1. 1 McClatchy Newspapers Inc. v. NLRB, D.C. Cir, No. 96-1399, 12/19/97 Did the employer violate Sec. 8(a)(5) when it unilaterally implemented at impasse a wage proposal that gives the employer total discretion over future wage increases? Yes

2. 2 McClatchy Newspapers Purpose of permitting implementation at impasses to encourage the impasse to be broken, thereby restoring collective bargaining Implementation of FO at impasse not a right under NLRA –Not mentioned in or required by NLRA –Board establishes “rules” for impasse and can craft exceptions; based on its expertise Board-created implementation “rule” –Could have chosen “status quo” rule Er giving itself discretion over wage increases has the effect of destroying collective bargaining. Board unwilling to permit a party to use bargaining process to destroy bargaining process

3. 3 McClatchy Newspapers Consistent with Am. National Insurance? –No agreement in McClatchy as in Am. Nat. Ins. –Language in Am. Nat. Ins that permits a case-by-case evaluation of effect on bargaining of employer’s proposals Any fears the Board may entertain that use of management functions clauses will lead to evasion of an employer's duty to bargain collectively as to "rates of pay, wages, hours and conditions of employment" do not justify condemning all bargaining for management functions clauses covering any "condition of employment" as per se violations of the Act. The duty to bargain collectively is to be enforced by application of the good faith bargaining standards of Section 8 (d) to the facts of each case rather than by prohibiting all employers in every industry from bargaining for management functions clauses altogether (emphasis added).

4. 4 McClatchy Board seems to treat wages differently from other TCE at impasse –“paramount importance” –“key term and condition of employment and the basis of negotiations” –expected to be set “bilaterally” Court uses “foreseeable consequences” criteria from “Great Dane” –“foreseeable consequences”of er actions are to destroy bargaining process Employer must provide criteria

5. 5 General Principles Implementation at impasse not a right; may be curtailed if necessary to preserve the bargaining process Board may use its expertise and decide that a self-help tactic shifts the balance of bargaining power so much that it effectively undermines or destroys the bargaining process