By K. Phillip Tadlock.

On November 6, 2012, the D.C. Circuit summarily enforced a September 2011 NLRB Order finding that Daycon Products had violated the NLRA by prematurely declaring an impasse in negotiations with employees represented by the Drivers, Chauffeurs and Helpers Local Union 639, and then failing to reinstate those employees who participated in an unfair labor practice strike based on the Company’s actions.

In November 2009, Daycon began contract negotiations with the Union.  After approximately ten negotiation sessions, the parties were unable to reach an agreement regarding key wage terms for members of the bargaining unit.  One major source of divide was whether there would be a catch-up provision that would enable all unit members to the “top rate” for each job classification.  While the Union sought to have all employees be paid at the same “top rate” by the end of the contract term, the Union characterized the Company as offering an “illusory top rate” that it believed was nearly impossible for employees to attain. 

In April 2010, Daycon declared that the parties were at an impasse and implemented its last bargaining order.  In response, the Union employees went on strike based on this alleged unfair labor practice.  Four months later, the striking workers offered to unconditionally return.  The Company, however, refused to reinstate these workers.

In its decision, the Board upheld the ALJ’s decision that an impasse had not been reached.  The ALJ found that while the negotiations were slow, there was movement — particularly by the Union — towards a potential agreement.  The ALJ noted that the Union made a number of concessions to the Company.  However, the ALJ found that in several of the final meetings, the Company completely walked away from the bargaining table and flatly rejected Union proposals despite assurances it was “crunching the numbers.”  The Board therefore found that the Company prematurely declared an impasse and the Union employees appropriately engaged in an unfair labor practice strike.  Pursuant to Board law, an employer must reinstate striking workers in such circumstances when they offer to unconditionally return to work.  In enforcing the Board decision, the DC Circuit found that the Board’s order was supported by substantial evidence. 

The case underscores the significant burden on the party attempting to establish an impasse.  Repeated meetings are insufficient, as is mere consideration of the other side’s proposal.  Rather, the party seeking to show an impasse must demonstrate absolute futility in future negotiations.