The National Labor Relations Board (“NLRB” or “the Board”) petitions for enforcement of its order finding that Whitesell Corporation (“Whitesell”) violated various provisions of the National Labor Relations Act (“NLRA”),'29 U.S.C. §§ 151-69, while negotiating a new collective-bargaining agreement (“CBA”) with the Glass, Molders, Pottery, Plastics, and Allied Workers International Union, AFL-CIO (“Union”). Whitesell opposes enforcement on the ground that the NLRB lacked jurisdiction to enter a “new” decision following this court’s denial of the NLRB’s prior application for enforcement. In the alternative, White-sell challenges, for lack of substantial evidence, the NLRB’s determinations that Whitesell failed to (1) bargain in good faith to impasse; (2) give the required timely notice to the Federal Mediation and Conciliation Service (“FMCS”); and (3) bargain in good faith by failing to provide information requested by the Union while negotiating the new CBA.
I.
In January 2005, Whitesell purchased Fansteel Washington Manufacturing, Inc., a wire manufacturer in Washington, Iowa. Pursuant to the purchase, Whitesell recognized the Union that had represented the plant’s production and maintenance employees for more than 40 years and adopted the existing CBA, which was set to expire on June 12, 2006. The employees at Whitesell’s other facilities do not have union representation. The expiring CBA contained a dues-checkoff provision (whereby the employer withholds union dues from the employee’s wages and pays them to the union), imposed a “just cause” limitation on employee discipline, based layoff and recall on seniority, and set vacation entitlements on years of service. The
On March 2, 2006, Whitesell’s human resources manager, Cris Libera, sent the Union a letter, declaring Whitesell’s “intent to terminate” the CBA upon its expiration on June 12, 2006. Attached to this letter was a copy of the F-7 form that a party seeking to modify or terminate a CBA must file with the FMCS within 30 days of notifying the other party of the dispute. See 29 U.S.C. § 158(d)(3). However, the FMCS never contacted the parties, a fact that both sides noted was odd during the subsequent negotiations. When Union negotiator Dale Jeter contacted the FMCS to request a mediator on July 10, almost a month after Whitesell declared impasse and ended the negotiations over the new CBA, the FMCS replied that it had no knowledge of the dispute. Although Whitesell claims it mailed the F-7 form on March 2, the same day it sent the letter to the Union, the FMCS did not receive an F-7 form from Whitesell until August 11.
On May 1, 2006, Whitesell negotiator Robert Janowitz provided Jeter with the company’s initial proposal for a new CBA. Janowitz also informed Jeter that White-sell would not negotiate beyond the existing CBA’s expiration on June 12, 2006. Whitesell’s stated intention was “to negotiate a new agreement from start to finish” and “to equalize labor costs with that of other [non-union] locations and facilities.” Accordingly, Whitesell proposed a number of significant changes, including: elimination of the dues-checkoff provision; elimination of the provision prohibiting the company from discriminating against union members when making employment decisions; replacement of the “just cause” provision with a requirement that the Union demonstrate that Whitesell acted arbitrarily; elimination of Union representation at disciplinary meetings other than those regarding termination or suspension; imposition of Whitesell’s unilateral right to change any policy or procedure affecting overtime pay, holidays, vacations, and sick pay, in accordance with the company’s practice at its other facilities; extension of the probationary period for new employees to 90 days; and consideration of factors in addition to seniority for layoffs and recalls.
Beginning on May 26, the parties held eight bargaining sessions. The first and last sessions did not involve substantive bargaining. The Union presented its initial proposals to Whitesell on May 26, which included a yearly wage increase of $1 per hour, two additional holidays, and increases in the company’s defined pension contributions, sickness, and accident benefits. At the first session, Janowitz reiterated Whitesell’s intention not to negotiate beyond the expiration of the existing CBA on June 12. At the second meeting on June 6, Whitesell provided Jeter with the specifics of the company-wide policies that it proposed to implement. These included the replacement of the Union-defined contribution pension plan with the company’s 401(k) plan,
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a four- or five-fold increase in the insurance premiums for employees with less than ten years of service, an increase in the number of years of service required for certain vacation benefits, and
At the third meeting on June 7, White-sell proposed for the first time replacing annual wage increases with a merit-based system based on annual performance reviews. At the fourth meeting on June 8, Whitesell provided Jeter with cost estimates for employees participating in its various benefit programs and asked the Union to propose a final offer. At the fifth meeting on June 9, Whitesell offered a modified wage proposal, whereby it would increase wages by $0.25 per hour for the first year of the CBA and increase the shift differentials for those working second and third shifts. Whitesell also conceded that the Union could represent employees during performance evaluations. Although the parties agreed on several of Whitesell’s proposals, the Union requested that the existing CBA be extended until July 16 to provide the Union with time to understand some of Whitesell’s more substantial changes. In particular, Jeter requested information regarding the impact of the company’s proposed vacation plan. The company refused to delay the expiration date of the existing CBA. At the sixth meeting on June 10, the Union lowered some of its wage demands and indicated that it would be willing to accept a modified merit-pay system. However, the Union reiterated its objection to some of Whitesell’s proposals. With regard to the company’s proposal to replace the “just cause” standard for employee discipline with a prohibition on “arbitrary action” by the company, Jeter told Whitesell’s negotiator that the Union would never accept such a standard and that this was the Union’s “final position.”
The last substantive bargaining between the parties took place at the seventh meeting on June 11. At this meeting, the parties agreed on a number of important issues. In exchange for Whitesell’s acceptance of the Union’s dues-checkoff proposal, the Union accepted Whitesell’s proposals on holiday, vacation, and funeral leave. Whitesell also made a counterproposal on seniority. On June 12, the expiration date of the existing CBA, Whitesell presented its final offer after the Union agreed to adopt the company’s proposed health insurance plan. Jeter was dissatisfied with the offer and refused to present it to Union membership for a vote. Later that evening, Jeter requested further negotiations. Whitesell refused, declaring that the negotiations were at an impasse. At this time, the parties had reached tentative agreements on approximately 30 issues.
Whitesell then implemented selected portions of its final offer. However, despite Whitesell’s inclusion of the Union’s dues-checkoff provision in its final offer, Whitesell stopped collecting Union dues after June 12. Whitesell also canceled a voluntary accident program and refunded the money to employees who had contributed, even though cancelling the program had not been one of the terms presented in the company’s final offer. In addition, Whitesell prohibited Union members from using their break and unpaid time to post notices about Union meetings on the company’s bulletin boards.
The Union subsequently filed a complaint. After an administrative law judge (“ALJ”) determined that the company had committed several violations of the NLRA, Whitesell appealed these findings to the NLRB. The NLRB, at that time consisting of only two members, adopted a num
Based upon these findings, the NLRB ordered Whitesell to cease and desist from its termination of the previous CBA and to restore the previous CBA until the parties sign a new agreement or, in good faith, reach a valid impasse. The NLRB petitioned this Court for enforcement of the order. After briefing and presentation of oral argument but before the filing of an opinion, the Supreme Court held in
New Process Steel, L.P. v. NLRB,
— U.S. -,
The NLRB now petitions this court for enforcement of its order. Whitesell opposes the petition, arguing: (1) the NLRB lacks jurisdiction to issue a new decision and order following this Court’s denial of its previous application for enforcement; (2) substantial evidence does not support the NLRB’s findings that Whitesell failed to bargain in good faith; (3) contrary to the NLRB’s finding, Whitesell provided proper notice to the FMCS and therefore the NLRB improperly ordered Whitesell to reimburse the Union’s dues; and (4) substantial evidence does not support the NLRB’s finding that Whitesell improperly failed to provide further information concerning its vacation proposal. 3
As an initial question, we consider whether our prior opinion denying the NLRB’s application for enforcement precludes the NLRB from reconsidering this action. See 29 U.S.C. § 160(e). We hold that it does not.
Although many courts around the nation vacated the Board’s decisions and remanded for further consideration in light of the
New Process
decision, we chose to deny the respective applications for enforcement in this case and in a companion case.
See Whitesell Corp.,
In the prior action, the only question presented was whether to enforce the NLRB’s order. Relying on the New Process decision, we denied the application for enforcement because the prior NLRB decision, reached while there were only two members of the Board, was invalid. On that issue, our decision is final. See 29 U.S.C. § 160(e).
We have yet to determine whether Whitesell violated the NLRA. Our prior denial does not preclude the Board, now properly constituted, from considering this matter anew and issuing its first valid decision. As the Second Circuit acknowledged in Domsey Trading, we expected that the Board would visit the merits of this case again. Had we expected otherwise, we would have likely granted White-sell’s petition for mandamus. The Board properly read our denial of the application for enforcement as based solely on the New Process decision. We now address the merits of the Board’s decision for the first time.
III.
First, we address the issue of whether substantial evidence supports the NLRB’s findings that Whitesell failed to negotiate to a valid impasse. Section 8(a)(5) of the NLRA makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). “Mandatory areas of collective bargaining include ‘wages, hours, and other terms and conditions of employment.’ ”
TruServ Corp. v. NLRB,
We review the NLRB’s factual findings under the deferential “substantial evidence” standard of review.
See
29 U.S.C. § 160(e);
Universal Camera Corp. v. NLRB,
In
NLRB v. Katz,
The NLRB’s finding that Whitesell did not negotiate to a valid impasse is supported by substantial evidence. The NLRB based its decision, in particular, on the fact that “although [Whitesell] sought substantial changes from the parties’ existing agreement, it imposed an arbitrary deadline on the negotiations by stating that it intended to present its final offer by a specific date and engaged in only a limited number of bargaining sessions before declaring impasse[,] ... [and Whitesell] declared impasse even though the parties exchanged proposals and reached agreements the day before and the day of the impasse declaration.”
Whitesell Corp.,
The record clearly supports the NLRB’s findings. Whitesell’s negotiator, Janowitz, informed the Union of Whitesell’s intention not to negotiate beyond the expiration of the existing CBA when he sent the company’s initial proposals to the Union, and he reiterated this intention at the first bargaining session. Whitesell acknowledges that it desired to implement substantial changes to the existing CBA and that it wanted “to negotiate a new agreement
Moreover, despite Whitesell’s claims of impasse, the parties came to agreement on 30 issues and were continuing to come to agreement on important issues up until the final meeting on June 12. For instance, on June 10, the Union compromised on some of its wage demands, decreasing its proposed wage increases for the second and third years of the contract and indicating its willingness to accept a modified version of Whitesell’s proposed merit-pay system. 4 At the next-to-last bargaining session on June 11, Whitesell agreed to the Union’s dues-cheekoff proposal, and the Union accepted the company’s proposals on holiday, vacation, and funeral leave. The parties also came to an agreement on the safety equipment, strike and lockout, and bereavement pay provisions. On the final day, the Union accepted Whitesell’s group health insurance plan.
Whitesell claims that the parties were deadlocked on a number of important issues on the final day, in particular the standard for disciplinary action, retirement plan, wage increases, the company’s insurance plan, vacation, seniority, overtime, and the leave of absence and sick leave provisions. However, the disagreements over the standard for disciplinary action and overtime are the only issues over which the parties were clearly deadlocked.
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Concerning the retirement plan, Jeter testified that he did not understand the parties to be “at the end of their rope” because they had not yet fully discussed the differences between the Union’s existing defined contribution pension and White-sell’s 401(k), or how the company’s plan would affect the benefits accrued under the existing plan. Nothing in the record contradicts Jeter’s belief that the parties were not at an impasse over the retirement plan. Whitesell’s claim that the parties were deadlocked over wage increases is belied by the fact, already discussed above, that the Union reduced its proposed wage increases for the second and third year of the CBA and agreed to accept a modified version of the company’s proposed merit-pay system two days before Whitesell declared impasse.
6
Similarly, al
Further, the cases cited by Whitesell do not support its claims of impasse. In
Tru-Serv,
the court reversed the NLRB’s finding that the parties had not bargained to a valid impasse.
Whitesell’s claim that the parties were at a good-faith impasse is further undermined by the NLRB’s finding that White-sell failed to provide information about the vacation plan as required by section 8(a)(5) of the NLRA.
8
NLRB v. Acme Indus. Co.,
Finally, Whitesell also cancelled the voluntary supplemental accident fund without bargaining for the issue or including such a provision in its final offer.
See United Paperworkers Int’l Union v. Champion Int’l Corp.,
In conclusion, the record provides substantial evidence for the NLRB’s determination that Whitesell failed to bargain in good faith in violation of sections 8(a)(1) and (a)(5) when it terminated the existing CBA and implemented its proposals without bargaining to a valid impasse.
IV.
Whitesell also contests the NLRB’s finding that it failed to provide notice to the FMCS as required by section 8(d)(3) of the NLRA, 29 U.S.C. § 158(d)(3). This finding resulted in the requirement that Whitesell reimburse the Union for uncollected dues from July 13, 2006 (the day after the CBA expired) to September 30, 2006 (30 days after White-sell provided the proper notice to the FMCS).
Relying on
Petroleum Maintenance Co.,
Whitesell objects to this ruling on a number of grounds. First, Whitesell argues that, under NLRB precedent, it sufficiently demonstrated that it mailed timely notice to the FMCS. Second, Whitesell alternatively argues that the remedial period for reimbursing the Union should end 30 days after the Union contacted the FMCS requesting a federal mediator on July 10, claiming that, at this point, the FMCS was effectively put on notice of the dispute. Third, Whitesell argues “there is no sound reason” for
Petroleum Maintenance
’s remedy of extending the dues-checkoff provision through 30 days after notice is received because, citing to a number of cases,
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a violation of the notice
We reject each of these arguments. As to the first and second arguments, the obligation is on “the party desiring such termination or modification” to “notiffy] the [FMCS] within thirty days after such notice of the existence of a dispute.” 29 U.S.C. § 158(d)(3). Whitesell bears the burden of showing that the FMCS received the notice that a dispute had arisen between Whitesell and the Union. Merely stating that the notice was mailed does not show that notice was received by the FMCS.
See Chauffeurs, Salesmen and Helpers, Local 572,
Whitesell challenges the NLRB’s reliance on
Petroleum Maintenance
in imposing the remedy for the violation of section 8(d)(3). As the NLRB found in
Petroleum Maintenance,
dues-checkoff provisions are not terms or conditions of employment that will continue to be in effect until the parties reach a new agreement or bargain to a genuine impasse. Therefore, White-sell is only required to reimburse uncollected dues for the period ending 30 days after it gives the notice it is statutorily obligated to provide.
See Petroleum Maint.,
V.
Finally, we address the claim that Whitesell failed to bargain in good faith by not providing information regarding changes in Whitesell’s proposed vacation plan as requested by the Union during the negotiation of the new CBA in violation of 29 U.S.C. § 158(a)(1) and (a)(5). “There can be no question of the general obligation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties.”
Acme Indus. Co.,
We agree with the NLRB’s findings that Whitesell violated sections 8(a)(1) and (a)(5) by not providing the requested information concerning how its vacation proposal would impact the employees. Prior to the negotiations, Whitesell provided the Union with a seniority list and indicated the Union would be able to determine, using the list, how the vacation proposal would impact the employees. WTien the Union stated it calculated that one-third of the employees would be adversely impacted by the vacation proposal, Whitesell responded that the Union’s calculation was close but not accurate. This response resulted in the Union’s request for a complete list of employees along with an explanation of how the vacation proposal would affect each employee.
Whitesell argues we should not enforce this part of the NLRB’s findings because Whitesell provided the Union with a seniority list and the Union “was as fully capable as [Whitesell] of determining who would be affected immediately and in the future by [Whitesell]’s vacation proposal.” This argument is belied by Whitesell’s response that the Union’s calculation was close but not accurate. The Union was entitled to the information upon which Whitesell was basing its individual vacation calculation. Accordingly, we find substantial evidence supports the NLRB’s finding that Whitesell violated sections 8(a)(1) and (a)(5) when it failed to provide the requested information.
VI.
Accordingly, we enforce the NLRB’s order as supported by substantial evidence.
Notes
. Under the existing pension, the company contributed $0.84 per regular hour. Under the proposed 401(k), Whitesell would provide a 25% match on employee contributions up to 8% of annual compensation and the employee would not become fully entitled to the employer's contributions until the sixth year of employment.
. The NLRB also affirmed the ALJ's finding that Whitesell had violated section 8(a)(5) by failing to provide information requested by the Union on August 10 concerning White-sell’s relocation of some bargaining unit employees to other facilities.
. Whitesell does not oppose the NLRB’s order with respect to the NLRB's determination that: (1) Whitesell violated the NLRA by prohibiting Union members from posting notices about Union meetings on company bulletin boards during their break and unpaid time; (2) Whitesell failed to bargain in good faith by failing to provide information concerning
. The Union had initially requested $1 per hour wage increases for the second and third years of the CBA but reduced this to $0.50 per hour.
. Union representative Jeter stated at his deposition that the Union would never have accepted Whitesell’s proposed “arbitrary action” standard for employee discipline and that he understood the parties to be deadlocked with regard to the overtime issue by the time Whitesell declared impasse.
. The fact that the parties were not deadlocked over the wage provision is also supported by the NLRB's finding, which Whitesell does not contest, that the company violated section 8(a)(5) by not providing information concerning the implementation of the merit-pay system at Whitesell's other facilities which Jeter requested on July 17, more than a month after Whitesell declared impasse.
See Whitesell Corp.,
. Whitesell made a counterproposal at the June 11 bargaining session offering to use performance-based criteria to determine layoffs and recall only as a tie-breaker between employees of comparable seniority.
. Whitesell challenges this finding on the ground that it provided sufficient information to the Union. Whitesell's proposed vacation plan increased the years of service required for an employee to become entitled to additional vacation leave. Whitesell had provided the Union with a seniority list that stated each employee's date of hire. Based on this seniority list, Jeter estimated that one-third of its members would lose vacation time under the new plan. When Whitesell’s negotiator responded that this estimate was incorrect at their second bargaining session on June 6, the Union requested the information on which Whitesell based its disagreement. The Union renewed this request on June 9. Whitesell never provided any additional information and insisted that the seniority list it had already submitted was sufficient. The fact that Whitesell disagreed with the Union’s estimates provides substantial evidence for the NLRB’s finding that Whitesell failed to bargain in good faith in violation of section 8(a)(5) by not accounting for the basis of its disagreement.
.
See New England Cleaning Servs., Inc. v. SEIU, Local 254,