Carey Salt, Inc., a subsidiary of Compass Minerals International, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 1, 2011

15-CA-019704 (N.L.R.B. Aug. 1, 2011)

JD(ATL)–21–11
Cote Blanche, LA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
CAREY SALT COMPANY, A SUBSIDIARY OF
COMPASS MINERALS INTERNATIONAL, INC.
and Cases 15-CA-19704
15-CA-19738
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY
ALLIED INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION AND LOCAL
UNION 14425
Stephen C. Bensinger, Esq. and Andrew T. Miragliotta, Esq.,
for the Acting General Counsel.
Stanley E. Craven, Esq. and Shawn M. Ford, Esq., of
Overland Park, KS, for the Respondent.
Louis L. Robein, Esq. and Julie Spencer, Esq.,
of Metairie, LA, for the Charging Party.
DECISION
Statement of the Case
MARGARET G. BRAKEBUSCH, Administrative Law Judge. The hearing in this
case was opened telephonically on March 21, 2011. The hearing resumed on March 23,
2011, in New Iberia, Louisiana, and continued on March 24, 25, 28, and 29, 2011. The
charge in Case 15-CA-19704 was filed by the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy Allied Industrial and Service Workers International Union and Local
Union 14425 (the Union) on August 6, 2010. The charge in Case 15-CA-19738 was filed by
the Union on September 1, 2010, and amended on October 29, 2010. Based upon the
allegations contained in Cases 15-CA-19704 and 15-CA-19738, the Acting Regional Director
for Region 15 of the National Labor Relations Board (the Board) issued an order
consolidating cases, consolidated complaint and notice of hearing on December 30, 2010.
The complaint alleges that Carey Salt Company, A Subsidiary of Compass Minerals
International, Inc1. (Respondent) engaged in various actions in violation of Section 8(a)(1),

1 The parties stipulated that Respondent is also referred to as North American Salt
Company and/or some variation or abbreviation of that name, such as North
American Salt or NASC.
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(3), and (5) of the National Labor Relations Act (the Act). Generally, the complaint2 alleges
that Respondent engaged in a series of unlawful actions over the course of collective
bargaining with the Union in March, April, May, and June 2010, and that some of these initial
unlawful actions resulted in employees engaging in an unfair labor practice strike from April
7, 2010, to on or about June 15, 2010. Furthermore, the complaint alleges that
Respondent’s unlawful actions prolonged the strike. The complaint additionally alleges that
Respondent implemented two final bargaining proposals without bargaining with the Union to
a good-faith impasse. The complaint further alleges that Respondent has not only failed and
refused to reinstate the employees who engaged in the strike to their former positions of
employment, but has also refused to use seniority to recall striking employees and has
continued to honor job offers that were made to replacement workers. Finally, the complaint
alleges that Respondent threatened employees with termination because they engaged in an
unfair labor practice strike.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel, the Union, and Respondent,
I make the following
Findings of Fact
I. Jurisdiction
Respondent, with an office and place of business in Cote Blanche, Louisiana, has
been engaged in the operation of a rock salt mine. Annually, Respondent purchases and
receives at its Cote Blanche, Louisiana facility; goods valued in excess of $50,000 directly
from points outside the State of Louisiana. During the same time period, Respondent sells
and ships from its Cote Blanche, Louisiana facility, goods valued in excess of $50,000
directly to points outside the State of Louisiana. Respondent admits, and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) and the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Issues
This case involves collective-bargaining negotiations between the Union and
Respondent that began in February 2010 and the Respondent’s conduct related to these
negotiations during a time period between March 31, 2010, and October 21, 2010. Over the
course of bargaining Respondent implemented two final offers and the employees engaged

2 On the second full day of the hearing, counsel for the Acting General Counsel moved
to amend the complaint to allege that on or about May 22, 2010, Respondent failed to
bargain in good faith by implementing its May 22, 2010 operating procedures and
unilaterally changing terms and conditions of employment. On March 29, 2011, the
Acting General Counsel filed a motion to amend the complaint to allege that on or
about April 30, 2010, Respondent, acting through Victoria Heider threatened
employees with termination because they engaged in an unfair labor practice strike.
Both motions were granted and the complaint was amended to include the additional
allegations.
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in a strike between April 7, 2010, and June 15, 2010. Respondent takes the position that
because the parties were at impasse on March 31, 2010, Respondent was justified in
implementing its final offer of March 19, 2010.
The parties stipulate that if Respondent’s March 31, 2010 implementation of its final
offer is found to be unlawful, the April 7, 2010 strike was an unfair labor practice strike from
the onset. The parties also stipulate that if Respondent’s May 25, 2010 regressive
bargaining proposal is found to be unlawful, the strike was prolonged by the unfair labor
practice. Finally, the parties also stipulate that if Respondent’s bargaining on June 3, 2010,
is found to be unlawful, the strike was thereafter prolonged by such unfair labor practices.
The parties further stipulate that following the strike and on or about June 21 and 28, 2010,
the Respondent continued to honor job offers made to replacement workers without notice
to, or bargaining with, the Union.
Thus, whether the strike was an unfair labor practice strike or an economic strike
rests with the determination as to whether the parties were at impasse on March 31, 2010.
Additionally, there is the issue of whether Respondent’s conduct in negotiations following the
March 31, 2010 implementation of its final offer prolonged the strike. Respondent does not
dispute that it made additional changes in terms and conditions of employment in June and
October 2010. If these changes were made without the parties having been at a valid
impasse, such changes are also unlawful.
B. Description of Respondent’s Operation
Carey Salt is a subsidiary of Compass Minerals International, Inc. and operates an
underground salt mine located in Cote Blanche, Louisiana. Respondent’s corporate
headquarters is in Overland Park, Kansas. The Cote Blanche mine is divided into separate
“rooms” or “drifts.” The drifts range in height from 30 to 70 feet, depending upon the
underground area being mined. The mining levels can extend down into the earth’s surface
for thousands of feet. Respondent is currently mining its third mine level; which is 1300 feet
below sea level. The equipment used in the mine operation includes off-road trucks, large
haulage trucks, and large caterpillar loaders. Respondent also uses specialized mining
equipment to drill holes, to cut the salt, and to load explosives into the drilled holes. Large
crushers grind the salt and miles of conveyor belts move the salt underground.
The majority of the bargaining unit employees work below the surface, leaving only a
few employees working above ground. Because of the unique layering of the salt deposit,
the salt is a very strong conductor of heat causing the temperature in the mine to be
approximately 95 degrees.
C. Principal Witnesses
During the 2007 and 2010 negotiations, Victoria Heider (Heider), vice president of
human resources for Compass Minerals International, Inc. served as Respondent’s chief
spokesperson and lead negotiator. Heider first began working for Respondent in 2004 and
joined the collective-bargaining negotiations between Respondent and the Union toward the
end of the bargaining in 2004. Heider served as Respondent’s chief spokesperson during
the 2007 and 2010 negotiations. Heider has had experience in negotiating collective-
bargaining agreements (CBA) for employers since 1974. Heider directly reports to
Respondent’s CEO; Angelo Brisimitzakis (Brisimitzakis). Her office is in Respondent’s
headquarters in Overland Park, Kansas.
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Gord Bull (Bull) is Respondent’s mine manager for the Cote Blanche, Louisiana
facility. In his capacity as mine manager, Bull is responsible for all mine operations. Bull
also served with Heider on the Respondent’s negotiating committee in 2010.
Gary Fuselier (Fuselier) has been an International representative for the Union for
approximately 8 years. Fuselier first began negotiating contracts with employers in or about
1982. He estimates that he has negotiated 50 to 75 contracts over that period of time.
Fuselier testified that with the exception of one instance where employees in Aruba initiated
a strike without union authorization, every negotiation has resulted in a contract.
D. Evidence and Conclusions Relating to Bargaining Allegations
1. Background
Respondent and the Union have had a bargaining relationship for approximately 40
years. The most recent agreement covered the period from March 25, 2007, through March
24, 2010. The parties began bargaining for a new contract on February 8, 2010. At the
beginning of the 2010 contract negotiations, there were approximately 100 employees in the
bargaining unit. Between February 8 and March 18, 2010, the parties met for 14 bargaining
sessions. In March 2010, the Union’s director contacted Fuselier and asked him to take over
the negotiations with Respondent as the previous staff representative had chosen to retire.
Fuselier agreed to do so and he attended his first bargaining session on March 10, 2010.
Other than Fuselier, the Union’s bargaining committee included Local Union President Mark
Migues, as well as employees O’Neal Robertson, Rickey Olivier, Dean Pontiff, and Terry
Gaddison. Heider and Bull represented the Respondent in all of the bargaining sessions and
they were accompanied by Human Resources Representative Toyla Charles and Operations
Manager Don Brumm for part of the sessions.
2. Whether Respondent unlawfully implemented its March 19, 2010 final offer
a. Evidence presented
(1) March 10, 2010 negotiations
When Fuselier’s joined the negotiations on March 10, 2010, Heider gave him a
negotiations summary; outlining the status of the bargaining thus far. The summary
indicated that there were 15 open issues for the Union and 3 open issues for the
Respondent. The summary also reflected that the parties had already reached agreement
on 13 contract items and there were 13 other issues that had already been settled or
withdrawn by either party prior to March 10. The three open issues for the Respondent
included overtime distribution, alternate shift schedules, and a Letter of Understanding (LOU)
concerning cross-assignments for employees.
Respondent presented the Union with a number of counterproposals on the Union’s
open issues. The counterproposals included such items as shift differential, holidays,
accident and sickness benefits, safety allowance, severance, hazard pay, life insurance, and
accidental death and dismemberment insurance. The Union accepted the Respondent’s
counterproposal on accident and sickness benefits and severance and dropped its previous
proposal seeking bonus compensation for tonnage. Later in the bargaining, Respondent
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accepted the Union’s proposal on life insurance and accidental death and dismemberment
insurance. Respondent additionally added the classification of roof bolter for hazard pay
coverage3. Tentative agreements were reached on accident and sickness benefits,
severance, and uniform replacement.
(2) Respondent’s open Issues on March 10, 2010
(a) Overtime distribution proposal
Under the prior contract, permanently assigned employees in the job or classification
requiring overtime were first offered the overtime. If they declined, the overtime was
awarded to employees based upon their ability to perform the work and their aggregate
overtime hours. Under the Respondent’s 2010 proposal, the overtime work would be
performed by a utility person who would be ready and available to perform the work if the
overtime was initially declined. There would be no need to call in employees from the
overtime list.
Under the prior contract, employees were given approximately 20 minutes at the end
of their shift to shut down their equipment, walk to the lunchroom, and secure their ride from
underground to the surface. Respondent’s 2010 proposal included a provision for “hot
seating;” which would require the employees to continue to operate their equipment at the
end of their shift without regard for overtime until they were relived by an employee from the
next shift.
Additionally, under the prior contract, an employee was paid for the overtime hours
that he did not receive; but should have received. Under Respondent’s 2010 proposal, the
employee who was overlooked for overtime would have the opportunity to make up the
overtime rather than receive payment for the work that he missed.
(b) Alternate shift proposal
Under the previous contract, employees were paid overtime for hours worked in
excess of 8 hours on any given shift. Respondent proposed that overtime would be paid for
hours worked beyond 40 hours a week. Respondent also proposed that employees would
work 11-hour shifts rather than 8-hour shifts. Under the prior contract, maintenance
employees were scheduled to work from Monday through Friday. Under the 2010 proposal,
maintenance employees would begin their work each week on Sunday and work through
Thursday. Thus, under Respondent’s proposal, production employees would be required to
work 11-hour shifts underground and maintenance employees would be required to work
every Sunday.
Although the union committee was not receptive to Respondent’s alternating shift
proposal, Fuselier nevertheless suggested a modification of the proposal. He suggested that
the Union would accept the proposed schedule, provided there was a 1-year trial period,
after which either party could serve notice to revert to the previous schedule. In a
counterproposal submitted to the Union at 5:15 p.m., Respondent incorporated the Union’s

3 The 2007/2010 collective-bargaining agreement provided for hazard pay for only the
classification of Giraffe/cherry picker.
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proposal for a 1-year trial period with the option to revert to the previous schedule with
notice.
(c) Cross-assignment proposal
The contract expiring on March 24, 2010, contained a Letter of Understanding (LOU)
that set out the conditions in which an employee could be assigned work in a different
classification. Respondent’s 2010 proposal eliminated the LOU and gave Respondent
unlimited managerial discretion to assign bargaining unit employees to any job regardless of
their title or skills. The Union opposed this proposal expressing their concerns that
employees might not be able to perform the work to which they were randomly assigned.
(3) March 11, 2010 negotiations
When the parties began bargaining on March 11, 2010, Heider presented a summary
of negotiations based upon the negotiations the previous day. The summary reflected the
same three open issues for Respondent. The summary also reflected that the Union’s open
issues were reduced to 10 issues. Additionally, there were 17 tentative agreements
identified and 14 items identified as settled or withdrawn. The Union submitted
counterproposals to the Respondent, modifying their position on shift differential and
vacation and accepting the Respondent’s proposal on life insurance and Accidental Death
and Dismemberment (AD&D) insurance. Later in the bargaining session, the Union withdrew
its proposal concerning retirees’ life insurance and accepted the Respondent’s proposal.
The Union had initially proposed two 15-minute breaks for employees on each shift and
Respondent rejected the proposal in its entirety. On March 11, 2010, the Union resubmitted,
agreeing that it would withdraw the proposal with the understanding that the Union and
Respondent could agree that the employees should have the opportunity to take a break. A
tentative agreement was prepared concerning safety.
(4) March 12, 2010 negotiations
As with the prior bargaining sessions, the parties did not discuss wages on March 12.
The Union presented its proposals with a modification to reduce the amount of Christmas
bonus previously proposed. Respondent agreed to add the classification of powder man to
the classifications covered for hazard pay. The same three open issues remained for the
Respondent. Although the parties exchanged proposals, there were no major agreements
and the bargaining session was relatively short compared to previous sessions.
(5) March 18, 2010 negotiations
Fuselier testified that prior to the negotiations on March 18, 2010; he had discussed
the status of the negotiations with the union committee. The committee discussed the fact
that they were getting close to the contract expiration of March 24, 2010, and they wanted to
get something wrapped up and back to the membership before the expiration of the contract.
At that point, the committee came to the conclusion that they would probably have to accept
an alternate shift schedule. With the possibility of an escape clause and a trial period, they
were close to accepting the alternate shift proposal. As far as the overtime issues, the
committee accepted the use of the utility employee, but they were concerned about the
proposed “hot seat” procedure. Fusilier recalled that the committee believed that they could
probably get the make-up overtime without creating more overtime problems. Fuselier also
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recalled that he had not believed that the Respondent was really serious about the removal
of the cross-assignment LOU and he thought that this issue could be resolved in order to get
the contract. Fuselier talked with the committee about the viability of some of the Union’s
open issues and how noneconomic issues might affect economic issues. Based upon their
discussions, the union committee decided to initiate wage discussions that had been tabled
thus far.
When the parties met on March 18, Fuselier explained that the committee was
concerned about the contract expiring on March 24. He proposed that the parties extend the
terms of the previous contract while they continued to negotiate. He explained that the Union
would be willing to continue to work under the terms of the existing contract during continued
bargaining. Fuselier recalled that Heider told him that such a plan would “just prolong the
process.”
The Union’s initial bargaining proposal included a proposal for an 8-percent increase
in wages. When the union committee told Respondent on March 18, 2011, that they wanted
to discuss wages, Heider responded with a proposal for a zero-percent wage increase. She
said that since the Union’s proposal was ridiculous, Respondent’s proposal would be equally
ridiculous. Fuselier recalled that Heider’s remark had inflamed his committee. During the
break following the Respondent’s proposal on wages, Fuselier and the committee again
talked about getting an offer that they could take to the membership.
When the parties resumed after the break, Fuselier told Respondent’s committee that
if those proposed items were all that was going to be on the Company’s final proposal,
Respondent needed to give the Union a final proposal. Fuselier testified that because of the
approaching deadline of March 24, 2011, he felt that it was important for the membership to
hear Respondent’s proposal directly from Respondent and not just from the Union
committee. Fuselier further testified that he asked for the final offer for the membership’s
review. He testified that if the offer was rejected by the membership, he expected that he
could go back to the bargaining table and share the true feelings of the membership with
Respondent.
(6) March 19, 2011
When the parties met again on March 19, 2011, Heider presented the Union with
Respondent’s final offer. Despite Heider’s earlier comments about proposing no increase in
wages, Respondent’s final offer included a proposal for a 2.5-percent wage increase.
Fuselier noticed however, that there were other items omitted from the proposal that he had
expected. Fuselier testified that there were a number of issues to which he believed there
had been “agreement”, however, the written tentative agreements had not been prepared.
Fuselier testified that during the negotiations, the Union had proposed, and Respondent had
agreed, to an inclusion of the 1-year trial period, a 30-day escape clause, and a 45-day
implementation period for Respondent’s proposed alternative work schedule. Although
Respondent had incorporated these modifications in their earlier counterproposals, the
modifications were not included in Respondent’s final offer. Additionally, the Union had
proposed hazard pay for the classifications identified as powder man, roof bolter, and cherry
picker. Although it was Fuselier’s understanding that these inclusions were accepted by
Respondent, the final offer did not include these additions. Fuselier testified that
Respondent’s proposals on March 18, 2011, were better than those included in
Respondent’s final offer of March 19, 2011. Respondent’s March 19, 2010 final offer not only
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deleted the previous LOU restricting cross-assignment, but also included Respondent’s new
contract language changing overtime distribution. The final offer also provided for rotating
11-hour shifts for the production employees and support maintenance employees and
established the workweek for maintenance employees to run from Sunday to Thursday as
initially proposed by Respondent. In testifying about Respondent’s final offer of March 19,
Bull acknowledged that Respondent deleted the Union’s suggestions that had earlier been
incorporated into Respondent’s proposals. He also admitted that in doing so, he was aware
that Respondent was making the proposal less attractive and harder for the Union’s
negotiating committee to present to the membership.
Fuselier recalled telling Respondent’s representatives that this was an unusual
contract offer and the Union would need additional time to present this kind of offer to the
membership. He explained that Respondent’s offer contained profound changes for both the
maintenance and production employees. For the maintenance employees especially, the
proposal was life changing as they would have to work every Sunday. He explained that the
Union would need to have an informational meeting with the membership to explain the
proposals and answer questions. He asked that someone from the Company be available by
telephone to answer any questions that employees might raise in the meeting and the Union
could not answer. Bull agreed to be available by telephone for this purpose.
Respondent’s offer expressly stated that it would expire at 11:59 p.m. on March 24,
2010. If not accepted by that time, the offer would be withdrawn in its entirety. Heider
testified that the Union should have understood that if the offer was not accepted by the
deadline, there was no longer any offer on the table.
(7) The March 23, 2010 membership vote
The Union held the informational meeting with the membership on March 23, 2010.
When the membership voted on March 24, 2010, the offer was rejected. Fuselier contacted
Heider and informed her of the results of the vote. He told her that the membership rejected
the Company’s final offer and that the Union was prepared to get back to the bargaining table
at Respondent’s convenience. He also told her that the Union was willing to continue
working under the existing collective-bargaining agreement. Heider told him that while
Respondent was available to meet again on March 31, 2010, the contract would only be
extended without a no-strike clause and an arbitration clause. She said that Respondent did
not want any “shenanigans” and that if Respondent had to fire someone, they did not want to
defend themselves in arbitration. In a later telephone conversation, however, Heider
explained that she had spoken with Bull and that Respondent agreed to extend the existing
contract until March 31, 2010.
(8) March 30, 2010 negotiations
Prior to coming to New Iberia for the March 31, 2010 negotiations, Heider booked not
only her flight to Louisiana, but also her return flight to Kansas City. Heider arrived at
approximately 4:43 p.m. at the Lafayette-New Iberia, LA airport on March 30, 2010, with a
reservation for a return flight for 2:20 p.m. on March 31, 2010.
During a conference call on March 30, Heider informed CEO Brisimitzakis concerning
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the status of the bargaining. In a followup email4 to Heider on March 30 entitled “CB Game
Plan/End Game,” CEO Brisimitzakis stated:
Confirming our call this morning…please find below the specific steps that will
play out on Wednesday and beyond:
Wed 9-11 am – Victoria and Gord attempt to get union to agree to our “last
and final” Offer . . . if unsuccessful, they declare ‘impasse’ based on guidance
from Bob/legal team.
Wed 11:01 am Victoria presents union with letter (prepared by Bob/legal
team) confirming impasse and that there will be no further negotiations.
Wed 11:02 am: Gord communicates in writing with all
Supervisors/Management what just happened, what is impasse, terms of our
last & final offer and that NO ONE is to negotiate anything etc. (letter prepared
by legal team) . . . okay to copy exempt/non union work force.
Wed 11:03 am- General/kind letter from Gord to entire CB work force (union &
non Union is available and can be handed out with a brief summary as to
where we stand, confirming that they are all welcome to work at new/higher
wages on their current shift but subject to the terms of our “last & final” offer
(letter to be prepared by Bob/legal team).
Wed 11:04 am: a hard copy of revised CBA (incorporating all the “last & final”
terms) is distributed to CB management/supervisors.
Obviously, the times of 11:01 – 11:04 am are approx and only indicate the
sequence of events. We are entering an “100% legal phase” right now and
we all need to work thru Bob/legal team. I will set up a call for tomorrow
afternoon for all of us to discuss/review our status.
Hang tough and stay safe . . . good luck!
(9) March 31, 2010 negotiations
Fuselier acknowledged that when the union committee returned to the negotiating
table on March 31, they did not have any written proposals to give to the Respondent. In a
discussion prior to the meeting, the committee discussed their plan to try to get some of the
March 18 agreements back on the table when they began negotiating on March 31. The
committee had also discussed dropping some of the union issues and trying to get some
“softer” language on overtime and the cross-assignment Letter of Understanding (Lou)
issues.
Fuselier testified that in previous negotiation sessions, Heider usually brought a large
binder containing her bargaining notes and various documents that she used in negotiations.

4 The copy of this email and other internal corporate correspondence was submitted
into evidence by the Acting General Counsel.
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When Heider arrived on March 31, however, she carried only a small portfolio. She placed
the portfolio on the table and crossed her hands over it. Fuselier recalled that when he
noticed that she did not bring her bargaining notes, he had surmised “this is probably not
going to be good.” The meeting began with the union committee’s explanation as to the
basis for the membership’s rejection. Fuselier told Heider about the membership’s response
to the alternate shift proposal requiring the maintenance employees to work on Sunday, as
well as their concerns about the hot seating and the removal of the LOU. Fuselier explained
that the membership had voiced the same kinds of concerns that had been previously voiced
by the union committee during negotiations. Fuselier recalled that Heider told him “that’s
what we have already heard.” Respondent suggested a break. Fuselier recalled that when
Heider returned to the room approximately 30 minutes later she asked the committee if they
were prepared to accept Respondent’s final offer. The committee confirmed that they were
not. Heider replied, “Our final is our final; you asked for it and you got it. We are not
prepared to move on any of our issues.” Heider told the Union that Respondent did not have
anything else to offer. Fuselier recalled telling Heider that the Union had some open issues
and some things that they would like to discuss. Heider replied that Respondent’s offer was
their final offer and they were at an impasse.
Fuselier told Heider that they were not at impasse. He recalled telling her, “You know
that we have some things we want to talk about. Are you going to sit there and tell me that
you’re not going to listen to any proposals that the Union wants to give you?” Heider again
told him that Respondent’s final offer is final and the parties were at impasse. Fuselier
asserted that they were not at impasse. He also testified that he told Heider that he had
spoken with Federal Mediator Sherman Bolton earlier that morning as well as the day before.
Fuselier explained that he had tried to get the mediator up to speed as to the status of the
negotiations. Fuselier recalled telling Heider that the mediator had telephoned him that
morning; explaining that he was in a nearby city and asking if he should come to New Iberia.
Fuselier testified that he told Heider that the mediator was en route and he asked if the
Company would at least meet with the mediator. Heider told him that this should have been
done a week earlier and Respondent was not prepared to meet with anyone. Fuselier told
her that he expected the mediator to be there shortly and he said that the Union would like
for her to at least meet with the mediator. Heider told him that they were finished with
bargaining and she began to leave.
Before she left, Fuselier asked Heider about the contract. When she explained that
the contract had expired, Fuselier asked if the employees would be locked out. Although
Heider confirmed that the employees would not be locked out of the facility, she also
confirmed that there would not be a no-strike clause or an arbitration clause. Additionally,
she told the Union that Respondent was going to implement its final offer. Shortly thereafter,
Heider and Bull left the negotiations session.
When Fuselier telephoned Mediator Bolton to determine his location, Bolton told him
that he was nearing New Iberia. Fuselier told him that Respondent had declared impasse
and suggested that Bolton might be able to speak with Respondent’s representatives. After
speaking with Bolton, Fuselier asked bargaining committee member Terry Gaddison to check
the parking lot5 to see if Respondent’s vehicles were still there. When Gaddison confirmed
that Respondent’s vehicles were still present, Fuselier then telephoned Bull and told him that

5 Heider was staying in the hotel where the negotiations were held.
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the mediator was expected within a few minutes. Fuselier asked Bull if Respondent would at
least meet with the mediator. Fuselier recalled that Bull told him that Heider had a plane to
catch and that Respondent had already put their final offer on the table.
Fuselier recalled telling the committee that if the Federal mediator could get
Respondent back to the bargaining table, he wanted the committee to prepare a substantial
proposal to give Respondent. Although the committee began working on the written
proposal as suggested by Fuselier, Bolton arrived shortly thereafter. After Bolton met with
the union committee for a few minutes, he left the meeting room and telephoned Heider.
When he returned to the room, he told the union committee that the Company did not want to
meet with him. Although Respondent’s vehicles had been in the hotel parking lot before
Fuselier spoke with Bull, the vehicles were no longer in the parking lot after Bolton’s
conversation with Heider.
Heider recalled that as she was traveling to the airport on March 31, she received the
telephone call from the mediator. She confirmed that Bolton asked her to return to the hotel
to meet with the Union and with him. Upon review of the affidavit that she gave to the
investigating Board agent, she recalled that the mediator told her that the Union had some
proposals for movement. Heider told the mediator that the Union had asked for a final offer
and Respondent had given the Union a final offer. She told the mediator that “final means
final” and she was on her way back to Kansas City. She acknowledged that even though the
mediator had told her that the Union had proposals, she had not wanted to know what the
proposals were and she had not suggested an alternative date to meet with the Union and
the mediator.
Being unable to contact Heider by telephone, Fuselier sent a number of emails to
Heider later in the day. At 12:41 p.m., Fuselier sent the following:
This email will confirm the Union’s statements today in response to your
incorrect and unlawful statement that the parties are at a bargaining impasse
and that the Company will unilaterally implement its “final proposal.” The
parties are not at impasse. The Union renews its request that the Company
agree to the presence of the assigned FMCS mediator to help the parties
reach a fair and equitable contract. The Union renews it[s] offer to extend the
current CBA until such time as the parties reach a new successor CBA or
either party provokes 48 hours written notice to the other party to terminate
this extension.
The Union is preparing a new proposal that will significantly move toward the
Company’s position on the scheduling issue. The Union’s new proposal will
make additional movement toward the Company’s position on other issues.
The Union remains flexible on all other open issues. The Union is available to
bargain over its new proposal this afternoon or in the morning. Please advise
as to the Company’s availability.
In the event the Company refuses to bargain with the Union we will take
appropriate action. In the event the Company unilaterally implements some or
all of its “final Proposal” we will take appropriate action.
Please advise me as to the Company’s position on these matters immediately.
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At 1:17 p.m., Heider responded in her email to Fuselier:
You have said the Company’s final offer will be voted on again by the
membership this afternoon, March 31, 2010. I very much hope that it will be
accepted. If it is not accepted, however, as I have advised you, final means
final and there is nothing more the Company can or will offer. Accordingly,
another rejection will make it clear we are at impasse, so effective with the
rejection vote the Company will be implementing the terms of its final offer. As
a practical matter, this means that beginning with this evening’s 11:30 shift,
the employees will either be working under the terms of a new contract or they
will be working under the terms of the implemented proposals. Either way, I
hope that you will explain to your membership that the wage increases will be
taking effect immediately. In any event, absent contract acceptance, the
arbitration obligation, as well as the no-strike clause, will no longer be in
effect. With regard to your suggestion that the Union still has room to move
towards the Company position, as I told you this morning, that does not
change anything. The Company has made its final offer, something you
asked for prior to the last vote, and it is not going to move from that, so the
question is whether you will, or will not, accept that offer. Please let me know
the results of the vote.
At approximately 1:30 p.m., and while at the airport waiting to board her plane, Heider
participated in a conference call with CEO Brisimitzakis and reported the results of the
bargaining as was planned the previous day.
At 2:54 p.m., Fuselier sent a response to Heider’s earlier email. He again told Heider
that the parties were not at impasse and in the event that the membership rejected
Respondent’s offer, the parties would still not be at impasse. Fuselier reiterated that the
Union was working on a new proposal that would “move in a meaningful way toward the
Company’s position on the scheduling issue and other open issues” and that the Union was
flexible on all open issues. Fuselier pledged that the Union was available to resume
bargaining that same evening in the event that the membership rejected Respondent’s offer
and that Mediator Bolton had been informed of such offer to bargain. Fuselier continued to
suggest that the parties extend the current CBA until a new contract could be reached.
When Heider responded to Fuselier in an email at 4:08 p.m., she clarified that
Respondent had met with the Union earlier that day to reiterate to the Union that
Respondent’s final offer was final and that Respondent had nothing else to offer. Heider
compared the status of negotiations to that of parties negotiating for the sale of a house. In
further explaining the analogy, she stated; ‘If you want to buy the house, you need to pay the
price.” She explained, “Here, if you want a contract, you need to accept our offer.” Heider
rejected Fuselier’s offer to extend the existing contract and explained that Respondent would
implement its final proposal if the proposal was not accepted by the membership.
At 4:35 p.m., Fuselier again told Heider that the parties were not at impasse and that
the Union had another proposal ready to submit to Respondent in the event that the
membership rejected Respondent’s final offer. He again explained that the proposal would
be a significant move toward Respondent’s position on scheduled and other open issues and
that the Union remained flexible on all other open issues. He again stated that if the
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membership rejected Respondent’s offer, the Union was available to meet for bargaining that
same day or the next day or any other time that Respondent would be available. Again, he
offered to extend the existing CBA.
At 4:51 p.m., Heider replied: “I am not trying to be insulting, but, really what part of
‘final’ do you not understand? I stand by my previous response.”
(10) The March 31, 2010 membership vote
Later in the day on March 31, President Migues called for a special meeting of the
membership. The committee met with the membership and explained the status of the
negotiations and suggested that the membership reconsider and revote Respondent’s offer.
The membership, however, rejected the offer. At 9:54 p.m., Fuselier emailed Heider to let
her know that the membership had rejected Respondent’s final offer. He reiterated that the
parties were not at impasse and that the Union had a new proposal “that moves in a
meaningful way toward the Company’s position on scheduling and other open issues.” He
explained that the Union was available to meet immediately and asked that Respondent
notify him of their availability in order that he could notify Mediator Bolton. He assured
Heider that the membership was not on strike. He told Heider that if Respondent refused to
agree to an extension of the CBA, the membership would work under the continuing terms
and conditions of employment as set forth in the CBA and in past practice.
At 10:11 p.m., Bull sent Fuselier an email informing him that as Respondent’s final
offer was again rejected by the membership, Respondent was implementing its final offer
without an arbitration and no-strike clause.
b. Conclusions
(1) Whether there is a valid impasse
There is no dispute that on March 31, 2010, Respondent unilaterally implemented
numerous changes to the terms and conditions of employment for the bargaining unit
employees. The most significant changes included in the implementation were the removal
of the previous restrictions on cross-assignment, the changes in the method for overtime
distribution, and the new plan for rotating and extended shifts. Respondent asserts that such
implementation was lawful because the parties were at impasse.
Generally, an employer may be found to violate the Act, if, when negotiations are in
progress, the employer unilaterally institutes changes in existing terms and conditions of
employment. NLRB v. Katz, 369 U.S. 736, 743 (1962). Nevertheless, if the parties have
reached a valid impasse in bargaining, the employer does not violate the Act by making
“unilateral changes that are reasonably comprehended within the employer’s preimpasse
proposals.” Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub nom. Television
Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). In its decision in Taft, the Board also
opined that impasse occurs “after good-faith negotiations have exhausted the prospects of
concluding an agreement.” Ibid.
The Board has further cautioned, however, that an impasse exists only where there is
a valid deadlock to the point where future bargaining at that point is futile and the assertion of
an impasse must be made in good faith and not merely designed to frustrate the bargaining
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process. Outboard Marine Corp., 307 NLRB 1333, 1363 (1992). Moreover, the burden of
proof rests with the party asserting impasse. Area Trade Bindery Co., 352 NLRB 172, 176
(2008); CJC Holdings, Inc., 320 NLRB 1044 (1996), affirmed 110 F.3d 794 (5th Cir. 1997).
The parties all appear to agree that the Board’s decision in Taft is the leading case
that establishes the criteria for determining whether parties have reached a valid impasse.
The Board identified a number of “relevant factors” when considering the existence of an
impasse. These factors include (1) the bargaining history; (2) the good faith of the parties in
negotiations; (3) the length of the negotiations; (4) the importance of the issue or issues as to
where there is a disagreement; and (5) the contemporaneous understanding of the parties as
to the state of the negotiations. Taft, supra at 478. The Board further explained that the
determination of whether an impasse exists is a matter of judgment that requires a careful
balancing of all of the relevant factors. Ibid.
(a) Bargaining history length of negotiations and the good faith of the parties
There is no question that the parties have had an extended history of bargaining.
Respondent asserts that there have been successive contracts agreed upon without a work
stoppage for a period of approximately 40 years. As Respondent also points out, there is no
evidence of a history of unfair labor practices or the Board’s involvement in the parties-
relationships. In the instant case, there is no complaint allegation of any bad faith or violative
conduct prior to the March 31, 2010 implementation of the March 19, 2010 final offer. Thus,
the parties’ conduct and bargaining history prior to Respondent’s final offer might be said to
be supportive of Respondent’s position. The bargaining history and Respondent’s conduct
just prior to the implementation of Respondent’s final offer is not, however, supportive of
Respondent’s position.
Respondent contends that the negotiations prior to the alleged impasse were
“exhaustive”, consisting of mostly all-day bargaining on February 8, 9, 10, 11, 12, 15, 17, 19,
and 20 and March 9, 10, 11, 12, 18, and 19. Counsel for the Acting General Counsel,
however, asserts that while there were 14 bargaining sessions between February 8 and
March 19, 2010, these sessions were sometimes short, particularly the last three meeting
dates, which occurred at a critical time in bargaining. As counsel for the Acting General
Counsel points out, wages were never discussed by the parties until the session on March
18 when Respondent offered the Union a zero-percentage increase.
Furthermore, it was during the March 19, 2010 bargaining session; the last session
before Respondent declared impasse, that Respondent presented the Union with a markedly
new proposal package. The March 19, 2010 final offer not only included a new wage
proposal, but also eliminated a number of items to which the parties had agreed, but had not
yet formally signed off with a “tentative agreement.” Specifically, Respondent omitted the
three classifications for hazard pay that had been agreed upon by the parties as well as the
Union’s suggestions on the alternate scheduling issue. Not only was the March 19 proposal
less attractive to the Union, but Respondent admits that the regressive changes in the March
19, 2010 proposal made it less attractive and harder for the union bargaining committee to
present to the membership.
Additionally, the record evidence reflects that when the parties met on March 31,
there was essentially no bargaining and that such failure to bargain was by design. As
evidenced by Respondent’s email of March 30, 2010, Respondent scheduled its declaration
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of impasse at 11:00 a.m. on March 31, giving the Union only 2 hours to report the
membership’s response to the regressive proposal of March 19. Based upon CEO
Brisimitzakis’ email of March 30, 2010, Heider and Bull were directed to declare impasse
after 2 hours if the union committee did not accept Respondent’s March 19, 2010 final offer
in its entirety. Upon declaring impasse, Heider was directed to present the Union with a
letter that had been prepared by Respondent’s legal team confirming impasse and
confirming that there would be no further negotiations. The record reflects that Heider and
Bull kept to the schedule as they were directed, resulting in no actual bargaining concerning
Respondent’s new and regressive proposal prior to Respondent’s declaration of impasse.
Respondent submits that while the Acting General Counsel may assert that one of
Respondent’s goals on March 31 was to establish impasse, Respondent contends that such
a goal would not be a violation. Respondent further maintains that every reasonable
employer will always seek to avoid the circumstance of having to continue negotiations
“indefinitely.” In essence, Respondent’s argument implies that an employer is justified in
attempting to force an impasse as a practical and efficient means of ending bargaining.
Such practical efficiency, however, does not comport with the purpose of bargaining as
viewed by the Board and the Court. In a very early decision, the Supreme Court referenced
the first annual Board report declaring: “Collective bargaining is something more than the
mere meeting of an employer with the representatives of his employees; the essential thing
is rather the serious intent to adjust differences and to reach an acceptable common ground.”
NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 485 (1960). Noting that the
Board had repeatedly asserted that good faith on the part of the employer is an essential
ingredient of collective bargaining, the Court opined that collective 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,” but it presupposes a desire to reach ultimate
agreement and to enter into a collective-bargaining agreement. Ibid. Admittedly, when
Respondent met with the Union on the morning of March 31, Respondent was aware that the
final offer of March 19 was less attractive than its previous proposals and that its
modifications in the offer from March 18 to 19 made it harder for the Union to present to the
membership. While a party’s adamant insistence on a bargaining position may not in itself
evidence a refusal to bargain in good faith,6 the Board has nevertheless found that other
conduct may be indicative of bad faith. Such conduct would include a party’s withdrawal of
already agreed-up provisions. Valley Oil Co., 210 NLRB 370, 385 (1974). By giving the
Union a regressive proposal on March 19, 2010, Respondent effectively insured that no
meaningful negotiations could follow. In doing so, Respondent’s attempt to create an
impasse reflected only its desire to end negotiations and to provide a means to unilaterally
implement its desired changes in terms and conditions of employment. Clearly,
Respondent’s conduct did not evidence a desire to reach an agreement.
Counsel for the Acting General Counsel submits that the CEO’s email to Heider on
March 31, 2010, shows that Respondent’s bargaining committee did not approach the
bargaining table on March 31, 2010, with any desire to reach an agreement. Counsel
maintains that the email confirms that Respondent’s committee came to the table with
instructions as to how and when to declare impasse. Heider conceded that while the CEO’s
instructions were detailed as to how the committee would declare an impasse, there was
nothing in his instructions to address how Respondent’s committee would deal with reaching

6 Neon Sign Corp v. NLRB, 602 F.2d 1203 (5th Cir. 1979).
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an agreement on March 31, 2010. Heider even admitted that she had no expectation that
the Union would accept Respondent’s proposal.
Accordingly, while there may have been a period of uneventful bargaining for
previous contracts, the immediate bargaining history and Respondent’s conduct prior to
Respondent’s declaration of impasse negates any finding of impasse.
(b) The importance of the issues to which there is disagreement
There is no question that Respondent’s three open issues on March 31, 2010, were
significant because of their potential impact upon the bargaining unit. Respondent’s proposal
to eliminate all restrictions on cross-assignments represented a significant change to
bargaining unit employees. With the elimination of the previous LOU, Respondent had the
unfettered discretion to assign employees to jobs for which they had no experience or skills.
Understandably, the Union opposed the elimination of this LOU because its absence could
allow Respondent to justify terminating any employee for his job performance by simply
assigning him to work that he could not do. Respondent’s overtime distribution proposal and
the alternate shift proposal were significant because of their impact in reducing employees’
pay. Respondent’s new overtime distribution policy would eliminate an overtime opportunity
that had previously been available to employees based upon their ability to perform the job
and their aggregate number of overtime hours. The policy also eliminated overtime for
employees who were required to remain on their job at the end of their shift until they were
relieved by another employee. The proposed alternate work shift required the employees to
work an additional 3 hours on each shift without overtime and required maintenance
employees to work every Sunday as a regular workday.
The record is replete with testimony from both Heider and Bull concerning the
importance of these three issues to Respondent. Respondent maintains that the issue
involving the alternate shift has been a matter of concern for a considerable period of time
and was even discussed in prior contract negotiations. Additionally, the Union does not
dispute that the amount of overtime was substantial. Respondent asserts that management
had the responsibility to do what it deemed best for all stakeholders and they were
committed to “fixing” the problem of excessive overtime. Certainly, no party is required to
“make concessions or to yield any position fairly maintained” in collective bargaining. NLRB
v. Blevins Popcorn, 659 F.2d 1173, 1187 (D.C. Cir. 1981). Respondent appears to argue
that the parties were at impasse on March 31, because these three “core” issues were of
such importance to Respondent and because Respondent was unrelenting in seeking the
Union’s agreement on these issues. Despite Respondent’s assertion that it held tight and did
not waiver in its pursuit of these three core issues, the record also indicates that just prior to
Respondent’s March 19, 2010 final offer, the Union suggested modifications to Respondent’s
alternative shift proposal and the Union’s suggestions were incorporated into Respondent’s
bargaining proposals. Although Respondent withdrew those suggestions from its final offer,
such action does not negate that there was movement by the parties relating to
Respondent’s core issues. Thus, despite the fact that the three core issues were of
paramount importance to both parties, this importance does not overshadow the other Taft
factors in the impasse analysis. Furthermore, even though Respondent chose to disregard
the concessions made by the Union with respect to the alternative shift issue in its final offer,
the record nevertheless reflects that there was movement in this regard. Although
Respondent ignored the Union’s prior concession on the alternative shift issue and
conveniently omitted it from its final offer; the Union did not withdraw this suggestion at any
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time prior to Respondent’s declaration of impasse. Accordingly, a “concession by one party
on a significant issue in dispute precludes a finding of impasse even if a wide gap between
the parties remains because under such circumstances there is reason to believe that further
bargaining might produce additional movement.” Saunders House v. NLRB, 719 F.2d 683,
688 (3d Cir. 1983).
(c) Contemporaneous understanding of the parties
Although the Board did not state that any one factor in its analysis was more
significant than the others, it is apparent that the contemporaneous understanding of the
parties is a crucial factor. The determination of impasse depends upon the mental state of
the parties and is a highly subjective inquiry. Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1186
(5th Cir. 1982). In order for there to be a valid impasse, both parties must believe that they
are at the “end of their rope.” Newcor Bay City Division of Newcor, Inc., 345 NLRB 1229
(2005); PRC Recording Co., 280 NLRB 615, 635 (1986). Because a determination of the
mental status of the parties is essential, bargaining devices or scare words such as
“impasse” or “deadlock” used by the parties are legal conclusions and are not binding on the
Board. Ibid.
For an impasse to occur, neither party must be willing to compromise. Grinnell Fire
Protection Systems, Co., 328 NLRB 585, 585 (1999); enfd. 236 F.3d 187 (4th Cir. 2000), cert.
denied 534 U.S. 818 (2001). A genuine impasse in negotiations is reached only when the
parties have discussed a subject or subjects in good faith, and despite their best efforts to
achieve agreement with respect to such, neither party is willing to move from its respective
position. Anderson Enterprises, 329 NLRB 760, 762 (1999). Even if an employer has
demonstrated that it was unwilling to compromise any further, there must also be evidence
that the union is also unwilling to compromise any further. Ibid. Essentially, one party cannot
unilaterally establish or create an impasse. Both parties must have the same understanding
and find themselves at the same point in negotiations. The overall evidence in this case
does not establish that there was a contemporaneous understanding of impasse by the
parties.
Based upon the record evidence, it is apparent that the Union was genuinely
surprised and essentially caught off guard when Respondent declared impasse after only 2
hours into the March 31, 2010 bargaining session. The Union immediately protested
Respondent’s assertion of impasse and continued to do so not only during the bargaining
session on March 31, but also in subsequent telephone calls and emails.
Although it could not be said that the parties were on the verge of an agreement, the
union committee’s conduct contradicts their having reached an impasse or deadlock. The
fact that the union committee had already contacted the Federal mediator represents not
only an element of optimism, but also evidences a desire to continue to bargain toward an
agreement. Respondent does not dispute that in response to the Union’s request, the
Federal mediator not only came to the bargaining site on March 31, 2010, at the Union’s
request, but he also telephoned Heider to ask her to return to the bargaining table. Had the
Union believed that the parties were at a deadlock, it would have been illogical to involve the
Federal mediator on March 31. Additionally, I note that almost all of the 2 hours in the March
31, 2010 bargaining session were consumed with the union committee explaining in detail
why the membership had rejected the Respondent’s final offer. One can only conclude that
they did so to elicit additional bargaining. Had the Union believed that the parties were
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hopelessly deadlocked, there would have been no reason to “educate” Respondent on the
membership responses and concerns. Furthermore, I do not find the Union’s failure to
submit any new written proposals on March 31, 2010, and prior to the impasse declaration to
demonstrate the Union’s sense of deadlock. Although Respondent may have demonstrated
that it was unwilling to compromise any further, the Union’s overall conduct does not
demonstrate a similar mindset. Furthermore, a party’s failure to provide a new counteroffer at
a specific time or in response to the other party’s request does not in and of itself, establish a
valid impasse. New Seasons, Inc., 346 NLRB 610, 622 (2006).
Respondent asserts that the Union’s request for a final offer is the most compelling
evidence of the “contemporaneous understanding” of the parties as to the status of
negotiations. Respondent explains after searching the law, it has not found any case “where
it has been alleged by the General Counsel or found by the Board that the parties were not at
impasse after an employer was asked to give, thereafter gave, and then stuck to, a final
offer.” Respondent submits that the closest case on this question is the decision in Presto
Castings Co., 262 NLRB 346 (1982), where Respondent asserts that the Board found
impasse after only two bargaining sessions and where each side pushed the other to a final
offer. Obviously, this case is immediately distinguishable from the facts of the instant case
based upon the assertion that both parties sought final offers from each other. The case is
further distinguished by the fact that the administrative law judge had no problem in finding
an impasse based upon the testimony of the lead negotiators and the fact that they
considered themselves to be at impasse.
Respondent also cites the Board’s decision in Industrial Electric Reels, Inc., 310
NLRB 1069 (1993), to show that “the Board appears to accept as a given that a request for a
final offer permits an employer to give, and to stand on, such offer. In Industrial Electric
Reels, Inc., the union requested a final offer from the employer to take to the membership for
ratification. Because the employer representative feared that the employer could not
withstand a strike, the employer representative structured the offer to make it attractive to a
majority of the bargaining unit employees. When the employees rejected the employer’s
offer, the employer immediately requested additional bargaining and when the parties
resumed bargaining, the employer modified its final proposal. Although the Board ultimately
found no unlawful conduct on the part of the employer in declining to modify its final offer
until after the membership vote, the case is clearly distinguishable from the instant case.
Industrial Electric Reels, supra at 1073. Unlike the circumstances involved in Industrial
Electric Reels, Respondent did not structure the final offer to make it attractive to the
bargaining unit. On the contrary, Bull acknowledged that because Respondent’s March 19
final offer was less attractive than its March 18 proposals, it was going to be harder for the
union committee to sell the proposal to the membership. The case is also distinguished by
the fact that the employer in Industrial Electric Reels resumed bargaining and actually
modified its final offer.
Thus, I do not find that either Presto Casting Co. or Industrial Electrical Reels, Inc.
provides authority to conclude that a party’s request for a final offer assures a finding of
impasse. In the instant case, the parties were nearing the contract deadline. Fuselier
credibly testified that he told Respondent that he was requesting a final offer in order to take
something to the membership before the deadline. He explained to Heider that if the
membership rejected the offer, the parties could return to the bargaining table and the Union
could explain the sentiments of the membership. There is no credible record evidence to
demonstrate that the Union’s request for a final offer directly communicated or even implied
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that they did not intend to continue bargaining to reach agreement. Consequently, the record
as a whole reflects no contemporaneous understanding as to the state of the negotiations as
of the date of the declaration of impasse.
(2) Conclusions on impasse
Respondent argues that its position is supported by the Board’s decision in California
Pacific Medical Center, 356 NLRB No. 159 (2011). In California Pacific, the Board sustained
the judge in finding that the parties were at impasse. Respondent asserts that this case is
noteworthy because of the Board’s reliance on the union’s failure to propose anything of
substance in response to an impasse declaration by the employer. I note, however, that the
facts of California Pacific are significantly different than those of the instant case. In
California Pacific, the employer declared impasse on October 27, 2009, and at a time in
bargaining when the parties were far apart on the issue of healthcare. Despite the
declaration of impasse, the parties met again for bargaining on November 18 and December
14, 2009. The union did not offer any new proposals on the issue of healthcare during the
November and December meetings. Noting that the union did not take the opportunity to
offer any new healthcare proposals, the Board found that the parties were at impasse on
January 1, 2010, when the employer implemented its bargaining proposal.
In California Pacific, the Board’s decision was apparently influenced by the fact that
the union proposed nothing for more than 2 months in response to an employer’s declaration
of impasse. Thus, the impasse that provided the basis for the employer’s lawful
implementation of its bargaining proposals occurred only after this stagnant 2-month period.
In the instant case, Respondent declared impasse on the morning of March 31 with a
prearranged plan to immediately implement its final offer. Unlike the circumstances in
California Pacific, Respondent gave the Union no opportunity to submit proposals in
response to the declaration of impasse. Despite the requests of the Union and the Federal
mediator, Heider proceeded to the airport to catch her flight and to follow the plan outlined
the previous day by her CEO.
Furthermore, even if there had been an impasse at 11 a.m. as planned by
Respondent, the impasse would have been broken by the Union’s response throughout the
day on March 31, 2010. The Union not only brought in the Federal mediator on March 31,
2010, but confirmed that it had additional proposals to make if only the parties could resume
their negotiations. Heider admits that when she spoke with the mediator, he told her that the
Union had additional proposals. Heider and Bull ignored both the Union and the mediator
and followed the CEO’s plan and instructions. Historically, the Board has not required major
changes in circumstances to find that an impasse has been broken. Airflow Research & Mfg.
Corp., 320 NLRB 861 (1996). The Court of Appeals for the Fifth Circuit, in enforcing the
Board’s finding that impasse had been broken, explained, “Anything that creates a new
possibility of fruitful discussion (even if it does not create a likelihood of agreement) breaks
an impasse.” The court went on to suggest that even implied bargaining concessions would
be sufficient to break the impasse. Gulf States Mfg. v. NLRB, 704 F.2d 1390, 1393 (5th Cir.
1983). Thus, any alleged impasse would have been quickly broken by the later
communications and events on March 31, 2010.
Having applied the Taft analysis and reviewing the evidence as a whole, I find that
Respondent implemented its final offer on March 31, 2010, in the absence of impasse and as
alleged in complaint paragraph 18(a). Furthermore, I find merit to complaint paragraph 25
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that alleges that on or about March 31, 2010, the Union requested that Respondent bargain
collectively about scheduling and all other open issues. Merit is also found to complaint
paragraph 15 that alleges that on or about March 31, 2010, the Union, by email, requested
that Respondent bargain collectively with the Union as the exclusive collective-bargaining
representative of the unit.
3. The March 31, 2010 changes in terms and conditions of employment
Respondent admits that in implementing its March 19, 2010 offer on March 31, 2010,
the following changes were made:
(a) Changes to the overtime distribution procedure for Unit employees.
(b) Changes to cross assignment restrictions for Unit employees.
(c) Changes to the shift schedules for Unit employees.
(d) Changes to the “unable to report to work” notification requirements for
Unit employees.
(e) Changes to the probationary period for Unit employees.
(f) Changes to the probationary period for Unit employees recalled from
layoff.
(g) Changes to the lay-off and bumping procedure for Unit employees.
(h) The addition of a new provision regarding vacation benefits for Unit
employees.
(i) A change in the method Unit employees are compensated for serving
on the safety committee.
(j) A change in the safety allowance provision for Unit employees.
(k) A change in the “bereavement leave” provision for Unit employees.
(l) A clarification of the lunch period for Unit employees.
(m) A change in the procedure for printing new agreements for Unit
employees.
(n) The addition of a new severance pay provision for Unit employees.
(o) A change in the provision for removing discipline from the files of Unit
employees.
(p) A change in the “injured employee physician visit” provision for Unit
employees.
(q) A change in the life insurance and accidental death and
dismemberment benefits available to Unit employees.
(r) A change in the accident and sickness benefits available to Unit
employees.
(s) An addition of a new uniform exchange program for Unit employees.
(t) A change in the wage rates for Unit employees.
Unilateral action by an employer concerning subjects of mandatory bargaining is a
violation of the duty to bargain in good faith, in the absence of a true impasse in negotiations.
NLRB v. Katz, 369 U.S. 736, 743 (1962). The changes listed above cover a full range of
terms and conditions of employment. Because there was no impasse at the time these
changes were implemented, Respondent did so at its own peril. As the Board has previously
noted, “unilateral change not only violates the plain requirement that the parties bargain over
‘wages, hours, and other terms and conditions,’ but also injures the process of collective
bargaining itself.” Priority One, Services, Inc., 331 NLRB 1527 (2000), quoting NLRB v.
McClatchy Newspapers, 964 F.2d 1153, 1162 (D.C. Cir. 1962). In its decision in Priority
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One, the Board pointed out that it is well settled that the real harm in an employer’s unilateral
implementation of terms and conditions of employment is to the union’s status as bargaining
representative and in effect undermining the union in the eyes of the employees. As the
Board went on to point out, such unilateral changes are not “simply benign technical”
changes, but are the kinds of changes that would undermine a union’s perceived authority as
the bargaining representative of the employees. Ibid.
Clearly, the vast array of changes that were implemented on March 31, 2010,
represented far more than benign technical changes. Such changes essentially gutted the
terms of the prior contract and significantly altered the previously established terms and
conditions of employment. As has been noted, such unilateral action “detracts from the
legitimacy of the collective-bargaining process by impairing the union’s ability to function
effectively, and by giving the impression to members that a union is powerless.” Carpenter
Sprinkler Corp. v. NLRB, 605 F.2d 60, 64-65 (1st Cir. 1979) (citing NLRB v. General Electric
Co., 418 F.2d 736, 748 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970).
4. Whether Respondent engaged in unlawful conduct between March 31 and April 30
Complaint paragraph 16 alleges that from March 31, 2010, to on or about April 30,
2010, Respondent failed and refused to bargain collectively with the Union as the exclusive
collective-bargaining representation of its unit employees. Paragraph 18(b) of the complaint
alleges that from on or about March 31, 2010, to on or about April 30, 2010, Respondent
conditioned bargaining over mandatory subjects of bargaining on the Union’s concessions to
Respondent’s bargaining demands.
a. Evidence presented
Heider responded to Fuselier’s last email of 3-31-10 at 9:24 a.m. on April 1, 2010.
She reminded Fuselier that it was the Union who had asked for a final offer from Respondent
and that she had done exactly as he had asked. She again explained that she had come
back to negotiations on March 31 to make it as clear as she could that “final means final.”
She explained that as Respondent’s offer had been rejected, it made no sense to have more
meetings like the one on March 31 where she could only repeat that Respondent had given
its final offer. She rejected his assertion that the parties were not at impasse; stating: “The
Company is not interested in meeting somewhere between our final offer and your current
position, whatever that is.”
Later in the day at 1:55 p.m., Fuselier again informed Heider that the Union had a
new proposal to submit to Respondent on the open issues. He again asked about
Respondent’s availability for bargaining in order that he could notify Mediator Bolton. When
Heider replied at 4:32 p.m, she explained: “As I told both you and Mediator Bolton
yesterday, there is no reason to meet again unless you are willing to accept the pending final
offer.”
The parties had no further negotiations until April 30, 2010. Although the parties met
in person on April 20, 2010, no negotiations were held. The in-person meeting on April 20
was initiated at the request of Union Director Mickey Breaux. Fuselier contacted Heider and
told her that Breaux wanted to have an off-the-record meeting to speak with Respondent and
listen to Respondent’s position. He explained that because none of the committee members
would be included, there would be no negotiations or proposals. The meeting was held at a
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restaurant in the Houston Airport. The only persons attending the meeting were Heider, Bull,
Fuselier, and Breaux. Heider and Bull gave Fuselier and Breaux some documents to
substantiate Respondent’s claims concerning excessive overtime and absenteeism. Breaux
agreed that the overtime and absenteeism was high. He also asked questions about the
three big issues that were important to the Company. There was no discussion during the
meeting about resuming negotiations.
b. Conclusions concerning Respondent’s conduct in April 2010
Assuming that a valid impasse had been reached by the parties on March 31, 2010,
the overall evidence supports a finding that Respondent unlawfully failed to bargain with the
Union and conditioned bargaining over mandatory subjects of bargaining on the Union’s
concessions to Respondent’s bargaining demands as alleged respectively in complaint
paragraphs 16 and 18(b). As the Board has noted, even when an impasse in bargaining is
reached, the duty to bargain is not terminated. It is merely suspended. McClatchy
Newspapers, Inc., 321 NLRB 1386, 1389 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert.
denied 524 U.S. 937 (1998). Furthermore, as the Board pointed out in its decision in Hi-
Way Billboards, Inc., 206 NLRB 22, 23 (1973), the duty to bargain about the subject matter of
the impasse merely becomes dormant until changed circumstances indicate that an
agreement may be possible. Specifically, the Board pointed out that such circumstances
may include the union’s engaging in a strike, the employer’s engaging in a lockout, the
employer’s hiring of replacements to counter the loss of striking employees, as well as the
employer’s changing terms and conditions of employment that are consistent with the offers
rejected by the union. As the Board explained, these kinds of economic pressures usually
break the stalemate between the parties, change the circumstances of the bargaining
atmosphere, and revive the parties’ duty to bargain. As the Board noted, “an impasse is but
one thread in the complex tapestry of collective bargaining, rather than a bolt of a different
hue. In short, a genuine impasse is not the end of collective bargaining.” Hi-Way Billboards,
supra at 23. In a later decision in Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S.
404, 412 (1982), the Supreme Court reiterated the Board’s decision in Hi-Way Billboards,
noting that impasse is only a temporary deadlock or hiatus in negotiations that is eventually
broken in almost all cases through either a change of mind or the application of economic
force. Ibid.
There is no dispute that the Union requested bargaining after the implementation and
confirmed that it had new proposals to offer on the open issues. At 10:11 p.m. on the
evening of March 31, 2010, Bull notified the Union that Respondent was immediately
implementing its final offer. As described above, Heider responded by telling the Union that
it made no sense to have any additional meetings. She made it clear that Respondent was
not interested in meeting somewhere between Respondent’s final offer and the Union’s
current position, “whatever that is.” In a later email on April 1, 2010, Fusilier reiterated that
the Union had a new proposal to submit to Respondent on the open issues. He asked
Respondent’s availability for bargaining in order that the Union could notify the mediator.
Within hours, Heider responded: “As I told both you and Mediator Bolton yesterday, there is
no reason to meet again unless you are willing to accept the pending final offer.”
The Union argues that once an impasse is broken and the bargaining obligation is
restored, there is no “grace period” that allows an employer the right to continue what it
enjoyed during the period of impasse or its suspension of its 8(d) obligations. The Union
asserts that any impasse that may have existed on March 31 ended when Respondent
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exercised its “economic force” and unilaterally implemented terms and conditions of
employment by implementing the March 19 proposal at 10:11 p.m. The Union further
submits that once Respondent imposed this unilateral implementation, it was no longer
permitted to summarily reject the Union’s request to return to the bargaining table and
resume the bargaining process. I find merit to the Union’s argument. Assuming that there
had been a valid impasse on the morning of March 31, 2010, the impasse was broken that
same day either by the Union’s request to bargain as discussed above or by Respondent’s
implementation of its final offer. The fact that Respondent had indeed broken any stalemate
in negotiations is evidenced by the Union’s request to return to the bargaining table and its
assertion that it had new proposals concerning the open issues. Heider summarily rejected
the offer without even knowing the nature of the new proposals. She made it clear that the
only thing that Respondent would accept from the Union was total acceptance of
Respondent’s final offer. Although Heider and Bull met with Fusilier and the union director in
Houston on April 20, there was no bargaining. Although Heider and Bull explained why they
wanted the terms of the final offer, there is no evidence that Heider or Bull expressed any
interest in the Union’s new proposals that Fuselier referenced in his April 1, 2010 email.
Thus, through Heider’s April 1, 2010 email and continuing through the April 20, 2010
meeting, Respondent refused to bargain with the Union at a time when there was no
bargaining impasse.
Accordingly, Respondent’s refusal to bargain with the Union from March 31, 2010, to
on or about Aril 30, 2010, constitutes a refusal to bargain in good faith in violation of Section
8(a)(5) of the Act as alleged in complaint paragraph 16. Moreover, Respondent’s insistence
that there would be no further bargaining unless the Union accepted Respondent’s pending
final offer is also a violation of Section 8(a)(5) of the Act as alleged in complaint paragraph
18(b).
5. Whether the employees engaged in an unfair labor practice strike
On April 7, 2010, Fuselier and the union committee met with the membership for a
special-called meeting. As of that date, Respondent had implemented its final offer. As the
primary spokesperson for the committee, Fuselier explained the concept of impasse. He told
the membership that it was the committee’s position that Respondent had simply refused to
continue to bargain and had illegally declared an impasse. He told the membership that
because the parties were not at bargaining impasse; Respondent had unlawfully
implemented its offer. There was discussion about the difference in unfair labor practice
strikes and economic strikes. Fuselier told the membership that if they went on strike
because Respondent illegally implemented its offer, the strike would be an unfair labor strike
and they would be protected. He added, however, that this determination would be up to the
Board. He explained that if the Board determined that their strike was an economic strike
and not an unfair labor practice strike, they could be permanently replaced. After additional
discussion, the membership voted to strike. Fuselier immediately notified Bull that the
membership had voted to go out on an unfair labor practice strike. He told Bull that the
evening shift would not report to duty.
In its April 9, 2010 press release, the Union reported that the employees at
Respondent’s facility had initiated a strike because the employees believed that Respondent
had acted illegally when it refused to bargain with the Union and chose to impose portions of
its rejected contract proposal. The strikers’ signs included the wording: “USW on ULP strike
against NASC.” The Board has used various phrases to determine whether a strike is an
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economic strike or an unfair labor practice strike. The Board has concluded, however, that
all phrases look to the “subjective reactions” and the “state of mind” of the strikers in going on
strike. Pennant Foods Co., 347 NLRB 460, 459 (2006). Thus, if the strike is caused in part
by an employer’s unlawful conduct, the strike is an unfair labor practice strike. Child
Development Council of Northeastern Pennsylvania. 316 NLRB 1145, 1145 (1995).
Furthermore, a causal connection between an employer’s unlawful conduct and a strike may
be inferred from the record as a whole. Child Development Council, supra at fn. 4.
The record as a whole reflects that Respondent’s unilateral implementation of its final
offer on March 31, 2010, was a significant factor in the employees’ decision to go on strike
on April 7, 2010. Furthermore, Respondent admits that if the March 31, 2010 implementation
of its final offer is determined to be unlawful, the April 7, 2010 strike is an unfair strike.
Inasmuch as I have found that there was no valid impasse at the time of the March 31, 2010
implementation of the final offer, I find that the April 7, 2010 strike was an unfair labor
practice strike. Accordingly, I find merit to complaint paragraph 9 with respect to the
inception of the strike.
6. The parties return to the bargaining table on April 30, 2010
Following the parties’ meeting on April 20, 2010, Fuselier received a telephone call
from Mediator Bolton concerning a discussion that he had with Heider. Bolton explained that
he had spoken with Heider to inquire if there was an opportunity for the parties to get back
together. With Bolton’s involvement, the parties agreed to meet again on April 30. 2010. In
addition to the representatives from Respondent and from the Union, Mediator Bolton also
attended.
Fuselier recalled that the meeting began with a discussion of Respondent’s
bargaining issues. He recalled that the union committee specifically inquired as to what
Respondent wanted to do and could not do under the LOU that had been a part of the
2007/2010 contract. Bull clarified for the Union that Respondent wanted employees
operating equipment to be able to do some of the maintenance related to that equipment.
The parties also discussed overtime, hot-seating, and the issue involving an employee’s
missing his opportunity for overtime. After a joint discussion, the parties separated to
separate rooms to prepare responses or counterproposals. These responses were termed
“supposals” because the parties’ proposals were filtered through the Federal mediator to the
other party. During this negotiation session, the Union submitted a “supposal” concerning
cross-assignment. Fuselier testified that the proposal gave Respondent some latitude for
employees to do other work that was incidental to the job they were performing. He
explained that under the counterproposal, Respondent could assign employees to do work
with equipment within the scope and ability of their training that was consistent with the job
they were performing. The Union also submitted a counterproposal to Respondent
concerning overtime distribution. Specifically, the Union proposed language relating to hot-
seating and addressing errors in assigning overtime. During the course of the day, the Union
also gave Respondent a counterproposal concerning the alternative shift issue and
concerning wages. Later in the afternoon, Respondent presented the Union with what was
termed a “modified final proposal.” The document specifically noted that its language
modified Respondent’s March 19, 2010 final offer. The modified final offer contained
proposed modifications for two of the outstanding issues. The first section of the document
modified the previous March 19 final offer concerning the LOU on cross-assignment.
Fuselier testified that the April 30, 2010 modified language put the Union in a better situation
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than the language proposed on March 19. The second portion of the modified final offer
included new proposed language concerning overtime distribution. The language
incorporated the Union’s counterproposal for hot-seating and for the procedure for offering
overtime to an employee who had erroneously been omitted from overtime. Additionally,
Heider gave the Union a copy of a no-fault absence policy that Respondent planned to
implement. She clarified that the policy was not part of negotiations.
At the close of the day, Heider told the Union’s negotiating committee that if the Union
rejected Respondent’s modified final offer, two things were going to happen. The first thing
was that Respondent would step up the hiring of permanent replacement workers and the
second thing was that Respondent would re-evaluate the Union’s proposals in their entirety.
On or about May 6, 2010, the union committee presented Respondent’s modified final
offer to the membership. The membership rejected the offer and continued its strike. On
May 18, 2010, Heider sent an email to Brisimitzakis and other management officials at 5:58
p.m. and enclosed a text of an email that she planned to send to Fuselier and which was
actually sent to Fuselier later that same day. The text of the email to Fuselier suggested
meeting again for negotiations on May 25, 26, and 27. The email to Fusilier also confirmed
that Respondent wanted to reopen negotiations for the purpose of discussing changes to
Respondent’s previously tendered final offer.
In her email to her boss and others, she explained that she had discussed the
situation with Respondent’s counsel and it was her belief that the meetings dates that she
was proposing to the Union should forestall the Union’s calling off the strike before the
suggested dates. She acknowledged during her testimony that she proposed these dates to
the Union with the hope that the employees would continue striking.
7. Whether Respondent changed terms and conditions of employment on May 22,
2010, in the absence of an impasse
On May 22, 2010, Respondent distributed a letter to its employees and attached a
copy of new operating procedures. The letter informed employees that the attached
operating procedures would be followed during the strike. Employees were directed to their
foreman or other management if they had any questions. Bull testified that the operating
procedures were distributed to all employees working on May 22, 2010, and to any other
employees who were hired between May 22 and June 15, 2010.
In his testimony, Bull confirmed that there were terms of employment in the May 22,
2010 operating procedures that were different than terms included in Respondent’s March
31, 2010 implementation of the March 19, 2010 final offer. Specifically, Bull acknowledged
that Respondent’s March 19, 2010 final offer did not have a provision concerning seniority.
The May 22, 2010 operating procedures, however, provided that with respect to demotions,
filling vacancies, layoffs, and recall, Respondent would select employees based upon merit.
Seniority would be the deciding factor only if there was no discernible difference in
employees. At the conclusion of the strike on June 15, 2010, employees were recalled
according to the May 22, 2010 operating procedures. Bull further confirmed that under the
expired contract, Respondent would have had to recall employees after the strike based
upon seniority. Bull also admitted that the operating procedures contained a loss of seniority
for employees.
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Additionally, Respondent incorporated mine and safety rules into the May 22, 2010
operating procedures. These rules had been a separate document and had not been a part
of the prior contract. Bull also acknowledged that these rules remained as a “stand-alone”
document and had not been included in the March 19, 2010 proposal that was implemented
on March 31, 2010. Before the expiration of the 2007-2010 collective-bargaining agreement,
the Safe Track safety program was a voluntary program for employees. With the
implementation of the May 22, 2010 operating procedures, the program became mandatory
for employees.
Furthermore, Respondent incorporated a new no-fault attendance policy with the May
22, 2010 operating procedures. This was also an attendance policy that was discussed
briefly with the Union on April 30, 2010, and again on May 22 and 23, 2010. Bull
acknowledged that although Respondent talked about the new attendance policy with the
Union on May 22 and 23, 2010, Respondent had already implemented the attendance policy
on May 22, 2010. When asked on cross-examination if Respondent ever told the union
representatives at the bargaining table that they were discussing something that had already
been implemented, Bull responded that he was “not sure.” Fuselier testified that at no time
during negotiations in May or June did Respondent’s representatives ever inform the Union
that Respondent had put into effect the May 22, 2010 operating procedures. Fuselier
testified that not only did Respondent fail to mention this implementation in negotiations,
Respondent failed to do so in emails, written correspondence, or telephone calls.
Counsel for the Acting General Counsel argues that Respondent’s admission of its
unilateral implementation of the operating procedures during negotiations on May 22, 2010,
is a prima facie violation of its obligation to bargain in good faith under Section 8(a)(5) of the
Act. This particular allegation was not in fact alleged in the initial complaint. It was only after
there was record testimony concerning the implementation of the operating procedures that
counsel for the Acting General Counsel moved to amend the complaint for the inclusion of
the allegation. The Acting General Counsel’s motion was granted.
There is no dispute that Respondent unilaterally implemented changes in terms and
conditions of employment in its May 22, 2010 operating procedures. Certainly, the changes
that brought about a loss of seniority for employees with respect to layoff, recall, promotions,
demotions, and the filling of vacancies in addition to the imposition of a new attendance
policy were significant. Although the parties were bargaining at the time of the
implementation, there is no claim that the parties were at impasse concerning these issues.
There is, in fact, no evidence that Respondent notified the Union of the intended
implementation in advance of the implementation or even following the implementation.
Citing Service Electric Co., 281 NLRB 633 (1986), the Respondent argues that this allegation
should be dismissed because an employer is not required to bargain with respect to terms
and conditions applicable to replacements during a strike. Respondent further argues that
on the face of the May 22, 2010 announcement, the terms were limited in application to the
period of the strike and that the changes in the attendance policy were put into effect to keep
absenteeism at a minimum during the period of the strike. Respondent asserts,
“Management is entitled to get through the difficulties of a strike about any way it can and
need not rely on the unlikelihood of obtaining union agreement to such changes.”
Respondent is correct in that the Board in Service Electric Co., supra, held that an
employer may lawfully hire replacements in the event of a strike and may unilaterally set the
terms and conditions of employment for those replacements. The Board has noted,
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however, that an employer may not exercise that right in a manner designed to undermine
the Union. Beverly Health & Rehabilitation Services, Inc., 335 NLRB 635, 638 (2001);
Service Electric Co., supra at fn. 11. The changes in the operating procedures were not
simply isolated changes brought about by the strike. These were additional unilateral
changes that were implemented following Respondent’s March 31, 2010 unlawful
implementation of the March 19, 2010 bargaining proposal and after refusing to bargain with
the Union on April 1, 2010. All conduct which clearly undermined the Union’s ability to
represent the unit employees. Furthermore, the changes included in the May 22, 2010
operating procedures did not just relate to temporary changes in attendance that were
necessitated by the strike situation. The record also reflects that the operating procedures
contained significant changes in the employees’ seniority rights that were applied to returning
strikers and not just the replacements. Additionally, the unilateral changes included in the
operating procedures remained in place after the strike and until they were displaced by
another unilateral implementation on June 27, 2010. Accordingly, I find that Respondent
unilaterally implemented the operating procedures on May 22, 2010, in violation of Section
8(a)(5) of the Act as alleged.
8. Whether Respondent engaged in unlawful conduct related to its bargaining with the
Union on May 25, 2010
a. Negotiations on May 25, 2010
On May 25, 2010, the parties met again for negotiations and in the presence of the
Federal mediator. Prior to the meeting, Heider sent Fuselier a document entitled “Company
Proposal May 24, 1010.” At the beginning of the meeting, Heider read a statement of
position to the union committee. The statement of position informed the Union that the
management team had learned a lot of lessons through the process of continuing operations
during the strike and such lessons were reflected in the May 24, 2010 contract proposals. In
her statement, Heider acknowledged that she expected the Union’s initial impression would
be negative because the proposal represented change. She assured the Union, however,
that pay rates, future increases, key fringe benefits, and just cause for discipline and all
fundamental union rights had not been changed. She specifically explained:
The management team hopes that over the course of these reopened
negotiations, all on the union side will keep an open mind and that we can get
a new agreement that recognizes the realities of the current job marketplace,
especially the fact that management has learned that it easily can hire an
excellent workforce on the terms it is offering.
Fuselier testified that when the union committee read the May 24, 2010 proposal,
their initial impression was that Respondent’s latest proposal was retaliatory and regressive.
Fuselier told his committee that things were getting worse rather than better. He suggested
that they ask Respondent to put their April 30, 2010 bargaining proposal back on the table.
He asked the committee if they would go back to the membership with a positive
recommendation to accept the April 30, 2010 proposal if he could get Respondent to agree
to return the April 30, 2010 proposal. The committee agreed that they would do so.
After consulting with the mediator, Fuselier met with Heider for a sidebar conference.
Fuselier told her that he had spoken with the committee and the committee would be willing
to go to the membership with a recommendation to accept Respondent’s April 30, 2010
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proposal. When Heider asked why the sudden change for the Union, Fuselier explained that
the new proposal was 55 pages of “take-away items.” He shared with her his impression that
the new proposal was retaliatory and regressive. Heider told him that the new proposal was
what management wanted; what they deserved; and what they were going to get. Fuselier
recalled telling Heider that if Respondent wanted to continue the strike, the Union would do
so.
During the remainder of the day, Heider explained the various sections of the
proposed May 24, 2010 proposal. The format of the proposal was a copy of the 2007-2010
CBA with various additions and deletions. One of the first and most noticeable changes to
the previous contract was Respondent’s proposal to remove the classifications of storeroom
clerk, surface truckdrivers, janitors, and hoistmen from the coverage of the contract. The
proposal also expanded the management-rights clause to require the Union’s agreement
with the new mine and safety rules that included a no-fault absence policy.
The proposal deleted the requirement to post union bulletin boards. Under the new
proposal, Respondent’s liability for backpay in an arbitration award was limited to 12 months.
Fuselier testified that the May 24, 2010 proposal placed all employees into various grades. If
there were a number of different jobs within a particular grade, each employee in the grade
would be required to train and to work all the jobs within that grade. If an employee could not
qualify on all the jobs within the grade, the employee would be demoted. The amount of call-
in pay for employees was reduced from 6 to 4 hours. Fuselier also testified that under the
terms of the new proposal, Respondent would have more discretion in making temporary
assignments to employees and would also have the discretion to assign supervisors to do
bargaining unit work or to assign employees to perform work that would otherwise be
nonbargaining unit work. The proposal also allowed Respondent greater discretion in
contracting out bargaining unit work.
Under the prior contract, employees were assigned to one of three 8-hour shifts.
Under the new proposal, the three prior shifts were deleted and Respondent had the
discretion to determine the shifts, the hours of work, and the duration of the shifts, however,
no one would be required to work more than 16 hours at one time. The proposal allowed
Respondent the discretion to not only establish, eliminate, and change the workweek, but
also the discretion to establish, eliminate, and change how and when overtime is offered and
assigned to employees.
In the March 19, 2010 final offer, Respondent proposed 45 minutes for an employee
to remain at his workstation under “hot-seating.” In Respondent’s May 24, 2010 proposal,
however, the employee would remain at his workstation for an hour. While the May 24, 2010
proposal included a grievance/arbitration procedure, the proposal limited the amount of
backpay that could be award an employee to 12 months.
A number of the proposed changes in Respondent’s May 24, 2010 proposal dealt
with seniority. During the discussion on May 25, 2010, Respondent’s representatives
explained that under the May 24, 2010 proposal, all matters relating to promotions,
demotions, layoffs, and recalls would be merit-based rather than seniority-based. Under the
prior contract, an employee would lose his seniority if he was absent from work for more than
36 months because of a nonoccupational illness or injury. Under the new proposal, the
employee would lose his seniority after 6 months. Under the previous contract, an employee
would lose his seniority if he had been on layoff for more than 26 months. Under the new
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proposal, the employee would lose his seniority after 6 months on layoff. Under the new
proposal, seniority would no longer determine recall to employment after layoff. Seniority
had also been a determining factor for layoff and for bumping rights under the prior contract.
The new proposal deleted the seniority language; using merit as a basis for determining
layoff and bumping.
b. The bargaining session on May 27, 2010
The Respondent continued to explain its new proposal during the meeting on May 25,
2010, and into the day on May 26, 2010. Fuselier testified that at the beginning of the
bargaining session on May 27, 2010, Heider noted that there were a lot of issues on the table
and the Company had some room to move on some of these issues. Heider then explained
that in addition to the original three core issues, Respondent had added four additional core
issues. Respondent’s three core issues that had been open when Fuselier joined the
bargaining on March 10, 2010, dealt with alternate shifts, overtime distribution, and the
removal of the LOU on cross-assignment. The additional core issues that Heider added on
May 27, 2010, were identified as: (1) replacing seniority with merit-based criteria; (2)
eliminating restrictions on supervisors performing bargaining unit work; (3) removing
restrictions on contracting out bargaining unit work; and (4) inclusion of the safety and mine
safety procedures.
c. Conclusions concerning May 25, 2010 bargaining
Complaint paragraph 18(c) alleges that on or about May 25, 2010, Respondent
presented the Union with a regressive contract proposal. Paragraph 18(d) alleges that since
on or about May 25, 2010, Respondent insisted on bargaining proposals that left the Union
without any representational rights and employees in a worse position than if they did not
have the Union as their collective-bargaining representative.
Citing the Board’s decision in Hickinbotham Bros. Ltd, 254 NLRB 96, 103 (1981),
Respondent asserts it did not engage in regressive bargaining because it was permissible to
add new proposals after the commencement of a strike. The circumstances before the
Board in Hickinbotham Bros. involved an employer’s making a number of concessions in
order to avoid a strike. The employer’s action was unsuccessful, however, and a strike
commenced. Thereafter, the employer dropped some of the proposals that it had made in an
effort to avoid the strike. The Board affirmed the judge in finding that the employer’s actions
were lawful. In his rationale, the judge opined that a strike is a two-edged sword. He
explained that depending upon how it affects the employer’s operations, the strikers may
gain concessions or they may lose concessions previously obtained. Certainly, the Board
has held that absent full agreement, either party is free to withdraw from tentative proposals
as long as the withdrawal is not motivated by intent to frustrate bargaining or prevent an
agreement. Barclay Caterers, 308 NLRB 1025 (1992). In the instant case, the
circumstances are quite distinct from those before the Board in Hickinbotham Bros., supra.
Respondent’s May 24, 2010 proposal did not reflect a withdrawal of prior concessions or
simply a withdrawal of prior tentative proposals. In its May 24, 2010 proposal, Respondent
upped the ante and knowingly added more demands that would not be acceptable to the
Union. When she presented the proposal to the Union, Heider’s statements revealed that
this was her expectation. Whereas Respondent had three core or “must have” provisions
when it implemented its final offer on March 31, 2010, Respondent had now increased the
number of core issues to seven.
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Counsel for the Acting General Counsel points out that while a regressive proposal is
not a per se violation of the Act, it may nevertheless be considered as a sign of bad-faith
bargaining. Reliable Tool Co., 268 NLRB 101,101 (1983). In general, an employer may be
found to violate the Act if its entire pattern of conduct is such as to warrant the conclusion
that it is seeking to avoid an agreement rather than reach one. Central Missouri Electric
Cooperative, 222 NLRB 1037, 1042 (1976). Certain undisputed facts in this case support
such a finding.
The undisputed facts in this case suggest that Respondent’s objective was the
continuation of the strike and the avoidance of reaching an agreement. Respondent does
not dispute that Heider concluded the bargaining on April 30, 2010, by telling the union
committee that if the Union rejected Respondent’s modified final offer, Respondent would
step up the hiring of replacement workers as well as to reevaluate the Union’s proposals in
their entirety. The membership, however, rejected the modified final offer.
On May 18, 2010, Heider sent an email to CEO Brisimitzakis, other managers, and
legal counsel. She attached a proposed email that she planned to send to Fusilier
concerning a reopening of bargaining to discuss changes to Respondent’s previously
tendered final offer. Heider planned to suggest to Fusilier that the parties meet May 25
through 27. In her comments to CEO Brisimitzakis and others, Heider referenced a detailed
discussion of the situation and she added, “. . . we believe that the meeting dates proposed
for next week should forestall the union calling off the strike before then.“
On May 27, 2010, Heider sent an email to CEO Brisimitzakis detailing the bargaining
sessions that occurred between May 25 and 27. She began by confirming that the sessions
had gone “according to plan” and that Respondent would reach the “perfect contract” or an
impasse within the 30 day time frame. She explained to her boss that when Fusilier had told
her that the union committee would now recommend Respondent’s expired final offer if
Respondent would make some change in the Sunday schedule for maintenance employees,
she had rejected the offer and had told Fusilier that the final offer was not on the table. She
further confirmed that Respondent’s negotiating committee had been instructed to try to
move the Union along a little quicker “by trying to force them to focus on five key issues, on
which we knew they could not agree but on which, without agreement, there could be no
contract.” She acknowledged that after CEO Brisimitzakis authorized Respondent’s
committee “to go to the bargaining table with these 7 “have to have issues,” the tactic had
“worked as expected.” She reported that when Respondent’s committee outlined the seven
new issues that Respondent had to have in the contract, the union committee had responded
that the Respondent wanted to break the Union. Heider confirmed that at every turn and in
response to the Union’s comments, she had responded: “No, we just want a contract on our
terms.” In her email, she referred to the fact that Respondent’s committee had received
instruction that “everything that could be accomplished this week had been accomplished
according to plan” and that Respondent’s committee was instructed to “head home.” In
reading the entire one-page report, it is apparent that Respondent’s representatives came to
the negotiations on May 25, 2010, with a plan that was authorized by the CEO to frustrate
and prolong the negotiations. Based upon Heider’s remarks, Respondent obviously
expected the union committee to react as they did and to reject the additional “must have
concessions.” As Heider stated, everything went “as planned.”
It is well settled that the withdrawal of previous proposals does not per se establish
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the absence of good faith, but is but one factor to be considered in the totality of
circumstances test. White Cap, Inc., 325 NLRB 1166, 1168 (1998); Aero Alloys, 289 NLRB
497, 497 (1988). Furthermore, the Board has acknowledged that while it cannot force an
employer to make a concession on any specific issue or to adopt any particular position,7 the
employer is nevertheless “obliged to make some reasonable effort in some direction to
compose his differences with the union if § 8(a)(5) is to be read as imposing any substantial
obligation at all.” Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984), citing NLRB v. Reed
& Prince Mfg. Co., supra at 135. The courts have long held that in evaluating the parties’
good faith, the Board is not precluded from examining the substantial proposals put forth and
that “if the Board is not to be blinded by empty talk and by mere surface motions of collective
bargaining, it must take some cognizance of the reasonableness of the positions taken by
the employer in the course of bargaining negotiations.” NLRB v. A-1 King Size Sandwiches,
Inc., 732 F.2d 872, 874 (11th Cir. 1984), cert. denied 469 U.S. 1035 (1984); NLRB v. F.
Strauss & Son, Inc., 536 F.2d 60, 64 (5th Cir. 1976); NLRB v. Reed & Prince Mfg. Co., supra,
at 134. Sometimes, especially if the parties are sophisticated, the only indicia of bad faith
may be the proposals advanced and adhered to by a party. NLRB v. Wright Motors, Inc.,
603 F.2d 604 (7th Cir. 1979).
In Hydrotherm, Inc., 302 NLRB 990, 994 (1991), the employer’s proposals on key
issues were found by the Board to amount to little more than a demand for the surrender of
representational rights that a union has even in the absence of a contract. The Board
specifically looked to the interacting operation of four of the proposals in particular as a basis
for their finding. Under the employer’s proposals, the union essentially lost its voice with
respect to discipline as well as almost every other aspect of wages and working conditions.
The Board found that in sum, the employer’s proposals, considered as a whole, would have
left the employees and their representative with less than they would enjoy by simply relying
on the certification without a contract. The Board went on to point out that this is not the
conduct of an employer sincerely attempting to reach an agreement, and it is not good-faith
bargaining. Hydrotherm, Inc., supra, at 995.
By applying the Hydrotherm analysis to the interacting operation of Respondent’s
May 25, 2010 proposals, it is apparent that Respondent’s “must-have” concessions would
not only have immobilized the Union, but would have diminished its ability to represent the
employees concerning a broad range of significant terms and conditions of employment, as
well as wages. First of all, the proposal’s extensive management-rights clause in conjunction
with other proposal sections would allow Respondent to have the unfettered right to
establish, eliminate, and change the workweek schedules. Furthermore, the proposal gave
Respondent sole discretion to establish, eliminate, and change overtime. Although the prior
contract had specific restrictions concerning contracting out bargaining unit work,
Respondent’s May 24, 2010 proposal gave Respondent the right to contract out work “as it
deems appropriate.” The proposal also eliminated the previous contractual restriction on
cross-assignment, thus, giving Respondent complete discretion to move and assign
bargaining unit work to supervisors and nonrepresented employees. The removal of the
restriction on cross-assignment would also give Respondent the opportunity and right to
move employees into jobs for which they did not have experience and expertise; thereby
providing Respondent a basis to discipline or terminate for poor performance. One of the

7 NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir. 1953), cert. denied 346
U.S. 887 (1953).
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most sweeping changes in Respondent’s proposal dealt with the virtual elimination of
seniority in employment decisions. Respondent proposed “all matters related to promotions,
demotions, filling of vacancies, layoffs, and recall from layoff” would be based upon
Respondent’s discretion as to the employee’s “relative merit.” Finally, although Respondent
kept the “no-strike” provision in its proposed contract, Respondent’s proposal significantly
restricted the arbitration provision. As counsel for the Acting General Counsel points out,
Respondent’s added language in its provision restricted the breadth of issues that an
arbitrator could consider, prohibited the arbitrator from changing, modifying, or altering the
agreement in construing any grievance and put new restrictions on potential backpay
awarded by the arbitrator.
Thus, Respondent’s new and expanded “must-have” concessions would have
essentially given Respondent total discretion with respect to work schedules, overtime, and
assignment of work. Bargaining unit work could be given to supervisors, nonbargaining unit
employees, or simply contracted out without restriction. By using a new criterion of “relative
merit,” employees could be promoted, demoted, laid off, recalled, or assigned to vacancies
based upon management’s subjective preferences and without regard to seniority except
when employees were otherwise deemed equally qualified. Even if the Union filed
grievances, the issues that could be presented to the arbitrator would be restricted and the
arbitrator could not change, modify, or alter the agreement in construing any grievance.
Furthermore, the proposal limited the amount of backpay that the arbitrator could award even
if the Union was successful before the arbitrator.
Thus, it is apparent that the new proposals given to the Union on May 25, 2010, when
viewed as a whole, would leave the Union and the employees with substantially fewer rights
and less protection than provided by law without a contract. This does not appear to be the
conduct of an employer that is sincerely attempting to reach an agreement; but is evidence
that it is not seeking to bargain in good faith. Public Service Co. of Oklahoma (PS), 334
NLRB 487, 489 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003); Hydrotherm, Inc. 302 NLRB
990, 995 (1991). Accordingly, I find merit to complaint allegations 18(c) and (d) as alleged.
9. The parties’ negotiations on June 2 and 3, 2010
a. Negotiations on June 2, 2010
When the parties met again for bargaining on June 2, 2010, the parties discussed
Respondent’s seven core issues. Fuselier recorded in his notes Heider’s statement that if
there was no movement on the core issues, there would be no contract. During the course
of the session, the Union submitted counterproposals concerning the absentee policy,
seniority, and contracting out work. Specifically, the Union proposed four steps for the
progressive discipline system rather than the three steps proposed by Respondent. The
Union also proposed an adjustment of the point system proposed by Respondent. Fuselier
testified that Respondent wanted merit to be a basis for filling jobs and the Union wanted
seniority as a basis for such action. He testified that in order to give the Respondent some
latitude, the Union proposed the application of seniority after other factors were considered.
With respect to contracting out work, the Union proposed that certain subcontracting could
be used as long as it did not adversely affect the basic security of the regular employees or
be used as a way to eliminate regular employees by substituting contractors. The Union also
submitted a counterproposal on wages and provided a written assurance that it was
agreeable to discussing a 4- to 5-year agreement. The Union additionally requested in
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writing that the parties work to address the issue of whether the maintenance day shift had to
start the workweek on Sundays as proposed by Respondent. Fuselier recalled that the
Union suggested that rather than having all maintenance employees begin their workweek
on Sunday, employees could stagger the day that they would begin the workweek and then
rotate the Sunday starting day. Fuselier explained that this proposal would not only give
employees an opportunity to have Sundays off to attend church for part of the month, but it
would also allow for maintenance coverage for 7 days a week rather than simply Sundays
through Thursdays. With respect to Respondent’s proposal of removing the LOU on cross-
assignment, the Union proposed that employees could be cross-assigned within their
respective pay grades but not cross-assigned to any jobs anywhere within the mine.
Fuselier recalled that after the Union submitted their counterproposals, the parties
took an afternoon break. When the parties returned to the bargaining table, Heider told
Fuselier that Respondent rejected the Union’s counterproposals. She told him that the
Union’s counterproposals were inconsistent and the Union needed to work on them. Fuselier
also recalled that he told Heider that the Union had made a lot of movement to address
Respondent’s issues and Respondent had made none. Accusing Respondent of bargaining
in bad faith, Fuselier suggested that they go through their notes and Heider could identify
where there had been no movement by the Union. Heider told Fuselier that Respondent had
learned a lot during the strike and these were the things that Respondent needed in the
contract. Heider also countered that Respondent had in fact moved on the issue of the
length of the contract by considering a 3- to 4-year contract rather than the 5 year initially
proposed by Respondent.
b. Negotiations on June 3, 2010
Fuselier recalled that the session on June 3, 2010, began with Heider addressing the
Union’s accusations that Respondent was trying to break the Union. She told the union
committee that there was nothing antiunion about merit; the 2-1/2-percent pay raise that
Respondent had proposed, or other proposed changes. She went on to add, however, that
the Union would have to accept Respondent’s proposals on the seven core issues or there
would be no contract. Heider acknowledged that while the Union had not made any
proposals during the bargaining sessions in late May, the Union presented proposals on
June 2 and 3. Heider testified that she told the Union that Respondent had “lots of
movement,” but Respondent would not use it unless the Union accepted Respondent’s
priorities. She also testified that she told the Union that Respondent was sticking with their
proposal and that the Union’s failure to agree to Respondent’s core proposals would prevent
a contract. She further added that there was no incentive to talk about other things that were
not Respondent’s priorities because it made no sense for Respondent to make gestures with
those.
During the course of the meeting on June 3, 2010, Bull mentioned that Respondent
had already hired as many as 55 replacement workers and Respondent anticipated having
as many as 100 by the end of the month. Fuselier recalled that Heider told the union
committee that Respondent had learned from the strike that it needed to take more
responsibility in running the mine. Respondent no longer feared strikes and for that they
thanked the Union. At the end of the bargaining session on June 3, Heider told the Union
that Respondent needed their seven core issues or the parties were at “loggerheads.”
Fuselier recalled that this was the first time that Heider had used the phrase “loggerhead.”
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10. Emails between the parties on June 9, 2010
In an email on June 9, 2010, Heider informed Fuselier that the replacement workers
hired during the strike were permanent replacements. She explained that if, and when, the
strike ended, it was unlikely that all of the striking employees would be able to return at once
to their jobs. She suggested the establishment of a preferential recall list and confirmed that
Respondent was available to meet and to discuss such a list at the Union’s earlier
convenience. She suggested basing the preferential recall on Respondent’s last contract
proposal. The proposal based recall on relative merit, including qualifications, ability, and
dependability. Heider sent the email to Fuselier at 2:59 p.m. on June 9. Later that same day
at 6: 09 p.m., Union Representative Mike Tourne sent Bull an email with a copy to Fuselier.
Tourne stated that several times during the negotiations, Bull had referenced the
replacement workers hired during the strike. Tourne asked for clarification as to whether
these replacement workers were temporary or permanent. At 9:25 p.m. that same evening,
Heider responded to Tourne’s inquiry. Heider explained that while she could not give a
precise breakdown in numbers, Respondent had hired a substantial number of replacement
workers in both categories. She identified, however, that the only temporary employees
were contractor employees.
11. The end of the strike on June 15, 2010
On June 15, 2010, the Union notified Respondent that it was ending the strike and
that the striking employees were unconditionally offering to return to work. In an email to
Tourne on June 16, 2010, Heider reminded the Union that no preferential recall list had been
established. She suggested that while the Union would likely desire strict seniority as the
recall criteria, Respondent believed that it was imperative that the best employees return as
soon as possible. While she again suggested Respondent’s latest contract proposal for
recall, she acknowledged that this issue was a bargainable issue. She explained that Bull
was developing a proposed recall order based on the Respondent’s proposed recall criteria
and would get the proposed recall order to the Union by the end of the day. She asked that
the Union get back with her as soon as possible so that final decisions could be made and
recall telephone calls placed to the appropriate individuals. When Tourne responded to
Heider, he explained that the Union objected to Respondent’s failure to take back the
returning unfair labor practice strikers. He added that it was illegal for Respondent to
permanently replace the unfair labor practice strikers and the Union did not agree to the
recall order as proposed by Respondent. He confirmed the Union’s availability to negotiate
over these terms and the pending open matters.
Later in the day, Bull sent a proposed recall list for the 27 employees in issue.
Tourne immediately responded that the Union would only agree to the recall of the unfair
labor practice strikers in a manner consistent with the expired collective-bargaining
agreement. He confirmed that any other recall would be viewed as another unilateral change
in the absence of impasse and the Union would file additional unfair labor practice charges.
The following day, Bull sent the Union another proposed recall list. Although Bull’s email
suggests that the recall order varied from the one proposed on June 16, the record is silent
as to how it varied.
12. The parties’ bargaining on June 22, 2010
On June 17, 2010, and prior to the bargaining on June 22, 2010, Heider sent Fusilier
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an email. Heider proposed that Respondent would accept the prior March 19 language for
everything except for the proposals on merit, shared work, and contracting; which she
termed as the current most important items to Respondent. She further added that if the
Union gave her the merit, shared work, and contracting language, this would “open up
things” on her end.
Fuselier recalled that Heider began the meeting on June 22, 2010, by telling the
committee that Respondent was going to focus on the core issues to which Respondent’s top
management was committed. She also explained that Respondent had some new proposals
that were not final, but close to final. She explained that their proposals would give
Respondent the freedom to operate the mine. Heider presented the union committee with its
latest proposals. Basing the prior CBA as a template, the June 22, 2010 proposal contained
colored additions or deletions to indicate the proposed changes to the CBA. The additions or
deletions in blue print represented the changes included in Respondent’s May 25, 2010
proposal. The additions or deletions in red print represented the changes in the June 22,
2010 proposal. Heider testified that when she told the Union that Respondent had made
changes to their May 24 proposal, she also said that it was not a final proposal and that there
was room to move.
In its June 22, 2010 proposal, Respondent proposed changing the name of the Union
from United Steelworkers of America, AFL-CIO/CLC; the name of the contracting party in the
prior CBA, to simply United Steelworkers. With respect to other contract sections,
Respondent’s proposal reverted back to language that was included in the expired CBA.
Specifically, and in contrast to the May 25, 2010 proposal, Respondent’s June 22, 2010
proposal put the classifications of storeroom clerk, truckdrivers, dock employees, and
hoistmen back into the collective-bargaining unit. Additionally, Respondent’s new proposal
reverted back to the language in the expired CBA with respect to bulletin boards, call-in pay,
injured employees, loss of seniority, and union leave. Fuselier testified that while these
sections of Respondent’s June 22, 2010 proposal were an improvement to Respondent’s
May 25, 2010 proposal, the proposals were not in response to the Union’s counterproposals
on these subjects. Fuselier testified that basically there were some things that Respondent
took away in the May 25, 2010 proposal that were given back in the June 22, 2010 proposal.
Everything else remained the same as in the May 25, 2010 proposal.
During the bargaining on June 22, 2010, Fuselier told Respondent that it was the
Union’s position that Respondent had unlawfully declared impasse, refused to bargain, and
had engaged in unlawful and regressive bargaining. He also asserted that Respondent had
illegally refused to take back the striking employees. Fuselier asked Heider the purpose for
all of the new proposals that had not been needed before. He described the proposal as 55
pages of “take-away stuff.” He recalled that Heider told him that Respondent had re-
evaluated its position and that management had determined that they needed the proposal
items. The Union again requested that Respondent take back the striking employees. The
Respondent declined.
Following the bargaining session on June 22, 2010, Heider sent Fusilier an email
captioned “June 22/23 Bargaining Sessions.” In the email, she confirmed that she had
spoken with management about the Union’s request for the strikers’ immediate return to work
and management was inalterably opposed to any such course. She also addressed
Fusilier’s request for additional time to review Respondent’s proposals; telling him that he
had had since May 25 to “do all the review” that he wanted. She expressed her irritation in
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having traveled to the meeting and then finding that Fusilier wanted the additional time for
review that day and the next day. She told Fusilier: “Tomorrow morning, with the help of the
mediator, I will be looking for acceptance from you of the Company’s proposals on merit,
work restrictions, and contracting. If you and your team continue to reject all three of these
proposals, I do not see much prospect for a contract. “
13. The parties’ bargaining on June 23, 2010
Fuselier recalled that the meeting on June 23, 2010, began with Heider asking if the
Union was going to agree to Respondent’s seven core issues. When Fuselier asked if
Respondent was going to take back the striking employees, Heider replied, “No.” She again
asked about the agreement on the core issues. Fuselier recalled that he told Heider that the
Union was considering Respondent’s proposals but reminded her that there were other
things on the table in addition to the seven core issues. Heider told Fuselier that if
Respondent could not get the seven core issues, there would not be a contract. After a
break in the session, Heider returned to the session with the June 22, 2010 proposal.
Handwritten at the top of the first page were the words:
Final Offer-dated June 23, 2010. (final offer is the proposal presented to the
Union on June 22, 2010). This offer will remain open until midnight Friday,
June 25, 2010. If not accepted by Friday, June 25, 2010 midnight this offer is
considered to be withdrawn.
Fuselier recalled that Migues made the statement that they had begun with three core issues
and now there were seven core issues. Fuselier asked Heider if Respondent was refusing to
negotiate. He recalled that she told him, “We see no reason to continue if you don’t accept
our offer.” Heider testified that at the end of the bargaining session on June 23, she told the
Union that the bargaining session was over unless the Union said they would accept three of
the Respondent’s core proposals. There was no further bargaining on June 23, 2010.
Heider testified that in providing this offer, the Union should have understood that as of
midnight on 25, 2010, there was no longer any offer on the table.
14. Whether Respondent conditioned bargaining over mandatory subjects of
bargaining on the Union’s concessions to Respondent’s bargaining demands
Complaint paragraph 18(e) alleges that since about June 3, 2010, Respondent
conditioned bargaining over mandatory subjects of bargaining on the Union’s concessions to
Respondent’s bargaining demands. The evidence reflects that at the beginning of the
bargaining session on June 3, 2010, Fusilier testified that Heider told the Union that if
Respondent’s proposals were not met, there would be no contract. Fusilier further testified
that Respondent rejected the Union’s proposals, continued to insist upon the seven core
issues, and declined to talk about any of the other issues. Heider also testified that toward
the end of the bargaining session on June 23, 2010, she told the Union that the negotiation
session is over unless the Union agreed to accept three of the seven core proposals. Citing
the Board’s very early decision in General Electric Co., 150 NLRB 192, 194 (1964), counsel
for the Acting General Counsel argues that Respondent’s “take it or leave it” attitude is
violative of the Act. In this regard the Board stated:
It is true that an employer does violate Section 8(a)(5) where it enters into
bargaining negotiations with a desire not to reach an agreement with the
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union, or has taken unilateral action with respect to a term or condition of
employment, or has adamantly demanded the inclusions of illegal or
nonmandatory clauses in the collective bargaining contract. But, having
refrained from any of the foregoing conduct, an employer may still have failed
to discharge its statutory obligation to bargain in good faith. Ibid.
The Board went on to explain that a party who enters into bargaining with a “take it or
leave it” attitude violates its duty to bargain even though the party may go through the forms
of bargaining, doesn’t insist upon any illegal or nonmandatory bargaining proposals, and
wants to sign an agreement. Id.
The overall evidence supports a finding that on or about June 3, 2010, Respondent
conditioned bargaining over mandatory subjects of bargaining on the Union’s concessions to
Respondent’s bargaining demands. Although the Union presented a number of counter-
proposals on June 2 and 3 to address Respondent’s core issues, the proposals were
rejected in their entirety, with the pronouncement that there would be no contract unless the
Union accepted Respondent’s seven core issue proposals. Thus, I find merit to complaint
paragraph 18(e) with respect to the bargaining on June 3, 2010. When the parties met again
on June 22, 2010, Respondent presented the Union with proposals that were different than
those proposed on May 25, 2010. Fusilier even acknowledged in his testimony that with
respect to some contract sections, Respondent reverted back to contract language that had
existed in the expired collective-bargaining agreement and some of the regressive proposals
that had been presented on May 25, 2010, were withdrawn. Although Fusilier contended
that Respondent had not responded specifically to the Union’s proposals, the proposals of
June 22, 2010, were nevertheless an improvement to Respondent’s May 25, 2010 proposals.
Furthermore, the record reflects that at the end of the June 23, 2010 bargaining session,
Heider modified her position to insist that the Union must agree to only three of the core
issues in order to obtain a contract rather than all seven as she had previously insisted.
Thus, the record reflects that for the period of time from June 3 until June 22, 2010,
Respondent conditioned bargaining over mandatory subjects of bargaining on the Union’s
concessions to Respondent bargaining demands. As evidenced by Respondent’s internal
email communication, Respondent’s bargaining strategy involved prolonging the strike.
While Respondent seemed to lessen its insistence on the Union’s acceptance of its seven
core issues on June 22 and 23, 2010, the employees had already ended the strike and
unconditionally offered to return to work. Accordingly, while Respondent engaged in the
unlawful conduct alleged in paragraph 18(e) only during the period of time between June 3
and June 22, 2010, Respondent’s overall conduct in May as alleged in complaint paragraphs
18 (c) and (d) and on June 3, 2010, as alleged in complaint paragraph 18(e) was sufficient to
prolong the strike as alleged in paragraph 9 of the complaint.
15. Whether Respondent implemented changes in terms and conditions of
employment on June 27, 2010, in the absence of an impasse
The complaint alleges that Respondent implemented changes and conditions of
employment on June 27, 2010, in the absence of a valid impasse. Although Respondent
admits that it unilaterally implemented numerous changes to the terms and conditions of
employment for bargaining unit employees, Respondent asserts that it did so because the
parties were at impasse as of June 23, 2010.
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As discussed above with respect to the issue of Respondent’s implementation of its
final offer on March 31, 2010, the question of whether a valid impasse exists is a “matter of
judgment” and relevant factors include (1) the bargaining history; (2) the good faith of the
parties in negotiations; (3) the length of negotiations; (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 stated negotiations. Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
enfd. sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968).
While Respondent acknowledges that the application of the Taft standards to the
claimed impasse on June 23 shows a closer case with respect to several criteria than for the
March 31 impasse, Respondent nevertheless asserts that the application shows impasse.
With respect to bargaining history, Respondent contends that while the asserted impasse of
March 31 was broken by the strike, the additional proposals put the parties further apart than
they were previously. With respect to the importance of the issue as to which there is no
agreement, Respondent also asserts that because there were the same and even more
issues in disagreement than on March 31, 2010, this criterion is even stronger for the
Respondent than in March. While Respondent acknowledges that there were only seven
days of negotiations as contrasted with the 16 days before the alleged March 31, 2010
impasse, Respondent asserts that additional days of negotiations “would have led nowhere.”
With respect to the contemporaneous understanding of the parties, Respondent contends
that because the Union did not indicate that it would accept any of Respondent’s core
proposals, there was no basis for continuing the effort to have the Union change their mind.
The application of the Taft factors to the facts in this case strongly counters a finding
of a valid impasse on June 23, 2010. Aside from the fact that the bargaining period was only
seven days and there was no evidence that there was a contemporaneous understanding of
the parties, the two factors that are most at odds with the existence of a valid impasse is the
bargaining history and the absence of good faith.
Although there is no presumption that an employer’s unfair lab practices automatically
preclude the possibility of meaningful negotiations and prevent the parties from reaching
good-faith impasse,8 the Board has also noted that a finding of impasse presupposes that
the parties prior to the impasse have acted in good faith. White Oak Coal Co., 295 NLRB
567, 568 (1989). In its decision in Lafayette Grinding Corp., 337 NLRB 832 (2002), the
Board adopted the rationale of the court in Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 138 (D.C.
Cir. 1999), in recognizing two alternative situations in which an unfair labor practice can
contribute to the parties’ inability to reach an agreement. First of all, an unfair labor practice
can increase friction at the bargaining table. Secondly, by changing the status quo, a
unilateral change may move the baseline for negotiations and alter the parties’ expectations
about what they can achieve, making it harder for the parties to come to an agreement.
There is no question that as of June 23, 2010, and after 4 months of negotiations,
there was increased friction at the bargaining table. It is, however, the second prong of the
Alwin analysis that is most relevant to the instant case. As of June 23, 2010, and at the time
of the alleged impasse, Respondent had twice unlawfully implemented changes in terms and
conditions of employment in the absence of a valid impasse. With each implementation,

8 Intermountain Rural Electric Assn. v. NLRB, 984 F.2d 1562, 1569-1570 (10th Cir.
1993).
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Respondent’s proposals became more regressive and more employees’ rights were
eliminated. As of June 23, 2010, Respondent had continued to insist on bargaining
proposals that left the Union without any representational rights and left employees in a
worse position than if they had no collective-bargaining representative at all.
Thus, Respondent’s conduct for the period of time from March 31 until June 27, 2010,
clearly moved the baseline on issues over which the parties were bargaining and altered the
parties’ expectations about what they could achieve, preventing a valid impasse on June 23,
2010. Titan Tire Corp., 333 NLRB 1156, 1159 (2001).
Accordingly, the record evidence does not support a finding of a valid impasse on
June 23, 2010.
a. June 26 and 27, 2010 emails
The union committee did not take Respondent’s June 23, 2010 final offer to the
membership for a vote. Fuselier testified that because of the regressive nature of the
proposal, there was no need to present it to the membership. On June 26, 2010, Heider
informed the Union that because it had not accepted Respondent’s June 23, 2010 final offer,
it would implement the terms of the offer on June 28, 2010. The implementation would not,
however, include the no-strike/no-lockout provisions, dues checkoff, and the obligation to
arbitrate. She explained that while there would be a grievance procedure in place,
Respondent’s final step would be binding. She confirmed that Respondent would continue to
recognize the Union as the bargaining representative for those employees hired during the
strike and those employees on the preferential hire list.
The following day, Fuselier responded to Heider’s email. He reiterated that the
parties were not at an impasse and that the implementation of this proposal would be
unlawful, just as the Respondent’s March 31, 2010 implementation had been unlawful.
Fuselier explained that the Union objected to the unilateral changes in the terms and
conditions of employment and that the Union demanded to bargain over every change
Respondent intended to make involving mandatory subjects of bargaining. He explained that
the Union was making a continuing demand to bargain and he requested that Respondent
return to the terms and conditions of employment that existed prior to the Respondent’s
March 31, 2010 implementation of its bargaining proposal. He additionally requested the
immediate reinstatement of the illegally replaced strikers and requested that they be made
whole under the Act.
In an email later in the day on June 27, Brisimitzakis wrote Heider: “They asked for
further meetings . . . will we refuse??? Doesn’t sound quite right from PR perspective.”
When Heider responded simply: “Unless they agree to our core issues we will not meet.”
Brisimitzakis then asked if there was a more PR friendly position that they might consider
taking. Heider responded:
Probably not without jeopardizing the case we’re building. No agreeing to
core issues is what we used as the rationale to give the union a final offer
Thursday. We went this route to be able to make the case that the core issues
were the most important to the Co which the Co would have “no movements
[“] If the union could not accept these core issues there would be no contract.
Because we were so aggressive with little movement on other issues, we
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stuck to the “core” issues as fundamental. Stan9 will make his case that we
would have moved on 90-95% of those non core issues …And no one can
disprove this.
b. Respondent’s June 29, 2010 notification
On June 29, 2010, Bull informed Fuselier that Respondent was implementing its
entire June 23, 2010 proposal with the exception of the items identified by Heider in her June
26, 2010 email to the Union. Bull attached a copy of the implemented terms; entitled “June
27, 2010 Operating Procedures.” Fuselier testified that there were differences, however,
between the June 23, 2010 final offer and the June 27, 2010 operating procedures. He
testified that the language in the management-rights section of the June 27, 2010 operating
procedures was different than any language that he had seen proposed previously in
bargaining. Specifically, the new management-rights language provided: “The Company
reserves all rights not expressly restricted by the terms set forth herein, including the right to
modify or amend this document from time to time as circumstances warrant.”
Fuselier also pointed out that the issue resolution portion of the June 27, 2010
operating procedures in essence replaced a grievance and arbitration procedure with an
open door policy. Section 15.01 of the June 23, 2010 final offer included a reference to
Respondent and the Union cooperating in enforcing safety rules and regulations. It provided
for the establishment of a committee composed of three union representatives and three
respondent representatives to make recommendations on matters affecting the safety and
health of employees. In contrast, the June 27, 2010 operating procedures included no
reference to the Union. Under the operating procedures, only Respondent would make
provisions for the safety and health of the employees and the safety committee would include
hourly, supervisory, and management employees.
The operating procedures also provided that Respondent could establish new jobs or
make material changes to existing jobs, including the setting of applicable pay rates.
Fuselier testified that at the time that he was presented with the June 27, 2010 operating
procedures, Respondent had not informed him or the Union that the new classification
scheme had already been implemented as of May 22, 2010.
c. Conclusions
Respondent admits that on or about June 27, 2010, it took the following action:
(a) made changes to the management rights provisions for Unit
employees.
(b) added a provision granting Respondent the right to establish and
change jobs and pay rates for Unit employees.
(c) made changes to the shift schedules and differential pay rates for Unit
employees.
(d) made changes to the temporary assignment provision for Unit
employees.
(e) made changes to the work restriction provision or Unit employees.

9 This reference appears to refer to Respondent’s counsel; Stanley Craven.
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(f) added a provision giving Respondent the option to use a leadman to
perform the work of Unit employees.
(g) made changes to the work shifts, work week and overtime provisions
for Unit employees
(h) made changes to the overtime distribution procedure for Unit
employees.
(i) made changes to the seniority based job selection procedure
applicable to Unit employees.
(j) made changes to the loss of seniority provision for Unit employees.
(k) made changes to the contract work provision for Unit employees.
(l) made changes to the schedule of wages for Unit employees.
(m) added an attendance/absence policy for Unit employees.
(n) added safety rules applicable to Unit employees.
As discussed above, the overall evidence reflects that on or about June 27, 2010,
Respondent unlawfully implemented changes in terms and conditions of employment in the
absence of a valid impasse. Accordingly, I find merit to complaint paragraphs 18(h), 22, and
the corresponding portions of paragraphs 27 and 30.
E. Whether Respondent Unlawfully Threatened Strikers
The Acting General Counsel alleges that on two occasions during negotiations,
Heider unlawfully threatened to permanently replace unfair labor practice strikers. Heider
testified that toward the end of the bargaining session on April 30, 2010, she told the union
bargaining committee that if the Union rejected Respondent’s modified final offer, two things
were going to happen. The first thing would be that Respondent would step up the hiring of
replacement works and the second thing would be Respondent’s reevaluation of its
proposals their entirety. Respondent also stipulated that on or about June 3, 2010, Heider
told its employees, including the employee members of the Union’s bargaining committee,
that Respondent had employed a substantial number of “permanent replacements” for
striking employees, as confirmed in a June 9, 2010 email that Heider sent to Fuselier. In the
June 9, 2010 email, Heider also informed Fuselier that “if and when” the strike ended, it was
unlikely that all strikers would be able to return to work at once as a result of the hiring of
permanent replacements and therefore many strikers would have to go on a preferential hire
list for recall.
As discussed above, I find that the strike that began on June 7, 2010, was an unfair
labor practice strike. Accordingly, Respondent’s threat to fill the strikers’ jobs with permanent
replacements constitutes an unlawful threat to discharge the unfair labor practice strikers in
violation of Section 8(a)(1) of the Act. Grinnell Fire Protection Systems Co., 328 NLRB 585,
606 (1999); Cagle’s Inc., 234 NLRB 1148, 1150 (1978).
F. Evidence and Conclusions Concerning Respondent’s Conduct Toward Strikers
As previously discussed in this decision, the total record evidence reflects that
Respondent’s unlawful changes in terms and conditions of employment on March 31, 2010,
were a contributing cause in the employees’ strike on April 7, 2010. Furthermore,
Respondent admits that if the March 31, 2010 implementation is found to have been
unlawful, the subsequent strike was an unfair labor practice strike from the outset.
Respondent additionally admits that if the May 25, 2010 regressive bargaining proposal is
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found to have been unlawful as of that date, the strike was prolonged by reason of such
unfair labor practice. Having found that Respondent unlawfully implemented its final offer on
March 31, 2010, and thereafter engaged in regressive bargaining on May 25, 2010, I find that
the strike was an unfair labor practice strike from its inception on April 7, 2010, and that
Respondent’s regressive bargaining proposals of May 25, 2010, and Respondent’s conduct
in bargaining on June 3, 2010, contributed to the prolongation of the strike.
On June 15, 2010, the Union made an unconditional offer to return to work on behalf
of the employees who initiated a strike on April 7, 2010. The complaint allegations relating to
Respondent’s conduct toward those strikers after their unconditional offer to return is
discussed below.
1. Whether Respondent unlawfully failed and refused to reinstate strikers
Counsel for the Acting General Counsel alleges that since on or about June 15, 2010,
Respondent has failed and refused to reinstate the striking employees to their former
positions. Article XI of the parties’ 2007-2010 collective-bargaining agreement provides:
Seniority shall be the controlling factor in cases in which the employees have
the ability to perform the work involved. Subject to the foregoing, seniority
shall be applied in matters of promotions, demotions, reductions in force and
recall of employment.
In an amended answer, Respondent admits that it offered reinstatement to returning
strikers based upon the terms and conditions of its final offer that was implemented on March
31, 2010, rather than the terms of the expired 2007-2010 collective-bargaining agreement.
Respondent asserts, however, that it appropriately treated the strikers as economic strikers
and properly applied the terms of the March 31, 2010 final offer to everyone upon return and
that it did the best it could in the circumstances to get all strikers reinstated to appropriate
positions at the earliest opportunity.
Upon an unconditional offer to return to work, unfair labor practice strikers are entitled
to immediate reinstatement to their former jobs or, if such jobs no longer exist, to
substantially equivalent positions, even if striker replacements must be terminated to make
room for the returning strikers. Maestro Plastics Corp. v. NLRB, 350 U.S. 270 (1956); NLRB
v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). On June 16, 2010, and after the
Union’s unconditional offer to return to work, Respondent notified the Union that all of the
production positions and approximately half the maintenance positions had been filled with
“permanent replacements.” Heider informed the Union that any striker who could not
promptly be reinstated because there was no available position would be on a preferential
hire list for recall as positions opened. She told the Union that Bull was preparing a
proposed recall order and schedule based upon the criteria in Respondent’s last proposal.
Although the unconditional offer to return to work was made on behalf of the employees on
June 15, 2010, the record contains no evidence that Respondent made any attempt to offer
immediate reinstatement to the striking employees or that replacement employees were
terminated to make jobs available for the strikers.
As counsel for the Acting General Counsel points out, only 23 out of approximately
120 strikers were called back to work for Respondent on or before June 20, 2010. Any
offers of reinstatement for the remaining strikers occurred only as their names appeared on
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Respondent’s preferential hire list. Some strikers did not receive calls to return to work until
December 20, 2010, and others have as yet to receive such a call. While an employer is
generally entitled to a grace period of up to 5 days to reinstate strikers to accommodate its
administrative preparations, the Board has also determined that no grace period is permitted
where the employer “unduly ignores, rejects, or unduly delays making a valid reinstatement
offer.” La Corte ECM, Inc., 322 NLRB 137, 137 fn. 2, 140-141 (1996); Drug Package Co.,
228 NLRB 108, 113 (1977), modified 570 F.2d 1340 (8th Cir. 1978), on remand 241 NLRB
330 (1979).
An employer is simply not at liberty to delay reinstatement of strikers until positions
become available through attrition in the ranks of the replacement workers or until the
volume of business expands. NLRB v. Gulf-Wandes Corp., 595 F.2d 1074 (5th Cir. 1979).
Respondent does not deny that offers of reinstatement to strikers were based upon merit
rather than seniority. The Board has long held that an employer is not free to pick and
choose among the returnees or to determine the order of priority in which they would be
entitled to reinstatement. The strikers are entitled to reinstatement as a group, not
piecemeal. Orbit Corp., 294 NLRB 695, 699 (1989).
Furthermore strikers were offered reinstatement to jobs with significant changes in
terms and conditions of employment caused by Respondent’s unlawfully implemented final
offers, as well as the unlawfully implemented operating procedures on May 22, 2010. When
offers of reinstatement contemplate reinstatement to positions with unlawfully imposed terms
and conditions of employment, the offers are not considered to be valid. White Oak Coal
Co., 295 NLRB 567, 572 (1989); PRC Recording Co., 280 NLRB 615, 615 fn. 2 (1986), enfd.
836 F.2d 289 (7th Cir. 1987).
Accordingly, I find that any offers of reinstatement to the strikers did not constitute
valid offers of reinstatement and the recommended order shall include an order of
reinstatement for those strikers as described in the remedy section. Inasmuch as there was
undue delay in offering reinstatement to the strikers, backpay for the strikers should
commence on June 15, 2010, rather than after the 5-day grace period on June 20, 2010.
Counsel for the Acting General Counsel presented the testimony of 28 strikers who
resigned their employment either before or after receiving offers of reinstatement. The
testimony of these strikers indicates that job offers were not immediate and were not offers to
return to the jobs the strikers held prior to the strike. Some of the strikers testified that they
resigned their employment during the strike or immediately after the strike because they
were opposed to the changes in the terms and conditions of employment that had been
unilaterally implemented by Respondent. Some strikers testified that they resigned because
of the economic hardship caused by the extended shrike. Other strikers accepted the offers
to return to work and then resigned because of the changes in terms and conditions of work
imposed by Respondent’s unilateral changes.
Striker Irvin Boutte is 73 years old and prior to the strike he had worked for
Respondent for 42 years. Two other employees at the mine had worked even longer for
Respondent. At the time of the strike, he had been a truckdriver working above the surface
of the mine and working 8-hour shifts. On December 13, 2010, Respondent offered Boutte
reinstatement to a production job in the mine. When he met with Bull about the job offer, Bull
explained that he would go into mine production without a classification; which meant that he
would have been assigned to any job where Respondent wanted to place him. As a
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production employee, Boutte would be required to work 11-hour shifts and to work 1550 to
1650 feet below the surface. Boutte recalled telling Bull that he didn’t understand why the
Company wanted to put him into production when he had worked in maintenance for 25 or
30 years. Boutte testified that he would not have been familiar with any of the production
equipment on which he would have been required to work. Boutte declined the offer. Striker
Dean Pontiff testified that he resigned his employment before Respondent extended any
offer of reinstatement. He did so because of Respondent’s implementation of its final offer
on March 31, 2010. He testified that the change to 11-hour shifts, the loss of seniority, and
the requirement for cross-assignment were all factors that led to his resignation.
Strikers Gary Jeansonne, Chris Dugas, Phillip Simon Jr., Cardell Jumonville Sr., and
Christopher Higgins testified that they were forced to resign because of economic hardships
that resulted from the strike. Dugas, Simon, Jumonville, and Higgins testified that they had
to resign in order to obtain money from their 401(k) retirement plan. Jeansonne testified that
he had to take a job with another company in order to obtain medical insurance benefits for
his wife who was hospitalized. He later lost his wife on June 25, 2010.
Although there is record evidence that some of the strikers declined Respondent’s
offer of reinstatement or resigned their employment, such resignations do not necessarily
eliminate them as striking employees or relieve Respondent of its obligation to make a valid
offer of reinstatement. S & M Mfg. Co., 165 NLRB 663 (1967). While an employer is not
required to offer reinstatement to strikers who have abandoned their employment, the
employer must present “unequivocal evidence of intent to permanently sever the
employment relationship.” Harowe Servo Controls, Inc., 250 NLRB 958, 964 (1980), quoting
S & M Mfg. Co., supra, In Augusta Bakery Corp., 298 NLRB 58, 59 (1990), enfd. 957 F.2d
1467 (7th Cir. 1992), the Board found that an employer unlawfully denied reinstatement to
strikers who had applied for their pension benefits. The strikers in issue testified that they
had an economic need to obtain the pension funds and that their resignation was the only
way that they could obtain their pension money. The Board did not find unequivocal
evidence of the strikers’ intent to permanently sever the employment relationship.
In the instant case, there was no evidence that rebutted the testimony of the resigning
strikers concerning their respective resignations. It is apparent that they resigned their
positions either because of Respondent’s unlawful changes in terms and conditions of
employment or because of economic hardships that necessitated their need for their 401(k)
retirement plan funds. In the case of striker Jeansonne, the resignation was caused by his
immediate need to obtain medical insurance coverage for his gravely ill spouse. Overall, I do
not find that the strikers’ resignations reflect their intention to permanently abandon their
jobs. Accordingly, the strikers who resigned are also included in the reinstatement order
recommended herein.
2. Whether Respondent unlawfully failed to use seniority to recall striking employees
Complaint paragraph 18(f) alleges that on or about June 15, 2010, Respondent
refused to use seniority to recall unit employees who had engaged in the strike. Complaint
paragraph 21 alleges that on or about June 18, 2010, Respondent changed the seniority -
based recall procedure for unit employees. In its amended answer, Respondent
acknowledges that the 2007/2010 collective-bargaining agreement provided for recall by
seniority and also acknowledges that in years past, Respondent has used seniority to recall
employees. Furthermore, Respondent admits that it did not recall strikers by seniority and
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that it changed the seniority based recall procedure for unit employees.
The 2007/2010 collective-bargaining agreement provided that seniority would be the
controlling factor in matters of promotions, demotions, reductions in force, and recall of
employment. The March 19, 2010 final offer that was implemented by Respondent on March
31, 2010, included a number of specific changes, including changes in overtime distribution,
deleting existing limitations on cross-assignment changes in shift hours. The unilaterally
implemented final offer contained no provision relating to changes in seniority for recall or
other terms and conditions of employment.
Generally, implemented changes after impasse must be consistent with an
employer’s final offer. Litton Systems, 300 NLRB 324, 334 (1990); Park Inn Home for Adults,
293 NLRB 1082, 1087 fn. 9 (1989). Royal Himmel Distilling Co., 203 NLRB 370, 370 fn. 3
(1973). An employer is not free to make any changes which were not encompassed in or
consistent with its last rejected offer. Rockland Lake Manor, Inc., 263 NLRB 1062, 1070 fn.
29 (1982).
As I have discussed above, I do not find that there was a valid impasse at the time
that Respondent implemented its final offer on March 31, 2010. Furthermore, even if there
had been a valid impasse that would have allowed Respondent to implement its final offer on
March 31, 2010, there was nothing in the March 19, 2010 final offer that dealt with removing
seniority as a basis for recall. Thus, Respondent’s failure to use seniority as a basis for
recall and its change in the seniority-based recall procedure were not changes that were
encompassed in or consistent with Respondent’s final offer. Accordingly, I find merit to
complaint allegations 18(f) and 21.
3. Whether Respondent unlawfully continued to honor job offers to replacement
workers
Complaint paragraphs 18(g) and (i), allege that on or about June 21 and 28, 2010,
respectively, Respondent continued to honor job offers it made to replacement workers.
In an email dated June 16, 2010, Heider informed the Union that while she was
happy to hear that the strike was over, there were not enough open positions to which all
strikers could immediately return. She explained that all of the production positions and
approximately one half of the maintenance positions had been filled with “permanent
replacements.” She went on to state that while she expected the Union’s preference for
recall to be strict seniority, she proposed using the merit criteria that was included in
Respondent’s May 24, 2010 contract proposal. She also added that Bull was developing a
proposed recall order and schedule based upon the merit criteria and that the list would be
forwarded to the Union for review. Later that same morning, the Union responded to Heider.
Union Representative Mike Tourne informed Heider that the Union opposed Respondent’s
refusal to take back the returning unfair labor practice strikers and he asserted that it was
illegal for Respondent to permanently replace the strikers. He also confirmed that the Union
was not agreeable to the proposed schedule for recall; however, the Union was available to
negotiate over these items and the pending open items. Later in the day, Bull forwarded a
list of 27 strikers with proposed times for the recall on either June 20 or 21, 2010.
The following day Heider wrote: “Sorry we could not work out anything on the recall
issue but I understand the position that you are in. Gord will be making calls today for return
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next Monday.” Respondent does not dispute that these initial returning strikers were recalled
according to Respondent’s May 24, 2010 bargaining proposal rather than by seniority. The
remaining strikers who later received reinstatement offers were also considered for
reinstatement based upon merit rather than seniority.
As discussed above, unfair labor practice strikers are entitled to immediate
reinstatement to their former or substantially equivalent positions of employment on their
unconditional offer to return to work. Caterair International, 309 NLRB 869, 880 (1992).
Furthermore, an employer has the duty to reinstate former strikers even where replacement
workers have been hired to perform their jobs and the replacement workers must be
terminated, if necessary, to make room for the reinstatement of the strikers. Honda, 321
NLRB 482, 493 (1996); Capitol Steel & Iron Co., 317 NLRB 809, 814 (1995).
As evidenced by the email exchanges described above and the record as a whole, it
appears that Respondent made no effort to remove any strike replacements in order to return
the striking employees to their former employment or to substantially equivalent positions.
Although 27 strikers were recalled on either June 20 or 21, 2010; they were recalled to open
positions that were not filled by the strike replacements. Moreover, Respondent admits that
it continued to honor job offers to replacement workers on both June 21 and 28, 2010.
Accordingly, inasmuch as Respondent had a duty to immediately reinstate the unfair labor
practice strikers in accordance with existing Board authority, I find merit to complaint
paragraphs 18(g) and (i).
4. Whether Respondent unlawfully changed the time period for employees to
accept offers of re-employment
Complaint paragraph 23 alleges that on or about October 23, 2010, Respondent
changed the time period for unit employees to accept an offer of re-employment. Fuselier
testified that at no time did he ever receive any telephone calls, emails, or other
communication from Respondent concerning an intention to change the period of time for
which an employee could respond to a notice of recall. Section 11.04 of the 2007/2010
collective-bargaining agreement provides that an employee will initially receive notice of
recall by a telephone call to the employee’s last known telephone number filed with
Respondent. If the employee is not reached by telephone, a certified letter will be sent to the
employee’s last known address filed with Respondent. Any employee who fails to accept an
offer for re-employment within 10 days following the notice by telephone or certified mail shall
forfeit his seniority rights and his status as an employee shall cease.
On or about October 21, 2010, Gord Bull sent a letter to the unreinstated strikers who
were on the preferential hire list for recall. Bull explained in the letter that its purpose was to
ascertain if Respondent had correct contact information for the employees and to determine
if the employee recipient of the letter was still interested in returning to work for Respondent.
If the employee wanted to remain on the preferential hire list, he did not have to do anything.
If he was not interested in returning to work, he could contact Respondent and Respondent
would forward any accrued vacation pay to the employee.
The letter also outlined the process which Respondent would use to recall employees
from the preferential hire list. Bull explained that when Respondent was ready to recall an
employee to his former job or a substantially equivalent position, the employee would be
called at the telephone number on file with Respondent. If Respondent could not reach the
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employee by telephone within 72 hours, Respondent would send a Federal Express letter to
the employee at the address on file with Respondent. If the employee did not accept the
recall or contact Respondent within a 72 hour period, the position would be offered to
another employee and the employee’s name would be removed from the preferential hire list.
If the offer of recall was not an offer to return to the employee’s former position or a
substantial equivalent position, the employee’s name would not be removed from the
preferential hire list. The letter also contains a clarification that the 72 hour response
requirement can be waived based upon an “employee’s particular circumstances,” provided
that the employee makes every reasonable effort to keep Respondent apprised of those
circumstances.
Counsel for the Acting General Counsel asserts that at no time during bargaining,
emails, telephone calls, or other communication did Respondent notify the Union of its
intention to reduce the response time by approximately 7 days. Additionally, counsel for the
Acting General Counsel points out that in Respondent’s third unilateral implementation of its
June 22, 2010 proposal on June 27, 2010, the recall provision still provided for 10 days for
employees to respond to recall.
In its amended answer, Respondent admits sending the October 21, 2010 letter to
the strikers and admits that it did not follow the procedures or practices of the expired
contract governing recalls from layoff. Respondent denies, however, that such is evidence of
any violation of the Act. The Board has long held that a unilateral change in the method of
recalling employees is violative of the Act. Caravelle Boat Co., 227 NLRB 1355, 1356
(1977); Hamilton Electronics Co., 203 NLRB 206 (1973). Respondent contends that the
letter at issue did not represent a change. Respondent submits that it merely advised
individuals as to how Respondent was handling recall logistics and asked employees to keep
Respondent advised as to their contact information. Respondent adds that the letter further
expressly advised that the 72-hour response requirement could be waived provided the
employee kept Respondent advised as to his circumstances.
While the letter includes a statement that the 72-hour response requirement can be
waived, there is no explanation as to what kinds of circumstances would trigger such a
waiver. Because there is no additional explanation of such circumstances, a striker would
have to assume that the waiver would be based upon Respondent’s discretion and
subjective analysis of the purported circumstances. The controlling provision of the
2007/2010 collective-bargaining agreement as well as Respondent’s last bargaining proposal
that was unilaterally implemented on June 27, 2010, gives a specific time period of 10 days
to respond to a notice of recall. Accordingly, the 72-hour time limit for an employee’s
response to recall is substantially different than what is included in the expired collective-
bargaining agreement or anything that Respondent proposed during negotiations. Therefore,
inasmuch as the 72-hour response requirement is a unilateral change in terms and
conditions of employment, I find merit to complaint paragraph 23.
Conclusions of Law
1. The Respondent, Carey Salt Company, a Subsidiary of Compass Minerals
International, Inc., is an employer engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
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Act.
3. All production and maintenance employees, including storeroom clerks, truck
drivers, and dock employees employed at the Cote Blanche Mine constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act.
4. At all times since March 25, 2007, based on Section 9(a) of the Act, the Union
has been the exclusive collective-bargaining representative of the unit.
5. Respondent violated Section 8(a)(1) of the Act by threatening its employees
with termination because they engaged in an unfair labor practice strike.
6. Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing
to reinstate unfair labor practice strikers to their former positions of employment.
7. Respondent violated Section 8(a)(5) of the Act by failing to bargain with the
Union as the exclusive collective-bargaining representative of the unit from March 31 to on
or about April 30, 2010.
8. On or about March 31, 2010, the Union requested that Respondent bargain
collectively about scheduling and all other open issues.
9. Respondent violated Section 8(a)(5) and (1) of the Act on March 31, 2010, by
unilaterally changing terms and conditions of employment and implementing its final offer in
the absence of a valid impasse.
10. The strike that commenced on or about April 7, 2010, is an unfair labor
practice strike.
11. The strike was prolonged by Respondent’s unfair labor practices on or about
May 25 and June 3, 2010.
12. Respondent violated Section 8(a)(5) and (1) of the Act by conditioning
bargaining over mandatory subjects of bargaining on the Union’s concessions to
Respondent’s bargaining demands from on or about March 31 to April 30, 2010.
13. Respondent violated Section 8(a)(5) and (1) by unilaterally implementing its
May 22, 2010 operating procedures in the absence of a valid impasse.
14. Respondent violated Section 8(a)(5) and (1) by presenting the Union with a
regressive contract proposal on or about May 25, 2010, for the purpose of frustrating the
negotiation of a collective-bargaining agreement.
15. Respondent violated Section 8(a)(5) and (1) of the Act on May 25, 2010, by
insisting on bargaining proposals that left the Union without any representational rights and
left employees in a worse position than if they did not have the Union as their collective-
bargaining representative.
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16. Respondent violated Section 8(a)(5) and (1) of the Act on or about June 3,
2010, by conditioning bargaining over mandatory subjects of bargaining on the Union’s
concessions to Respondent’s bargaining demands.
17. Respondent violated Section 8(a)(5) and (1) the Act by refusing to use
seniority to recall unit employees who engaged in the unfair labor practice that began on
June 7, 2010.
18. Respondent violated Section 8(a)(5) and (1) of the Act on or about June 21,
2010, by continuing to honor job offers it made to replacement workers.
19. Respondent violated Section 8(a)(5) and (1) of the Act on or about June 28,
2010, by continuing to honor job offers it made to replacement workers.
20. Respondent violated Section 8(a)(5) and (1) of the Act on or about June 18,
2010, by changing the seniority based recall procedure for unit employees.
21. Respondent violated Section 8(a)(5) and (1) of the Act on June 27, 2010, by
unilaterally changing terms and conditions of employment when it implemented its final offer
in the absence of impasse.
22. Respondent violated Section 8(a)(5) and (1) of the Act on or about October
21, 2010, when it unilaterally changed the time period for unit employees to accept an offer
of re-employment.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5) and (1) of the Act by
unlawfully implementing the terms of its contract proposals of March 19 and June 22, 2010,
as well as unilaterally implementing its May 22, 2010 operating procedures, I shall
recommend that it be ordered to restore the terms and conditions of employment of unit
employees as they existed prior to March 31, 2010, continue them in effect until the parties
reach an agreement or a good-faith impasse and make whole all employees for all losses
they may have suffered as a result of its unlawful conduct, in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus daily
compound interest as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Having found that Respondent violated Section 8(a)(3) and (1) of the Act by failing
and refusing to reinstate the unfair labor practice strikers to their former positions or
substantial equivalent positions, I shall recommend that Respondent be ordered to offer each
of the former unfair labor practice strikers,10 full and immediate reinstatement to his former
position or, if such job no longer exists, to a substantially equivalent position, without loss of

10 The complete and appropriate list of all strikers requiring a valid offer of reinstatement
is best determined through the Board’s compliance process.
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seniority or other rights or privileges, discharging, if necessary, any replacements hired.
Respondent’s obligation of reinstatement arose as of June 15, 2010, the date the employees
made an unconditional offer to return to work. Additionally, Respondent must make the
strikers whole for any loss of earnings and other benefits they may have suffered by reason
of Respondent’s discrimination, including its failure to promptly offer reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus daily
compound interest as prescribed in Kentucky River, supra.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:11
ORDER
The Respondent, Carey Salt Company, a Subsidiary of Compass Minerals
International, Inc., Cote Blanche, Louisiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with discharge because they engaged in an
unfair labor practice strike.
(b) Failing and refusing to reinstate employees because they engaged in
an unfair labor practice strike.
(c) Failing and refusing to bargain with the Union as the exclusive
collective-bargaining representative of its employees.
(d) Unilaterally changing the terms and conditions of employees in the
absence of a valid impasse.
(e) Conditioning bargaining over mandatory subjects of bargaining on the
Union’s concessions to Respondent’s bargaining demands.
(f) Presenting the Union with regressive bargaining proposals for the
purpose of frustrating the negotiation of a collective-bargaining agreement.
(g) Insisting on bargaining proposals that leave the Union without any
representational rights and leave employees in a worse position than if they did not have the
Union as their collective-bargaining representative.
(h) Refusing to use seniority to recall unit employees who engaged in an
unfair labor practice strike.

11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.
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(i) Continuing to honor job offers made to replacement workers.
(j) Changing the seniority based recall procedure for unit employees.
(k) Unilaterally changing the time period for unit employees to accept
offers of reinstatement.
(l) 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 effectuate the policies of the
Act.
(a) Restore the terms and conditions of employment of unit employees as
they existed prior to March 31, 2010, and to continue those terms in effect until the parties
have bargained to a new agreement or a valid impasse, or the Union has agreed to changes,
as provided in the remedy section of this decision.
(b) Make the unit employees whole by reimbursing them for any loss of
benefits and additional expenses that they suffered as a result of the unlawful unilateral
changes to terms and conditions of employment that were implemented beginning on or
about march 31, 2010, as provided in the remedy section of this decision.
(c) Make unit employees whole for any loss of earnings or other benefits
that they may have suffered by reason of Respondent’s failure to promptly offer
reinstatement the employees who engaged in the unfair labor practice strike.
(d) 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
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 electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its Cote Blanche,
Louisiana facility copies of the attached notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 15, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices 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 the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current

12 If this Order is enforced by a Judgment of the 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.”
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employees and former employees employed by the Respondent at any time since March 31,
2010.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
Dated, Washington, D.C., August 1, 2011.
Margaret G. Brakebusch
Administrative Law Judge
JD(ATL)–21–11
Cote Blanche, LA
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten our employees with termination because they engage in an unfair
labor practice strike.
WE WILL NOT refuse to reinstate employees who have engaged in an unfair labor practice
strike.
WE WILL NOT refuse to bargain with the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy Allied Industrial and Service Workers International Union and Local
Union 14425 as the exclusive collective-bargaining representative of our employees.
WE WILL NOT unilaterally implement bargaining proposals and change terms and
conditions of employment in the absence of a valid impasse in bargaining.
WE WILL NOT condition bargaining over mandatory subjects of bargaining on the Union’s
concessions to our bargaining demands.
WE WILL NOT make regressive bargaining proposals in order to frustrate good-faith
bargaining.
WE WILL NOT insist on bargaining proposals that leave the Union without any
representation or leave our employees in a worse position than if they did not have the Union
as their collective-bargaining representative.
WE WILL NOT unlawfully refuse to use seniority to recall our employees who have engaged
in an unfair labor practice strike.
WE WILL NOT continue to honor job offers we made to replacement workers.
WE WILL NOT unilaterally change the seniority based recall procedure for our employees.
WE WILL NOT unilaterally change the time period for our employees to accept an offer of re-
employment.
JD(ATL)–21–11
Cote Blanche, LA
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, upon request by the Union, bargain with the Union and put in writing and sign any
agreement reached on terms and conditions of employment for our employees in the
bargaining unit:
All production and maintenance employees, including storeroom clerks, truck
drivers, and dock employees employed at the Cote Blanche Mine.
WE WILL, upon request by the Union, retroactively rescind any and/or all terms that we
unilaterally imposed beginning on March 31, 2010, and restore, honor, and continue the
wages, hours, terms, and conditions of employment that were set forth in the collective-
bargaining agreement that expired on March 24, 2010, and WE WILL maintain the restored
terms and conditions of employment until such time as the parties complete a new collective-
bargaining agreement, good-faith bargaining leads to a valid impasse, or the Union agrees to
such changes.
WE WILL reinstate all unfair labor practice strikers to their former jobs, or if such jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or other
rights and privileges of employment, discharging, if necessary, any replacements hired
during the strike and make them whole for losses resulting from the failure to reinstate them
after their unconditional offer to return to work.
Carey Salt Company, A Subsidiary of Compass
Minerals International, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Region office set forth below. You may also obtain information from the Board’s
Website: www.nlrb.gov
600 South Maestri Place, 7th Floor, New Orleans, LA 70130-3413
(504) 589-6361, Hours: 9:00 a.m. to 5:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (504) 589-6389.