Question: During bargaining, the employer reached an impasse on
(a) a detailed "management rights" clause,
(b) a broad "zipper" clause,
(c) a waiver-of-past-practices provision, and
(d) a no-strike provision.
The employer's final economic offer consisted of an increase of ten cents per hour for seven of the nine bargaining unit employees and a wage review for the remaining two. Based on these facts, the NLRB concluded that the employer had engaged in mere surface bargaining and condemned the employer's final proposals as "terms which no self respecting union could be expected to accept." The company appealed the case to the Ninth Circuit. If you had sat on the panel at the appellate court level, would you have agreed or disagreed with the board's conclusions? See NLRB v.Tomco Communications, Inc. [567 F.2d 871, 97 L.R.R.M. 2660 (9th Cir. 1978)].