63 F.

3d 1293
150 L.R.R.M. (BNA) 2134, 64 USLW 2192,
130 Lab.Cas. P 11,404

AMF BOWLING COMPANY, INCORPORATED, Petitioner,

v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
District 4, United Steelworkers of America, AFL-CIO, CLC,
Intervenor.
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
AMF BOWLING COMPANY, INCORPORATED,
Respondent.
Nos. 94-2150, 94-2256.

United States Court of Appeals,

Fourth Circuit.
Argued April 3, 1995.
Decided Aug. 29, 1995.

ARGUED: R. Daniel Bordoni, Bond, Schoeneck & King, L.L.P.,

Syracuse, NY, for petitioner. David S. Habenstreit, N.L.R.B.,
Washington, DC, for respondent. James R. LaVaute, Blitman & King,
Syracuse, NY, for intervenor. ON BRIEF: W. Carter Younger, McGuire,
Woods, Battle & Boothe, Richmond, VA, for petitioner. Frederick L.
Feinstein, Gen. Counsel, Linda Sher, Acting Associate Gen. Counsel,
Aileen A. Armstrong, Deputy Associate Gen. Counsel, Linda Dreeben,
Supervisory Atty., N.L.R.B., Washington, DC, for respondent.
Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
The petition for review is granted and the cross-petition for enforcement
is denied by published opinion. Judge NIEMEYER wrote the opinion, in
which Judge HAMILTON joined. Senior Judge BUTZNER wrote a
dissenting opinion.

OPINION
NIEMEYER, Circuit Judge:

When AMF Bowling Company, Incorporated, failed to obtain wage

concessions at its Lowville, New York, plant through bargaining with the
United Steelworkers of America AFL-CIO, CLC, District 4, it declared an
impasse and unilaterally implemented its last wage offer. Thereafter, when the
employees voted that they no longer wished to be represented by the
Steelworkers, AMF withdrew recognition of the Union. On the Union's charges
of unfair labor practices, the NLRB found that, although AMF bargained in
good faith, its declaration of an impasse was premature. Accordingly, the Board
concluded that AMF's subsequent acts violated sections 8(a)(5) and (1) of the
National Labor Relations Act.

Because we conclude that the Board failed to recognize that the parties had
reached a valid impasse, we grant AMF's petition for review and deny the
Board's cross-petition to enforce its order.

* Minstar, Inc. sold its AMF Bowling Division to private investors in August
1986. The division, which became AMF Bowling Company, Incorporated,
manufactured bowling pins and lanes at its plant in Lowville, New York, and
related equipment at its plant in Shelby, Ohio. After taking over AMF in
November 1986, the new owners sought to reverse $7 million in losses suffered
in 1986 at the two plants and to make the company competitive. They cut
expenses by $10 million and laid off 172 salaried non-bargaining unit
employees. A few months before selling the Bowling Division of AMF,
Minstar had successfully negotiated a 24% wage cut and 14% benefit cut for
the employees at the Shelby plant. The new owners likewise sought to reduce
the labor costs fixed by the collective bargaining agreement with the union
employees at the Lowville plant, whose wages exceeded those in the relevant
job market. With the collective bargaining agreement governing those wages
scheduled to expire on December 8, 1986, the new owners believed that the
Lowville employees should bear their share of cost reductions.

AMF's objectives for negotiations with the Lowville employees were to reduce
the weighted average wage from $9.00 per hour to a level between $7.50 and
$8.00 per hour, and to reduce the cost of benefits. With the Shelby agreement in
mind, the new owners expected that the Union would agree to some wage
concessions, reducing AMF's existing labor expenses.

Shortly before the new owners took over AMF, the Union notified the
company that it was terminating the existing collective bargaining agreement,
which expired December 8, 1986, and was requesting bargaining on a new
agreement. And after the new owners took over, the Union's negotiator
informally introduced himself to bargaining representatives of the new owners
and expressed the hope that the deep cuts agreed to by the parties at the Shelby
plant would not be sought at the Lowville plant.
In addition to various informal telephone discussions, the parties conducted
seven formal negotiating sessions in December 1986 and January 1987--on
December 3 and 16, 1986, and January 6, 7, 8, 14, and 15, 1987. When the
parties adjourned on January 15 with AMF's final wage offer on the table but
with no agreement that further bargaining would take place, AMF sent the
Union a telegram dated January 16 declaring an impasse:

7
EFFECTIVE
AT MIDNIGHT TUESDAY, JANUARY 20 1987 THE FINAL
OFFER WHICH WAS PRESENTED TO THE STEELWORKERS ON JANUARY
14 1987 EXPIRES. UNLESS THE UNION AGREES TO BREAK THE IMPASSE
EXISTING BETWEEN THE PARTIES AND ACCEPT AMF'S FINAL
CONTRACT PROPOSAL PRIOR TO MIDNIGHT JANUARY 20 1987 AMF
BOWLING AT THAT TIME WILL IMPLEMENT THE WAGES AND
BENEFITS PRESENTED ON JANUARY 14 1987.
8

On January 20, 1987, the Lowville employees voted unanimously to reject

AMF's final offer, first made on January 14, and the next day AMF
implemented that proposal.

The impasse declared by AMF was based on the parties' alleged inability to
agree on any wage concessions, i.e. a reduction in the average wage rates. The
positions taken by the parties throughout the negotiating sessions on this issue
are essentially uncontroverted.

10

At the first session on December 3, the Union proposed a two-year agreement

with 8% wage increases each year and increased benefits. AMF responded that
it was a new and smaller company that needed to be more competitive and
therefore would be seeking wage and benefit cuts. The Union countered by
demanding that the company open its books if it was going to seek wage cuts.
AMF explained that it was not claiming an inability to pay, which would have
triggered the Union's right to review the books. Rather, the company claimed
that the wages it was then paying were too high and had to be cut for the
company to become competitive. At this session, the parties agreed to extend

the existing collective bargaining agreement, which was set to expire on

December 8, for an additional month until January 8, 1987, to allow additional
time for bargaining.
11

At the next bargaining session on December 16, AMF presented the general
proposal that had been agreed to at the Shelby plant, which involved a 24%
wage reduction and a 14% cut in benefits. The Union responded that if the
company wanted wage cuts, it would have to open its books and "prove" that it
needed the wage cuts. AMF explained that it was not "pleading poverty," but
rather was seeking to pay market-rate wages. The Union responded that it
would reduce its proposal from an 8% increase the first year to a 6% increase
and suggested that the parties consider profit sharing.

12

The third bargaining session took place on January 6, 1987, when the company
repeated that it needed wage concessions, arguing that cuts had already been
made elsewhere throughout the company. The Union responded that the
Lowville plant should not be responsible for mismanagement in other parts of
the company. The Union representative then added, "I've talked to our people
in Pittsburgh and we are not authorized to engage in any concessionary
bargaining unless the company opens up its books.... [W]e're not entertaining
concessions unless you open up the books." The discussions then turned to noneconomic proposals.

13

Bargaining resumed the next day on January 7, and the company presented its
first specific wage proposal representing a weighted average wage rate of $6.72
per hour, which represented significant wage cuts. The Union responded that it
would consider accepting some proposed benefit reductions if AMF would
reconsider its demand for wage reductions. The Union indicated that it would
agree to no less than a wage freeze for the first year of a new contract and an
increase of 3% in the second year. When AMF repeated its need for wage
concessions, the Union reiterated that it would not accept anything below
current wages in the first year. It also repeated its demand to see the company's
books.

14

Bargaining continued at the session on January 8, during which the Union

repeated that "wages would remain the same ... we are not addressing wage
decreases." AMF nevertheless left the Union with a two-year proposal that
included a weighted hourly wage of $7.10 per hour. The Union did not make a
counterproposal; rather, its representative indicated that since the contract was
ending that day, the Union would vote on what AMF had presented.

15

That evening, the Union voted unanimously to reject AMF's proposals, but they

15

That evening, the Union voted unanimously to reject AMF's proposals, but they
also voted against striking. Thereafter, the Union requested a further extension
of the existing collective bargaining agreement, a request which AMF denied.

16

After a cooling-off period proposed by the federal mediator, bargaining

resumed on January 14, 1987. At that meeting the Union stated that it "can't
move on wages.... [F]rom the very beginning we made it perfectly clear that we
were not even going to take any concessions. We need to have that wage freeze
the first year." Without any movement from the Union, AMF submitted its
second increase and its last offer, increasing its weighted wage offering from
$7.10 to $7.34 per hour with a 3% increase in the second year. The Union
continued to state that a wage freeze with a 3% increase in the second year was
the lowest it would go.

17

The last bargaining session before AMF declared an impasse was held on
January 15, 1987. Before that meeting, the federal mediator privately advised
AMF of his understanding that the Union had "a dollar to give." At the session
on January 15, therefore, AMF sought to elicit that concession by asking
whether there were any noneconomic concessions it could make in exchange
for a wage cut. The meeting recessed without any agreement or movement on
the wage concessions, and no future bargaining sessions were scheduled.

18

The next day, January 16, AMF sent a telegram to the Union stating that unless
it agreed to break the impasse before midnight on January 20, AMF would
implement the last offer it made to the Union. The Union responded that same
day, accusing AMF of unlawfully refusing to open its books and declaring that
there was no good faith impasse. The Union indicated that it was ready to meet
with AMF at any time. Four days later, on January 20, the Union submitted
AMF's latest proposal to its membership, and the membership unanimously
rejected the offer. The next day, the company implemented this latest offer.

19

The parties met twice thereafter to reopen the bargaining, but without success.
On May 28, 1987, bargaining-unit employees at Lowville presented AMF with
a petition signed by approximately 70% of their members, stating, "We do not
want the United Steelworkers of America to represent us at AMF Lowville
plant anymore." AMF thereafter withdrew recognition of the Union.

II
20

On January 22, 1987, one day after AMF implemented its last offer of $7.34 per
hour, the Union filed an unfair labor practice charge against AMF with the
National Labor Relations Board. The Union contended that AMF committed

unfair labor practices by refusing to permit the Union to examine the company's
financial records, refusing to bargain in good faith, engaging in "surface
bargaining," unilaterally changing wages and other terms and conditions of
employment without reaching a good faith impasse, and advising employees
that if they rejected the company's last contract proposal they would be without
union representation. The Regional Director filed a complaint, based on these
charges, on September 16, 1987, alleging that AMF had violated sections 8(a)
(5) and (1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5), (1).
21

Several months after filing its first charge, on September 21, 1987, the Union
filed another charge alleging that AMF committed an unfair labor practice by
withdrawing recognition of the Union and refusing to meet and bargain in good
faith. This charge was amended on September 28, 1987, to add allegations that
AMF unilaterally changed the terms and conditions of employment and dealt
directly with the employees. The Regional Director filed a second complaint
against AMF, consolidated it with the first complaint, and scheduled a hearing.
Following a lengthy trial, the Administrative Law Judge (ALJ) concluded that
AMF's conduct "establishe[d] conclusively an attempt by the new owners to rid
itself [sic] of the Union which had been the collective bargaining representative
of the unit employees for over 20 years." The ALJ found that AMF's refusal to
provide wage surveys and information to justify its proposals in time for the
Union to evaluate such proposals constituted evidence of bad faith. He also
found AMF's declaration of impasse to be premature and to evidence bad faith
bargaining. The ALJ concluded:

22
Based
on Respondent's proposals, and its actions and conduct at the bargaining table
alone, I conclude Respondent bargained in bad faith with no intention of reaching an
agreement with the Union.... In view of Respondent's bad-faith bargaining I find that
no impasse can be reached. Oak Rubber Co., 277 N.L.R.B. 1322, 1985 WL 46151
(1985).
23

Reviewing the ALJ's opinion, the NLRB agreed that the impasse on the
economic package was invalid because AMF refused to provide a wage chart to
the Union to justify the company's demand for wage concessions. The Board
concluded that this refusal was a specific act of bad faith bargaining in violation
of Sec. 8(a)(5) and therefore that the subsequent impasse was not in good faith
because it resulted from bad faith bargaining. The Board did not review either
the ALJ's findings that AMF engaged in bad faith bargaining generally or that
AMF's declaration of an impasse was premature. A.M.F. Bowling Co., 303
N.L.R.B. 167, 1991 WL 135220 (1991).

24

On appeal to this court, we rejected the premise of the Board's holding that bad

faith bargaining could be predicated on AMF's refusal to produce a wage chart

when one was never specifically requested. We concluded additionally that
there was no evidence in the record "that the Union disbelieved AMF's claim
that wages at Lowville were above market, or that it disputed AMF's point that
the company's previous owners had recently negotiated a collective bargaining
agreement with the Shelby workers in which they agreed to a twenty-four
percent wage cut." AMF Bowling Co. v. NLRB, 977 F.2d 141, 147 (4th
Cir.1992) (" AMF I "). We therefore reversed the Board and remanded the case
to the Board to determine (1) whether AMF's overall behavior during the
negotiations leading to the impasse on the economic package constituted
general bad faith bargaining, and (2) whether AMF's declaration of an impasse
was premature. Id. at 149.
25

On remand, the Board reviewed the record in detail, analyzing each act of bad
faith attributable to AMF, and concluded that the Union had failed to
demonstrate any evidence of bad faith on the part of AMF. A.M.F. Bowling
Co., 314 N.L.R.B. No. 160, slip op. at 9, 1994 WL 478490 (Aug. 31, 1994). On
the contrary, the Board observed that AMF responded promptly to the Union's
request for bargaining and acted reasonably in meeting with the Union on seven
occasions during December 1986 and January 1987. In addition, the Board
noted that there were both private telephone calls and conference calls between
the parties. The Board stated that there was no evidence that AMF "refused to
conduct negotiations in a 'business-like manner.' " Id. In summarizing its
conclusions about AMF's conduct throughout the negotiations, the Board
concluded:

26 disagree with the [administrative law] judge's finding that the Respondent
[W]e
engaged in a campaign to undermine the Union. Examining the Respondent's
conduct prior to its declaration of impasse on January 16, there is no evidence of
animus or pre-impasse conduct away from the bargaining table establishing an intent
by the Respondent to frustrate agreement.
***
27
28 do not agree with the judge that the Respondent has demonstrated the kind of
[W]e
intransigence and insistence on its own proposals that evidences bad faith.
Accordingly, we reverse the judge's finding that the Respondent violated Section
8(a)(5) and (1) of the Act by bargaining in bad faith prior to its declaration of
impasse.
29

Id. at 9-10.

30

Pointing to movement by the Union on benefits issues prior to January 16,

30

Pointing to movement by the Union on benefits issues prior to January 16,

1987, the Board concluded that, even though the evidence indicated that the
Union would not consider any wage concessions unless AMF opened its books,
the Union's flexibility on benefits revealed that its demands for AMF's financial
records did not impose "immutable barriers" to agreement. Id. at 11. The Board
also recited the federal mediator's comment to the effect that the Union had
authority to agree to a $1.00 per hour wage cut. Id. Based on this evidence, the
Board adhered to its earlier position that AMF's declaration of an impasse was
premature. Id. Accordingly, it found that the acts taken by AMF in reliance on
its declaration of impasse violated Sec. 8(a)(5) and (1) of the Act. Id. at 11-12.

31

In its petition for review of this last Board decision, AMF contends that the
Board's conclusion that the impasse was premature is not supported by the
record. Therefore, AMF maintains that the violations of the Act, which were
premised upon an invalid declaration of impasse, must be reversed. The Board
filed a cross-petition to enforce its order. We are thus presented with the issue
of whether the record supports the Board's conclusion that AMF's declaration
of impasse was premature.

III
32

Section 8(a)(5) of the National Labor Relations Act makes it an unfair labor
practice for an employer "to refuse to bargain collectively with the
representatives of his employees." 29 U.S.C. Sec. 158(a)(5). Defining the
obligation "to bargain collectively," section 8(d) of the Act requires, among
other things, that the employer and employees "meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms and
conditions of employment ... but such obligation does not compel either party to
agree to a proposal or require the making of a concession." 29 U.S.C. Sec.
158(d). See generally NLRB v. American National Insurance Co., 343 U.S.
395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). Because the duty to bargain does not
impose an obligation to agree, at some point during bargaining a party can
conclude that further meetings and discussions will not produce an agreement
and can declare that an impasse has been reached. If the party declaring an
impasse does so in good faith and its conclusion is justified by objectively
established facts, then the duty to bargain is satisfied. See Laborers Health and
Welfare Trust Fund for Northern California v. Advanced Lightweight Concrete
Co., 484 U.S. 539, 544 n.5, 108 S.Ct. 830, 833 n.5, 98 L.Ed.2d 936 (1988).
When the parties are thus without a collective bargaining agreement, having
made good faith efforts to reach one, the employer may impose its own terms
and conditions of employment unilaterally. See id. On the other hand, if the
employer declares an impasse prematurely or in bad faith, the employer thereby
fails to satisfy the duty to bargain and exposes itself to the charge that it

committed an unfair labor practice in violation of sections 8(a)(5) and (1) of the
Act.
33

Against this doctrinal framework, we address the question of whether AMF

improperly refused to bargain when it declared an impasse on January 16,
1987, and thereafter unilaterally implemented its last offer.

IV
34

Bearing significantly on our analysis in this case is the Board's finding that
AMF bargained in good faith before it declared an impasse. This good-faith
finding is a powerful fact in favor of AMF, a fact from which we may infer that
AMF made a bona fide effort to reach agreement prior to January 16, that it
was honest in its negotiating positions, and that it did not act out of any motive
contrary to its stated desire to negotiate a new contract, such as a desire to
undermine the Union or the negotiations. We should therefore consider the
validity of the impasse declared in the light of the Board's conclusion that AMF
was bargaining in good faith.

35

The impasse declared by AMF was defined by the company's expressed need
for wage concessions to remain competitive and by the Union's refusal to
discuss wage concessions. It was clear from the historical context--heightened
competition in the industry, past year losses, company restructuring, the abovemarket rates at Lowville, and the collective bargaining agreement in Shelby,
Ohio--that AMF's sole objective was to reduce its labor costs at the Lowville
plant. AMF expressed this objective to the Union at the parties' first
introduction. Understandably, forestalling any wage reduction became the
Union's primary concern. This issue was thus framed at the first negotiating
session, and it remained the principal impediment to agreement thereafter.

36

Whether out of an honest conviction or simply as a negotiating tactic, the

Union stated that (1) it would not discuss wage concessions unless the company
opened its books, and, moreover, (2) it was unauthorized by "Pittsburgh" to
discuss wage concession without reviewing the company's books. Even though
the demand to review the books was later recognized to be an improper one, it
nevertheless formed the basis for the Union's refusal to discuss wage
concessions. It is uncontested that the Union never discussed a wage
concession of any amount, nor did it ever expressly suggest to AMF that this
topic was open for discussion.

37

Against these uncontroverted facts, the Union points to its movement on non-

wage issues and on wage increases during the bargaining sessions as evidence
that an impasse had not been reached. Indeed, it was this movement that
formed the basis for the Board's conclusion that bargaining had not been
exhausted when AMF declared an impasse. When, however, we examine the
facts with an eye to the parties' positions on the critical wage-concession issue,
the only conclusion that can be reached is that the parties were hopelessly
deadlocked on January 15, 1987.
38

AMF's opening request to the Union on December 3, 1986, was that the Union
agree to match the 24% wage concession that the bargaining unit at the Shelby
plant had accepted. In its first specific wage proposal, presented on January 6,
1987, AMF offered an average weighted wage of $6.72 per hour. On January 7,
it offered $7.15. Finally, without any Union movement on wage concessions,
AMF offered $7.34 on January 14. The Union voted twice to reject the offers,
but it never made a counterproposal to move from its position that it would not
discuss any wage concession.

39

Even though the Union moved from its initial position demanding an 8% wage
increase for the first year to one demanding a 6% increase, it never wavered
from its opposition to ever granting a wage concession, i.e. a wage reduction.
At most, it would agree to a wage freeze. Moreover, the Union never gave any
indication that it would so much as discuss a wage concession. At the first
session, the Union stated that it did not have authority to negotiate a concession
without reviewing AMF's books, and it reiterated this position every time
wages were discussed. The Union representative made this point explicit,
stating, "if you're going to seek wage cuts, we want you to open your books to
us." Indeed, the first unfair labor practice charge filed with the NLRB after
AMF implemented its final wage offer was based on AMF's refusal to permit
the Union "to examine its financial records." When AMF bid against itself,
increasing its offer twice without any indication from the Union that it would
agree to a wage concession, it concluded that its third bid would be its final one.
When AMF announced its final position, the Union responded on January 20,
voting to reject AMF's final offer without submitting any counterproposal.

40

The only fact in the record weighing in the Union's favor is the federal
mediator's communication to AMF relating his understanding that the Union
negotiating committee was authorized to accept a $1.00 wage cut. In order to
elicit movement in view of this possibility and, indeed, to determine whether
the Union in fact had such authority, AMF thereafter inquired whether there
were any non-economic proposals it could accept to entice the Union to agree
to a wage cut. When the Union failed to respond, the company sent the Union a
telegram indicating that AMF's last offer of January 14 was its final one and

that it believed the parties had reached an impasse. Rather than countering in a
manner suggesting to AMF that the Union might be willing to move on a wage
concession, the Union voted unanimously on January 20 to reject the
company's January 14 offer. On January 21, the day after the vote, the
company unilaterally implemented its final offer.
41

Against this factual background in which the Union continually reinforced its
unwillingness to discuss wage concessions with the assertion that wage
concessions were beyond the local's negotiating authority, we must conclude
that AMF's declaration of an impasse after three wage bids without a
counterproposal for a wage cut was objectively reasonable. The validity of the
impasse is further confirmed by the Union's improper demand to view the
company's books as a condition to any movement on the wage concession
issue. Indeed, AMF's failure to acquiesce to this demand formed the basis for
the Union's first unfair labor charge. That claim, however, was dismissed by
the Regional Director and never pursued further. See Concrete Pipe & Products
Corp., 305 N.L.R.B. 152, 1991 WL 203809 (1991), enf'd sub nom. United
Steelworkers of America v. NLRB, 983 F.2d 240 (D.C.Cir.1993). Instead, the
Union pursued a claim that AMF illegally withheld a market wage data chart it
had prepared. Therefore, the Union contended that its firm position was
justified, as AMF's refusal to provide the chart revealed bad faith. In AMF I,
however, we rejected that claim and remanded the case to determine whether
any other aspect of bargaining justified a finding of bad faith or whether the
impasse was valid. See AMF I, 977 F.2d at 146-47.

42

In summary, in the context of (1) the Board's finding that AMF bargained in
good faith; (2) the unjustified refusal on the part of the Union to discuss wage
concessions; and (3) three company bids for successively smaller wage cuts
without any movement on the wage-concession issue by the Union, we
conclude that AMF properly declared an impasse and that, after the Union
voted down AMF's final proposal, AMF properly implemented the terms and
conditions included in its last offer. In reaching a contrary conclusion, the
Board misunderstood the requirements for finding a premature impasse and
failed to follow its holding in Concrete Pipe and Products Corp.

43

An impasse is that point in negotiations when the parties, in good faith, are
entitled to conclude that further bargaining would be futile. See E.I. DuPont
DeNemours & Co., 268 N.L.R.B. 1075, 1984 WL 36073 (1984); Pillowtex
Corp., 241 N.L.R.B. 40, 46, 1979 WL 9593 (1979), enf'd, 615 F.2d 917 (5th
Cir.1980). The judgment of whether further negotiations would be futile must
be viewed from the vantage point of the parties at the time they believed an
impasse was reached. See Excavation-Construction, Inc. v. NLRB, 660 F.2d

1015, 1020 (4th Cir.1981). An impasse is not demonstrated simply when one
party's concessions are not thought to be adequate or when frustration in the
movement in negotiations has reached a subjectively intolerable level. The
policy of the National Labor Relations Act is to encourage negotiation and to
give the bargaining process a chance to work, even if the chance for success is
remote. See NLRB v. Plymouth Stamping Div., Eltec Corp., 870 F.2d 1112,
1117 n.2 (6th Cir.), cert. denied, 493 U.S. 891, 110 S.Ct. 235, 107 L.Ed.2d 186
(1989).
44

The parties, however, need not pursue negotiations simply to go through the
motions when there is no objectively reasonable hope of reaching an
agreement. While the Act encourages agreement, it does not require it; any
agreement must be the product of the parties' free will exercised in furtherance
of their good faith interests. Moreover, bad faith is not evidenced by a failure to
reach agreement or by a failure to yield to a position fairly maintained. See
United Steelworkers of America v. NLRB, 983 F.2d 240, 245 (D.C.Cir.1993).
Since the Act imposes only a duty to bargain, see 29 U.S.C. Secs. 158(a)(5) &
(d), that duty may be satisfied when the parties in good faith reach a point in
their discussions where further meetings and discussions objectively appear to
be futile.

45

The inquiry into whether the parties reached a good faith impasse is often
factual, and when it is, we defer to the Board. See 29 U.S.C. Sec. 160(e);
Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456
(1951). In this case, however, the facts are not in dispute. Moreover, it is
particularly significant to our analysis that the Board has removed, through its
findings, the possibility that the company's negotiating positions were
pretextual for some unstated motive and found, on the contrary, that the
company conducted its negotiations in good faith. While the Board noted
movement in the discussions, from which it concluded that the declaration of
an impasse was premature, it relied on movement on collateral issues which
could not overcome the fundamental disagreement on wage concessions that
actually formed the basis for the impasse. The Board did not focus on the
evidence in the record relating to negotiations on a wage concession, which was
the principal objective of the company and the point on which the Union would
not yield. Indeed, the company made an effort to strip away all other issues, by
conceding them, and to isolate the one overarching dispute about a wage
concession to determine whether there was any possibility that the Union
would eventually accept a concession. The record, without exception, reveals
that the Union never gave AMF any hope that the barrier to wage cuts could be
overcome by further bargaining. AMF had moved from wage offers of $6.72
per hour to $7.15 per hour to $7.34 per hour, without any Union

counterproposal for a wage cut. Without any Union movement on a wage cut in
response to the company's three separate proposals--each more beneficial to the
Union than the preceding--we find it objectively reasonable for AMF to have
concluded that further bids would fail to elicit any wage cut proposal from the
Union. Not only did the Union fail to manifest any hope of movement, it
conveyed the message that the local's negotiating committee was without
authority even to negotiate on wage concessions.
46

In affirming AMF's declaration of an impasse, we do not rely solely on the lack

of movement by one party. It is also important that the Union's stated reason
for refusing to discuss wage cuts was an improper one. From the outset,
beginning at the December 3 bargaining session, the Union stated that it would
not discuss wage cuts unless the company opened its books. Later, it also stated
that "Pittsburgh" gave that same reason for directing the local to refuse to
discuss wages. Yet, it is uncontested that AMF never pleaded poverty or
claimed an inability to pay current or even higher wages. Rather, AMF stated
that wages currently paid were above those paid in the relevant job market, that
the Shelby plant had agreed to reduce labor costs, and that the company needed
similar concessions at the Lowville plant to remain competitive. In light of the
company's stated reasons for seeking wage concessions, its financial records
were irrelevant.

47

The Board's recent decision in Concrete Pipe and Products Corp., 305 N.L.R.B.
152, 1991 WL 203809 (1991), enf'd sub nom. United Steelworkers of America
v. NLRB, 983 F.2d 240 (D.C.Cir.1993), provides strong support for the
principle that a union's unfailing insistence on economic data, when the union
has no right to that data, may give rise to an objectively reasonable declaration
of impasse. In Concrete Pipe, the company sought wage concessions of
approximately 33% and reductions in benefits of approximately 50% to
maintain its competitiveness. The company stated simply that "to be
competitive, wage rates and benefits must be lowered." 305 N.L.R.B. at 152.
The company did not claim that it could not afford the current wages or that it
was at risk of closing down. The Union requested economic information to
justify the company's position on wage cuts and would not agree to any
concessions "without access to the company's financial records." Id. at 153. The
Board concluded that an impasse had been reached and that the company was
thereafter entitled to implement unilaterally its final proposals. The Board
rejected the claims that the company negotiated in bad faith and prematurely
declared an impasse. Id. at 153-54. We believe that the circumstances in
Concrete Pipe are persuasively analogous to those before us.

48

Accordingly, we conclude that the Board erred in failing to recognize that the

basis for AMF's declaration of an impasse was the Union's lack of movement
on wage concessions and the absence of any indication by the Union that a
wage reduction might be forthcoming through further bargaining. Since all of
the alleged unfair labor practices at issue flowed from the Board's conclusion
that AMF's declaration of an impasse was premature, we grant AMF's petition
for review and deny the Board's cross-petition to enforce its order.
49

IT IS SO ORDERED.
BUTZNER, Senior Circuit Judge, dissenting:

50

The Board relied on the following facts to support its conclusion that there was
no valid impasse when the company implemented the economic terms of its
January 14 offer. See AMF Bowling Co., 314 NLRB 969, 978-79, 147 LRRM
1250, 1259-61, 1994 WL 478490 (1994).

51

* Although the parties met seven times in December and January, the company
presented only a general economic proposal on December 16. At that time, the
company negotiator had not yet become familiar with the existing contract.

52

* The various economic proposals that the company presented on January 7, 8,

and 14 differed from the existing wage and grade classification system. These
proposals also differed from each other with respect to the number of job
grades, the classifications in each grade, and the wage rates in each grade.

53

* The union demonstrated flexibility. It moved from requesting an eight percent

increase to a six percent increase.

54

* The union stated that it would consider benefit reductions if the company
would reconsider its demand for reduced wages.

55

* The union also proposed a bifurcated wage structure involving a wage freeze
for current employees and a wage reduction for new hires. Later it offered to
accept a wage freeze and to move on economic benefits if the company would
agree to the retention of the union security clause.

56

* On January 8, the union agreed to accept the company's benefit package in

exchange for a first-year wage freeze in lieu of cuts.

57

* The union also raised the possibility of implementing a profit sharing

program.
58

* The company unjustifiably did not explore the union's offers to discuss
potential tradeoffs for wage reductions.

59

* On January 15, the union did not indicate that no further concessions could be
expected.

60

* By January 15, the company had not yet furnished requested information
regarding its pension and health insurance plans.

61

* The company also had failed to furnish information about job classifications
that the company had eliminated.

62

* The company refused without explanation to consider profit sharing.

63

* The company also failed to settle the duration of the contract that it proposed,
and this omission precluded final resolution of the company's economic
package.

64

* With respect to the company's final offer of January 14, the union was trying
to determine how the new classifications in the proposal would affect benefits
and other terms and conditions of employment, such as bumping and bidding
rights.

65

* Further bargaining was required to provide the union a basis for

understanding the new classifications.

66

* On January 14, the mediator told the company that the union was prepared to
take a wage cut of a dollar an hour.

67

* On January 16, the company declared an impasse, and on January 21, it

implemented the provisions of its January 14 offer.

68

The Board's factual findings are supported by substantial evidence on the

record as a whole. Consequently, they are conclusive. 29 U.S.C. Sec. 160(e).
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488, 71 S.Ct. 456, 459,
464, 95 L.Ed. 456 (1951). The Board's conclusions of law should be accepted
whenever "its construction of the statute is reasonably defensible." Ford Motor
Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979).

69

A party can declare an impasse and implement unilateral terms of employment

only if there is "no realistic prospect that continuation of discussion would [be]
fruitful." NLRB v. WPIX, Inc., 906 F.2d 898, 901 (2d Cir.1990) (internal
quotation marks and citation omitted). To insure the integrity of collective
bargaining, proof of an impasse must be clear. Bolton-Emerson, Inc. v. NLRB,
899 F.2d 104, 108 (1st Cir.1990).

70

Deciding whether an impasse exists requires assessment of the facts and

complexities of the bargaining process, a function especially dependent on the
Board's expertise. "Few issues are less suited to appellate judicial appraisal than
evaluation of bargaining processes or better suited to the expert experience of a
Board [that] deals constantly with such problems." Bolton-Emerson, Inc., 899
F.2d at 108; see NLRB v. Plainville Ready Mix Concrete Co., 44 F.3d 1320,
1326 (6th Cir.1995). Speaking in the context of multi-employer bargaining, the
Supreme Court observed in a statement that is applicable to the controversy
before us that "assessing the significance of impasse and the dynamics of
collective bargaining is precisely the kind of judgment that ... should be left to
the Board." Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404, 413,
102 S.Ct. 720, 725, 70 L.Ed.2d 656 (1982).

71

Cases upholding the Board's decisions about impasses are legion. Most are fact
bound, but in each are found the governing principles that I have cited. Perhaps
for our purposes the most fitting illustration of proper appellate review is found
in an opinion that Judge Haynsworth wrote for our court. In that case after
extended bargaining and mutual suspension of negotiations, the union requested
resumption of meetings in a letter to the company, making some substantial
concessions, but saying nothing about its adamant demand for a check-off. The
company rejected the request for a meeting. The Board faulted the company.
Referring to the company's argument that the Board could not have reasonably
expected the company to accept the union's modified proposal in view of the
union's failure to suggest any concession in its demand for a check-off, the
court stated:

72

This, we think, is beside the point. When the union tendered some concessions,
the employer might reasonably be required to recognize that negotiating
sessions might produce other or more extended concessions. That is the
purpose of collective bargaining. By July, it was readily apparent to the union
that the impasse could be broken only by concessions on its part, but it would
be extraordinary to suppose that it would do so then in terms of an ultimatum,
or that its initial modification of its demands would go to the ultimate limits of
its possible agreement.

73

Since the union's concessions in July 1964 cannot be said to have been trivial or
meaningless, we think it was for the Board to say whether or not they were of
such substantiality as to relieve the impasse and to open a ray of hope with a
real potentiality for agreement if explored in good faith in bargaining sessions.

74

NLRB v. Webb Furniture Corp., 366 F.2d 314, 316 (4th Cir.1966). While not
exact, the resemblance to the case before us is striking. As the Board pointed
out, the union made substantial concessions. Specifically, the union's position
about accepting a significant cut in pay that the mediator conveyed to the
company "opened a ray of hope" concerning the possibility of reaching an
agreement.

75

One other point deserves mention. The company relies heavily on Concrete
Pipe and Products Corp. v. NLRB, 305 NLRB 152, 1991 WL 203809 (1991),
enf'd sub nom. United Steelworkers v. NLRB, 983 F.2d 240 (D.C.Cir.1993).
That case bears many similarities to the case before us, but on the most critical
aspect, the cases differ, as the Board pointed out. In Concrete Pipe the union
unjustifiably refused to discuss wage reduction unless the company opened its
books. The company declared an impasse, and both the Board and the
reviewing court upheld the declaration. Ironically, the cornerstone of the
reviewing court's decision was the deference due the Board on the issue of
impasse. The court said with respect to the union's arguments against finding an
impasse: "We do not find these arguments weighty enough to overcome the
deference we give Board determinations concerning impasse." 983 F.2d at 246.
The company's brief, although pressing the court's opinion in Concrete Pipe
upon us, does not deign to quote this passage.

76

In the case before us, the union also unjustifiably demanded examination of the
company's books when the company had not pled inability to pay. But in
contrast to the situation in Concrete Pipe, the Board found that the demands for
financial information were not "immutable barriers to the union's agreement to
make concessions." 314 NLRB at 979, 147 LRRM at 1261. This finding is
amply supported by the evidence. The union made significant wage
concessions for new hires, and it retreated from its demand for a pay increase to
a pay freeze depending on modification of the company's noneconomic
proposals. And significantly, the mediator advised the company on January 14
that the union was prepared to take a wage cut of a dollar. The Board noted that
the company negotiators were annoyed that on January 15 the union did not
actually make such an offer. Nevertheless, in the words of the Board, "it was
not clear that further bargaining would be futile, i.e., that the Union would
make no further movement on items important to the Respondent and that the

parties had exhausted the prospects of concluding an agreement." (internal

quotation marks and citation omitted). 314 NLRB at 979, 147 LRRM at 1261.
77

The Board's comment is particularly telling because of the short time the
parties bargained before the company declared an impasse. Although nominally
the bargaining extended over a period of about 30 days, realistically it did not
get underway until January 7. The company declared the impasse nine days
later on January 16, after only four substantial bargaining sessions.

78

Considering the evidence that undergirds the Board's decision, and according
the Board the deference that is due in matters of this nature, I am persuaded that
substantial evidence supports the Board. Because the company's declaration of
an impasse was premature, its subsequent refusal to bargain and unilateral
implementation of terms and conditions of employment violated the Act.
Dissenting, I would enforce the Board's order.