APWU of Iowa   

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2007 Decided January 29, 2008

No. 06-1338

MAIL CONTRACTORS OF AMERICA,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

06-1380

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Jeffrey W. Pagano argued the cause for petitioner. With

him on the briefs was Herbert I. Meyer.

Kira Dellinger Vol, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Ronald E. Meisburg, General Counsel, John H. Ferguson,

Associate General Counsel, and Julie B. Broido, Supervisory

Attorney. Fred B. Jacob, Attorney, entered an appearance.

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Before: GINSBURG, Chief Judge, and TATEL and BROWN,

Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: The National Labor Relations

Board held Mail Contractors of America violated its duty to

bargain with a union when, following an impasse in

negotiations, it unilaterally changed a "relay point" on one of its

trucking routes. We grant MCA’s petition for review of the

Board’s order and deny the Board’s cross-application for

enforcement.

I. Background

MCA primarily transports bulk mail for the United States

Postal Service among its 17 terminals nationwide. The

American Postal Workers Union, Des Moines Area Local,

represents approximately 90 employees who work for MCA at

the Urbandale, Iowa terminal. In 2001, the Union and MCA

negotiated a new collective bargaining agreement (CBA) for

Urbandale, which agreement expired in September 2003.

Because MCA’s terminals are far apart, its trucks are

typically driven to and from "relay points" between terminals,

where one driver turns the truck over to another who takes the

truck on toward its destination. The 2001 Urbandale CBA

contained a management rights clause providing that the

Company had "the right ... to decide the location of its

terminal(s) and relay points" without further bargaining. While

the 2001 CBA was in effect, MCA switched relay points serving

the Urbandale terminal six times. It did so five times to satisfy

the needs of the USPS or to comply with new regulations issued

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by the Department of Transportation and once at the request of

the Union. Because compensation is determined by hours spent

driving, the location of a relay point may affect the

compensation of the drivers who serve that relay point. Each

time the Company changed a relay point, it first bargained with

the Union even though, under the CBA, it was not required to do

so.

After the CBA expired in 2003, the Union and MCA

reached a tentative new agreement for Urbandale that again

included a clause providing management retained the right

unilaterally to change the location of relay points. The tentative

agreement also included a new "bumping" provision, which

gave any driver whose run was changed in such a way that his

compensation decreased by 15% or more the right to take over

a more junior driver’s run. In September 2004, when

negotiations reached an impasse rather than a final agreement,

MCA lawfully implemented its final offer, including the

provisions of the tentative agreement.

In March 2005 the Urbandale drivers struck. When one

driver refused an order to drive to the relay point in York,

Nebraska, MCA moved the relay point about 50 miles east along

Interstate 80 to Havelock, Nebraska, where it had more

resources. It did not give the Union notice of this change,

although the striking workers were, of course, aware the

Company was not using the York relay point. The effect of the

change was that the drivers who drove from Urbandale to

Havelock drove less and therefore earned less than they had

earned prior to the strike, and the drivers who drove from

Havelock to the next relay point drove more and therefore

earned more than they had done prior to the strike. Because no

driver’s compensation decreased by 15%, however, the change

did not trigger the bumping provision.

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After the strike ended, MCA decided to keep the I-80 relay

point at Havelock. Certain employees protested, but MCA

refused to negotiate with the Union over the change.

The Union filed an unfair labor practice charge with the

National Labor Relations Board and the General Counsel issued

a complaint against MCA for refusing to bargain, in violation of

Sections 8(a)(1) and (5) of the National Labor Relations Act, 29

U.S.C. §§ 185(a)(1) and (5). After a hearing, an Administrative

Law Judge held MCA had indeed violated the Act by

unilaterally changing the relay point.

The ALJ first found the change to the relay point materially

affected employees’ wages and working conditions, and was

therefore a mandatory subject of bargaining. See Mail

Contractors of Am., 347 N.L.R.B. No. 88, at 6 (2006) (MCA).

He acknowledged that under the expired CBA management had

the right to change relay points without bargaining, but noted

that under Board precedent, the Union’s waiver of the right to

bargain presumptively expired when the CBA expired. Id.

Although the parties had tentatively agreed to a new contract

that included a similar management rights clause, the ALJ noted

they had never come to a final agreement. Id. at 6-7.

Next, the ALJ rejected MCA’s argument that the

management rights clause in its final offer gave it the right

unilaterally to move the relay point. He acknowledged that the

parties had reached an impasse in negotiations, which would

ordinarily entitle the employer to implement its final offer.

Applying the Board’s decision in McClatchy Newspapers, Inc.,

321 N.L.R.B. 1386 (1996), enf’d, 131 F.3d 1026 (D.C. Cir.

1997), however, he concluded MCA could not lawfully

implement the management rights clause because it granted

MCA unlimited discretion to determine the location of relay

points, and thereby to affect the wages and hours of employees.

MCA, 347 N.L.R.B. No. 88, at 7. The ALJ also rejected MCA’s

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alternative contention that unilaterally changing the relay point

was permissible as the continuation of a practice that had

developed under the expired contract. Although the 2001 CBA

contained a clause granting MCA discretion unilaterally to

change relay points, MCA had never actually done so while that

agreement was in force. Id. at 7-8.

The ALJ concluded that because neither post-impasse

implementation of the final offer nor the past practice of the

parties gave MCA the right to move a relay point, MCA’s

failure to bargain with the Union, after the strike had ended,

over the move to Havelock from York was an unfair labor

practice. Id. at 8. Accordingly, he ordered MCA to move the

relay point back to York and pay back wages to the drivers

whose routes had been shortened. Id. at 9.

MCA filed exceptions with the Board, a panel of which

unanimously affirmed the findings and conclusions of the ALJ.

Id. at 1 & nn.1-2. Two Members, relying upon McClatchy,

voted to affirm because "the unilateral change had a direct effect

on wages." Id. at 1 n.2. Chairman Battista reasoned more

narrowly that under the 2001 contract the Company gave the

Union advance notice of any relay point change, and "[t]here is

no evidence that a change in this past practice was contemplated

by the newly implemented management-rights clause." Id.

II. Analysis

MCA argues, among other things, that the Board erred in

concluding the Company was not entitled to implement the relay

point provision when negotiations with the Union had reached

an impasse. Because we agree and grant the petition upon that

basis, we have no occasion to reach MCA’s other arguments.

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A. Standard of review

We apply a deferential standard of review to orders of the

Board, which has "considerable authority to interpret the ...

[Act]. If the Board adopts a rule that is rational and consistent

with the Act, then the rule is entitled to deference from the

courts." Fall River Dyeing & Finishing Corp. v. NLRB, 482

U.S. 27, 42 (1987) (citation omitted). We will, however, set

aside an order "when the Board has failed to apply the proper

legal standard ... or when it [has departed] from established

precedent without reasoned justification." Titanium Metals

Corp. v. NLRB, 392 F.3d 439, 446 (D.C. Cir. 2004).

B. Implementation after impasse

Section 8 of the Act requires an employer to bargain with

the union representing its employees with respect to "wages,

hours, and other terms and conditions of employment." 29

U.S.C. § 158(a), (d). When a CBA expires without a new

agreement having been reached, the employer must continue to

bargain in good faith for a new agreement and maintain the

status quo during negotiations. See NLRB v. Katz, 369 U.S. 736,

743, 746 (1962).

The duty to bargain does not, however, "compel either party

to agree to a proposal or require the making of a concession."

29 U.S.C. § 158(d). The Act "does not contemplate that unions

will always be secure and able to achieve agreement even when

their economic position is weak." H.K. Porter Co., Inc. v.

NLRB, 397 U.S. 99, 109 (1970). The Board is charged only with

ensuring the parties satisfy their duty to bargain; it may not "act

at large in equalizing disparities of bargaining power between

employer and union." NLRB v. Ins. Agents’ Int’l Union, 361

U.S. 477, 490 (1960). Nor may the Board impose a substantive

provision upon the parties. "[A]greement may in some cases be

impossible, and it was never intended that the Government

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would in such cases step in, become a party to the negotiations

and impose its own views of a desirable settlement." H.K.

Porter, 397 U.S. at 103-04.

Either party to collective bargaining may lawfully insist to

the point of impasse upon any provision related to a "mandatory

subject of bargaining," which is to say "wages, hours, [or] other

terms and conditions of employment." See 29 U.S.C. § 158(d);

NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349

(1958). An employer may even insist upon a provision granting

it discretion unilaterally to change certain conditions of

employment during the term of the CBA. NLRB v. Am. Nat’l

Ins. Co., 343 U.S. 395, 409 (1952) ("Whether a contract should

contain a clause fixing standards for such matters as work

scheduling or should provide for more flexible treatment is an

issue for determination across the bargaining table, not by the

Board").

When an employer and a union reach an impasse over a

mandatory subject of bargaining, either side may resort to

economic warfare – a strike, a lockout, etc. – and "the

employer’s statutory duty to maintain the status quo during

postcontract negotiations ... end[s]." Laborers Health &

Welfare Trust Fund v. Advanced Lightweight Concrete Co., Inc.,

484 U.S. 539, 543 n.5 (1988). The employer then may "mak[e]

unilateral changes that are reasonably comprehended within his

preimpasse proposals." Am. Fed’n of Television & Radio Artists

v. NLRB, 395 F.2d 622, 624 (D.C. Cir. 1968) (internal quotation

mark omitted). The rationale for this rule is that the employer’s

unilateral imposition of the final offer "breaks the impasse and

therefore encourages future collective bargaining." McClatchy

Newspapers, Inc. v. NLRB, 131 F.3d 1026, 1032 (D.C. Cir.

1997). It "moves the process forward by giving one party, the

employer, economic leverage." Id.

An employer’s right to deploy its economic weapons

8

following an impasse is not absolute: The Supreme Court has

held the Board, in order to facilitate the process of collective

bargaining, may place certain restrictions upon what an

employer may do after impasse. In Charles D. Bonanno Linen

Service, Inc. v. NLRB, 454 U.S. 404 (1982), for example, the

Court upheld a Board order barring an employer from

withdrawing from a multi-employer unit after bargaining had

reached an impasse. Id. at 412. The Court stated more

generally that the Board may "deny an employer a particular

economic weapon ... in the interest of the proper and preeminent

goal, maintaining the stability of the multiemployer

bargaining unit." Id. at 419; see also NLRB v. Great Dane

Trailers, Inc., 388 U.S. 26, 32 (1967) (upholding Board decision

prohibiting employer from granting benefits to strike-breakers

but not strikers because of "discouraging effect on ... future

concerted activity"); NLRB v. Erie Resistor Corp., 373 U.S. 221,

231 (1963) (upholding Board decision prohibiting employer

from granting super-seniority to strike-breakers because

"[s]uper-seniority renders future bargaining difficult, if not

impossible"); cf. Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 309

(1965) (holding lockout was not unfair labor practice because

"the employer’s intention was [not] to destroy or frustrate the

process of collective bargaining").

C. The McClatchy doctrine

In McClatchy Newspapers, 299 N.L.R.B. 1045 (1990)

(McClatchy I), the Board announced a new exception to the

implementation-after-impasse rule, again in order to facilitate

post-impasse bargaining. In that case the employer, after an

impasse in negotiations, implemented its proposed merit pay

system, which gave it almost complete discretion to determine

wages. Initially the Board held the employer had committed an

unfair labor practice because the union had not "waived" its

right to bargain over wages. Id. at 1046-47. This court found

the Board’s explanation inconsistent with Board precedent,

9

granted the employer’s petition for review, and remanded the

case for the Board to give a more adequate account of its

position. NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153,

1153-54 (D.C. Cir. 1992) (per curiam) (McClatchy II). In

separate concurring opinions, Judges Edwards and Silberman

proposed a variety of alternative theories upon which the Board

might justify its result. Among them was Judge Edwards’s

theory that "a unilateral, discretionary merit pay scheme ... may

pose a substantial threat to the union’s role as the employees’

representatives." Id. at 1172. He explained:

If ... the employer can make unconstrained wage

adjustments, the futility of union representation may be

driven home to each employee in much the same way the

unilateral change doctrine seeks to avoid. Admittedly, the

unilateral change doctrine generally presumes that

implementing changes post-impasse does not hurt

collective bargaining. But if the employer can indefinitely

adjust employee wages ... impasse will no longer be [a]

"temporary" phenomenon .... Where the employer has the

unconstrained authority to adjust wages to respond to

changing conditions, it will have substantially smaller

incentives to restart collective bargaining.

Id. at 1172-73 (footnote omitted).

On remand, the Board again held the employer had

committed an unfair labor practice, essentially adopting Judge

Edwards’s rationale. See McClatchy Newspapers, Inc., 321

N.L.R.B. 1386, 1390-91 (1996) (McClatchy III) ("[C]arte

blanche authority over wage increases" would be "inherently

destructive of the fundamental principles of collective

bargaining") (emphasis and footnote omitted). If the employer

had complete discretion to set wages, the Board explained, then

the union would be unable to participate knowledgeably in

further bargaining. Id. at 1391. Moreover, the merit pay

10

provision would "disparage the [union] by showing, despite its

resistance to this proposal, its incapacity to act as the

employees’ representative in setting terms and conditions of

employment." Id. Emphasizing the "paramount importance of

wages as a mandatory subject of bargaining," id. at 1391 n.22,

the Board concluded the provision was "inimical to the policies

of the Act" because it excluded the union "from any meaningful

bargaining as to the procedures and criteria governing the merit

pay plan." Id. at 1391.

McClatchy again petitioned for review, and this time we

enforced the Board’s order. McClatchy Newspapers, Inc. v.

NLRB, 131 F.3d 1026 (D.C. Cir. 1997) (McClatchy IV). Citing

Bonanno Linen, we noted that "the Board has wide latitude to

monitor the bargaining process." Id. at 1031. We deferred to

the Board’s opinion that the provision at issue might

"irreparably undermine [the union’s] ability to bargain. Since

the union could not know what criteria, if any, petitioner was

using to award individual salary increases, it could not bargain

against those standards; instead, it faced a discretionary cloud."

Id. at 1032. We also accepted the Board’s rationale that the

union would appear impotent to its members if it had no

information to relay. Id. at 1033. Recognizing the principle of

Insurance Agents that the Board may not "act at large in

equalizing disparities of bargaining power between employer

and union," id. (quoting Insurance Agents, 361 U.S. at 490)

(alteration and internal quotation marks omitted), we concluded

"this case is marginally closer to Bonanno Linen"; "as in

Bonanno Linen, the Board has denied the employer a particular

economic tactic for the sake of preserving the stability of the

collective bargaining process." Id. Most important for purposes

of the present case, we noted the Board had confined its decision

to provisions governing wages because wages are "a key term

and condition of employment and a primary basis of

negotiations," id. at 1035 (internal quotation marks omitted).

We concluded:

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[T]he Board is free to draw on its expertise to determine

that wages are typically of paramount importance in

collective bargaining and to suggest that wages, unlike

scheduling or a host of other decisions generally thought

closely tied to management operations, are expected to be

set bilaterally in a collective bargaining relationship.

Id.

The Board has since held employers ran afoul of the rule in

McClatchy in four cases, three of which involved wage

provisions. We approved the Board’s application of McClatchy

to a wage provision that gave "unfettered discretion to the

employers at every stage of the pay determination process,"

Anderson Enters., 329 N.L.R.B. 760 (1999), enf’d, 2 Fed. App’x

1, 3 (2001), but vacated an order in which the Board applied

McClatchy to a relatively nondiscretionary unilateral wage

provision. Detroit Newspaper Agency, 326 N.L.R.B. 700

(1998), vacated sub nom. Detroit Typographical Union No. 18

v. NLRB, 216 F.3d 109, 118 (2000). The First Circuit vacated

the third Board decision, which concerned a provision giving an

employer the discretion either to pay a predefined wage or to

abide by "current marketplace pay practices," and remanded the

case for further consideration. See Edward S. Quirk Co., Inc.,

330 N.L.R.B. 917 (2000), vacated and remanded, 241 F.3d 41,

45 (2001) ("McClatchy is based on employer discretion and

discretion is a matter of degree, implicating policy judgments

informed by Board expertise. However ... the Board owes the

employer and a reviewing court ... a reasoned explanation of

where it draws the line ...."), reinstated, 340 N.L.R.B. 301, 30102

(2003). In the fourth case, which was not reviewed by any

court, the Board applied McClatchy to a highly discretionary

provision involving health benefits. KSM Indus., Inc., 336

N.L.R.B. 133, 135 (2001), modified in part, 337 N.L.R.B. 987

(2002).

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D. The relay point change

As recounted above, the Board held MCA ran afoul of

McClatchy when it unilaterally imposed a provision reserving

the right to change relay points. That decision was arbitrary and

capricious for three reasons. First, the management rights

provision at issue is utterly unlike the provision in McClatchy or

the provision at issue in any subsequent case to which the Board

has applied McClatchy. Second, it is inconceivable the

provision will jeopardize collective bargaining in the affected

unit – the stated concern underlying McClatchy. Finally, the

Board’s decision here would impinge upon the employer’s

ability to run its business more severely than did McClatchy

itself or any of its sequellae.

First. The Board’s decision is inconsistent with both the

plain terms and the reasoning of McClatchy, which was based

upon and limited by the "paramount importance of wages as a

mandatory subject of bargaining." 321 N.L.R.B. at 1391 n.22.

We expressly predicated our approval of the Board’s decision

upon the distinction between wages and "scheduling or a host of

other decisions generally thought closely tied to management

operations." 131 F.3d at 1035. Indeed, the Board has

consistently limited its application of McClatchy to provisions

giving an employer discretion to determine wages (or, in one

case, benefits) rather than discretion to configure "management

operations" – until this case.

The placement of a relay point is a quintessentially

managerial decision; its location presumably will affect the

efficiency of the Company’s operations but it will have no

material effect upon the Company’s wage bill. If, as a result of

changing a relay point, some drivers lose work, then other

drivers gain as much work; meanwhile, the bumping provision

that MCA implemented as part of its final offer prevents

13

management from manipulating relay points to give

significantly more hours to less senior drivers.

The Board contends the placement of a relay point is

nonetheless subject to the McClatchy doctrine because it will

have a "direct effect on wages." MCA, 347 N.L.R.B. No. 88, at

1 n.2. The effect is no more significant, however, than the effect

of any management decision about the scheduling of work or its

allocation among plants or shifts. Cf. Clinton’s Ditch Coop.

Co., Inc. v. NLRB, 778 F.2d 132, 135, 140 (2d Cir. 1985)

(management’s right to change drivers’ assignments had only

"indirect, limited connection to ... any ... aspect of labor

relations"). In McClatchy IV we deferred to the Board’s view

that wages are such a fundamental subject of collective

bargaining that they are uniquely "expected to be set bilaterally

in a collective bargaining relationship." 131 F.3d at 1035. The

placement of a relay point, with its incidental effect upon wages,

simply is not comparable.

Second. Neither of the pragmatic reasons for the Board’s

holding in McClatchy applies to this case: If an employer could

unilaterally set wages, then the union (1) would be "unable to

bargain knowledgeably" and (2) would appear impotent to its

members because of its "incapacity to act as the employees’

representative in setting terms and conditions of employment."

McClatchy III, 321 N.L.R.B. at 1391. As to the former,

management’s change in the location of a relay point did not

preclude "meaningful bargaining as to the procedures and

criteria governing" wages, id.; nor, because wage rates and other

terms of employment were fixed in nondiscretionary provisions

of the final offer, did the change require the Union to bargain

against a "discretionary cloud." McClatchy IV, 131 F.3d at

1032.

As for threatening to render the Union impotent and

collective bargaining pointless in the eyes of employees, as

14

applied here the idea is fanciful. The change in the relay point

at issue here, like each of the six changes MCA made during the

two year term of the 2001 CBA, was made in response to an

unexpected event. Having moved the relay point merely in

order to keep trucks rolling during the strike, the Company then

found it was more efficient to retain the new location. As the

strike-induced move illustrates, the events that prompt the

Company to change a relay point are both sporadic and

sufficiently unexpected that the parties could not realistically

have addressed them in the CBA; accordingly, management’s

reservation of the right to respond to them posed no realistic

threat to the process of collective bargaining. Were it otherwise,

the Union would not have agreed to the management rights

clause in the 2001 CBA. More significant, with the benefit of

experience under that agreement, the Union tentatively agreed

to the clause again in the 2003 bargaining for a new agreement;

indeed, the bargaining history shows the Union was concerned

not with eliminating management’s right to move relay points

but with adding a more robust bumping provision in order to

protect more senior drivers from any significant loss of work

when a relay point is changed.

Third. The Board’s decision impedes the employer’s ability

after impasse to implement its final offer to a far greater extent

than had any prior decision. Bear in mind that in McClatchy

itself the employer was prohibited only from implementing a

system in which it would have determined wages on a purely

discretionary basis; nothing in that decision bars an employer

from implementing a final offer in which wages are determined

according to fixed criteria. In this case, the ALJ correctly noted

the management rights provision at issue left MCA with

complete discretion to move relay points, MCA, 347 N.L.R.B.

No. 88, at 7, but neither the ALJ nor the Union ever suggested

there might be fixed criteria MCA could have offered and then

implemented after impasse to govern the placement of relay

points. Nor does that seem feasible for, as we have seen, relay

15

points, unlike wages, are changed in response to infrequent and

exogenous events. In other words, because no nondiscretionary

provision appears possible, the Board’s decision would

effectively preclude MCA from ever changing a relay point after

impasse. That would be both anomalous, considering that MCA

was free unilaterally to implement provisions regarding more

fundamental subjects of bargaining, see, e.g., E.I. du Pont de

Nemours & Co., 346 N.L.R.B. No. 55, at 11-12 (2006)

(permitting unilateral imposition of nondiscretionary health care

plan), enf’d, 489 F.3d 1310, 1320 (D.C. Cir. 2007), and

inconsistent with the narrow exception in McClatchy to the

general rule allowing the employer to implement its final offer

after impasse.

The ALJ justified the application of McClatchy to this case

as follows:

Section 8(d) of the Act requires the parties to bargain over

"wages and hours." It would undermine this specific

statutory mandate if an employer could relegate to itself the

discretion to determine [relay points after impasse]. In

addition, to allow an employer to do so unjustifiably affects

the balance of power between labor and management and

thereby undermines an important goal of the Act of

encouraging the parties to reach a collective-bargaining

agreement. This is so because ... if an employer can

relegate to itself this discretion a union’s bargaining

strength is diminished and the likelihood of reaching an

agreement is decreased.

347 N.L.R.B. No. 88, at 7.

The ALJ’s analysis is in effect a broadside attack upon the

implementation-after-impasse doctrine. His concern that an

employer would undermine the statutory mandate to bargain by

unilaterally implementing its final offer after impasse overlooks

16

the very purpose of the doctrine, which is to "break[] the

impasse and therefore encourage[] future collective bargaining

... by giving one party, the employer, economic leverage."

McClatchy IV, 131 F.3d at 1032. His other point – that

unilateral implementation means the union could no longer

"seek concessions from the employer" in return for its

agreement, MCA, 347 N.L.R.B. No. 88, at 7 – ignores the

Supreme Court’s teaching that it is not the Board’s role to

"equalize[e] disparities of bargaining power between employer

and union." Insurance Agents, 361 U.S. at 490.

In affirming the ALJ, the Board rather limply stated only

that "here, as in McClatchy, the unilateral change had a direct

effect on wages," MCA, 347 N.L.R.B. No. 88, at 1 n.2, without

any more particularized examination of the significance of that

effect. The Board gave no reason to believe the relay point

provision here at issue would impede collective bargaining.

Therefore, we think it necessary to reiterate a point we made in

McClatchy IV: The Board must proceed cautiously in applying

the McClatchy doctrine, taking care to tether its applications to

the pragmatic justification for that decision, namely, to facilitate

the process of collective bargaining.

III. Conclusion

For the reasons set out above, we hold MCA, after

collective bargaining had reached an impasse, lawfully relocated

its relay point to Havelock from York pursuant to the

management rights provision of its final offer. Therefore, it did

not commit an unfair labor practice when, after the strike ended,

it kept the relay point at Havelock without first bargaining with

the Union. Accordingly, the petition for review is granted and

the Board’s cross-application for enforcement is denied.

So ordered.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2007 Decided January 29, 2008

No. 06-1338

MAIL CONTRACTORS OF AMERICA,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

06-1380

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Jeffrey W. Pagano argued the cause for petitioner. With

him on the briefs was Herbert I. Meyer.

Kira Dellinger Vol, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Ronald E. Meisburg, General Counsel, John H. Ferguson,

Associate General Counsel, and Julie B. Broido, Supervisory

Attorney. Fred B. Jacob, Attorney, entered an appearance.

2

Before: GINSBURG, Chief Judge, and TATEL and BROWN,

Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: The National Labor Relations

Board held Mail Contractors of America violated its duty to

bargain with a union when, following an impasse in

negotiations, it unilaterally changed a "relay point" on one of its

trucking routes. We grant MCA’s petition for review of the

Board’s order and deny the Board’s cross-application for

enforcement.

I. Background

MCA primarily transports bulk mail for the United States

Postal Service among its 17 terminals nationwide. The

American Postal Workers Union, Des Moines Area Local,

represents approximately 90 employees who work for MCA at

the Urbandale, Iowa terminal. In 2001, the Union and MCA

negotiated a new collective bargaining agreement (CBA) for

Urbandale, which agreement expired in September 2003.

Because MCA’s terminals are far apart, its trucks are

typically driven to and from "relay points" between terminals,

where one driver turns the truck over to another who takes the

truck on toward its destination. The 2001 Urbandale CBA

contained a management rights clause providing that the

Company had "the right ... to decide the location of its

terminal(s) and relay points" without further bargaining. While

the 2001 CBA was in effect, MCA switched relay points serving

the Urbandale terminal six times. It did so five times to satisfy

the needs of the USPS or to comply with new regulations issued

3

by the Department of Transportation and once at the request of

the Union. Because compensation is determined by hours spent

driving, the location of a relay point may affect the

compensation of the drivers who serve that relay point. Each

time the Company changed a relay point, it first bargained with

the Union even though, under the CBA, it was not required to do

so.

After the CBA expired in 2003, the Union and MCA

reached a tentative new agreement for Urbandale that again

included a clause providing management retained the right

unilaterally to change the location of relay points. The tentative

agreement also included a new "bumping" provision, which

gave any driver whose run was changed in such a way that his

compensation decreased by 15% or more the right to take over

a more junior driver’s run. In September 2004, when

negotiations reached an impasse rather than a final agreement,

MCA lawfully implemented its final offer, including the

provisions of the tentative agreement.

In March 2005 the Urbandale drivers struck. When one

driver refused an order to drive to the relay point in York,

Nebraska, MCA moved the relay point about 50 miles east along

Interstate 80 to Havelock, Nebraska, where it had more

resources. It did not give the Union notice of this change,

although the striking workers were, of course, aware the

Company was not using the York relay point. The effect of the

change was that the drivers who drove from Urbandale to

Havelock drove less and therefore earned less than they had

earned prior to the strike, and the drivers who drove from

Havelock to the next relay point drove more and therefore

earned more than they had done prior to the strike. Because no

driver’s compensation decreased by 15%, however, the change

did not trigger the bumping provision.

4

After the strike ended, MCA decided to keep the I-80 relay

point at Havelock. Certain employees protested, but MCA

refused to negotiate with the Union over the change.

The Union filed an unfair labor practice charge with the

National Labor Relations Board and the General Counsel issued

a complaint against MCA for refusing to bargain, in violation of

Sections 8(a)(1) and (5) of the National Labor Relations Act, 29

U.S.C. §§ 185(a)(1) and (5). After a hearing, an Administrative

Law Judge held MCA had indeed violated the Act by

unilaterally changing the relay point.

The ALJ first found the change to the relay point materially

affected employees’ wages and working conditions, and was

therefore a mandatory subject of bargaining. See Mail

Contractors of Am., 347 N.L.R.B. No. 88, at 6 (2006) (MCA).

He acknowledged that under the expired CBA management had

the right to change relay points without bargaining, but noted

that under Board precedent, the Union’s waiver of the right to

bargain presumptively expired when the CBA expired. Id.

Although the parties had tentatively agreed to a new contract

that included a similar management rights clause, the ALJ noted

they had never come to a final agreement. Id. at 6-7.

Next, the ALJ rejected MCA’s argument that the

management rights clause in its final offer gave it the right

unilaterally to move the relay point. He acknowledged that the

parties had reached an impasse in negotiations, which would

ordinarily entitle the employer to implement its final offer.

Applying the Board’s decision in McClatchy Newspapers, Inc.,

321 N.L.R.B. 1386 (1996), enf’d, 131 F.3d 1026 (D.C. Cir.

1997), however, he concluded MCA could not lawfully

implement the management rights clause because it granted

MCA unlimited discretion to determine the location of relay

points, and thereby to affect the wages and hours of employees.

MCA, 347 N.L.R.B. No. 88, at 7. The ALJ also rejected MCA’s

5

alternative contention that unilaterally changing the relay point

was permissible as the continuation of a practice that had

developed under the expired contract. Although the 2001 CBA

contained a clause granting MCA discretion unilaterally to

change relay points, MCA had never actually done so while that

agreement was in force. Id. at 7-8.

The ALJ concluded that because neither post-impasse

implementation of the final offer nor the past practice of the

parties gave MCA the right to move a relay point, MCA’s

failure to bargain with the Union, after the strike had ended,

over the move to Havelock from York was an unfair labor

practice. Id. at 8. Accordingly, he ordered MCA to move the

relay point back to York and pay back wages to the drivers

whose routes had been shortened. Id. at 9.

MCA filed exceptions with the Board, a panel of which

unanimously affirmed the findings and conclusions of the ALJ.

Id. at 1 & nn.1-2. Two Members, relying upon McClatchy,

voted to affirm because "the unilateral change had a direct effect

on wages." Id. at 1 n.2. Chairman Battista reasoned more

narrowly that under the 2001 contract the Company gave the

Union advance notice of any relay point change, and "[t]here is

no evidence that a change in this past practice was contemplated

by the newly implemented management-rights clause." Id.

II. Analysis

MCA argues, among other things, that the Board erred in

concluding the Company was not entitled to implement the relay

point provision when negotiations with the Union had reached

an impasse. Because we agree and grant the petition upon that

basis, we have no occasion to reach MCA’s other arguments.

6

A. Standard of review

We apply a deferential standard of review to orders of the

Board, which has "considerable authority to interpret the ...

[Act]. If the Board adopts a rule that is rational and consistent

with the Act, then the rule is entitled to deference from the

courts." Fall River Dyeing & Finishing Corp. v. NLRB, 482

U.S. 27, 42 (1987) (citation omitted). We will, however, set

aside an order "when the Board has failed to apply the proper

legal standard ... or when it [has departed] from established

precedent without reasoned justification." Titanium Metals

Corp. v. NLRB, 392 F.3d 439, 446 (D.C. Cir. 2004).

B. Implementation after impasse

Section 8 of the Act requires an employer to bargain with

the union representing its employees with respect to "wages,

hours, and other terms and conditions of employment." 29

U.S.C. § 158(a), (d). When a CBA expires without a new

agreement having been reached, the employer must continue to

bargain in good faith for a new agreement and maintain the

status quo during negotiations. See NLRB v. Katz, 369 U.S. 736,

743, 746 (1962).

The duty to bargain does not, however, "compel either party

to agree to a proposal or require the making of a concession."

29 U.S.C. § 158(d). The Act "does not contemplate that unions

will always be secure and able to achieve agreement even when

their economic position is weak." H.K. Porter Co., Inc. v.

NLRB, 397 U.S. 99, 109 (1970). The Board is charged only with

ensuring the parties satisfy their duty to bargain; it may not "act

at large in equalizing disparities of bargaining power between

employer and union." NLRB v. Ins. Agents’ Int’l Union, 361

U.S. 477, 490 (1960). Nor may the Board impose a substantive

provision upon the parties. "[A]greement may in some cases be

impossible, and it was never intended that the Government

7

would in such cases step in, become a party to the negotiations

and impose its own views of a desirable settlement." H.K.

Porter, 397 U.S. at 103-04.

Either party to collective bargaining may lawfully insist to

the point of impasse upon any provision related to a "mandatory

subject of bargaining," which is to say "wages, hours, [or] other

terms and conditions of employment." See 29 U.S.C. § 158(d);

NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349

(1958). An employer may even insist upon a provision granting

it discretion unilaterally to change certain conditions of

employment during the term of the CBA. NLRB v. Am. Nat’l

Ins. Co., 343 U.S. 395, 409 (1952) ("Whether a contract should

contain a clause fixing standards for such matters as work

scheduling or should provide for more flexible treatment is an

issue for determination across the bargaining table, not by the

Board").

When an employer and a union reach an impasse over a

mandatory subject of bargaining, either side may resort to

economic warfare – a strike, a lockout, etc. – and "the

employer’s statutory duty to maintain the status quo during

postcontract negotiations ... end[s]." Laborers Health &

Welfare Trust Fund v. Advanced Lightweight Concrete Co., Inc.,

484 U.S. 539, 543 n.5 (1988). The employer then may "mak[e]

unilateral changes that are reasonably comprehended within his

preimpasse proposals." Am. Fed’n of Television & Radio Artists

v. NLRB, 395 F.2d 622, 624 (D.C. Cir. 1968) (internal quotation

mark omitted). The rationale for this rule is that the employer’s

unilateral imposition of the final offer "breaks the impasse and

therefore encourages future collective bargaining." McClatchy

Newspapers, Inc. v. NLRB, 131 F.3d 1026, 1032 (D.C. Cir.

1997). It "moves the process forward by giving one party, the

employer, economic leverage." Id.

An employer’s right to deploy its economic weapons

8

following an impasse is not absolute: The Supreme Court has

held the Board, in order to facilitate the process of collective

bargaining, may place certain restrictions upon what an

employer may do after impasse. In Charles D. Bonanno Linen

Service, Inc. v. NLRB, 454 U.S. 404 (1982), for example, the

Court upheld a Board order barring an employer from

withdrawing from a multi-employer unit after bargaining had

reached an impasse. Id. at 412. The Court stated more

generally that the Board may "deny an employer a particular

economic weapon ... in the interest of the proper and preeminent

goal, maintaining the stability of the multiemployer

bargaining unit." Id. at 419; see also NLRB v. Great Dane

Trailers, Inc., 388 U.S. 26, 32 (1967) (upholding Board decision

prohibiting employer from granting benefits to strike-breakers

but not strikers because of "discouraging effect on ... future

concerted activity"); NLRB v. Erie Resistor Corp., 373 U.S. 221,

231 (1963) (upholding Board decision prohibiting employer

from granting super-seniority to strike-breakers because

"[s]uper-seniority renders future bargaining difficult, if not

impossible"); cf. Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 309

(1965) (holding lockout was not unfair labor practice because

"the employer’s intention was [not] to destroy or frustrate the

process of collective bargaining").

C. The McClatchy doctrine

In McClatchy Newspapers, 299 N.L.R.B. 1045 (1990)

(McClatchy I), the Board announced a new exception to the

implementation-after-impasse rule, again in order to facilitate

post-impasse bargaining. In that case the employer, after an

impasse in negotiations, implemented its proposed merit pay

system, which gave it almost complete discretion to determine

wages. Initially the Board held the employer had committed an

unfair labor practice because the union had not "waived" its

right to bargain over wages. Id. at 1046-47. This court found

the Board’s explanation inconsistent with Board precedent,

9

granted the employer’s petition for review, and remanded the

case for the Board to give a more adequate account of its

position. NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153,

1153-54 (D.C. Cir. 1992) (per curiam) (McClatchy II). In

separate concurring opinions, Judges Edwards and Silberman

proposed a variety of alternative theories upon which the Board

might justify its result. Among them was Judge Edwards’s

theory that "a unilateral, discretionary merit pay scheme ... may

pose a substantial threat to the union’s role as the employees’

representatives." Id. at 1172. He explained:

If ... the employer can make unconstrained wage

adjustments, the futility of union representation may be

driven home to each employee in much the same way the

unilateral change doctrine seeks to avoid. Admittedly, the

unilateral change doctrine generally presumes that

implementing changes post-impasse does not hurt

collective bargaining. But if the employer can indefinitely

adjust employee wages ... impasse will no longer be [a]

"temporary" phenomenon .... Where the employer has the

unconstrained authority to adjust wages to respond to

changing conditions, it will have substantially smaller

incentives to restart collective bargaining.

Id. at 1172-73 (footnote omitted).

On remand, the Board again held the employer had

committed an unfair labor practice, essentially adopting Judge

Edwards’s rationale. See McClatchy Newspapers, Inc., 321

N.L.R.B. 1386, 1390-91 (1996) (McClatchy III) ("[C]arte

blanche authority over wage increases" would be "inherently

destructive of the fundamental principles of collective

bargaining") (emphasis and footnote omitted). If the employer

had complete discretion to set wages, the Board explained, then

the union would be unable to participate knowledgeably in

further bargaining. Id. at 1391. Moreover, the merit pay

10

provision would "disparage the [union] by showing, despite its

resistance to this proposal, its incapacity to act as the

employees’ representative in setting terms and conditions of

employment." Id. Emphasizing the "paramount importance of

wages as a mandatory subject of bargaining," id. at 1391 n.22,

the Board concluded the provision was "inimical to the policies

of the Act" because it excluded the union "from any meaningful

bargaining as to the procedures and criteria governing the merit

pay plan." Id. at 1391.

McClatchy again petitioned for review, and this time we

enforced the Board’s order. McClatchy Newspapers, Inc. v.

NLRB, 131 F.3d 1026 (D.C. Cir. 1997) (McClatchy IV). Citing

Bonanno Linen, we noted that "the Board has wide latitude to

monitor the bargaining process." Id. at 1031. We deferred to

the Board’s opinion that the provision at issue might

"irreparably undermine [the union’s] ability to bargain. Since

the union could not know what criteria, if any, petitioner was

using to award individual salary increases, it could not bargain

against those standards; instead, it faced a discretionary cloud."

Id. at 1032. We also accepted the Board’s rationale that the

union would appear impotent to its members if it had no

information to relay. Id. at 1033. Recognizing the principle of

Insurance Agents that the Board may not "act at large in

equalizing disparities of bargaining power between employer

and union," id. (quoting Insurance Agents, 361 U.S. at 490)

(alteration and internal quotation marks omitted), we concluded

"this case is marginally closer to Bonanno Linen"; "as in

Bonanno Linen, the Board has denied the employer a particular

economic tactic for the sake of preserving the stability of the

collective bargaining process." Id. Most important for purposes

of the present case, we noted the Board had confined its decision

to provisions governing wages because wages are "a key term

and condition of employment and a primary basis of

negotiations," id. at 1035 (internal quotation marks omitted).

We concluded:

11

[T]he Board is free to draw on its expertise to determine

that wages are typically of paramount importance in

collective bargaining and to suggest that wages, unlike

scheduling or a host of other decisions generally thought

closely tied to management operations, are expected to be

set bilaterally in a collective bargaining relationship.

Id.

The Board has since held employers ran afoul of the rule in

McClatchy in four cases, three of which involved wage

provisions. We approved the Board’s application of McClatchy

to a wage provision that gave "unfettered discretion to the

employers at every stage of the pay determination process,"

Anderson Enters., 329 N.L.R.B. 760 (1999), enf’d, 2 Fed. App’x

1, 3 (2001), but vacated an order in which the Board applied

McClatchy to a relatively nondiscretionary unilateral wage

provision. Detroit Newspaper Agency, 326 N.L.R.B. 700

(1998), vacated sub nom. Detroit Typographical Union No. 18

v. NLRB, 216 F.3d 109, 118 (2000). The First Circuit vacated

the third Board decision, which concerned a provision giving an

employer the discretion either to pay a predefined wage or to

abide by "current marketplace pay practices," and remanded the

case for further consideration. See Edward S. Quirk Co., Inc.,

330 N.L.R.B. 917 (2000), vacated and remanded, 241 F.3d 41,

45 (2001) ("McClatchy is based on employer discretion and

discretion is a matter of degree, implicating policy judgments

informed by Board expertise. However ... the Board owes the

employer and a reviewing court ... a reasoned explanation of

where it draws the line ...."), reinstated, 340 N.L.R.B. 301, 30102

(2003). In the fourth case, which was not reviewed by any

court, the Board applied McClatchy to a highly discretionary

provision involving health benefits. KSM Indus., Inc., 336

N.L.R.B. 133, 135 (2001), modified in part, 337 N.L.R.B. 987

(2002).

12

D. The relay point change

As recounted above, the Board held MCA ran afoul of

McClatchy when it unilaterally imposed a provision reserving

the right to change relay points. That decision was arbitrary and

capricious for three reasons. First, the management rights

provision at issue is utterly unlike the provision in McClatchy or

the provision at issue in any subsequent case to which the Board

has applied McClatchy. Second, it is inconceivable the

provision will jeopardize collective bargaining in the affected

unit – the stated concern underlying McClatchy. Finally, the

Board’s decision here would impinge upon the employer’s

ability to run its business more severely than did McClatchy

itself or any of its sequellae.

First. The Board’s decision is inconsistent with both the

plain terms and the reasoning of McClatchy, which was based

upon and limited by the "paramount importance of wages as a

mandatory subject of bargaining." 321 N.L.R.B. at 1391 n.22.

We expressly predicated our approval of the Board’s decision

upon the distinction between wages and "scheduling or a host of

other decisions generally thought closely tied to management

operations." 131 F.3d at 1035. Indeed, the Board has

consistently limited its application of McClatchy to provisions

giving an employer discretion to determine wages (or, in one

case, benefits) rather than discretion to configure "management

operations" – until this case.

The placement of a relay point is a quintessentially

managerial decision; its location presumably will affect the

efficiency of the Company’s operations but it will have no

material effect upon the Company’s wage bill. If, as a result of

changing a relay point, some drivers lose work, then other

drivers gain as much work; meanwhile, the bumping provision

that MCA implemented as part of its final offer prevents

13

management from manipulating relay points to give

significantly more hours to less senior drivers.

The Board contends the placement of a relay point is

nonetheless subject to the McClatchy doctrine because it will

have a "direct effect on wages." MCA, 347 N.L.R.B. No. 88, at

1 n.2. The effect is no more significant, however, than the effect

of any management decision about the scheduling of work or its

allocation among plants or shifts. Cf. Clinton’s Ditch Coop.

Co., Inc. v. NLRB, 778 F.2d 132, 135, 140 (2d Cir. 1985)

(management’s right to change drivers’ assignments had only

"indirect, limited connection to ... any ... aspect of labor

relations"). In McClatchy IV we deferred to the Board’s view

that wages are such a fundamental subject of collective

bargaining that they are uniquely "expected to be set bilaterally

in a collective bargaining relationship." 131 F.3d at 1035. The

placement of a relay point, with its incidental effect upon wages,

simply is not comparable.

Second. Neither of the pragmatic reasons for the Board’s

holding in McClatchy applies to this case: If an employer could

unilaterally set wages, then the union (1) would be "unable to

bargain knowledgeably" and (2) would appear impotent to its

members because of its "incapacity to act as the employees’

representative in setting terms and conditions of employment."

McClatchy III, 321 N.L.R.B. at 1391. As to the former,

management’s change in the location of a relay point did not

preclude "meaningful bargaining as to the procedures and

criteria governing" wages, id.; nor, because wage rates and other

terms of employment were fixed in nondiscretionary provisions

of the final offer, did the change require the Union to bargain

against a "discretionary cloud." McClatchy IV, 131 F.3d at

1032.

As for threatening to render the Union impotent and

collective bargaining pointless in the eyes of employees, as

14

applied here the idea is fanciful. The change in the relay point

at issue here, like each of the six changes MCA made during the

two year term of the 2001 CBA, was made in response to an

unexpected event. Having moved the relay point merely in

order to keep trucks rolling during the strike, the Company then

found it was more efficient to retain the new location. As the

strike-induced move illustrates, the events that prompt the

Company to change a relay point are both sporadic and

sufficiently unexpected that the parties could not realistically

have addressed them in the CBA; accordingly, management’s

reservation of the right to respond to them posed no realistic

threat to the process of collective bargaining. Were it otherwise,

the Union would not have agreed to the management rights

clause in the 2001 CBA. More significant, with the benefit of

experience under that agreement, the Union tentatively agreed

to the clause again in the 2003 bargaining for a new agreement;

indeed, the bargaining history shows the Union was concerned

not with eliminating management’s right to move relay points

but with adding a more robust bumping provision in order to

protect more senior drivers from any significant loss of work

when a relay point is changed.

Third. The Board’s decision impedes the employer’s ability

after impasse to implement its final offer to a far greater extent

than had any prior decision. Bear in mind that in McClatchy

itself the employer was prohibited only from implementing a

system in which it would have determined wages on a purely

discretionary basis; nothing in that decision bars an employer

from implementing a final offer in which wages are determined

according to fixed criteria. In this case, the ALJ correctly noted

the management rights provision at issue left MCA with

complete discretion to move relay points, MCA, 347 N.L.R.B.

No. 88, at 7, but neither the ALJ nor the Union ever suggested

there might be fixed criteria MCA could have offered and then

implemented after impasse to govern the placement of relay

points. Nor does that seem feasible for, as we have seen, relay

15

points, unlike wages, are changed in response to infrequent and

exogenous events. In other words, because no nondiscretionary

provision appears possible, the Board’s decision would

effectively preclude MCA from ever changing a relay point after

impasse. That would be both anomalous, considering that MCA

was free unilaterally to implement provisions regarding more

fundamental subjects of bargaining, see, e.g., E.I. du Pont de

Nemours & Co., 346 N.L.R.B. No. 55, at 11-12 (2006)

(permitting unilateral imposition of nondiscretionary health care

plan), enf’d, 489 F.3d 1310, 1320 (D.C. Cir. 2007), and

inconsistent with the narrow exception in McClatchy to the

general rule allowing the employer to implement its final offer

after impasse.

The ALJ justified the application of McClatchy to this case

as follows:

Section 8(d) of the Act requires the parties to bargain over

"wages and hours." It would undermine this specific

statutory mandate if an employer could relegate to itself the

discretion to determine [relay points after impasse]. In

addition, to allow an employer to do so unjustifiably affects

the balance of power between labor and management and

thereby undermines an important goal of the Act of

encouraging the parties to reach a collective-bargaining

agreement. This is so because ... if an employer can

relegate to itself this discretion a union’s bargaining

strength is diminished and the likelihood of reaching an

agreement is decreased.

347 N.L.R.B. No. 88, at 7.

The ALJ’s analysis is in effect a broadside attack upon the

implementation-after-impasse doctrine. His concern that an

employer would undermine the statutory mandate to bargain by

unilaterally implementing its final offer after impasse overlooks

16

the very purpose of the doctrine, which is to "break[] the

impasse and therefore encourage[] future collective bargaining

... by giving one party, the employer, economic leverage."

McClatchy IV, 131 F.3d at 1032. His other point – that

unilateral implementation means the union could no longer

"seek concessions from the employer" in return for its

agreement, MCA, 347 N.L.R.B. No. 88, at 7 – ignores the

Supreme Court’s teaching that it is not the Board’s role to

"equalize[e] disparities of bargaining power between employer

and union." Insurance Agents, 361 U.S. at 490.

In affirming the ALJ, the Board rather limply stated only

that "here, as in McClatchy, the unilateral change had a direct

effect on wages," MCA, 347 N.L.R.B. No. 88, at 1 n.2, without

any more particularized examination of the significance of that

effect. The Board gave no reason to believe the relay point

provision here at issue would impede collective bargaining.

Therefore, we think it necessary to reiterate a point we made in

McClatchy IV: The Board must proceed cautiously in applying

the McClatchy doctrine, taking care to tether its applications to

the pragmatic justification for that decision, namely, to facilitate

the process of collective bargaining.

III. Conclusion

For the reasons set out above, we hold MCA, after

collective bargaining had reached an impasse, lawfully relocated

its relay point to Havelock from York pursuant to the

management rights provision of its final offer. Therefore, it did

not commit an unfair labor practice when, after the strike ended,

it kept the relay point at Havelock without first bargaining with

the Union. Accordingly, the petition for review is granted and

the Board’s cross-application for enforcement is denied.

So ordered.

er days for truckers may stick

Federal Motor Carrier Safety Administration

http://www.fmcsa.dot.gov/ 

Iowa OSHA

http://www.iowaworkforce.org/labor/iosh/ 

 Mail Contractors of America

http://www.mailcontractors.com/main.htm

U.S. Department of Transportation

http://www.dot.gov/