 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS:                       ATTORNEYS FOR APPELLEE:
                                                Review Board of the Indiana Department of
RICHARD J. SWANSON                              Workforce Development
ROBERT A. HICKS
Macey Swanson and Allman                        GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                KATHY BRADLEY
                                                Deputy Attorney General
                                                Indianapolis, Indiana

                                                ATTORNEY FOR APPELLEE:
                                                New NGC Inc., d/b/a National Gypsum Services
                                                Company

                                                WAYNE O. ADAMS, III
                                                Ice Miller LLP

                                                                              FILED
                                                Indianapolis, Indiana

                                                                          Oct 18 2012, 9:13 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                  CLERK
                                                                                of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




LOGAN WININIGER, RICHARD ROBERTS,               )
et al,                                          )
                                                )
       Appellants-Claimants,                    )
                                                )
               vs.                              )      No. 93A02-1203-EX-225
                                                )
REVIEW BOARD OF THE INDIANA                     )
DEPARTMENT OF WORKFORCE                         )
DEVELOPMENT,                                    )
                                                )
       Appellee,                                )
                                                )
NEW NGC INC., d/b/a NATIONAL GYPSUM             )
SERVICES COMPANY,                               )
                                                )
       Appellees-Respondents.                   )
        APPEAL FROM THE REVIEW BOARD OF THE INDIANA WORKFORCE
                             DEVELOPMENT
                           Cause No. 11-R-06031
                           Cause No. 11-R-06032


                                     October 18, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge


      Logan Wininiger and numerous other employees (the Claimants) of New NGC Inc.,

d/b/a National Gypsum Services Company (the Company) appeal from an adverse

determination of their claims for unemployment benefits by the Review Board (Review

Board) of the Indiana Department of Workforce Development (the Department). On appeal,

the Claimants present a number of issues, which we consolidate and restate as whether the

Review Board erred in determining that the Claimants were ineligible for unemployment

compensation because they were unemployed as a result of a labor dispute. We affirm.

      The Company is a manufacturer of wallboard, plaster, cement rock, and other products

used in commercial and residential construction. The Company conducts its manufacturing

operations in plants located throughout the United States. This case involves 78 employees

at the Company’s plant in Shoals, Indiana, all of whom were represented by the United Steel

Workers Union Local 70354 (the Union).

      The Union and the Company had negotiated a collective bargaining agreement that

was set to expire in January 2011, and in November of 2010, the Union informed the

Company that it wanted to negotiate a new collective bargaining agreement. The Union and

                                            2
the Company agreed to exchange proposals, and on January 13, 2011, the Union gave the

Company its comprehensive proposal. At a meeting on January 24, 2011, the Company

provided the Union with new proposals related to the employees’ retirement plans. The

Company proposed that current employees forty years old or older would continue with a

defined benefit plan as provided in the previous collective bargaining agreement. Employees

younger than forty would retain their vested benefits accrued under the defined benefit plan

through December 31, 2011, but effective January 1, 2012, they would cease accruing

benefits under that plan and would be shifted to a defined contribution retirement account.

The Company had decided in 2009 that it could not continue with the previous defined

benefit plan because it left the Company open to unknown liability in the future. The defined

contribution plan, however, provided the Company with certainty regarding its future

contributions. As a result, all contracts negotiated by the Company since 2009 at its other

plants have included the new retirement account provision. In addition to the proposed

modification to the retirement plans, the Company indicated that it would propose a change

to the employees’ 401(k) plans that would allow the Company to suspend its matching

contributions after giving notice to the Union.

       The parties were unable to reach an agreement prior to the expiration of the old

collective bargaining agreement, but the employees continued to work and the Company

continued to run the plan under most of the provisions of the old agreement. On February 9,

2011, the Company and the Union began negotiating economic issues, including the

proposed shift from the defined benefit plan to the defined contribution retirement account

and the 401(k) contribution suspension provision. The Company and the Union negotiated a

                                             3
number of different items, but no agreement was reached with respect to the proposed

changes to the retirement accounts and 401(k) provision.

       In its March 9 response, the Union rejected the Company’s proposals regarding the

new retirement account and 401(k) provisions. On the same date, the Company delivered

another offer, in which it held to its previous proposals on both of these items. The Union

responded on March 10, and again flatly rejected both proposals. In its next offer presented

that day, the Company again held to its previous offer on the retirement account and 401(k)

issues, and the Union responded by rejecting the Company’s proposal on the retirement

account yet again. The Union did, however, offer a counterproposal with respect to the

Company’s 401(k) language. Specifically, the Union proposed that the Company would be

permitted to suspend its 401(k) contributions if it first negotiated in good faith with the Union

and obtained the Union’s agreement. Additionally, at some point on March 9 or 10, the

Union representative apparently suggested that the Union might accept a defined contribution

retirement plan if the Company could find an account with a guaranteed return.

       At the next bargaining session on March 28, 2011, the Company responded to the

Union’s latest proposal by maintaining its previously rejected offer on the retirement account.

The Company responded to the Union’s counterproposal on the 401(k) contributions by

proposing that instead of being required to obtain the Union’s agreement to suspend

matching contributions, the Company would be required to meet with the Union, provide

information, and explain the need for the suspension. The Company also offered to increase

the pre-suspension notice period to the Union from ten days to thirty days. On the same date,

the Union rejected the Company’s proposals on the retirement account and the 401(k)

                                               4
contributions and held to its March 10 counterproposal on the Company’s right to suspend

401(k) contributions. The Company responded by holding to its most recent offer on both of

these issues. The Union then offered a contingent proposal whereby it offered to withdraw

some of its other proposals in exchange for the Company’s withdrawal of certain proposals,

including those concerning the new retirement plan and the 401(k) contributions. The

Company held to its previous position, and the Union responded by presenting the same

contingent proposal, which the Company again rejected.

        At the conclusion of the negotiations on March 28, the Company informed the Union

that it did not believe that the parties could proceed any further and presented its last, best,

and final offer, which contained the same provisions regarding the retirement plan and 401(k)

that the Company proposed in its initial counteroffer that day. The Union submitted the offer

to its membership but recommended a no vote because of the changes to the retirement

account and 401(k) plan. On April 9, 2011, the Company’s offer was rejected by a vote of

65-3.

        The Union and the Company then went to mediation on May 10, 2011. At the first

mediation session, the Union representative again proposed that the Company should offer a

new retirement account with a guaranteed return of four or five percent, but the Company

concluded that no defined contribution plan with such a guaranteed benefit existed. After a

caucus, the Company’s representative stated that it was clear that the Union was not prepared

to reach an agreement and that negotiations were finished for the day.

        At the next mediation session on July 28, the parties were able to clear up a number of

items, with the Union withdrawing some demands and the parties reaching a few agreements,

                                               5
but no progress was made on the retirement account or 401(k) language. Specifically, the

Union presented a counteroffer, in which it unequivocally rejected the Company’s proposal

concerning the retirement account and suspension of 401(k) contributions. In its response,

the Employer incorporated all tentative agreements that had been reached by the parties on

other issues, but held to its previous position on the retirement account and 401(k)

contributions.   The Union then presented another counteroffer, again rejecting the

Company’s proposals concerning the new retirement account and the suspension of 401(k)

contributions, and the Company responded by again holding to its previous offer. The Union

responded that it would need to discuss the matter with the Union’s national organization,

and the bargaining session came to a close.

       On September 2, the Union and the Company continued mediation, this time with the

Union’s district director in attendance. The district director described the proposed defined

contribution retirement plan as an “attack on the middle class”, and stated that if the middle

class declined significantly, there would be no one left to buy the Company’s wallboard.

Transcript at 187. The Company’s representative disagreed and pointed out that employees

at other plants who were represented by United Steel Workers Union had agreed to contracts

containing the same retirement account proposals. The Union’s district director stated that

the national organization had not been aware that some of its locals had agreed to those

provisions and that now that the national organization was aware of them, it would not agree

to them. The district director stated that the Union was opposed to the proposed defined

contribution retirement plan, and the Company responded that it would not modify the

proposed retirement plan.

                                              6
       Following a caucus, the Union representative presented its next counteroffer, which

again rejected the Company’s proposals concerning the new retirement account and the

suspension of 401(k) contributions. The Company’s representative reiterated that the

Company would not modify its proposals on those issues and that, based on the Union’s

stated position and the Company’s continued position, there was nothing further to talk

about. The Company representative further stated that the Union should take the Company’s

offer to the membership for another vote and that absent a vote, they were entrenched on

these issues. Thereafter, the Company presented its last, best, and final offer, with the

addition of the tentative agreements reached during mediation, and the bargaining session

ended without the Union making a commitment to take the offer to the membership for a

vote. By that time, the Union had presented the Company with fifteen counteroffers, but no

agreement had been reached on the retirement account or 401(k) issues.

       In a September 4, 2011 email, the Union representative informed the Company

representative that the Union wished to continue negotiating and did not consider the

bargaining to be at an impasse. The Company representative responded that the Company

had no intention of modifying its proposals concerning the defined benefit retirement account

or the 401(k) matching contributions and that it appeared that the Union was unwilling to

change its position on those issues. The Union representative reiterated that the Union

wanted to continue to attempt to reach an agreement, but he did not indicate a willingness to

accept the Company’s proposals concerning the new retirement account or the 401(k) plan or

offer any new proposals on those issues. The Union representative did not indicate that the

Company’s last, best, and final offer would be presented for a vote, so on September 6, 2011,

                                             7
the Company instituted a lockout. The Company then shifted the work usually performed at

the Shoals plant to its other plants, and the Claimants filed applications for unemployment

benefits stating that they were unemployed due to the lockout.

       On September 9, 2011, the Department requested an initial determination regarding

the Claimants’ eligibility for benefits. Evidentiary hearings were conducted before an

administrative law judge (ALJ) on October 19 and November 21, 2011. On October 24,

2011, five days after the first hearing before the ALJ and approximately six weeks after the

lockout began, the Union and the Company met for one more bargaining session. At the

meeting, the Union proposed yet again that the 401(k) matching contributions could be

suspended only if the Company engaged in good-faith negotiations and obtained the Union’s

agreement. Additionally, and for the first time, the Union presented an alternative retirement

plan. The Company indicated that it would not accept either of these provisions. The Union

and the Company made some progress on a separate issue, but at the conclusion of the

October 24 bargaining session, no agreement had been reached with respect to the retirement

and 401(k) provisions. The Company held to its last, best, and final offer on those issues,

and the Union scheduled a vote for November 23, 2011. The record does not reflect whether

the employees voted to approve the agreement or when, if ever, the lockout came to an end.

       On December 8, 2011, the ALJ issued its decision on the Claimants’ applications for

benefits. The ALJ found that when the Claimants were locked out on September 6, 2011, the

Company and the Union had reached an impasse in their negotiations and, consequently, that

the Claimants were ineligible for benefits because they were unemployed due to a labor

dispute.   The ALJ’s decision included the following findings and conclusions:

                                              8
       In the present case, at the time of the lock out the parties had been negotiating
       for eight months with neither party budging at any time on the new retirement
       account or the 401K provisions. There had been no movement by either party
       on either of those issues during the entire eight months of the union’s fifteen
       counter offers. While they were fluid on some of the other issues, those two
       issues were two critical issues which they had made no progress on. As a
       result the parties were at an impasse. Since the [Company] had indicated that
       they would not change their position on those issues, and the [U]nion
       negotiating team had never indicated a willingness to accept those terms the
       only possible way those issues could have been resolved in the foreseeable
       future was for them to have been submitted to the [U]nion membership for a
       vote, but the [U]nion did not get back to the [Company] to indicate that they
       would consent to a vote prior to the [Company] locking the employees out.
       The Administrative Law Judge finds that there was an impasse at that point, so
       the employees were involved in a labor dispute when the [C]ompany locked
       them out on September 6.

Exhibits at 321, 325.

       The Claimants appealed the ALJ’s decision to the Review Board, and on February 22,

2012, the Review Board affirmed the ALJ’s decision. The Review Board adopted and

incorporated by reference the ALJ’s findings of fact and conclusions of law, with the

following addendum:

       The parties were at an impasse when the lockout occurred on September 6,
       2011. The parties were entrenched on the issues of the new retirement account
       and the 401(k) account. The [Company] had informed the union that unless
       the [U]nion presented the [Company’s] last, best, final offer to the [U]nion for
       a vote, the [Company] would consider the parties to be at impasse. The
       [U]nion had not presented the last, best, final offer to its members for a vote as
       of the morning of September 6, 2011 when the [Company] instituted the
       lockout. On appeal, Counsel for the Claimants argues that subsequent
       negotiations demonstrated that the parties were not at impasse when the
       lockout began. Contrary to Counsel’s argument, any subsequent agreements to
       meet or to negotiate after the lockout was imposed are not relevant to the issue
       of whether the parties were at impasse when the lockout began, because the
       imposition of a lockout does not remove the [Company’s] legal obligation to
       continue bargaining. 29 U.S.C. § 158(a)(5) (2012); NLRB v. Curtin Matheson
       Scientific, Inc., 494 U.S. 775, 778, 110 S.Ct. 1542, 1545, 108 L.Ed. 801, 807
       (1990).

                                               9
Appellant’s Appendix at 9.1 The Claimants now appeal, arguing that the Review Board erred

in concluding that the Company and the Union were at an impasse on the date of the lockout

and the Claimants were therefore unemployed due to a labor dispute.

         The Indiana Unemployment Compensation Act provides that any decision of the

Review Board shall be conclusive and binding as to all questions of fact. Ind. Code Ann. §

22-4-17-12(a) (West, Westlaw current with all 2012 legislation). A Review Board decision

may be challenged as contrary to law, in which case, the reviewing court reviews the

sufficiency of the facts found to sustain the decision and the sufficiency of the evidence to

sustain the findings of facts. I.C. § 22-4-17-12(f). Under this standard, we review (1)




1
  Although the Claimants’ applications for benefits in the Department’s records showed that some of the Claimants were
employed by one company, whose claims were grouped under Department Case No. 11-22728, and that other Claimants
were employed by another company, whose claims were grouped under Department Case No. 11-21164, the parties
stipulated at the administrative hearing that all of the Claimants are employed by the Company. The ALJ issued identical
decisions under both case numbers, and the Review Board issued a single order pertaining to both case numbers, from
which the Claimants now appeal.


                                                          10
determinations of specific or “basic” underlying facts, (2) conclusions or inferences from

those facts, sometimes called “ultimate facts,” and (3) conclusions of law. McClain v.

Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998).

       We review the Review Board’s findings of basic fact under a “substantial evidence”

standard of review. Id. In this analysis, we neither reweigh the evidence nor assess the

credibility of witnesses, and we consider only the evidence most favorable to the Review

Board’s findings. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314.

Reversal is warranted only if there is no substantial evidence to support the Review Board’s

findings. Stanrail Corp. v. Review Bd. of Dep’t of Workforce Dev., 735 N.E.2d 1197 (Ind.

Ct. App. 2000), trans. denied. Next, we review the reasonableness of the Review Board’s

determination of ultimate facts. These facts involve an inference or deduction based upon the

Review Board’s findings of basic fact. McClain v. Review Bd. of Ind. Dep’t of Workforce

Dev., 693 N.E.2d 1314. Finally, conclusions of law are reviewed to determine whether the

Review Board correctly interpreted and applied the law. Stanrail Corp. v. Review Bd. of

Dep’t of Workforce Dev., 735 N.E.2d 1197.

       An employee is ineligible for unemployment compensation benefits if his or her

unemployment is due to a labor dispute. I.C. § 22-4-15-3(a) (West, Westlaw current with all

2012 legislation).   “Not every controversy concerning the terms and conditions of

employment, however, constitutes a labor dispute under the Act.” Lacher v. Review Bd. of

Ind. Dep’t of Workforce Dev., 954 N.E.2d 1098, 1104 (Ind. Ct. App. 2011), trans. denied. A

labor dispute within the meaning of the Act occurs where



                                             11
       the bargaining is not in a fluid state and an impasse has developed in the
       negotiations. An impasse is defined as an absence of an atmosphere in which a
       reasonably foreseeable settlement of the disputed issues might be resolved. A
       settlement is not reasonably foreseeable when the parties are deadlocked on
       certain crucial issues without which an ultimate agreement is not possible. If
       the facts indicate that good faith negotiations are being conducted between
       labor and management, and that bargaining is in a fluid state such that there is
       no impasse, neither party can declare a labor dispute.

Id. (quoting Perfection Bakeries, Inc. v. Review Bd. of Dep’t of Workforce Dev., 783 N.E.2d

736, 740 (Ind. Ct. App. 2003)). “In other words, if an employer locks its employees out

while bargaining is in a fluid state in an atmosphere in which a reasonably favorable

settlement might be reached, the employees are not unemployed due to a labor dispute, and

may be eligible for unemployment benefits.” Perfection Bakeries, Inc. v. Review Bd. of

Dep’t of Workforce Dev., 783 N.E.2d at 740.

       On appeal, the Claimants contend that the Review Board erred as a matter of law by

treating the Union’s refusal to present the Company’s last, best, and final offer to its

membership for a vote as dispositive of the impasse determination. According to the

Claimants, “the Review Board erred on an issue of law because it made the determination of

whether the parties were at an impasse contingent on whether the Union submitted the

September 2nd proposal for a vote instead of determining whether the parties were

deadlocked in their bargaining positions.” Appellants’ Brief at 21. In a related argument, the

Claimants also argue that the Review Board erred as a matter of law because its decision

permitted the Company to unilaterally declare a labor dispute. In support of this argument,

the Claimants direct our attention to the Review Board’s and the ALJ’s findings that the

Company indicated that it would consider the negotiations to be at an impasse if the Union


                                             12
refused to take the September 2 offer to the membership for a vote, and argues that the

Company’s position on impasse cannot be determinative of whether the parties were, in fact,

at an impasse.

       The Review Board adopted the ALJ’s extensive findings and conclusions and added

its own addendum, which made reference to the Company’s statement that it would consider

the parties to be at an impasse if the Union would not present the Company’s final offer for a

vote and the Union’s subsequent failure to do so. There is no indication, however, that the

Review Board treated either of these facts as dispositive of the impasse question. Rather, the

Review Board’s order, when read in conjunction with the ALJ’s findings and conclusions

incorporated therein, clearly indicates that the Review Board considered the entire history of

the negotiations in determining whether the parties had reached an impasse, including the

Company’s indication that the September 2 offer was its last, best and final offer and the

Union’s refusal to present that offer for a vote. The Review Board’s findings must be read

together. Gold Bond Bldg. Prods. Div. Nat. Gypsum Co. v. Ind. Empt. Sec. Div., 169 Ind.

App. 478, 349 N.E.2d 258 (1976). We must decline the Claimants’ invitation to consider

these findings in isolation and, as we explain below, there is ample support in the record for

the Review Board’s finding that the parties were at an impasse. The Review Board did not

err as a matter of law by considering the history of the negotiations, which includes the

Company’s stated belief that the parties were at an impasse and the Union’s refusal to submit

the Company’s last, best, and final offer for a vote, in determining whether the parties were at

an impasse.



                                              13
       Next, the Claimants argue that the Review Board erred as a matter of law by ignoring

evidence of post-lockout negotiation between the Union and the Company in determining

whether the parties were at an impasse as of the date of the lockout. The Review Board

found that “any subsequent agreements to meet or to negotiate after the lockout was imposed

are not relevant to the issue of whether the parties were at impasse when the lockout began,

because the imposition of a lockout does not remove the Employer’s legal obligation to

continue bargaining.” Appellant’s Appendix at 9. The parties disagree as to whether federal

law required the Company to continue negotiating in the face of an impasse. We need not

delve into federal labor law in this regard because we conclude that even if the Review Board

erred in concluding that the Company was legally required to continue negotiating, the error

was harmless because consideration of the post-lockout negotiations could not have altered

the Review Board’s ultimate conclusion.

       As we explained above, six weeks after the lockout began and during the

administrative proceedings in this matter, the Union and the Company met for one more

negotiating session on October 24. At the session, the Union yet again proposed that the

401(k) matching contributions could be suspended only if the Company engaged in good-

faith negotiations and obtained the Union’s agreement; this is the same proposal that had first

been presented by the Union on March 10 and rejected by the Company. The Union also

presented an alternative retirement plan, which was essentially another 401(k) rather than a

pension plan. The Company rejected both of these proposals. The Union and the Company

made some progress on a separate issue, but at the conclusion of the bargaining session, no

agreement had been reached with respect to the retirement and 401(k) provisions. The

                                              14
Company held to its last, best, and final offer on those issues, and the Union scheduled a vote

for November 23, 2011.

       We are at a loss as to how a single additional negotiation session, held six weeks after

the lockout began and at which no agreement on the crucial issues was reached, could

possibly show that the parties were not at an impasse at the time the lockout commenced;

rather, such evidence would only be probative of whether the impasse had come to an end.

Accordingly, the Review Board did not err as a matter of law in finding that the post-lockout

negotiations were irrelevant to the question of whether the parties were at an impasse on the

date of the lockout. We reject the Claimants’ assertion that the Company’s willingness to

consider another proposal from the Union must be construed as a tacit concession that there

had never been an impasse. In this case, the Company did not alter its previous offer on the

retirement and 401(k) issues at the single post-lockout negotiation session, and it appears that

the Company returned to the bargaining table only to determine whether, after a six-week

lockout, the Union had changed its position on those issues.2

       Finally, the Claimants argue that the record does not support the Review Board’s

finding that the parties were at an impasse. As a threshold matter, we must first address the

standard of review applicable to this finding. The Claimants acknowledge this court’s

precedent holding that the existence of an impasse is a factual determination by which this

court is bound so long as it is supported by substantial evidence. See Dietrich Indus., Inc. v.

Teamsters Local Unit 142, 880 N.E.2d 700 (Ind. Ct. App. 2008); Auburn v. Review Bd. of




                                              15
Ind. Emp’t Sec. Div., 437 N.E.2d 1011 (Ind. Ct. App. 1982). The Claimants argue, however,

that these cases incorrectly classified the determination of the existence of an impasse as a

question of basic fact. Specifically, they argue that such a finding necessarily involves an

inference from historical facts, and should therefore be classified as an ultimate fact, which is

reviewed for its reasonableness. We need not address this argument because we would

affirm the Board’s finding of an impasse under either standard.

         The evidence in this case provides ample support for the Review Board’s finding that

the Union and the Company were deadlocked on the issues of the new defined contribution

retirement plan and the Company’s right to suspend its matching contributions to the 401(k)

accounts. The history of the negotiations was set forth above and need not be rehashed at

length here. In sum, throughout the course of approximately six months of negotiations on

economic issues, the Company steadfastly insisted upon the adoption of the defined

contribution retirement plan, without modification, as a condition of reaching a new

collective bargaining agreement. For its part, the Union steadfastly rejected the Employer’s

defined contribution plan. At the May 10 mediation session, the Union representative

proposed that the Company should offer a new retirement account with a guaranteed return

of four or five percent, but the Company rejected this proposal after concluding that no

defined contribution plan with such a guaranteed benefit existed, and the Union did not offer

any alternative proposals prior to the lockout.                      The Company also insisted on the

incorporation of a provision allowing the Company to suspend its 401(k) contributions.


2
 For the same reasons stated above, we are also unconvinced by the Union’s closely related argument that the evidence
concerning post-lockout negotiations made the Review Board’s factual finding that the parties were at an impasse on the

                                                         16
Although the Union proposed a modification requiring the Company to obtain the Union’s

agreement before suspending matching contributions, the Company rejected this

counterproposal, and the Union refused to change its position.

        On September 2, after months of exchanging proposals and making no real progress

on these issues, the Company finally indicated in no uncertain terms that it was not willing to

change its position and submitted its last, best, and final offer. The Company representative

stated that if the Union did not present the offer for a vote, it would consider them to be at an

impasse. The Union representative indicated that the Union wanted to continue to attempt to

reach an agreement, but he did not indicate a willingness to accept the Company’s proposals

concerning the new retirement account or the 401(k) provisions or offer any new proposals

on those issues, and the Union did not present the Company’s final offer for a vote.

        Contrary to the Claimant’s assertions on appeal, the Company’s belief concerning the

existence of an impasse and the Union’s refusal to submit the Company’s final offer for a

vote, while not dispositive, are highly relevant to the issue of whether the parties were at an

impasse. The Company’s stated belief that the parties were at an impasse if the Union

refused to present its last, best, and final offer for a vote was indicative of the Company’s

unwillingness to consider changing its position on the retirement account and 401(k)

suspension issues. Likewise, the Union’s failure to submit that offer for a vote signaled the

Union’s refusal to accept the Company’s final offer. We would be hard-pressed to imagine a

clearer indication that the parties were deadlocked on the retirement account and 401(k)



date of the lockout unreasonable.


                                               17
issues. Under these facts and circumstances, the Review Board’s findings that a settlement

was not reasonably foreseeable and that the Union and Company were at an impasse were

both reasonable and supported by substantial evidence.

       Nevertheless, the Claimants argue that there was no impasse because the Union was

willing to continue negotiating the retirement and 401(k) issues. The dispositive question,

however, is not whether the parties are willing to have continued bargaining sessions, but

whether there exists “an atmosphere in which a reasonably foreseeable settlement of the

disputed issues might be resolved.” Lacher v. Review Bd. of Ind. Dep’t of Workforce Dev.,

954 N.E.2d 1098, 1104 (emphasis supplied). Here, at the September 2 mediation session, the

Company made it clear that it would not budge on the new defined contribution retirement

plan and the 401(k) issues and submitted its last, best, and final offer. Although the Union

indicated that it was willing to continue negotiating, it had already indicated by its actions

that it would not accept the Company’s proposals on those issues by repeatedly rejecting

them. The Union further indicated its unwillingness to accept the Company’s offer by

refusing to present it for a vote. The Union could not prevent an impasse by simply offering

to continue to negotiate where such negotiation would in all likelihood be fruitless.

       The Claimants also argue that there was no impasse because “[b]y the September 2nd

negotiation session, the parties had engaged in productive discussions on both the new

retirement account and 401(k) match issues.” Appellants’ Brief at 28. In support of this

argument, the Claimants note the Union representative proposed that the Company should

offer a new retirement account with a guaranteed return of four or five percent. According to

the Claimants, this request “convey[ed] clearly that the Union was not opposed to the concept

                                             18
of a defined contribution plan.” Id. The Union also points out that at the March 10

bargaining session, it offered a counterproposal to the Company’s 401(k) contribution

proposal that would require the Company to bargain and obtain the Union’s consent before

suspending matching contributions.

       The Company, however, rejected both of these proposals. With respect to the

proposed defined contribution retirement plan with a guaranteed return, the Company

concluded that no such retirement plan existed, and the Union did not present an alternative

retirement plan prior to the lockout. The Company also rejected the Union’s proposal

concerning the Company’s ability to suspend 401(k) contributions. The Company did,

however, make some movement from its original position by proposing that instead of being

required to obtain the Union’s consent to suspend matching contributions, the Company

would be required to meet with the Union, provide information, and explain the need for the

suspension. The Union rejected the Company’s counteroffer and continued to insist that the

Company obtain the Union’s consent prior to suspending 401(k) contributions, and the

Company continued to reject that proposal. Accordingly, the Review Board’s conclusion

that the parties were entrenched and unable to reach an agreement on the retirement and

401(k) issues was reasonable and supported by substantial evidence.

       The Claimants also argue that there was no impasse because the Union and the

Company had made significant progress on other issues and the retirement account and

401(k) provisions were only a small part of the negotiations. The record supports the

Claimants’ contention that the parties reached a number of agreements on other issues;

however, the fact that the parties were able to reach agreements on some issues does not

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preclude a finding of impasse where the parties are deadlocked on key issues. See Gold Bond

Bldg. Prods. Div. Nat. Gypsum Co. v. Review Bd. of Ind. Emp’t. Sec. Div., 169 Ind. App. 478

Ind. App. 478, 349 N.E.2d 258. Although the Company and Union made progress on other

significant issues, they were deadlocked on the proposed defined contribution retirement plan

and the suspension of matching 401(k) contributions, and their disagreement on these crucial

issues prevented them from reaching a settlement.

       For all of these reasons, we conclude that the Review Board’s finding that the Union

and the Company were at an impasse on the date of the lockout was both reasonable and

supported by substantial evidence. The Claimants’ arguments to the contrary are simply

requests for this Court to substitute its judgment for that of the Review Board, which we may

not do on appeal. The Review Board did not err in concluding that the Claimants were

unemployed due to a labor dispute and therefore ineligible for unemployment compensation

benefits.

       Judgment affirmed.

BROWN, J., and PYLE, J., concur.




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