Altura Communication Solutions, LLC

National Labor Relations Board - Board Decisions

May 21, 2020

369 N.L.R.B. 85 (N.L.R.B. 2020)

369 NLRB No. 85
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Altura Communication Solutions, LLC and Interna-
tional Brotherhood of Electrical Workers, Local
21. Case 13–CA–174605
May 21, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On July 27, 2017, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charging
Party filed cross-exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs to the Respondent’s exceptions, and the Respondent
filed an answering brief to the Charging Party’s cross-ex-
ceptions. The Respondent filed reply briefs to the General
Counsel’s and Charging Party’s answering briefs.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as further discussed below and to
adopt the recommended Order as modified and set forth in
full below.2
The Respondent installs and services telephone equip-
ment. Like the judge, we recognize that its 2015 negotia-
tions for a successor collective-bargaining agreement took
place against the backdrop of significant changes in the
telecommunications industry in recent years, including a
movement away from the kinds of telephone systems the
Respondent has historically installed and repaired. We
also recognize that these changes resulted in declining rev-
enues and a brush with bankruptcy for the Respondent.
As we recently explained in Phillips 66, 369 NLRB No.
13, slip op. at 4 (2020):
The essence of bad-faith bargaining is a purpose to frus-
trate the possibility of arriving at any agreement, and the
Board looks to the totality of an employer’s conduct to
1 The Respondent 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 preponderance
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 re-
versing the findings.
determine whether the employer has bargained in bad
faith. See, e.g., West Coast Casket Co., Inc., 192 NLRB
624, 636 (1971), enfd. in relevant part 469 F.2d 871 (9th
Cir. 1972). Section 8(d) of the Act provides that the duty
to bargain in good faith “does not compel either party to
agree to a proposal or require the making of a conces-
sion.” Accordingly, even “adamant” insistence on a bar-
gaining position “is not of itself a refusal to bargain in
good faith.” Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984).
See also Audio Visual Services Group, Inc. d/b/a PSAV
Presentation Services, 367 NLRB No. 103, slip op. at 6
(2019) (quoting Sec. 8(d)’s description of what the Act
does and does not require), affd. sub nom. IATSE, Local
15 v. NLRB, ___ F.3d ___, 2020 WL 2053090 (9th Cir.
April 29, 2020). Thus, employers and unions are entitled
to bargain hard for a contract each side perceives as desir-
able, and nothing in the Act precludes an employer from
bargaining aggressively for cost-cutting measures. “A
party is entitled to stand firm on a position if he reasonably
believes that it is fair and proper or that he has sufficient
bargaining strength to force the other party to agree.” At-
lanta Hilton & Tower, supra (quoted in Audio Visual Ser-
vices Group, supra, slip op. at 6). Moreover, “it is not the
Board’s role to sit in judgment of the substantive terms of
bargaining.” Rescar, Inc., 274 NLRB 1, 2 (1985). It is
our role, however, “to oversee the process to ascertain that
the parties are making a sincere effort to reach agree-
ment.” Id. Accordingly, “[w]hile the Board will not de-
cide whether an employer’s proposals were acceptable or
unacceptable, it will examine those proposals and ‘con-
sider whether, on the basis of objective factors, a demand
is clearly designed to frustrate agreement on a collective-
bargaining contract.’” Audio Visual Services Group, su-
pra, slip op. at 6 (quoting Reichhold Chemicals, 288
NLRB 69, 69 (1988), enfd. in relevant part sub nom.
Teamsters Local 515 v. NLRB, 906 F.2d 719 (D.C. Cir.
1990), cert. denied 498 U.S. 1053 (1991)).
Recently, we reiterated the well-established principle
that in some cases, the content of specific proposals “may
become relevant in determining whether a party was
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Danbury Ambulance Service, Inc., 369 NLRB
No. 68 (2020), in accordance with our decision in Excel Container, Inc.,
325 NLRB 17 (1997), and to conform to the Board’s standard remedial
language. We shall also substitute a new notice to conform to the Order
as modified. We decline the Charging Party’s request for additional rem-
edies.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
making a sincere effort to reach an agreement.” Phillips
66, supra, slip op. at 4 fn. 9. As explained below and in
the judge’s decision, this is such a case, and the Respond-
ent did not make the requisite effort. Relying, as the judge
did, on the combination of facts present in this case,3 we
affirm the judge’s finding that the Respondent failed to
bargain in good faith in violation of Section 8(a)(5) and
(1) of the Act.4
Facts
In the attached decision, the judge describes the parties’
negotiation history in great detail. It is, however, suffi-
cient for our purposes to summarize the provisions in-
cluded in the Respondent’s final offer to the Union, as fol-
lows.
 A sweeping management-rights clause under which
the Respondent would retain the right (“limited only
by the specific and express terms” of the agreement)
“to unilaterally make and implement decisions with
respect to the operation and management of its busi-
ness and employees in all respects, including, but not
limited to, all rights and authority possessed or exer-
cised by the Company prior to the certification of the
Union as the exclusive collective bargaining repre-
sentative” of the unit employees. Among these re-
tained rights would be the right “to determine whether
services or goods are to be provided or produced by
employees covered by this Agreement or by other
3 We emphasize that certain of the Respondent’s individual proposals
might not be unlawful under other circumstances. See, e.g., NLRB v.
American National Insurance Co., 343 U.S. 395, 407‒409 (1952) (hold-
ing that proposal of, and bargaining for, broad management-rights pro-
vision is not per se violation of duty to bargain in good faith); Litton
Systems, 300 NLRB 324, 326‒330 (1990) (same, regarding zipper
clause, dues checkoff, and unit-placement decisions); Rescar, Inc., 274
NLRB at 2 (same, regarding broad management-rights and no-strike
clauses and limited grievance and arbitration provision).
4 We agree with the judge that the parties did not reach a good-faith
bargaining impasse, but we find it unnecessary to decide whether a valid
impasse would have existed in the absence of the Respondent’s overall
bad-faith bargaining. In addition, unlike the judge, we do not rely on the
Respondent’s unilateral implementation of certain terms and conditions
as an indicium of bad faith. In this regard, the decisions relied upon by
the judge involved unilateral changes implemented while bargaining was
ongoing, rather than, as here, after the employer had claimed, errone-
ously, to have reached impasse. See Omaha World-Herald, 357 NLRB
1870, 1885 (2011); Whitesell Corp., 357 NLRB 1119 (2011); Bryant &
Stratton Business Institute, 321 NLRB 1007, 1044 (1996), enfd. 140 F.3d
169 (2d Cir. 1998).
We also do not rely on the judge’s finding that the factor of bargaining
history weighed against a finding of good-faith impasse under Taft
Broadcasting, 163 NLRB 475 (1967), review denied sub nom. Television
non-bargaining unit employees (including supervi-
sors and temporaries) and non-employees (including
contractors).” And “the exercise” of management’s
rights would be excluded from the grievance proce-
dure except where “specifically and clearly limited by
the [agreement’s] express terms.”
 A broadly worded “zipper” clause under which the
Union would “unqualifiedly waive[] the right . . . to
bargain collectively with respect to any subject or
matter whether or not . . . covered by” the agreement.
 Work-jurisdiction provisions placing no restrictions
on the Respondent’s use of non-bargaining-unit em-
ployees to perform work that had been exclusively or
regularly performed by the bargaining unit, which, if
implemented, effectively would have given the Re-
spondent the unfettered ability to eliminate the bar-
gaining unit at will.
 A broad no-strike clause that included prohibitions on
“handbilling” and “protest[s] regardless of the rea-
son.”5
 A narrow arbitration clause providing that the arbitra-
tor’s authority would be “expressly limited to a deci-
sion upon the question of alleged violation of a spe-
cific provision of th[e a]greement, rather than indirect
or implied intent thereof.”
 Layoff provisions eliminating seniority as a consider-
ation unless the Respondent, in its sole discretion,
Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). In Taft, the
Board listed five non-exhaustive factors to consider in determining
whether a good-faith impasse exists: (1) the parties’ bargaining history;
(2) the good faith of the parties in negotiations; (3) the length of the ne-
gotiations; (4) the importance of the issue or issues as to which there is
disagreement: and (5) the contemporaneous understanding of the parties
as to the state of negotiations. Id. at 478. In his analysis, the judge ap-
pears to have conflated the first and third factors. Nevertheless, we af-
firm the judge’s conclusion that the parties never reached a valid im-
passe, as the second, third, and fifth Taft factors weigh against a finding
of impasse and outweigh factors one and four, which tilt the other way.
See American Security Programs, Inc., 368 NLRB No. 151, slip op. at
13 (2019) (“One or two factors . . . may be sufficient to demonstrate the
absence of impasse.”).
Among the terms and conditions it implemented upon reaching the
claimed impasse, the Respondent offered buyouts to six employees, five
of whom accepted. Because the claimed impasse was invalid and unlaw-
ful, the judge properly ordered the Respondent to offer the five reinstate-
ment and to make them whole. Since these five did accept buyouts, we
leave to compliance the determination of the amount of the setoff, if any,
necessary to prevent a windfall.
5 We do not rely on the judge’s findings regarding the Respondent’s
initial no-strike proposal as evidence of bad faith.
ALTURA COMMUNICATION SOLUTIONS, LLC 3
determined employees to be equal in all other relevant
respects and making severance benefits contingent on
the recipient signing a waiver of claims that would be
binding on the Union.
 A provision stating that nothing in the agreement
should “be construed as a guarantee of hours of work
per shift, per day or per week.”
 Healthcare provisions permitting the Respondent to
eliminate coverage at will (provided it did so for non-
bargaining-unit employees as well) and excluding
coverage disputes from the grievance procedure.
 Proposals transferring “all . . . Company-provided
benefits and other terms and conditions of employ-
ment” not specifically addressed in the agreement—
except for the amount “(i.e., days or hours)” of certain
kinds of paid time off 6—to an employee handbook
outside the agreement and entirely within the Re-
spondent’s unilateral control.
 Proposals granting the Respondent the ability to es-
tablish and change “all policies, rules, regulations,
and performance standards” on 10 days’ notice (pro-
vided that such changes were reasonable and con-
sistent with the agreement’s express terms).
 A two-tier wage proposal that gave the Respondent
complete discretion to set rates of pay above specified
minimums7 and to raise individual employees’ wages,
and substantial discretion to reduce wages, during the
term of the agreement.
Discussion
Section 8(d) of the Act defines collective bargaining as
“the performance of the mutual obligation of the employer
and the representative of the employees to meet at reason-
able times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, . . .
but such obligation does not compel either party to agree
to a proposal or require the making of a concession.”
Sixty years ago, the Supreme Court held that the statutory
duty to “meet . . . and confer in good faith” is not fulfilled
by “purely formal meetings between management and la-
bor, while each maintains an attitude of ‘take it or leave
it.’” NLRB v. Insurance Agents’ International Union, 361
6 Specifically, holidays, vacation days, funeral leave, jury leave, and
sick leave.
7 The Respondent’s proposal established two job classifications—
Levels A and AA—and set minimum wage rates for each classification.
8 In American National Insurance Co., the Supreme Court held that
the Board must evaluate the employer’s overall conduct, including its
U.S. 477, 485 (1960). Rather, “[c]ollective bargaining
. . . presupposes a desire to reach ultimate agreement, to
enter into a collective bargaining contract.” Id. Thus, “the
touchstone of bad-faith bargaining is a purpose to frustrate
the very possibility of reaching an agreement.” Phillips
66, 369 NLRB No. 13, slip op. at 6.
In assessing whether a party has failed or refused to bar-
gain in good faith, the Board considers the totality of the
circumstances. Audio Visual Services Group, 367 NLRB
No. 103, slip op. at 6; Kitsap Tenant Support Services,
Inc., 366 NLRB No. 98, slip op. at 8 (2018); Overnite
Transportation Co., 296 NLRB 669, 671 (1989), enfd.
938 F.2d 815 (7th Cir. 1991). “From the context of an
employer’s total conduct, it must be decided whether the
employer is engaging in hard but lawful bargaining to
achieve a contract that it considers desirable or is unlaw-
fully endeavoring to frustrate the possibility of arriving at
any agreement.” Public Service Co. of Oklahoma (PSO),
334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173 (10th
Cir. 2003). Although the Board does not evaluate whether
particular proposals are acceptable or unacceptable, it will
examine proposals when appropriate and consider
whether, on the basis of objective factors, bargaining de-
mands constitute evidence of bad-faith bargaining. Audio
Visual Services Group, supra, slip op. at 6; Reichhold
Chemicals, supra (same); see also Phillips 66, 369 NLRB
No. 13, slip op. at 4 fn. 9 (same); Kitsap, 366 NLRB No.
98, slip op. at 8 (same).
Clauses vesting in management rights of unilateral ac-
tion are a staple of collective-bargaining agreements, and
the Supreme Court long ago held that bargaining for a pro-
vision granting the employer unilateral control over cer-
tain terms and conditions of employment is not, “per se,
an unfair labor practice.” NLRB v. American National In-
surance Co., 343 U.S. at 409 (“Whether a contract should
contain a clause fixing standards for such matters as work
scheduling or should provide for more flexible treatment
of such matters is an issue for determination across the
bargaining table, not by the Board.”).8 However, the
Board, with court approval, has consistently found that an
employer’s proposals evidence bad-faith bargaining when
they would confer on the employer “unilateral control
proposals, taken as a whole, “by application of the good faith bargaining
standards of Section 8(d) to the facts of each case rather than by prohib-
iting all employers in every industry from bargaining for management
functions clauses altogether.” 343 U.S. at 408‒409. Our decision today
respects the Court’s holding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
over virtually all significant terms and conditions of em-
ployment.” Public Service Co. of Oklahoma (PSO), 334
NLRB at 487; see NLRB v. A-1 King Size Sandwiches,
Inc., 732 F.2d 872, 877 (11th Cir. 1984), enfg. 265 NLRB
850 (1982); Eastern Maine Medical Center, 253 NLRB
224, 246 (1980), enfd. 658 F.2d 1 (1st Cir. 1981); NLRB
v. Johnson Mfg. of Lubbock, 458 F.2d 453, 455 (5th Cir.
1972); see also Radisson Plaza Minneapolis, 307 NLRB
94, 95 (1992) (proposal to incorporate into the parties’ la-
bor contract an employee handbook, which “would oper-
ate, at best, . . . as a perpetual reopener clause,” evidenced
bad faith) (internal quotation marks omitted), enfd. 987
F.2d 1376 (8th Cir. 1993).
This latter principle follows from the longstanding
recognition that the object of collective bargaining under
the Act is “an agreement between employer and employ-
ees as to wages, hours and working conditions evidenced
by a signed contract.” H.J. Heinz Co. v. NLRB, 311 U.S.
514, 523 (1941). Section 1 of the Act makes clear that the
national labor policy established by Congress includes
protecting the right of workers to designate representa-
tives of their own choosing “for the purpose of negotiating
the terms and conditions of their employment,” and the
Supreme Court has held that Congress intended collective
bargaining to be “a process that look[s] to the ordering of
the parties’ industrial relationship through the formation
of a contract.” NLRB v. Insurance Agents’ Union, 361
U.S. at 485 (emphasis added). Proposals that would in-
stead authorize an employer to make unilateral changes to
a broad range of significant terms and conditions of em-
ployment, or that would amount to a “perpetual reopener
clause” as to those terms during the life of the contract, are
thus “at odds with the basic concept of a collective-bar-
gaining agreement.” Radisson Plaza Minneapolis, 307
NLRB at 95.9 Such proposals are evidence that an em-
ployer has failed to bargain with the required desire to en-
ter into a collective-bargaining contract, the Board has
9 As the Board has stated in the context of explaining its contract-bar
doctrine,
real stability in industrial relations can only be achieved where the con-
tract undertakes to chart with adequate precision the course of the bar-
gaining relationship, and the parties can look to the actual terms and
conditions of their contract for guidance in their day-to-day problems
. . . . [A] contract must contain substantial terms and conditions of em-
ployment deemed sufficient to stabilize the bargaining relationship.
Appalachian Shale Products Co., 121 NLRB 1160, 1163 (1958).
10 To be clear, the mere insistence on a management-rights clause as
part of an employer’s overall bargaining position does not compel a
explained, because “unions are statutorily guaranteed the
right to bargain over any change in any term or condition
of employment, [and therefore] could do just as well with
no contract at all.” Id.10
Accordingly, an inference of bad faith is appropriate
“when the employer’s proposals, taken as a whole, would
leave the union and the employees it represents with sub-
stantially fewer rights and less protection than provided by
law without a contract.” Public Service Co. of Oklahoma
(PSO), 334 NLRB at 487‒488. “Put somewhat differ-
ently, an inference of bad-faith bargaining is warranted
when an employer’s proposals ‘would strip the union of
any effective method of representing its members . . . fur-
ther excluding it from any participation in decisions af-
fecting important conditions of employment . . . thus ex-
posing the company’s bad faith.’” Kitsap, 366 NLRB No.
98, slip op. at 8‒9 (brackets omitted) (quoting A-1 King
Size Sandwiches, 265 NLRB at 859).
We recognize, of course, that neither the Board nor the
courts may compel concessions or otherwise sit in judg-
ment upon the substantive terms of collective-bargaining
agreements. NLRA Section 8(d); American National In-
surance Co., 343 U.S. at 403–404. Our examination of
the Respondent’s proposals is undertaken to determine,
not their merits, but “whether in combination and by the
manner proposed they evidence an intent not to reach
agreement.” Coastal Electric Cooperative, 311 NLRB
1126, 1127 (1993).
With these considerations in mind, we find that the Re-
spondent’s proposals, when considered in combination,
evinced a failure to bargain in good faith.
First, although the Respondent’s wage proposals in-
cluded minimum wage amounts for Level A and AA
workers, they would have granted the Respondent com-
plete discretion to raise individual employees’ wages
above these minimums without bargaining or even notice
finding of bad-faith bargaining. Indeed, a union might be willing to ac-
cept even “comprehensive restrictions on the employees’ statutory rights
if the employer were offering something significant in return.” Hy-
drotherm, Inc., 302 NLRB 990, 994 (1991). Neither is it unlawful for an
employer to advance a proposal granting it unilateral discretion over
merit-based wage increases. McClatchy Newspapers, Inc., 321 NLRB
1386 (1996) (explaining that employer could not, however, unilaterally
implement such proposals when parties were at impasse), enfd. 131 F.3d
1026 (D.C. Cir. 1997). But where an employer seeks “unilateral control
over virtually all significant terms and conditions of employment,” the
Board will infer a desire to frustrate the very possibility of reaching an
agreement. Public Service Co. of Oklahoma (PSO), 334 NLRB at 487.
ALTURA COMMUNICATION SOLUTIONS, LLC 5
to the Union.11 In fact, the Respondent planned to pay
more than 85 percent of the unit above the Level A mini-
mum wage. The Respondent also would have substantial
discretion to reduce individual employees’ wages, insofar
as its proposal would allow it to move employees between
levels. Accordingly, under the proposal, wage reductions
could be affected by moving employees from the higher
Level AA classification to the lower Level A.
Second, the Respondent’s proposals would have
granted it complete discretion over hours of work. The
Respondent proposed that nothing in the agreement
should “be construed as a guarantee of hours of work per
shift, per day or per week.” This proposal also would have
increased its unilateral control over employees’ pay: by
seeking complete discretion over hours, the Respondent
also sought complete discretion over total compensation.
Third, by means of its health-insurance proposal and its
proposal to transfer most benefits to the employee hand-
book, the Respondent sought the ability to unilaterally al-
ter or eliminate many significant benefits—including life
insurance, long- and short-term disability benefits, ex-
pense reimbursements, and paid military leave—provided
that such changes also applied to non-unit employees.12
Although the Respondent would not be able to unilaterally
alter the amounts (i.e., days and hours) of paid time off for
holidays, vacation days, funeral leave, jury leave, and sick
leave, its proposal would have given it the ability to uni-
laterally alter the policies governing paid time off through
its exclusive control over the terms and conditions con-
tained in the employee handbook. In Radisson Plaza Min-
neapolis, the Board found that a proposal to incorporate in
the parties’ contract a handbook that “would operate, at
best, . . . as a ‘perpetual reopener clause’” was “at odds
with the basic concept of a collective-bargaining agree-
ment.” 307 NLRB at 95. The Respondent’s proposals
would go even further because the Respondent would be
able to unilaterally change the extra-contractual handbook
at any time.13 Moreover, since the handbook would be
11 Cf. Kitsap, 366 NLRB No. 98, slip op. at 9 (wage proposal under
which union “would be entitled only to receive notice of any wage rate
changes, not to bargain” suggested bad faith (emphasis in original)).
12 Cf. Public Service Co. of Oklahoma (PSO), 334 NLRB at 488 (pro-
posal permitting employer to make unilateral changes to “important em-
ployee benefits such as vacation days, holidays, medical insurance, leave
time, and life, disability, and on-the-job accident insurance” suggested
bad faith). We note that bargaining proposals seeking contract provi-
sions that link unit employees’ benefits to those of non-unit employees
do not by themselves suggest bad-faith bargaining. Here, however, the
Respondent’s proposal went well beyond such linkage.
outside of the contract, claims of violations of the hand-
book apparently would be excluded from the grievance
procedure.
Finally, we infer bad faith from the combination of the
Respondent’s proposals for a remarkably broad manage-
ment-rights clause, a no-strike clause that would have pre-
cluded even handbilling and “protest[s] regardless of the
reason,” and a grievance procedure that would exclude
from its scope the Respondent’s exercise of the extraordi-
narily broad discretion provided it under many of its pro-
posals. Under the proposed management-rights clause,
the Respondent would retain “all rights and authority pos-
sessed or exercised by” it before the Union was certified
as the unit employees’ bargaining representative, “limited
only by the specific and express terms” of the agreement.
The breadth of this proposed clause is all the more striking
when one considers that the Respondent’s proposals for
those “specific and express terms” included few such lim-
its. As set forth above, those proposals would permit the
Respondent, among other things, (i) to unilaterally in-
crease individual employees’ wages, (ii) to unilaterally
move employees from a higher to a lower wage tier, (iii)
to unilaterally reduce employees’ hours, (iv) to unilater-
ally alter or eliminate most benefits, and (v) to unilaterally
eliminate the bargaining unit entirely. At the same time,
the proposed management-rights clause also provided that
the rights established therein “[could not] be the subject of
the grievance and/or arbitration procedures,” and the pro-
posed no-strike clause would have precluded any and all
protests, “regardless of the reason.” Thus, employees and
the Union would be left with no avenue to challenge any
of the Respondent’s decisions with regard to the nearly
exhaustive rights reserved to the Respondent under the
management-rights clause, even if the Respondent de-
cided to eliminate the bargaining unit entirely.14 The
Board has consistently found such proposals to be an in-
dicator of bad faith. See, e.g., Kitsap, 366 NLRB No. 98,
13 Cf. Radisson Plaza Minneapolis, 307 NLRB at 95 fn. 8 (finding
that proposal incorporating handbook “was indicative of bad faith even
assuming that the [r]espondent was merely demanding a regime of con-
tinual bargaining, at its option” rather than the ability to unilaterally re-
vise the handbook without bargaining).
14 See San Isabel Electric Services, Inc., 225 NLRB 1073, 1079 fn. 7
(1976) (citing cases establishing that the Board has “consistently found
bad-faith bargaining in cases in which an employer has insisted on a
broad management rights clause and a no-strike clause during negotia-
tions, while, at the same time, refusing to agree to an effective grievance
and arbitration procedure”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
slip op. at 4 fn. 11, 9; Regency Service Carts, 345 NLRB
671, 675, 722 (2005).
Considered in their entirety, the Respondent’s proposals
would have required the Union “to cede substantially all
of its representational function, and would have so dam-
aged the Union’s ability to function as the employees’ bar-
gaining representative that the Respondent could not seri-
ously have expected meaningful collective bargaining.”
Public Service Co. of Oklahoma (PSO), 334 NLRB at 489;
see also Regency Service Carts, 345 NLRB at 672–676
(proposed management-rights clause that left employer
with “unilateral control [] over virtually all significant
terms and conditions of employment,” together with in-
sistence on a grievance and arbitration clause that ex-
cluded from arbitral review the employer’s exercise of dis-
cretion under its proposed management-rights clause, in-
dicative of bad faith); A-1 King Size Sandwiches, 265
NLRB at 858–859 (employer bargained in bad faith where
it insisted on retaining the unilateral right to set wage rates
and “total control over virtually every significant aspect of
the employment relationship,” including discipline and
discharge, work rules and regulations, subcontracting, and
transferring unit work).
As the Supreme Court recognized long ago, “there is
tension between the principle that the parties need not con-
tract on any specific terms and a practical enforcement of
the principle that they are bound to deal with each other in
a serious attempt to resolve differences and reach a com-
mon ground.” NLRB v. Insurance Agents’ Union, 361
U.S. at 486. Therefore, although the Board may not de-
cide whether particular contract proposals are acceptable
or unacceptable, Reichhold Chemicals, 288 NLRB at 69,
it must sometimes consider a party’s proposals, along with
all other relevant evidence, if the duty to bargain is to have
any meaning at all. Indeed, “[s]ometimes, especially if the
parties are sophisticated, the only indicia of bad faith may
be the proposals advanced and adhered to. The fact that it
may be difficult to distinguish bad faith bargaining from
hard bargaining cannot excuse our obligation to do so.”
NLRB v. Wright Motors, Inc., 603 F.2d 604, 609‒610 (7th
Cir. 1979) (citations omitted).
15 See fns. 4 and 5, supra.
16 To remedy this violation, the judge issued an affirmative bargaining
order. Although the Respondent excepts to the judge’s finding that it
unlawfully failed and refused to bargain in good faith in violation of Sec.
8(a)(5), it does not argue that the judge’s recommended affirmative
For all the reasons discussed above, as well as the addi-
tional indicia of bad faith found by the judge (as limited
herein),15 we conclude that the Respondent crossed the
line that separates lawful hard bargaining and unlawful
bad-faith bargaining. Accordingly, we find that the Re-
spondent violated Section 8(a)(5) and (1) by engaging in
overall bad-faith bargaining.16
ORDER
The Respondent, Altura Communication Solutions,
LLC, Fullerton, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the International Brotherhood of Electrical Workers, Lo-
cal 21 (Union) as the exclusive collective-bargaining rep-
resentative of the employees in the bargaining unit.
(b) Unilaterally changing the terms and conditions of
employment of its unit employees by implementing por-
tions of its final contract offer without first bargaining to
a good-faith impasse.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time field service techni-
cians based at reporting locations throughout the United
States (except New York City), but excluding office
clerical employees, guards, professional employees, and
supervisors as defined in the Act.
(b) On request by the Union, rescind the changes in the
terms and conditions of employment for its unit employ-
ees that were unilaterally implemented on January 1,
2016.
(c) Within 14 days from the date of this Order, offer
David Pickett, Jeff Stewart, Jerry Nanson, Brian Stark,
bargaining order is improper even assuming the Board affirms the
judge’s Sec. 8(a)(5) violation finding. We therefore find it unnecessary
to provide a specific justification for that remedy. See Arbah Hotel
Corp. d/b/a Meadowlands View Hotel, 368 NLRB No. 119, slip op. at
1 fn. 2 (2019) (collecting cases).
ALTURA COMMUNICATION SOLUTIONS, LLC 7
and Paul Curran full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(d) Make David Pickett, Jeff Stewart, Jerry Nanson,
Brian Stark, and Paul Curran whole for any loss of earn-
ings and other benefits suffered as a result of their unlaw-
ful buyouts, in the manner set forth in the remedy section
of the judge’s decision.
(e) Make unit employees whole for any loss of earnings
and other benefits suffered as a result of the unlawful
changes in terms and conditions of employment on Janu-
ary 1, 2016, in the manner set forth in the remedy section
of the judge’s decision.
(f) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 13,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
(g) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(h) Post at its facilities nationwide copies of the at-
tached notice marked “Appendix.”17 Copies of the notice,
on forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
17 If the facilities involved in these proceedings are open and staffed
by a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If any facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
other electronic means, if the Respondent customarily
communicates with its employees by such means. The
Respondent shall take reasonable steps to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
October 21, 2015.
(i) Within 21 days after service by the Region, file with
the Regional Director for Region 13 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. May 21, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain in good faith
with the International Brotherhood of Electrical Workers,
Local 21 (Union) as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
WE WILL NOT unilaterally change your terms and con-
ditions of employment by implementing portions of our
final contract offer without first bargaining to a good-faith
impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All full-time and regular part-time field service techni-
cians based at reporting locations throughout the United
States (except New York City), but excluding office
clerical employees, guards, professional employees, and
supervisors as defined in the Act.
WE WILL, on the Union’s request, rescind the changes
in the terms and conditions of employment for our unit
employees that were unilaterally implemented on January
1, 2016.
WE WILL, within 14 days from the date of the Board’s
Order, offer David Pickett, Jeff Stewart, Jerry Nanson,
Brian Stark, and Paul Curran full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously enjoyed.
WE WILL make David Pickett, Jeff Stewart, Jerry Nan-
son, Brian Stark, and Paul Curran whole for any loss of
earnings and other benefits resulting from their unlawful
buyouts, less any net interim earnings, plus interest, and
WE WILL also make these individuals whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL make unit employees whole for any loss of
earnings and other benefits suffered as a result of our un-
lawful changes to your terms and conditions of employ-
ment on January 1, 2016.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 13, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
ALTURA COMMUNICATION SOLUTIONS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-174605 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273‒1940.
Christina B. Hill, Esq., for the General Counsel.
Anthony B. Byergo, Esq. and Matthew J. Kelley, Esq. (Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.), of Seattle, Wash-
ington, and of Indianapolis, Indiana, for the Respondent.
Barry M. Bennett, Esq. and George A. Luscombe, III, Esq.
(Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich), of
Chicago, Illinois, for the Charging Party
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case
involves an employer that came to collective bargaining deter-
mined to restructure the collective-bargaining agreement, terms
and conditions of employment, and relationship, with its long-
time union-represented employees. Its stated goal was to obtain
virtually unlimited discretion or “flexibility” in determining a
wide range of terms and condition of employment, including
whether to use bargaining unit employees at all. In pursuit of
this goal it proposed and insisted upon, not only proposals that
gave it highly discretionary prerogatives during the contract’s
term, but as to many mandatory subjects of bargaining demanded
that they be relegated to and governed by the unilaterally drafted
and maintained employee handbook, generally applicable to
ALTURA COMMUNICATION SOLUTIONS, LLC 9
nonrepresented employees.
With a few changes, the employer insisted on its positions and
when, after three meeting sessions in eight weeks (a total of ap-
proximately eight days of meetings), while clearly drawing the
union toward its positions, the employer grew frustrated with its
inability to obtain the union’s agreement and began arguing that
the parties were at impasse. After being cajoled into a further
bargaining session with mediator—at which both parties made
movement—it ceased meeting with the union and evaded, dis-
missed, and set preconditions for the union’s efforts to restart
negotiations, even when the union repeatedly offered significant
proposals with increasing movement toward the employer’s po-
sitions. After repeatedly rejecting every union effort to bargain,
the employer announced implementation of selected parts of its
proposal.
As discussed herein, the combination of the extensive discre-
tion in a wide range of terms and conditions, unyieldingly in-
sisted upon, the repeated and premature declarations of impasse
that were used to justify the employer’s abandonment of mean-
ingful bargaining, the imposition of preconditions to renewed
bargaining, and the refusal to continue a reasonable face-to-face
meeting schedule to bargain, provide convincing evidence of an
overall failure to bargain in good faith under the National Labor
Relations Act (Act).
Moreover, the employer’s unilateral implementation of por-
tions of its bargaining proposal provides further evidence of un-
lawful bad faith and is independently unlawful as well. Contrary
to the claim of the employer, there was not a valid lawful impasse
when it implemented. Indeed, even assuming, wrongly in my
view, that the employer did bargain in good faith to a valid bar-
gaining impasse at some point in the months before implemen-
tation, the Union’s efforts to reignite bargaining—the record
shows that along with providing significant additional bargain-
ing proposals moving toward the employer’s position it was
nearly begging for the restarting of negotiations in an effort to
bring the employer back to the bargaining process—clearly
broke any impasse that could have existed before implementa-
tion was announced. In sum, this is an employer that lost sight
of its obligations under the Act to collectively-bargain in good
faith. As discussed herein, I find that by its overall conduct the
employer refused to bargain collectively and in good faith, and
in addition, unlawfully and unilaterally changed its employees’
terms and conditions of employment.
STATEMENT OF THE CASE
On April 21, 2016, Local 21 of the International Brotherhood
of Electrical Workers (Union or Charging Party) filed an unfair
labor practice charge alleging violations of the National Labor
Relations Act (Act) by Altura Communication Solutions, LLC
(Altura or Employer or Company or Respondent), docketed by
Region 13 of the National Labor Relations Board (Board) as
Case 13–CA–174605. A copy of the charge was served on the
Employer April 22, 2016. A first amended charge was filed by
the Union in this case on September 20, 2016, and served on the
Employer the same day.
Based on an investigation into these charges, on November
30, 2016, the Board’s General Counsel, by the Acting Regional
Director for Region 13 of the Board, issued a complaint and
notice of hearing alleging that the Employer had violated the Act.
On December 12, 2016, the Employer filed an answer denying
all alleged violations of the Act.
A trial in this case was conducted March 20–23, 2017, in Chi-
cago, Illinois. Counsel for the General Counsel, the Charging
Party Union, and the Respondent Employer, filed posttrial briefs
in support of their positions by May 18, 2017.
On the entire record, I make the following findings, conclu-
sions of law, and recommendations.
JURISDICTION
The complaint alleges, the Respondent admits, and I find that
at all material times, the Employer was a corporation with an of-
fice and place of business in Downers Grove, Illinois, and that it
has been engaged in the business of selling, installing, and ser-
vicing communication platforms throughout the United States,
including the onsite installation and servicing of telephony
equipment. During the past calendar year, a representative pe-
riod, the Company performed services valued in excess of
$50,000 in States other than the State of Illinois. At all material
times, the Company has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. At
all material times, the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
General background
Altura installs and repairs customer provided telephonic sys-
tems and equipment for commercial and institutional enterprises
located throughout the United States. Altura is a successor com-
pany to Fujitsu Business Communications, which many years
ago bought the private branch exchange (PBX) manufacturing
business of GTE Business Systems. Fujitsu manufactured, in-
stalled, and maintained PBX equipment for large institutions
such as universities, hospitals, and state and local government
buildings, and relied at the time on TDM switching technologies.
As the technology changed in the late 1990s, Fujitsu decided to
close in 2001. Altura was formed in about 2004 out of a “part-
nering” of Fujitsu with Avaya, the successor to AT&T’s PBX
operations, and together they developed software to integrate the
Fujitsu systems into an alternative communications technology.
This was a successful business—the new technology made the
Fujitsu installed systems viable—and the business did well until
approximately 2010, when, according to Altura President and
CEO Robert Blazek, the shift to cell phone and PC applications
and away from traditional phone systems began “to hit all the
traditional Voice Over IP manufacturers hard.” As a result, Al-
tura has endured declining revenues for the last five or six years,
a “brush with bankruptcy in 2013,” and difficult financial cir-
cumstances generally.
Altura maintains a current work force of approximately 150,
including management. Approximately 40–50 employees are
Union-represented. The Union represents a bargaining unit of
Altura’s field technicians who work around the country, usually
reporting to customer sites to perform their work. These
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
employees are spread around the country in approximately 28
“seniority areas.” There are eight physical offices across the
country. Some employees are dispatched as needed to different
customers within their area, while others are essentially dedi-
cated to and continuously report to a particular client or cus-
tomer. These technician employees have been represented by
the Union for at least 30 years, going back to the GTE-era, and
once included a group of “logistics coordinators” who managed
warehouse delivery. According to Blazek, by 2012, the ware-
houses were gone, and those employees are no longer part of the
bargaining unit. In addition to the bargaining unit employees,
Altura employs approximately ten project managers, ten profes-
sional engineers, and ten network operation engineers, whose
work sometimes overlaps with bargaining unit work based on the
needs of customers, the availability of bargaining unit employees
to perform the work, and general expedience.
Consistent with the decline in revenues, as well as technolog-
ical changes, employment at Altura (including nonbargaining
unit) has declined from over 300 in 2001, to approximately 150
today. Bargaining unit employees have seen even steeper rela-
tive declines: in 2001 there were approximately 120 employees
working in the bargaining unit. Union Vice President and Assis-
tant Business Manager Bill Henne, who headed up the Union’s
2015 negotiating team, testified that at the start of the 2015 ne-
gotiations there were roughly 50 bargaining unit employees,
while Blazek testified that there were 39 at the time of the hear-
ing, i.e., in March 2017. (The “Seniority Area Update” provided
by the Employer lists 52 bargaining-unit employees as of July 1,
2015.)
The decline reflected the changes in the industry. The “legacy
technologies” TDM work long performed by the unit technicians
was being increasingly replaced by “advance technologies.”
Blazek described Altura’s work as having moved from “tradi-
tional telephone work to being much more data and data [di]ag-
nostic and also much more programing and software knowledge.
The level of hardware has dropped dramatically over time. It’s
becoming much more of a software-based industry and the cor-
responding skills [required] are changing to represent a software-
based solutions center.” According to Blazek, “traditional te-
lephony work has declined to the point where in some of the re-
porting centers I really don’t have any of it.” As a result in the
change of the nature and complexity of the work, Blazek de-
scribed a situation where some of the union-represented techni-
cians had “embraced these new technologies” and had learned
how to work on the new technologies while others had “stayed
more in the TDM space,” for which there was less work availa-
ble. Blazek explained that, given that there were only two or
three employees in a “seniority center” area, it was increasingly
difficult to support the customers in that area, “especially when
I have differences in the skills and abilities of most people in
those areas.” In response, Blazek described an extensive training
program for technicians that, “for the most part we’ve been suc-
cessful” with, but he described the balancing of work among var-
iously-skilled employees in the unit as “some of the biggest chal-
lenge we’ve had with the Union and our conversations over the
last nine, ten years.”
2015 bargaining background
The last collective-bargaining agreement between the parties
was effective August 1, 2012, and scheduled to expire July 31,
2015 (the 2012 Agreement).
As referenced, Altura’s President and CEO is Robert Blazek.
Blazek has been Altura’s President and CEO since the Company
was formed in 2001, and he held positions with Altura’s prede-
cessors for approximately 16 years before that. Blazek was the
Employer’s chief negotiator in the 2015 collective-bargaining
negotiations that are the focus of this case. Also on the negoti-
ating team for the Employer was Greg Feller, Altura’s HR direc-
tor, and Tim Henion, the vice-president of sales and operations.
Attorney Anthony Byergo also participated in one bargaining
session in 2015. For the Union, Vice-President and Assistant
Business Manager Henne was the principal bargainer. He was
assisted by Business Representative Mike Grindle, and at times
by President and Business Manager Paul Wright, and also by
Chief Steward Paul Waters and Shop Steward Jeff Stewart.
With the expiration date in sight, on April 30, 2015, Human
Resources Director Feller and Union Representative Henne
agreed for the parties to meet June 4 in the Chicago area, June
23–24 in Phoenix, and July 28–29 in Phoenix.
The Union’s offices are in Downers Grove, Illinois, outside of
Chicago. Blazek’s office is in Phoenix. Altura’s headquarters is
in Fullerton, California. Blazek testified that in past negotia-
tions, as here, the parties would “as a general rule” alternate ne-
gotiating sites between the central part of the country and the
west coast. Henne agreed that in past negotiations the parties
had alternated “between Phoenix, Arizona, a different Company
location at the time and Downers Grove, Illinois, either between
our office or the Company's location in a town north of Downers
Grove, Illinois.”
Blazek testified that going into negotiations for 2015, one of
the Employer’s chief goals was “flexibility” in its terms and con-
ditions of employment. Blazek testified that “I absolutely
needed future flexibility.” As an example of the flexibility he
sought, Blazek described wanting the ability to only have wage
increases given in the Employer’s discretion, so that they could
be awarded to the “higher skilled technicians” who were billed
to customers at a higher rate, rather than having an across-the-
board wage increases that “would lock me in.” In the area of
subcontracting, Blazek described “want[ing] flexibility” from
“the inability to lay somebody off,” whenever the Employer pre-
ferred to have nonunit employees or supervisors perform the
work. This theme of “flexibility,” i.e., employer discretion, was
central to the Employer’s vision for these negotiations. As to
healthcare, “Our intention was not to stop providing healthcare
or, you know, reduce people's hours. That's not the intent at all.
It's to have the flexibility” to do so should the Employer believe
it necessary for the good of the business. Thus, while Blazek
testified that there were no plans to eliminate healthcare for em-
ployees, he wanted to come out of bargaining with a contract
where “we could” eliminate it if the Employer desired to do so.
Blazek described wanting a system that made pay and layoffs a
matter of management discretion not “[b]ecause we didn’t like
somebody and we were going to pick on them,” but rather, “We
were looking for flexibility all around.” Essentially, the Em-
ployer sought and talked openly of wanting to have the same
ALTURA COMMUNICATION SOLUTIONS, LLC 11
“flexibility” with the union-represented workforce that it en-
joyed with the nonrepresented workforce. The goal, according
to Blazek, was “to have the flexibility and the same flexibility on
both sides, Union and non-Union.” He testified, “we were trying
to . . . treat all our employees equally.” The nonunion employ-
ees’ terms and conditions were governed by an Employer-
drafted handbook that could be changed at any time by the Em-
ployer and Blazek described that a goal of these negotiations was
for the Company to seek the same “[f]lexibility and simplicity”
in its dealings with union-represented employees. “As the Com-
pany has shrunk, it makes more sense to try to offer the same
benefits and the same structure for all the people. Blazek testi-
fied that having “two policies, two practices [one for unit and
one for nonunit employees] . . . for a small finance team that’s
problematic and difficult to manage.” In terms of this “simplifi-
cation,” Blazek explained that the “contract itself had more
pages than employees” and covered items in detail that “made it
harder for our back office people to manage.” Historically, the
unit employees’ benefits have been distinct from the nonunit, but
Blazek testified that “through the life of Altura and successor
agreements, we’ve been working to bring those two together,”
making changes toward that end in each successive negotiation.
Notably, although the Employer’s financial circumstances
were an animating concern in the negotiations, and were substan-
tiated with information provided to the Union, the record is also
clear that the Employer affirmatively eschewed any claim of an
inability to pay for Union negotiating demands at any time in the
negotiations.
June 4 bargaining in Downers Grove, Illinois; the Employer’s
first proposal
The parties met to bargain as planned on June 4. Altura’s bar-
gaining team was composed of Blazek, whose office is in Phoe-
nix; Feller, whose office is in the Employer’s headquarters in
Fullerton, California; and Tim Henion, whose office is in Mich-
igan. Blazek testified that “ultimately” he was the chief spokes-
person, but Henion and Feller also spoke for the Employer in
their areas of expertise.
The Union’s bargaining committee was headed by Henne.
Also in attendance was Michael Grindle, a union business repre-
sentative, Jeff Stewart, chief steward, and Paul Waters, shop
steward.
The June 4 meeting took place at the Union’s offices in Down-
ers Grove, Illinois, outside of Chicago. The meeting began with
Blazek making an opening statement referencing the vast
changes in the industry, and the changes to the Employer’s and
its partner Avaya’s businesses. Blazek told the group that based
on the changes in the business,
the contract we have doesn’t make sense and its gotta change,
its 80 pages, I’m gonna continue to reduce my management,
1 I note that in addition to oral testimony at the hearing, in recon-
structing events at the bargaining table I have relied upon the contempo-
raneous and extensive bargaining notes taken by Union Representative
Grindle and offered into evidence (some by the General Counsel and oth-
ers by the Respondent). In addition, notes from one day of the bargaining
taken by Shop Steward Waters were also introduced into evidence. I
we need to start fresh and that’s what we are gonna propose to
you folks. Avaya's revenue has declined 30%, 4.5 billion rev-
enue, 6 billion in debt coming due, hard pressed to refinance.
If they have to okay it, if they can't refinance, none of its good.
All of that leads to we are in a trouble as a business, employees
are in trouble too, we are in this together.1
Blazek went on to answer questions posed by Henne, and to
discuss in more detail the financial situation of the Employer in-
cluding the losses in recent years and a change in ownership that
left the Employer owned by a “small private equity partner, sil-
ver oak. Myself, Tim, couple other managers all have a piece.”
After this discussion, the Employer provided the Union with
its initial bargaining proposal, with Blazek stating:
so back to opening comments, look at the agreement we've got,
still has GTE references, 80 page agreement for my size com-
pany didn't make sense, we wrote this for simplification, flexi-
bility to meet customer needs, strongly feel current agreement
limits us.
Blazek told the Union, that he was “not sure how you wanna
go through this, this is dramatically different from what we have
today, we did use the existing agreement as the basis, a lot of this
[is] skinnying this language down.” Henne noted immediately
that the Employer had “increased management rights.” Blazek
responded, “absolutely need to manage the business.” The par-
ties broke to allow the Union to read through the proposal.
The Employer’s 2015 proposal was, by any measure, a drastic
revision of the structure, premises, and substance of the previous
contract in numerous ways adverse to the protections enjoyed by
employees under the existing labor agreement. Blazek agreed
that the changes sought by the Employer “went beyond the sort
of changes . . . requested in prior contracts.” The Union did not
learn of the Employer’s plan to propose such significant changes
to the collective-bargaining relationship until this June 4 meet-
ing. Below I summarize some (but not all) of the chief proposed
changes.
Articles 1 & 2, including broad zipper clause, management
rights, and ability of the Employer to have bargaining unit
work performed by nonunit individuals (supervisors, nonunit
employees, subcontracting)
The management rights clause (which was two sentences in
the 2012 Agreement (see, 2012 Agreement, art. 1)), was vastly
expanded in the 2015 proposal (art. 2) to a page and a half, in
favor of the Employer’s rights. The proposal is sweeping in its
scope, providing the Employer with unfettered discretion over
nearly every function of administration in the facility, “in-
clud[ing], but . . . not limited to, the following”:
To plan, direct, control and determine all operations; to deter-
mine the Company's objectives and policies, and to determine
accept these notes as evidence—albeit not necessarily exclusive or con-
clusive evidence—of what was stated at the bargaining table and of what
transpired in bargaining. Allis-Chalmers Mfg. Co., 179 NLRB 1, 2
(1969); NLRB v. Tex-Tan, Inc., 318 F.2d 472, 483 (5th Cir. 1963). All
bargaining notes were offered into evidence without objection.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
and set all standards of service; to determine what services and
products, if any, shall be provided, produced, serviced or dis-
tributed, and to determine what services and duties are per-
formed and provided by employees and where they shall be
performed, produced, serviced or distributed; to supervise and
direct employees and their activities as related to the conduct
of Company business or affairs; to establish the qualifications
and conditions for employment and to select and employ em-
ployees; to schedule and assign work (including overtime
work) and to establish, schedule and change the hours of work
(including overtime); to assign or to transfer employees within
the Company; to establish and enforce work and productivity
standards and, from time to time, to change those standards; to
lay off or relieve employees due to lack of work or funds or for
other reasons; to determine the methods, means, organization
and number of personnel by which its operations and services
shall be conducted or provided; to make and enforce reasona-
ble rules and regulations regarding the conduct of employees;
to promote and transfer employees; to discipline, demote, sus-
pend and discharge employees for cause (probationary em-
ployees without cause); to change, relocate, modify or elimi-
nate existing programs, services, methods, equipment or facil-
ities or close its business or any part thereof; to determine
whether services or goods are to be provided or produced by
employees covered by this Agreement or by other non-bargain-
ing unit employees (including supervisors and temporaries)
and non-employees (including contractors) not covered by this
Agreement; to hire all employees and, subject to provisions of
law, to determine their qualifications, and the conditions for
their continued employment, or their dismissal or demotion,
and to evaluate, promote and transfer all such employees; to
determine the duties, responsibilities, and assignment of em-
ployees, both in the bargaining unit and outside the bargaining
unit. The foregoing enumeration of management's rights shall
not be deemed all-inclusive so as to exclude other rights of
management not specifically delineated in this Section.
The provision goes on to state that the Employer’s “powers . .
. shall be limited only by the specific and express terms of this
Agreement,” and that “the Company has the right to manage its
business and direct its employees as in its judgment it deems is
proper, unless restricted by the express language of this Agree-
ment,” and that “the exercise of such right or action taken by the
Company which is not specifically and clearly limited by the ex-
press terms of this Agreement, cannot be the subject of the griev-
ance and/or arbitration procedures under this Agreement.”
The Employer’s proposal transferred what had been a subcon-
tracting clause of the 2012 Agreement (see art. 3 of 2012 Agree-
ment) to the expanded management rights article (art. 2) and spe-
cifically to section 2.3. This subsection of the Employer’s pro-
posal provided that the Employer could freely assign bargaining
unit work to anyone including nonemployees:
Managers, supervisors, other non-unit employees (including,
2 I note that throughout negotiations the parties referred to this as a
proposed subcontracting clause. However, the clause, on its face, is
much broader than just subcontracting.
but not limited to contingent workers), and other non-employ-
ees shall be permitted to perform any work (including work
otherwise performed by employees in the bargaining unit) for
the operation of the Company's business.2
Blazek readily agreed that under this proposal there would be
no limit on the Employer’s ability to have nonbargaining unit
people do work that had been done by the bargaining unit in the
past.
The new proposed zipper clause replaced the one-sentence
version that was in article 2 of the 2012 Agreement and was now
expanded and placed as section 4 to a new article 1 “Scope and
Purpose of Agreement.” Proposed section 1.4 stated:
The Union and the Company [agree] that during the negotia-
tions which resulted in this Agreement, each had the unlimited
right and opportunity to make demands and proposals with re-
spect to any subject or matter not removed by law from the area
of collective bargaining and that the understandings and agree-
ments arrived at between the parties after due exercise of that
right and opportunity are set forth in the Agreement. There-
fore, the Company and the Union, for the life of this Agree-
ment, each voluntarily and unqualifiedly waives the right, and
each agrees that the other shall not be obligated to bargain col-
lectively with respect to any subject or matter not specifically
referred to or covered by this Agreement. No agreement, alter-
ation, understanding, variation, waiver, or modification of any
of the terms or conditions or covenants contained herein shall
be binding upon the parties hereto unless made and executed in
writing between the parties and made part of this Agreement.
This Agreement supersedes all previous agreements, including
all verbal or written supplemental agreements and all past
agreements or practices.
These proposals, coupled with the deletion of the restriction
in the 2012 Agreement (art. 3) on contracting out bargaining unit
work “if it will directly cause the layoffs of regular employees,”
would, if adopted, provide the Employer with unlimited discre-
tion in determining whether bargaining unit work was ever per-
formed by the bargaining unit, or whether it was to be contracted
out, performed by nonunit employees, or performed by managers
or supervisors.
Article 4: No strike-no lockout provision
The No Strike clause proposed by the Employer was much
expanded from the 2012 Agreement’s clause on the subject. It
greatly expanded the scope of prohibited activity for employees,
including prohibiting handbilling or “protest regardless of the
reason for doing so” and authorized “immediate discharge or
other discipline, at the discretion of the Company” as the penalty
for an employee engaged in an activity prohibited by the clause,
with limits to the basis on which the penalty could be challenged
through the grievance-arbitration procedure.
As originally proposed, in the event of a violation of the No-
Strike clause, the provision stated that there would be no
ALTURA COMMUNICATION SOLUTIONS, LLC 13
“negotiation or discussion on the subject matter(s) allegedly
causing the violation until after the violation has ceased.” In
other words, as initially proposed, the proposed contract pro-
vided for a waiver of the duty to bargain over the underlying em-
ployment dispute for the duration of a no-strike violation.
The provision’s prohibition on lockouts is conditioned on em-
ployee and union compliance with the No-Strike provision. Fi-
nally, proposed section 4.5 states that “[e]ach Union officer, and
each employee who holds a position of officer or steward of the
Union, occupies a position of special trust and responsibility in
maintaining and bringing about compliance with the provisions
of this Article,” and requires the Union and its officers and stew-
ards to take certain steps directed toward ensuring employee and
union compliance with this provision.3
Article 5: Grievance and arbitration procedure; article 6 non-
3 The full clause as originally proposed, is set forth here:
ARTICLE 4
NO STRIKE - NO LOCKOUT
Section 4.1. No Strike. The grievance and arbitration procedure set
forth in Article 5 are the exclusive means of resolving any claimed vio-
lation of this Agreement, whether or not a grievance has been filed. Ac-
cordingly, there shall not be (nor shall the Union, its agents, officers,
stewards, representatives, or employees encourage, instigate, promote,
sponsor, engage in or sanction) any strike (including sympathy strike),
picketing, boycott, handbilling, sitdown, stay-in, slowdown, concerted
stoppage of work, concerted refusal to perform overtime, concerted, ab-
normal and unapproved “work to the rule” situation, mass resignations,
mass absenteeism, or any other intentional curtailment, restriction, in-
terruption or interference with operations or work, or protest regardless
of the reason for so doing.
Section 4.2. Penalty. Any employee engaging in activity prohibited by
Section 4.1 or who instigates or gives leadership to such activity, shall
be subject to immediate discharge or other discipline, at the discretion
of the Company. In the event of discipline or discharge, the only matters
which may be made the subject of a grievance is whether or not the
employees actually engaged in such prohibited conduct and whether the
penalty given to all employees in this instance was consistent. The fail-
ure to confer a penalty in any instance is not a waiver of such right in
any other instance nor shall it constitute a precedent of any kind.
Section 4.3. No Negotiations. In the event of a violation of Section 4.1
by employees or the Union, there shall be no negotiation or discussion
on the subject matter(s) allegedly causing the violation until after the
violation has ceased.
Section 4.4. No Lockout. During the term of this Agreement, the Com-
pany will not institute a lockout over a dispute with the Union so long
as there is good faith compliance by the Union with this Article, unless
the Company cannot efficiently operate in whole or in part due to a
breach of Section 4.1.
Section 4.5. Union Official Responsibility. Each Union officer, and
each employee who holds a position of officer or steward of the Union,
occupies a position of special trust and responsibility in maintaining and
bringing about compliance with the provisions of this Article. Accord-
ingly, the Union agrees to notify all Union officers and stewards of their
obligation and responsibility for maintaining compliance with this Ar-
ticle, including their responsibility to abide by the provisions of this Ar-
ticle by remaining at work (that is, those who are employees of the
discrimination
The proposed grievance and arbitration procedure contained
many changes. It introduced a section, 5.2, titled “informal res-
olution,” in which employees were “encouraged” to resolve their
grievances “through informal discussions with their supervi-
sors.” Under this proposed procedure, the union steward, only
“[w]hen specifically requested by an employee[,] . . . may ac-
company the employee (at a mutually agreed time) to assist in
the informal resolution of the grievance.” This originally-pro-
posed section further provides that “[s]uch informal discussions
are not to be construed as part of the grievance procedure.”4
It added numerous procedural requirements—including a
strict time limit for default, applicable only to the Union, and
precise requirements for what must be stated in the grievance.5
In the Employer’s original proposal, the arbitrator’s power is
Company) during any interruption as outlined above. In addition, in the
event of a violation of Section 4.1, the Union agrees to inform its mem-
bers of their obligations under this Agreement and to encourage and
direct them to return to work by all means available under its constitu-
tion, by -laws, and/or otherwise.
4 The text of 5.2 stated:
Section 5.2. Informal Resolution. Employees are encouraged to resolve
through informal discussions with their supervisors any grievances as
defined herein. When specifically requested by an employee, a Union
steward may accompany the employee (at a mutually agreed time) to
assist in the informal resolution of the grievance. Such informal discus-
sions are not to be construed as a part of the grievance procedure.
5 Sec. 5.3 and 5.7 of the grievance-arbitration procedure state:
Within ten (10) working days after any action of the Company giving
rise to a grievance as defined in Section 5.1, the Union must submit
such grievance in writing to the Human Resources Director. Such writ-
ten grievance must include a short statement of the facts (including af-
fected employee(s), dates, locations, and short summary of claim) and
a statement of specific provisions of this Agreement allegedly violated.
Failure to submit a grievance within ten (10) working days after the ac-
tion of the Company giving rise to the grievance will result in the Com-
pany's action being considered final and the grievance will not be eligi-
ble for further consideration under this grievance procedure.
Within ten (10) working days of the submission of a written grievance,
a meeting (in person or by phone or video-conference) will be held be-
tween the HR Director, the Union's representative, the aggrieved em-
ployee(s), and any other necessary attendees. The parties shall make
reasonable attempts to resolve the grievance during the meeting. How-
ever, upon conclusion of the meeting, the Company will be allowed ten
(10) working days to provide an official written response to the griev-
ance. If the Company does not provide a written response within such
time, the grievance shall be deemed denied by the Company and the
Union may proceed as set forth in Section 5.4.
. . . .
Section 5.7. Time Limits. All of the time limits specified in the griev-
ance and /or arbitration procedure shall be jurisdictional and shall be the
conditions . precedent upon which the grievance shall be processed fur-
ther. If any and /or all the time limits are not complied with, the Com-
pany may rightfully and lawfully refuse to process the grievance fur-
ther, and the grievance shall be considered null and void and end then
and there, without either the Union or any allegedly aggrieved team
member being entitled to process the matter further to arbitration or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
limited in numerous ways including mandating “that the arbitra-
tor shall have no power or authority to alter or change any disci-
pline and/or discharge imposed by the Company unless such dis-
cipline is clearly arbitrary.”6
Finally, the Employer’s June 4 proposal removed the language
from the 2012 Agreement stating that “the decision of the arbi-
trator will be final and binding upon the parties,” with no such
requirement or agreement to abide by the arbitration award pro-
vided for in the proposed language.
Related to this were the changes originally proposed in article
6 Non-Discrimination. This Employer proposal permitted em-
ployees to bring a claim for discrimination, retaliation, harass-
ment or other “equal opportunity” claims to arbitration only if
the employee waived his or her right to “pursue any monetary,
equitable, or other relief (including attorney’s fees and costs)
through the filing of any charge of discrimination, lawsuit, or
other legal action of any sort outside the grievance and arbitra-
tion procedures.”
Wages (schedule A attached to Employer’s proposal):
The Employer added a newly created “Wage Philosophy” sec-
tion that articulated the view that more highly skilled employees
were more valuable and more in demand, and thus:
Wage rates for the higher skilled technicians who are in higher
demand should not be limited by the wage rates of the lower
skilled technicians who are in lower demand. Additionally,
differentials in pay are sometimes warranted by market eco-
nomics and differences in performance.
In furtherance of this, the Employer proposed a new two-tier
wage system under which the unit employees (technicians)
would be divided among lower-paid Level A and higher-paid
Level AA technicians. The Employer proposed a new lower
minimum rate for the Level A technicians of $25.66 per hour,
while Level AA technicians would remain (at least) at the previ-
ous agreement’s minimum rate for experienced technicians of
$34.35 per hour. The proposal provided for no general across-
the-board or any other scheduled raises. However, as in the 2012
Agreement, the Employer could provide discretionary wage in-
creases as it saw fit for employees.
The proposal provides that Level A will be the classification
the Employer assigns to “those who have mastered only legacy
voice, messaging, and similar technologies, and are not deemed
qualified to perform work and/or do not perform work at least
one half of their work time in installations, repairs, or MAC or-
ders with higher level technologies without assistance.” Level
otherwise. However, by mutual agreement of both the Company and
the Union, the parties may agree to modify or extend any of the juris-
dictional time limitations specified above in any particular case.
6 Sec. 5.6, as originally proposed, states:
Section 5.6. Authority of and Limitations on the Arbitrator. The sub-
ject matter to be arbitrated shall be limited solely to the interpretation or
application of the provisions of this Agreement. The arbitrator shall
have no authority to amend, add to, subtract from, or delete any of the
language of any provisions of this Agreement, or to establish or change
wages, the wage structure, the job classifications, work methods or the
benefits in this Agreement. The arbitrator's authority shall be expressly
AA was to be the classification given technicians who had mas-
tered higher-skilled technologies and are “deemed qualified to
perform [such] work and do perform work at least one half of
their work time.” Although not stated until the July 30 session,
Henion later told the union negotiators that Level A versus AA
assignment would be based on “skills and ability, their attitude,
their work ethic, any number of things could cause them to be-
come a . . . level A.” Blazek pointed out (in a discussion on July
30) that Level A employees would not automatically move to
Level AA by obtaining the proper certifications because “we
have employees that have bad attitudes, don’t want to do that
work, they aren’t gonna get a raise.” R Exh. 5 at 18; see also R
Exh. 18 at 2-3. Blazek agreed in his testimony that which em-
ployees became a Level AA and whether employees relegated to
Level A received a pay reduction remained “at all times” in the
discretion of the Employer to determine.
Article 8: Continuous service and seniority
Article 8 of the Employer’s proposal changed the basis for de-
termining layoffs (sec. 8.4). The current contract made seniority
the basis for layoffs (unless an employee did not have the mini-
mum skills and abilities necessary for the job). The Employer’s
proposal provided for layoffs to be based on “the judgment of
management as to which skills, certifications, experience, and
abilities are necessary to perform existing and expected future
client work.” Seniority came into play “[o]nly if management,
in its sole discretion, deems two or more employees to be equal
in skills, certifications, experience, and abilities to perform ex-
isting and expected future client work.” Unlike under the current
2012 contract, where failure to provide training opportunities to
an employee would allow the employee to avoid layoff for lack
of skills and abilities, the Employer’s proposal stated that “[a]
lack of training may not be used by an employee or the Union as
an excuse for not having skills, certifications, experience or abil-
ities.”
In section 8.5 (Severance) the Employer proposed a signifi-
cant change to severance. The 2012 Agreement provided for
employee severance in the event of layoff in the amount of one
week per year of service. The Employer’s 2015 proposal limited
this severance to a maximum of 26 weeks. See, section 8.5. In
other words, under the Employer’s proposal, for employees with
26 or more years of service, the severance was capped at 26
weeks’ pay. Given the extensive seniority of the bargaining
unit—approximately 30 of the 52 unit employees listed in the
July 1, 2015 Seniority Update had seniority dates of more than
26 years, and 19 had seniority dates of more than 37 years—this
limited to a decision upon the question of alleged violation of a specific
provision of this Agreement, rather than indirect or implied intent
thereof, and a decision upon any grievance subject to arbitration here-
under shall be in accordance with the terms of this Agreement. The ar-
bitrator shall have no authority or jurisdiction except that given specifi-
cally in this Article, unless special authority and jurisdiction shall be
mutually submitted in a written submission Agreement. Furthermore,
the arbitrator shall have no power or authority to alter or change any
discipline and /or discharge imposed by the Company unless such dis-
cipline is clearly arbitrary.
ALTURA COMMUNICATION SOLUTIONS, LLC 15
was a significant loss to employees, particularly given the pro-
spects for layoffs that Blazek discussed, and the Employer’s un-
willingness to allow seniority to be a factor in layoff decisions.
The Company negotiators told the Union negotiators that 26
weeks maximum severance “was much more to market” and that
more severance “was not reasonable . . . in today’s marketplace.”
In addition, the Employer’s proposal spelled out conditions on
the release that employees must sign in order to receive sever-
ance, including that the employee’s waiver binds the Union and
that any breach of the release results in repayment of all amounts
by the employee and the payment to the Company of reasonable
attorneys’ fees incurred by the Company.
Article 9: Tools
This provision of the proposal removed from the 2012 Agree-
ment’s provision on tools the prohibition on the Employer re-
quiring employees to transport tools and equipment in their pri-
vate vehicles and providing for some payment for mileage for
employees who voluntarily transported tools and equipment in
their private vehicles
Article 10: Hours of work
The Union felt that there was a longstanding past practice of
the Employer providing employees with 40-hour work weeks.
While the Employer did not concede that there was such a prac-
tice, the Employer’s 2015 proposal, in article 10 (Hours of Work
and Overtime), section 1 (Application of this art.), added lan-
guage explicitly disavowing the point, stating that “nothing in
this Agreement shall be construed as a guarantee of hours of
work per shift, per day or per week.” Coupled with the expan-
sive zipper clause in section 1.4 of the Employer’s 2015 pro-
posal, the Union viewed the Employer’s 2015 proposal in section
10.1 as an elimination of any practice of a guaranteed work-
week—or the ability to bargain about it during the term of the
contract.
In addition, section 10.1 stated that:
Nothing in this Article nor Agreement shall be construed to cre-
ate job or work jurisdiction or ownership in any particular
group or classification of employees (inside or outside the bar-
gaining unit) nor to prevent the assignment of employees to
other work on regular or overtime hours or to cause the ineffi-
cient or ineffective use of manpower.
Thus, section 10.1 reinforced the elimination of the concept of
bargaining unit work permitted by section 2.3 of the manage-
ment rights section (see above).
The Employer’s proposal in article 10, also limited (in 10.3)
the circumstances in which overtime pay would be paid, specif-
ically, among other situations, the overtime provisions no longer
provided for overtime (as a sixth day of the week) for absences
for an excused illness or for union business by union business
representatives and stewards. See 2012 Agreement, schedule A,
section 5D(IV), compared to Employer’s 2015 proposal, section
10.3(c). In article 10, the Employer also altered the stand-by
procedures. The Employer omitted standby premium rates from
their proposal on June 4, but in discussion conceded that “there
will be an amount there for that,” suggesting that it would be put
in future proposals.
Article 11: Healthcare
The 2012 Agreement (sec. 9 of schedule A) provided that unit
employees would be offered the same healthcare plan rates of-
fered by the Employer to all nonbargaining unit employees. In
the 2012 Agreement, the Employer reserved the right to change
providers or administrators, and thus, the coverage details. How-
ever, in the 2012 Agreement it committed that notwithstanding
any changes “the Company will continue to provide comparable
comprehensive coverage.”
The Employer’s 2015 proposal removed the promise to main-
tain “comparable comprehensive coverage” and expanded the
reservation of Company rights to provide that:
The Company reserves the right to change insurance policies,
plans, carriers, administrators, providers, benefits, coverages,
deductibles, or co-payments or to self-insure as it deems appro-
priate, provided such changes apply in the same manner to non-
bargaining unit employees.
Thus, the Employer’s proposal reserved to itself the right at
any time during the term of the labor agreement to diminish,
change, or even eliminate healthcare coverage and costs borne
by the employees, as long as such changes apply also to nonunit
employees. At the meeting Blazek confirmed this, telling the
Union: “yeah, there's no obligation to provide healthcare, other
than what's in Obamacare, we have legal, there's nothing in the
agreement to do that. I don't know why we need that in an agree-
ment, we need to be competitive.”
In addition, the Employer’s 2015 proposal moved to remove
the Employer as a guarantor of any benefits—even for the Em-
ployer provided healthcare coverage. The proposal (sec. 11.4)
provided that “[t]he failure of any insurance carrier(s) or plan
administrator(s) to provide any benefit for which it has con-
tracted or is obligated shall result in no liability to the Company,
nor shall such failure be considered a breach by the Company of
any obligation undertaken under this or any other Agreement.”
Finally, the Employer’s 2015 proposal excluded health insurance
disputes from the grievance and arbitration procedure and man-
dated that any such disputes be resolved “in accordance with the
terms and conditions set forth in said policies or plans.”
Article 13: Exclusion of multiple benefits from collective-bar-
gaining agreement and the provision (of some of them) through
the nonbargained Employer handbook
A highly significant change in both the proposed substance
and form of employees’ terms and conditions of employment is
found in the Employer’s 2015 proposal to eliminate multiple
benefits and procedures found in the 2012 Agreement and have
employees obtain benefits from the nonbargained, unilaterally-
created, and unilaterally-maintained employee handbook. Under
the Employer’s proposal, the handbook would become the new
source of terms and conditions for all benefits not provided for
in the collective-bargaining agreement. As Feller told the Union,
“basically all other company benefits [are to be the] same as non-
union, no reason to treat employees differently, we’ve been do-
ing that on all our other benefits.”
The 2012 Agreement provided for a wide array of bargained-
for employee benefits. The Employer’s proposal eliminated
many of these benefits from the proposed labor agreement and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
stated that “Company-provided employee benefits and other
terms and conditions of employment” not referenced in the new
agreement would be provided, if at all, pursuant to the non-ne-
gotiated Employer handbook applicable to nonunit employees.
Article 13 of the Employer’s proposal stated:
To the extent not specifically governed by or referenced in this
Agreement, all other Company-provided employee benefits
and other terms and conditions of employment shall be as pro-
vided in the Altura Communication Solutions Handbook (ef-
fective June 1, 2009), including but not limited to holidays, va-
cations, funeral leave, jury leave, sick leave, Family and Med-
ical Leave Act leave (and similar state and local benefits), and
short term disability (STD) and long term disability (LTD) ben-
efits. The extent, allowances, and terms of such benefits may
be changed for employees covered by this Agreement, pro-
vided the same changes apply to other non-bargaining unit cov-
ered by the general terms of the Handbook. Employees cov-
ered by this Agreement, however, shall not be entitled to profit
sharing or other discretionary bonuses in light of the negotiated
wages and benefits otherwise provided in this Agreement.
Thus, pursuant to this provision, multiple benefits previously
collectively bargained and in the current contract were removed
from the proposed collective-bargaining agreement. Initially,
these included, holidays, vacations, funeral leave, jury leave,
sick leave, Family and Medical Leave Act leave, disability ben-
efits (STD and LTD), grooming and work attire (renamed per-
sonal appearance), drug and alcohol policy and accident policy,
and cell phone policy reimbursement. These were all benefits
and subjects traditionally covered in the parties’ collective-bar-
gaining agreement, and under the Employer’s proposal they were
moved to the Altura handbook.
Other benefits in the 2012 Agreement were eliminated in the
Employer’s proposal and only indirectly or vaguely touched on
by the handbook. These include article 19 of the 2012 Agree-
ment (Disciplinary Action) which required that discipline be in-
itiated within ten days of the incident for which the employee
was being disciplined. This is omitted from the Employer’s pro-
posal and the handbook contains no comparable language. The
2012 Agreement contains (Attachment G) a Fleet Vehicle &
Driving Safety Policy with rules on investigating and reporting
accidents, and provisions setting forth a progressive discipline
policy and penalties for driving violations and accidents. This is
eliminated from the Employer’ 2015 proposal and the handbook
has no such policy but rather, according to Blazek, under the
handbook, the discipline is at the sole discretion of the Company.
The handbook states that it “is not a contact, express or im-
plied,” and “is not intended to and does not create any rights,
contractual or otherwise, between [the Company] and any of its
employees and should not be understood as constituting a Com-
pany representation or commitment to any employee that the pol-
icies will be followed in every case.” The handbook states that
the Company “reserves the right to deviate or depart from, make
exceptions to interpret, modify, and apply any of its policies and
policy provisions (including those in this handbook) as it sees fit
based on particular facts or changing conditions or as it other-
wise determines for any reason or for no reason at all in its sole
judgment.” The handbook states that it “can be changed by
Altura unilaterally at any time.” Blazek stated that “the intent is
everything [in the handbook] appl[ies] to everyone, except if
there is something specific in the contract that supersedes it.”
Henne raised a concern about the items in the handbook chang-
ing during the term of the contract: “Contracts are signed for a
certain time, trying to understand that, can I make an assumption
that that would stay the same, outside of what you said Bob about
legal things[?]” Blazek said, there are “no plans to change it, but
if you ask if there are guarantees that no change, then no. If
something changed business wise, then I would want to be able
to change the handbook.”
The full implications of article 13’s default to the handbook
as the source for terms and conditions of employment are not
fully determinable. article 13 states that the “terms and condi-
tions of employment shall be as provided in the Altura . . . Hand-
book . . . including but not limited to” the array of described ben-
efits. Thus, the scope of the handbook is not described and, dur-
ing the term of the contract, its coverage is potentially “limitless”
given Altura’s unilateral discretion to change the handbook.
Thus, pursuant to article 13, other than terms and conditions of
employment “specifically governed or referenced in this Agree-
ment,” the unilaterally-developed and controlled handbook is the
source of authority, and that document can be changed at will.
Thus, the terms and conditions of employment are a sprawling
and essentially undefinable entity. Indeed, asked (in relation to
the “included-but-not-limited-to” language of article 13 what
other benefits not listed in article 13 fall under its handbook-de-
fault rule, Blazek’s response was candid and revealing: “Oh,
goodness, I don’t know.”
Article 13: Elimination of unit employees’ entitlement to profit-
sharing
As part of article 13, the Employer proposal eliminated any
right of employees to receive profit sharing, even if paid to non-
unit employees.
The 2012 Agreement (schedule A sec. 15) provided that
“[b]argaining unit members shall be included in the same Altura
Profit Sharing Program as nonunion employees for the Plan
years 2012, 2013, and 2014.” The contract also stated that profit
sharing bonuses are paid at the discretion of management.
Article 13 of the Employer’s 2015 proposal excluded unit em-
ployees from profit sharing or other discretionary bonuses that
the Employer might choose to pay to all other employees. article
13 stated this as an exception to the general rule that unit em-
ployees would receive what nonunit employees received based
on the employee handbook:
Employees covered by this Agreement, however, shall not be
entitled to profit sharing or other discretionary bonuses in light
of the negotiated wages and benefits otherwise provided in this
Agreement.
Article 14: Elimination of collectively-bargained training and
performance standards
Article 25 of the 2012 Agreement provided for extensive rules
on training and performance standards. These were not in the
Employer’s 2015 proposal. Instead, article 14 of the Employer’s
proposal, titled “Policies, Rules, Regulations and Performance
Standards,” provided, in relevant part, that
ALTURA COMMUNICATION SOLUTIONS, LLC 17
All employees must comply with all policies, rules, and regu-
lations, and meet performance standards, issued by the Com-
pany. The Company reserves the right to change all policies,
rule, regulations, and performance standards, provided such
does not violate an express term of this Agreement.
Section 12.3: Elimination of the Employer match for 401(k)
contributions and Employer discretion to amend pension plan
unlimited by any collectively-bargained agreement.
With the exception of a pension plan frozen for purposes of
accruals and service in 2003, Altura’s retirement to unit employ-
ees was provided through a Company 401(k) plan. As with the
401(k) provision in the 2012 Agreement, the 2015 401(k) pro-
posal provided that “Altura shall have the sole discretion to ad-
minister and amend the Plan.” However, under the 2012 Agree-
ment, the Employer contributed 50 cents for each $1 of employee
contribution, up 6 percent. This employer match was eliminated
from the Employer’s 2015 proposal.
Blazek told the negotiators that the match was being elimi-
nated to balance out the 3 percent contribution to the IBEW’s
National Electrical Benefit Fund, to which the Employer made
(and would continue to make under the Employer proposal) con-
tributions on behalf of union member employees. Blazek told
the Union that this amounted to a “dual contribution for Union
personnel versus non-Union, the dual contribution being the
Company 401(k) match as well as our 3 percent contribution into
the NEBF pension fund.”
Article 3: Union representation
This provision was substantially rewritten from the 2012
Agreement. As originally proposed by the Employer, it elimi-
nated union security and converted the unit to open shop, without
regard to whether such is required by the law of the state in which
the employee works.
The provision also contained numerous requirements that the
Union identify union representatives to the Employer as a con-
dition for the Employer having an obligation to deal with them.7
In addition, section 3.4 (later updated to 3.5), limited union
activity, including that non-employee union representatives.
This section provided that nonemployee union representatives
would have access to Company facilities
to meet with a Union steward on his or her non-work time and
in non-work areas, or to carry out such activities as are specifi-
cally provided for in this Agreement only after advising the
Company by telephone or in writing of the matter requiring his
attention and after scheduling a mutually agreeable time and
location so as not to interfere with the business of the Company
or its clients.
Section 15.1: Safety
The 2012 Agreement provided for the Employer to make
7 Sec. 3.3. of this proposal stated:
Notification of Union Representatives. The Union will maintain
(and keep current) with the Company a complete written list of its
officers, business agent(s), stewards and staff representatives (in-
cluding addresses and telephone numbers) who will deal with the
safety provisions, and provided a procedure for the Employer
and employees and Union to follow when an employee notified
the Employer of a safety hazard. The Employer’s 2015 proposal
removed the procedure and stated:
The Company will continue to make reasonable provisions for
the safety of employees during their hours of employment at
the Company. The employees will abide by the health and
safety rules, and promptly inform their supervisor of any per-
ceived health or safety risk. All health and safety equipment
shall be provided by the Company. The Company may imple-
ment, in its sole discretion, safety incentive or bonus programs
which will be subject to change, modification, or revocation at
any time.
Schedule A section 5: Elimination of per diem and replacement
with reimbursement for actual expenses
The Employer’s proposal eliminated per diem travel reim-
bursement, and proposed that:
Expense, mileage and travel reimbursement will be handled in
the same manner for bargaining unit employee as it is for non-
bargaining unit employees under the Company’s policies gov-
erning such, and subject to such changes as may be made in the
future. All per diems are eliminated.
The Employer’s June 4 bargaining proposal was studied by
the Union during a break in negotiations. After the break, the
parties reconvened. Henne told the Employer, “well it is very
apparent you are looking for some drastic changes in your con-
tract with this local. I don't know with the extreme changes
you've come with to determine how to even give you a counter.”
After a couple of questions, Henne asked the Employer to “walk
us through” the proposal. The parties spent the day doing that.
In his testimony, Blazek agreed that the parties took quite a long
time to go through the Employer’s proposal because of the major
changes the Employer was seeking. The parties broke with the
anticipation that arrangement would be made for a conference
call between the parties the following Thursday June 11.
June 11 conference call
The conference call discussed at the June 4 meeting took place
on June 11. Henne, Waters, and Grindle participated for the Un-
ion. The Employer was represented by Blazek, Feller, and He-
nion.
Just prior to the call, Henne sent the Employer a letter seeking
a redlined version of the Employer’s proposals that would show
the proposed changes compared to the existing contract. Henne
told the Company that “[t]he proposal you provided the Union
has so many changes that, as a practical matter, it is impossible
to determine exactly what contract changes you are seeking. It
is unreasonable to demand that the Union respond to a proposal
that does not show what it seeks to change, and what it is
Company. The Company shall be free to refuse to deal with any
purported Union representative for whom the Company has not a
received written notification from the Union President or Secretary
confirming such individual's status as an official Union representa-
tive authorized to deal with the Company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
retaining, from the expired contract.”
Feller told Henne in response that because of the extensive
restructuring of the agreement, a redline version comparing the
new proposal with the current contract would not be helpful.
Henne suggested another conference call again before the meet-
ings in Arizona (scheduled for June 23–25), but Blazek declined,
responding, “my idea is to [g]et you the red line document, be-
cause honestly what we’ve presented is where we need to go so
we don’t need to set up a standing call at this moment.”
Henne told Blazek, “the sooner you can get me that document,
the sooner I can give you some verbal feedback as to where we
want to go with this and where we can’t go with some of the
things.” The redline document was not provided.
June 23–25 bargaining in Phoenix
The parties met again on June 23, in Phoenix, Arizona. The
Union representatives were Henne, Grindle, and Stewart. The
Employer representatives were Blazek, Feller, and Henion.
The Employer provided requested financial information, pur-
suant to a nondisclosure agreement.
Henne testified that “[d]ue to the fact that we hadn’t received
a redline version from the Company, we went through the con-
tract line by line trying to understand the Company’s intent of all
the changes to the current contract.”
Many issues were discussed that day. In particular, the dis-
cussion of the Employer’s proposal for discretion to layoff and
to reclassify employees was pointed. The Employer negotiators
argued that they wanted discretion to determine who kept their
jobs, and at what level pay, based on management’s perception
of skills and ability, and motivation, not seniority. Henion
agreed that under the Employer’s proposal, the Company had
wide discretion on who to terminate. Henion made clear that this
determination could involve more than whether an employee had
the necessary certifications for the work. Henion told the Union,
“You can have all the skills and not do the work.” He said, “not
everybody is productive.” Henion told the Union that even if an
employee had the skills and abilities, their wage and job classi-
fication level could be reduced due to work performance and at-
titude. Feller gave the example of an employee who had multiple
certifications but never got the work done and someone else had
to be sent to perform the work. Henne responded saying, “so in
other words if you didn’t like an employee you could just get rid
of em.” The Company made clear that their discretion was tied
to their perception of employees’ attitude toward work, not just
their certifications, or their formal skills and abilities. Henion
said that just because someone passes a certification or other test,
“I don’t know that that helps my situation, because he doesn’t
want to do new work.” Henion pointed out that under the current
contract, if he terminated the employee, “you’re gonna grieve
that, and what’s it gonna cost to do that.” Blazek summed up:
“so what we're proposing is not I don't like you, in the event
there's no work in that area, it's based on skills first, experience,
certs, and abilities. 4 criteria, determined by management. I need
to run the business based on the market. And yes a self-moti-
vat[ion] is a better employee.” As he put it later in the day, the
proposal gave management discretion to consider “capabilities
and motivation.” Henion explained that employees could be
shifted under the new two-tier technician scale between Level A
and AA based on Company discretion at any time. The Em-
ployer negotiators expressed concern that some employees were
unable and/or unwilling to learn new updated skills. If the tradi-
tional work these employees performed continued to decline,
there would be no work for them and, without regard to seniority,
they should be the first laid off. Henne understood from the dis-
cussion that under the Company’s proposal employees could be
reduced from AA to A for “[a]lmost any reason.” Management’s
discretion was “unlimited.”
There was discussion about many other aspects of the Em-
ployer’s proposal. Henne pointed out that some policies under
the current contract that the Employer proposed (in art.13) to
have covered by the handbook, were not mentioned in the hand-
book. Feller agreed that some items—such as a cell phone reim-
bursement that the Employer paid for all employees, and was
amenable to paying—were not in the handbook. But the Com-
pany wanted the flexibility to make changes without constraint.
As Henion put it, “what we’re saying is we don’t want the policy
in there. Almost everyone in the company has some sort of re-
imbursement. If we get to a place where we don’t reimburse and
he [Blazek] cuts it out for everyone, we don’t want it in the
book.” Blazek added that cellphone reimbursement rates “are
gonna go down, that’s why I don’t want to put it in there.” When
Henne suggested that having cell phone reimbursement language
in the handbook would help the Company, Henion responded, “I
don’t need it.”
The Union presented its proposal the morning of June 24. The
Union’s proposal was based on the current contract and struck
through provisions it was proposing to delete and bolded and un-
derlined new proposals. The Union proposed a three-year con-
tact, no general wage increase but proposed keeping the mini-
mum wage rate at the $34.35 for all long-term employees with
management, at its discretion, being able to give additional in-
creases to individual employees. There were some changes to
premium pay for employees designated to be working as fore-
men or sub-foremen, and standby premiums, and a change in fu-
neral leave pay. The Union proposed an increase in cell phone
subsidy for employees who agreed to access Company applica-
tions for business purposes through their personal cell phone.
Most significantly in light of the Employer’s proposal, the Union
proposed deleting and “refer[ing] to Employee Handbook,”
some of the benefits that were in the 2012 Agreement regarding
FMLA Leave, profit-sharing, customer referral program,
paycheck distribution, and Fleet Vehicle and Driving Policy (in-
volving policy on accidents and discipline for accidents), drug
and alcohol policy, grooming and work attire. However, the Un-
ion wanted to be provided 30 days’ notice of any change in the
handbook. The Union offered an expanded (but not the extent
of the Employer’s proposal) version of the management rights
clause but deleted the zipper clause thus retaining rights to bar-
gain during the term of the contract. The Union proposed to
adopt significant portions of the Employer proposed grievance-
arbitration procedure, streamlining the procedure, but main-
tained the language that arbitration was “final and binding.”
In response, the Employer suggested, in essence, that the Un-
ion’s proposal was too similar to the previous contract. Blazek
said the Company would look at the Union’s proposal but “for
the most part we have to make some changes.” Blazek told the
ALTURA COMMUNICATION SOLUTIONS, LLC 19
Union, “somehow we gotta get to where the employees are all
treated equally,” by which he meant unit and nonunit employees.
The parties continued their discussions on June 24 and June
25. At some point the Employer suggested that it was looking to
demote roughly 14 of the technicians to Level A under their new
proposal. However, the Employer did not say at this time how
many of those 14 would have their pay reduced or who the indi-
viduals would be.
July 21–22 bargaining in Phoenix
At the end of the June 25 meeting, Henne asked for additional
dates to meet in July. Through subsequent email exchanges (be-
tween June 26 and July 1) the parties agreed to meet July 21 and
July 22. As referenced above, typically the parties rotated meet-
ing rotations East (near Chicago) and West. However, the pre-
viously-scheduled sessions were already set up, and the Union
agreed to go back to Phoenix for this add-on session.
On July 2, Feller emailed to Henne a “seniority listing” that
identified which employees the Employer wanted to make A em-
ployees and which would be AA, along with associated rates of
pay. The document showed 16 employees moved to A, with the
remainder listed as AA. Seven of those designated as Level A
were to have their pay grade reduced to $25.66 per hour. The
remaining nine Level A employees remained at $34.35 per hour
(minimum).
Prior to the July 21 meeting, the Employer emailed the Union
the Second Company Proposal. The proposal, still without red-
line changes, even from its first proposal,8 contains only a few
significant changes from the Employer’s first proposal.
Article 4: Language added that the No-Strike No Lockout pro-
vision “will not be applied to punish employees in situations
where [ ] a picket line is initiated by another labor union not
affiliated with the Union in which there is a good faith safety
concern; however, in the event that reasonable measures are
taken to assure the safety of the employee, the employee shall
report or return to work.”
Article 5: Language added that the informal employee/super-
visor pre-grievance discussions “shall not in and of themselves
be considered precedent setting.” In addition, the time for the
Union to file a grievance after an event and the time for the
Company to respond was changed from 10 to 15 working days.
Article 6: The Company removed from its “Non Discrimina-
tion” article the language requiring an employee to waive the
right to go pursue a claim outside the grievance-arbitration pro-
cedure if the employee first pursues the claim in the grievance-
8 The Respondent claims on brief (R. Br. at 11) that it provided a
“redline and clean versions” of this document to the Union, but the record
does not establish that. The copy admitted into evidence (Joint Exhibit
5) contains no markings designating how it is differs from the Com-
pany’s first proposal.
9 The Union proposed the following management-rights clause in
Sec. 2.1
The right of Management in the operation of its business is vested and
determine all operations; to determine the Company's objectives and
solely and exclusively in the Company and is unlimited, to plan, direct,
arbitration procedure. It left a more traditional non-discrimina-
tion clause providing that the Company and Union would com-
ply with “all applicable laws respecting equal employment op-
portunity” and that the Union agreed to “cooperate fully” with
the Company in efforts to comply with executive orders and
federal, state, or local legislation affecting equal employment.
Article 9: Under the Tools provision, the Company added that
“Employees required to use their personal vehicle for other
than normal commuting costs shall be reimbursed according to
the terms of the Company’s travel policy, including reimburse-
ment at the approved rate for mileage expenses established by
the Internal Revenue Service.”
Section 15.1 Safety. In this article the Company added in the
procedure for handling safety complaints that was in the 2012
Agreement but had been omitted from the Company’s initial
proposal.
The parties met for bargaining on July 21 in Phoenix. After
some discussion in the morning of the Employer’s proposal, the
Union made a new counterproposal to the Company. In this pro-
posal, the Union acceded to the Employer’s proposed format for
the new contract and abandoned its reliance on the format of the
2012 Agreement.
This counterproposal to the Company’s second proposal fol-
lowed the articles arrangement of the Company proposals and
contained redlining showing where the Union differed from the
Company’s proposal. Substantively, the parties remained apart
on a number of key issues although this Union proposal accepted
many of the provisions advanced by the Employer. (e.g., 3.4
(limitations on non-employee union access to Company prem-
ises and need to advise Company of subject of desired meeting;
most of the grievance-arbitration with the exception of the 5.7
limitations on the authority of arbitrator; and numerous other
provisions.)
The parties remained divided on, among other issues, the zip-
per clause (sec. 1.4); management rights (sec. 2.1—although the
Union proposed what might be called a standard management
rights clause9; supervisors and nonunit employees working and
subcontracting (sec. 2.3); union recognition (sec. 3.1); notifica-
tion of union representatives (sec. 3.3); open shop (sec. 3.5); the
penalties for violation of no-strike no lockout, the refusal to ne-
gotiate during a violation of the clause, and union officials’ re-
sponsibilities during a violation (art.4); the Employer’s proposed
language on the authority of the arbitrator (sec. 5.7); the Em-
ployer’s proposed unwillingness to rely on seniority in layoffs
and the layoff procedure generally (sec. 8.4); on severance pay
control reasonable policies, and to determine and set all reasonable
standards of service; to determine what services and products, if any,
shall be provided, produced, serviced or distributed, and to determine
what services and duties are performed and provided by employees ex-
cept as set forth in the provisions of this Agreement.
The Union retains its rights as the exclusive bargaining representative
as set forth in Article 12 of this Agreement. Moreover, the Company
agrees not to exercise such rights in a manner that violates the National
Labor Relations Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
the Union objected to the requirement of releases, the prohibition
of raising disputes in the grievance-arbitration procedure, and the
cap on severance pay at 26 weeks for employee with more than
26 years’ service (sec. 8.5); on Tools (art.9) the Union accepted
most of the proposal but wanted employees’ use of personal ve-
hicles to be voluntary; on Hours of Work & Overtime (art.10),
the Union accepted most of the Employer’s proposal, but re-
moved the introductory language from section 10.1 stating that
“nothing in this agreement shall be construed as a guarantee of
hours of work per shift, per day or per week,” consistent with the
Union’s view that there was a practice of providing 40 hours
work; The Union also added standby and holiday premium rates
of pay.
In addition, the Union proposal anticipated making a
healthcare and retirement proposal based on inclusion in a
healthcare plan sponsored by the National Electrical Contrac-
tors’ Association (NECA), something the Employer had sug-
gested it would look at, while at the same time casting doubt on
its feasibility (The parties had considered it in past negotiations.)
The Union put its wage proposal in article 13, and proposed
holding minimum wage rates the same, while giving manage-
ment discretion to give additional individual raises. The Union
made proposals in this article for travel, reimbursement, mileage
and expense, premium pay, holidays, vacation, funeral leave, ad-
verse weather, sick time allowance, cell phone policy, and back-
ground checks to remain in the labor agreement and not, as pro-
posed by the Employer, be relegated to the unilaterally main-
tained handbook. On performance standards (art.14) the Union
agreed to most of the Employer’s language but limited the Em-
ployer’s power to “reasonable” rules and performance standards.
The Union proposed new language on assignments and reporting
centers that provided rules and guidelines for geographic assign-
ments given to employees. Finally, the Union proposed a tradi-
tional union security provision, consistent with its rejection of
open shop.
Prior to breaking on July 22, around lunchtime, the Employer
provided its third proposal, responding to the Union’s proposal
from July 21. The parties briefly went through it before breaking
to return home.
Other than some minor wording changes in a few portions of
the proposed agreement, the Employer maintained its positions
on all substantive provisions, including management rights, zip-
per clause, unlimited subcontracting, supervisors working, and
nonunit performance of unit work, open shop, healthcare, retire-
ment, most of no-strike/no lockout (see changes below), griev-
ance-arbitration, except for a minor language change (it deleted
“in and of themselves” in 5.2), seniority and continuous service
(see changes below), severance, hours of work (changes to
standby pay discussed below), requirement that employees may
be required to use their personal cars (with reimbursement to be
based on IRS rates instead of “the Company travel policy”). It
retained discretion to change rules, procedures, and performance
standards (see agreement to notice below). The Employer fully
maintained its plan (art.13) to move many major benefits to the
unilaterally maintained Company handbook. The chief changes
are listed here:
The Employer agreed to recognition clause proposed by the
Union (Section 3.1) and deleted the specification that the Union
would designate two union stewards, but maintained the need
for the Union to register in writing the stewards with the Com-
pany in order for the Employer to have an obligation to deal
with them, and the need for non-employee union representa-
tives seeking access to the facility to meet with a steward or to
carry out other representational duties to “advise” the Company
“of the matter requiring his attention” and to schedule a mutu-
ally agreeable time and location for the visit.
The Employer proposed deleting 4.3, the prohibition on nego-
tiations during the violation of the no-strike clause by employ-
ees or the union. However, it limited still further its concomi-
tant “no lockout” promise (Section 4.4) by making it contingent
not just on “good faith compliance” with the “no strike” clause
by the Union—but now, in deleting the reference to the Un-
ion—it was contingent on “good faith compliance” generally,
which would mean the “no lockout” provision was contingent
on employee compliance with the no-strike clause as well.
In Section 8.4, governing layoffs, the new proposal provided
that—unless impractical because of “emergency circum-
stances”—the Employer would provide notice to the Union of
five business days before implementing a layoff, including
providing a seniority list to the Union identifying those slated
for layoff.
As it had previously promised, the Employer added standby
rates of pay into Section 10.6, at the same rates as were pro-
vided in the 2012 Agreement, and which were proposed by the
Union.
As to Article 14, “policies, rules, regulations and performance
standards,” the Employer agreed that the provision should ap-
ply to “reasonable” rules and performance standards, but con-
tinued to “reserve[ ] the right to change all policies, rules, reg-
ulations, and performance standards” as long as the change did
not violate the “express terms of the Agreement.” The Em-
ployer added language indicating that it “will provide 7 calen-
dar days notice of any such change.”
In Article 15, the Employer agreed with the Union’s proposed
language that “No employee will be directed by management
to work under unsafe conditions or in an unsafe manner” and
agreed to provide notice—7 days instead of the 10 proposed by
Union.
July 28–30 bargaining in Downers Grove; proposals back and
forth, and the Employer’s LBF offer
The parties next met for bargaining on July 28, in Downers
Grove, Illinois. The Union offered a counterproposal to Com-
pany Proposal 3. The Union’s significant movement included:
The Union agreed to the Employer’s language in Article 1 Sec-
tion 3.
The Union agreed to a standard zipper clause by accepting the
first sentence of the Company’s proposal for Article 1 Section
4, while continuing to reject the more expansive subsequent
sentences proposed by the Company.
The Union agreed to the Employer’s management rights
ALTURA COMMUNICATION SOLUTIONS, LLC 21
subsection in 2.2.10
The Union agreed to the Employer’s provision 2.4 (“No
Waiver of Rights) provision, in full.
The Union agreed to the Employer’s provision 3.3 (renum-
bered 3.4 in the Union’s proposal), concerning notification to
the Company of a list of all its representatives, including agree-
ment that the Company “shall be free to refuse to deal with
any” Union representative as to whom the required written no-
tification has not been provided to the Company.
In Article 4, “No Strike-No Lockout,” the Union agreed to the
Employer’s provision 4.2., giving the Company discretion to
mete out “immediate discharge or other discipline” to an em-
ployee engaging in a violation of 4.1 with limited applicability
of the grievance-arbitration procedure, and agreed to the Com-
pany’s proposal on the conditional “no-lockout” provision in
4.4, and agreed to the Company’s proposal in 4.5 specifying
the Union agents’ extensive responsibilities with regard to the
no-strike clause. In accepting these provisions, the Union
struck some of the expansive definition of a strike (including
such measures as “handbilling” and “protest regardless of the
reason”) but the no-strike clause proposed by the Union pro-
hibited “any strike (including sympathy strike).” Other than
the expansive definition of strike proposed by the Company,
the Union accepted Article 4 as proposed by the Company in
full.
In Article 5, grievance-arbitration, for the first time, the Union
accepted most of the extensive limitations on the arbitrator’s
authority proposed by the Employer. With this movement, the
only difference between the parties for the entire grievance-ar-
bitration article was one sentence, the Employer’s proposal in
5.7 that “Furthermore, the arbitrator shall have no power or au-
thority to alter or change any discipline and/or discharge im-
posed by the Company unless such discipline is clearly arbi-
trary.”
In Article 8, the Union moved toward but did not fully accept
the Employer’s removal of seniority as a basis for layoffs.
However, the Union agreed for the first time that—due to lack
of work—layoffs could be based on “seniority, skills, certifica-
tions, experience, and abilities of the employees,” thus relegat-
ing seniority to one among many criteria, as opposed to the
chief criteria, as it was under the 2012 Agreement and in earlier
Union proposals.
In 8.5, the Union continued to oppose the limitation of 26
weeks severance pay for employees with more than 26 years of
service. It also continued to oppose the Employer’s demand
for a broad waiver binding the Union and the employee from
any arbitration or action related to employment as a condition
10 Sec. 2.2, proposed by the Company and accepted by the Union in
this July 28 counterproposal stated:
Section 2.2. Administration. It is recognized that the Company has
the right to manage its business and direct its employees as in its
judgment it deems is proper, unless restricted by the express
of receiving severance.
In Article 9, the Union moved toward the Employer’s lan-
guage, accepting all of the Company’s outstanding proposal,
except for striking the words “accurate and truthful” from the
provision’s requirement that reimbursement be based on ex-
pense reporting documentation, a minor language dispute that
was bridged in these July meetings.
In Article 10 the Union continued to reject the Employer lan-
guage that “nothing in this Agreement shall be construed as a
guarantee of hours of work per shift per day or per week.” The
remainder of Article 10 was not at issue, with the exception that
the Union increased its demand on standby pay, and added new
language defining a workday, and when a weekday rate was
applicable, and when the weekend rate was applicable.
In Article 11, the Union continued, as it had in its previous pro-
posal, to state that the Employer’s healthcare proposal would
be countered when the Union received the NECA benefit pro-
posal it was still trying to secure from the NECA fund. How-
ever, while still waiting to receive the NECA benefit proposal
as an alternative to Company-sponsored healthcare, the Union
made a proposal countering the Employer’s healthcare pro-
posal. The Union essentially proposed the existing healthcare
agreement, which provided that bargaining unit employees’
coverage would be the same as nonbargaining unit coverage
but added a provision that Company contributions to the cost
of plans will be the same for each employee regardless of plan
selected. The Union also continued to propose that while the
Company could change the plan during the contract, it would
continue to provide “comparable comprehensive coverage,
“and requested 30 days advance notice of any changes to the
insurance program.
As to Article 12, the Union continued to seek the 401(k) match
that existed under the current contract that the Employer pro-
posed to eliminate.
The Union changed its position on wages—now seeking to in-
crease the established minimum wage rate from $34.35 to
$35.38 but continued to maintain the pre-existing Employer
discretion to increase wages for individuals.
The Union agreed for the first time with the Employer’s pro-
posal that “Employees covered by this agreement, however,
shall not be entitled to profit sharing or other discretionary bo-
nuses in light of the negotiated wage and benefits other pro-
vided in this Agreement.”
The Union maintained its position of having the travel, ex-
pense, holidays, vacation, funeral leave, adverse weather, sick
time, cell phone, and background check benefits/policies in the
collective-bargaining agreement, and not have these benefits
language of this Agreement. Accordingly, the exercise of such right
or action taken by the Company which is not specifically and
clearly limited by the express terms of this Agreement, cannot be
the subject of the grievance and/or arbitration procedures under this
Agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
governed by whatever was applicable to the unilaterally devel-
oped employee handbook.
The Union eliminated the “climbing premium” that had been
in its previous proposal.
The Union agreed with the Employer’s proposal on Article 14
(Policies, Rules, Regulations and Performance Standards), giv-
ing the Company the right to make reasonable such rules, and
to change them. With this proposal, the only difference in the
Union and Company’s position on Article 14 was that the Un-
ion was proposing the Company provide ten business days no-
tice of changes in rules, while the Company was proposing to
provide 7 calendar days notice.
The Union accepted the Employer’s Article 15 General Provi-
sions with the exception of Section 15.7, which provided that
all benefits and obligations under the agreement terminated and
“shall not survive” upon termination of the Agreement. The
Union rejected this provision.
Finally, in this proposal of July 28, the Union removed all of
its language on assignments that had been in its earlier proposal
and that had been rejected by the Employer, thus giving the
Employer new discretion over the assignment of employees.
At the July 28–30 meetings the parties discussed the Union’s
proposal. With the contract expiration looming, there was a
flurry of proposals at these late July sessions. The Employer and
the Union each made two additional proposals until the morning
of July 30, when the Employer suddenly announced that “we
have kind of a last best and final offer.”
In the two proposals made by the Union during this period, the
Union made movement on some key issues. It accepted the Em-
ployer’s zipper clause proposal (art. 1, sec. 4). It moved dramat-
ically closer to the Employer on 2.1 (Management Rights Re-
served), setting the stage for agreement on that language in the
Employer’s July 30 LBF offer. The Union accepted the Em-
ployer’s language on layoffs—removing seniority as a factor
(unless in management’s discretion everything else was equal)—
in layoffs. As far as severance there were some language in dis-
pute, and the Union accepted the 26-week cap, however, it added
the condition that the “[26-week] maximum shall not apply to
any employee laid off outside of seniority.” The Union reduced
its minimum wage demand to the current minimum wage,
$34.35, retreating from its short-lived effort to raise that, but put
a “TBD” placeholder as a provision for possible future across-
the-board contractual raises. The Union reduced its standby pre-
mium proposal to that existing in the current agreement. The
Union accepted the Employer’s refusal to continue providing an
employer match for the 401(k). It accepted the Employer’s de-
mand to move an array of benefits to the handbook, but resisted
language that would state that the Employer had the right to
change these benefits.
As of the Employer’s “Last Best and Final” proposal (and I
am condensing here—some of these changes were first made in
the Company’s fourth or fifth proposals exchanged between July
28–30, and not for the first time in its LBF offer of July 30), the
Employer’s chief move toward the Union was to withdraw its
open shop and accept the Union’s effort to maintain union
security (July 28 proposal). In addition, the Employer removed
the language in 5.7 expressly prohibiting the arbitrator from
changing any discipline or discharge imposed unless the disci-
pline was clearly arbitrary (although other language in the pro-
vision continued to limit the arbitrator’s authority). The Em-
ployer also increased (on June 29) its proposal on minimum pay
for the proposed second tier technicians from $25.66 to $28.84,
i.e., the proposed pay reduction was $5.51 per hour rather than
$8.69 per hour. The Employer provided a side letter that grand-
fathered technicians employed prior to 1986 with five weeks of
vacation—the handbook to which the Company proposed mov-
ing employees’ vacation benefit did not provide for five weeks
of vacation for any employees, although under the 2012 Agree-
ment, longtime employees were eligible for five weeks of vaca-
tion. In its LBF offer of July 30, the Company removed a few of
the explicit prohibitions listed in 2.1 (Management Rights Re-
served) and thereby bridged the remaining difference in 2.1 with
the Union. The Employer accepted the definition of a workday
and weekend proposed by the Union in 10.6. Further, in its July
29 proposal, the Employer added cell phone reimbursement to
its demand in schedule A section 5 of items to be handled by
reimbursement on same basis for unit and nonunit employees
and subject to change at any time. There were other changes, but
they were relatively minimal in impact.
Thus, as of this “Last Best and Final,” there had been signifi-
cant movement—on brief (R. Br. at 1) the Employer asserts that
the new agreement was 90 percent agreed to—although it cannot
be seriously denied that the movement of significance was to-
ward the Company’s positions. The major areas still in dispute
at this point were the Employer’s demand for the right for unlim-
ited discretion in nonunit individuals performing unit work; in-
troduction of the two-tier wage system with pay reduction for
certain employees designated as Level A technicians versus the
Union’s demand to retain one job classification at current mini-
mum rate of pay with the Union holding out the possibility of
proposing a TBD future across-the-board wage increase; the Em-
ployer’s demand (art.13) to have unilateral right to change ben-
efits in the handbook as it changed them for nonunit employees
throughout the term of the contract; section 8.5, the 26 week cap
on severance for employees laid off outside of seniority; and a
difference over whether the Union was bound by a waiver signed
by employees to receive severance pay; article 4, a difference
over how language limiting the broad proposed no-strike clause
to legal limits should read; section 10.1, dispute over the Union’s
demand to eliminate proposed language that stated that nothing
in the agreement shall be construed as a guarantee of work; arti-
cle 11, the Union continued to seek a guarantee that health-care
contributions would remain the same for each employee and that
comprehensive healthcare comparable to what was currently in
place would remain for the term of the agreement and that the
Employer would not have unilateral right to eliminate or dimin-
ish coverage.
The Employer’s LBF offer, described above, came about sud-
denly the morning of July 30. Feller announced that the Com-
pany had “kind of” a LBF offer. The Union reviewed it and
Henne testified that he told the Company it was “a little early for
a last, best and final offer and that we felt we could continue
bargaining.” According to Grindle, Henne “responded that he
ALTURA COMMUNICATION SOLUTIONS, LLC 23
didn’t think that we were appropriately [at] a place for a last,
best, final, that he believed that there was still a lot of issues re-
maining and that there was still movement possible on those is-
sues.” Henne was asking “could we set up additional dates for
bargaining.” Blazek and Feller stated that the Company had
moved as far as it was willing to move. There was, however, no
specific claim of impasse at any time during the meeting.
Blazek testified that after “we walked through” the LBF offer,
the Union “grudgingly accepted it . . . and then we had the con-
versation where we pushed them to take this out to ratification
vote.” Blazek testified that “[w]e wanted to see what the mem-
bership was going to say. . . . [W]e wanted to the employees to
look at this.” Henne made a statement, responding to a statement
made by the Company, to “clear up” that “this Local has not
agreed to any of this contract.” Henne made clear that the Union
did not agree with, accept, or endorse the LBF offer—in these
negotiations full proposals had been exchanged by both parties,
but neither party had initialed tentative agreements as to individ-
ual provisions. Nevertheless, although the Union did not endorse
the Company’s proposal, Henne said that the Union “will put [it]
out for a vote since [it] is [a] last best [and] final.” Henne also
told the Company “he wanted further dates to meet.” Henne im-
plied that he expected the proposal would be rejected and that
after the vote he would be contacting the Company about further
bargaining dates. (“This local has not agreed to anything in this
contract, we have not TA’d anything . . . We will put it to a vote,
considering it’s a last, best final, but we will be looking at some
dates once that vote goes through.”)
The parties left negotiations on June 30, with the understand-
ing that Henne would be moving to have the LBF reviewed by
the IBEW and then taken to ratification with results available
within 30 days. Blazek testified, “In my mind and based on past
negotiations with the Union, we thought they were goin to take
it out for a vote.”11
Henne testified that he explained to the Employer’s bargain-
ing team that he “would first have to get the approval of my busi-
ness manager and the international office before I could present
[the LBF offer] to the members for ratification.”12
11 Blazek testified that in past contracts this process had been fol-
lowed. In 2012, while still in disagreement on some articles, at the ex-
piration of the old contract the Employer had given the Union a LBF
offer. The Union put it to ratification. When it was voted down, the
parties subsequently met with a mediator, made some changes—that
Blazek described as rearrangements of the existing economics that did
not cost the Company more—and the proposal was then ratified by the
employees on the next vote.
12 Grindle, Waters, and Blazek, all corroborated, to some extent, that
Henne made reference to the offer going to the International or IBEW
for review. Blazek testified that Henne said that “he needed to review
[the offer] with the IBEW.” Grindle testified that Henne told the Com-
pany this in response to Feller asking Henne “what he meant about not
agreeing to anything.” Grindle testified that Henne told Feller that “he
had to run it by his boss and the IO,” which Grindle identified as the
“international organization, the parent organization” of the Union. Wa-
ters also testified that Henne said that as part of the process of bringing
Extension of the contract to August 12
The next day, July 31, the parties agreed on a 7-day extension
for the expiring labor agreement. Henne followed up the con-
versation with an email to Feller stating:
Per our conversation the Company and the Union verbally
agreed to a 7 day extension that would end at 12 am EST on
August 7, 2015. This will give the Union an opportunity to
review the Compan[y’s] proposal with the appropriate parties.”
Feller responded that “I confirm we agreed to a 1-week exten-
sion of the contract for the Union to review.”
Additionally, on August 3, Feller wrote to Henne referencing
a severance/buyout proposal that had been discussed, but not put
in writing in the July 30 LBF offer. The Employer wanted to
offer the severance/buyout to the seven employees whom it was
proposing to both move to Level A and cut their wages pursuant
to the Company’s wage/reclassification proposals. (The Em-
ployer had discussed moving 16 employees to Level A, but indi-
cated it planned initially to cut wages to the minimum level for
only seven of them.) The severance/buyout would give these
employees the choice of taking the pay cut or receiving sever-
ance at the rate of one week per year of service, which was the
severance available under the 2012 Agreement. Under the Em-
ployer’s new proposals, severance was going to be capped at 26-
weeks. Feller wrote:
Per our discussion during negotiations, the Company agreed to
offer an enhanced severance to Technicians who have been
designated as A and will receive a reduced wage of $28.84
/hour. This one-time offer of enhanced severance will be 1-
week per completed year of service with no maximum (excep-
tion to the 26-week maximum severance). This enhanced sev-
erance will require a signed, executed release created specifi-
cally for this purpose. This offer must be initiated within 30-
days after contract ratification.
Henne replied, questioning whether this “offer was tied to [c]on-
tract negotiations?”
On August 7, there was a further extension through the end of
the day August 12. Henne memorialized it in writing, emailing
Feller:
the offer to ratification it would have to be “okayed” by Paul Wright, the
union president and business manager and the International Union. Alt-
hough Henne might not have been crystal clear, I credit the claim that he
referenced review of the offer by the international union and Wright (if
not in those words) as part of the process of getting to ratification. This
is further corroborated by the July 31 and particularly the August 7–8
email exchanges extending the contract (discussed below) in which
Henne stated (in one instance with Feller acknowledging) that the Union
was reviewing the agreement further. In the August 7 note Henne spe-
cifically said that the proposal was being reviewed with the “Local office
and our International office in Washington D.C.” I note that Waters’
notes of the bargaining session were not extensive, and hence, it is not
surprising that none of this is reflected in those notes. The same cannot
be said for Grindle, who took meticulous notes. However, I found highly
credible his testimony about this exchange, and why it was not in his
notes although he recalls it being said, and I credit his testimony and the
explanation. See Tr. 497–499.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Per our conversation this afternoon the Union is requesting an
extension of the Contract till Wednesday August 12th 11:59
pm EST. This will allow us to continue reviewing the Compa-
nies proposed Last, Best and Final offer with the proper offi-
cials at both our Local office and our International office in
Washington D.C. I understand we agreed to this extension ver-
bally, however please respond to this email at your earliest con-
venience.
Feller responded the next day: “I confirm we agreed to provide
the Union a contract extension through Wednesday, August 12,
2015 at 11:59 pm, EST.”
August 12: Union rejects taking proposal to ratification and re-
quests further bargaining; Employer declaration of impasse
Henne’s review of the LBF offer with the local and interna-
tional union resulted in the Union being unwilling to put the LBF
offer to a vote of employees. As Henne explained, the Interna-
tional Union “felt that there were too many takeaways [from] the
current contract . . . not only takeaways but . . . too much negative
impact to employees in the [proposal].” The Union came to the
conclusion that the LBF was not acceptable and that the parties
should continue bargaining without a vote.
On August 12, Henne wrote to Feller, telling him that “the
Union stands ready to resume contract negotiations,” and that
“[t]he Union believes that the Company’s ‘Last, Best and Final’
offer contains terms that are illegal.” He wrote that the “Union
further proposes that the current contract remain in effect until a
new agreement can be reached.”
Feller wrote back later that afternoon, asking Henne “[w]hat
specifically does the Union view as illegal, and on what basis . .
.?”
Henne responded within the hour, stating, “The Union be-
lieves that your proposal seeks to eliminate and/or diminish the
legal rights of the Union. I’d be happy to discuss the issue in
more detail at our next bargaining session.” Henne wrote that he
was waiting for a “response on the contract extension the Union
has requested,” and also asked “again, when will the Company
be available to meet?”
In an August 14 email Feller reacted sharply to Henne’s “re-
quest for additional bargaining.” Feller wrote that “[u]nless the
union has new concessions to make that may materially affect
negotiations, we do not see a need to meet again in person for
bargaining.” He recited the number of bargaining meetings al-
ready held and asserted that “at the last session on July 30, the
Union indicated that it had no further proposals or concessions
to make, and Altura presented its last, best, and final offer.”
Feller also charged that Henne “surprised” the Company on July
30 by stating that “the union had tentatively agreed to nothing”
and further stated that Henne had said “that the union would take
the [LBF] offer back for a ratification vote (but as of today, 16
days later, you have failed to do so). We view both of these ac-
tions by the union as evidencing bad faith.” Feller accused the
Union of “even more bad faith” by suggesting that some uniden-
tified provisions of the LBF offer were illegal and asked for de-
tails. Feller said that once the Company could review this, it
would determine whether it needed to change any aspect of its
proposal “or perhaps schedule another negotiating session.”
Feller wrote, “But in the absence of that, and in the absence of
any new proposals by the union to bridge the apparent impasse
we are now at, we will decline your suggestion to meet again.”
He added that “Of course, if you wish to fly to Phoenix to meet
informally to discuss further, please advise.” As to the Union’s
request for a further contract extension, Feller wrote, “We will
consider entering into a new extension only on the condition that
the union immediately submits the company's proposal to a vote,
and accurately represents our areas of agreement and disagree-
ment.”
Henne wrote back on August 17, stating that “We believe that
Altura's final contract offer contains illegal provisions that effec-
tively permit Altura to change terms and conditions of employ-
ment at its whim and that undermine the Union's role as collec-
tive-bargaining representative.” Henne added, “We do not mean
to suggest that we find some of the contract proposals unaccepta-
ble only because we believe they are illegal, but we do feel that
continued negotiations would aid us in reaching a mutually ac-
ceptable agreement. Further, your suggestion that the Union has
not tentatively agreed to any of the proposals submitted by the
company is erroneous and mischaracterizes the Union's concerns
about the company's last offer.”
Henne disputed Feller’s accusations of bad-faith bargaining
and asserted that “You were informed on the last day of bargain-
ing that the Union would only submit this 'last, best, and final' to
the membership after review by the President /Business Manager
and the International. During our subsequent discussions about
extending the current contract, I reiterated to you that we were
reviewing your final proposal, and that upon completion of that
review, I would inform you of our decision to hold a ratification
vote.” Seizing on Feller’s invitation to continue “informal” dis-
cussion in Phoenix, Henne wrote that “We are pleased that you
have invited continued discussions on the contract.”
Feller replied by denying that any of the Employer’s pro-
posals—specifically its proposals to “have certain benefits gov-
erned by the employee handbook” and “to have bargaining unit
employees maintain parity with non-unit employees”—were il-
legal and insisting that such provisions “are common in collec-
tive-bargaining agreements.” Feller again asserted that Henne
had not indicated there were further proposals to make and stated
that “if the parties are deadlocked where we are, there is no need
to meet just for the sake of meeting.” Feller suggested a confer-
ence call between the Company and Union bargaining commit-
tees to “see if we can bridge the current differences,” and noted
that this would present an opportunity for the Union to make new
proposals if it has any.
On August 20, Henne responded to Feller, calling for a medi-
ator to assist the parties, a process that the expired 2012 Agree-
ment provided for the parties to use if unable to settle their dif-
ferences. Henne accused the Company of ignoring a previous
request during negotiations to bring in a mediator, which he al-
leged violated “our express agreement as to how the successor
agreement would be negotiated.”
August 27 conference call with the mediator
The Employer agreed to mediation and the Employer con-
tacted FMCS Mediator Dale Berman. A conference call between
the parties and Mediator Berman was held on August 27. There
was an acrimonious tone to the call. The Employer negotiators
ALTURA COMMUNICATION SOLUTIONS, LLC 25
wanted to know what was illegal about their proposal, as charged
by Henne, but Henne “deferred,” stating that “if we get together
they will see where our problems” are with the proposal.
Returning to an argument that had developed at the final July
30 meeting, Henne told the parties that none of the proposal had
been “signed off on.” Henne distinguished between a process
where the parties “TA’d” (i.e., reached tentative signed agree-
ments) on discrete contract provisions from the process in these
negotiations where the Company “continued to pass 1 proposal”
throughout the negotiations. Henne said, “Now we do agree with
some of the language because in some of the counter proposals
we used that language, but we weren’t able to TA anything be-
cause it was consistently one proposal.”
The mediator suggested meeting for three straight days, but
the Employer demurred. Feller stated, “from our perspective, we
aren’t sure what 3 days is gonna accomplish when we had 10
days total,”—Henne interjected that it was 8.5 days total, with
one afternoon “informal with discussions, we weren’t in formal
bargaining.” Feller said,
to be honest with you [D]ale [Berman] I mean, we presented
the last best and final, and you know, we haven't seen anything
back really that addresses that, obviously then union wants to
get back together and keep negotiating, but we are at a point
where our expectation was that they were gonna take this out
to vote which hasn't happened yet. Not sure what 3 days will
accomplish[.]
Henne argued that in the last few minutes of the July 30 negoti-
ations he told the Company “that I would have to review with
my leadership and our legal team, and if it passed, I would take
it out to a vote.” Henne told the parties, “At this point we feel
we have to change some sections of this contract before we take
it out to vote. In both cases I talked with you Greg [Feller] about
the extensions I need[ed] to review it with my superiors.”
The Employer pressed for a meeting sooner than the third
week of September. Blazek said, “I don’t know what we are
gonna talk about for 3 days, I’m willing to get together for a day,
we are not in a position to renegotiate economics.” Queried on
this by Henne, Blazek said, “I have not seen or heard anything,
you’re asking me to meet just to meet. My general positions is
the same as the beginning, we are not in a [position] to make
changes.” Blazek pushed to know what proposals the Union
would bring to the negotiations. Henne told him “We’ll have
multiple proposals, but once we engage the fmc[s], these ses-
sions should be with the mediator.”
The parties agreed to one day of meetings—September 22, at
Berman’s FMCS office in Anaheim—but also agreed that the
Company would be willing to hold the 23rd and 24th open and
agreed that “if it’s productive” the Company would stay longer
than the one day. However, the Company declined Henne’s re-
quest to further extend the contract through Friday, September
13 The no-strike clause proposed by the Employer stated that neither
employees nor the Union could “encourage, instigate, promote, sponsor,
engage in or sanction [ ] any strike (including sympathy strike), picket-
ing, boycott, hand-billing, sit-down, stay-in, slowdown, concerted re-
fusal to perform work (including overtime) and other tactics to disrupt
25.
September 23–24 bargaining in Anaheim, the Parties exchange
further proposals; the Employer’s revised LBF offer
Blazek had a scheduling conflict, so the parties did not meet
September 22, but assembled in Anaheim, September 23. Pre-
sent for the Union was Henne, Grindle, Stewart, and Union Pres-
ident/Business Manager Wright. The Employer was represented
by Blazek and Feller. Attorney Anthony Byergo was also pre-
sent on the 23rd only. The parties met in separate rooms with
the mediator traveling between the rooms. In the afternoon the
parties came together, and the Union presented a counterpro-
posal to the Employer’s July 30 LBF offer.
The Union’s September 23 proposal was different in a number
of respects from its previous offer. On the zipper clause (sec.
1.4), the Union proposed a traditional zipper clause comprised of
the first sentence of 1.4 proposed by the Company, but struck
through the more expansive subsequent sentences proposed by
the Company. This was a return to the Union’s position of July
28, it having proposed accepting the Company’s language as of
the Union’s July 30 proposal. The Union added language to 2.4
(No Waiver of Rights)—that had appeared in the Union’s July
21 proposal but was removed from later proposals—that re-
flected that not just the Company, but also the Union did not
waive rights by failing to exercise them. The Company’s lan-
guage on this had been accepted by the Union since the July 28
proposal (Union counter to Company proposal 3), which phrased
the lack of waiver as only applying to the Company.
In section 4.1 (No Strike) the Union maintained its proposal
to have “actions . . . covered and protected by law” excluded
from the no-strike pledge. Henne testified that he told the Com-
pany that the Union wanted the “covered and protected by law”
sentence because the Union believed that some of the many ac-
tions prohibited by this broad no-strike clause would be pro-
tected by law.13
In 5.1, grievance procedure, the Union added new language
proposing that:
Aggrieved employee(s) and the Job Steward assigned to the
area from which the grievance arises shall receive pay for rea-
sonably necessary time spent during working hours preparing
and/or presenting grievances.
In 5.7, regarding the authority of the arbitrator, the Union
added language stating that “The decision of the arbitrator will
be final and binding upon the parties hereto provided that it is
within the Jurisdiction and authority vested in the arbitrator pur-
suant to this Agreement.” This language had not been proposed
since the Union adopted the Company’s bargaining format, how-
ever, the 2012 Agreement contains language stating that the ar-
bitrator’s decision is “final and binding,” language that is
normal operations, mass absenteeism, or any other intentional curtail-
ment, restriction, interruption or interference with operations or work, or
protest regardless of the reason for so doing.” The Company had pro-
posed, in response to the Union’s concerns, adding a sentence stating that
“This provision is enforceable to the extent permitted by law.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
standard in most arbitration agreements.14
In 5.8, concerning the effect of missing time limits, in its Sep-
tember 23 proposal the Union proposed deleting the following
(struck through) language:
All of the time limits specified in the grievance and/or arbitra-
tion procedure shall be jurisdictional and shall be the conditions
precedent upon which the grievance shall be processed further.
If any and /or all the time limits are not complied with, the
Company may rightfully and lawfully refuse to process the
grievance further, and the grievance shall be considered null
and void and end then and there, without either the Union or
any allegedly aggrieved team member being entitled to process
the matter further to arbitration or otherwise. However, by mu-
tual agreement of both the Company and the Union, the parties
may agree to modify or extend any of the jurisdictional time
limitations specified above in any particular case.
Previously, union proposals had not objected to this language.
In article 6 (Non-Discrimination), the Union’s September 23
proposal rejected the Company’s clause and stated that it would
“stand on current language” in the comparable provision in the
2012 Agreement (art. 9—Non-Discrimination). The Union pre-
viously had accepted the Employer’s language since the July 21
meetings.
In 8.5 (severance pay) the Union maintained its positions as
of July 30, objecting to the final sentence proposed by the Em-
ployer stating that the waiver signed by an employee (who re-
ceives severance) will bind the Union, and maintaining that the
26 week severance cap should not apply to any employee laid off
out of order.
In 10.1 the Union stood on its position that the agreement
should not contain the language: “and nothing in this Agreement
shall be construed as a guarantee of hours of work per shift, per
day or per week”
The Union retained its position on healthcare (art. 11). It re-
tained its position as of July 30, on retirement benefits (art. 12),
which was in accord with the Employer’s proposal on retiree
14 In its September 23 proposal, the Union also added and then struck
through language that the Employer had already deleted in its LBFO, a
final sentence in 5.7 that states that the arbitrator shall not have authority
to alter discipline or discharge unless it is “clearly arbitrary.” The Un-
ion’s simultaneous addition and strikethrough of this phrase negate each
other and amounts to no change to the proposal in this regard.
15 The Union’s proposal contained some errors that the Union at-
tributed to limitations of “printing at the federal mediator’s office,” and
which were pointed out to the Company during the meeting. Thus, 2.1
had strikeout language that the Company had accepted in its LBF offer;
Sec. 3.2 had underlining, but that union security language had already
been agreed to, and conversely 3.5 (the open-shop language) appeared as
struck out but had already been eliminated as of July 30. The final sen-
tence of 3.6 should not have been struck out; the struck-out sentence—
“Any employee laid off seniority shall receive 52 weeks severance”—
should not have been in the document. In 8.4 the Union erroneously
added language proposing ten business days for notice of layoffs, some-
thing that had already been contained in the Company’s LBF offer. The
third paragraph of 10.6 should not have been underlined, as it was ac-
cepted in the Company’s LBF offer. In 15.3 and 15.7, the Union’s
benefits.
In article 13, as it had in its previous proposal, the Union
placed a proposal on wages, restating its position on keeping the
same minimum wage rate but maintaining the suggestion of fu-
ture increases with a notation that such wages were “TBD” (to
be determined). On benefits, the Union strengthened its position
from what it was as of July 30. Most significantly, it added lan-
guage stating that benefits in the handbook could only be
changed by mutual agreement and that they were considered
mandatory subjects of bargaining. It reintroduced travel rules
and reimbursement, night premium, holidays, vacation, funeral
leave, and sick time allowance benefits into the labor agreement,
effectively removing the prior acceptance of the Employer’s de-
mand that such benefits be relegated to the Employer handbook.
In article 14, the Union stood by its previous position which
was no different than the Employer’s position. The Union re-
stated its position on article 15, General Provision, which was in
accord with the Employer’s position.15
After the parties went through the Union’s proposal, the par-
ties broke and met separately. The Employer returned that after-
noon, September 23, with a “Revised Last, Best, and Final Com-
pany Proposal” (Revised LBF offer) that it provided to the Un-
ion.
This Employer’s Revised LBF offer changed the effective
date of the contract to October 1, 2015 (previously the parties
both had a proposed effective date of August 1, 2015).
The Employer maintained its positions on article 1 (including
zipper clause) and 2.1 (management rights) and 2.2.
In 2.3, (nonbargaining unit employees, including subcontrac-
tors doing unit work), the Employer’s Revised LBF offer
tweaked some of the language but it still provided for a broad
right to have nonunit individuals perform unit work at the Em-
ployer’s discretion.16 The Employer agreed that under this lan-
guage, “technically,” “the minute the membership ratified this
agreement [the Company] could lay every one of them off.”
In article 4, “No-Strike No Lockout,” the Employer main-
tained its position, meaning that the difference between the
September 23 proposal struck through items that already had been de-
leted from the Company’s LBF offer.
16 The Company’s LBF offer Sec. 2.3. read:
Work By Supervisors Other Non-Unit Employees and Others.
Managers, supervisors, other non-unit employees (including, but not
limited to contingent workers), and other non-employees shall be per-
mitted to perform any work (including work otherwise performed by
employees in the bargaining unit) for the operation of the Company's
business.
The Company’s 2.3 in its Revised LBF offer read:
Work By Non-Bargaining Unit EmployeesSupervisors, Other
Non-Unit Employees and Others. Managers, supervisors, other
Non- bargaining unit employees (including, but not limited to, su-
pervisors and-contractors) contingent workers, and other non em-
ployees shall be permitted to perform any work (including work
otherwise performed by employees in the bargaining unit) for the
operation of the Company's business.
ALTURA COMMUNICATION SOLUTIONS, LLC 27
parties’ positions turned on the language used to cabin or limit
the extensive definition of prohibited union and employee con-
duct. The Union proposed that the listed conduct was prohibited
“unless such actions are covered and protected by law,” while
the Employer proposed that the provision would be “enforceable
to the extent permitted by law.”
In article 5, grievance and arbitration, the Employer re-
sponded to the Union’s proposal that employees and stewards
“receive pay for reasonably necessary time spent during working
hours preparing and/or representing grievances,” by adding a
proposal to its Revised LBF offer stating that time spent “in ac-
tual grievance meetings between the Company and the Union”
shall be considered time worked and compensated.
In article 5, The Employer also added the language that the
Union had proposed, stating that an arbitrator’s decision would
be “final and binding” (provided it was within the jurisdiction
and authority of the arbitrator).
The Employer remained firm on most of the rest of its LBF
offer, including its two-tier wage classification proposal and re-
duction of the minimum wage permitted for the newly created
Level A technicians. This issue, and the Employer’s discretion
in classification and layoff of employees generated acrimonious
discussion between the parties.
The Employer made a significant change to its proposal in ar-
ticle 13. In article 13, while maintaining its proposal to move all
benefits to the handbook, and have the benefits governed by the
(potentially shifting) terms of the handbook, the Company intro-
duced an exception for holidays, vacations, funeral leave, jury
leave and sick leave. As to these benefits, while governed by the
handbook, the new proposal stated that “there shall be no change
in the allowances (i.e., days or hours) provided for bargaining
unit employees, except by mutual agreement.” As the Company,
explained at the September 23 meeting, for these specified ben-
efits, “what’s in the handbook that’s in effect today, that will stay
in place during life of agreement unless you guys are in agree-
ment [to make a change].”17
Related to the handbook issue, in this proposal the Employer
added a new provision to the handbook regarding background
checks titled “Addendum to Employee Handbook dated 2009”.
The employees’ work sometimes required background checks
for them to be allowed onto government locations. The 2012
Agreement had a provision in schedule A (Attachment E) that
governed background checks. As discussed, under the Em-
ployer’s proposal and proposed article 13, all such benefits were
17 The revised art. 13 proposal regarding the handbook now stated
(with the Employer’s changes to its earlier proposal underlined):
ARTICLE 13
OTHER COMPANY BENEFITS
To the extent not specifically governed by or referenced in this
Agreement, all other Company -provided employee benefits and
other terms and conditions of employment shall be as provided in
the Altura Communication Solutions Handbook (effective June 1,
2009), including but not limited to holidays, vacations, funeral
leave, jury leave, sick leave, Family and Medical Leave Act leave
(and similar state and local benefits), and short term disability
to be governed by the handbook. However, the handbook had
no provision relating to background checks, and a provision for
background checks was important for the unit employees to be
able to perform their work. The Employer added this “Adden-
dum” to the handbook. Unlike the provision from the 2012
agreement, however, this and other handbook provisions were
subject to change or elimination at the discretion of the Em-
ployer.
The Employer also included in its Revised LBF offer, as Side
Letter/Memorandum of Agreement #2, the severance offer for
the seven employees it proposed not only moving to level A tech-
nician status but also reducing their pay. The offer put in a
lengthy and detailed written document, something the Employer
had previously described generally at the table and in Feller’s
August 3 email to Henne. This document provided that each af-
fected employee would have the option of accepting a reduction
in pay to $28.84 per hour, with an opportunity to progress on an
“individualized development plan” toward Level AA status, the
success of which was to be determined at the discretion of man-
agement “with no guarantee of future employment for any spec-
ified time.” Alternatively, the employee could take an immedi-
ate termination of employment, sign Employer-provided waivers
and receive 1-week severance for each year of employment with
no 26-week cap, as was proposed by the Employer to apply in all
future layoffs. In essence, the Employer was proposing that for
six employees it had chosen, they would take a significant pay
cut, with no guarantee of future employment if they failed to
make progress on a work plan developed by the Company. Al-
ternatively, they could terminate and receive severance at
amounts permitted under the 2012 Agreement, which was more
severance than the Employer proposed to provide going forward.
In order to receive the severance under this severance/buyout
agreement, the employee would, among other things, have to
“voluntarily leave employment with the Company on or before
11/30/2015,” and sign a company-provided release of all wai-
vable employment claims, and that waiver would bind the Union
as well as the employee. The proposal stated that “This side let-
ter/memorandum of agreement will expire on January 1, 2016.”
On September 24, the parties reconvened and the Union pro-
vided a counterproposal to the Employer’s Revised LBFO. This
proposal was not only different in substance, but this document
was in a different format than the Union’s past proposals. It lim-
ited itself to comparing and contrasting only those provisions as
to which the parties were proposing different contractual
(STD) and long term disability (LTD) benefits. The extent, allow-
ances, and terms of such benefits may be changed for employees
covered by this Agreement, provided the same changes apply to
other non -bargaining unit covered by the general terms of the
Handbook; except that, with respect to holidays, vacations, funeral
leave, jury leave, and sick leave, there shall be no change in the
allowances (i.e., days or hours) provided for bargaining unit em-
ployees, except by mutual agreement. Employees covered by this
Agreement, however, shall not be entitled to profit sharing or other
discretionary bonuses in light of the negotiated wages and benefits
otherwise provided in this Agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
language. In this proposal, as referenced below, the Union
linked its acceptance of certain Employer proposals to the Em-
ployer’s acceptance of certain Union proposals.
Thus, for the first time ever in negotiations, the Union offered
to accept the Employer’s section 10.1 (with its explicit recogni-
tion that “nothing in this agreement shall be construed as a guar-
antee of work per shift, per day or per week”) thus, giving up any
implication that based on practice there was a guarantee of 40
hours work. However, the Union’s September 24 proposal con-
ditioned the Union’s willingness to make this movement on the
Employer’s acceptance of the Union’s recent proposal on the
zipper clause (sec. 1.4). On this section 1.4, the Union main-
tained its most recent position, proposing a standard zipper
clause (in this case, the first sentence of the Employer’s pro-
posal) but rejecting the elaborations added to the clause by the
Employer (the subsequent sentences in the Employer’s pro-
posal.)
On section 2.3, the Union accepted the language of the Em-
ployer’s proposal on nonbargaining unit employees performing
unit work, but added a sentence stating that: “The Company will
not contract out work performed by bargaining unit employees,
if it will directly cause the layoffs of bargaining unit employees.”
This sentence was new language but reasserted the substance of
a proposal that the Union had long been making.
On 5.3, where the Employer had responded to an earlier Union
proposal by proposing to allow time spent “in actual grievance
meetings” to be compensable time for “an aggrieved employee
and the employee job steward,” the Union counterproposed by
proposing that time spent “in meetings between the Company
and the Union” would be compensable, “including travel time”
for any “bargaining unit employee(s) and the employee job stew-
ard.”
On 5.8, concerning the consequence of failing to meet a time
limit in the grievance and/or arbitration procedure, the Union ac-
cepted for the first time the Employer’s language, with one ex-
ception: it struck the words “or otherwise”.18
The Union made a counterproposal on article 6 that stated:
Both parties reaffirm their intention that the provisions of this
Agreement will continue to be applied without discrimination
to the extent prohibited by applicable local, state and/or federal
law.
This Article concerns statutory rights and shall not be within
the grievance and arbitration provisions thereof. The use of the
masculine or feminine gender or any titles which connote gen-
der in this Agreement shall be construed as including both gen-
ders.
On section 8.5, severance pay, the Union indicated that it
18 Thus, the Union’s proposal read:
Section 5.8. Time Limits. All of the time limits specified in the
grievance and /or arbitration procedure shall be jurisdictional and
shall be the conditions precedent upon which the grievance shall be
processed further. If any and/or all the time limits are not complied
with, the Company may rightfully and lawfully refuse to process
the grievance further, and the grievance shall be considered null
and void and end then and there, without either the Union or any
accepted the Employer’s position on the first paragraph by leav-
ing this paragraph out of its proposal dedicated to the provisions
in dispute. Thus, the Union accepted the Employer’s final sen-
tence in the first paragraph indicating that the waiver required
for severance also applied to the Union as to any claims related
to a severed employee’s employment.
In the second sentence of 8.5, the Union maintained the posi-
tion it had advanced in its last proposal—accepting the Em-
ployer’s 26-week maximum on severance but adding language
that “The maximum shall not apply to any employee laid off out-
side of seniority.”
As noted, the Union accepted the Employer’s position on 10.1,
subject to the Employer’s acceptance of the Union’s proposal on
1.4.
In article 11, healthcare, the Union accepted the Employer’s
language—including granting the Employer the right to make
changes in healthcare without maintaining “comparable” cover-
age. The Union’s only difference from the Employer’s proposal
was the proposal to include language that “The Company’s con-
tributions to the cost of the plan(s) will be the same for each bar-
gaining unit employee, regardless of the selected plan.” With
this proposal, the Union conceded the Employer’s right to have
the unilateral discretion to diminish or eliminate healthcare dur-
ing the term of the contract.
In article 13, the Union accepted the Employer’ new language,
including moving benefits to the handbook, and the employer’s
right to “change the extent, allowances, and terms” of such ben-
efits for unit employees, but added that this was permitted “pro-
vided that there is no economic diminishment of such benefits.”
The Union accepted strike & lockout, retirement, and all other
provisions of the Employer’s proposal.
With this proposal, the parties talked more on September 24.
Henne expressed the view that “This union over these negotia-
tions has moved drastically towards the company’s proposals,
and yet the company has not made any significant changes to
their original proposals, if the company is truly trying to reach
agreement, then we expect some movement on these counters
today.” Blazek told Henne, “we have talked about it, and the
contract we are gonna end up with you aren’t gonna like. The
economic asks you have I cannot do that.” Blazek expressed his
commitment to the Company, but explained that “[I] [c]an’t limit
my flexibility to do what I have to do to survive.”
After breaking for lunch, the parties reconvened. Feller went
through the Union’s proposal orally, and indicated the Em-
ployer’s responses, which it promised to put in writing and send
to the Union “by Tuesday,” i.e., September 29. The parties broke
with Feller stating, “we want an agreement, we want to move
forward, we believe we’ve provided a fair and comprehensive
allegedly aggrieved team member being entitled to process the mat-
ter further to arbitration or otherwise. However, by mutual agree-
ment of both the Company and the Union, the parties may agree to
modify or extend any of the jurisdictional time limitations specified
above in any particular case.
ALTURA COMMUNICATION SOLUTIONS, LLC 29
last best and final.” Blazek said, I think this is a fair contract, I
get the pain involved, and it’s a company issue. I’m there for the
employees, want them to be in it with me. I’d like to continue
working towards an agreement.” The parties broke early for the
day in order to get to the airport to get flights back that day.
The Employer’s 2nd revised October 2 LBF offer
The Employer sent the Union a newly revised LBF offer (Jt.
Exh. 17) on October 2.19 The cover-email note to this 2nd re-
vised LBF offer stated only:
Bill,
Please find enclosed the updated LBF incorporating the
changes we discussed on 9/24/2015. Also enclosed is the
MOA to address the transition of the 7-level A Techs previ-
ously identified. I also enclose the previous documents.
Let me know if you have any questions.
Thank you,
Greg Feller
This proposal amounted to rejection of the Union’s proposal
on 10.1, and reassertion of the Employer’s proposals from the
Revised LBF offer on 10.1 and 1.4. It involved reassertion of
the Employer’s proposal on 2.3. On 5.3, the Employer counter-
proposed the Union’s proposal to permit grievance-handling to
be compensable time, offering that “aggrieved employee(s) and
the Job Steward assigned to the area at which the grievance arises
shall receive pay for reasonably necessary time spent during
working hours preparing and/or presenting grievances.” The
Employer agreed to the Union’s article 6 (discrimination) provi-
sion. The Employer reasserted its existing proposal in all other
respects.
Thus the parties remained divided on the wording of the zip-
per clause, subcontracting (i.e., nonunit employees performing
bargaining unit work), health insurance (only as to the Union’s
request that Employer contributions to the plan be the same for
each bargaining unit employee), benefits, wages and the two-tier
job and wage classification, and per diem vs. actual compensa-
tion related to travel. In addition, in its October 2 email to
Henne, the Employer included schedule A, which set forth the
Employer’s (unchanged) position on wages and reclassification,
and also provided the (unchanged) “MOA to address the transi-
tion of the 7-level A techs previously identified.”
October 13–November 12: The Union seeks additional
face-to-face bargaining and offers proposals;
the Employer continues claiming impasse
Shortly thereafter, Henne went on vacation. Union Business
Representative Grindle responded to the Employer’s October 2
2nd Revised LBF offer on October 13, in a letter that began a
series of correspondence.
He wrote, “I believe you are aware that Bill Henne is unavail-
able this week, so I am writing to you in response to our receipt
19 This updated proposal provided October 2, was based on and bears
the date and title of the “Revised Last, Best, and Final Company Pro-
posal” dated September 23, 2015.
of your written proposal(s) from the bargaining in Anaheim, CA
on the 23rd and 24th of last month.” Grindle wrote to Feller:
It was encouraging to see that movement was possible from
both parties during those negotiations, and we are very inter-
ested in continuing discussions in an attempt to reach a fair con-
tract which will simultaneously help you achieve your goals as
a business. After the bargaining session in California, we be-
lieve that we have a firmer grasp on your position(s). As we've
stated before, we agree that the best environment for our mem-
bers is one of employment by a flourishing company. How-
ever, while we believe progress was made during our last ses-
sion, we still feel that the company's approach to bargaining via
proposing what it calls “last, best, and final” offers is not the
best path for the parties to reach an agreement, and is poten-
tially an attempt to unfairly leverage the negotiations rather
than a good-faith effort to reach an acceptable compromise.
Taking into consideration all that has gone before, including
the movement which has been shown by both parties, we
would like to propose additional bargaining sessions, with or
without the assistance of the FMCS. I know that we all feel a
sense of urgency to get this done, so I'm sure the details of such
future sessions can be worked out relatively quickly.
Feller’s response was pointed: he noted that the parties met for
two days at the FMCS offices (September 23 and 24), and that
“it was our understanding that you had no further proposals to
make, which was the time to make such proposals.” He stated
that the Company had made its last, best and final on October 2
“and have no further room to move. It is now October 13, almost
two weeks later without any further feedback until now. If you
have any new proposals, please present them to us in writing for
us to evaluate.”
Grindle responded on October 19, disputing the implications
of Feller’s points:
I have reviewed your most recent response with Bill now that
he has returned from vacation. We were surprised and some-
what confused by your response on several points.
You assert that it was your understanding that the union had no
more proposals to make, and that if we did, that would have
been the time to make them. This makes no sense. As I am
sure you recall, you mentioned that Bob [Blazek] needed to
leave early to catch his flight, but that the company would like
to verbally respond to our most recent proposal and then follow
up in writing within a couple of days. In fact, by no later than
Tuesday September 29, 2015. At that time you were notified
that upon receipt of your written counter(s), we would review
them and get back to you. You ultimately responded in writing
on Friday October 2, 2015. Subsequently, we reviewed your
revised “last, best, and final” offer, and responded on the 13th.
Additionally we are concerned by your response because Bob
made it very clear in his parting statement that he shared our
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
goal of actually reaching an agreement. I believe the accurate
quote in part would be, “I don't think so, we've talked about a
lot of these issues, and I think this is a fair contract, I get the
pain involved, and it's a company issue. I'm there for the em-
ployees, want them to be in it with me. I'd like to continue
working toward an agreement “. Bob made that statement as
his final statement to us and including the mediator Dale Ber-
man.
The union recognizes and appreciates the company's offer to
submit new proposals in writing. The union accepts the com-
pany's offer and is ready to schedule meeting dates so that we
can formally present written proposals to your bargaining team.
As I stated in my prior email, the union is willing to meet with
or without the assistance of the FMCS with a goal of reaching
a mutually fair agreement to present to our members. Please
let Bill and I know if you prefer to meet with Mr. Berman, or if
you would like to try meeting without him for now.
Feller responded on October 21. He wrote:
We are open to considering any new proposal that you have to
make and we will make time to meet with you within in the
next 10 days in our Fullerton office. Alternatively, we would
also be available to meet via video conference or conference
call to expedite the process. Our open enrollment process for
healthcare benefits will be coming soon, so it is critical that we
schedule meeting dates within the next 10 days.
Grindle responded the next day, October 22. He told Feller:
We will be happy to meet and offer an exchange of pro-
posals/counter-proposals during the next 10 days. The only
days which we are unavailable are October 30th, and Novem-
ber 4th.
I believe however that under the alternating of locations which
we have engaged in during bargaining the location is due to
switch back to the Chicago area. Please let us know which days
you and your team will be available (again, excepting October
30th and November 4th).
Feller wrote back later that day, October 22, stating that “[w]e
do not have any further proposals or changes to the LBF offer
we provided, and unfortunately our schedules do not allow us to
travel to Chicago. If you have new proposals to present, you are
welcome to come to our Fullerton office or we are happy to ar-
range a video conference or conference call. As previously men-
tioned, we will make ourselves available any day over the next
two weeks.”
Grindle responded the next morning, October 23 seeking “fu-
ture dates when Altura’s bargaining team will be available to
travel to Chicago,” and stating that the Union wanted to move
forward towards a new contract, “however, we do not think that
changing the framework of our negotiations at this late date to
adhere to an arbitrary and unilateral deadline is appropriate.”
Grindle stated that “it appears the Company is saying that if the
Union has proposals to present, and only if the Union is willing
to bear the expense and burden of short-notice travel to Fullerton,
CA, and only if the Union is willing to do this within the next 10
days, is the company willing to meet in person and listen to our
proposals.” Grindle also asked, “What is the company's
intention if we are unable to satisfy the burdensome conditions
which you have set forth in your response? Be assured that the
Union is ready and committed to meeting as many times, and as
often as is necessary to reach an agreement; we do not agree that
the burden and expense should be borne solely by us.”
This triggered a long late afternoon October 23 email from
Feller, purporting to summarize the history of negotiations (but
not altogether correctly) and accusing the Union of “a wide va-
riety of delay tactics,” despite it being “clear that the Company
has been patient and attempted to work with you on this,” and
declaring that “the Company views the negotiations to be at im-
passe.” Feller repeated that the Company was willing to meet
via video conference or conference call, and stated that “[i]f you
have actual proposals to make, please send them to me in writing
and we can review to determine whether future negotiations of
any sort are warranted.”
Grindle’s response on October 26, noted that Feller’s letter
“covered a lot of territory, and expressed many opinions and
made several assertions which the Union disagrees with.” He
then reiterated his two questions from October 23: “Are there
any dates in the future on which the schedules for the Company’s
bargaining team will allow them to meet with us in Chicago,”
and “what are the Company’s intentions” if the Union is unable
to meet in “the 10 day period which you imposed?”
Feller’s response that evening was that the Company’s posi-
tion “is clear”:
We are willing to meet in Fullerton in person or by video or
audio conference in the next now 9 days in the event that you
have proposals that you are willing to share in advance that in-
dicate that such additional meetings would be productive. Oth-
erwise, you have our last, best and final offer.
Henne responded 8 days later on November 3. He opened his
letter reciting and objecting to the Employer’s position that it
would not continue the standard negotiating process before see-
ing movement from the Union. Despite that, the Union wrote
that it was responding within the time and in the manner de-
manded by the Employer.
“First,” Henne wrote “we accept your proposal on Article 11,
Section 11.1,” healthcare. This was the first time in the negotia-
tions that the Union had fully agreed to the Employer’s
healthcare proposal, and with it the Employer had achieved
agreement to its complete discretion to change its contributions,
premiums, healthcare, and plan options as it liked as long as it
did so for nonunit and unit employees. The Union was dropping
even its previously-maintained demand that contributions be the
same for each bargaining unit employee. Noting Feller’s previ-
ously-expressed concern about “the open enrollment period and
the importance everybody has attached to this item,” Henne
wrote that “we think that should be enough to break the log jam
and at least renew discussions to see where we can go.”
On 5.3, compensable time for grievances, the Union counter-
proposed based on the Employer’s last proposal. The Union ac-
cepted the limitation of compensable time to the “aggrieved em-
ployee”—and not to all employees involved (i.e., witnesses, or
others involved as resources)—but counterproposed that the
compensable time should apply to the “Union steward”—not the
“Job steward”—and further broadened the language to state
ALTURA COMMUNICATION SOLUTIONS, LLC 31
explicitly that “travel time” was considered compensable prepa-
ration time. Thus, the Union proposed:
Time spent in actual grievance meetings between the Company
and the Union shall be considered time worked and compensa-
ble for an aggrieved employee and the Union steward. The ag-
grieved employee(s) and the Union steward assigned to the
area at which the grievance arises shall receive pay for reason-
ably necessary time spent during working hours preparing
and/or presenting grievances, with necessary travel being con-
sidered part of the preparation time.
Article 13 was the Employer’s proposal to have benefits gov-
erned by and determined by the handbook. As to this proposal,
Henne signaled to the Employer for the first time since the Sep-
tember 24 meeting, where the Employer had modified its article
13 proposal, that the Union would be likely to accept a proposal
that moved benefits to a unilaterally-controlled handbook and
permitted the Employer discretion to change benefits if it chose
to do so. Henne wrote that “We see potential for agreement with
your last proposal on this article; however, we have a couple of
questions on the practical implementation of the language.”
The Union indicated that it agreed with the side letter “grand-
fathering” 5-weeks’ vacation for longtime employees (those
hired prior to August 1, 1986). This was consistent with the sig-
nal that the Union was amenable to article 13, as the side-letter
was written to apply “notwithstanding the provisions of Article
13,” and acceptance of the side letter meant that employees hired
after 8/1/1986, would be subject to vacation as currently called
for in the Employer’s handbook.
In addition, the Union, indicated through Henne’s November
3 letter that it accepted the Employer’s October 2 proposal on
5.8. and article 6. In both cases the Employer’s October 2 re-
vised proposal met the Union’s previous proposals on those
items and thus, Henne’s acknowledgment was recognition that
the parties were in accord on these issues rather than “new”
movement on the Union’s part.
Henne concluded his letter by stating that the Union’s moves
were “significant,” and
show our willingness to compromise in an effort to reach an
agreement, and should be sufficient to persuade you to return
to the bargaining table. I also think that with these issue re-
solved and with the time pressure you talked about in connec-
tion with the open enrollment period removed, we can continue
to work together to narrow the gap and reach a contract. As
part of that, we would hope to be able to work on the econom-
ics, and especially the wage issues.
Henne “urged” the Employer to return to face-to-face negoti-
ations and contact him about a time to meet at the union offices
in Chicago, but note that “[i]f you are absolutely unwilling to
return to that approach, we will reluctantly agree to have the next
session held by videoconference.”
The Employer’s response was negative. Feller wrote the next
day, on November 4:
We continue to see no new proposals on any key or material
issues from you and maintain that we are at impasse. If you
have a new proposal or proposals please forward them to us.
We are available to meet via video conference at any time
within the next week. Please first send us the new proposal
/proposals and provide times you would be available to meet
over the next week.
The Union responded on November 9, in a note to Feller from
Henne, expressing “disappoint[ment] by the response” and not-
ing that the Union “accepted your position on the healthcare sec-
tion, accepted your position on several other items, and got close
to agreement on some others except for either some minor
changes or some questions we had.”
Henne wrote: “It seems like your idea of negotiating is to de-
mand that we say in advance that we’ll go along with whatever
you say and once we do that then maybe you’ll talk to us. All of
that makes me wonder if you really want an agreement or if you
have a completely different goal.”
Henne wrote that, “[i]n spite of my feelings about how you’re
dealing with us,” he was attaching new union counterproposals
on schedule A (wages and two-tier classification) and on the pro-
posed buyout for proposed newly designated Level A techni-
cians.
Henne concluded: “Like I said, I think what we sent you last
Tuesday should have been enough to get both sides talking, and
what we're sending now goes even further. I hope you'll be ready
to resume our negotiations and work with us to bridge the re-
maining gaps.”
The Union’s new attached proposal on schedule A was the
first Union proposal in negotiations that accepted the Employer’s
concept of a two-tier wage and job proposal. The Union’s pro-
posal accepted for the first-time portions of the Employer’s
“wage philosophy proposal” and delayed until March 31, 2016,
the date for evaluating whether an employee should be reduced
to a Level A status. It also proposed an across-the-board wage
increase of approximately 3 percent in August 1, 2016 and Au-
gust 1, 2017. (See, Jt. Exh. 29) (i.e., an increase in the minimum
for Level A technicians from $28.84 to $29.71 on 8/1/16, and to
$30.60 on 8/1/17; and an increase in the minimum for AA tech-
nicians from $34.35 to $35.38 on 8/1/16, and to $36.44 on
8/1/17).
The Union’s counterproposal on the buyout of those employ-
ees designated Level A followed the Employer’s proposal in es-
sence, but provided that employees would be informed of their
presumptive designation as Level A as of December 1, and have
until April 30, 2016, to try to achieve the proficiencies necessary
to meet Level AA status or take the severance/buyout package.
In essence, as Henne explained to the Employer in his November
9 email: “Our proposal for the [Memorandum of Agreement] is
based on the men being able to get the required training or
coursework within the time allowed.” The Union’s November 9
proposal also accepted for the first time, in schedule A, section
4, the wage progression language advanced by the Employer,
and the Employer’s schedule A section 5, agreeing to the elimi-
nation of per diems and instead, there would be actual reimburse-
ment for travel, mileage, cell, and expenses, subject to change at
the Employer’s discretion. Jt. Exh. 29, p. 3; Tr. 122.
Feller responded the next day, November 10. His note fo-
cused on the inclusion of wage increases rather than the fact that
the Union accepted the concept of the two-tier wage and job clas-
sification, and the buyout:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
We have reviewed the new proposals that you have forwarded.
These proposals are arguably regressive, and are certainly pre-
dictably unacceptable given that we have repeatedly and con-
sistently advised you that we are not in a position to provide
guaranteed, across the board increases. As such, we continue
to consider the parties to be at impasse. Our last, best, and final
offer remains on the table (as is), though since the MOA was
presented to you nearly 40 days ago, we are willing to move
back the effective dates by 30 days [i.e., December 30, 2015]
in light of the passage of time.
The next day, Henne responded to the Employer’s rejection,
offering further movement directed toward the Employer’s neg-
ative reaction to the union’s proposal on across-the-board in-
creases:
I don't know how you feel the proposals and positions we've
sent you over the last week are regressive, and if you want to
explain that I'd like to hear it. As far as our last move being
“predictably unacceptable,” it's seeming more and more that no
matter what concessions we make or what new approach we
show we're willing to try, we can predict that you'll say no and
you'll also say you're not willing to talk and try to reach agree-
ment, so maybe you're right on that one.
But here's another try, based on your position that you aren't
able to provide guaranteed, scheduled increases—For the
Schedule A proposal I sent on Monday, we'll withdraw the re-
quest for the increases and Instead propose that increases or bo-
nus payments up to the equivalent of the guaranteed increases
we had requested that are given to one employee have to be
matched for the other employees, but that matching will not
apply to amounts over that.
I'm attaching the revised proposal showing this.
The revised proposal described in Henne’s letter deleted the min-
imum wage increases and instead added the following language:
If between April 1, 2016 and July 31, 2017 the Company in-
creases the rate of pay to any Level A technician so it is paying
him any amount up to and including $29.71 per hour it shall
provide the same increase to all other Level A technicians and
it will have the same obligation if, between August 1, 2017 and
July 31, 2018, it is paying any Level A technician any amount
over the minimum rate up to and including $30.60 per hour.
Any bonus payments the Company makes to any Level A tech-
nician will be treated the same way. The Company will not be
required to match increases or provide additional bonus pay-
ments to the other Level A technicians for increases it provides
or bonuses it pays to any Level A technician over these
amounts as specified in this paragraph.
The Employer responded the next day, November 12, in a let-
ter that was essentially a duplicate of its November 10 letter.
Feller wrote:
20 I note that nothing in the Company’s LBF offer, or any proposal by
the Company at any time during the negotiations “incorporates” the uni-
laterally-drafted and administered employee handbook. There is no part
of the Company’s proposals which is susceptible to a reading that would
We have reviewed the new proposals that you have forwarded.
These proposals are arguably regressive, and are certainly pre-
dictably unacceptable given that we have repeatedly and con-
sistently advised you that we are not in a position to provide
guaranteed, across the board increases. As such, we continue
to consider the parties to be at impasse. Our last, best, and final
offer remains on the table (as is), though since the MOA [on
the severance/buyout] was presented to you nearly 40 days ago
we are willing to move back the effective dates by 30 days [i.e.,
December 30, 2015] in light of the passage of time.
Implementation: on December 3, the Employer announces Jan-
uary 1, 2016 implementation; the Parties have a conference call
December 30; on January 4, 2016, the Employer confirms by
letter to Employees that it has implemented
The record reveals no further communication between the par-
ties until the evening of December 3, 2015, when Feller emailed
Henne a “copy of a letter that has been mailed to your office.”
The email subject line read “Impasse and Implementation Let-
ter.”
Feller’s December 3 implementation letter notes that he had
not heard from Henne since Feller’s November 12 letter. The
letter accused the Union of being “unable to make substantive
movement on the key remaining issues in dispute,” of “engaging
in delay tactics to forestall implementation of the company’s”
October 2 offer, and stated that “we have waited as long as we
reasonably can regarding the implementation of certain eco-
nomic terms consistent with our LBF [offer].” The letter then
stated:
Effective January 1, 2016, the Company will implement the
following economic terms of its LBFO (which incorporates the
employee handbook dated June 1, 2009):20
Vacation—i.e., accrual based vacation (administered as per
employee handbook); techs with 5-weeks of annual vacation
allowance as of 2015 will have that allowance grandfathered
Sick/Personal Days (SPD)—move to 6-days per year (48-
hours), issued on January 1st each year for use within the cur-
rent year; no roll or payout from year to year
Per diem—eliminate and move to actual expenses incurred
Cell phone—move to new reimbursement level
401 K—discontinue company match
Severance–cap at 26 weeks effective January 1st for layoffs oc-
curring in the future (except as applies to the seven (7) A-level
techs referenced below).
As to the seven (7) A-level techs, we will proceed to offer each
the choice of enhanced severance, working towards AA level,
or a reduction in wages effective consistent with the LBFO, but
with decisions to be made by December 31, 2015, with an
make the handbook a part of the collectively-bargained labor agreement
if the Company’s proposal was adopted as collective-bargaining agree-
ment.
ALTURA COMMUNICATION SOLUTIONS, LLC 33
effective date of February 1, 2016.
Feller closed the letter noting that “[t]he Company will con-
tinue to reserve the right to implement other terms and conditions
of employment consistent with its LBFO as long as the impasse
in negotiations continues” but that it was “open to further nego-
tiations . . . if and when the Union has substantive movement to
make that may break the impasse. Please contact me as neces-
sary for that purpose.”
The Union responded on December 11, in a letter written by
Paul Wright, the Union’s president and business manager. The
letter challenged the assertions in Feller’s December 3 letter
about the breakdown of negotiations and stated that the Union
had
sent you what we thought was a significant proposal on No-
vember 11, and . . . had sent other proposals before that. Your
response each time was to reject our proposals and to label
them as ‘regressive,’ even though each of them moved closer
to the company's position on various subjects. And you re-
peated your unwillingness to schedule another negotiating ses-
sion with us.
Wright’s response pointed out that “The reason [Henne] was
not in touch with you after the email you sent him on November
12 is that what you sent him, and the communications before
that, did not suggest a response by him would get anywhere.”
Wright challenged Feller’s assertion that the Company had been
willing to meet and cited Feller “telling us that you would not
even meet or talk with us unless we made what you considered
to be acceptable concessions ahead of time. To repeat our posi-
tion one more time, we would like to meet with you in person or
by vide/teleconference to continue negotiations, and you can
contact [Henne] anytime to make arrangements.” (emphasis in
original).
Wright also asserted that the Employer had failed to negotiate
in good faith, that the parties were not at impasse, that imple-
mentation would violate the NLRA, and that “Local 21 does not
authorize the company to engage in direct dealing with [the em-
ployees] . . . your letter identifies as ‘the seven (7) A-level techs,”
or with any other members of the bargaining unit.” Wright
closed by asking Feller to contact Henne if he was ready to re-
sume negotiations.
Feller responded for the Employer on December 16, disputing
Wright’s “biased characterization of the bargaining” and assert-
ing that “[y]ou continue to insist on wanting to meet, but present
nothing suggesting such further meetings will be productive to
break the impasse.” Feller declared that the Employer was mov-
ing ahead with implementation, but “[n]onetheless” was willing
to meet in Fullerton or by teleconference, although “we still view
the negotiations to be at impasse.”
The parties did have a short conference call on December 30,
with Henne and Grindle on the phone for the Union, and Feller
and Blazek on the phone for the Employer. Feller asked what
the Union had to present today. Henne told the Company “we’ve
21 At trial, Henne testified that his query on “management rights” re-
ferred generally to art. 2 titled “management rights,” which included
2.3—the “subcontracting” clause—which the Union had consistently
moved dramatically since what we sent in Anaheim . . . every
time we send anything, you say that the movement isn’t enough
to even warrant a conference call.” Feller confirmed that “we
don’t really have any room for movement at this time” in any
aspect of the Company’s offer. Blazek contended “what we have
offered is fair for everybody. We have nothing to propose, if you
have something to propose we will consider it, but we don’t have
any room to move on what we’ve put out there.” Henne noted
that the last counter offers sent by the Union had “been mainly
on monetary issues” and asked “if I sent you something on man-
agement rights, is there anything that the Company might be
willing to move on.” Blazek said, “that’s such an open-ended
question, that I don’t know how to answer that.” Feller again
said, “we don’t have any room to move really.”21
The subject turned to the implementation, which the Employer
expressed its intent to go forward with on January 1. Feller said,
“let me clarify that, we are implementing the things we put on
the [December 3, 2015] letter.” Later he stated in response to a
question, “oh yes, the things on the December 3rd letter we plan
to implement on January first.”
The Union, referencing the December 3 letter’s statement that
the seven Level A techs being offered the severance/buyout
would have until December 31 to decide whether to terminate
and take severance or stay at a reduced wage, asked, if the pro-
posal is being implemented Friday, January 1, “how do the 7 em-
ployees answer if it’s not been offered yet?” Feller asked Henne
if he was “hung up on the timing” but that “the rest you’re good
with?” Henne said, that he was “not good on any of it, but having
a hard time with the timing from your effective letter of Decem-
ber 3rd.” Feller said that the Company would have to provide
the employees notice and that the Employer would “work on”
the timing, but that generally implementation would occur on
January 1, as stated in the December 3 letter. Blazek added that
“with the timing we would look at working with you to send a
letter to the [employees] and envision working with you on for-
matting a letter and contacting them.”
However, the Employer told the Union that one of the Level
A employees (not scheduled for a pay cut) had resigned and one
of the others took his place so that only six employees would
receive the pay cut and the option of terminating with severance.
The Employer again indicated it would contact the Union about
a letter going to the six employees the following week. Turning
back to the bargaining, Henne referenced the November 9 and
11 proposals and Feller said that the Employer had considered
those. Henne told them he had nothing else further to offer at
this point, but expressed the view “we might have additional of-
fers, but I don’t think that anything we offer will satisfy what the
company’s looking for.” Blazek retorted, “to be clear, you said
you have nothing further to offer, we don’t either, it’s not realis-
tic to negotiate when you have nothing . . . there’s nothing else
for us to talk about.” The call ended soon thereafter.
By letter dated January 4, 2016, to employees from Henion,
the Employer stated that its implementation was effective
opposed. I find this plausible, as the Union had not been contesting sub-
sec. 2.1 (also titled and referred to as “management rights”) since the
Company’s July 30 offer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
January 1, 2016. The letter was not sent to the Union, but a bar-
gaining unit employee who received it forwarded a copy to Grin-
dle.
In its letter to employees, the Employer asserted that “negoti-
ations have hit an impasse or stalemate, with neither party will-
ing to move off of key issues. With the old contract now having
been expired for more than five months, the Company believes
that it has waited as long as it reasonably can to implement cer-
tain economic terms consistent with our most recent last, best
and final offer.” The Company indicated “[a]s communicated in
earlier negotiations updates,” effective January 1, 2016, “we plan
to make the following changes in economic terms, included in
the Company’s LBFO (which incorporates the employee hand-
book dated June 1, 2009)”:
Vacation—I.e., accrual based vacation (administered as per
employee handbook); techs with 5-weeks of annual vacation
allowance as of 2015 will have that allowance grandfathered
Sick/Personal Days (SPD)—move to 6-days per year (48-
hours), issued on January 1” each year for use within the cur-
rent year; no rollover or payout from year to year
Per diem—eliminate and move to actual expenses incurred
Cell phone—move to new reimbursement level, $70 if using
Smartphone for company applications
40I K—discontinue company match
Severance—capped at 26 weeks (except for enhanced sever-
ance offers being made to certain technicians)
A small group of technicians will be offered a choice of taking
enhanced severance, or accepting a reduction in wages with the
opportunity to upgrade their skill sets (as has been bargained
with the Union). Those technicians will be contacted individu-
ally to discuss those options.
Please note that this is only a partial and interim implementa-
tion of terms necessitated by the deadlock in negotiations and
the coming of the new calendar year. The Company remains
open to further negotiations with the Union in the hope of
reaching an agreement, if and when the Union has substantive
movement to make that may break the impasse. If you have
questions please contact me or your union representatives.
In accordance with the letter, during January the Employer re-
classified certain technicians to Level A and conducted meetings
with each of the six employees who were picked by the Em-
ployer to have their wages reduced as part of the reclassification.
These employees received their “options package” well into Jan-
uary, and five of the six made their decision in February 2016.
Contrary to what was stated on the December 30, 2015 confer-
ence call between the Union and the Employer, the evidence in-
dicates that the Union was not contacted regarding the formulat-
ing of a letter to the employees being offered the severance buy-
out.
Five employees—David Pickett, Jeff Stewart, Jerry Nanson,
Brian Stark, and Paul Curran—accepted the severance/buyout.
One employee—Veryl Carr—stayed with the employer and ac-
cepted a wage reduction to $28.84. The Union learned about the
meetings from the employees not the Employer. The Union par-
ticipated in three or four of the meetings by phone, making clear
that the Union believed the offers of severance unlawful.
Further developments; February–April 2016
On February 5, 2016, the Employer announced to the Union
that it wanted to provide individualized wage increases based on
its assessment of employee qualifications to bargaining unit em-
ployees beginning the week of February 29. The expired prior
labor agreement had allowed such increases, and the Employer’s
letter to the Union said that these increases were “consistent with
individualized increases over the minimum rates implemented
under the parties’ past agreements.” The Employer attached a
spreadsheet that showed raises of either $0.25, $0.50, and $0.75
cent per hour for specified Level AA employees and no raise for
the seven employees listed as Level A employees (These were
Level A employees that had not been subject to the earlier pay
cut and severance/buyout option). The Employer’s letter asked
if the Union had any objection or would like to meet to otherwise
discuss further. The Employer indicated that if it did not hear
from the Union by February 19, it would “assume there is no
objection and we will proceed with the proposed increases.”
On February 18, the Union responded, asserting that the Em-
ployer had not bargained over the proposed increases, that the
Union did not agree with this conduct, requested a resumption of
bargaining over all aspects of the contract, and invited the Em-
ployer to the Union’s Chicago offices for bargaining at the
“soonest date we can arrange.” The Employer responded Febru-
ary 22, saying it was willing to meet—by conference call or at
its Fullerton headquarters—“[i]f the union believes that our pro-
posed increase now creates an opportunity to break the impasse
in negotiations.” On February 26, the Employer wrote the Union
saying that if it did not “hear back from you by Monday, Febru-
ary 29, 2016, we plan to move forward with the proposed pay
increases.” On February 28, the Union wrote stating that “the
Union does not believe there is or ever was an impasse, and I
think you know we have repeatedly asked the company to re-
sume negotiations.” The Union wrote that “[w]e would rather
meet in person and since we made the last trip we feel that the
next session should be here. But if you are not willing to do that,
we will meet by video or teleconference.”
A conference call to discuss the proposed wage increases was
held on March 4. During the call Feller brought up that the Com-
pany “still felt the Union and the Company were at impasse and
that . . . if we didn’t agree on this proposal, they would imple-
ment it.” At the Union’s request, a second call was held on the
issue on March 15. The Union wanted pay raises distributed
equally and mentioned to the Employer that one employee—
Veryl Carr—who had turned down the severance and taken a pay
cut—was not listed on the Company’s employee spreadsheet.
Although Blazek expressed impatience with the call, the Union
asked for additional information about how employees were cho-
sen for the merit increases, which Henne put in writing to the
Company on March 21. Feller’s March 24 response indicated
that the increases were consistent with factors used under the old
contract to provide discretionary wage increases. The Union
then asked the Company to consider providing a raise generally
for everyone, even if the amounts provided for each employee
ALTURA COMMUNICATION SOLUTIONS, LLC 35
differed. The Employer rejected this in an April 8 note, stating
that it did not consider the Union’s suggestion a proposal, and
that the Company had no further proposal to make and that un-
less the Union “has any further proposal that would result in the
union taking back a full and complete tentative agreement in-
cluding all other terms of the Company’s LBFO . . . it doesn’t
appear that additional bargaining is useful.” The Union re-
sponded on April 11, reiterating the Union’s view that there was
never a legitimate impasse and that the Union continues to dis-
pute the Employer’s right to establish Levels A and AA. How-
ever, the Union wrote that it hoped that the standalone discus-
sions on wages might help get an increase for employees and
lead to some momentum to reestablish full contract negotiations.
As for specific raises, the Union proposed that all AA employees
get a 43-cents-per-hour wage and all A technicians get a 33-
cents-per-hour raise. According to Henne, the total would be
less than the total amount the Employer proposed spending in its
original February 5 wage increase proposal (i.e. offering be-
tween 25 and 75 cent increases to AA employees and nothing to
A employees). This proposal was rejected by the Employer the
same day on grounds that wage rates had to be “driven by the
skills and qualifications of employees and the ability to utilize
employees to perform work required by our clients in the geo-
graphic markets that we serve. We are therefore rejecting the
Union’s proposal. Do you have any other proposals to make?”
The Union responded April 12, stating that it had made two
proposals on wages but “[s]o far you’ve just kept saying no and
standing on what you said you wanted to do to begin with. So
I’d like to ask if you have anything else to propose.” The Em-
ployer responded on April 12, “We have no additional proposals
to make, you are in receipt of our LBFO [from October 2,
2015].”
Analysis
The complaint alleges that by its overall conduct, as of Octo-
ber 22, 2015, the Respondent has failed and refused to bargain
in good faith with the Union in violation of Section 8(a)(5) and
(1) of the Act.
In addition, the General Counsel argues that the Employer’s
unilateral implementation of portions of its bargaining pro-
posal—first announced December 3, 2015, and effective January
1, 2016—is independently violative of Section 8(a)(5) and (1).
As discussed below, I agree with the General Counsel as to
both claims.22
I. FAILING AND REFUSING TO COLLECTIVELY BARGAIN AND IN
GOOD FAITH
Section 8(a)(5) of the Act provides that it is an unfair labor
22 The October 22, 2015 date alleged for the commencement of the
bad-faith bargaining violation reflects preemptive acknowledgment by
the General Counsel that allegations of unlawful conduct prior to Octo-
ber 22, would be subject to a statute of limitations defense under Sec.
10(b) of the Act. 29 U.S.C. § 160(b). The Union’s initial unfair labor
practice charge was filed April 21, 2016. Sec. 10(b) of the Act provides
for a 6-month statute of limitations. As is obvious from the preceding
account of events, much of the story relevant to the General Counsel’s
allegations occurred outside the 10(b) period, however, no violation is
practice for an employer “to refuse to bargain collectively with
the representatives of his employees.” Section 8(d) of the Act
defines the duty to bargain collectively as
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, or the negotiation of an
agreement or any question arising thereunder, and the execu-
tion of a written contract incorporating any agreement reached
if requested by either party.
The Supreme Court has observed that “[c]ollective bargaining
. . . is not simply an occasion for purely formal meetings between
management and labor, while each maintains an attitude of ‘take
it or leave it’; it presupposes a desire to reach ultimate agreement,
to enter into a collective-bargaining contract . . . in a process that
look[s] to the ordering of the parties' industrial relationship
through the formation of a contract.” NLRB v. Insurance Agents'
International Union, 361 U.S. 477, 485 (1960). The parties are
“bound to deal with each other in a serious attempt to resolve
differences and reach a common ground.” 361 U.S. at 486. The
Act requires that the parties “enter into discussion with an open
and fair mind, and a sincere purpose to find a basis of agree-
ment.” NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th
Cir. 1960).
“In determining whether a party has violated its statutory duty
to bargain in good faith, the Board examines the totality of the
party's conduct, both at and away from the bargaining table.”
Public Service Co. of Oklahoma, 334 NLRB 487, 487 (2001)
(internal citations omitted), enfd. 318 F.3d 1173 (10th Cir.
2003). “From the context of an employer’s total conduct, it must
be decided whether the employer is lawfully engaging in hard
bargaining to achieve a contract that it considers desirable or is
unlawfully endeavoring to frustrate the possibility of arriving at
any agreement.” Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984); Public Service Co., supra at 487. However, it has
never been required that a respondent must have engaged in
“wholesale and wide-ranging” misconduct in every aspect of its
actions before it can be concluded that bargaining has not been
conducted in good faith under the Act. Altorfer Machinery Co.,
332 NLRB 130, 148 (2000). Rather, “bad faith is prohibited
though done with sophistication and finesse.” Herman Sausage
Co., 275 F.2d at 232; Regency Service Carts, Inc., 345 NLRB
671, 671–672 (2005).
It is a statutory requirement that good-faith bargaining “does
not compel either party to agree to a proposal or require the mak-
ing of a concession.” 29 U.S.C. §158(a)(5). At the same time,
the employer is “‘obliged to make some reasonable effort in
alleged (or will be found) for the pre-October 22 conduct. I note that
there is no basis for objecting—and the Employer does not object—to
consideration of pre-10(b) events in evaluating the allegations within the
10(b) period. Indeed, the Employer equally (and appropriately) relies
upon pre-10(b) events as part of its defense of its conduct. See, Regency
Serv. Carts, 345 NLRB 671, 672 fn. 3 (2005) (“we consider the earlier
bargaining as background in elucidating the nature of the Respondent’s
conduct at the table during the 10(b) period”); Fruehauf Trailer Services,
335 NLRB 393, fn. 5, 404–405 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
some direction to compose his differences with the union, if
[Section] 8(a)(5) is to be read as imposing any substantial obli-
gation at all.” Atlanta Hilton & Tower, 271 NLRB at 1603, cit-
ing NLRB v. Reed & Prince, Mfg., 205 F.2d 131, 135 (1st Cir.
1953), cert. denied, 346 U.S. 887 (1953). “Although the Board
does not evaluate whether particular proposals are acceptable or
unacceptable, the Board will examine proposals when appropri-
ate and consider whether, on the basis of objective factors, bar-
gaining demands constitute evidence of bad-faith bargaining.”
Public Service Co., supra at 487–488, citing Reichhold Chemi-
cals, 288 NLRB 69 (1988), aff'd. in relevant part 906 F.2d 719
(D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991); Coastal
Electric Cooperative, 311 NLRB 1126, 1127 (1993) (in as-
sessing bad-faith bargaining, “an examination of the proposals is
not to determine their intrinsic worth but instead to determine
whether in combination and by the manner proposed they evi-
dence an intent not to reach agreement”).
In this case, I agree with the General Counsel and the Union
that the Respondent bargained in overall bad faith without intent
to reach an agreement on and after October 22, 2015. First, in
its proposals, and consistent with its stated goals for bargaining,
the Employer insisted on unilateral control over virtually all sig-
nificant terms and conditions of employment of unit employees
in a manner that the Board recognizes as an indication of bad-
faith bargaining. In addition, beginning in August 2015, the Em-
ployer realized that its initial June and July bargaining had failed
to quickly obtain union agreement to a contract ceding unilateral
control to the Employer. In the months thereafter, it began a
course of bad-faith bargaining without intent to reach an agree-
ment that by October and November grew steadily more at odds
with the Act’s requirements for good-faith bargaining. Begin-
ning first in August 2015, but increasingly in October and there-
after, the Employer repeatedly and falsely claimed impasse,
claims that were not mere rhetoric, but, particularly by mid-Oc-
tober began to be used as a sword to justify an unwillingness to
continue to engage in the normal bargaining process. By Octo-
ber and November, the Employer was setting preconditions on
meetings, dismissing and evading Union requests for bargaining,
and rejecting without consideration new and significant Union
proposals that attempted to narrow or eliminate the differences
between the parties’ positions. These were strategies to avoid
bargaining and avoid agreement and reflected unlawful bad-faith
bargaining. The General Counsel also argues, and I agree, that
the Employer’s implementation of portions of its final offer—
announced December 3, 2015, and effective January 1, 2016—
was independently unlawful. This unlawful implementation also
adds to the case of overall bad-faith bargaining.
A. Proposals
As an indication of overall bad-faith bargaining, the General
Counsel alleges that the Respondent insisted upon proposals that
were predictably unacceptable to the Union.
As an indication of bad-faith bargaining, this factor sits astride
the “[o]bvious[ ] . . . tension between the principle that the par-
ties need not contract on any specific terms and a practical en-
forcement of the principle that they are bound to deal with each
other in a serious attempt to resolve differences and reach a com-
mon ground.” NLRB v. Insurance Agents’ Int’l Union, 361 U.S.
477, 486 (1960). The Board has explained that while it will not
“decide that particular proposals are either ‘acceptable’ or ‘un-
acceptable to a party, . . . relying on the Board’s cumulative in-
stitution experience in administering the Act, we shall continue
to examine proposals when appropriate and consider whether, on
the basis of objective factors, a demand is clearly designed to
frustrate agreement on a collective-bargaining contract.” Reich-
hold Chemicals, 288 NLRB 69, 69 (1988), enfd. in relevant part,
906 F.2d 719 (D.C. Cir. 1990); NLRB v. Wright Motors, 603 F.2d
604, 609 (7th Cir. 1979) (“Sometimes, especially if the parties
are sophisticated, the only indicia of bad faith may be the pro-
posals advanced and adhered to”).
One aspect of the Board’s review is to consider whether an
employer’s proposals “taken as a whole, would leave the union
and employees it represents with substantially fewer rights and
less protection than provided by law without a contract.” Re-
gency Service Carts, Inc., 345 NLRB at 675:
An inference of bad-faith bargaining is appropriate when the
employer's proposals, taken as a whole, would leave the union
and employees it represents with substantially fewer rights and
less protection than provided by law without a contract. Id. at
488 (citing, inter alia, A-1 King Size Sandwiches, Inc., 265
NLRB 850, 859–861 (1982), enfd. 732 F.2d 872, 877 (11th
Cir. 1984), cert. denied 469 U.S. 1035 (1984)). “In such cir-
cumstances, the union is excluded from the participation in the
collective-bargaining process to which it is statutorily entitled,
effectively stripping it of any meaningful method of represent-
ing its members in decisions affecting important conditions of
employment and exposing the employer's bad faith.” Id.
Regency Carts, supra.
One way to “leave the union and employees . . . with substan-
tially fewer rights and less protection than provided by law with-
out a contract” (Regency Service Carts, supra at 675) is when an
employer’s “proposals establish that the Respondent insisted on
unilateral control of over virtually all significant terms and con-
ditions of employment of unit employees during the life of the
contract.” Id. A labor agreement not only establishes the terms
and conditions of employment for the duration of the contract, it
also releases the employer from the duty to bargain during the
term of the contract over subjects as to which bargaining is
waived pursuant to the contract. In the absence of a contract, a
union can demand bargaining over every change in a mandatory
subject proposed by an employer. Through the establishment of
the contract, the union typically cedes this right, at least as to
matters “waived” by the contract. But where the union and em-
ployees may be worse off by accepting the proposed contract
terms than by retaining the right to bargain, an inference of bad-
faith bargaining is appropriate. Thus, as the Board described the
problem in Regency Service Carts, supra at 675–676:
These proposals establish that the Respondent insisted on uni-
lateral control of over virtually all significant terms and condi-
tions of employment of unit employees during the life of the
contract. Taken as a whole these proposals required the Union
to cede substantially all of its representational function, and
would have so damaged the Union's ability to function as the
employees' bargaining representative that the Respondent
could not seriously have expected meaningful collective
ALTURA COMMUNICATION SOLUTIONS, LLC 37
bargaining. P[ublic Service Co.], supra, at 489; Hydrotherm,
Inc., 302 NLRB 990, 994 (1991) (employer's broad manage-
ment-rights proposal that would make futile any grievance over
a discharge and almost every other aspect of wages and work-
ing conditions was evidence of bad faith). Indeed, if accepted,
the Respondent's proposals would have left the Union and the
employees with substantially fewer rights and protection than
they would have had without any contract at all. Such proposals
demonstrate bad faith. P[ublic Service Co.], supra at 489.
Here, the Respondent began bargaining on June 4, 2015, with
proposals that demanded the Union cede unilateral control over
virtually all meaningful terms and conditions of employment
during the life of the contract. Although there were some
changes in its proposals as bargaining progressed, in many as-
pects it maintained these positions demanding unilateral control
at all times. While the Employer attended bargaining, provided
information when requested, and sat through bargaining ses-
sions—at least from June 4 until September 24—the demands it
adhered to—into the 10(b) period beginning October 22, 2015,
taken as a whole, provide evidence of bad-faith bargaining.
From the outset of the negotiations, the Respondent refused to
consider any framework but its own—a framework involving a
complete revision of the existing contract. It bargained only
from its model throughout the entirety of the negotiations. And
it was a format that consistently reimagined the collective-bar-
gaining relationship in a manner that would leave the Union with
less rights, and employees with less protection, than they would
have under the law in the absence of a contract.
First, from day one, the Respondent insisted on an exhaust-
ively broad management rights clause (sec. 2.1) that specifically
reserved nearly every function for management. This proposal
was offered in the initial bargaining session and only inconse-
quentially changed through the 2nd Revised LBF offer of Octo-
ber 2. In addition, section 2.2, while located in the management-
rights article, placed threshold limits on the use of article 5’s
grievance-arbitration procedure:
It is recognized that the Company has the right to manage its
business and direct its employees as in its judgment it deems is
proper, unless restricted by the express language of this Agree-
ment. Accordingly, the exercise of such right or action taken
23 The final October 2 proposal stated:
Section 4.1. No Strike[.] The grievance and arbitration procedure
set forth in Article 5 are the exclusive means of resolving any
claimed violation of this Agreement, whether or not a grievance
has been filed. Accordingly, there shall not be (nor shall the Union,
its agents, officers, stewards, representatives, or employees encour-
age, instigate, promote, sponsor, engage in or sanction) any strike
(including sympathy strike), picketing, boycott, hand-billing, sit-
down, stay-in, slowdown, concerted refusal to perform work (in-
cluding overtime) and other tactics to disrupt normal operations,
mass absenteeism, or any other intentional curtailment, restriction,
interruption or interference with operations or work, or protest re-
gardless of the reason for so doing. This provision is enforceable
to the extent permitted by law. This provision will not be applied
to punish employees in situations where of a picket line is initiated
by another labor union not affiliated with the Union in which there
by the Company which is not specifically and clearly limited
by the express terms of this Agreement, cannot be the subject
of the grievance and/or arbitration procedures under this
Agreement. [Emphasis added.]
Moreover, the Respondent insisted from day one on a com-
prehensive zipper clause that required a total waiver of the Un-
ion’s bargaining rights. To this it added an insistence on an un-
usually broad waiver of employee and union rights in its no-
strike clause, without any explanation or justification. Thus, the
Employer’s no-strike proposal, which it maintained at every
juncture, prohibited employees—on penalty of “discharge or
other discipline, at the discretion of the Company”—from even
“handbilling” or engaging in any “protest regardless of the rea-
son for doing so.”23 As the Board pointed out in American Meat
Packing Corp., 301 NLRB 835, 838 (1991):
Under that proposal, for example, if the Respondent at various
times during the year failed to pay the contractually specified
wages to an employee or employees, or to comply with con-
tractual holiday provisions, and if it rejected the Union's griev-
ances on these subjects, the injured employees would not even
be able to communicate their protest in handbills to other em-
ployees or to the public during periods outside of their regular
working hours.
To this, in our case, the Respondent’s clause made “protest
regardless of the reason” a dischargeable offense. As in Ameri-
can Meatpacking, no justification for such overreaching pro-
posals was ever provided by the Respondent, but it evinces hos-
tility to employee rights.24
These foregoing proposals, on which the Employer was un-
yielding in the essentials throughout negotiations, formed the le-
gal backbone to additional proposals that, if accepted, would
have left the employees worse off with a contract than without.
Chief among these was the Respondent’s unwavering com-
mitment to having the ability to have all bargaining unit work
performed by nonemployees, nonunit individuals, and supervi-
sors. This was expressly insisted upon as an aspect of the article
2 (management rights) that the parties referred to as the subcon-
tracting clause, section 2.3. But it was far broader than that. On
June 4 the proposal stated:
is a good faith safety concern; however, in the event that reasonable
measures are taken to assure the safety of the employee, the em-
ployee shall report or return to work.
24 I note that “the most reasonable construction” of the no-strike lan-
guage is not that “handbilling” or “protest regardless of the reason for so
doing” are only forms of or modified by “interference with operations of
work.” Certainly there is no evidence that the Employer made clear that
its proposal did not bar all handbilling or protest. Indeed, in response to
the Union’s concerns, the Employer added the proviso “unless such ac-
tion(s) are covered and protected by law,” which in later drafts became,
“This provision is enforceable to the extent permitted by law.” The rea-
son that was added was precisely because of the overly-broad unlawful
sweep of the language. Again, the point is not whether the Respondent’s
no-strike clause was independently unlawful—a point I do not reach—
but whether its overreach, in the full context of negotiations, provides
evidence of bad faith. I believe it does.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
Managers, supervisors, other non-unit employees (including,
but not limited to contingent workers), and other non-employ-
ees shall be permitted to perform any work (including work
otherwise performed by employees in the bargaining unit) for
the operation of the Company's business.
By October 2, some words had been moved around and the
clause read:
Non-bargaining unit employees (including, but not limited to,
supervisors and –contractors) shall be permitted to perform any
work (including work otherwise performed by employees in
the bargaining unit) for the operation of the Company's busi-
ness.
The import was the same: combined with the expansive man-
agements rights and zipper clause, the Respondent was demand-
ing throughout negotiations that it be free throughout the term of
the contract to turn any and all bargaining unit work over to su-
pervisors, contractors—any nonbargaining unit employees—as
a means of operating the business. I note that Blazek testified
that he shared the view that this language gave the Company “to-
tal flexibility” in deciding when and whether to use bargaining
unit employees. (Tr. 750-751.)
Indeed, the Employer 2015 bargaining proposal omitted all
references from the 2012 contract that purported to identify any-
thing called “bargaining unit work.” Thus, the 2012 Agreement
provided for article 4, “Technician Bargaining Unit Work”,
which referenced “work functions exclusively performed by
Bargaining Unit employees as of August 1, 1994,” and more
generally “[d]uties normally performed by Bargaining Unit em-
ployees.” In article 12 of the 2012 Agreement (Recognition), the
contract stated that the Company “will negotiate with the Union
with respect [to wages, hours, and terms of conditions] of bar-
gaining unit employees on assignment to any geographic loca-
tions covered under the IBEW’s jurisdiction prior to such assign-
ments [with some exceptions for urgent business needs].” By
contrast, the Employer’s 2015 proposals were scrubbed clean of
any acknowledgement or recognition of anything that could be
called “bargaining unit work.” Indeed, the Employer insisted at
all times on language that negated the concept of “bargaining
unit work”: requiring, for instance, in section 10.1 of the Em-
ployer’s proposal—maintained throughout negotiations—that
Nothing in this Article or Agreement shall be construed to cre-
ate job or work jurisdiction or ownership in any particular
group or classification of employees (inside or outside the bar-
gaining unit) nor to prevent the assignment of employees to
other work on regular or overtime hours or to cause the ineffi-
cient or ineffective use of manpower.
Consistent with this, the Employer adamantly and at all times
resisted the Union’s efforts to even implicitly suggest that bar-
gaining unit employees had some right to employment. The Em-
ployer unyieldingly insisted on language in section 10.1 that
stated that “nothing in this Agreement shall be construed as a
guarantee of hours of work per shift, per day or per week.”
All of this is consistent with the Employer’s proposal to have
unfettered ability to eliminate the bargaining unit at will. Indeed,
the Company negotiators agreed that “technically,” “the minute
the membership ratified this agreement [the Company] could lay
every one of them off.” This is effectively an unyielding insist-
ence on a demand for the right to eliminate the bargaining unit
and it is, in context, one of several indicia of bad-faith bargain-
ing. See, American Meat Packing Corp., 301 NLRB 835, 837
(1991). Notably, in American Meat Packing, the “No Work
Preservation” clause permitted elimination of the bargaining unit
only if “essential to the running of a profitable business.” Here,
the language is broader—under the Employer’s proposal work
could freely be performed by nonunit employees when it was
“for the operation of the Company’s business.” And as in Amer-
ican Meat Packing, here, the zipper and management rights
clause would prevent the union from even bargaining over the
ramifications of an effective elimination of the bargaining unit
during the term of the contract. American Meat Packing, supra
at 837 (“there was no protection against the work’s being as-
signed or contracted away; and the broad zipper clause . . . would
prevent the Union from attempting to bargain over the ramifica-
tions of such an impact on the bargaining unite during the con-
tract term”). See also, In re Liquor Industry Bargaining Group,
333 NLRB 1219, 1221 (2001) (proposals that had effect of giv-
ing employer unrestrained ability to transfer work away from
unit employees and “effectively dissipate unit work” provided
evidence in support of overall bad-faith bargaining), enfd. 50
Fed. Appx. 444 (D.C. Cir. 2002).
In addition to the foregoing, the Employer’s proposals re-
served for itself unilateral control during the life of the contract
over broad areas of substantive terms and conditions of employ-
ment. Again, it cannot be ignored that, combined with the ex-
pansive management rights, section 2.2.’s limitation on use of
the grievance-arbitration procedure, and the zipper clause, agree-
ment to the proposals outlined below—with the attendant waiver
of bargaining rights—would leave the Union and employees
with less rights than without a labor agreement, for in the absence
of such a contract changes in each of these items would, at least,
have to be bargained.
The Employer proposed from the outset of negotiations and
maintained throughout negotiations that there would be a wage
and job reclassification that divided the unit employees into
Level A and AA, with A employees being, in management’s un-
fettered discretion, subject to significantly lower wage rates.
Wage rates and an employee’s classification level could be
changed at management’s discretion. The Respondent’s written
proposal is susceptible to being read that Level A and AA would
be determined based on various skills employees were “deemed”
to possess. The Board has recognized the subjective nature of
such assessments and the discretion that they give to manage-
ment in the absence of “objective criteria for assessing the deci-
sional factors.” Royal Motor Sales, 329 NLRB 760, 779–780
(1999). In any event, the Respondent made clear at the bargain-
ing table and at the hearing, that “any number of things,” includ-
ing “their attitude” “could cause [employees] to become a . . .
level A.” Blazek agreed that “In terms of what employees will
become a level A and what employees would become a level AA,
that at all times remained in the discretion of the Company to
determine. . . . And then once classified as level A that was de-
termined in the Respondent’s discretion if their pay then would
be reduced.” Consistent with this focus on unilateral discretion
(or “flexibility” as the Employer termed it), at all times the
ALTURA COMMUNICATION SOLUTIONS, LLC 39
Employer opposed on principle any type of across-the-board
wage hikes. The Employer was only willing to propose or accept
a minimum wage rate for Level A and AA employees and at all
times advanced proposals that provided that “Management, at its
discretion, may choose to give additional increases to individual
employees as warranted.” (schedule A, sec. 1, October 2 revised
LBF offer).25
The Employer proposed from the outset of negotiations and,
without compromise maintained throughout the negotiations,
that the decision of whom to layoff—which in the past had been
significantly based on seniority, would under the new contract
“be based on the skills, certifications, experience, and abilities of
the employees in the Seniority Area based on the judgment of
management as to which skills, certifications, experience, and
abilities are necessary to perform existing and expected future
client work.” Seniority had a role “[o]nly if management in its
sole discretion deems” employees to be laid off equal in the other
factors. This rule applied to layoffs due to “lack of work or due
to other business conditions.” Also important, from day one, the
Employer’s proposal explicitly stated that “a lack of training may
not be used by an employee or the Union as an excuse for not
having skills, certifications, experience or abilities.” The expir-
ing agreement provided (art. 25, “Performance Standards and
Training”) for extensive training rights and opportunities for em-
ployees, all eliminated under the Employer’s 2015 proposals.
Under the Employer’s proposals, layoff decisions were vested in
the unilateral discretion of the Employer, and the Union would
have no bargaining rights left on the subject.
The Employer’s bargaining proposal, from its first on June 4,
throughout negotiations, provided in article 14 that “The Com-
pany reserves the right to change all policies, rules, regulations,
and performance standards, provided such does not violate any
express term of this Agreement.” The Employer’s proposal
omitted any other provision governing performance standards.
See, by contrast, 2012 Agreement, article 25 “Performance
Standards and Training.”
The Employer’s proposal on healthcare was that unit employ-
ees would be offered the same healthcare plan, benefits, and rates
offered to nonbargaining unit employees. From June 4 through
to its final proposal on October 2, and thereafter, the Employer
maintained that the “The Company reserves the right to change
insurance policies, plans, carriers, administrators, providers,
benefits, coverages, deductibles, or co-payments or to self-insure
as it deems appropriate, provided such changes apply in the same
manner to non-bargaining unit employees.”
The Union had lived with a somewhat similar arrangement
under the 2012 Agreement with a key difference—a difference
that highlights the Employer’s attitude in these negotiations: in
the 2012 Agreement the Employer’s discretion to change
healthcare was cabined by the promise that “the Company will
continue to provide comparable comprehensive coverage” for
the life of the agreement, notwithstanding its right to make
changes. In these negotiations, the Employer adamantly refused
25 I recognize that the prior agreement permitted discretionary indi-
vidual wage increases. But the point is that in 2015, discretionary ad-
justments were the only ones Altura would entertain.
to add any such language that allowed the Union to know that its
concomitant waiver of bargaining over healthcare for the term of
a new agreement would mean that employees would receive
healthcare. The Employer was clear on this. Asked if the Em-
ployer could eliminate healthcare under its proposal, Blazek was
forthright: “yeah, there's no obligation to provide healthcare,
other than what's in Obamacare, we have legal, there's nothing
in the agreement to do that. I don't know why we need that in an
agreement, we need to be competitive.” Asked at trial if the
Company could “get rid of health insurance completely” under
its proposal, Blazek responded, “the answer is yeah. The answer
is, yes, we could.” As Blazek explained in reference to getting
rid of the “comparable care” guarantee: “I wanted the ability to
treat everyone”—union and nonunion—“the same.”
Again, the common thread is the unilateral control of critical
terms and conditions of employment, a privilege that the em-
ployer enjoyed with nonrepresented employees and which
Blazek made clear he wanted in his dealings with union-repre-
sented employees.
Significantly, while the broad no-strike clause applied to the
disputes over healthcare, the grievance-arbitration procedure did
not. Section 11.4 of the Employer’s proposal, maintained con-
tinuously from June 4, throughout negotiations, stated that “Any
questions or disputes concerning said insurance policies or plans
or benefits thereunder shall be resolved in accordance with the
terms and conditions set forth in said policies or plans and shall
not be subject to the grievance and arbitration procedure set forth
in this Agreement.” Moreover, the Employer essentially ex-
empted itself from any liability for failure to deliver healthcare:
“The failure of any insurance carrier(s) or plan administrator(s)
to provide any benefit for which it has contracted or is obligated
shall result in no liability to the Company, nor shall such failure
be considered a breach by the Company of any obligation under-
taken under this or any other Agreement.” Thus, on healthcare
the Employer’s proposal at all times involved unlimited discre-
tion, no use of the contractual dispute mechanism—no matter
how explicit the violation—no ability to exercise statutory rights
to pressure the Company, no right to bargain, and no legal op-
tions for holding the Employer liable. The Union and employees
would be better off with no contract and the hope the employer
offered some form of healthcare, for which the statutory rules of
bargaining and liability would apply.
Again, all of these wage, healthcare, layoff and assignment
provisions were made in the context of an expansive manage-
ment rights clause and zipper clause, a broad no-strike clause,
and a grievance-arbitration procedure that only applied to Em-
ployer actions “specifically and clearly limited by the express
terms of this Agreement” (sec. 2.2) and gave the arbitrator au-
thority “expressly limited to a decision upon the question of al-
leged violation of a specific provision of this Agreement, rather
than indirect or implied intent thereof,” and “no authority” to
“establish or change wages, the wage structure, the job classifi-
cation, work methods or the benefits in this Agreement,” among
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
other limitations. See section 5.7. Essentially, given the wide
discretion expressly reserved for the Employer in the proposed
agreement, there was—and there was intended to be—no mean-
ingful way for an employee or the union to challenge action
taken by the Employer with regard to wages, classifications,
layoffs, work assignment, or benefits.
In terms of the bargaining, this case shares much with Public
Service Co., supra. There, as here, the employer came to the bar-
gaining from the outset with the view that the evolution of the
market and industry over many years warranted a contract sub-
stantively and fundamentally altering the relationship it main-
tained with the union for many years. There is no offense to the
Act in that. But, here, as in Public Service Co., the fixed and
stated goal of the employer was a contract that “unlawfully in-
sisted on proposals that granted it unilateral control over virtually
all significant terms and conditions of employment during the
life of the contract.” Public Service Co., 334 NLRB at 487.
Here, as in Public Service Co., “the Respondent went far beyond
what the law allows—and beyond what it should allow—if
meaningful collective bargaining is to be preserved.” Id. at 487.
This is a case, where the teachings of In re Liquor Industry Bar-
gaining Group, supra at 1221, are applicable, a case involving
similar overreaching efforts at unilateral discretion found here:
Some management proposals that seek to secure the employer's
right to act in a unilateral and unrestricted fashion on key terms
and conditions of employment, such as establishing total em-
ployer discretion over wages and the assignment of unit work
in conjunction with the diminution or abolition of grievance
and arbitration processes, create a fundamental shift in the bar-
gaining relationship and may effectively nullify the union's
ability to carry out its statutory function as the employees' bar-
gaining representative. Hydrotherm, Inc., 302 NLRB 990, 994
(1991). Management rights proposals that are so comprehen-
sive as to essentially preempt the union's representative func-
tion, and, if accepted, would leave employees with less protec-
tion than they had prior to electing a collective- bargaining rep-
resentative, should be made with correspondingly proportion-
ate incentives for the union to agree to such sweeping waivers
of its statutory right to employee representation. Id. As a re-
sult, in a number of cases, the Board has held that a proposal
that vested exclusive control in the employer on the setting of
wages, while offering little more than the status quo in return,
was significant evidence of an intent to frustrate agreement,
and in conjunction with other indicia of bad faith, violated of
Section 8(a)(5) of the Act.26
26 Notably, in In re Liquor Industry Bargaining, supra at 1221 fn. 2,
the Board rejected the claim (as with Altura’s proposal here) that the fact
that the employer’s proposal set a minimum rate for employees, with dis-
cretion to give additional wages, provided a meaningful limitation on the
employer’s authority.
27 Art. 13 from the June 4 proposal stated:
To the extent not specifically governed by or referenced in this
Agreement, all other Company-provided employee benefits and
other terms and conditions of employment shall be as provided in
the Altura Communication Solutions Handbook (effective June 1,
2009), including but not limited to holidays, vacations, funeral
The Board is describing a situation similar to the one here.
But that is not all.
The Employer’s June 4 proposal also introduced a new
method of retaining unilateral control that is indicative of bad-
faith bargaining, if not wholly at odds with the Act. The Re-
spondent’s June 4 proposal would eliminate numerous benefits
from the labor agreement but not necessarily because the Em-
ployer was proposing to eliminate the benefits, or indeed, to cut
the benefits. Rather, the Employer proposed (in art. 13 of its
proposals) that “To the extent not specifically governed by or
referenced in this Agreement, all other Company-provided em-
ployee benefits and other terms and conditions of employment
shall be as provided in the” Employer’s unilaterally developed
and controlled employee handbook, applicable generally to the
Employer’s nonbargaining unit employees. (Emphasis added.)27
Blazek made clear in his testimony that the flexibility and sim-
plicity of dealing with nonrepresented employees through a
handbook, with the Company’s unilateral discretion to change
the entire handbook at will, was the model he was seeking in
these negotiations for dealing with union-represented employ-
ees. See, Tr. 734.
The Employer amended this proposal on September 23, as part
of its Revised LBF offer. It was a significant change, and it mit-
igates, but only in part, the severity of the problem with the pro-
posal. The September 23 amendment maintained the problem-
atic structure of the proposal—transferring benefits to the hand-
book—but introduced an exception for holidays, vacations, fu-
neral leave, jury leave and sick leave. As to these important ben-
efits, while still governed by the handbook, the Employer’s pro-
posal now read that “there shall be no change in the allowances
(i.e., days or hours) provided for bargaining unit employees, ex-
cept by mutual agreement.”
The insistence on moving benefits “and other terms and con-
ditions of employment” to the handbook, and refusal to put them
in a collectively-bargained document is problematic, and in this
context, evidence of bad faith. The employee handbook covers
a massive array of Employer benefits, policies and procedures,
and by its express terms, is “not a contract, express or implied”
and “is not intended to and does not create any rights, contractual
or otherwise, between [the Company] and any of its employees
and should not be understood as constituting a Company repre-
sentation or commitment to any employee that the policies will
be followed in every case.” The handbook states that the Com-
pany “reserves the right to deviate or depart from, make excep-
tions to interpret, modify, and apply any of its policies and policy
leave, jury leave, sick leave, Family and Medical Leave Act leave
(and similar state and local benefits), and short term disability
(STD) and long term disability (LTD) benefits. The extent, allow-
ances, and terms of such benefits may be changed for employees
covered by this Agreement, provided the same changes apply to
other non-bargaining unit covered by the general terms of the
Handbook. Employees covered by this Agreement, however, shall
not be entitled to profit sharing or other discretionary bonuses in
light of the negotiated wages and benefits otherwise provided in
this Agreement.
ALTURA COMMUNICATION SOLUTIONS, LLC 41
provisions (including those in this Handbook) as it sees fit based
on particular facts or changing conditions or as it otherwise de-
termines for any reason or for no reason at all in its sole judg-
ment.” The handbook states that it “can be changed by Altura
unilaterally at any time.” Blazek agreed that the Company re-
tained the right to change the handbook at will and to take bene-
fits away or do anything it chooses for employees covered by the
handbook.
Thus, the Employer was proposing that many Employer-of-
fered benefits, would be offered on a discretionary basis and
would not be addressed or governed by the collective-bargaining
agreement. This artifice applied to numerous benefits previously
in the contract, including Family and Medical Leave Act leave,
disability benefits (STD and LTD), grooming and work attire
(renamed personal appearance), drug and alcohol policy and ac-
cident policy, driving safety policies, including progressive dis-
cipline policy and penalties for driving violations, background
checks, and accidents. Indeed, by the terms of article 13, this di-
version to the handbook applied to “all” . . . terms and conditions
of employment” not “specifically governed by or referenced” in
the labor agreement. In some instances, this meant that benefits
the employer maintained would still be provided, but pursuant to
the handbook the Employer maintained unlimited discretion
over their handling and provision. In other instances, this strat-
agem resulted in the indirect elimination of a benefit as it could
not be found in the handbook. Thus, for example, the existing
contract contained article 19, “Disciplinary Action” that gov-
erned the procedure for discipline, including prohibiting the Re-
spondent from issuing discipline more than ten days after the
event occurred precipitating the discipline. The Employer’s pro-
posal removed this article from its proposal, but the employee
handbook “probably [did] not” (according to Blazek) have any-
thing comparable—and thus, another term and condition of em-
ployment consigned to whatever was in the handbook, effec-
tively disappeared, leaving the Respondent with unlimited dis-
cretion on the issue. Similarly, driving safety policies included
in the 2012 Agreement, including a process for reporting, inves-
tigating, and issuing discipline for motor vehicle accidents, was
removed from the proposed agreement and relegated to the em-
ployee handbook, which provided the Employer with unlimited
discretion to discipline over driver policy. The transfer from la-
bor agreement to handbook of driver safety investigations would
occasion the same transfer to the Employer of unlimited author-
ity and discretion. As Blazek made clear in his testimony and in
meetings, the full outlines of the benefits and authority vested in
the employer through the handbook, and removed from the con-
tractual purview, was unclear, even to the Employer. Article 13
applied to “all other terms and conditions of employment” and
asked at the hearing what benefits were applicable to article 13
that were not listed in article 13, Blazek candidly replied, “I don’t
know would be the general answer. So I don’t know.” Asked
28 And to be clear—while the Employer announced in its notice of
implementation on December 3, 2015, and on January 4, 2016, that its
LBF offer incorporated the employee handbook—that is a claim that is
unsupportable on the record. I note that in passing Blazek testified that
“We were trying to incorporate the employee handbook into the
the same question in bargaining, Blazek told the Union, “Oh,
goodness, I don’t know.” The essence is that the Employer was
insisting throughout negotiations on a proposal that said, “you
get what we choose to give the nonunion employees as long as
we choose to give it to them, on whatever terms we give it to
them.”
The effect of this massive transfer of terms and conditions to
the nonbargained handbook would be to leave the employees, as
to all of these mandatory subjects of bargaining—not just in the
position they would be if there was no contract—but rather, pre-
cisely in the position they would be in if there was no collective-
bargaining representative at all.
This is in the first instance, a massively broad and severe ex-
ample of the propensity, discussed above, of the Respondent to
insist on retaining unilateral control of the terms and conditions
of employment. Even as to benefits for which “allowances”
were guaranteed under the proposal, the “other terms and condi-
tions”—relating to the processing, handling, accrual, grounds for
loss and exception, would all be as set forth in the handbook, and
at the discretion of the Respondent—based on the terms of the
handbook, which was not a contract or even a “commitment to
any employee that the policies will be followed in every case.”
But the stratagem of insisting that the benefits and other terms
and conditions be shifted to the handbook is also problematic for
the Employer’s bargaining bona fides for a different reason. This
stratagem is, if not a per se breach of the duty to bargain—a ques-
tion I need not reach—evidence of bad-faith bargaining because
it runs up against the Employer’s obligations under 8(d) of the
Act.
Section 8(d) of the Act requires not only good-faith negotia-
tions but “the execution of a written contract incorporating any
agreement reached by either party.” Here, the Employer ada-
mantly refused to place its terms and conditions on these manda-
tory subjects of bargaining in a collective-bargaining agreement.
The statutory duty to bargain intends—indeed it requires—that
terms and conditions of employment be memorialized upon re-
quest in a collectively-bargained agreement—not in an employee
handbook. The Employer made no bones about its position:
Feller explained on June 4, in explaining article 13, that “all other
benefits same as non-union, no reason to treat employees differ-
ently, we’ve been doing that on all our other benefits.” But, of
course, this is wrong. There is a reason to do things differently
with the union-represented employees—it is the statutory man-
date of Section 8(a)(5) and the obligation under 8(d) to bargain
in good faith for a collective-bargaining agreement.
Notably, the Board has rejected this “handbook” slight-of-
hand even in cases where, unlike here, the employer proposed to
simply “incorporate” the terms of an employee handbook into a
collective-bargaining agreement.28 Thus, in Radisson Plaza
Minneapolis, 307 NLRB 94 (1992), the Board found that an em-
ployer’s “continuing insistence on incorporating in the
document” but there was simply no proposal ever offered that would
have done that. Blazek means that the proposal was that the handbook
would take the place of collectively-bargained benefits on numerous sub-
jects. The Employer’s proposals did not make the handbook part of the
labor agreement, by incorporation or otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
agreement the employee handbook” used to operate the hotel on
a nonunion basis was indicative of bad faith. The Board ex-
plained:
The Respondent's position throughout negotiations was that
this handbook and the Respondent's existing policies on wage
increases and benefits were to continue to govern. Because the
Respondent included the handbook as an exception to the zip-
per clause (a clause titled “Complete Agreement,” which had
otherwise been agreed upon by the parties), and because the
handbook provided that the Respondent reserved the right to
alter or discontinue any of the benefits or other policies con-
tained within it at any time “according to the needs of the busi-
ness,” the clause would operate, at best, as what the General
Counsel correctly describes as a “perpetual reopener clause”
encompassing the substantial number of significant mandatory
subjects of bargaining contained in the handbook. Such a pro-
vision is at odds with the basic concept of a collective-bargain-
ing agreement. Since unions are statutorily guaranteed the
right to bargain over any change in any term or condition of
employment, the Union could do just as well with no contract
at all. [Footnotes omitted].
307 NLRB at 95; enfd. 987 F.2d 1376, 1382 (8th Cir. 1993) (the
employer “insisted at more than one meeting that the handbook
form the basis for the agreement. The handbook contains a
clause, however, permitting Radisson ‘to amend, modify or dis-
continue any of the information or benefits contained herein.’ In
the light of this provision, the unions' acceptance of [this] pro-
posal would have permitted Radisson to unilaterally change
working conditions whenever it pleased or to require the union
to renegotiate working conditions at its whim”).
Of course, here, Altura’s bargaining proposal did not contain
even the formality of incorporation of the handbook into the col-
lective-bargaining agreement and, also unlike in Radisson, here,
there was no exception to the zipper clause—Altura’s insisted-
upon zipper clause shut bargaining tight—leaving the Union
here worse off than the union in Radisson were it to agree to the
proposed contract that relegated to the handbook the smorgas-
bord of benefits covered by Altura. Indeed, unlike in Radisson,
the Union here faced the situation where it could not agree, be-
cause the Employer would not let it agree to the substantive
terms of the benefits offered in the handbook, at least not in the
8(d) sense of agreeing “to the execution of a written contract in-
corporating any agreement reached if requested by either party.”
Thus, Altura’s conduct here is even further removed from the
dictates of the Act than that of the employer in Radisson and
more akin to the employer’s misconduct in Herald Statesman,
174 NLRB 371 (1969), enf. denied, 417 F.2d 1259 (2d Cir.
1969).
In Herald Statesman, the Board considered an employer that
in bargaining with its union conceded that it had various poli-
cies—for instance sick leave, dismissal pay policies, and oth-
ers—but was “not prepared to write [these] into the contract.”
Id. at 372. The Board rejected the appropriateness of this tactic:
We cannot agree that by engaging in such a course of bargain-
ing, Respondent was merely requesting that the Union agree to
leave certain matters to its discretion. On the contrary, it is
clear from the evidence set out above that Respondent asserted
unequivocally on several occasions that it would not include in
a contract any agreement that might be reached on certain man-
datory subjects of bargaining. Under these circumstances, any
protests by the Union would have been an exercise in futility
for to insist at this stage upon agreement to reduce the result of
any negotiations to writing would have foreclosed negotiations
on that subject. The announcement in advance of a determina-
tion not to comply with the statutory requirement to reduce any
understanding reached to a signed and binding agreement dis-
plays the absence of a good-faith intention to conclude an
agreement. Such avoidance of the statutory obligation is a vi-
olation of Section 8(a)(5). Further by stating that it would not
include even existing company policies in the contract, Re-
spondent foreclosed bargaining with respect to these manda-
tory areas. Such foreclosure is tantamount to a refusal to ne-
gotiate about such subject matters and each instance is an in-
dependent violation of Section 8(a)(5) of the Act. Accordingly,
we find that Respondent violated Section 8(a)(5) and (1) of the
Act by stating that it would not include in a contract any agreed
on provisions concerning pensions, hospital and medical ben-
efits, sick leave, severance pay, dismissal notice pay and incen-
tive pay plan. [Emphasis added].
The Herald Statesman holding most on point with our facts is
its subsidiary holding, emphasized and highlighted in the above
quote, that the employer's refusal to include even existing com-
pany policies in a labor agreement was a flat refusal to bargain
under §8(d). This finding was rejected by the Second Circuit,
based on its view that substantial evidence did not support the
underlying factual findings, but the court assumed that such con-
duct could, in an appropriate case, provide evidence of bad faith.
That is what it is here, as it was in Radisson. Here, the record is
clear that the Employer was willing to maintain benefits—for
now—but would not have them in a collectively-bargained doc-
ument. It is conduct that constitutes an end run around collective
bargaining and comes to a result that leaves the Respondent free
of the obligations intended by the statute to be the result of col-
lective bargaining: the placement of terms and conditions of em-
ployment in a collectively-bargained agreement.
For all of the foregoing reasons, I find that the Employer’s
proposals provide indicia that support a finding of overall bad-
faith bargaining. I accept Blazek’s protestations at trial that the
plan (and his desire) was not to use the unilateral control these
proposals granted to take away all benefits from employees. But
his consistent goal was to have the right to do so, and he candidly
saw the Company’s ability to deal unilaterally with its nonrepre-
sented workforce as an outcome to be pursued through these col-
lective-bargaining negotiations. In the same vein, the Respond-
ent obscures the issue when it argues (R. Br. at 30) that it was
entitled to (but did not) seek “draconian wage and benefit cuts”
or “significant wage and benefit concessions.” And it is not ac-
curate when it contends (R. Br. at 33) that “most of the changes
[the Employer sought in negotiations] focused on simplifying
language and processes or eliminating language that was obso-
lete . . . in a technologically different world.” The problem with
the Respondent’s proposals is neither their substantive harshness
nor any impulse by the Board to thwart modern methods. The
problem is that “[t]he Respondent’s proposals on key issues
amounted to little more than a demand for the surrender of”
ALTURA COMMUNICATION SOLUTIONS, LLC 43
rights that the Union possessed in the absence of a contract.” Hy-
drotherm, Inc., 302 NLRB 990, 994 (1991). Of course, while “a
union might be willing to accept such comprehensive restrictions
on the employees’ statutory rights if the employer were offering
something significant in return . . . the Respondent here was of-
fering little more than the status quo in return for these sweeping
waivers.” Id.29
B. Other indicia of bad-faith bargaining
The General Counsel’s case for bad-faith bargaining does not
rest solely, or even primarily, on the nature of the proposals ad-
vanced by the Respondent. Rather, the General Counsel argues
that—apart from the nature of proposals insisted upon by the Re-
spondent—the Respondent’s bargaining conduct also supports a
finding of bad-faith bargaining. Specifically, the General Coun-
sel contends that the Employer repeatedly and prematurely de-
clared impasse, bargained with no intention of reaching an agree-
ment, refused to meet at reasonable times and/or places, and in-
sisted that the union provide advance contract proposals as a con-
dition of further bargaining. Finally, the General Counsel con-
tends that the Employer unilaterally and unlawfully implemented
portions of its bargaining proposal on January 1, 2016.30
The Employer does not so much deny the conduct of which it
is accused, but rather, disputes the significance of it, and its char-
acterization. The Employer argues that as of and at all times after
July 30, the date when it suddenly provided what it called (but,
in fact, was not) its LBF offer, the parties were at a good-faith
bargaining impasse. It wields this claim of impasse to justify all
actions attributed to it.
The question of impasse is important here. Conduct that may
be potent evidence of bad-faith bargaining in the absence of a
valid bargaining impasse may be benign if carried out in a con-
text where the parties have reached a valid bargaining impasse
and exhausted the possibilities of a bargaining agreement. Thus,
a valid bargaining impasse temporarily (until the impasse is bro-
ken) suspends the duty to bargain. Richmond Electrical Services
Inc., 348 NLRB 1001, 1003–1004 (2006); Providence Medical
Center, 243 NLRB 714, 714 fn. 2 (1979). Conversely, when a
party acts as if the parties are at impasse when they are not it is
also likely engaging in conduct associated with classic indicia of
29 I reject the Respondent’s contention, throughout its brief, that the
Union’s willingness, over time, to go along with so many of the Re-
spondent’s proposals undercuts the objective evidence that Respondent’s
insistence on these proposals was indicative of bad-faith bargaining. The
Union’s acquiescence merely shows that the Employer’s bad-faith bar-
gaining netted results at the bargaining table. That is not exculpatory.
Harrah’s Marina Hotel and Casino, 296 NLRB 1116, 1135 (1989) (“Nor
is it any defense that the Union tentatively agreed to many of the Re-
spondent's regressive proposals. . . . [T]his shows only that it was inter-
ested in reaching an ultimate agreement, unlike the Respondent”); East-
ern Maine Medical Center, 253 NLRB 224, 246 fn. 28 (1980) (“To the
extent that Respondent argues that because MSNA tentatively accepted
some of its proposals, it is absolved of a bad-faith bargaining charge,
Respondent is mistaken. A union does not “waive” refusal to bargain
charges by signing up for the best deal it can obtain and continuing to
make an effort to reach agreement”), enfd. 658 F.2d 1 (1st Cir. 1981);
Utility Workers Union of America, 203 NLRB 230, 240 (1973) (“The
bad-faith bargaining. Precisely because impasse is associated
with a temporary suspension of the duty to bargain, a premature
declaration of impasse is often an indicium of bad-faith bargain-
ing. Grosvenor Resort, 336 NLRB 613, 615 (2001), enfd. 52
Fed. Appx. 485 (11th Cir. 2002); CJC Holdings, Inc., 320 NLRB
1041, 1044–1046 (1996), enfd. 110 F.3d 794 (5th Cir. 1997).
While the Respondent relies upon its claim of impasse to jus-
tify its conduct, in this case it is assuming exactly what it must
but cannot prove. The evidence does not show a lawful and valid
impasse on July 30—or any date thereafter. Rather, the evidence
shows that once the Employer realized in mid-August 2015, that
it had not obtained the Union’s assent to the new agreement that
it wanted, and that the Union was not putting the Employer pro-
posal up for ratification, the Employer, frustrated and impatient
with the bargaining process, began falsely claiming impasse and
then, after September 24, withdrawing from the good-faith bar-
gaining process.
The Board has defined impasse as the point in time of negoti-
ations when the parties are warranted in assuming that further
bargaining would be futile. Pillowtex Corp., 241 NLRB 40, 46
(1979), enfd. mem. 615 F.2d 917 (5th Cir. 1980). The Supreme
Court has endorsed the view that “impasse is ... that point at
which the parties have exhausted the prospects of concluding an
agreement and further discussions would be fruitless.” Laborers
Health & Welfare Trust Fund v. Advance Lightweight Concrete
Co., 484 U.S. 539, 543 fn. 5 (1988) (citations and internal quo-
tations omitted). When there is genuine impasse, neither party
is willing to move from its position in spite of the parties’ best
efforts to achieve agreement. Grinnell Fire Protection Systems
Co., 328 NLRB 585, 586, 596–599 (1999), enfd. 236 F.3d 187
(4th Cir. 2000).
“Whether a bargaining impasse exists is a matter of judg-
ment.” North Star Steel, Co., 305 NLRB 45, 45 (1991), enfd.
974 F.2d 68 (8th Cir. 1992). “The bargaining history, the good
faith of the parties in negotiations, the length of negotiations, the
importance of the issue or issues as to which there is disagree-
ment, 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.” Taft
fact that the charging [party] Employers in these cases have capitulated
to the Respondents' bad-faith bargaining tactics and have knuckled un-
der, at least in major part, to the Respondents' unlawful designs to merge
the separate bargaining units, is no grounds to withhold either a finding
or a remedy”). See, NLRB v. General Electric Co., 418 F.2d 736, 736
(1969) (“Almost ten years after the events that gave rise to this contro-
versy, we are called upon to determine whether an employer may be
guilty of bad-faith bargaining, though he reaches an agreement with the
union, albeit on the company's terms”), enfg. 150 NLRB 192 (1964).
30 The General Counsel also argues that the unilateral implementation
of the severance/ buyout proposal resulted in bypassing of the Union and
direct dealing when the Respondent advised six employees that they
could choose the severance or remain with a pay cut. For reasons ex-
plained below, I do not reach or rely upon the allegations of bypassing/di-
rect dealing, either as independent violations or as evidence in support of
overall bad-faith bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d
622 (D.C. Cir. 1968). However, “[i]t is not sufficient for a find-
ing of impasse to simply show that the employer had lost pa-
tience with the Union. Impasse requires a deadlock.” Barstow
Community Hospital, 361 NLRB 352, 360 (2014), enforcement
denied on other grounds, 820 F.3d 440 (D.C. Cir. 2016). In order
to find an impasse, “[b]oth parties must believe they are at the
end of their rope.” PRC Recording Co., 280 NLRB 615, 635
(1986), enfd. 836 F.2d 289 (7th Cir. 1987); Larsdale, Inc., 310
NLRB 1317, 1318 (1993); See also NLRB v. Powell Electrical
Mfg., 906 F.2d 1007, 1011–1012 (5th Cir. 1990).
That an employer had reached its final position does not
demonstrate that the union has, and therefore, that there was im-
passe. Grinnell Fire Protection, 328 NLRB at 586 (“even as-
suming arguendo that the Respondent has demonstrated it was
unwilling to compromise any further, we find that it has fallen
short of demonstrating that the Union was unwilling to do so”).
Moreover, “[t]he fact that Respondent believed that the Union
would never agree to Respondent's . . . proposals does not estab-
lish an impasse.” Ford Store San Leandro, 349 NLRB 116, 121
(2007). “Where, as here, a party who has already made signifi-
cant concessions indicates a willingness to compromise further,
it would be both erroneous as a matter of law and unwise as a
matter of policy for the Board to find impasse merely because
the party is unwilling to capitulate immediately and settle on the
other party's unchanged terms. . . . Further, even assuming ar-
guendo that the Respondent has demonstrated it was unwilling
to compromise any further, we find that it has fallen short of
demonstrating that the Union was unwilling to do so.” Grinnell
Fire Protection System, 328 NLRB at 586. Thus, a concession
by a party on a significant issue precludes a valid declaration of
impasse, even if there is a wide gap on other issues because there
is reason to believe that further bargaining may produce addi-
tional movement. Saunders House v. NLRB, 719 F. 2d 683, 688
(3rd Cir. 1983). “Bargaining does not take place in isolation and
a proposal on one point serves as leverage for positions in other
areas.” Korn Industries, Inc. v. NLRB, 389 F.2d 117, 121 (4th
Cir. 1967).
An impasse, once reached is a temporary state and easily bro-
ken. Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404,
412 (1982) (“As a recurring feature in the bargaining process,
impasse is only a temporary deadlock or hiatus in negotiations
which in almost all cases is eventually broken, through either a
change of mind or the application of economic force”) (citations
and internal quotations omitted); Royal Motors Sales, 329 NLRB
760, 762 (1999), enfd. 2 Fed. Appx. 1 (D.C. Cir. 2001). Any-
thing that creates a new possibility of fruitful discussion breaks
impasse. Airflow Research & Mfg. Corp., 320 NLRB 861, 862–
863 (1996); Jano Graphics, Inc., 339 NLRB 251, 251 (2003)
(“[A]ny impasse on July 29 was broken on August 4, when the
Union informed the Respondent that it had new proposals and
was seeking further bargaining”); Gulf States Mfg. v. NLRB, 704
F.2d 1390, 1399 (5th Cir. 1983) (“Anything that creates a new
possibility of fruitful discussion (even if it does not create a like-
lihood of agreement) breaks an impasse . . . [including] bargain-
ing concessions, implied or explicit”); PRC Recording Co., 280
NLRB at 636; Pavilions at Forrestal, 353 NLRB 540, 540
(2008), adopted and incorporated by 356 NLRB 5 (2010), enfd.
684 F.3d 1310 (D.C. Cir. 2012). “In short, a genuine impasse is
not the end of collective bargaining.” Hi-Way Billboards, Inc.,
206 NLRB 22, 23 (1973), enf. denied on other grounds, 500 F.2d
181 (5th Cir. 1974).
The burden of proving that an impasse exists is on the party
asserting the impasse. CJC Holdings, Inc., 320 NLRB at 1044;
Outboard Marine Corp., 307 NLRB 1333, 1363 (1992), enfd. 9
F.3d 113 (7th Cir. 1993); Serramonte Oldsmobile, Inc., 318
NLRB 80, 97 (1995), enfd. in relevant part 86 F.3d 227 (D.C.
Cir. 1996).
In this case, in sum, the evidence demonstrates an employer
that participated in a modest number of collective-bargaining
sessions in the 7/1/2 weeks before the contract was to expire.
When this bargaining did not result in a contract, the employer
asserted impasse, reluctantly attended one additional bargaining
session led by a mediator at the urging of the Union, and there-
after refused to meet in the parties’ normal rotating system of
bargaining locations, demanded advance proposals from the Un-
ion, and when they were received, unreasonably dismissed them
as not warranting further collective bargaining.
Putting aside the legal ramifications, and but for the Act, per-
haps it all could be considered savvy negotiating: all the while,
the Employer’s actions drew the Union closer and closer to the
Employer’s position. Indeed, that is one of the problems for the
Employer’s impasse claim: the Union kept moving toward the
Employer, and making significant proposals, even when the
Company quibbled or outright refused to meet. Neither in words
nor action did the Union draw a line in the sand, and not cross it.
To the contrary, the Union repeatedly made significant move-
ment—three times in November—just in the hopes of securing a
meeting with the Employer. And, on the Employer’s end, it
made some movement too, at least through October 2, which of
course, only cuts further against its resort to a claim of impasse
as of July 30. The test for impasse, of course, is not whether the
Union rushed to agree in full with every proposal made by the
Employer. The fact that the Union took a harder position at the
outset of negotiations does not mean the Union would not yield
later in the process after the parties had the opportunity to engage
in further bargaining. “Effective bargaining demands that each
side seek out the strengths and weaknesses of the other's position.
To this end, compromises are usually made cautiously and late
in the process.” Local 13, Detroit Newspaper Printing and
Graphic Communications Union v. NLRB, 598 F.2d 267, 273
(D.C. Cir. 1979), citing generally F. A. Reynolds Co., 173 NLRB
418, 424 (1968), enfd. 424 F.2d 1068 (5th Cir. 1970).
Before negotiations began on June 4, 2015, the Employer
knew but the Union did not know the significant changes in the
agreement, and in the relationship, that the Employer was going
to seek in these negotiations. Despite the Employer’s
knowledge, and because of the Union’s lack of it, the scheduling
for bargaining and the process were consistent with how the par-
ties bargained in the past. When the Employer provided its open-
ing proposal on June 4, along with Blazek’s explanation for it, it
quickly became apparent that the scheduled days were insuffi-
cient to consider and bargain through Employer proposals jetti-
soning thirty years of bargaining history. A brief conference call
was added June 11—at which not much was accomplished—a
bargaining session was added in Phoenix for July 21–22, and the
ALTURA COMMUNICATION SOLUTIONS, LLC 45
parties extended the June 23–24 session a ½ a day into June 25,
and again extended the July 28–29 meetings ½ the day into July
30. Thus, by July 30, the parties had met in person for bargaining
in four sessions comprising a total of 7 days and 2 ½ days.
This may have been “normal” for the parties’ past negotia-
tions, but these were not “normal” negotiations for the parties.
Rather, this was an effort by the Employer to radically alter the
collective-bargaining agreement. These negotiations were in-
tended to “remake the agreement” (R. Br. at 1) as the Employer
considered the current agreement to be an “artifact” (R. Br. at 6).
As Blazek explained, the Company was proposing an agreement
that was “dramatically different from what we have today,” and
“changed every article of the agreement.” (The changes were so
extensive the Employer refused the Union’s request for a red-
lined version of the old agreement asserting it would be of no
value). Blazek declared on June 4: “I don’t want language that
was written 50 years ago, we need to start fresh.” It would be
predictable that in these circumstances it would take far longer
for the parties to reach an agreement—or impasse—than in past
years where relatively minor changes in the status quo had been
the parties’ goal.31
As set forth above, in the parties’ June and July bargaining,
although extremely one-sided in the sense that significant move-
ment was toward the Respondent’s positions, movement was oc-
curring. This was the case through to July 30, when the Em-
ployer suddenly introduced what it called (but was not) its Last,
Best and Final offer.32
As referenced above, between July 28–30 the Union, among
other things, accepted the Employer’s zipper clause, moved sig-
nificantly closer on section 2.1, accepted language on layoffs,
accepted a 26-week severance cap but with a condition on em-
ployees laid off out of seniority, reduced its minimum wage de-
mand, reduced its standby premium demand, accepted the Em-
ployer’s elimination of the 401(k) match, and made movement
toward the Employer on article 13. The Employer, for its part,
during these sessions, withdrew its open shop proposal, and
modified the amount of the proposed pay cut (which it would
apply at its discretion to some but not all employees redesignated
as Level A technicians). There is no impasse to be found on this
record as of July 30. Indeed, at the time, the Employer did not
claim that the parties were at impasse.
The Respondent now argues that the parties were at impasse
on July 30, because with contract expiration approaching the Un-
ion did not make an additional offer that day but rather, the par-
ties broke for the Union to review the LBF offer in anticipation
of placing it before the membership for ratification. This does
31 Thus, the parties’ relatively stable bargaining history in past con-
tract years combined with the uncharted waters of this bargaining weigh
against a finding of early impasse—not in favor of it. Stein Industries,
Inc., 365 NLRB No. 31, slip op. at 4 (2017) (significant departure in ne-
gotiations from long history of negotiations weighs against finding of
impasse); see TruServ v. NLRB, 254 F.3d 1105, 1118 (D.C. Cir. 2001)
(“Company from the outset put Union on notice that it sought to address
significant concerns about competitiveness and productivity by substan-
tially modifying the parties’ bargaining agreement. To this end, the ne-
gotiation period was lengthier than usual”).
not follow in the slightest.
First and foremost, July 28–30 had been days of significant
movement toward the Employer’s position. As Feller put it in
his October 23 letter to the Union, “We made extensive headway
in reaching a tentative agreement, with only a couple open items
at the time of the contract expiration on July 31.” Or as the Re-
spondent puts it on brief (R. Br. at 1), as of July 30 the parties
were “90%” in agreement. Both these comments are something
of an overstatement, but they make the point.
Impasse is not proven because the Union does not have a
counterproposal ready one day after the Employer suddenly
drops a proposal it calls final onto the table. There is no evidence
that the parties had exhausted bargaining. Indeed, The Union
told the Employer that it was early for a last, best, and final offer
and that “we felt we could continue bargaining.” The Union
made it clear that it was not agreeing to the Employer’s proposal
but that because the Employer was calling it a LBF offer, the
Union would be putting it to a vote—but that after that vote the
Union would be looking for more dates for bargaining. (“This
local has not agreed to anything in this contract, we have not
TA’d anything. . . . We will put it to a vote, considering it’s a
last, best final, but we will be looking at some dates once that
vote goes through”).
Notably, neither a ratification vote nor the contract expiration
date, by themselves, indicate impasse. The Union’s apparent
willingness to have employees consider the Employer’s offer—
it subsequently changed its mind—does not indicate that bar-
gaining has been exhausted. As the Board explained in Ead Mo-
tors Eastern Air Devices Inc., 346 NLRB 1060, 1063 (2006),
the fact that there is a ratification vote does not itself show that
the parties are at impasse. More particularly, if the vote is to
approve the proposal, there is a contract. If the vote is to reject
it, there must be more bargaining. A separate issue is whether
more bargaining would be futile because the parties are at im-
passe. But that issue turns on the factors noted above, not on
the mere fact of a negative ratification vote.
Moreover, a contract’s upcoming expiration date is an artifi-
cial deadline in terms of the bargaining obligation. Ead Motor,
supra at 1063–1064; Mike-Sell’s Potato Chip Co. v. NLRB, 807
F.3d 318, 322 (D.C. Cir. 2015) (“the expiration of the agreement
does not have bargaining significance”); Whitesell Corp., 352
NLRB 1196, 1197–1198 (2008) (no impasse based on artificial
deadline where “Respondent declared impasse even though the
parties exchanged proposals and reached agreements the day be-
fore and the day of the impasse declaration” and cases cited
32 Events in this case confirm Judge Posner’s recognition in Chicago
Typographical Union Local 16 v. Chicago Sun Times, 935 F.2d 1501,
1508 (7th Cir. 1991), that final offers do not necessarily prove impasse:
The final offer was followed not by implementation but by bargain-
ing followed by another final offer followed by more bargaining.
This has gone on for almost a year and a half. Apparently the use
of “final offers” as bargaining ploys is common. Indeed, if the
company is mistaken about impasse having been reached, it cannot
lawfully terminate bargaining even if it wants to. After final offers
come more offers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
therein), affirmed and adopted, 355 NLRB 635 (2010).33
No doubt, as Blazek testified, the Employer “pushed” the Un-
ion to take the July 30 LBF offer to a ratification vote. The Em-
ployer hoped that the employees would give the Company what
it had yet to get in bargaining—the Union’s agreement to the
Employer’s offer. Clearly the Employer was disappointed in
August when it learned that the Union decided not to put the Em-
ployer’s July 30 offer to employee ratification. But just as
clearly, neither calling a proposal a LBF offer nor the Union’s
initial willingness to consider employee ratification makes for an
impasse when—in bargaining—there is movement such as there
was on July 28–30 on key issues. Even setting aside the concerns
(discussed above) with the content of the Respondent’s pro-
posals, as of July 30, there was no basis to conclude that further
negotiations would be futile.
It was at this time—particularly after the Employer realized
that the Union was not going to submit the July 30 LBF offer to
ratification—that the Employer began to openly “decline [the
Union’s] suggestion to meet again” due to “the apparent impasse
we are at” (August 14), and accuse the Union of bad faith. Feller
wrote again, on August 17, in response to the Union’s request for
bargaining, “we will decline your suggestion to meet again.”
33 I note that in both Feller’s August 14, and his August 19 corre-
spondence with Henne, he stated that at that July 30 meeting Henne “in-
dicated you had no further proposals.” (August 19); (“the union indi-
cated that it had no further proposals or concessions to make” (August
14)). Not only are these claims hearsay, but they were disputed at trial
by Henne, and not corroborated. I reject the claim. It is and was a highly
misleading claim, an obvious effort to create a record of impasse after-
the-fact. Feller did not testify.
34 The Respondent’s assertion (R. Br. at 35, 36) that the Union “in-
sisted” on mediation is without record support. The record shows that
the Employer, although reluctant to resume negotiations—with or with-
out a mediator—agreed to meet with the mediator and even arranged for
the mediator. Indeed, the Employer admits in its brief (R. Br. 28) that it
“willingly agreed to mediation” (see also R. Br. at 37 (“While the Com-
pany did not believe it had any obligation to mediate, it agreed to do so”).
No more needs to be said about the Respondent’s repeated claim on brief
(R. Br. at 35, 36, 46) that the Union unlawfully insisted on mediation.
The Respondent also complains that it took too long to schedule the Sep-
tember 23–24 bargaining session with the mediator, but ignores that be-
fore agreeing to meet with the mediator it declared that it was declining
to meet, accused the Union of bad faith, and as a precondition to “perhaps
schedul[ing] another negotiating session” demanded to know the details
of Henne’s assertion that “[w]e believe that Altura's final contract offer
contains illegal provisions that effectively permit Altura to change terms
and conditions of employment at its whim and that undermine the Un-
ion's role as collective-bargaining representative.”
35 The Union’s discussions with its officials and International Repre-
sentatives had led it to the view that in an effort to reach agreement, it
had been too willing to compromise with the demands for unilateral con-
trol sought by the Employer. The Union brought to the table proposals
that included a more traditional zipper clause, changes to 2.4 (No Waiver
of Rights), new grievance procedure language (5.1) seeking to make
compensable time employees and job stewards spent working on griev-
ances, language stating that the decision of the arbitrator will be final and
binding (5.7), changed the default language (5.8) that described the fatal
Pushed by the Union to meet with a mediator to assist, the Em-
ployer expressed its skepticism, with Blazek announcing, “My
general position is the same as the beginning, we are not in a
[position] to make changes.”
But at the negotiating session the Employer did make changes,
and so did the Union. The mediator-led September 23 and 24th
session involved many new developments.34
At the mediator-led bargaining session of September 23, the
Union brought a new proposal to the table. As detailed above, it
moved toward the Employer’s position in some regards, traded
and linked movement on others, and in places refused to accept
Employer language that, as of July 30, it had been willing to ac-
cept.35
Notably, the Employer came back to the table on September
23 in response to the Union’s new proposals with a Revised LBF
offer, containing a number of significant changes, by itself sug-
gesting that the claims of impasse were inaccurate. Coastal
Cargo Co., 348 NLRB 664, 664 fn. 1 (2006) (in finding no im-
passe, “We also rely on the fact that the Respondent demon-
strated that further movement was possible by presenting the Un-
ion with multiple final offers after indicating that it had reached
a point where it could not bargain further”).36
effects of the Union missing a time limit in the grievance-arbitration pro-
cedure, resubmitted the 2012 Agreement’s language on nondiscrimina-
tion (art. 6 in the proposal), and significantly, in art. 13, the Union at-
tempted to retain numerous benefits as benefits in the labor agreement
and not have them moved to the employee handbook, it proposed lan-
guage that the benefits in the handbook could only be changed by mutual
agreement. The Union raised the prospect of there being some kind of
wage increase (TBD) for employees over the course of the agreement.
Many of these changes were significant, some new, and some put back
into contention issues that the Union had previously been content to not
object to. As discussed below, I do not belief that this represented bad-
faith bargaining by the Union or that, as the Employer asserts, it justified
any of the Employer’s bargaining misconduct.
36 This Employer offer changed the effective date of the contract to
October 1, 2015, and the Employer rewrote the language on 2.3, although
it remained very broad. The Employer responded to the Union’s pro-
posal in art. 5 and countered with language that time spent “in actual
grievance meetings between the Company and the Union” shall be con-
sidered time worked and compensated. The Employer also added lan-
guage that the Union had proposed, for the first time proposing that an
arbitrator’s decision would be “final and binding” (provided it was
within the jurisdiction and authority of the arbitrator). The Employer
also made a highly significant change to art. 13, proposing, as it had be-
fore, that all benefits and “other terms and conditions” not covered in the
agreement would be subject to the handbook, but for the first time agree-
ing that as to some key benefits: holidays, vacations, funeral leave, jury
leave and sick leave, while still governed by the handbook, “there shall
be no change in the allowances (i.e., days or hours) provided for bargain-
ing unit employees, except by mutual agreement.” Finally, on Septem-
ber 23, the Employer provided for the first time, a written draft of con-
tractual language for a side letter/memorandum of agreement, through
which it proposed to offer seven of the employees whom it was moving
to Level A and reducing their wages a choice of taking severance pay
and terminating, or remaining at lowered pay and with no guarantee of
future employment. Although buyouts had been discussed before, this
ALTURA COMMUNICATION SOLUTIONS, LLC 47
On September 24, the Union countered providing a written
counterproposal to the Company’s Revised LBF offer—offering
some significant changes from just the day before.37
The Employer then reviewed the Union’s proposals, going
over them verbally, with Feller telling the Union “there’s certain
things we can agree to and some we can’t.” The Employer then
orally described some changes it was willing to accept.
This movement and discussion—including new proposals in-
troduced by both parties—does not jibe with the Employer’s
claim that the parties were at a bargaining impasse when this
meeting ended, and even less so, when the one before it on July
30 ended. Stein Industries, 365 NLRB No. 31, slip op. at 5 (“Sig-
nificantly, even when it declared impasse, the Respondent rec-
ognized that the parties were not irreconcilably deadlocked: it
agreed to continue bargaining with the Union at any time over
the upcoming week”). See also, Mike-Sell’s Potato Chip Co. v.
NLRB, 807 F.3d 318, 324 fn. 5 (D. C. Cir. 2015) (“Of course, if
an employer repeatedly claimed different positions as a “last of-
fer,” it would not be credible”). And while the Employer said
once more, for a third time, that with its new oral response to the
Union’s movement, this was its LBF offer (as distinguished from
its two previous similarly-titled proposals) the parties ended the
September 24 meeting with Blazek saying, “I think this is a fair
contract, I get the pain involved, and it’s a company issue. I’m
there for the employees, want them to be in it with me. I’d like
to continue working towards an agreement.”38
This was the last face-to-face bargaining meeting the parties
was the first time the Company proposed contract language detailing its
intentions.
37 The Union accepted for the first time the Employer’s 10.1 (with its
explicit recognition that “nothing in this agreement shall be construed as
a guarantee of work”), however, conditioned the Union’s willingness to
make this movement on the Employer’s acceptance of the Union’s new
proposal on the zipper clause (sec. 1.4). On Sec. 2.3, the Union accepted
the new language of the Company’s proposal on nonbargaining unit em-
ployees performing unit work, but added a sentence stating that: “The
Company will not contract out work performed by bargaining unit em-
ployees, if it will directly cause the layoffs of bargaining unit employ-
ees.” On 5.3, the Union countered the Employer’s new language from
the day before by proposing that time spent “in meetings between the
Company and the Union” would be compensable, “including travel time”
for any “bargaining unit employee(s) and the employee job steward.” On
5.8, concerning the consequence of failing to meet a time limit in the
grievance-arbitration procedure, the Union accepted for the first time the
Company’s language, with one exception: it struck the words “or other-
wise.” The Union made a counterproposal on art. 6 (No Discrimination).
On sec. 8.5, severance pay, the Union signaled acceptance of the Em-
ployer’s position on the first paragraph by leaving this paragraph out of
its proposal dedicated to the provisions in dispute. This indicated that
the Union accepted the Company’s final sentence in the first paragraph
indicating that the waiver required for severance also applied to the Un-
ion as to any claims related to a severed employee’s employment. In the
second sentence of 8.5, the Union maintained the position it had ad-
vanced in its last proposal—accepting the Employer’s 26-week limita-
tion on severance, but adding language that “The maximum shall not ap-
ply to any employee laid off outside of seniority.” As noted, the Union
accepted the Employer’s position on 10.1, subject to the Employer’s
would have that year. The parties left with the understanding
that the Company would submit another written proposal setting
out and formalizing its oral response to the Union’s proposal by
the next Tuesday, September 29. It did this (but on Friday, Oc-
tober 2), providing a written 2nd Revised LBF offer.39
There was no claim or indication of impasse or finality by the
Employer at the conclusion of the September 24 meeting, or in
its email note to the Union when it supplied the October 2 2nd
Revised LBF offer. This last face-to-face meeting had been pro-
ductive and involved new positions by both the Employer and
the Union, including a newly drafted proposal by the Employer
to offer pay cuts or severance in a buyout to certain members of
the bargaining unit. Impasse is not created because the Employer
loses patience—or wants to end the process.
After this point, however, one begins to see in the record that
the Employer’s obstruction of the bargaining process—only
voiced but not acted upon in August—reached full flower in Oc-
tober and November. At this point, the Employer ceased any
pretense of engaging in a traditional bargaining process. At this
point, the evidence is clear that the Employer was no longer seek-
ing agreement, but rather, bargaining in bad faith.
In Henne’s absence, Grindle wrote to the Company on Octo-
ber 13. The Union requested additional bargaining—“with or
without the assistance of the FMCS.” This was met with the
Employer’s statement that the October 2 proposal was its “Last
Best and Final offer,” and that instead of meeting to bargain, “If
you have any new proposals, please present them to us in writing
acceptance of the Union’s proposal on 1.4. In art. 11, healthcare, the
Union made a significant change, accepting the Employer’s language—
including granting the Employer the right to make changes in healthcare
without providing “comparable” coverage. The Union’s only difference
from the Employer’s proposal was the proposal to include language that
“The Company’s contributions to the cost of the plan(s) will be the same
for each bargaining unit employee, regardless of the selected plan.”
38 I note here that in October 13 correspondence to Grindle, in refer-
ence to the September 24 bargaining, Feller offered what appears to be—
as he did in follow-up to the July 30 meeting—another effort to create a
post hoc record for impasse. Feller wrote that “At the conclusion of those
meetings on September 24th, it was our understanding that you had no
further proposals to make, which was the time to make such proposals.”
As Grindle explained in his responsive letter of October 19, “this makes
no sense.” It doesn’t. The September 24 meeting ended with the Com-
pany promising to provide a written version of its (2nd) revised LBF of-
fer (it gave it orally) and with Blazek stating “I’m there for the employ-
ees, want them to be in it with me. I’d like to continue working towards
an agreement.” I reject the assertion, or implication of Feller’s note
(which in any event is hearsay) that the Union gave the Employer any
reason at the close of the September 24 meeting to think that it had no
interest in making further proposals.
39 This proposal rejected the Union’s 10.1, reasserted the Employer’s
proposals from the Revised LBF offer on Secs. 10.1 and 1.4., reasserted
the Employer’s position on 2.3, counterproposed the Union’s proposal
(on 5.3) to permit grievance-handling to be compensable time and agreed
to the Union’s art. 6 (discrimination) provision. Thus, the parties re-
mained divided on the wording of the zipper clause, subcontracting (i.e.,
nonunit employees performing bargaining unit work), health insurance,
benefits, wages and the two-tier job and wage classification.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
for us to evaluate.”
In a series of exchanges through October, the Employer as-
serted that the parties were at impasse and said it was not avail-
able to travel to Chicago for bargaining. Instead of agreeing to
meet for bargaining in Chicago (which as the Union argued, con-
sistent with the alternating locations that the parties used, was
overdue for a meeting), Feller told the Union on October 21, that
the Company would only meet in “our Fullerton office” or via
video conference, but that “our open enrollment process for
healthcare benefits will be coming soon, so it is critical we sched-
ule dates within the next 10 days.” On October 23, Feller re-
peated that the Company was willing to meet via video confer-
ence or conference call, but stated that “[i]f you have actual pro-
posals to make, please send them to me in writing and we can
review to determine whether future negotiations of any sort are
warranted.” The Union objected but later correspondence from
Feller made clear that this offer was a deadline and conditioned
upon advance approval of union proposals. On October 26,
Feller wrote that the Company’s position “is clear”:
We are willing to meet in Fullerton in person or by video or
audio conference in the next now 9 days in the event that you
have proposals that you are willing to share in advance that in-
dicate that such additional meetings would be productive. Oth-
erwise, you have our last, best and final offer.
This email made “clear” that advance proposals were a pre-
condition to meeting. This demand for advance proposals, re-
fusal to consider resuming bargaining in the Chicago area, or
even in person, and insistence on arbitrary deadlines,40 was re-
peated in response to Union demands for bargaining in a dis-
missive response by Feller on November 4.41 In his November
10 and November 12 responses to Union demands for bargain-
ing, Feller simply rejected the Union’s proposals, reasserted im-
passe, and did not even address the Union’s request to meet for
bargaining.
Of significance to the bad-faith bargaining case against the
Respondent is the statutory duty under 8(d) requiring a party to
“meet at reasonable times and confer.” This duty is not satisfied
“by merely inviting the union to submit any proposition they
have to make in writing where either party seeks a personal con-
ference.” Twin City Concrete, Inc., 317 NLRB 1313, 1313–1314
(1995), quoting, NLRB v. U.S. Cold Storage Corp., 203 F.2d 924,
928 (5th Cir. 1953). An employer may not set preconditions that
must be satisfied before it will agree to resume face-to-face
meetings. Columbia College of Chicago, 363 NLRB No. 154,
slip op. at 5, 23 (2016), enfd. in relevant part, 847 F.3d 547 (7th
Cir. 2017); Circuit-Wise, Inc., 309 NLRB 905 (1992). An em-
ployer may not defer a request to bargain with a promise to
40 The deadline was purportedly based on upcoming open enrollment
for healthcare insurance. However, none of the proposals—and nothing
ultimately implemented—required any change in the provision of
healthcare coverage. Rather, the dispute over the healthcare was, as with
so many issues, over the extent of the Employer’s discretion to make
changes. Feller’s demand that any meeting occur in this period, after
advance submission of bargaining proposals, appears to have been
simply the placement of one more obstacle in the path of bargaining, ra-
ther than reflecting a legitimate need of the Employer.
“evaluate” the union’s concerns and make arrangements to meet
“if appropriate.” Twin City Concrete, supra at 1314; Beverly
Farm Foundation, Inc., 323 NLRB 787, 793 (1997) (“Respond-
ent greeted the bargaining invitation with a demand that [the Un-
ion] submit its proposals in writing. The Union refused to com-
ply, correctly construing Respondent's attempt to impose this
condition as an illegitimate requirement to bargain by mail. . . .
[T]he Union's request to meet and resume bargaining on August
4 imposed a reciprocal obligation on Respondent. By refusing
to resume direct negotiations with the Union, Respondent failed
to bargain in good faith, thereby violating Sec. 8(a)(1) and (5) of
the Act”), enfd. 144 F.3d 1998 (7th Cir. 1998). In addition, in
assessing a party’s good faith, the Board has found that, consid-
ering all the relevant circumstances, a parties’ insistence on or
refusal to attend a location for bargaining may bear on assess-
ment of its good faith, and may be deemed a stratagem to avoid
bargaining. Burns International Security Services, 300 NLRB
1143, 1144 (1990). That is the case here, where the demand for
preconditions, arbitrary deadlines, and flat refusal to continue the
parties’ established practice of alternating bargaining locations
was wielded as a means of avoiding bargaining.
In addition to the Respondent’s resistance to sitting down to
bargain, compelling evidence of bad-faith bargaining is found in
its repeated dismissals of—its unwillingness to even meet
over—the Union’s new proposals.
As described above, beginning on November 3, the Union
tried three times—through the making of new and significant
proposals—to entice the Employer to continue bargaining. The
Employer’s continued dismissal of every effort by the Union to
address significant issues in dispute between the parties is the
opposite of good-faith bargaining. Through its continuing con-
duct in October, but even more pointedly by November, I think
it clear that the Employer was no longer bargaining in a manner
consistent with its statutory obligation to bargain in good faith
and with an intent to reach agreement. U.S. Gypsum Co., 200
NLRB 1098, 1101 fn. 41 (1972) (the obligation of good-faith
bargaining is not satisfied by a party's mere willingness to “enter
into a contract of his own composition”); Marriott In-Flite Ser-
vices, 258 NLRB 755, 764 (1981), enfd. 729 F.2d 1441 (2d Cir.
1983), cert. denied 464 U.S. 829 (1983).
On November 3, while protesting the Employer’s refusal to
continue the standard bargaining process by coming to Chicago
without preconditions, the Union not only accepted the Com-
pany’s offer to meet via videoconference but offered a proposal
that made significant changes. For the first time, the Union
41 Feller wrote:
We continue to see no new proposals on any key or material issues
from you and maintain that we are at impasse. If you have a new
proposal or proposals please forward them to us. We are available
to meet via video conference at any time within the next week.
Please first send us the new proposal /proposals and provide times
you would be available to meet over the next week.
ALTURA COMMUNICATION SOLUTIONS, LLC 49
unconditionally accepted the Employer’s proposal on
healthcare.42
In agreeing to meet by videoconference, instead of face-to-
face, the Union might be said to have called the Employer’s
bluff. By any measure, the Union’s movement on healthcare was
significant. Its additional suggestion that it could accept article
13 was also no small matter for the negotiations.43
However, the Employer replied the next day, dismissing the
proposals, reasserting that the parties were at impasse, and con-
ditioning meeting by video conference on the Union “first
send[ing] us the new proposal/proposals.”
The Union responded on November 9, noting the significant
changes offered in its last correspondence, attaching new written
counterproposals accepting for the first time the concept of the
two-tier wage and classification and the “wage philosophy” long
objected to by the Union,44 and counterproposing (and mostly
accepting) the Employer’s pay cut and severance/ buyout pro-
posal, first put in contractual language by the Company at the
parties’ last bargaining meeting in September.45
Feller’s response, on November 10, was dismissive, criticized
the Union’s new proposal for proposing any wage increases, as-
serted continued impasse, and made a change to the sever-
ance/buyout proposal, moving back the effective dates for em-
ployees to accept it to December 30, 2015 “in light of the passage
of time.” There was no mention of the Union’s demand for bar-
gaining, no offer to meet by videoconference, at the Company’s
headquarters, or otherwise.
42 With this move the Union dropped its remaining demand that unit
employees all would be subject to the same contribution requirements.
In addition, by mail, the Union counterproposed on 5.3.
43 Henne suggested there was “potential for agreement” on art. 13 but
stated that the Union had “a couple of question on the practical imple-
mentation of the language.” Thus, Henne’s suggestion was that the Un-
ion was open to the Employer’s effort to transfer a wide-range of benefits
from the collective-bargaining agreement to a unilaterally-maintained
handbook where the Employer would be free to change the value of ben-
efits to employees.
44 The Union’s proposal on schedule A was the first Union proposal
in negotiations that accepted the Employer’s concept of a two-tier wage
and job proposal. The Union’s proposal accepted portions of the Em-
ployer’s “wage philosophy proposal” and delayed until March 31, 2016,
the date for evaluating whether an employee should be reduced to a Level
A status. It also proposed an across-the-board wage increase of approx-
imately 3 percent in August 1, 2016 and August 1, 2017. (See, Jt. Exh.
29) (i.e., an increase in the minimum for Level A technicians from
$28.84 to $29.71 on 8/1/16, and to $30.60 on 8/1/17; and an increase in
the minimum for AA technicians from $34.35 to $35.38 on 8/1/16, and
to $36.44 on 8/1/17).
45 The Union’s counterproposal on the buyout of those employees
designated Level A followed the Employer’s proposal in essence, but
provided that employees would be informed of their presumptive desig-
nation as Level A as of December 1, and have until April 30, 2016, to try
to achieve the proficiencies necessary to meet Level AA status or take
the severance package buyout. In essence, as Henne explained to the
Company in his November 9 email: “Our proposal for the [Memorandum
of Agreement] is based on the men being able to get the required training
or coursework within the time allowed.” The Union’s November 9
Again the Union tried, writing to the Employer the next day,
November 11, revising its schedule A proposal to withdraw the
wage increases and instead proposing bonus payments, and at-
taching the rewritten proposal.46
Feller responded the next day, November 12, this time not
bothering to craft a new letter. He sent the same response he had
sent to the Union on November 10.
Three times the Union made new proposals, new movement,
on issues of unquestionable significance to the Employer, the
Union, and the bargaining. Three times the Employer refused
(or ignored) the Union’s request to meet, even by videoconfer-
ence. Instead, the Company announced implementation on De-
cember 3, essentially ignoring the Union’s demands and efforts
to bargain. Feller’s December 16 response to Union President
Wright’s December 11 letter demanding bargaining made clear
that the Employer was committed to implementation—not bar-
gaining—an attitude it demonstrated again in the December 30
conference call.
This is an employer that by November had diminished and
shut down the bargaining process that is required by the statute.
The Employer’s claim that impasse justified its actions is a case
of assuming and wielding the very defense that it has failed to
prove. Any impasse that existed prior to this—and I do not be-
lieve there ever was a valid bargaining impasse—was surely bro-
ken when the Union submitted proposals seeking a face-to-face
bargaining and making significant movement on significant sub-
jects in dispute on November 3, 9, and 11.47
proposal also accepted for the first time, in Schedule A, sec. 4, the Wage
Progression language advanced by the Company, and the Company’s
schedule A sec. 5, agreeing to the elimination of per diems and instead,
accepting the Employer’s proposal for actual reimbursement for travel,
which under the proposal would be subject to change at the Company’s
discretion. Jt. Exh. 29, p. 3; Tr. 122.
46 Henne wrote:
But here's another try, based on your position that you aren't able
to provide guaranteed, scheduled increases—For the Schedule A
proposal I sent on Monday, we'll withdraw the request for the in-
creases and Instead propose that increases or bonus payments up to
the equivalent of the guaranteed increases we had requested that
are given to one employee have to be matched for the other em-
ployees, but that matching will not apply to amounts over that.
I'm attaching the revised proposal showing this.
47 The Respondent asserts (R. Br. at 37–38) that it refused to come to
the Chicago area to bargain because the parties were at impasse, once
more assuming what it must prove and relying again on its claim of im-
passe to excuse it from the statutory duty to bargain in good faith. I note
that I reject the Respondent’s argument that offers of telephone or video
conferences—that, in any event, were often not followed through on
when accepted by the Union—served as an adequate substitution for
face-to-face negotiations. While the parties occasionally had phone con-
ferences, they were not effective bargaining sessions. It is a good exam-
ple of why precedent requires face-to-face negotiations if demanded.
U.S. Cold Storage Corp., 96 NLRB 1108 (1951) (“It is elementary that
collective bargaining is most effectively carried out by personal meetings
and conferences of parties at the bargaining table. Indeed, the Act im-
poses this duty to meet”); Westgate Corp., 196 NLRB 306, 313 (1972)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
The Respondent cites Serramonte Oldsmobile, Inc. v. NLRB,
86 F.3d 227 (D.C. Cir. 1996) and TruServ Corp. v. NLRB, 254
F.3d 1105 (D.C. Cir. 2001) for its claim of impasse, but these
cases are inapposite. In both, the Court of Appeals refused to
enforce a Board order in which the Board found no impasse (or
impasse that was broken) based on union declarations of no im-
passe that were not backed up by substantive movement of any
significance. Thus, in Serramonte Oldsmobile, the court found
that “not a single one of the Union's statements cited by the ALJ
actually committed the Union to a new position or contained any
specific proposals.” 86 F.3d at 233. “Instead,” the court con-
cluded, “the record reflects that the Union's attorney offered only
vague generalities and neither explicitly agreed to any of the em-
ployer's proposals nor offered any specific counterproposals.”
Id. In TruServ Corp., the court found that “[a]bsent conduct
demonstrating a willingness to compromise further, a bald state-
ment of disagreement by one party to the negotiations is insuffi-
cient to defeat an impasse. . . . Similarly, a vague request by one
party for additional meetings, if unaccompanied by an indication
of the areas in which that party foresees future concessions, is
equally insufficient to defeat an impasse where the other party
has clearly announced that its position is final.” 254 F.3d at
1117. These points are inapposite because in the instant case,
the Union repeatedly made specific, written proposals accepting
or moving towards the Employer’s position on highly significant
issues. It did so while acceding to the Employer’s illegitimate
demands for proposals in advance of the Company deciding
whether to meet. Moreover, unlike in these court cases, here, at
least until October 2, the Respondent kept moving too—revising
its “final” offer on September 23 and then again on October 2
(which appears to have been a written formal revision of oral
changes described by the Company on September 24). And, fi-
nally, neither TruServ nor Serramonte involved an assessment of
impasse in the context of a record of bad-faith bargaining gener-
ally.
On this record, the Employer’s claim of impasse justifying its
refusal to bargain is without force. Indeed, had the parties been
at impasse after October 2 (and I do not believe they were) the
duty to bargain was reactivated by the Union’s demands for bar-
gaining coupled with the issuance of meaningful changes in pro-
posals. As noted, above, “Anything that that creates a new pos-
sibility of fruitful discussion (even if it does not create likelihood
of agreement) breaks an impasse . . . [including] bargaining con-
cessions, implied or explicit.” Gulf States Mfg. v. NLRB, 704
F.2d 1390, 1399 (5th Cir. 1983); PRC Recording, supra at 636
and 640; Jano Graphics, Inc., 339 NLRB at 251 (“[A]ny impasse
on July 29 was broken on August 4, when the Union informed
(“Willingness to negotiate by telephone does not satisfy the obligation to
meet; face-to-face meetings are required”). I note that the Employer’s
assertion (R. Br. at 38) that telephone conferences are more reasonable
because the Employer is “in the business of installing and repairing such
equipment,” and the assertion that (R. 40) “the Act must accommodate
modern technology”—by allowing the Employer to limit meetings to
video or phone conferences—are makeweight arguments.
48 Ratification is a “subject unrelated to wages and terms of conditions
of employment,” and thus, even a Union’s stated intention to take a
the Respondent that it had new proposals and was seeking further
bargaining”). See also, Dallas & Mavis Specialized Carrier Co.,
346 NLRB 253, 257 (2006) (finding no good-faith bargaining
where the respondent listened and responded to the union's pro-
posal regarding the effects of ceasing operations but then sum-
marily rejected all but one of the union's proposals without
providing an explanation or counterproposal, and did not re-
spond when the union requested further bargaining). In this case,
the Union’s offers of proposals in November were not just prom-
ises of movement on significant issues—they were movement.
Larsdale, Inc., 310 NLRB at 1319 (“Union’s counterproposal on
this date, containing a number of concessions, was a sign that the
Union was willing to modify its proposals. Given this movement
by the Union, the Respondent was not justified in concluding that
negotiations were at impasse simply because the Union's conces-
sions were not more comprehensive or sufficiently generous”).
There was no impasse in the face of the Union’s series of pro-
posals in November, and it was not good-faith bargaining for the
Respondent to dismiss and ignore the Union’s demands for bar-
gaining.
In addition to impasse, the Respondent’s chief defense, on
brief, at the hearing, and even in the course of bargaining, was to
level accusations of bad faith and delay against the Union. The
Employer argues that the Union engaged in bad-faith bargaining
by not putting the July 30 LBF offer to ratification, then by re-
turning to the bargaining table on September 23 with new pro-
posals, some on matters not disputed on July 30. More generally,
the Employer asserts that the Union’s repeated demands to bar-
gain after July 30 and through December were bad faith attempts
to forestall impasse and avoid implementation of the Company’s
final proposal. I do not accept any of this, certainly not as a de-
fense to the Employer’s bargaining conduct.
To begin, the Union was straightforward enough about why,
after Henne indicated on July 30, that it intended to proceed to
ratification, the Union declined to do so: after July 30, the Inter-
national Union and Local Union President Wright reviewed the
proposal and they made clear that it should not go to a vote. The
International Union “felt that there were too many takeaways
[from] the current contract . . . not only takeaways but . . . too
much negative impact to employees in the [proposal].” So the
Union did not put the proposal to a vote. That is the explanation.
There is no evidence at all that it was done in bad faith or for
delay. Rather, after considering the matter internally, ratification
was not a bargaining tactic that the Union was willing to pursue.
Certainly there was not (and there is no claim that there was) a
binding agreement for the Union to take the Company’s July 30
proposal to ratification.48 And while Henne led the Company to
proposal to ratification does not constitute a binding bilateral agreement
to do so. C & W Lektra Bat Co., 209 NLRB 1038, 1039 (1974) (“We are
unwilling to distort words of intention into terms of agreement, particu-
larly where the subject is unrelated to wages and terms and conditions of
employment”), enfd. 513 F.2d 200 (6th Cir. 1975); Houchens Market of
Elizabethtown, 155 NLRB 729, 735 (1965), enfd. 375 F.2d 208 (6th Cir.
1967) (in any event ratification may not be insisted on by the employer
regardless of whether the parties understood that the employees should
vote on the contract”); Personal Optics, 342 NLRB 958, 962 (2004)
ALTURA COMMUNICATION SOLUTIONS, LLC 51
believe he intended to put the matter to ratification—I believe he
intended to do so at the time—Henne was clear that the Union
was not accepting or endorsing the proposal and did not agree
with it. Although I have found, above, that reference to seeking
review from the IBEW or Wright was made by Henne, I do not
consider that significant. It is not bad faith for the Union to de-
cide, upon due consideration, that it is not in the interest of the
bargaining process to put a proposal to ratification, even after
initially indicating that it would do so.
Instead of choosing to invoke ratification, the Union de-
manded more bargaining and, albeit reluctantly, the Employer
resumed bargaining with a mediator. The Union came to bar-
gaining with reworked proposals, including proposals the Em-
ployer coins “regressive” because they challenged Company
proposals that had not been in dispute on July 30. The Employer
argues strenuously that this “regressive” bargaining by the Union
was indicative of bad faith. I do not agree. For the same reasons
that the Union would not take the July 30 offer to ratification, the
Union decided to return to the bargaining table and “push back”
on some of the more problematic Company proposals that sought
such extensive unilateral control of terms and conditions of em-
ployment. The Union had acquiesced to some of these proposals
in an effort between July 28–30 to get an agreement. That effort
failed and the Union, after review with the IBEW and Wright,
revamped its positions. However, nothing in the Union’s new
proposals suggest an effort to frustrate agreement.
A regressive proposal is “not unlawful in itself,” rather it pre-
sents as bad-faith bargaining only if offered in bad faith, such as
“for the purpose of frustrating the possibility of agreement.”
U.S. Ecology Corp., 331 NLRB 223, 225 (2000); 26 Fed. Appx.
435 (6th Cir. 2001). “What is important is whether they are ‘so
illogical’ as to warrant the conclusion that . . . offering them
demonstrated an intent to frustrate the bargaining process and
thereby preclude the reaching of any agreement.” Barry-
Wehmiller Co., 271 NLRB 471, 473 (1984), quoting Hickin-
botham Bros. Ltd., 254 NLRB 96, 103 (1981). Here, the Union
was not attempting to thwart agreement, but to bring to the table
proposals that would enable a bargaining agreement.
Notably, while the Employer argues on brief that the Union’s
proposals evinced bad faith, at the time, the Company took it in
stride. It did not claim the new proposals were “bad faith” bar-
gaining and it responded to the Union’s proposals and offered
significant new proposals in the September 23-24 bargaining.
The Union’s changes did not frustrate bargaining and did not
thwart agreement.
More generally, the Employer claims that the Union’s actions
from July 30 onward manifested delay and bad faith prompted
by an illicit motive to “forestall potential implementation of the
terms of the Company’s LBFO,” (R. Br. at 46) and that this jus-
tified the Company’s actions. On one level the claim is simply
untrue and ignores that beginning August 14, less than two
weeks after July 30, the Employer began months of ignoring,
(“Even if the Union's prior statements arguably may have led the Re-
spondent to believe that the Union would conduct a vote of the bargain-
ing unit, there was never any such agreement between the parties).
quibbling (i.e., we will talk informally and decide whether it is
worth meeting), minimizing, and rejecting outright Union pro-
posals and efforts to meet. In fact, the Employer agreed to one
face-to-face session after July 30, despite repeated efforts by the
Union to establish more meetings, in an environment in which
the predicates for impasse are sorely lacking. There is simply
nothing to the Employer’s claim that the union unreasonably de-
layed negotiations in a manner that justified the Employer calling
it quits, or that suggested bad faith.
But more to the point, the Employer’s claim of Union malfea-
sance rests mostly on the unusual argument that the Union kept
offering bargaining proposals in an effort to forestall implemen-
tation of the Company’s October 2 proposal. This seems to me,
were it true (and even if the Employer were not bargaining in bad
faith), not only a nonoffense, but a vindication of the Board’s
impasse rule. One theory of the Board’s rule permitting em-
ployer implementation upon impasse is that it provides one
party, the employer, with a tool of “economic leverage” to en-
courage collective bargaining. McClatchy Newspapers, Inc. v.
NLRB, 131 F.3d 1026, 1032 (D.C. Cir. 1997). If the fear of being
struck by that tool incentivizes a union to compromise, to offer
new proposals, and to seek accommodation with the employer—
well, that is collective bargaining. The proposals the Union
made in November 2015 in an effort to ignite bargaining were
real. There is no evidence that they were not. It is unconvincing,
indeed, it might be said to be an admission, for the Employer to
complain that the Union’s dedication to bargaining slowed the
Employer’s efforts to implement its proposal. And the Em-
ployer’s argument would be without force even if it had other-
wise bargained in good faith. In the context of its bargaining
conduct of its repeated false claims of impasse going back to Au-
gust, its resistance to and rejection of meetings, its issuance of
ultimatums as to deadlines and on preconditions before it would
meet, its dismissal of Union bargaining efforts is particularly
misconceived.
Based on all of the above, I find that from October 22, 2015,
the Employer failed and refused to bargain in good faith in vio-
lation of Section 8(a)(5) and (1) of the Act.49
C. Implementation (as a further indicium of bad-faith bargain-
ing and as an independent violation of the Act)
Counsel for the General Counsel alleges that further evidence
of bad-faith bargaining is found in the Respondent’s unilateral
implementation of certain new terms and conditions on January
1, 2016. She also argues (GC Br. at 40) that the unilateral im-
plementation is an independent violation of Section 8(a)(5).
It is well-settled that unilateral changes may be indicia of a
lack of good-faith bargaining. Whitesell Corp., 357 NLRB 1119
(2011); Bryant & Stratton Business Institute, 321 NLRB 1007,
1044 (1996); Atlanta Hilton & Tower, 271 NLRB at 1603;
Omaha World-Herald, 357 NLRB 1870, 1885 (2011) (“When
such unilateralism occurs during bargaining, it is generally proof
49 An employer's violation of Sec. 8(a)(5) of the Act is also a deriva-
tive violation of Sec. 8(a)(1) of the Act. Southcoast Hospitals Group,
Inc., 365 NLRB No. 100, slip op. at 22 fn. 20 (2017); Tennessee Coach
Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th Cir. 1956).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
that the employer has not bargained in good faith”). Moreover,
in general, a unilateral implementation in the absence of a valid
bargaining impasse is a per se breach of the Act, independently
unlawful without regard to good or bad faith. NLRB v. Katz, 369
U.S. 736, 743 (1962); Southcoast Hospitals Group, 365 NLRB
No. 100, slip op. at 26 (2017); Omaha World-Herald, 357 NLRB
at 1885.
In defense, the Employer renews its claim of impasse as priv-
ileging its implementation. However, “[a] finding of impasse
presupposes that the parties prior to the impasse have acted in
good faith.” Circuit-Wise, Inc., 309 NLRB at 918. “A party
cannot parlay an impasse resulting from its own misconduct into
a license to make unilateral changes.” Wayne’s Dairy, 223
NLRB 260, 265 (1976); White Oak Coal Co., 295 NLRB 567,
568 (1989). Post-impasse implementation is permitted “but only
insofar as the new terms meet carefully circumscribed condi-
tions,” including that “[t]he collective-bargaining proceeding it-
self must be free of any unfair labor practice, such as an employ-
er's failure to have bargained in good faith.” Brown v. Pro Foot-
ball, Inc., 518 U.S. 231, 238–239 (1996); Don Lee Distributor,
322 NLRB 470, 492 (1996) (“An impasse may be arrived at only
when the parties have reached their disagreement after bargain-
ing in good faith”), enfd. 145 F.3d 834 (6th Cir. 1998); United
Contractors Inc., 244 NLRB 72, 73 (1979), enfd. mem. 539 F.2d
713 (7th Cir. 1976).
While an employer’s unfair labor practices do not automati-
cally preclude the possibility of the parties reaching a good-faith
impasse, where, as here, the unfair labor practices go directly to
the parties’ bargaining disputes, and were the chief reason for the
breakdown in bargaining, there is not much to an employer’s
claim that, notwithstanding the unremedied unfair labor prac-
tices, it is free to implement because it has bargained to an im-
passe. As discussed above, in this case, the prerequisites for a
valid impasse were destroyed by the Respondent’s consistent
manipulation of the bargaining process with its repeated false
claims of impasse, demands for preconditions to bargaining, fail-
ure to participate in the bargaining process, failure to respond to
repeated Union proffering of proposals on significant subjects,
and, of course, the adherence to proposals that sought overreach-
ing discretion and control over the employees’ terms and condi-
tions of employment. Based on this bargaining conduct, there
was no valid impasse and no right to implement, either on De-
cember 3, 2015, when implementation was announced, or on
January 1, 2016, when the changes were implemented. The
deadlock that existed in December 2015, was not a bona fide im-
passe as the Respondent engaged in an unlawful course of bad-
faith bargaining and that unlawful conduct was a chief cause of
the collapse of the bargaining process.
In its claim of impasse, the Respondent relies on Feller’s De-
cember 3 implementation letter, in which he notes that he has not
heard from Henne since Feller’s November 12 letter (in which
50 The issue of dissemination of the December 3 announcement to
employees—the “Impasse and Implementation Letter” letter was sent to
Henne and Grindle—is not well-developed in the record. I note that one
member of the Union’s bargaining team, Stewart, was an Altura em-
ployee. Stewart was among those provided the severance/buyout option.
Feller dismissed Union demands for bargaining and substantive
movement). In his December 11 response to Feller, Wright
pointed out that “The reason [Henne] was not in touch
with you after the email you sent him on November 12 is that
what you sent him, and the communications before that, did not
suggest a response by him would get anywhere.” The Respond-
ent (R. Br. at 22) seizes on Wright’s point and declares it a “sig-
nificant concession” allegedly demonstrating impasse. It is not.
What it is, is a perfect example of the Respondent’s miscon-
ceived view that it can dismiss, ignore, and belittle the Union’s
efforts to bargain for months, until the Union finally gives up,
and then Respondent can triumphantly declare impasse and im-
plement. The statute commands collective bargaining not beg-
ging, and the Union does not have to beg meetings forever. That
is the point of the statutory requirement of good-faith bargaining.
Notably, under Board precedent, the unilateral change is con-
sidered unlawful from the time it is announced—in this case De-
cember 3—and not when it became effective on January 1, 2016.
ABC Automotive Products Corp., 307 NLRB 248, 249–250
(1992), enfd. mem. 986 F.2d 500 (2d Cir. 1992); Centinela Hos-
pital Medical Center, 363 NLRB No. 44, slip op. at 3 fn. 9
(2015); UPS Supply Chain Solutions, Inc., 364 NLRB No. 8, slip
op. at 1–2, fn. 5 (2016). The announcement on December 3 was,
on its face, presented as a fait accompli, and was issued in the
absence of impasse. And although it listed the effective date of
implementation as January 1, 2016, it also indicated that the em-
ployees would only have until December 31, 2015 to decide if
they wanted to take the severance or the pay cut.50
In any event, even assuming that the unlawful implementation
occurred on January 1, 2016, there is nothing to the Employer’s
claim that a lawful good-faith impasse developed in December.
The Respondent’s commitment remained to implementation—
not meeting to bargain—and it gave no consideration to the mul-
tiple proposals that the Union had offered in November.
Finally—in addition to its impasse defense—the Respondent
(R. Br. at 45), citing Mackie Automotive Systems, 336 NLRB 347
(2001) and RBE Electronics, 320 NLRB 80 (1995), alleges that
it was free to implement even in the absence of impasse based
on the Union’s alleged delays and avoiding of bargaining. No-
tably, while both cases reference this “limited exception”
(Mackie, supra at 349; RBE, supra at 81) to the general rule re-
quiring impasse for implementation, neither involves such a sit-
uation. Cases that do sharply illustrate the inapplicability of the
exception to the circumstances here. See, e.g., M&M Contrac-
tors, 262 NLRB 1472, 1477 (1982) (allowing implementation in
absence of impasse “in light of the particular circumstances pre-
sent here, especially the Union's refusal from April to early No-
vember to give Respondent a date on which it would meet to
bargain, and the Union's early November demands for an imme-
diate meeting followed by refusal and delay in setting up a meet-
ing date”), review denied 707 F.2d 516 (9th Cir. 1983); AAA
He contacted the Company in December regarding the severance/buyout.
In addition, I note that the January 4, 2016 letter to employees indicates
that the Company had previously announced the implementation to em-
ployees (“As communicated in earlier negotiation updates, we plan to
make the following changes. . .”).
ALTURA COMMUNICATION SOLUTIONS, LLC 53
Motor Lines, Inc., 215 NLRB 793 (1974) (implementation al-
lowed where employer “diligently and earnestly” sought bar-
gaining with union but union “refused to meet with Respondent
at any time for purposes of negotiating a new contract”).51
I also agree with the General Counsel that the Respondent’s
unilateral implementation constitutes an independent violation
of Section 8(a)(5) and (1). However, as I read it, the complaint
is missing a clear statement that the unilateral implementation is
alleged as an independent violation of the Act. If that was in-
tended, the first subparagraph of paragraph 7 of the complaint
could have been clearer. However, the complaint clearly alleges
the facts of the January 1, 2016 unilateral implementation, in-
cluding the specific portions of the Employer’s revised LBF of-
fer, alleges that these subjects were mandatory subjects of bar-
gaining, and alleges that these proposals were implemented in
the absence of a valid impasse and without first bargaining to a
good-faith impasse. (Complaint paragraphs VI(c), (d), and (e).)
The issue was truly central to this litigation. The independent
unlawfulness of the implementation is an issue “closely con-
nected to the subject matter of the complaint and has been fully
litigated.” Pergament United Sales, Inc., 296 NLRB 333 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990). It is an appropriate violation
to find. See, E.I. Dupont De Nemours, 355 NLRB 1096, 1103
fn. 12 (2010) (finding violation for unilateral implementation
during bargaining for collective-bargaining agreement was
closely connected to complaint allegations and fully litigated
where complaint alleged failure and refusal to bargain over
changes), enf. denied on other grounds, 682 F.3d 65 (D.C. Cir.
2012); Galaxy Towers Condominium Association, 361 NLRB
364, 365 fn. 6 (2014) (“Although the premature declaration of
impasse and subsequent implementation of new terms and con-
ditions of employment are not specifically alleged in the com-
plaint, these issues were fully litigated and closely connected to
the [pled] issue of the Respondent’s right to unilaterally subcon-
tract bargaining unit work”).
I note that given my findings and conclusion, there is no need
to provide further analysis of events beyond implementation.
Suffice it to say that nothing in the record of post-implementa-
tion events could serve to remedy the unfair labor practices
found. Nor do I see any grounds for additional independent un-
fair labor practices based on the unlawful implementation. This
includes the complaint’s allegation that the meetings with em-
ployees to give them the option of executing the unlawfully im-
plemented buyout/severance agreements constituted direct deal-
ing and/or bypassing of the Union. As argued by the General
Counsel on brief, the alleged direct dealing/bypassing is part of
the res gestae of the unlawful implementation. It is distinguish-
able on those grounds from the direct dealing and bypassing
found in Grinnell Fire Protection Systems Co., 328 NLRB at 585
fn. 3, which involved an employer that, after (unlawful)
51 I need not reach a third issue concerning the Respondent’s imple-
mentation, briefly referenced (GC Br. at 30‒31) by the General Counsel.
This issue concerns the discretionary nature of the proposals imple-
mented—assuming the proposals implemented were, indeed, the pro-
posals in the Employer’s proposal—and the lawfulness of implementa-
tion of such proposals even if the parties were, in fact, at a lawful
implementation of its final contract offer, offered certain em-
ployees higher wages than provided for in its contract offer. By
contrast, the Union, relying on Toledo Typographical Union No.
63 v. NLRB, 907 F.2d 1220 (D.C. Cir. 1990), suggests (CP Br. at
23–24), that the severance/buyout proposal was a proposal to di-
rectly deal that could not be implemented, even upon impasse
and, indeed, could not lawfully be insisted upon to impasse. In
any event, under the circumstances, a direct dealing/bypassing
finding would be essentially cumulative with no material effect
on the remedy. I do not reach it on those grounds.
CONCLUSIONS OF LAW
1. The Respondent Altura Communication Solutions, LLC
(the Respondent) is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party International Brotherhood of Electrical
Workers, Local 21 (the Union) is a labor organization within the
meaning of Section 2(5) of the Act and, at all material times,
based on Section 9(a) of the Act, has been the designated and
recognized exclusive representative for purposes of collective
bargaining of the following appropriate unit of the Respondent’s
employees:
All full-time and regular part-time field service technicians
based at reporting locations throughout the United States (ex-
cept New York City), but excluding office clerical employees,
guards, professional employees, and supervisors as defined in
the Act.
3. On or about October 22, 2015, and thereafter, the Respond-
ent violated Section 8(a)(5) and (1) of the Act by failing and re-
fusing to bargain in good faith with the Union as the collective-
bargaining representative of the unit employees.
4. On or about December 3, 2015, and January 1, 2016, by
unilaterally changing terms and conditions of employment for
unit employees, the Respondent violated Section 8(a)(5) and (1)
of the Act.
5. The unfair labor practices committed by Respondent affect
commerce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent, having failed to bargain collectively and in
good faith with the Union shall be ordered, on request, to bargain
in good faith with the Union as the exclusive collective-bargain-
ing representative of the employees in the appropriate unit con-
cerning terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed agree-
ment.
bargaining impasse. I need not reach this issue as doing so would not
materially affect the remedy. See Stein Industries, supra, slip op. at 6 fn.
12 (given finding of implementation in absence of impasse unnecessary
to reach alternative rationale for violation if impasse had been reached).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD54
The Respondent, having unlawfully unilaterally implemented
changes in the terms and conditions for its unit employees on and
after December 3, 2015, and again on January 1, 2016, as part of
its implementation of its bargaining offer, shall, upon the Un-
ion’s request, rescind the changes and restore the status quo ante,
and shall maintain the status quo ante in effect until the parties
have bargained to agreement or a valid impasse.
The Respondent having unlawfully offered severance/buyout
agreements that were accepted by the following employees, shall
offer David Pickett, Jeff Stewart, Jerry Nanson, Brian Stark, and
Paul Curran full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
The Respondent shall make unit employees whole for any loss
of earnings or other benefits suffered as a result of the unlawful
unilateral implementation of changed terms and conditions of
employment, including employees who severed employment or
received a pay cut, pursuant to the unlawfully offered sever-
ance/buyout agreements. Additionally, having found that the
Respondents violated the Section 8(a)(5) and (1) by ceasing to
make contributions to employees' 401(k) accounts from January
1, 2016, the Respondent shall make such contributions, includ-
ing any additional amounts due the plan in accordance with Mer-
ryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979), and
make whole the unit employees for any loss of interest they may
have suffered as a result of the failure to make such payments.52
The make whole remedy shall be computed in accordance
with Ogle Protection Service, Inc., 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), or F.W. Woolworth Co., 90 NLRB
289 (1950), as appropriate, with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).53
In accordance with King Soopers, Inc., 364 NLRB No. 93
(2016), the Respondent shall compensate those employees who
accepted the unlawfully implemented severance/buyout offer
(David Pickett, Jeff Stewart, Jerry Nanson, Brian Stark, and Paul
Curran) for search-for-work and interim employment expenses
regardless of whether those expenses exceed their interim earn-
ings. Search-for-work and interim employment expenses shall
be calculated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra, compounded daily
52 To the extent that an employee has made personal contributions to
the 401(k) savings plan that have been accepted by the plan in lieu of the
Respondents' delinquent contributions during the period of the delin-
quency, the Respondents will reimburse the employee, but the amount of
such reimbursement will constitute a set-off to the amount that the Re-
spondents otherwise owe the fund. See, e.g., Capital Iron Works Co.,
355 NLRB No. 138 (2010) (incorporating by reference 355 NLRB 127,
129 fn. 4 (2010)).
53 The make-whole provision will be computed in accordance with
Ogle Protection Service, supra, for losses that do not involve cessation
of employment status or interim earnings. Thus, the Ogle calculation
will apply to any make-whole remedy stemming from the unilateral im-
plementation of changes to vacation, sick/personal days, per diem, cell
as prescribed in Kentucky River Medical Center, supra. In ac-
cordance with Don Chavas, LLC d/b/a Tortillas Don Chavas,
361 NLRB 101 (2014), the Respondent shall compensate the em-
ployees for the adverse tax consequences, if any, of receiving
lump sum backpay awards, and, in accordance with AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent
shall, within 21 days of the date the amount of backpay is fixed
either by agreement or Board order, file with the Regional Di-
rector for Region 13 a report allocating backpay to the appropri-
ate calendar year for the employees. The Regional Director will
then assume responsibility for transmission of the report to the
Social Security Administration at the appropriate time and in the
appropriate manner.
The Respondent shall be ordered, before implementing any
changes in wages, hours, or other terms and conditions of em-
ployment of unit employees, to notify and, on request, bargain
collectively and in good faith with the Union as the exclusive
collective-bargaining representative of employees in the follow-
ing bargaining unit:
All full-time and regular part-time field service technicians
based at reporting locations throughout the United States (ex-
cept New York City), but excluding office clerical employees,
guards, professional employees, and supervisors as defined in
the Act.
In the complaint and in the conclusion to her brief (GC Br. at
40-41) counsel for the General Counsel requests that as part of
the remedy for the violations found, the Respondent should be
ordered to commit to a bargaining schedule with the Union, that
the Union’s negotiating costs and expenses from October 22,
2015, to the present should be reimbursed, and that employees’
make whole remedy should include payment for consequential
economic harm incurred as a result of the Respondent’s unlawful
conduct. The first two are extraordinary remedies that the Board
has ordered on occasion. The third does not reflect extant prec-
edent. Almost by definition, extraordinary (much less unprece-
dented) remedies are not self-evidently appropriate. In any
event, while I agree that the Respondent’s violations of the Act
are serious, I am unconvinced that the requested extraordinary
remedies are warranted as part of the remedy.
My survey of the cases where the Board imposes a bargaining
schedule remedy reveals that they involve cases where the egre-
gious misconduct of the employer is qualitatively different than
the misconduct confronted here.54 In this case, while I do not
phone, 401(k) and severance cap. However, for the five employees who
severed employment pursuant to the unlawfully implemented sever-
ance/buyout offer, any make-whole remedy for losses from that change
will be calculated in accordance with F. W. Woolworth Co., supra. The
application of these rules to specific individuals and amounts owed are
matters for compliance.
54 Gimrock Construction, 356 NLRB 529, 529 (2011) (bargaining
schedule remedy imposed where employer had refused to meet and bar-
gain with union for over 11 years including over four years after enforce-
ment of the Board’s order by the Court of Appeals), enforcement denied
in relevant part on other grounds, 695 F.3d 1188 (11th Cir. 2012); Pro-
fession Transportation, Inc., 362 NLRB 534, 535 (2015) (bargaining
schedule imposed where employer cancelled seven consecutive
ALTURA COMMUNICATION SOLUTIONS, LLC 55
want to understate the seriousness of the Respondent’s unfair la-
bor practices, and their pernicious effect on the bargaining pro-
cess, this is an employer that did meet (at times), did bargain (at
times), did provide information requested of it, and whose con-
duct was free of expressions of the unbridled animus and con-
tempt for the union or employees that accompany some bad-faith
bargaining cases. It is not a recidivist, as far as I know. Moreo-
ver, in terms of its failure to diligently meet, which is the failing
to which a schedule is directed, the Respondent’s hesitance and
then failure to meet, and its preconditioning of meetings, devel-
oped as part of its false contention that it had bargained to im-
passe. Stripped of that contention, and if acting in accordance
with the traditional remedies issued as part of this case, I see no
reason to believe that this employer will fail to bargain based on
an appropriate schedule.
The General Counsel also requests that the Union be reim-
bursed for its costs and expenses incurred in collective bargain-
ing from October 22, 2015 to the present. The Board’s “long
established practice” is to “rely[ ] on bargaining orders to remedy
the vast majority of bad-faith bargaining violations. In most cir-
cumstances, such orders, accompanied by the usual cease-and-
desist order and the posting of a notice, will suffice to induce a
respondent to fulfill its statutory obligations.” Frontier Hotel &
Casino, 318 NLRB 857 (1995), enfd. in relevant part, 118 F.3d
795 (D.C. Cir. 1997). The remedy of requiring the respondent
to reimburse the charging party for negotiation expenses is re-
served for “cases of unusually aggravated misconduct . . . where
it may fairly be said that a respondent's substantial unfair labor
practices have infected the core of a bargaining process to such
an extent that their effects cannot be eliminated by the applica-
tion of traditional remedies.” Id. (citations omitted). In such in-
stances, an order to reimburse the charging party for negotiation
expenses “is warranted both to make the charging party whole
for the resources that were wasted because of the unlawful con-
duct, and to restore the economic strength that is necessary to
ensure a return to the status quo ante at the bargaining table.” Id.
at 859. While I agree that the Respondent’s unfair labor practice
are substantial and that, to date, have “infected the core” of the
bargaining process, I do not believe that it has been shown, or is
obvious, that traditional remedies will be ineffective or not deter
future misconduct. While there is no doubt that the Respond-
ent’s unlawful conduct resulted in a waste of the Union’s re-
sources, I do not see grounds on which to conclude that an award
of bargaining expenses is “necessary to ensure a return to the
bargaining sessions and insisted to impasse that any collective-bargain-
ing agreement reached would be nullified and the employer would no
longer have to recognize the union if the Supreme Court affirmed the
D.C. Circuit’s decision in NLRB v. Noel Canning); Thermico Inc., 364
NLRB No. 135, slip op. at 3 fn. 4 (2016) (bargaining schedule imposed
because 11 months passed since the union's first bargaining request, the
respondent refused or did not respond to the union's bargaining requests,
and the respondent abrogated its obligation to bargain pursuant to a bi-
lateral settlement); Camelot Terrace, 357 NLRB 1934, 2005 (2011) (bar-
gaining schedule imposed because where respondent engaged in flagrant
and “aggravated unlawful” behavior and failed to comply with the bar-
gaining schedules in two settlement agreements), enforcement granted in
status quo ante at the bargaining table.” The Respondent and the
Union have a history of successful negotiations. These negotia-
tions were different. As I have found, the Respondent’s attitude
toward these negotiations resulted in misconduct that destroyed
the bargaining process. However, I believe this misconduct---
new to the parties and new to the Respondent after many years
of bargaining—is remediable through traditional remedies, at
least at this point. Should traditional remedies fail to coerce law-
ful and good-faith bargaining conduct, the matter would likely
be viewed in a different light.
Finally, as noted, the General Counsel’s request for conse-
quential damages does not reflect extant precedent. I believe it
is for the Board to consider in the first instance. Omega Con-
struction Services, LLC, 365 NLRB No. 72, slip op. at 3 fn. 3
(2017).
The Respondent shall post an appropriate informational no-
tice, as described in the attached Appendix. This notice shall be
posted at each of the Respondent's facilities wherever the notices
to employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event
that during the pendency of these proceedings the Respondent
has gone out of business or closed any facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since Octo-
ber 22, 2015. When the notice is issued to the Respondent, it
shall sign it or otherwise notify Region 13 of the Board what
action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended55
ORDER
The Respondent Altura Communication Solutions, LLC,
Fullerton, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from:
(a) Failing and refusing to bargain in good faith over the terms
and conditions of a successor collective-bargaining agreement
with the International Brotherhood of Electrical Workers, Local
21 (Union) as the exclusive collective-bargaining representative
relevant part, 824 F.3d 1085 (D.C. Cir. 2016); All Seasons Climate Con-
trol, Inc., 357 NLRB 718, 718 fn. 2, 733 (2011) (bargaining schedule
imposed due to egregious misconduct that included the respondent solic-
iting and encouraging petitions to decertify the union, withdrawing
recognition from the union based on one of the petitions that the respond-
ent solicited, and failing to provide information that the union requested),
enfd. 540 Fed. Appx. 484 (6th Cir. 2013).
55 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD56
of the employees in the following unit:
All full-time and regular part-time field service technicians
based at reporting locations throughout the United States (ex-
cept New York City), but excluding office clerical employees,
guards, professional employees, and supervisors as defined in
the Act.
(b) Unilaterally changing terms and conditions of employ-
ment for bargaining unit employees by implementing portions of
its final contract offer without bargaining to a good-faith im-
passe.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act:
(a) On request by the Union, bargain with the Union as the
exclusive-collective bargaining representative of the employees
in the following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time field service technicians
based at reporting locations throughout the United States (ex-
cept New York City), but excluding office clerical employees,
guards, professional employees, and supervisors as defined in
the Act.
(b) On request by the Union, restore to unit employees the
terms and conditions of employment that were applicable prior
to January 1, 2016, and continue them in effect until the parties
either reach an agreement or a good-faith impasse in bargaining.
(c) Within 14 days from the date of this Order, offer David
Pickett, Jeff Stewart, Jerry Nanson, Brian Stark, and Paul Cur-
ran, full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges previously
enjoyed.
(d) Make whole the unit employees, with interest, for any
losses suffered by reason of the unlawful unilateral changes in
terms and conditions of employment, in the manner set forth in
the remedy section of this decision, including but not limited to
making contributions to employees 401(k) accounts that the Re-
spondent would have paid but for the unlawful unilateral
changes, and making whole employees who severed employ-
ment or received a wage cut pursuant to the unlawfully offered
severance/buyout offers on and after January 1, 2016.
(e) Compensate affected employees for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director for Region 13 within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award(s) to the ap-
propriate calendar year.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(g) Within 14 days after service by the Region, post at its fa-
cilities nationwide copies of the attached notice marked “Appen-
dix.” 56 Copies of the notice, on forms provided by the Regional
Director for Region 13, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
in each language deemed appropriate shall be distributed elec-
tronically, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed any facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice in each appropriate
language, to all current employees and former employees em-
ployed by the Respondent at any time since October 22, 2015.
(h) Within 21 days after service by the Region, file with the
Regional Director for Region 13 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. July 27, 2017
56 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”