vote on the

June 13 contract proposal." Id. For essentially the same

reasons, that the company "was seeking timely ratification

and implementation of the new work schedule in exchange for

improved contract terms" id. at 4, and that "the record

evidence establishes an intent, even a desire, by [the compa-

ny] to reach agreement," the Board found that the company's

withdrawal of several provisions in its September proposal

did not constitute an unfair labor practice. Id.

There is substantial evidence in the record to support the

Board's findings. During the parties' extended negotiations

for nearly a year, the company made repeated efforts to

reach common ground with the union. The company made

clear from the beginning of the negotiations that it could not

offer a wage increase and that it sought a timely implementa-

tion of the new work schedule. However, the company was

willing to offer a shift differential, increased contributions to

the monthly fringe benefit fund, and increased overtime pay,

all in response to specific demands by the union as a condition

for approving the new work schedule. When those conces-

sions proved to be inadequate, the company gave up its initial

position and agreed to give wage increases, in a proposal that

the union characterized as "very excellent." Even after the

membership rejected the proposal on June 19th, the company

gave the union a second chance and expressed its hope that

they reach an agreement soon. In addition, throughout the

period, the company stressed that the improved contract

terms it was offering were linked to timely implementation of

the schedule, and this link was emphasized in its June 23rd

letter. The union membership's failure to ratify timely the

proposal triggered the company's withdrawals, and these

circumstances hardly demonstrate that the company sought

to frustrate the collective bargaining process. Therefore, the

Board's finding of good cause in the company's regressive

bargaining is supported by substantial evidence.

Contending that the Board erred in its application of the

good cause standard, the union asserts that Board precedent

recognizes only two types of good cause to justify regressive

bargaining--changed economic circumstances and a change in

the party's relative bargaining power. This misrepresents

the law. The cases cited by the union support its position

only to the extent that each case can easily be placed in one of

the two categories that the union puts forward. See, e.g.,

A.M.F. Bowling Co., 314 N.L.R.B. 969, 975 (1994), enf. denied

on other grounds, 63 F.3d 1293 (4th Cir. 1995); Aero Alloys,

289 N.L.R.B. 497, 497 (1988); Cook Bros. Enters., 288

N.L.R.B. 387, 387-89 (1988); O'Malley Lumber Co., 234

N.L.R.B. 1171, 1179-80 (1978). However, no case cited by

the union has limited the definition of good cause to the two

categories only. Of the cases cited by the union, the closest

the Board came to the union's position was in the following

passage in Hyatt Hotels Corp., 296 N.L.R.B. 289, 314 (1989):

A regression in economic position during bargaining is

not of itself dispositive of the good-faith issue where

economic considerations and the ability to compete moti-

vate the regressive bargaining stance. Furthermore, it

is no manifestation of bad faith for an employer to

change his bargaining posture to one less favorable when

he does so in "flexing economic muscle" in consequence

of an intervening circumstance....

Id. at 314 (citation omitted). However, nowhere did the

Board state in Hyatt Hotels that these categories exhausted

the possible types of good cause. On the contrary, the Board

also defined the general issue of justifiable regressive bar-

gaining as whether a party's "proffered reasons for its

changed bargaining stance were so illogical or unreasonable

as to necessarily warrant an inference of bad faith." Id. at

315. In Barry-Wehmiller Co., 271 N.L.R.B. 471, 473 (1984),

another case cited by the union, the Board stated that, in

evaluating the legality of an instance of regressive bargaining,

"[w]hat is important is whether [the proffered reasons for

regressive bargaining] are 'so illogical' as to warrant the

conclusion that the [party] by offering them demonstrated an

intent to frustrate the bargaining process and there-by pre-

clude the reaching of any agreement." Id. (emphasis added).

This view, that the key issue in evaluating the propriety of

regressive bargaining is whether it is designed to "frustrate

the bargaining process," is the principle applied by the Board

in the instant case, and is the predominant theme in the

Board's regressive bargaining decisions. In addition to the

cases already discussed, the following cases, all cited by the

union, are illustrative: Fairhaven Properties, Inc., 314

N.L.R.B. 763, 771 (1994); Transit Serv., 312 N.L.R.B. at 483;

Toyota of San Francisco, 280 N.L.R.B. 784, 801 (1986);

Pacific Grinding Wheel Co., 220 N.L.R.B. 1389, 1390 (1975).

Therefore, the Board here has not departed from Board

precedent. On the other hand, to generalize, as the union

does, that Board precedent requires changes in either a

party's economic circumstances or bargaining power for good

cause to exist is to make an illogical leap from "If x is the

case, regressive bargaining is justified" to "If x is not the

case, regressive bargaining is not justified." The root of this

elementary error on the union's part is its perception that the

good cause requirement is a narrow exception to the general

rule that regressive bargaining constitutes bad faith bargain-

ing, a view that has no basis in Board precedent.

The union also cites several Supreme Court and circuit

courts of appeals cases to contend that the Board's opinion

frustrates the purpose of s 8(a)(5) of the Act. This conten-

tion has no merit. In order to make NLRB v. Katz, 369 U.S.

736 (1962), applicable to the instant case, the union resorts to

quoting general statements prohibiting "behavior which is in

effect a refusal to negotiate, or which directly obstructs or

inhibits the actual process of discussion," Katz, 369 U.S. at

747, without explaining how such statements demonstrate

that the Board reached the wrong decision in the instant case.

Neither is Daily News of Los Angeles v. NLRB, 73 F.3d 406

(D.C. Cir. 1996), another case relied on by the union, of much

help in that it was also about what the court saw as " 'behav-

ior which is in effect a refusal to negotiate.' " Id. at 414

(quoting Katz, 369 U.S. at 747). In the instant case, the

starting point of the Board's analysis was precisely that "the

withdrawal of previous proposals does not per se establish the

absence of good faith," White Cap, at 4, and thus does not

constitute "behavior which is in effect a refusal to negotiate."

Katz, 369 U.S. at 747. Therefore, the union's reliance on

Katz and Daily News is misplaced.

Similarly, the union's contention based on Charles D. Bo-

nanno Linen Serv., Inc. v. NLRB, 454 U.S. 404 (1982), and

McClatchy Newspapers, Inc. v. NLRB, 131 F.3d 1026 (D.C.

Cir. 1997), has no merit. The union cites the two cases for

the proposition that certain bargaining tactics are so destabi-

lizing that they are improper even if there is no showing of

subjective bad faith. The cases may well stand for that

proposition; however, the union's further inference that the

Board therefore erred in not finding a violation of the Act is a

nonsequitur. Again, the Board started from the assumption,

firmly supported by Board precedent, that regressive bar-

gaining is not so harmful to the collective bargaining process

as to require a general prohibition. Therefore, the Board's

findings simply do not contradict the propositions of law that

the union contends are dispositive. In the end, the union

offers no reason for the court to disturb the Board's conclu-

sions.

IV.

The union further contends that the company violated

s 8(a)(5) of the Act by unilaterally changing terms and condi-

tions of employment in October, 1994 without a bargaining

impasse. See NLRB v. McClatchy Newspapers, Inc., 964

F.2d 1153, 1165 (D.C. Cir. 1992) (in banc); American Fed'n of

Television & Radio Artists, Kansas City Local v. NLRB, 395

F.2d 622, 624 (D.C. Cir. 1968). We have previously stated

that "[t]here is no fixed definition of an impasse ... which

can be applied mechanically to all factual situations." Dallas

Gen. Drivers, Warehousemen and Helpers, Local No. 745 v.

NLRB, 355 F.2d 842, 845 (D.C. Cir. 1966). The Board

"considers a number of factors, including the 'bargaining

history, the good faith of the parties in negotiations, the

length of the negotiations, the importance of the issue or

issues as to which there is disagreement, [and] the contempo-

raneous understanding of the parties as to the state of

negotiations.' " Teamsters Local Union No. 639 v. NLRB,

924 F.2d 1078, 1083 (D.C. Cir. 1991) (quoting Taft Broad. Co.,

163 N.L.R.B. 475, 478 (1967), aff'd, 395 F.2d 622 (1968))

(alteration in original). We hold that there is substantial

evidence in the record supporting the Board's application of

these factors in finding an impasse. See White Cap, at 5.

First, at the time of the unilateral implementation, the

company had bargained in good faith with the union for

approximately ten months, making many concessions along

the way. In addition, as the Board observed, "the parties on

October 4 were at impasse on the critical issue of the [new

work] schedule, which precluded reaching an agreement."

Id. The new work schedule was a critical issue for the

company, as it had made clear at the beginning of the

negotiations. After rejecting the company's proposals con-

taining the new schedule several times, the union proposed

maintaining the old work schedule in its September 22nd

proposal. When the company rejected the union's attempt to

revive the old work schedule, the union proposed that imple-

mentation of the new work schedule be postponed for one

year, which the company also rejected. In their last meeting

before October 10th, the union failed to offer any new propos-

al. The contemporaneous understandings of the parties fur-

ther support the Board's finding. On October 4th, the Union

offered no new proposal and brought up the subject of

whether there was an impasse, and did not disagree when the

company's attorney stated that he believed the parties were

at an impasse. The union's contention that the impasse was

broken when it ratified the June 13th offer before the unilat-

eral implementation is meritless, considering how the June

13th offer had expired months earlier. Thus, applying the

relevant factors shows that there was substantial evidence for

the Board's finding that there was an actual impasse before

the company's unilateral implementation of its final offer on

October 10th.

Finally, the union maintains that even if there were an

impasse, it did not justify the company's unilateral implemen-

tation because the impasse was caused by the company's

unlawful regressive bargaining. See United Packinghouse,

Food & Allied Workers Int'l Union v. NLRB, 416 F.2d 1126,

1131 (D.C. Cir. 1969). We reject this contention because, as

noted, the Board reasonably concluded that the company's

regressive bargaining did not constitute an unlawful labor

practice. Similarly, the union contends that the company's

lockout was unlawful because the company's unlawful labor

practice deprived it of the claim that the purpose of lockout

was to "bring[ ] economic pressure to bear in support of [its]

legitimate bargaining position." American Ship Bldg. Co. v.

NLRB, 380 U.S. 300, 318 (1965); see also Teamsters Local

Union No. 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir.

1991). Again, as the Board found, the company did not

engage in an unfair bargaining practice, and there is substan-

tial evidence in the record to support the Board's decision

that the lockout was lawful because the company's purpose

was to apply economic pressure on the employees in order to

support its "legitimate bargaining position." American Ship

Bldg., 380 U.S. at 318.

Accordingly, we deny the petition.