06/15/2025: DC Circuit Finds Impasse Where NLRB Did Not
The court also affirmed that a suspiciously-timed layoff notice violated the NLRA.
Troy Grove v. NLRB, 23-1164 (DC Circuit)
The D.C. Circuit Court ruled on June 13, 2025, addressing petitions from RiverStone Group divisions (Troy Grove and Vermilion Quarry) and a union (International Union of Operating Engineers, Local 150), along with the NLRB's cross-application to enforce its order.
The case involved two issues: whether the company committed unfair labor practices during pension fund negotiations, and whether its treatment of two employees violated labor law.
Regarding negotiations, the company sought to withdraw from a pension fund after learning its liability had increased from $964,000 to $1,353,000. After two years of unsuccessful negotiations, employees went on strike for three years. In July 2021, when negotiations resumed, neither side would accept the other's position on pension contributions.
The NLRB ruled the company bargained in "bad faith" by threatening to cease pension contributions, claiming the parties weren't at an "impasse." The court disagreed, finding substantial evidence of an impasse after five years of negotiations, 26 face-to-face meetings, and a three-year strike. The court rejected as "irrational" the NLRB's reasoning that both parties must agree an impasse exists, noting a union would rarely acknowledge an impasse since it allows employers to implement their last offer.
On the second issue, the court upheld the NLRB's finding that the company violated Section 8(a)(1) when it issued layoff notices to two employees immediately after they served as union observers at a decertification vote. Though quickly rescinded, the notices disregarded seniority, came without explanation, and reasonably appeared to interfere with protected union activity.
The court granted the company's petition regarding the pension fund negotiations, vacating the NLRB's order in part, but denied the petition and enforced the NLRB's order regarding the employee layoff notices.
Significant Cases Cited
Brown v. Pro Football, Inc., 518 U.S. 231 (1996): Recognized that the "use of impasse" is a legitimate "bargaining tactic."
Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404 (1982): Defined "impasse" as "a recurring feature in the bargaining process" that is "a temporary deadlock or hiatus in negotiations."
Mike-Sell's Potato Chip Co. v. NLRB, 807 F.3d 318 (D.C. Cir. 2015): Held that a union's denial that an impasse exists does not rebut an impasse.
Thrifty Payless, Inc. v. NLRB, 86 F.4th 909 (D.C. Cir. 2023): Explained that unions almost never declare impasse as it enables employers to implement their last offer.
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998): Established that the Board must draw all inferences that evidence demands under substantial evidence review.