10 Roads Express, LLC

372 NLRB No. 105 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. 10 Roads Express, LLC and International Brother- hood of Teamsters, Local 727. Case 13–CA– 283747 July 14, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY The Union, the International Brotherhood of Teamsters, Local 727, filed a charge with the Board on September 30, 2021, and amended it on February 2, 2022. Based on the charge, on February 4, 2022, the General Counsel issued a complaint and notice of hearing. The complaint alleges that the Respondent, 10 Roads Express, LLC, violated Section 8(a)(3) and (1) of the National Labor Relations Act by discriminatorily withholding a wage increase from unionized employees and violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Un- ion concerning the wage increase. On February 18, 2022, the Respondent filed an answer denying the commission of any unfair labor practices. On May 11, 2022, the Respondent, the Union, and the General Counsel filed a joint motion to waive a hearing by an administrative law judge and to submit this case to the Board for a decision based on a stipulated record. On July 6, 2022, the Board granted the parties’ joint motion. Thereafter, the Respondent, the Union, and the General Counsel filed opening and responsive briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On the entire record and briefs, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation with an office and place of business in Carter Lake, Iowa, is in the business of in- terstate transportation services throughout the United States, including in Illinois. In conducting its annual op- erations, the Respondent purchases and receives goods, products, and services valued in excess of $50,000 directly from outside Illinois. At all material times, the Respond- ent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times, the Union has been a labor organ- ization within the meaning of Section 2(5) of the Act. 1 All dates hereinafter are in 2021. II. ALLEGED UNFAIR LABOR PRACTICE ALLEGATIONS A. Stipulated Facts The Respondent contracts with the United States Postal Service to haul mail. It is subject to the Service Contract Act, 41 U.S.C. § 6701 et seq., pursuant to which the De- partment of Labor determines a wage floor for its employ- ees. In its Chicago region it has five facilities. At two of them, Bedford Park and Romeoville, its employees have been represented by the Union since 2020. At the other three, Chicago O’Hare, Carol Stream, and Aurora, its em- ployees are not unionized. On August 16, 2021,1 as bargaining for an initial collec- tive-bargaining agreement was ongoing, the Respondent notified the Union that, effective August 29, because of “present market and labor shortages,” its unrepresented Chicago region employees would be receiving a $3.81 hourly “emergency” wage increase above the mandated wage floor, “subject to downward adjustment as market conditions change.” The Respondent sought the Union’s consent to implement the wage increase for the repre- sented employees at Bedford Park and Romeoville. In re- sponse, the Union sought to agree to the wage increase ab- sent the condition that the Respondent could unilaterally reduce or eliminate it. The Union also accused the Re- spondent of seeking to condition acceptance of the wage increase on the Union also accepting the Respondent’s then-current initial contract proposal governing wages. The Respondent, in turn, maintained that its offered wage increase was conditioned on its unilateral authority to re- duce or eliminate it. The Respondent also stated that its offer related to the “emergency” wage increase and its in- itial contract wage proposal were not contingent on each other. After making that clarification, the Respondent in a letter encouraged the Union to “consider further discus- sion” on the “emergency” wage increase. In later corre- spondence, the Respondent further asserted that it had “not ended bargaining over the subject of the proposed emergency pay raise” and invited the Union “to engage in further discussions over the Company’s . . . emergency wage increase proposal.” On August 29, the wage increase went into effect for only the Respondent’s unrepresented employees. In a September 20 status report email, the Respondent told its represented employees that the offered wage increase had been made contingent on the Union agreeing that the Re- spondent had authority to reduce it if the driver shortage ceased and that the “Union continues to reject” the offer. The Respondent also encouraged the represented employ- ees to vote to approve its latest contract proposal to the Union. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The parties eventually reached an initial collective-bar- gaining agreement in November, which was ratified by the represented employees in December. That contract’s pro- visions governing wages required the Respondent to make a retroactive lump-sum payment, without interest, to rep- resented employees to provide for the additional pay they would have received had the wage increase taken effect for them on August 29. Because the affected employees have already received this backpay, the General Counsel only seeks interest to make them whole. B. The Parties’ Contentions The stipulated issue is “[w]hether Respondent, on or around August 29, 2021, failed to provide bargaining unit employees an emergency raise increase, in violation of Section 8(a)(3) and 8(a)(5) of the Act.” The General Counsel and the Charging Party contend that, under a Wright Line analysis,2 given that union activ- ity and the Respondent’s knowledge of that activity are undisputed, the surrounding circumstances are sufficient for the Board to infer that the Respondent was motivated by antiunion animus in failing to give its represented em- ployees the same “emergency” wage increase that it gave to its unrepresented employees. Thus, the General Coun- sel and the Charging Party allege that the Respondent’s failure to increase its bargaining unit employees’ wages violated Section 8(a)(3) and (1) of the Act by discriminat- ing in regard to the terms and conditions of its employees to discourage membership in a labor organization. In sup- port of her argument, the General Counsel invokes several pre-Wright Line decisions that assertedly stand for the proposition that an employer violates the Act when it with- holds wage increases that would have been otherwise granted but for its employees’ union activities. In addi- tion, the General Counsel (supported by the Charging Party) asserts that the Board should use this case to extend current law to hold that an employer’s refusal to give a new benefit to represented employees absent a substantial and legitimate reason for withholding it is unlawful be- cause it is “inherently destructive” of union rights.3 Fur- ther, the General Counsel contends that the condition at- tached to the Respondent’s offer of an “emergency” wage increase—that the Respondent would have unilateral dis- cretion to reduce or eliminate it—foreclosed a meaningful opportunity for the Union to bargain about wages or, al- ternatively, constituted per se bad faith bargaining in vio- lation of Section 8(a)(5) and (1) of the Act. 2 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans- portation Management Corp., 462 U.S. 393 (1983). 3 See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 32–34 (1967) (an employer’s conduct is deemed “inherently destructive” when dis- couraging union activity is so obviously its unavoidable, foreseeable The Respondent contends that the General Counsel can- not meet her initial burden under Wright Line because there is no evidence that the Respondent intended to treat bargaining unit members less favorably due to their repre- sentation by a union. Rather, the Respondent contends that it offered bargaining unit employees the same “emer- gency” wage increase subject to the same potential down- ward adjustments applicable to the increase granted to its unrepresented employees. The Respondent further con- tends that under longstanding Board law, absent an unlaw- ful motive, an employer is not obligated to grant bargain- ing unit employees the same wage increases granted to its unrepresented employees, where, as the Respondent con- tends is the case here, the wage increase was a new bene- fit.4 Accordingly, the Respondent asserts that its failure to grant the wage increase cannot be deemed “inherently de- structive” of Section 7 rights under extant law. Finally, the Respondent contends that its wage proposal seeking broad discretionary powers to unilaterally reduce the of- fered wage increase was not a violation of its duty to bar- gain in good faith, and in fact, was ultimately agreed to by the Union. DISCUSSION I. THE RESPONDENT DID NOT UNLAWFULLY DISCRIMINATE AGAINST ITS REPRESENTED EMPLOYEES As set forth above, the General Counsel contends that the Respondent’s failure to give its represented employees the wage increase on August 29, when it gave it to its un- represented employees, constituted unlawful discrimina- tion against the represented employees for their union ac- tivities or views. We disagree. Here, the Respondent offered the same wage increase on the same terms to its represented employees that it gave to its unrepresented employees: a $3.81 “emergency” hourly wage increase due to a tight labor market, with the Respondent reserving the discretion to unilaterally reduce or eliminate the increase. In view of this equality of treat- ment, we are unable to conclude, based on this conduct alone, that the Respondent discriminated against its repre- sented employees for their union activities or views. Moreover, even if we were to accept the premise that the Respondent ultimately treated its unrepresented and rep- resented employees differently—in the sense that the Re- spondent implemented the wage increase for the former, but not the latter, on August 29—we still could not consequence that it may be proscribed without the typical showing of an antiunion motive). 4 See Shell Oil Co., 77 NLRB 1306, 1310 (1948), as clarified in Arc Bridges, Inc., 355 NLRB 1222, 1223 (2010), enf. denied on other grounds 662 F.3d 1235 (D.C. Cir. 2011), supp. dec. 362 NLRB 455 (2015), enf. denied on other grounds 861 F.3d 193 (D.C. Cir. 2017). 10 ROADS EXPRESS, LLC 3 conclude that this treatment amounted to unlawful dis- crimination, for the reasons discussed below. Typically, to prove unlawful discrimination under Sec- tion 8(a)(3) in accord with the Board’s Wright Line stand- ard, the General Counsel is required to prove that animus against union or other protected conduct was a motivating factor in the employer’s conduct. See, e.g., Naomi Knit- ting Plant, 328 NLRB 1279, 1281 (1999). In this case, the General Counsel has not made that showing. The General Counsel points to the conditional nature of the Respond- ent’s offer—that, to accept the offer, the Union had to give up its right to bargain about future reductions or elimina- tions of the wage increase—as evincing the Respondent’s antiunion animus. But in the circumstances of this case, that condition did not discriminate against union-repre- sented employees. Rather, it treated represented and un- represented employees the same, as the Respondent could unilaterally reduce or eliminate the wage increase for the latter group, too. The General Counsel also points to the Respondent’s September 20 status update to the repre- sented employees—which the General Counsel character- izes as blaming the Union—as evincing antiunion animus. Contrary to the General Counsel, based on the content of the stipulated record, we read the Respondent’s communi- cation differently, as accurately updating employees on the then-existing status of the parties’ negotiations regard- ing the wage increase: the “Union continues to reject [the] offer” because it was “contingent on the Union agreeing that the emergency increase can be reduced by the Com- pany.” In sum, we see no indicia of the Respondent’s an- tiunion animus in the September 20 status update or any- where else in the stipulated record. Accordingly, we find that the General Counsel has not met her initial Wright Line burden. The pre-Wright Line cases concerning withheld wage increases that the General Counsel relies on in support of finding an 8(a)(3) violation are unavailing. In each of those cases, the employer offered a wage increase to its unrepresented employees and refused to offer a parallel wage increase to its represented employees. See Modesto Convalescent Hospital, 235 NLRB 1059, 1059–1060, 1067 (1978), enfd. mem. 624 F.2d 192 (9th Cir. 1980); Wells Fargo Alarm Services, 224 NLRB 1111, 1111, 1114 (1976). Here, by contrast and as noted, the Respondent offered the same wage increase on the same terms to both represented and unrepresented employees. Moreover, in Modesto and Wells Fargo, where the Board found with- holding the increase to be unlawful, there was evidence that antiunion animus motivated the withholding. Mod- esto, 235 NLRB at 1067 (credited testimony that the re- spondent “‘punished the employees’ by withholding wage increases because they voted for the [u]nion”); Wells Fargo, 224 NLRB at 1114 (evidence that, prior to the em- ployees’ filing of a representation petition, the respondent had adopted plans to standardize its wages, but abandoned that plan and determined “who would and who would not receive the 9-percent increase” based on whether “the em- ployees . . . were union or nonunion” and that “such con- duct sought to compel or induce these unit employees to abandon their selection of the [u]nion as their collective- bargaining agent”). Here, even if this were a case where the represented and unrepresented employees had been treated differently, there is insufficient evidence that the Respondent acted based on antiunion animus. As an alternative 8(a)(3) theory of liability, the General Counsel contends that the Respondent’s conduct was “in- herently destructive” of Section 7 rights such that it is un- necessary to separately prove antiunion animus, under a proposed extension of the Board’s Great Dane doctrine. But this theory is also unsupported by the fact pattern de- scribed above. We have previously recognized that an employer’s withholding of an existing benefit from represented em- ployees, while continuing it for unrepresented employees, is “inherently destructive” of Section 7 rights, distinguish- ing that situation from an employer’s withholding of a new benefit from represented employees while giving that new benefit to unrepresented employees. See Arc Bridges, above, 355 NLRB at 1223. In the circumstances of this case, however, we need not determine if the “emergency” wage increase was an existing or a new benefit or decide whether the “inherently destructive” doctrine covers new benefits. Here, no benefit was withheld at all. The Gen- eral Counsel’s theory fails because the Respondent of- fered its represented employees the same benefit, on the same terms, that it gave to its unrepresented employees. In sum, we find, contrary to the General Counsel’s alle- gation, that the Respondent did not discriminate against its represented employees in violation of Section 8(a)(3) and (1). II. THE RESPONDENT DID NOT UNLAWFULLY REFUSE TO BARGAIN IN GOOD FAITH The General Counsel additionally contends that the con- dition attached to the Respondent’s offered wage in- crease—that the Respondent would reserve unilateral dis- cretion to reduce or eliminate it—foreclosed a meaningful opportunity for the Union to bargain about wages or con- stituted “per se bad faith bargaining.” We disagree. To determine whether a party has violated its duty to bargain in good faith, the Board “looks to the totality of the circumstances in which the bargaining took place.” Kitsap Tenant Support Services, Inc., 366 NLRB No. 98, slip op. at 8 (2018) (internal quotation marks omitted), enfd. per curiam No. 18-1187 (D.C. Cir. Apr. 30, 2019). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Based on those circumstances, it must be decided whether the employer engaged in hard but lawful bargaining or crossed the line and unlawfully frustrated the possibility of arriving at any agreement. Id. Under the totality of the circumstances in this case, we find that the Respondent did not unlawfully refuse to bargain in good faith. The bargaining in question concerned just one topic— the wage increase—and even over that one topic the Re- spondent did not seek complete discretion. The Respond- ent only sought the right to adjust employees’ wages above the minimum wage floor set by the Department of Labor. Additionally, the offered wage increase was an in- terim measure while bargaining for the initial contract was separately ongoing. The Respondent confirmed as much when the Union voiced concerns, leaving the Union free to bargain different terms to govern wages for the duration of the contract. Thus, in contrast to seeking “to deny the Union any role in determining wages . . . during the life of the contract,” which is at least conduct that “evince[s] bad- faith bargaining,” id., slip op. at 9, the Respondent’s offer related to an interim measure on wages that would only remain in place while bargaining over the initial contract remained ongoing. Moreover, the stipulated record con- tains no evidence of the Respondent engaging in conduct designed to delay or frustrate the reaching of an initial contract. The Respondent also articulated specific reasons for seeking to retain discretion to amend the “emergency” wage increase—namely, to address labor shortages and to make adjustments as market conditions changed. We note that even the Union admits in its briefing that, at the time of the offer, there was “a record industry labor shortage” and otherwise volatile economic conditions. The Re- spondent’s explanation of legitimate and bona fide rea- sons for the condition behind its proposal, in the circum- stances here, thus tends to evince good faith rather than bad faith bargaining. Cf. Alba-Waldensian, Inc., 167 NLRB 695, 696 (1967) (finding an employer engaged in bad faith bargaining in seeking to retain unilateral discre- tion over wages when it did not “justify” its position with “reasoned discussions”), enfd. 404 F.2d 1370 (4th Cir. 1968). Under these circumstances, we find, contrary to the General Counsel’s allegation and our dissenting col- league, that the Respondent did not unlawfully refuse to bargain in good faith in violation of Section 8(a)(5) and (1). The dissent’s principal position is that the Respondent gave the Union a “Hobson’s choice” by consistently main- taining the condition that its “emergency” and temporary wage increase offer could unilaterally be shifted down- ward. We disagree. There was no “Hobson’s choice” here because the Respondent provided the Union with the option of accepting the Respondent’s interim offer under the same terms available to the unrepresented employees, and also invited the Union to negotiate over the interim offer as part of its ongoing bargaining with the Respond- ent for an initial contract. As a result, the represented em- ployees did not initially receive the wage increase granted to unrepresented employees. However, the parties nego- tiated to include that wage increase, under the same terms as the interim measure, in the parties’ initial collective- bargaining agreement, with the represented employees re- ceiving a retroactive lump-sum payment to the date that the unrepresented employees first started receiving the wage increase. As explained above, in view of the bar- gaining circumstances we have noted—including the rea- sons articulated by the Respondent for its position—the Respondent’s actions in this case do not demonstrate a re- fusal to bargain in good faith. The cases relied on by the dissent do not warrant a dif- ferent result. In National Press, Inc., the employer—in the midst of a general refusal to bargain with a newly-cer- tified union—first notified its employees of a contem- plated wage increase and only then notified the union and gave it just one day to respond. 246 NLRB 1071, 1072– 1073 (1979). And in J.P. Stevens & Co., Inc., there was overwhelming evidence showing the employer—who had pursued a “full-scale war against unionization”—deliber- ately and repeatedly used a strategy of making compre- hensive changes to benefits programs and then springing them on the union to avoid any meaningful negotiation. 239 NLRB 738, 738, 748–762, 769 (1978), enfd. in rele- vant part 623 F.2d 322 (4th Cir. 1980). Here, by contrast, the Respondent informed the Union, not its employees, of its proposal; it did so 2 weeks in advance of the proposed implementation date; as the dissent acknowledges, the proposal was the subject of several emails and bargaining sessions; and the Respondent repeatedly indicated its openness to further discussions concerning the proposal. Under the circumstances presented, the Respondent’s ac- tions do not reflect, as the dissent contends, a “take it or leave it” tactic inconsistent with good-faith bargaining. We are also not persuaded that other circumstances highlighted by the dissent reflect that the Respondent failed to bargain in good faith. In this regard, the dissent faults the Respondent for “misleadingly” telling its em- ployees in its September 20 status update email that the Union “continues to reject” its offer. Yet, there was noth- ing misleading about that statement. The status update ac- curately conveyed to employees that the offer was condi- tional and that the Union rejected it. After all, the Union only “attempted to accept the offer,” as the dissent char- acterizes it, if the Respondent removed an essential term—that the Respondent could make a “downward 10 ROADS EXPRESS, LLC 5 adjustment as market conditions change,” consistent with the wage increase that its unrepresented employees re- ceived. The Respondent did not cross the line into bad faith bargaining by failing to characterize the Union’s re- jection of its interim offer in the light most favorable to the Union. The dissent also criticizes the Respondent’s statement in its status update that other unions had ac- cepted its offer as lacking “supporting details.” Detailed or not, there is no basis in the record, however, for con- cluding that was not an accurate factual assertion.5 Fi- nally, the dissent finds fault with the fact that “the bargain- ing process easily could have played out differently,” in the sense that the parties may not have “eventually reached an agreement that included a retroactive lump-sum pay- ment.” Such speculation, however, is immaterial. The important point is that, while bargaining over the initial contract, the Respondent provided the Union the option as to whether to accept the “emergency” wage increase, and still encouraged further contractual discussions with the Union regardless of the status of the “emergency” pro- posal. The Union chose to refuse the “emergency” offer at the time it was first offered, as was its right. But here, accordingly, we find no basis for concluding that the Re- spondent refused to bargain in good faith in connection with the “emergency” wage increase. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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 violate the Act in any man- ner alleged in the complaint. ORDER The complaint is dismissed. Dated, Washington, D.C. July 14, 2023 ______________________________________ Lauren McFerran, Chairman 5 In this regard, the parties submitted this case to the Board on a stip- ulated record, the September 20 status update email was included as Exh. 16 to the joint stipulation, and the General Counsel does not challenge the accuracy of the Respondent’s statements on this point in her briefing to the Board. 1 Because I would find that the Respondent violated Sec. 8(a)(5) and (1) by failing to bargain in good faith, I find it unnecessary to pass on ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER WILCOX, dissenting. During initial contract bargaining, the Respondent sought the Union’s consent to give bargaining unit em- ployees the same emergency wage increase it planned to give to unrepresented employees on the condition that the Respondent could unilaterally reduce or eliminate the wage increase. Thereafter, the Respondent sent an email to all unit employees, blaming the Union for withholding the wage increase. The majority dismisses the complaint, finding, in relevant part, that the Respondent did not refuse to bargain in good faith with the Union regarding the prof- fered conditional wage increase. Contrary to my col- leagues, I would find that the Respondent violated Section 8(a)(5) and (1) of the Act.1 Accordingly, I dissent. I. The Respondent is an interstate motor carrier that con- tracts with the United States Postal Service to haul mail. It has five facilities in the Chicago, Illinois area. Since 2020, the Union has represented all drivers at the Re- spondent’s Bedford Park and Romeoville facilities. Pur- suant to the Service Contract Act, the Department of La- bor determines the wage floor for the Respondent’s em- ployees. While bargaining for an initial contract, the Respondent proffered the Union a conditional wage increase. Specif- ically, on August 16, 2021,2 the Respondent sent the Un- ion an email stating that due to “present market and labor shortages,” unrepresented employees would be receiving a $3.81 hourly “emergency” wage increase above the mandated wage floor, “subject to downward adjustment as market conditions change.” The Respondent offered to extend the same wage increase to represented employees on the condition that it could unilaterally reduce or elimi- nate the wage increase in its discretion. Through several emails and bargaining sessions, the Union repeatedly sought to accept the Respondent’s proffered wage in- crease but without the attached waiver condition. The Re- spondent refused, repeatedly rejecting the Union’s request to retain its right to bargain over future reductions or whether the Respondent also violated Sec. 8(a)(3) and on the General Counsel’s and Charging Party’s request that the Board extend its ruling in Arc Bridges, Inc., 355 NLRB 1222 (2010), and overrule Shell Oil Co., 77 NLRB 1306 (1948). I would be open to reconsidering those decisions in a future appropriate case. 2 All dates are in 2021 unless otherwise noted. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 eliminations of the wage increase. Thus, the Union’s only options were to waive its right to bargain over wages while first-contract bargaining continued or to have its unit em- ployees lose out on an approximately 14.5 percent wage increase. Despite the Union’s protests, the Respondent imple- mented the wage increase only for its unrepresented em- ployees on August 29. And on September 20, the Re- spondent sent an email to bargaining-unit employees that blamed the Union for withholding the wage increase. The Respondent stated that “[u]nfortunately, your Union con- tinues to reject our offer.” It also claimed, without provid- ing any examples, that “other Unions across the country have overwhelmingly accepted the very same offer” and thus “[t]he Union’s position is disappointing.” The parties ultimately reached an initial contract in No- vember. The employees ratified the contract in December. The contract’s wage provision included payment for the emergency wage increase, requiring the Respondent to re- mit a lump-sum payment, without interest, to all repre- sented employees for the wage increase retroactive to Au- gust 29. Thereafter, the General Counsel issued a complaint al- leging, in relevant part, that the Respondent violated Sec- tion 8(a)(5) and (1) by failing to bargain in good faith with the Union. The parties submitted the case to the Board for a decision on a stipulated record. The majority dismisses the complaint allegation, finding that under the totality of the circumstances, the Respondent did not unlawfully re- fuse to bargain in good faith. Contrary to my colleagues, and for the reasons that follow, I would find that the Re- spondent violated Section 8(a)(5) and (1) as alleged. II. The Respondent presented the Union with a Hobson’s choice when it conditioned its offer of the wage increase on the Union’s waiver of its right to bargain over wages for the remainder of first-contract negotiations. In the cir- cumstances here, the Union could either accept the pro- posal granting the Respondent unilateral discretion to modify wages at will during first-contract negotiations or decline the proposal and thereby appear to be the cause of unit employees losing out on an approximately 14.5 per- cent wage increase. Although, as my colleagues assert, the Respondent invited the Union to continue bargaining over the interim offer, any such bargaining was of the “take it or leave it” variety. No matter what choice the Union made, in these circumstances it was sure to be 3 I disagree with my colleagues’ contention that these cases are dis- tinguishable. Their legal principles are applicable based on the Respond- ent’s bargaining tactics. As in National Press and J.P. Stevens, supra, the Respondent’s proffer of a wage increase on the condition that it could denigrated in the eyes of the employees it represented, at a substantial and unlawful cost to the collective-bargain- ing process. See National Press, Inc., 246 NLRB 1071, 1072–1073 (1979) (presenting union with predetermined wage increase on short notice puts union in classic no-win situation because its ability to effectively bargain on be- half of the employees it represents is undermined whether it accepts or rejects the increase). See also J.P. Stevens & Co., 239 NLRB 738, 738 (1978) (finding that an em- ployer’s bargaining strategy of “confront[ing] the Union with a ‘Hobson’s choice’—either accept or reject unilat- erally predetermined modifications in benefit programs . . . was a most effective means of undermining the col- lective-bargaining process and denigrating the [u]nion’s status as collective-bargaining agent”), enfd. in relevant part 592 F.2d 1237 (4th Cir. 1979).3 After putting the Union in that no-win position, the Re- spondent attempted to further undermine the Union in the email to unit employees, misleadingly stating that the Un- ion “continues to reject” the wage increase when, in fact, the Union repeatedly stated that it would accept the offer without the attached waiver condition. The Respondent also claimed, without providing any supporting details, that “other Unions across the country have overwhelm- ingly accepted the very same offer.” By casting blame on the Union, with its statement regarding the Union’s “dis- appointing” rejection of the wage increase and omitting the critical fact that the Union attempted to accept the offer without waiving its right to bargain, the Respondent’s email was a wrongful attempt “to turn employees against the Union.” Auto Crane Co., 214 NLRB 780, 783 (1974). Indeed, the Respondent’s offer of a conditional wage in- crease was a “take it or leave it” tactic, inconsistent with the good-faith bargaining the Act requires. “Bargaining presupposes negotiations—with attendant give and take— between parties carried on in good faith with the intention of reaching agreement through compromise.” Winn-Dixie Stores, Inc., 243 NLRB 972, 974 (1979). Here, by con- trast, and contrary to my colleagues’ assertion, the Re- spondent did not offer the Union a true opportunity to bar- gain regarding the interim wage increase, as its offer was “more in the nature of a proposal that the union accept the increase ‘or else.’” Id. at 975. In these circumstances, the proffered interim wage increase was essentially presented to the Union as a fait accompli insofar as there was no in- dication that the Union would be permitted to offer a coun- terproposal or that the Respondent would seriously con- sider one. See National Press, 246 NLRB at 1072. The unilaterally reduce or eliminate the wage increase left the Union in a “classic ‘no-win’ situation” which is inconsistent with good-faith bar- gaining. National Press, 246 NLRB at 1073. 10 ROADS EXPRESS, LLC 7 Respondent thus only sought the Union’s approval as a cloak for its unilateral action, rather than to engage in the give-and-take process necessary for good-faith negotia- tions.4 Although the proffered conditional wage increase was an interim measure while the parties bargained for an ini- tial contract, even temporary implementation of employer proposals can be destabilizing to the collective-bargaining process. Such interim measures move the goal posts and shift the terrain upon which the parties negotiate. As the Board and courts have recognized, implementation of a temporary bargaining proposal allows “the employer [to] position[] himself to stiffen his demands in what remains of the bargaining process” which is “likely to cause the process to break down.” Duffy Tool & Stamping, LLC v. NLRB, 233 F.3d 995, 998–999 (7th Cir. 2000). Here, alt- hough my colleagues point out that the parties eventually reached an agreement that included a retroactive lump- sum payment, without interest, for the emergency wage increase, the bargaining process easily could have played out differently. That an agreement is ultimately achieved cannot excuse earlier unlawful bargaining tactics. See, e.g., Kansas Van & Storage Co., 273 NLRB 855, 856, 864 fn. 28 (1984) (“The fact that [the r]espondent may have [subsequently] bargained in good faith . . . in no way ex- cuses its unlawful conduct prior thereto.”). The Board should not encourage parties to engage in tactics that undermine the central purpose of the Act, as stated in Sec- tion 1, “to encourag[e] the practice and procedure of col- lective bargaining.” III. “Collective bargaining is something more than the mere meeting of an employer with the representatives of his em- ployees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground.” NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 485 (1960) (quoting 1 NLRB Ann. Rep. 85- 86 (1935)). In my view, the Respondent’s offer of a con- ditional wage increase was a “take it or leave it” tactic that failed to reflect the serious intent to reach a collective-bar- gaining agreement the Act requires. Therefore, contrary to my colleagues, I would find that the Respondent vio- lated Section 8(a)(5) and (1) by failing to bargain in good faith with the Union. Dated, Washington, D.C. July 14, 2023 ______________________________________ Gwynne A. Wilcox, Member NATIONAL LABOR RELATIONS BOARD 4 The Union was, in fact, under no obligation to accept the offered wage increase absent an overall impasse or some other circumstances justifying the Respondent’s unilateral action. The Respondent does not argue, for instance, that exigent circumstances compelled the proposed wage increase. See RBE Electronics of S.D., Inc., 320 NLRB 80 (1995).