Washington Post

National Labor Relations Board - Board Decisions

May 9, 2012

358 N.L.R.B. 318 (N.L.R.B. 2012)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 40
318
WP Company, LLC d/b/a The Washington Post and
Washington Mailers’ Union No. 29 Printing,
Publishing, and Media Workers Sector of the
Communications Workers of America, AFL–
CIO. Case 05–CA–036485 and 05–CA–036574
May 9, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
On November 15, 2011, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
Acting General Counsel filed exceptions and a support-
ing brief, the Respondent filed an answering brief, and
the Acting General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The sole remaining issue in this case is whether the
Respondent violated Section 8(a)(5) and (1) by dealing
directly with employees over their ability to take a post-
lunchbreak on days when they have voluntarily worked
through their scheduled lunchbreak.1 For the following
reasons, we find insufficient evidence to support a find-
ing of direct dealing, and we therefore adopt the judge’s
dismissal of the complaint.
For years, the Respondent has occasionally asked indi-
vidual employees to volunteer to work through their
scheduled lunchbreak; those employees who volunteered
were allowed to take a “post-lunch break” later in their
shift. The Acting General Counsel alleges that the Re-
spondent engaged in unlawful direct dealing with indi-
vidual employees in an effort to induce them to forgo
their post-lunchbreaks.
We find that the Acting General Counsel has failed to
produce evidence sufficient to establish a direct dealing
violation. An employer engages in unlawful direct deal-
ing when it (1) communicates directly with represented
employees, (2) for the purpose of establishing or chang-
ing their terms and conditions of employment, and (3) to
the exclusion of the union.2
Here, the Acting General Counsel does not contend
that the Respondent engaged in unlawful direct dealing
by asking individual employees to work through their
scheduled lunchbreak or by offering them overtime com-
pensation for doing so. Rather, the Acting General

1 The judge dismissed the allegations that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by unilaterally implementing new poli-
cies regarding working through lunch and work assignments. The
Acting General Counsel has not excepted to the dismissal of these
unilateral-change allegations.
2 See, e.g., Permanente Medical Group, 332 NLRB 1143, 1144
(2000).
Counsel’s theory is that the Respondent dealt directly
with individual employees to induce them not to take a
post-lunchbreak after working through their scheduled
lunchbreak. Although the record establishes that the
Respondent occasionally asked individual employees to
work through the scheduled lunchbreak, there is no evi-
dence that these communications related to forgoing a
post-lunchbreak. For example, employee and union of-
ficer Barbara Grossman’s testimony that a supervisor had
“worked out deals” with employees did not establish that
these “deals” related to forgoing a post-lunchbreak, as
opposed to simply working through the scheduled lunch
reak. Similarly, although employee and Union President
Mark Pullium testified that he was told that he would be
“well compensated” for working through lunch, he was
not told that this compensation would be in exchange for
forgoing his post-lunchbreak.3 Finally, employee Brian
Allen Leroux’s testimony that he worked through lunch
and received extra compensation for doing so does not
establish that the extra compensation was in exchange for
giving up his post-lunchbreak.4
Because the Acting General Counsel has failed to pro-
duce evidence sufficient to establish a direct dealing vio-
lation, we adopt the judge’s dismissal of that complaint
allegation.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Gregory M. Beatty, Esq., for the Acting General Counsel.
Jacqueline M. Holmes, Esq. and Thomas R. Chiavetta Jr., Esq.,
of Washington, DC, for the Respondent-Employer.
Mark B. Pullium Sr., of Mechanicsville, Maryland, for the
Charging Party-Union.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on September 19 and 20, 2011, in Wash-
ington, DC, pursuant to an order consolidating cases issued by
the Regional Director for Region 5 of the National Labor Rela-
tions Board (the Board). The complaint, based upon original
charges filed on various dates in 2011 by Washington Mailers’
Union No. 29, Printing, Publishing, and Media Workers Sector
of the Communication Workers of America, AFL–CIO (Charg-
ing Party or Union), alleges that WP Company, LLC d/b/a The
Washington Post (Respondent or Employer), has engaged in

3 Pullium later clarified that he was twice asked to work through
lunch. The first time, he received a post-lunchbreak. The second time,
he did not receive the break but did not raise the issue with manage-
ment because he had already eaten during another scheduled break.
4 In citing the testimony of Grossman, Pullium, and Leroux, we note
that it was not specifically credited or discredited by the judge. Even if
credited, however, the testimony would not change the result herein.
WASHINGTON POST

319
certain violations of Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act). The Respondent filed a timely
answer to the complaint denying that they had committed any
violations of the Act.
Issues
The complaint alleges that the Respondent violated Section
8(a)(1) and (5) of the Act when in or around November 2010,1
it implemented a new lunch policy regarding working through
lunch without prior notice to the Union, and without affording
the Union an opportunity to bargain with the Respondent con-
cerning the conduct and/or the effects of this conduct. Addi-
tionally, in or around the same time, the Respondent bypassed
the Union and dealt directly with bargaining unit employees
regarding working through lunch under the new policy. Lastly,
the Respondent in or around January 2011, unilaterally imple-
mented a new policy regarding work assignments without no-
tice or bargaining with the Union.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware limited liability company, with its
principal office and place of business in the District of Colum-
bia, has been engaged in the publication of the Washington
Post, a daily newspaper. Respondent in conducting its business
operations derived gross revenues in excess of $200,000, sub-
scribed to various interstate news services, including the Asso-
ciated Press, published various nationally syndicated features,
including The Color of Money, and advertised nationally and
sold products including insurance from Allstate Corporation.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since at least 1986, the Union has been the designated Sec-
tion 9(a) exclusive collective-bargaining representative of the
Respondent’s mailroom employees, and since then has been
recognized as such by the Employer. This recognition has been
embodied in successive collective-bargaining agreements, the
most recent of which was effective from May 18, 1998, to May
18, 2003. The parties’ did not extend their collective-
bargaining agreement; rather, they commenced negotiations for
a successor collective-bargaining agreement in 2003, and ulti-
mately reached a comprehensive tentative agreement in De-

1 All dates are in 2010, unless otherwise indicated.
2 While I issued a “Protective Order” to cover Respondent and
Charging Party off-the record bargaining notes and proposals, no exhib-
its subject to the Order were introduced into the record (ALJ Exh. 1).
cember 2009 (GC Exh. 3).3 That agreement, however, was
rejected on two separate occasions in January and April 2010,
by the union membership, and presently no successor collec-
tive-bargaining agreement exists between the parties (R. Exh.
22–25). Accordingly, the Respondent informed the Union that
the comprehensive tentative agreement was their last, best, and
final contract offer.
The mailroom, which is the department involved in this pro-
ceeding, sits operationally between the press room, where the
papers are printed, and the circulation department, that delivers
the papers. The Respondent employs approximately 400 em-
ployees in its mailrooms to collate, assemble, and prepare the
newspaper for distribution. The bargaining unit is comprised of
journeyman mailers, mailroom helpers, and utility mailers.4
The Respondent also employs approximately 200 individuals
known as “hand inserters,” who are hired as a casual labor
force on a daily basis to insert flyers manually into each bun-
dled newspaper. The “hand inserters” are not part of the collec-
tive-bargaining unit (GC Exh. 2, sec. 6 and 7), and are preclud-
ed from performing bargaining unit work as described in sec-
tion 6 of the parties’ expired collective-bargaining agreement.
In accordance with the expired collective-bargaining agree-
ment, employees work 7 hours, exclusive of a 30-minute non-
paid lunch period, 5 days a week. During the workday, em-
ployees are entitled to three paid 15-minute breaks, one paid
15-minute coffee break for a total of 1 hour daily, and two paid
5-minute wash-up breaks. Section 14(b) of the expired agree-
ment provides that the present practice providing for a coffee
break, wash-up times, a break between doubleheader shifts, 15
minutes for monthly chapel meetings, and time to get lunch
when it is necessary to work through lunch shall be continued.5

3 During the summer of 2006 and 2007, the parties had a number of
“off the record” bargaining sessions, however, no progress was made.
The parties met again in August 2009, and it was at that time that the
Respondent, due to financial challenges especially in decreasing print
advertising revenue and reduced circulation in daily and Sunday news-
papers, was forced to close its College Park, Maryland production
operations. The collective-bargaining sessions that commenced in
August 2009, and continued through December 2009, ultimately pro-
duced the comprehensive tentative agreement.
4 The mailers operate the collating machines, the helpers operate
rolling stock to move products, and the utility mailers perform either
mailer or helper work depending on production needs.
5 Due to operational needs and when equipment malfunctioned, a
practice was established where employees were requested by their
foreman to work through lunch and were compensated for doing so. If
employees then wanted time to get lunch they were permitted to do so.
No set time limit was established nor does one appear in the parties past
and present collective-bargaining agreements (GC Exh. 2, sec. 14(b);
R. Exh. 3, sec. 26). While a few of the foremen permitted 15–20
minutes to get lunch, this occurred on an isolated basis. Indeed, the
record confirms that other foremen permitted less time and no firm
practice was established that ripened into a term and condition of em-
ployment concerning the length of time permitted to get lunch. The
record also establishes that some employees who worked through lunch
did not seek or request time to get lunch either because they previously
took lunch during one of their paid breaks or skipped lunch on days that
they worked through lunch. The record further shows that no employee
was disciplined if they declined the request of a foreman to work
through lunch.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
B. The 8(a)(1) and (5) Allegations
1. Implementation of the new lunch policy
The Acting General Counsel alleges in paragraph 6 of the
complaint that in or around November 2010, Respondent im-
plemented a new lunch policy regarding working through lunch
without affording prior notice to the Union and affording it the
opportunity to bargain with the Employer with respect to this
conduct, and the effects of this conduct. The Acting General
Counsel further clarified this alleged violation by arguing that
the practice of permitting employees who worked through
lunch to have a 20-minute period to then get lunch ripened into
a term and condition of employment that cannot be changed
without notice and bargaining with the Union.
Facts
On October 28, 2009, the Union filed a grievance alleging
that one of Respondent’s foremen on the run of press (ROP)
night shift violated the parties’ collective-bargaining agreement
(Sec. 14(b)) by not giving an employee who worked through
lunch an allotted amount of time to get something to eat and
requested to meet in an effort to resolve the matter (R. Exh. 32).
On November 10, the Union filed a grievance alleging that a
practice has been established that if an employee works through
lunch they are entitled to a 20-minute period to get lunch and
this practice is not being followed (GC Exh. 6).
On February 24, 2011, the Union filed a grievance alleging
that mailroom managers were soliciting employees to work
through lunch and were not providing them the opportunity to
get lunch once they completed the work (GC Exh. 7).
Discussion
Section 10(b) of the Act precludes the issuance of a com-
plaint “based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board
and the service of a copy thereof upon” the charged party.
Although the General Counsel may rely on evidence outside the
10(b) period as “background,” he is barred from bringing any
complaint in which the operative events establishing the viola-
tion occurred more than 6 months before the unfair labor prac-
tice charge has been filed and served. Allied Production Work-
ers Union Local 12 (Northern Engraving Corp.), 337 NLRB 16
(2001). The statute of limitations under Section 10(b) begins to
run, however, only when a party has “clear and unequivocal
notice” of a violation of the Act. Id. Notice can be actual or
constructive. Thus, the Board has found sufficient notice to
start the limitations period where a party, “in the exercise of
reasonable diligence, should have become aware” of facts indi-
cating that the Act had been violated. Moeller Bros. Body
Shop, 306 NLRB 191, 192–193 (1992). The burden of showing
that a charging party was on notice of a violation of the Act is
on the Respondent. A&L Underground, 302 NLRB 467, 468
(1991).
The charge in Case 05–CA–036485, that alleges the imple-
mentation of a new lunch policy, was filed on March 7, 2011,
and a copy was served on the Respondent on March 8, 2011.
To satisfy its burden under Section 10(b), the Respondent has
to show that the Union knew or could have known by the exer-
cise of reasonable diligence before September 7 that it was
aware of the Employer’s policy to prevent employees from
getting lunch after they worked through their regular lunch
period. In the particular circumstances of this case, I find that
the Union had notice of any alleged change in the policy of
permitting employees to get lunch pursuant to its October 28,
2009 grievance that raised this issue.
Additionally, the Union admitted that at no time between
October 2009, and the present date, did they ever request the
Respondent to negotiate over any new lunch policy including
permitting employees to enjoy a 20-minute period to get lunch
assuming that they worked through their regular lunch period.
While the Acting General Counsel argues that in certain cir-
cumstances a grievance can serve as a request to negotiate, I
reject the proposition in this case for the following reasons.
First, while the Union requested to meet for the purpose of
resolving the matter in the October 28, 2009 grievance, it
framed the request under the provisions of the parties’ collec-
tive-bargaining agreement and did not reference a request to
negotiate over terms and conditions of employment. Second, in
the November 10 grievance, the Union did not request to meet
or negotiate with the Respondent. Under Board law, “a valid
request to bargain, need not be made in any particular form, or
in haec verba, so long as the request clearly indicates a desire to
negotiate and bargain on behalf of the employees in the appro-
priate unit concerning wages, hours, and other terms and condi-
tions of employment.” Marysville Travelodge, 233 NLRB 527,
532 (1977) (quoting Al Landers Dump Truck, Inc., 192 NLRB
207, 208 (1971)), enfd. sub nom. NLRB v. Cofer, 637 F.2d
1309 (9th Cir. 1981). Here, no such clear request to negotiate
and bargain on behalf of employees has been made in either the
2009 or 2010 grievance, particularly noting that the Union was
previously aware of alleged violations of the lunch policy when
employees worked through lunch.
I further find that the Acting General Counsel did not con-
clusively establish that the Respondent made any changes to the
existing policy that permitted employees after working through
lunch to get something to eat for the following reasons. First,
the record shows that there are approximately 53 salaried fore-
men employed at the Respondent’s Springfield, VA facility
where the mailroom employees work. While the Acting Gen-
eral Counsel alleges that the new lunch policy was unilaterally
implemented in November 2010, the evidence presented to
support this assertion is not persuasive. For example, repre-
sentatives of the Union that testified during the hearing, such as
James Forsythe and Barbara Grossman could only point to a
small number of the 53 salaried foremen that were not adhering
to the policy of permitting employees to get something to eat
after they worked through lunch. Indeed, Grossman testified
that after November 2010, the practice of permitting employees
to get something to eat after they worked through lunch contin-
ued under a majority of the foremen, some of whom permitted
20 minutes to get lunch. She further testified that while most
foremen permitted employees to get lunch, the period was less
than 20 minutes, but only a small number of foremen discon-
tinued the practice. Grossman testified that on all occasions
that she was requested and agreed to work through lunch after
November 2010, her foreman always permitted her time to get
lunch. Respondent’s Foreman Wanda Jackson testified, due to
WASHINGTON POST

321
operational needs, that she has regularly requested employees
to work through lunch and while none of her assigned employ-
ees has requested to get something to eat after working through
their lunch, she would permit an employee to get something to
eat if they requested it.
Second, I note the provision in the expired collective-
bargaining agreement that provides in Section 14(b), that the
practice of granting time to get lunch when it is necessary to
work through lunch shall be continued. Significantly, no spe-
cific amount of time to get something to eat is set forth in that
section of the agreement. Thus, I find that no new lunch policy
has been implemented at the Respondent’s facility. At most,
the Acting General Counsel established that a small number of
the 53 salaried foremen in the mailroom were not adhering to
the provisions of Section 14(b), but the majority of foremen
were doing so. Such evidence, standing alone, does not amount
to a material change in terms and conditions of employment
that requires a bargaining obligation under the Act.
Under these circumstances, and based on the discussion
above, I find that the Respondent did not violate Section 8(a)(1)
and (5) of the Act as alleged in paragraph 6 of the complaint.
2. Bypass of the Union and dealing directly with employees
The Acting General Counsel alleges in paragraph 7 of the
complaint that the Respondent bypassed the Union and dealt
directly with its employees in the unit regarding working
through lunch under the new policy.
Facts
The Acting General Counsel’s evidence in support of this al-
legation is that Grossman’s superintendent Allen Martin in-
formed her that he had worked out deals with employees who
agreed to work through their lunch. Union President Pullium
testified that he worked through lunch on two occasions after
November 2010. He was permitted to get something to eat
after working through lunch on the first occasion and the se-
cond time he was paid 15 minutes of overtime even though he
had previously eaten his lunch.
Discussion
Section 8(a)(5) of the Act provides that an employer com-
mits an unfair labor practice by refusing to bargain collectively
with the exclusive representative of its employees. The duty to
bargain is defined in Section 8(d). The obligation to bargain in
good faith requires, “at a minimum recognition that the statuto-
ry representative is the one with whom the employer must deal
in conducting negotiations, and that it can no longer bargain
directly or indirectly with employees.” General Electric Co.,
150 NLRB 192, 194 (1964), enfd. 418 F.2d 736 (2nd Cir.
1069), cert. denied 397 U.S. 965 (1970). Indeed, it is not
enough that the employer communicates with its employees
about wages, hours, or working conditions; such communica-
tion must be made with the intent to, or for the purpose of, cir-
cumventing bargaining with the union. Emhart Industries, Inc.,
297 NLRB 215, 225 (1989). The Board in Permanente Medi-
cal Group, Inc., 332 NLRB 1143, 1144 (2000), citing Southern
California Gas Co., 316 NLRB 979 (1965) held that in order to
prove unlawful direct dealing in violation of Section 8(a)(5) of
the Act the following criteria must be established:

(1) the employer was communicating directly with union-
represented employees; (2) the discussion was for the purpose
of establishing or changing wages, hours, and terms and con-
ditions of employment or undercutting the union’s role in
bargaining; and (3) such communication was made without
notice to, or to the exclusion of the union.

In Emhart, the Board found that an employer did not engage
in direct dealing even though it conducted several mandatory
employee meetings, without notice to the union, on procedures
for productivity and quality control, topics that were also the
subjects of ongoing negotiations with the union. Since the
employer was not promising any benefits in these meetings to
the exclusion of the union, the Board held that its intent was not
to undermine the union and thus there was no unlawful direct
dealing.
Under these circumstances, and particularly noting that no
material changes in conditions of employment were established
or implemented with respect to the lunch policy, it cannot be
found that the Respondent bypassed the Union and dealt direct-
ly with employees regarding working through lunch as alleged
in paragraph 6 of the complaint. E.I. DuPont de Nemours &
Co., 301 NLRB 155 (1991) (Board held that employees under-
stood that their participation in the video was voluntary and that
the alleged direct dealing did not erode the union’s representa-
tional status).
3. Unilateral implementation of work assignments
The Acting General Counsel alleges in paragraph 8 of the
complaint that in or around January 2011, the Respondent im-
plemented a new policy regarding work assignments without
prior notice to the Union and affording it the opportunity to
bargain with the Employer with respect to this conduct, and the
effects of this conduct.
Facts
On August 3, 1999, the Union filed a grievance asserting that
“hand inserters” by putting bundles on the conveyor belts at the
Respondent’s College Park, MD facility violated Section 6 of
the parties’ collective-bargaining agreement as these employees
were performing bargaining unit work. On September 21,
1999, the Union referred the underlying grievance to arbitra-
tion. The Respondent defended its conduct by arguing that the
disputed work had been performed by the “hand inserters” for
some time and it did not intend to change the practice. 6
By letter dated September 27, 1999, the Respondent replied
to the Union’s referral to arbitration of the helpers’ jurisdiction
grievance and pointed out that the mailroom has been making
similar assignments to the “hand inserters” for quite some time
including even before the parties’ collective-bargaining agree-
ment was signed in May 1998. The Union ultimately decided
not to refer the matter to arbitration.
On November 24, 2009, the Union filed a grievance alleging
that the “hand inserters” were observed stacking complete bun-

6 The 1991–1997 collective-bargaining agreement between the par-
ties covering helpers indicates that “hand inserters” may be assigned to
put complete bundles on two designated lines at each of the Respond-
ent’s mailrooms (R. Exh. 3-p. 2, sec. 3(b)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
dles onto skids which is bargaining unit work that should be
performed by helpers (R. Exh. 17).
On September 1, the Union filed a grievance alleging that
“hand inserters” were stacking behind the tie machine lines in
violation of Section 6 of the parties’ expired collective-
bargaining agreement (R. Exh. 1). Forsythe testified that this is
the same issue (stacking behind the tying machines) that the
Charging Party was concerned about when it filed the subject
unfair labor practice charge and is alleged in paragraph 8 of the
complaint.
On November 3, the Union filed a grievance alleging that the
“hand inserters” were placing complete bundles on the lines in
violation of the parties’ expired collective-bargaining agree-
ment (GC Exh. 4).
On March 1, 2011, the Union filed a grievance asserting that
the “hand inserters” are putting bundles of papers on the lines
and taking them off the press lines in violation of Section 6 and
7 of the parties’ expired collective-bargaining agreement (GC
Exh. 5).
None of the grievances filed by the Union in 2010 or 2011
have been referred to arbitration.
Discussion
First and foremost, it is noted that the Acting General Coun-
sel did not introduce any evidence in its case in chief that the
Respondent, as alleged in paragraph 8 of the complaint, imple-
mented a new policy regarding work assignments in and around
January 2011. For this reason alone, it cannot be established
that the Respondent violated Section 8(a)(1) and (5) of the Act
concerning this allegation.7 I further find, based on the reasons
discussed below, that the Respondent did not violate Section
8(a)(1) and (5) of the Act regarding the implementation of a
new policy regarding work assignments as alleged in paragraph
8 of the complaint.
The charge in Case 05–CA–036574, that alleges the imple-
mentation of a new policy regarding work assignments, con-
cerns the issue of “hand inserters” performing bargaining unit
work. That charge was filed on April 20, 2011, and a copy was
served on the Respondent on April 26, 2011. To satisfy its
burden under Section 10(b), the Respondent has to show that
the Union knew or could have known by the exercise of rea-
sonable diligence before October 20, that it was aware of the
Employer’s policy to assign bargaining unit work involving the
placement and removal of complete bundles on the conveyor
belts or press lines, to “hand inserters.” In the particular cir-
cumstances of this case, I find that the Union had notice of any
alleged change in the policy of permitting “hand inserters” to
perform the work of placing or removing complete bundles
from the conveyor belts or press lines pursuant to the grievanc-
es it filed on August 3 and November 24, 1999, and September
1, that raised the same or similar issues. Under these circum-
stances, the April 20, 2011 charge is untimely and the underly-
ing allegation must be dismissed. El Paso Elec. Co., 355
NLRB 558 (2010) (filing a grievance over the same practice

7 The Acting General Counsel conceded that if he did not introduce
evidence on the record regarding a January 11, 2011 unilateral change
in work assignments, those allegations could be dismissed.
more than 6 months before filing its unfair labor practice
charge is grounds for finding the charge untimely).
Additionally, the Union admitted that at no time between
August 1999, and the present date, did they ever request the
Respondent to negotiate over the issue of “hand inserters” per-
forming bargaining unit work. While the Acting General
Counsel argues that in certain circumstances a grievance can
serve as a request to negotiate, I reject the proposition in this
case for the following reasons. First, while the Union requested
to meet for the purpose of resolving the matter in the August 3
and November 24, 1999 grievances, it did not do so in the
grievance filed on September 1. Moreover, any request to meet
with the Respondent was framed under the provisions of the
parties’ collective-bargaining agreement and did not reference a
request to negotiate over terms and conditions of employment.
McGraw-Hill Broadcasting Co., Inc., 355 NLRB 1297 (2010)
(just filing a grievance does not satisfy the union’s affirmative
duty to request bargaining). Under Board law, “a valid request
to bargain need not be made in any particular form, or in haec
verba, so long as the request clearly indicates a desire to nego-
tiate and bargain on behalf of the employees in the appropriate
unit concerning wages, hours, and other terms and conditions of
employment.” Marysville Travelodge, 233 NLRB 527, 532
(1977) (quoting Al Landers Dump Truck, Inc., 192 NLRB 207,
208, (1971), enfd. sub nom. NLRB v. Confer, 637 F.2d 1309
(9th Cir. 1981). Here, no such clear request to negotiate and
bargain on behalf of employees has been made in either the
2009 or 2010 grievances particularly noting that the Union was
previously aware of “hand inserters” performing bargaining
unit work.
The Respondent further defends its conduct and asserts that
no policy changes regarding work assignments were imple-
mented requiring a bargaining obligation, that the parties bar-
gained to a good-faith impasse on the terms of a successor col-
lective-bargaining agreement with some or all of the alleged
changes being encompassed in there preimpasse bargaining
proposals, and that the Union, based on past practice, clearly
and unmistakably waived its right to bargain over any changes
in work assignments involving “hand inserters.”
Section 8(a)(5) of the Act makes it unlawful for an employer
to make unilateral changes to benefits that are mandatory sub-
jects of bargaining without negotiations with the exclusive
collective-bargaining representative of its employees. NLRB v.
Katz, 369 U.S. 736 (1962). Therefore, an employer may not
make unilateral changes in conditions of employment unless
the union expresses a clear and unmistakable waiver of its right
to bargain. American Broadcasting Co., 290 NLRB 86, 88
(1988); California Pacific Medical Center, 337 NLRB 910
(2002).
A waiver occurs when a union “knowingly and voluntarily
relinquishes its right to bargain about a matter. . . . When a
union waives its right to bargain about a particular matter, it
surrenders the opportunity to create a set of contractual rules
that bind the employer, and instead cedes full discretion to the
employer on that matter. For that reason, the courts require
‘clear and unmistakable’ evidence of waiver and have tended to
construe waivers narrowly.” Department of the Navy, Marine
Corps Logistics Base v. FLRA, 962 F.2d 48, 57 (D.C. Cir.
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323
1992). Waiver of a statutory right may be evidenced by bar-
gaining history, but the Board requires the matter at issue to
have been “fully discussed” and “consciously explored” during
negotiations. Davies Medical Center, 303 NLRB 195, 204
(1991). Failure to mention a mandatory subject of bargaining
does not constitute a waiver of the right to bargain; rather, the
Board requires “a conscious relinquishment by the union, clear-
ly intended and expressed.” Elizabethtown Water Co., 234
NLRB 318, 320 (1978).
The Board has relied upon several factors in assessing
whether a clear and unmistakable waiver exists: (1) language in
the collective-bargaining agreement, (2) the parties’ past deal-
ings, (3) relevant bargaining history, and (4) other bilateral
changes that may shed light on the parties’ intent. See John-
son-Bateman, 295 NLRB 180, 184–187 (1989); American Di-
amond Tool, 306 NLRB 570 (1992). The party asserting the
waiver bears the burden of establishing the existence of the
waiver. Pertec Computer, 284 NLRB 810 (1984).
The record conclusively establishes that during negotiations
prior to the expiration of the parties’ collective-bargaining
agreement on May 18, 2003, and through December 16, 1999,
when the parties reached a comprehensive tentative agreement
(GC Exh. 3),8 there were numerous instances when the issue of
“hand inserters” performing bargaining unit work was “fully
discussed” and “consciously explored.” For example, Re-
spondent’s collective-bargaining notes fully support this asser-
tion (R. Exh. 8 at p. 7, R. Exh. 9 at pp. 7, and 19, R. Exh. 10 at
pp. 2, 19, and 21, R. Exh. 11 at pp. 3, 4, 7, and 13, R. Exh. 12 at
pp. 2, 3, and R. Exh. 13 at p. TWP007470). Moreover, the
parties agreed to include in Section 7 of the comprehensive
tentative agreement the results of their negotiations permitting
“hand inserters” to continue to be assigned the placing of com-
plete bundles on, and unstacking of complete bundles from, the
conveyor lines (GC Exh. 3).
Therefore, I find that the Union waived any right to engage
in negotiations over the allegations alleged in paragraph 8 of
the complaint.
In determining whether there was an impasse in negotiations,
one begins with the proposition that the burden of establishing
an impasse rests on the party asserting it, in this situation, the
Respondent. North Star Steel Co., 305 NLRB 45 (1991). A
lead case on this issue, Taft Broadcasting Co., 163 NLRB 475,
478 (1967), stated:

Whether a bargaining impasse exists is a matter of judgment.
The bargaining history, the good faith of the parties in negoti-
ations, the length of the negotiations, the importance of the is-
sues as to which there is disagreement, the contemporaneous
understanding of the parties as to the state of negotiations are
all relevant factors to be considered In deciding whether an
impasse in bargaining existed.

In regards to the last of these factors, the “contemporaneous
understanding of the parties as to the state of the negotiations,”
if either negotiating party remains wiling to move further to-

8 While the parties continued to meet on a sporadic basis between
2003 and 2009, no substantial progress was made until the comprehen-
sive tentative agreement was reached in December 2009.
ward an agreement, this would support a finding of no impasse.
In Hi-Way Billboards, Inc., 206 NLRB 22, 23 (1973), the
Board stated: “A genuine impasse in negotiations is synony-
mous with a deadlock; the parties have discussed a subject or
subjects in good faith, and despite their best efforts to achieve
agreement with respect to such, neither party is willing to move
from its respective position.” In AMF Bowling Co., 314 NLRB
969, 978 (1994), citing Pillowtex Corp., 241 NLRB 40 (1979),
and PRC Recording Co., 280 NLRB 615 (1986), the Board
stated that it has defined an impasse as the point in time during
negotiations when the parties are warranted in assuming that
further bargaining would be futile and when both parties be-
lieve “that they are at the end of their rope.”
Applying these cases to the lengthy negotiations between the
Respondent and the Union in an effort to reach a successor
collective-bargaining agreement, I find that the Respondent has
sustained its burden of establishing that an impasse existed in
April 2010, when the union membership rejected for the second
time the last, best, and final contract offer proffered by the Re-
spondent.
As background to this finding, the record establishes that the
parties engaged in protracted and difficult negotiations for a
successor collective-bargaining agreement commencing in
March 2003 (prior to the expiration of their collective-
bargaining agreement on May 18, 2003), up to and including
December 16, 2009, when the parties reached a comprehensive
tentative agreement subject to ratification by the union mem-
bership. There is no dispute that the union membership reject-
ed the comprehensive tentative agreement on two occasions,
and the Respondent made it crystal clear in a letter dated April
20 that the comprehensive tentative agreement is the Employ-
er’s last, best, and final contract offer, and its terms will not
improve with time (R. Exh. 24). I also note that on April 1, the
Union submitted revised proposals to the Respondent, however,
none of those proposals made any changes to the “hand insert-
ers” issue concerning performing bargaining unit work (R.
Exhs. 18 and 21). Likewise, those proposals did not change the
provisions of Section 7 of the comprehensive tentative agree-
ment that privileged the “hand inserters” to be assigned the
placing of complete bundles on, and unstacking of complete
bundles from the conveyor lines (R. Exhs. 7 and 8). The last
formal negotiating session between the parties occurred on
April 1, as evidenced from the Respondent’s collective-
bargaining notes of that date (R. Exh. 20). Those notes confirm
that the Respondent did not agree to any of the Union’s pro-
posals.
The record establishes, and all parties agree, that no addi-
tional proposals have been exchanged by the parties since April
1, and no additional collective-bargaining sessions have been
scheduled or held.
Under these circumstances, I conclude that the parties were
at the end of their rope and hopelessly at impasse in their nego-
tiations to reach a successor collective-bargaining agreement.
GATX Logistics, Inc., 325 NLRB 413 (1998). Therefore, I find
that Section 7 in the comprehensive tentative agreement privi-
leges the Respondent to continue assigning the “hand inserters”
the placing of complete bundles on, and unstacking of complete
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324
bundles from the conveyor lines without engaging in negotia-
tions with the Union (GC Exh. 3).
The Respondent further argues that a unilateral change made
pursuant to a longstanding practice is essentially a continuation
of the status quo and not a violation of Section 8(a)(5) of the
Act. Courier-Journal, 342 NLRB 1093, 1095 (2004).
In this regard, the Respondent conclusively established that
the practice of assigning the “hand inserters” the placing of
complete bundles on and the unstacking of complete bundles
from the conveyor lines had existed for many years prior to the
allegation in paragraph 8 of the complaint that a new policy
was implemented regarding work assignments. Indeed, the
record confirms that the Union raised this issue in grievances
filed in 1999 about “hand inserters” performing bargaining unit
work and that the work being challenged by the Union has al-
ways been performed by the “hand inserters.” Haddon Crafts-
men, Inc., 297 NLRB 462 (1989) (dismissing union’s claim that
the employer violated Section 8(a)(5) by transferring certain
insert work to nonunit employees because the record estab-
lished that nonunit employees had “customarily performed” the
same type of work in the past). Moreover, the parties agreed in
negotiations leading to the comprehensive tentative agreement
that “hand inserters” were authorized to perform the disputed
work (GC Exh. 3, sec. 7).
For all of the above reasons, I find that the Respondent did
not violate Section 8(a)(1) and (5) of the Act as alleged in para-
graph 8 of the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent did not unilaterally implement a new
lunch policy regarding working through lunch, did not bypass
the Union and deal directly with bargaining unit employees
regarding the new lunch policy nor did it implement a new
policy regarding work assignments without notice to or bar-
gaining with the Union. Therefore, the Respondent did not fail
and refuse to bargain collectively and in good faith with the
Section 9(a) representative of its employees within the meaning
of Section 8(d) of the Act, in violation of Section 8(a)(1) and
(5) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The complaint is dismissed.

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.