Arlington Metals Corporation

National Labor Relations Board - Administrative Judge Opinions

Jul 23, 2015

13-CA-122273 (N.L.R.B. Jul. 23, 2015)

JD–41–15
Franklin Park, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ARLINGTON METALS CORP.
and
Cases 13-CA-122273
13-CA-125255
UNITED STEEL, PAPER AND FORESTRY, 13-CA-133055
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO (USW)
Melinda Hensel and Daniel Murphy, Esqs.,
for the General Counsel.
William Miossi, Derek Barella, and Benjamin Ostrander, Esqs.,
for the Respondent.
Stephen Yokich, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Chicago, Illinois on
April 27-28, 2015. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-CIO (USW), (the Union or
International Union), filed the charge in 13-CA-122273 on February 10, 2014, the charge in 13-
CA-125255 on March 26, 2014, and the charge in 13-CA-133055 on July 18, 2014. On
September 30, 2014, the General Counsel issued an order consolidating cases, consolidated
complaint and notice of hearing (the complaint). On March 12, 2015, the General Counsel issued
a first amended consolidated complaint and on April 23, 2015, the General Counsel issued an
amendment to paragraph VIII(b) of the complaint. The Respondent filed an answer to the
complaint, as amended, denying the substantive allegations of the complaint.
The complaint alleges that the Respondent has violated Section 8(a)(5) and (1) of the Act by:
since December 16, 2013, refusing to provide the following relevant and necessary financial
information to the Union: “Audited financial statements for the past 4 years certified by an
outside CPA” ; “Financial reports for 2010-2013 to date” which include “a detailed income
statement, a detailed balance sheet, and a statement of cash flows”; “Sales by customer for each
JD–41–15
2
of the last 4 years (2009-2012) and current (2013) and projected sales for the next 3 years (2014-
2016); “An explanation of the Employer’s business conditions, including specific changes that
have occurred and the actual impact on the Employer’s financial condition. Provide specific data,
reports and analysis”; and “Federal and state tax returns for the last 4 years (2009-2012).”
5
The complaint further alleges that the Respondent violated Section 8(a)(5) and (1) during the
period from October 13, 2013 through December 11, 2013, by engaging in “bad faith and/or
surface bargaining by, bargaining with no intent to reach agreement, insisting upon the terms of
its 2012 implemented contract terms” and refusing to provide the information noted above.
Finally, the complaint alleges that the Respondent violated Section 8(a)(5) and (1) by10
withdrawing recognition from the Union on July 10, 2014, and, on the same date, refusing to
allow the Union access to its facility the for the purpose of performing a health and safety
inspection.
On the entire record, including my observation of the demeanor of the witnesses,1 and after 15
considering the briefs filed by the General Counsel, the Respondent and the Union, I make the
following
FINDINGS OF FACT
20
JURISDICTION
The Respondent, an Illinois corporation with an office and place of business in Franklin Park,
Illinois, is engaged in the business of steel slitting and blanking. Annually, the Respondent, in
conducting its business operations described above, purchases and receives at its Franklin Park, 25
Illinois, facility goods valued in excess of $50,000 directly from points outside the State of
Illinois. The Respondent admits, and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
30
ALLEGED UNFAIR LABOR PRACTICES
Background and Overview
The Respondent is involved in cutting and slitting steel for customers at its two locations in 35
Franklin Park, Illinois and Sawyer, Michigan. This proceeding involves only the Franklin Park,
Illinois, facility. According to the testimony of Timothy Orlowski, the Respondent’s executive
vice president, at the Franklin Park facility the Respondent’s operations fall into two categories:

1 In making my findings regarding the credibility of witnesses, I have considered their demeanor, the
content of the testimony, and the inherent probabilities based on the record as a whole. In certain
instances, I credited some, but not all, of what a witness said. I note, in this regard, that “nothing is more
common in all kinds of judicial decisions than to believe some and not all” of the testimony of a witness.
Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp. 179 F.2d
749, 754 (2d Cir. 1950) revd. on other grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC,
349 NLRB 939, 939-940 (2007). In addition, I have carefully considered all the testimony in
contradiction to my factual findings and have discredited such testimony.
JD–41–15
3
toll processing and metal sales. In toll processing the Respondent’s customer buys steel coils
from a steel mill and the Respondent cuts the coils into specific widths and lengths as specified
by the customer. The Respondent is a consignee and does not take title to the steel; rather the
Respondent charges a “tolling fee” to cut the steel to the customer’s specifications. Orlowski
described metal sales as a process in which the Respondent buys steel from a steel mill and cuts 5
it to specific dimensions and then sells the processed steel to customers. Toll processing
comprises approximately 80 percent of the Respondent’s operations, while metal sales constitute
the remaining 20 percent.
In 2007, after the Union conducted an organizing campaign at the Respondent’s Franklin 10
Park facility, a Board election was conducted in which the Union received a majority of the valid
ballots cast. On October 10, 2007, the Union was issued a certification of representative as the
exclusive collective-bargaining representative of the employees in the following appropriate unit:
All full-time and regular part-time production, maintenance, and shipping and receiving 15
employees employed by the Employer at its facility currently located at
11355 Franklin Avenue, Franklin Park, Illinois; but excluding office clerical employees
and guards, professional employees and supervisors as defined in the Act.
At the time of the Union’s certification there were approximately 52 employees in the 20
bargaining unit. After the Union was certified, it assigned the bargaining unit to the United Steel
Workers Amalgamated Local 7773 (the Local) as it was within the Local’s jurisdiction. Pursuant
to the Union’s2 request, collective-bargaining negotiations between the parties began in
approximately November 2007. Local president Frank Shubert and representatives from the
International Union represented the Union while attorney Greg Malovance was the Respondent’s 25
chief spokesperson. The parties had a number of meetings throughout 2008 that were principally
focused on noneconomic items and reached tentative agreement on most of those issues. In
November 2008, the parties began to discuss economic issues. In January 2009, Malovance
retired and his partner, William Miossi, became the Respondent’s chief spokesperson.
30
After the Union’s certification as the bargaining representative in the fall of 2007, the
Respondent began to suffer a decline in business because of the recession. According to
information provided by the Respondent to the Union in October 2011 (CP Exh. 3; Tr. 409, 453-
454) the Respondent suffered losses from 2007 through October 2011. This document reflects
that in 2006 the Respondent processed 201,867 tons of steel with 52 unit employees and had a 35
profit of $1229. In 2007 the Respondent processed 154,307 tons of steel with 48 employees and
experienced a loss of $656,442. In 2008 the Respondent processed 143,371 tons of steel with 40
unit employees and suffered a loss of $965,403. In 2009 the Respondent processed 100,854 tons
of steel with 24 unit employees and suffered a loss of $964,009. In 2010 the Respondent
produced 126,912 tons with 24 unit employees and suffered a loss of $452,170. In 2011 through 40
October 5, 2011, the Respondent had produced 64,351 tons with 24 unit employees and had
incurred a loss of $361,000. The Respondent projected its annual loss that year to be $722,000.

2 For the most part, I will refer to the International Union and the Local Union collectively as the
Union
JD–41–15
4
The first meeting between the parties in which Miossi served as the Respondent’s principal
spokesman occurred in March 2009. William Gibbons, a retired codirector of district 7 of the
International Union, also began to attend the negotiation meetings in 2009 pursuant to the
request of Jose Gudino, the subdirector of district 7, subdistrict 1 of the International Union.
While the Respondent had proposed a wage increase of an undetermined amount in November 5
2008, in March 2009, the Respondent withdrew that proposal and Miossi indicated to the Union
that the Respondent had to process 180,000 tons of steel before it could give a wage increase.3
Miossi testified that during meetings held with the Union in the early part of 2009, he told the
Union that the Respondent needed to process 180,000 tons a year in order to break even (Tr. 10
402). Miossi further testified, that prior to relying that information to the Union, Timothy
Orlowski had informed him that the Respondent needed to process 180,000 tons in order to break
even, without explaining it in any further detail (Tr. 404). Miossi admitted that in 2009 he told
the Union that the Respondent was losing money (Tr. 407).
15
In May 2009, after the Union had rejected its final offer, the Respondent declared that the
parties were at an impasse. The Respondent unilaterally implemented its final offer on August 3,
2009. In the final offer that was implemented (R. Exh. 3), the Respondent reduced the wages of
existing employees and instituted a “Tier #2 Rate” for all employees hired after the
implementation of its proposal. The Tier 2 rate was generally lower than the unilaterally 20
implemented rate of pay for current employees. The various rates were set forth in the
implemented offer as “Appendix A, Wage and Classification schedule.” Footnote (d) of
Appendix A indicates:
The Company will re-store (sic) the wage rates in effect immediately prior to the25
effective date of this Agreement if in a twelve-month period immediately following the
effective date of this Agreement the Company processes 180,000 tons of steel.
Lump Sum: The Company will pay each employee a lump-sum bonus on or around the
30th month following the effective date of this Agreement, if during the second full year 30
of this Agreement the Company processes 180,000 tons of steel. Such lump-sum
payment will be equal to 1% of the employee’s previous years lowest base rate multiplied
by 2080.
While the record reflects that the parties met approximately 35 times in collective-bargaining 35
negotiations between November 2007 and January 1, 2012, there is no record evidence regarding
any meetings held in 2010. On April 7, 2011, the Respondent proposed a number of changes to
the terms that it had unilaterally implemented in August 2009. The Union requested bargaining
over the proposed changes and the parties met 9 times between April 2011 and December 7,
2011. At the meeting held on December 7, 2011, the Respondent declared an impasse and 40
announced its intention to implement the terms of its final offer on January 2, 2012. This final
offer amended the 2009 unilaterally implemented terms and conditions of employment.

3 I base this finding on Shubert’s uncontradicted and credited testimony regarding the March 2009
negotiation meeting (Tr. 134-135) and admissions made by Miossi during his testimony (Tr. 399-401).
JD–41–15
5
In a letter to the Union dated December 9, 2011, (R. Exh. 4), Miossi summarized the changes
contained in the Respondent’s November 2011 final offer. This letter indicated that the proposal
was to be implemented on January 1, 2012, and would eliminate the 10 minute rest period for
unit employees that was set forth in article 7.2 of the 2009 unilaterally implemented proposal.
The letter further indicated that article 8.2 of the proposal to be implemented on January 1, 2012 5
would “amend the provisional provision for overtime after working 8 hours in a day if the
employee has worked a full 40 hour schedule during that week.”4 The letter also indicated that
the proposal to be implemented on January 1, 2012, would eliminate the shift differential set
forth in article 10 of the 2009 implemented proposal. Finally, the December 9, 2011 letter
indicated that, effective on January 1, 2012, the Respondent would provide companywide only a 10
Health Savings Account (HSA) option for health insurance. The letter further provided that in an
effort to meet the Union’s concerns for calendar year 2012 only, the Respondent would continue
as options that employees could also elect the existing PPO, and an added HMO option.
Employees opting to continue the PPO or selecting the HMO would pay the percentage of the
premium stated in appendix B to the implemented terms +100 percent of the total difference 15
between the HMO premiums and the HSA/PPO premiums. Finally, the letter noted all other
2009 implemented terms would remain unchanged. In the letter, Miossi indicated “so there is no
misunderstanding, our final proposal is just that-final. We have done the best we can do to treat
and reward our employees fairly, protect their job security and at the same time remain
competitive in our industry.” On January 1, 2012, the Respondent implemented its final proposal 20
as summarized in Miossi’s December 11, 2011 letter.
The parties met on March 15, 2012, and the Union made a proposal which the Respondent
rejected. In June 2012, the Union again requested to meet and bargain, but the Respondent
declined the request. The Respondent expressed the position that the parties were in an impasse 25
and that the Respondent did not believe there were sufficiently changed circumstances to break
the impasse.
Pursuant to a petition filed in Case 13-RD-068844, an election was conducted at the
Respondent’s Franklin Park facility in July, 2012. The Union received a majority of the valid 30
votes cast and on July 31, 2012, the Union was again certified as the bargaining representative
for the employees in the unit described earlier in this decision. In September, 2012, the Union
requested that the Respondent meet and bargain but the Respondent again declined based on its
position that the parties were still an impasse.
35
Thereafter, the Union filed unfair labor practice charges and on July 8, 2013, Regional
Director for Region 13 approved a unilateral informal settlement agreement in Cases 13-CA-
90888, 13-CA-101632 and 13-CA-105007. The settlement agreement, which contained a non-
admission clause, provided, inter alia, that the Respondent would, upon request, meet and
bargain in good faith with the Union and grant access to the Union’s representatives, for a 40

4 Article 8.2 of the 2009 unilaterally implemented proposal provided that:
Time and one-half (1 1/2) the employee's regularly hourly rate shall be paid for all hours
worked over eight (8) hours in any workday: provided, however, that the employee must have
worked all of his scheduled hours in the workweek. This Section shall only apply when the
regularly scheduled workweek consists of five (5) 8 hour work days; provided that an
employee will be considered to have worked all of his scheduled hours if the Company
decides during any such week less than forty (40) hours of work will be made available.
JD–41–15
6
reasonable period and at a reasonable time, to investigate health and safety concerns. The
settlement agreement also extended the Union’s certification year for 1 year from the date of the
approval of the settlement agreement.
The September and October 2013 Meetings5
In late August 2013, Gudino sent an email to Miossi asking him to indicate available dates to
discuss the recent discharge of the Union’s steward at the Franklin Park facility, Frederico Ceja,
and to schedule negotiation meetings. The parties agreed to meet on September 12, 2013, to
discuss the discharge of Ceja and some insurance issues. The parties also agreed to start the 10
meeting at 8:30 a.m. on September 12, because Miossi had to leave for another scheduled
meeting at noon (R. Exh. 5).
On September 12, 2013, the parties met at the Courtyard Marriott in Elmhurst, Illinois.
Present for the Respondent were Miossi and Sharon Orlowski, who is involved in non-steel 15
purchasing for the Respondent, and functioned as the Respondent’s note taker at the meeting.
Present for the Union were Gibbons, Gudino, and Shubert. Ceja was also present at the meeting.
The meeting was devoted principally to a discussion about the circumstances surrounding Ceja’s
discharge. Miossi indicated to the Union that the Respondent would not reinstate Ceja. Gibbons
requested that the Respondent agree to arbitrate Ceja’s but Miossi denied the request to arbitrate 20
on the basis that the parties had not reached a collective-bargaining agreement. The parties then
discussed insurance issues involving two employees, Szymanski and Fudala, who were not
actively working and were on some form of disability status. The parties did not review the
status of negotiations as a whole at this meeting. After this meeting, the parties agreed to meet
for collective-bargaining on October 31, 2013.25
The October 31, 2013 meeting took place at the same location as the September 12 meeting.
Present for the Union were Shubert, Gibbons, and Gudino. Bargaining unit employees Antoni
Golik, and Alfred Karas also attended. Present for the Respondent were Miossi and Sharon
Orlowski.5 Gibbons was the chief spokesperson for the Union and Miossi did all the speaking for 30
the Respondent. The meeting began by Gibbons stating that the parties had not had a collective-
bargaining meeting for a long time, and that the Union wanted to negotiate a contract that would
be beneficial to both parties. Gibbons stated that the Union had an eleventh proposal to make and
that it represented a substantial change in its position, but before he gave it to the Respondent he
wanted to share with it documents that he had prepared illustrating the significant and substantial 35
economic losses that the Respondent’s employees had suffered in the last couple of years. At this
point, Gibbons gave to the Respondent a document that he had prepared entitled “Economic

5 In making my findings regarding what occurred at the bargaining session conducted on October 31,
I have relied principally on the credited testimony of Gibbons and Shubert and the contemporaneous
notes that Shubert made of the bargaining session (GC Exh. 5). The detailed testimony of Gibbons is
corroborated by Shubert’s testimony and is consistent with Shubert's notes. I have also relied on the
typewritten notes that Sharon Orlowski prepared from handwritten notes that she took at the meeting (R.
Exh. 15). Orlowski’s notes are generally consistent with the testimony of Gibbons and Shubert and the
notes taken by Shubert. To the extent that the testimony of Miossi conflicts with that of Gibbons and
Shubert I do not credit it. Miossi's testimony was more generalized than that of Gibbons and Shubert and I
generally find their testimony to be a more reliable version of the events.
JD–41–15
7
Adverse Impact of AMC’S Proposals on Employees” (GC Exh. 6) which contained the
following:
Likelihood that employees will not receive a wage increase in 8 years.
5
Employees suffered an approximate 90 cents per hour pay cut in 2009.
The economic impact on employees due to inflation-cost-of-living alone from
2006 to 2013 results in over a 13% loss in earning power.
10
The projected estimated loss in earning due to inflation-cost-of-living will result
in an additional 4% loss in earnings if the employees do not receive a wage
increase.
The combined economic impact due to the cost-of-living on employee’s earnings 15
And spendable income will equal an estimated loss of over 17% or over $2.50 an
hour.
When the impact of the approximate $.90 per hour pay cut is included the total
earnings -income loss is over $3.40 per hour or over $7000 per employee per year 20
on a straight time basis.
When the economic adverse impacts of the group insurance premiums are
considered there is an estimated loss of an average of over $.30 per hour
in premiums alone. This equals a combined loss of almost $4. 00 per hour.25
When the out-of-pocket costs of the changed Health Care plan (HSA) is
considered the cost could exceed $5000 per year or an additional $2.40 cents per
hour.
The total potential adverse impact of the Company’s proposal could equal an 30
estimated $6.40 per hour loss to employees or over $13,000 per year. (Emphasis
in the original.)
The above numbers do not take into consideration that the Company is
experiencing an hourly labor cost savings of approximately $3.67 per hour as a 35
result of the termination of the rest break periods. (Emphasis in the original.)
Gibbons went through each point of the document and further explained how he had
calculated the employee losses set forth in the document.6 Miossi told Gibbons that business
conditions had not changed; if anything they were weaker and that the Respondent was doing the 40

6 At the hearing, Gibbons explained that the Respondent’s final offer that was unilaterally
implemented in 2009, and unilaterally implemented with modifications in 2012 (GC Exh. 4), formed the
basis for his assessment that employees had experienced a 90-cent-an-hour pay cut since 2009. (Tr. 189.)
Gibbons further explained that according to footnote d of the Wage Appendix attached to the
Respondent's unilaterally implemented proposal, in order for the employees to return to the wage
schedule in effect in 2007 and 2008, the Respondent would have to process 180,000 tons of steel in the
12-month period immediately following the effective date of the agreement. (Tr. 190)
JD–41–15
8
best it could and had kept everyone employed. Miossi added that debating these issues does not
change the facts.
Gibbons then gave Miossi a document entitled “Union’s Eleventh Economic Proposal
October 31, 2013” (GC Exh. 8). Gibbons told Miossi that this proposal was a modification of the 5
Union’s prior proposal. The Union’s proposal sought to change article 8, section 2 “Overtime
Compensation” of the Respondent’s unilaterally implemented 2012 proposal by eliminating the
requirement that in order to be eligible for overtime pay for all hours worked on a Saturday,
Sunday, or paid holiday, an employee must have worked the required 40 hours per work week in
order to qualify for the time and one-half rate. The Union’s proposal also sought to include in 10
article 8, section 4, and time off for union business in calculating the hours worked in order to be
eligible to receive overtime pay. The Union’s proposal also sought enhancements to the
implemented vacation proposal in article 22. With respect to wages, paragraph 4 of the Union’s
proposal provided:
15
Wages:
Re-storing wages previously in effect: a mathematical formula to be establish
(sic) to reflect production per employee that is equal to the 180,000
ton average per year based on the average per capita employee count over a more 20
current twelve-month period based on a representative employee head count.
When the equivalent tonnage per employee is reached on the average over a
consecutive (12) twelve month period the wages previously in effect before the
Company reduced such wage rates to be restored-reinstated and replace those
currently in effect in addition to any wage increases provided herein. (Based on 25
the receipt of recent information we need to discuss and review whether or
not this number is reasonably attainable and if not what number would be).
(Emphasis in the original.)
Effective upon ratification each bargaining unit employee will be given a 30
$1000 lump sum payment within seven (7) days following ratification.
Effective 1/1/14: A general wage increase of 35cents per hour.
Effective 1/1/15: A general wage increase of 40 cents per hour.35
Effective 11/1/15: A general wage increase of 3%.
d. Modify the starting pay to equal an amount above the State minimum.
40
The Union’s proposal with respect to health care insurance provided that employees have the
option to select one of the following plans: a PPO plan with any cost exceeding the cost of the
HSA plan to be paid by the employee; and employee HSA savings account in which the
Company contributes $1000 per year; and a HMO plan with any costs that exceeds the cost of
the HSA planned to be paid by the employee.45
JD–41–15
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With regard to the Union’s wage proposal, Gibbons told Miossi that based upon the
information that the Union had received from the Company regarding the tons of steel processed
from 1997 until the present, it showed that the Respondent had only reached the 180,000
ton level on six occasions, with the last two occurring in 2002 and 2006 7 Gibbons indicated that
he did not think the 180,000 ton trigger made any sense under the circumstances and the parties 5
needed to come up with a reasonable number that was attainable. Gibbons pointed out that the
180,000 ton level of production was obtained with approximately 54 unit employees. Gibbons
indicated that on average each employee produced 3333 tons in order to arrive at the 180,000 ton
level. Gibbons further indicated if the recent level of production of 116,208 tons of steel
processed was divided among the present 26 unit employees, it indicated that each unit employee 10
averaged approximately 4,469 tons of steel processed. Gibbons pointed out that those figures
represent a 40 percent increase in productivity. Gibbons stated that, under the circumstances, the
formula proposed by the Respondent that there must be 180,000 tons of steel processed annually
in order for employees to achieve a wage increase from their present level, did not seem to be
relevant and was unfair, as it appeared it would not be met in the foreseeable future.15
Gibbons then asked the Respondent to look at a reasonable trigger for the employees to
receive a wage increase. Gibbons also stated that the Union did not know what the Respondent’s
business plan was or whether it was making money or not. Miossi replied that the level of tons of
steel processed was related to the operating costs of the business and it was not related to profit 20
or loss.8 Miossi said the owners of the Respondent were not applying the same analysis as the
Union.
Gibbons pointed out that the Respondent’s labor costs were reduced by approximately 50
percent because of the decrease in the number of production employees. Miossi replied that 25
volume was also down and that the Respondent was confronted with increased costs; taxes had
gone up and there was downward pressure on pricing.
Gibbons asked Miossi to explain how the employees could attain the 180,000 ton
threshold in order to receive a wage increase. Miossi did not respond to this question directly but 30
merely said that business conditions were worse and the Respondent had increased costs and
competition. Miossi added that competitors were attempting to take business away from the
Respondent. When Gibbons asked who the competitors were, Miossi said “the steel mills” and
mentioned business being moved to Texas and Alabama.
35
Gibbons stated that the bottom line was whether the Company was making money and
was profitable enough to grant a wage increase. Miossi replied that business conditions had not

7 The notes of Shubert and Orlowski make reference to Gibbons stating the Respondent had exceeded
that level six times during that period. Tonnage information provided by the Respondent to the Union
(CP Exh. 1 and GC Exh. 12) establishes that the Respondent exceeded the 180,000 ton limit on 6
occasions from 1997 through 2013, with the last two occurring in 2002 and 2006. Accordingly, I do not
credit Gibbon’s testimony that he told Miossi that the 180,000 ton level was reached only twice, in 2002
and 2006 (Tr. 194) as it conflicts with the objective evidence and the notes taken by each party.
8 At the hearing, Timothy Orlowski testified that he considered the processing of 180,000 tons of steel
to be the proper utilization of the equipment (Tr. 78). Orlowski further testified that " [A]s the owner, it’s
in fact my prerogative to want 180,000 tons-want to my assets utilized (Tr. 80-81). In his testimony,
Orlowski did not relate the processing of 180,000 tons of steel to the operating costs of the business.
JD–41–15
10
changed, business had softened in 2010-2013 and the Respondent was hopeful business would
come back, but it had not. Miossi added that the Union had seen the volume of production.
Miossi also stated that the Respondent was not a “welfare agency.” Gibbons asked whether the
Respondent was making money and could afford to give a wage increase because employees had
their pay cut and had not had a wage increase in 8 to 10 years. Miossi responded that the 5
Respondent has a right to maintain its profit and loss information privately. Miossi added that
Respondent was not claiming an inability to pay the Union’s demands and never had.9
Gibbons then stated that the employees were working 40 percent harder and that a basic
sense of fairness would indicate a wage increase should be given unless the Respondent cannot 10
pay one. Miossi replied that their discussion was turning into a debate and that the fundamentals
had not changed since 2009. Gibbons stated the Union wanted to have an agreement with the
Respondent and would be willing to waive its request for a wage increase and accept a lump-sum
payment of 1000 dollars upon ratification of the contract, but that the Union would prefer for
employees to have an hourly wage increase. Miossi replied that the Union is asking the 15
Respondent to make a commitment not knowing its future revenue and that the Union was not
taking a look at the whole picture. Gibbons stated that the reality is whether the Respondent was
making money or not and that the Union was willing to look at a profit sharing agreement.
Gibbons again stressed that the employees had not had a wage increase in 10 years. Miossi
replied that the Respondent suffered through the recession and demand had gone down as well as 20
pricing. Gibbons responded that if things do not change the employees will never get a raise.
Miossi replied that revenue is dependent upon the number of tons processed and that business is
not what it was 10, 20, or 30 years ago.
Gibbons stated that the Respondent’s competitors have granted wage increases. Miossi 25
responded that the Respondent was paying fixed wages and benefits and was making payroll
every week. Miossi added that the Respondent was not going to grant a wage increase just to get
an agreement. Miossi noted that morale was positive and that few employees had left and that
employees had a good relationship with management. Gibbons reiterated that the 180,000 ton
threshold before a wage increase would be granted was unrealistic and asked about a profit-30
sharing program. Miossi told Gibbons to make a proposal as the Respondent had implemented
terms that it believed was the best it could do.
Gibbons then stated that the Union’s health care proposal remained the same and asked if
anything had changed regarding the premiums. Miossi replied that he was not sure but would 35
find out. Gibbons then noted that the Respondent had a 401(k) plan but that the Respondent did

9 There is no dispute in the testimony of Gibbons, Shubert and Miossi and the notes of Shubert and
Sharon Orlowski regarding the fact that Miossi stated at the meeting that the Respondent had a right to
maintain its profit and loss information privately. Sharon Orlowski's notes specifically indicate that
Miossi also stated that the Respondent was not claiming an inability to pay and never had. (R. Exh. 15,
p.2). Her notes on this point are corroborated by Miossi's testimony (Tr. 361). Shubert's notes are not as
detailed as Orlowski's on this particular point and neither Gibbons nor Shubert specifically denied that
Miossi made such a statement. I find that since it is undisputed that Miossi stated that the Respondent had
the right to maintain its profit and loss information privately, it is inherently plausible that he also stated,
as a basis for this position, that the Respondent was not claiming an inability to pay the Union's wage
demands and never had.
JD–41–15
11
not make any contributions to the plan. He asked if the Respondent would consider making
matching contributions. Miossi told Gibbons to make a proposal on the issue.
At that point the parties caucused. When Miossi returned to the meeting, he told Gibbons that
he had discussed the Union’s proposal with the “owners” and that it had been rejected. Miossi 5
stated that business conditions had not changed and that the Respondent was confronted with
additional downward price pressures, that competitors were going after their business and that
the Union’s offer was not acceptable. When Gibbons asked Miossi how the parties were going to
get the situation resolved, Miossi replied that the Union could accept the Respondent’s
implemented proposal. At that point the parties discussed scheduling another bargaining meeting 10
and agreed to meet on December 11, 2013.
On November 11, 2013, Miossi sent the following email (GC Exh. 9) to Gibbons and
Gudino:
15
Arlington Metals has considered the proposal you presented at our meeting on
October 31. The Company will accept your proposal for unpaid time off for union
business, but with the following limitations: it would apply to only one person for
a maximum of 20 hours per year. The remaining proposals are not acceptable
because they are not reasonable given the state of the business. Arlington Metal 20
stands on the current Implemented Terms. We are available to discuss at our next
meeting or you can contact me sooner if you prefer.
There was no further contact between the parties until the scheduled December 11, 2013,
collective-bargaining meeting.25
The December 11, 2013 Meeting
The December 11, 2013 meeting was held at the same location. Present for the Union were
Gibbons, Gudino, and Shubert and employees Golik and Karas. Miossi and Sharon Orlowski 30
were present for the Respondent. At the beginning of the meeting, Gibbons gave Miossi an
information request (GC Exh. 11). The portions relevant to this case provide as follows:
Based on the Company’s position, representations and explanation as to why it
cannot agree to the Union’s economic proposals and why the Company cannot 35
rescind pay cuts and grant pay increases and other economic improvements to
bargaining unit employees, the Union is requesting the following financial and
economic information to be provided as soon as possible:
Audited financial reports for the past 4 years. These should include complete 40
balance sheets, income statements, and statements of cash flow together with
footnotes and detailed supporting schedules. Supporting schedules should include
cost of goods sold, including breakdowns of material costs, manufacturing
overhead/burden, labor costs and supervisory, management, Company officers and
other non-labor wages and benefits; and selling, general and administrative 45
expenses. The above statement should be certified by an outside CPA.
JD–41–15
12
Provide the following financial reports:
Detailed income statement.
Detailed Balance Sheet
Statement of Cash flows5
These reports should cover Actuals for 2010, 2011 2012 and financial reports
year to date 2013.
Sales by customer for each of the last 4 years, current and projected for the next 3 years.
10
A detailed explanation of the business conditions the Company is referring to
and the specific changes that have occurred and the actual impact on the
Company’s financial condition. Provide specific data, reports and analyses.
Federal and State tax returns the Company filed for the last 4 years.15
After Gibbons gave the Union’s information request to Miossi, he replied that the
Respondent would review it and respond as appropriate but that the Labor Board had looked at
this 15 times and had agreed that the Respondent did not have to provide such information.10
Gibbons stated that the Union had pointed out at the last meeting the unreasonableness of the 20
Respondent’s position on the wage cuts and the lack of a pay increase. Miossi replied that the
Respondent had given the Union a reasonable response to its proposal. Miossi stated that the
“iceberg” the Respondent was on “is melting” and that business had changed and businesses that
the Respondent competes with had changed. Miossi added that the Respondent honored all its
commitments regarding payroll and insurance and that there was no employee turnover. Gibbons 25
replied that turnover was not a barometer of what is fair and that the Respondent was fortunate to
have a loyal workforce.
Gibbons stated that the Respondent may never employ 54 employees again but rather stay at
26. Gibbons asked if this meant that employees were not entitled to a wage increase and asked 30
again if the Responded was making money. Gibbons urged Miossi to look at the tonnage
information since the 180,000 ton level had only been met when the Respondent had twice as
many employees. Gibbons stated that employees should get a raise because they were producing
more per employee. Gibbons asserted that the Union was not proposing an agreement that was
unreasonable and again referred to the significant economic loss that the employees had suffered 35
since 2009. Miossi replied that the Union could sign Respondent’s final offer. Miossi asserted
that it was a fair deal by one measure, since there has been no turnover. Gibbons asked Miossi
when employees can expect to get a raise. Miossi replied that the 180,000 tons of steel processed
figure was one aspect and added that the business available to process has changed in level of
volume and price.40

10In making my findings regarding the December 11, 2013 meeting I have again relied on Shubert's
contemporaneous handwritten notes of the meeting (GC Exh. 10) and Sharon Orlowski's typed notes of
the meeting (R. Exh.16) and the credited testimony of Gibbons and Shubert. I credit the testimony of
Gibbons and Shubert over that of Miossi to the extent it conflicts because their testimony was more
detailed and consistent with the notes taken by Shubert and Orlowski.
JD–41–15
13
Gibbons asked Miossi what was the logic of the Respondent’s position of limiting unpaid
time for union business to 20 hours a year. Miossi replied that there has to be some limits for
staffing purposes. Gibbons then asked Miossi who the Respondent considered its main
competitors to be. Miossi replied that one competitor was the steel mills which were doing more 5
slitting in-house.
The Union then asked for a caucus. Gibbons testified that the Union decided during the
caucus not to present another offer but to await a response to its information request. When the
union representatives returned from the caucus, Gibbons indicated to Miossi that the Union 10
would await a response to its information request before deciding whether to make another
proposal. At that point the meeting ended.
On December 16, 2013, Miossi sent an email to the Union containing the Respondent’s
response to the information request that the Union made on December 11, 2013 (GC Exh. 12).15
The Respondent indicated it would not produce its audited financial statements or the requested
financial reports that the Union had requested in paragraphs 2 and 3 of its information request.
The Respondent’s reason for not providing the requested financial information requested in those
paragraphs was identical: “The Union is not entitled to such information as Region 13 has
determined several times, each time affirmed by the General Counsel, because AMC has never 20
asserted a financial inability to meet the Union’s wage demands.”
With respect to the Union’s request for sales by customer for customers for the past 4 years
and projections for 3 years in the future (paragraph 5 of the information request), the Respondent
replied “AMC will not provide sales information by customer as you request unless you care to 25
explain why the Union is entitled to the information in that particular format. We provide the
following tonnage and revenue data from 2009-present.
Tons Revenue
2009 100,854 $2,887,09630
2010 126,912 $3,437,535
2011 121,008 $3,228, 358
2012 121,071 $3,311, 920
2013 (YTD-11 Mo.) 106,471 $3,007,02711
35

11 Importantly, at the hearing Timothy Orlowski testified that the information provided to the Union
included only the revenue from toll processing and not from metal sales. (Tr. 92-93.) Orlowski further
testified that the Respondent's audited financial statements reflect revenue from both metal sales and toll
processing in two separate income statements because they constitute separate divisions. Orlowski also
testified that the Respondent's profit and loss statement would "break out" the revenue by each division
(Tr. 98). As noted at the outset, metal sales comprises approximately 20 percent of the Respondent's
production operations. The Union represents a "wall-to-wall" production and maintenance unit in which
the employees are engaged in both toll processing and metal sales operations. Orlowski's testimony
clearly establishes that the Respondent provided incomplete and misleading information to the Union
regarding the revenue it receives from the products produced by unit employees.
JD–41–15
14
As noted above, the Union made a request for “A detailed explanation of the business
conditions the Company is referring to and the specific changes that have occurred and the actual
impact on the Company’s financial condition please provide specific data, reports and analyses.”
(paragraph 7.) The Respondent’s responsive email indicated:
5
The Union is not entitled to the detail and breadth of financial information
requested in #7 for the reasons stated above. The business conditions to which the
Company has reference (sic) are disclosed in the following data, which is
responsive to your request:
10
2012 Tonnage 121,071
2013 Tonnage through Nov 13’-106,469
2013 Projected tonnage 113,011
With respect to the Union’s request for federal and State tax returns (paragraph 9) the15
Respondent replied, “AMC will not produce its tax returns. The Union is not entitled to such
information as Region 13 has determined several times, each time affirmed by the General
Counsel.”
On January 7, 2014, Gibbons replied by email to Miossi. (GC Exh. 13.) With regard to the 20
information sought in paragraph 2 of the Union’s December 11, 2013 information request,
Gibbons explained:
In effect AMC’s consistent basis for pay cuts and its position for not being able
to provided (sic) future economic improvements, including wage increases, are 25
premised on what has been described by AMC as deteriorating business
conditions and a reduction in sales and the margins of such sales. AMC has
clearly expressed this position and reason for its position regarding economic
matters during negotiations, in effect, AMC is claiming a financial inability to
pay or provide economic improvements for its employees. Therefore the Union 30
request for the Company’s financial information is not only appropriate but
necessary for the process of good faith negotiations to take place regarding
economic matters.
With respect to the Union’s request for the Respondent’s financial reports in paragraph 335
of its information request, the email stated “3. The basis for the Union request has been
addressed in the above paragraph.”
In further clarification of its request for sales information in paragraph 5, Gibbons’ email
stated, “5. Please provided (sic) itemized costs (clearly broken down for each expense) of the 40
sales revenues for each of the periods referred to. Also, provide the same information for 2007,
and 2008.”
Regarding paragraph 7 of its request, Gibbons’ email indicated, “7. The Union restates its
request based on the explanation stated in paragraph 2 above. The Company’s reply is not 45
responsive and does not specifically provide the information requested.” With regard to the
JD–41–15
15
Union’s request for tax returns, Gibbons’ email stated, “9. The Union’s response in paragraph 2
is the basis for, and relevance for this request which is again restated.”
On January 9, 2014, Miossi replied by email to Gibbons’ January 7, 2014 email (GC Exh.
13). The relevant responses are as follows:125
As you acknowledge and the NLRB has concluded multiple times, AMC has
never asserted an inability to pay as reason for any of its proposals or rejection of
the Union’s proposals. Volume is down and competition for business is intense.
Again AMC will not produce this information because the Union is not lawfully10
entitled to it.
Same answer as #2.
We provided you responsive and relevant detailed information in response to 15
the request you posed on December 11, 2013 on December 16, 2013. The item
below appears to be a new request, but it makes no sense. We do not know what
“itemized cost of sales revenues” are; AMC has never heard of such a financial
concept, be that as it may, we cannot understand how any data beyond
tons/revenue data that we supplied last month and have supplied to you multiple 20
times over the past years, would be relevant.
See answers above and our response December 16, 2013. There is nothing
more we can tell you.
25
See our response December 16, 2013 and #2 above. The Union is not lawfully
entitled to the information requested.
On January 31, 2014, Gibbons sent an email (GC Exh. 14) to Miossi in response to his
January 9, 2014 email. As relevant to this proceeding, Gibbons’ email stated:1330
Your argument regarding “inability to pay” is irrelevant. I have clearly stated
that the Company’s position regarding economic matters was based on claimed
adverse business condition(sic) that resulted in losses or reduced income that
prevents the Company from making any economic improvements for employees 35
and the basis for substantial economic reduction in wages and benefits imposed
on employees. The Company’s position has and was actually based on “inability
to pay”. While the Company has not used those specific terms, the reason and
basis for the company’s position as expressed during the bargaining and actions
taken are the same the-“inability to pay”.40

12 The number at the beginning of each response refers to the paragraph number in the Union's
original information request.
13 The numbers at the beginning of each paragraph refer to the paragraph number in the Union's
original information request.
JD–41–15
16
Notwithstanding, the terminology, in order for the Union to perform its duties as
the exclusive representative of bargaining unit employees our information
request is relevant and necessary.
Restate our request of December 11, 2013, and for the reasons expressed 5
above.
Again, I will attempt to restate our request in more expanded terms. I believe
you understand our information request, (sic) they are very simple, and
represented a basic principle regarding sales, cost of sales, revenue, specific costs, 10
profits and losses. This information should include all documents, studies or
methodology that the Company uses to calculate and evaluate its variable costs. If
such information is not available in the form requested please provide in the
form that is available.
15
The Union restates its request based on the explanation stated in paragraph 2
above. The Company’s reply is not responsive and does not specifically
provide the information requested.
On February 3, 2014, Miossi replied to Gibbons’ January 31, 2014, email as follows (GC 20
Exh. 14):
We have considered each of your requests, and we can detect no new
justifications or plausible rationale that merit any different response that we
provided to you January 9, 2014 and December 16, 2013. With all due respect, 25
you are simply repeating yourself. The Union is not entitled to the private
financial records of Arlington Metals, information about its credit relationships,
the separate Saywer facility, the identity of its customers, “internal work
documents,” more data concerning nonbargaining unit personnel, etc., etc.,
beyond what we have already provided. In addition to the repetitiveness of your 30
request, your unsupported claim that the fact that Arlington has never asserted an
inability to pay as a reason for any of its proposals “is irrelevant,” suggest to us
that your purposes is more about creating mischief than engaging in purposeful
communication.
35
In an email dated February 5, 2014, Gibbons replied to Miossi’s February 3, email as follows
(GC Exh. 14):
I am responding to your email reply to me on February 3, 2014.
40
Your comments regarding my reference to the use of the terms “inability to pay”
are unfortunate and represent a further effort on your part to ignore the facts and
the statements made during our negotiation regarding Arlington Metals business
performance and conditions and the statements expressed by you as the basis and
premise for the Company’s position regarding economic issues. In effect an 45
“inability to pay”. While these exact terms may not have been used the reason
(sic) as expressed are the same.
JD–41–15
17
Notwithstanding, the information requested is necessary for the Union to carry out
its performance and duties as the exclusive bargaining representative of the
bargaining unit employees of Arlington Metals.
5
On February 5, 2014, Miossi replied to Gibbons by email as follows (GC Exh. 14):
Not only have we never asserted an inability to pay for any position AMC has taken since
2007, it up has never been inferred, despite your effort to say otherwise. You have our
response to your most recent information request. We have provided all the information 10
to which the Union is lawfully entitled.
No further information has been provided by the Respondent and there has been no
further bargaining sessions held between the parties.
15
The Withdrawal of Recognition Petition
Timothy Orlowski testified that on July 10, 2014, Plant Manager Ron Sowrizol contacted
him on his cell phone before Orlowski had arrived at work and informed him that one of the shop
employees had given Sowrizol an envelope but that Sowrizol did not know what was in it. 20
Orlowski instructed Sowrizol to put the envelope on Orlowski’s desk and he would look at it
when he arrived at work.
When Orlowski arrived at work he opened the envelope and saw a document entitled
“PETITION TO REMOVE UNION AS REPRESENTATIVE”(R. Exh. 1). The relevant portion 25
of the document indicates:
The undersigned employees of Arlington metals (employer name) do not want to
be represented by united still worker 7773(sic) (union name), hereafter referred to
as “union”.30
[S]hould the undersigned employees constitute 50% or more of the bargaining
unit represented by the union, the undersigned employees hereby request that our
employer immediately withdrawing recognition from the union, as it does not
enjoy the support of a majority of employees in the bargaining unit.35
The petition contained the handwritten printed name and the signature of 16 employees
which were all dated July 9, 2014. The signatures of Harve Neace and Emil Sterczek were on
the petition. Orlowski testified that Neace and Sterczek were slitter-operators and working
supervisors. On direct examination Orlowski testified that he had known the employees for a 40
long time and had seen their signatures on a multitude of documents, and the signatures looked
valid to him. On cross-examination, however, Orlowski admitted that Brandon Trezzo and
Brandon De La Cruz were newer employees and that he had not seen their signatures many times
prior to July 10, 2014. (Tr. 108-109.) Orlowski further admitted that there were other employee
signatures that he had not seen very often because they were newer employees. (Tr. 110.)45
Orlowski did not check the signatures on the petition by comparing them to the signatures of
employees that the Respondent maintained in its files.
JD–41–15
18
At the trial, the Respondent did not introduce payroll records for July 9, 2014, establishing
precisely the composition of the unit on that date. Rather, the Respondent introduced an
employee census of the unit employees that it submitted to the Union as an attachment to an
email on April 11, 2014. This employee census (R. Exh. 18, p. 3) contains, inter alia, the name, 5
address, hire date, job title and pay rate for 26 employees, including Neace and Sterczek. The
document was prepared by Ilona Zelazowska, who maintains the Respondent’s payroll records
and other employment documents. Zelazowska credibly testified that, pursuant to the instructions
of Timothy Orlowski, she prepared the employee census from the payroll and benefit records she
maintains for the shop employees. Orlowski testified without contradiction that he asked 10
Zelazowska to prepare the employee census shortly before it was submitted to the Union on
April 11, 2014.
The employee census reflects that De la Cruz was hired on February 25, 2013, and Brandon
Trezzzo was hired on April 25, 2013. The employee census further reflects the additional 15
employees were hired on various dates in 2013: Andres Coronel, April 8, 2013; Christopher
Keiler, July 15, 2013; Michael Krasinski, August 7, 2013; and Anthony Menotti, September 9,
2013.Timothy Orlowski testified without contradiction that from April 11, 2014 through July 9,
2014, none of the employees listed on the employee census submitted to the Union had
voluntarily left employment with the Respondent or had been terminated.20
After reviewing the decertification petition on July 9, 2014, Timothy Orlowski scanned the
petition to an email and sent it to Miossi. On July 10, 2014, Miossi sent the following email to
Gudino with a copy of the decertification petition attached:
25
Please find enclosed a petition dated July 9, 2014, signed by 16 members of the
Arlington Metals Corp. bargaining unit, advising they no longer wish to be
represented by the United Steel workers as the exclusive bargaining agent. The
petition was in no way, directly or indirectly, initiated, supported or encouraged
by Arlington Metals management. The 16 employees constitute well more than 30
50% of the bargaining unit of 24; even if you count Messrs. Gofron, Fudala, and
Ceja as part of the bargaining unit, 16 still represents well more than 50% of the
unit. Arlington Metals will respect the desire of a majority of the bargaining unit
of all, and consistent with federal labor law it withdraws recognition of the United
Steelworkers union as the exclusive bargaining agent of the employees located in 35
its Franklin Park plant effective immediately.
The Union’s Request to Conduct a Health and Safety Inspection
According to Gudino’s uncontradicted testimony, in September, October and December 40
2013, OSHA issued approximately 80 to 100 citations against the Respondent regarding health
and safety matters at the Arlington facility. The abatement date for those citations was sometime
in the spring of 2014. In early July 2014, the Union met with some unit employees who informed
the Union that certain safety issues still existed at the plant. Gudino testified that the Union
wanted to make sure that the Respondent had complied and had remedied the health and safety 45
violations that OSHA had cited and decided it was appropriate to have a union safety expert
verify that the violations had been remedied
JD–41–15
19
On July 10, 2014, Gudino sent an email to Miossi requesting that the Respondent provide
available dates for the Union to schedule a safety and health inspection to review “the numerous
OSHA matters that require abatement and compliance” (GC Exh. 15). 14Gudino credibly testified
that at the time that he made the request to conduct a health and safety inspection to Miossi, he 5
had not seen Miossi’s email in which he indicated that the Respondent was withdrawing
recognition from the Union. In response to Gudino’s email, Miossi again sent the decertification
petition to Gudino and reiterated that the Respondent had withdrawn recognition on the basis of
the petition and that the Union no longer had a right to conduct a health and safety inspection.
10
Analysis
Whether the Respondent Violated Section 8(a)(5) and (1) of the Act by Refusing to Provide
the Union with the Requested Financial Information Because Its’ Conduct Constituted a
Claim of an Inability to Pay the Union’s Demands.15
In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the Supreme Court held that an employer
violated Section 8(a) (5) and (1) of the Act by refusing to provide the union with financial
information requested by it to support the employer’s claim that it could not afford to grant
employees the wage increase sought by the union. In so finding, the Court held that:20
Good-faith bargaining necessarily requires that claims made by either bargainer should be
honest claims. This is true about an asserted inability to pay an increase in wages. If such an
argument is important enough to present in the give and take of bargaining, it is important
enough to require some sort of proof of accuracy.25
[351 US at 152-153.]
. . . .
We do not hold, however that in every case in which economic inability is raised as an 30
argument against increased wages it automatically follows that the employees are entitled to
substantiating evidence. Each case must turn on its particular facts. The inquiry must always
be whether or not under the circumstances of the particular case the statutory obligation to
bargain in good faith has been met. [351 US at 153-154.]
35
In Nielsen Lithographing Co., 305 NLRB 697 (1991), and affd. sub nom. Graphic
Communications Local 50B v. NLRB, 977 F.2d 1168 (7th Cir. 1992) the Board held that the duty
to supply financial records applies only where an employer asserts “a present inability to pay, or
a prospective inability to pay during the life of the contract being negotiated,” not where the
employer “is simply saying that it does not want to pay.” 305 NLRB at 700. However, the Board 40
was also careful to point out:

14 Article 20 of the Respondent's 2012 implemented final offer contains a provision granting the
Union access to the Respondent's premises for the purpose of participating in meetings with the
Respondent that have been scheduled with prior notice and mutual consent and do not interfere with
production. Article 21 of that proposal provides that the Union shall cooperate with the Respondent in
maintaining policies and regulations regarding safety and health. (GC Exh. 4.)
JD–41–15
20
We do not say that claims of economic hardship or business losses with the prospect of
layoffs can never amount to claim of inability to pay. Depending on the facts and
circumstances of a particular case, the evidence may establish that the employer is
asserting that the economic problems have led to an inability to pay or will do so during5
the life of the contract negotiated.” 305 NLRB at700
In Stella D’Oro Biscuit Co., 355 NLRB 769,770 (2010), enf. denied 711 F.3d 281 (2d Cir.
2013) the Board reiterated its policy that it “does not require that the employer recite any ‘magic
words’ but only that his statements and actions be specific enough to convey an inability to pay”. 10
Accord: Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984). See also, E. I. DuPont & Co.
276 NLRB 335, 336 (1985).
In Lakeland Bus Lines, 335 NLRB 322, 324 (2001), enf. denied 347 F.3d 955 (D.C. Cir.
2003) the Board noted that in Shell Co., 313 NLRB 133 (1993) the employer’s duty to disclose 15
relevant financial information was established by the employer’s claims that its present
circumstances were “bad” and was a matter of survival and that it was “losing business” and
“faced serious regulatory and cost problems.” In Lakeland Bus Lines, the Board further noted
that:
20
Consistent with the Board’s acknowledgment in Nielsen that certain claims of economic
hardship and business losses could amount to a claim of inability to pay, the Board held in
Shell that the employer had effectively made such a claim. The Board noted that, unlike the
claims at issue in Nielsen, there was no claim that the employer was still making a profit, and
the thrust of the employer’s assertion was its present economic circumstances rather than 25
future economic competitiveness. The Board concluded that in these circumstances the
employer’s assertions amounted “to a claim that it could not afford the most recent contract,”
and thus warranted a finding that the employer had pleaded a present inability to pay.
[Lakeland Bus Lines at 324]
30
In Lakeland Bus Lines, the Board concluded that the statements made by the respondent’s
president in a letter urging employees to accept its final offer reasonably conveyed that the
Respondent was unable to pay more than that contained in the final offer. The Board noted that:
Specifically, the Respondent stated that it was “trying to bring the bottom line back into the 35
black,” that acceptance of the final offer would enable the Respondent to “retain your jobs
and get back in the black short-term,” and that [t]he future of Lakeland depends on it.” In
context, the statements are the equivalent of the claim in Shell Co. that circumstances were
bad and were a matter of survival. In both these cases the statements reasonably conveyed a
present inability to pay [Lakeland Bus Lines, at 324-325.]40
In Dover Hospitality Services, 358 NLRB No.84 (2012) reaffirmed 361 NLRB No. 60 (2014)
the Board indicated its continued adherence to the principles expressed above.
In the instant case, during a bargaining session 2009, Miossi informed the Union that the 45
Respondent was losing money and that the Respondent needed to process 180,000 tons of steel a
year in order to break even. In August 2009, the Respondent unilaterally implemented its final
JD–41–15
21
offer which reduced the wages of existing employees and established a “Tier 2” rate for new
employees which was generally lower than the rates paid to existing employees. The unilaterally
implemented offer indicated that the Respondent would restore the wage cuts if the Respondent
processed 180,000 tons of steel in a 12-month period. On December 9, 2011, the Respondent
informed the Union that it would be unilaterally implementing further cuts in wages and benefits, 5
including health insurance coverage. The Respondent’s letter accompanying the announced
unilateral changes noted that “So there is no misunderstanding, our final proposal is just that-
final. We have done the best we can do to treat and reward our employees fairly, protect their job
security and at the same time remain competitive in our industry.” The (R. Exh. 4, p. 2)
10
At the October 31, 2013 meeting, after Gibbons gave Miossi a document detailing the
economic impact on employees of the concessions that the Respondent had unilaterally
implemented, Miossi told Gibbons that business conditions had not changed and that, if
anything, they were weaker and that the Respondent was doing the best it could and had kept
everyone employed. At this meeting, after Gibbons had given the Respondent a new economic 15
proposal, Gibbons stated that the Respondent’s unilaterally implemented offer requiring that the
Respondent process180,000 tons of steel annually before the wage cuts could be restored did not
appear to be reasonable under the circumstances. Gibbons asked the Respondent to look at a
reasonable level of production in order for employees to receive a wage increase. Gibbons also
stated that the Union did not know whether the Respondent was making money or not. Miossi 20
replied that the level of tons of steel processed was related to the operational of costs of the
business and was unrelated to profit or loss. Miossi added that the owners of the Respondent
were not applying the same analysis as the Union.15 When Gibbons specifically asked Miossi
whether the Respondent was making money and was profitable enough to give a wage increase,
Miossi stated that business conditions had not changed, that business has softened in 2010-2013 25
and that the Respondent was hopeful that business would come back but that it had not. When
Gibbons again asked if the Respondent was making money and could afford to give a wage
increase to employees who had not had one in 8 to 10 years, Miossi replied that the Respondent
had a right to maintain its profit and loss information privately and that it was not claiming it
could not afford to pay the Union’s demands and never had. Later in that meeting Miossi stated 30
that demand has gone down as well as pricing and that revenue was dependent on the number of
tons processed and business was not what was 10, 20 or 30 years ago.
At December 11, 2013 meeting the Union requested the financial information set forth in the
complaint. After receiving the information request, Miossi indicated that he would review it and 35
respond as appropriate but that the NLRB had previously agreed that the Respondent did not
have to provide such information. Miossi added that the Respondent had given the Union a
reasonable response to its new proposal and that the “iceberg” the Respondent was on “is

15 I find that the Respondent has not been consistent in its explanation regarding the basis for the
180,000 tons of steel processed as the trigger to restore the wage cuts it had unilaterally imposed. In this
regard, in 2013 Miossi indicated that that figure was related to the operational of costs of the business. At
the hearing, Timothy Orlowski did not relate the 180,000 tons per year to the operational of costs of the
business but rather stated he viewed that level of production to constitute a proper utilization of the
equipment and that it was his prerogative to want that level of production. I also note that in 2009 Miossi
told the Union that the 180,000 tons of steel processed level was the Respondent's breakeven point based
on what Timothy Orlowski had told him.
JD–41–15
22
melting” and that business has changed and businesses that the Respondent competed with had
changed.
On December 16, 2013, Miossi replied to the Union’s information request in writing and
indicated that the Respondent would not produce its audited financial statements or the other 5
requested financial documents requested by the Union. Miossi’s letter indicated that the Union
was not entitled to such information as Region 13 and the General Counsel has found that the
Respondent had never asserted a financial inability to meet the Union’s demands. The
Respondent’s letter did provide tonnage and revenue data from 2009 to December 2013 but, as
noted above, the information was incomplete and misleading as it did not indicate any of the 10
revenue generated by the 20 percent of the Respondent’s operations that is comprised of metal
sales.
It is clear that in 2009, Miossi specifically told the Union that the Respondent was losing
money and needed to process 180,000 tons of steel annually in order to break even. In October 15
2011, the Respondent gave the Union a summary which purported to show that it had suffered
substantial losses from 2007 through October 2011. When the Respondent implemented
unilateral cuts in wages and benefits on August 3, 2009, it indicated that the wage cuts would be
restored if the facility processed 180,000 tons of steel annually. In October 2013, Gibbons
pointed out the difficulty that the Respondent’s unilaterally implemented concessions had 20
imposed on employees and that it was unlikely that it would process 180,000 tons of steel
annually during the foreseeable future. Gibbons asked the Respondent to consider a more
reasonable trigger to restore the wage cuts and specifically asked if the Respondent was
profitable enough to grant a wage increase, Miossi replied that business conditions had not
changed and that the Respondent was hopeful that business would come back but it had not. 25
Finally, at the December 11, 2013 meeting, in defending the Respondent’s rejection of the
Union’s latest economic proposal, Miossi stated that the “iceberg” that the Respondent was on
“is melting.”
In my view, the statements made by the Respondent during bargaining could reasonably be 30
construed as statements that the Respondent was currently unprofitable and unable to pay more
than its unilaterally implemented offer. Under these conditions, the Union is entitled to
information pertaining to the alleged losses and their impact on the employer’s business. In this
regard, in 2009, the Respondent informed the Union that it was losing money and needed to
process a total of 180,000 tons of steel annually in order to break even. In 2011 the Respondent 35
gave the Union a summary purporting to show that it had suffered substantial annual losses from
2007 to 2011. In October 2013, when asked if the Respondent was profitable enough to grant a
wage increase, Miossi replied that business conditions had not changed and that the Respondent
was hopeful that business would come back, but it had not. Finally, at the last meeting between
the parties in December 2013, Miossi indicated the Respondent would not move from its 40
implemented proposal because the “iceberg” that the Respondent was on “is melting.” There is
clearly no evidence that in 2013 the Respondent indicated to the Union that it was, in fact,
profitable and was merely unwilling to restore the wage cuts that it had unilaterally implemented.
I find that Miossi’s statement to Gibbons at the October 2013 meeting that the Respondent 45
had a right to maintain its profit and loss information privately as it was not claiming, and had
not claimed, a financial inability to pay the Union’s requested increase in wages and benefits, to
JD–41–15
23
be ineffective. Miossi’s statement is unsupported by, and conflicts with, the weight of the
evidence on this point. The evidence summarized above reflecting that the Respondent’s
bargaining position was premised on its asserted unprofitability, clearly outweighs what I view
as Miossi’s attempt to preclude the Union from obtaining financial information I believe it is
entitled to. For the same reasons, I do not find that Miossi’s statements in the letters he sent to 5
the Union in December 2013 and January 2014 claiming that the Respondent has never asserted
an inability to pay as a reason for its bargaining position to be an effective disclaimer.
I find the instant case to be distinguishable from American Polystyrene Corp., 341 NLRB
508, 508-509 (2004), relied on by the Respondent. In that case, on one occasion, the 10
Respondent’s chief negotiator, Tan, stated the employer could not afford the Union’s proposals
and would “go broke” if it agreed to them. The next day Tan delivered a letter advising the union
that the employer’s ability to pay for the Union’s bargaining proposal was not question. Under
those circumstances, the Board found that the employer effectively disavowed any claim of an
inability to pay. In the instant case, the Respondent, in effect, had asserted its allegedly poor 15
financial condition as the basis for its bargaining position from 2009 through 2013. The
Respondent also attempted to support this position by giving the Union a summary in 2011
purportedly showing substantial losses from 2007 through 2011. In December 2013, the
Respondent also gave the Union incomplete and misleading information regarding its revenues
for the period from 2009 to 2013. It was only when the Union pointedly asked if the Respondent 20
was profitable enough to grant a wage increase in October 2013, that Miossi claimed that the
Respondent was not asserting an inability to pay the Union’s requested wage increase and then
repeated that statement in the letter exchange following the Union’s request for financial
information made in December 2013. In the instant case, the attempted disclaimer is insufficient
to outweigh the Respondent’s consistently expressed position that its alleged loss of money was 25
the underlying reason for its unilaterally implemented concessions and its refusal to consider
restoring its unilaterally imposed reductions in wages and benefits.
As noted above, on October 31, 2013, the Respondent stated that its economic position had
not changed since 2009 and that, if anything, was worse. Given this, I do not find that Miossi’s30
statements at the bargaining sessions in 2013 that the Respondent believed that its position was
fair because of the lack of the employee turnover are sufficient to overcome the evidence
supporting my conclusion that the Respondent had consistently expressed that its loss of money
and poor economic condition was the basis for its bargaining position.
35
I also find this case to be distinguishable from other cases relied on by the Respondent in
support of its position. In Coupled Products LLC, 359 NLRB No. 152 (2013), the Board found
that the employer had not claimed an inability to pay the Union’s wage and benefit demands and
thus was not obligated to accede to the Union’s request to audit its financial information when
the employer stated that it was profitable overall but claimed a competitive disadvantage in labor 40
costs at the facility at issue and wish to reduce those labor costs. Clearly, in the instant case the
Respondent did not assert that it was profitable and merely wished to reduce labor costs.
I also find the instant case to be distinguishable from other cases relied on by the
Respondent. In North Star Steel, 347 NLRB 1364 (2006), the Board found that the employer was 45
not obligated to provide the detailed financial information sought by the union. In that case, in
explaining its position regarding concessions that it sought, the employer focused on diminishing
JD–41–15
24
future orders and declining prices. The employer also linked its anticipated low upcoming profit
figures to bad market conditions. The Employer downplayed to some extent its financial
difficulties and drew a distinction between itself and some competitors who were in worse
financial shape. Unlike the instant case, the employer relayed the message that it would not pay,
as opposed to could not pay, in order to stay competitive. In AMF Trucking & Warehousing, 342 5
NLRB 1125 (2004) the employer stated that the company had been in distress for a year and a
half and that it was “fighting to[stay] alive” and was “weaker this year” than it had been in
previous years. The Board found that such statements were not synonymous with an assertion
that the employer had, or would have, insufficient assets to pay the union’s demands. As set forth
in detail above, in the instant case, the Respondents statements over a sustained period from 10
2009 to 2013 could be fairly construed as establishing that its bargaining position was premised
on an inability to pay the Union’s demand for a wage increase.
On the basis of the foregoing, I find that the Respondent has asserted an inability to pay the
Union’s wage and benefit demands and has therefore violated Section 8(a)(5) and (1) of the Act 15
by refusing to provide the information requested in paragraphs 2, 3, 5, 7 and 9 of Union’s
December 11, 2013 information request, as set forth in the complaint.
If a Conclusion is Reached that the Respondent did not Claim an Inability to pay the Union’s
Demands, Whether the Respondent violated Section 8(a)(5) and (1) of the Act by Refusing to 20
Provide the Union with Requested Information to Verify Specific Claims the Respondent
Made During Bargaining
Both the General Counsel and the Union assert an alternative argument that, even if a 25
conclusion is reached that the Respondent was not obligated to provide the requested information
because it had not claimed an inability to pay the Union’s demands, the facts of this case
establish that the Respondent refused to provide requested relevant information supporting its
specific claims regarding its bargaining position in violation of Section 8(a)(5) and (1) of the
Act. I recognize that the Board’s decisions regarding the obligation to provide requested 30
financial information under the inability to pay line of cases often draw fine distinctions and that,
if exceptions are taken to my decision, the Board may disagree with my application of the
principles expressed in those cases. I therefore believe that it is appropriate to consider the
alternative argument advanced by the General Counsel and the Union in case that should occur.
35
In Caldwell Mfg. Co., 346 NLRB 1159 (2006), the Board noted that under Truitt supra, an
employer has a general duty to provide information to a union that is necessary and relevant to
assess claims made by an employer in contract negotiations. Such information is not
presumptively relevant but the burden to establish relevance is not “exceptionally heavy” and the
Board uses a “broad discovery type of standard in determining relevance in information 40
requests.” In Caldwell, the Board noted that “When there has been a showing of relevance, the
Board has consistently found a duty to provide information such as competitor data, labor costs,
production costs, restructuring studies, income statements, and wage rates for non-unit
employees.” Id. at 1160 (Citations omitted.) Applying that standard, in Caldwell the Board
found that the union’s request for detailed information involving costs, productivity, and 45
competitor performance were relevant where the employer asserted that concessions were
necessary in order to make a less competitive facility more competitive in the industry. In A-1
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25
Door Building Solutions, 356 NLRB No. 76 (2011), an employer explained its bargaining
position in seeking a substantial reduction in profit sharing and a reduction in wages by claiming
that its wages and benefits affected its ability to be competitive. The employer specifically
discussed competitiveness in its ability to obtain jobs it had bid on. The union requested specific
information regarding job bidding which the employer refused to provide. Relying on Caldwell,5
the Board found that the employer violated Section 8(a)(5) and (1) by refusing to provide the
requested information.
As set forth above, Caldwell specifically indicates that an income statement is the type of
information that an employer is obligated to produce, on request, if it is relevant to its 10
bargaining position. In Litton Systems, 283 NLRB 973, 974-975 (1987), enf. denied on other
grounds 868 F.2d 854 (6th Cir. 1989) the Board found that the respondent was obligated to
produce requested information regarding its financial condition, including market share and
profit and loss information. In that case, the respondent relocated work from one of its facilities
to another and had claimed during bargaining that it was losing $3 million a year by producing 15
the product at the plant the work and been transferred from. In finding that the Respondent had
violated Section 8(a)(5) and (1) by refusing to provide the requested information, the Board
found that the Union had demonstrated the probability that the desired information was relevant
and would be useful in determining the meaning of the information that had been provided and
would be of assistance in developing reasonable bargaining proposals.20
In the instant case, in October 2013, the Respondent rejected the Union’s proposal to increase
wages and maintained its position that it would not move from the terms of its unilaterally
implemented proposal. Miossi told the Union that he had discussed the Union’s proposal with
the “owners”, and that it was rejected as business conditions had not changed and that the 25
Respondent was confronted with additional downward price pressures and that competitors were
going after their business. During the meeting, Miossi told the Union that the level of tons of
steel processed was related to the operating costs of business and added cryptically that the
owners of the Respondent were not applying the same analysis regarding the 180,000 tons of
steel processed as the level that must be met before the Respondent would restore the unilateral 30
wage cuts as was the Union. At the bargaining table, Miossi did not further explain his statement.
As noted above, however, at the trial, Timothy Orlowski did not specifically relate the 180,000
ton trigger to operating costs, but rather stated it was his prerogative to want that level of
production from his assets. In addition, as noted above, in December 2013, the Respondent
provided incomplete and misleading information regarding its revenues as it did not include the 35
approximately 20 percent of its business that was comprised of metal sales. Timothy Orlowski
further testified that the Respondent’s audited financial statements reflect revenue from both
metal sales and toll processing in separate income statements.
At the meeting held in October 2013, Gibbons indicated that the Union did not know if the 40
Respondent was making money or not. Gibbons added that if the Respondent was not making
money, the Union was willing to move from its position that the wages of employees should be
increased by specified amounts but rather would consider a profit sharing agreement. The
financial information sought by the Union would clearly have assisted it in assessing the
accuracy of the Respondent’s position and developing its own counterproposals. The financial 45
information is clearly relevant to the Respondent’s claim that business conditions had not
improved since 2009. In addition, the provision of this information would set forth the tonnage
JD–41–15
26
and revenue information clearly and allow the Union to knowingly and intelligently assess the
Respondent’s position that the restoration of wage cuts was dependent upon reaching the
180,000 tons of steel processed level.
Although the financial information requested by the Union is not presumptively relevant, the 5
General Counsel established that the requested financial information would assist the Union in
assessing the accuracy of the Respondent’s position and developing counterproposals. Applying
the principles expressed in the Board’s decisions in Caldwell and Litton Systems, I find that the
Union is entitled to the financial information that it requested.
10
With regard to the Union’s request for information regarding the Respondent’s sales to
customers, during bargaining Miossi specifically indicated that business conditions had softened
in 2010-2013 and that demand had gone down as well as pricing. The Union’s request for
information for the Respondent’s sales by customer for the years 2009 through 2013 and its
projected sales for the period of 2014 through 2016 would obviously allow it to determine the 15
accuracy of the claims made by Miossi during bargaining. The request for such sales information
would assist the Union in determining whether Respondent’s statements regarding the factors
supporting its bargaining position were supported by objective evidence.
Applying the principles expressed in Caldwell, I find that the Respondent is obligated to 20
provide the requested information regarding customers to the Union. The Board has found in
similar situations that employers have had the obligation to provide such information. In
National Extrusion & Mfg. Co., 357 NLRB No. 8 (2011) the Respondent proposed a 12 percent
reduction in wages over 3 years. In support of its position the employer stated it needed to make
its facility more competitive. In particular, the employer asserted that it was faced with 25
competition from Asia and its production costs had increased while its production levels had
diminished. In addition, the Respondent claimed that it had lost a large customer the year prior to
the negotiations. The union requested information regarding the employer’s currently customers,
job quotes, outsourcing, pricing structure, market studies and competitors in order to evaluate the
employer’s claims. The Board found that the union was entitled to the information sought, 30
including the information regarding customers, in order to evaluate the Respondent’s claims
regarding the necessity for concessions. Similarly, in Tom Ryan Distributors, 314 NLRB 600
(1994) the Board found that the employer violated Section 8(a)(5) and (1) by failing to provide
requested information regarding, inter alia, sales to customers, where the employer was seeking
to reduce labor costs by virtue of its proposal regarding presell and bulk sales to customers.35
In the instant case, the Union also requested information about the “business conditions”
relied on by Respondent and the “specific changes that have occurred and the actual impact on
the Company’s financial condition.” Finally, the Union requested that the Respondent provide its
Federal and State tax returns for the period from 2009 through 2012. As noted above, in response 40
to Gibbons observation that since 2009 the Respondent had reduced its labor costs by
approximately 50 percent by virtue of laying off employees, Miossi supported the Respondent’s
bargaining position by claiming that the Respondent was confronted with increased costs, taxes
had gone up and there was downward pressure on pricing. Miossi also referred to competitors
attempting to take business from the Respondent and, when asked who the competition was, 45
referred only to “steel mills”, and mentioned that business was being moved to Texas and
Alabama. Accordingly, by supporting its insistence that it would not move from its position
JD–41–15
27
regarding the continued maintenance of its unilaterally implemented concessions, the
Respondent relied on poor business conditions, the loss of business to competitors and increased
taxes. Again, the Union responded to these claims by requesting information needed to evaluate
the accuracy of the Respondent’s assertions and to assisted in preparing counterproposals. By
flatly refusing to provide any of the requested information, including the tax returns that the 5
Union requested, the Respondent violated Section 8(a)(5) and (1) pursuant to the principles
expressed in Caldwell, A-1 Door & Building Solutions, and National Extrusion & Mfg. Co.
supra.
Whether the Respondent Violated Section 8(a)(5) and (1) by Engaging in Surface Bargaining 10
Without the Intention of Reaching an Agreement
In Regency Service Carts, 345 NLRB 671 (2005), the Board noted the following with respect
to the obligation to bargain in good faith under the Act:
15
Under Section 8(d) of the Act, an employer and its employees’ representative are mutually
required to “meet at reasonable times and confer in good faith with respect to wages, hours
and other terms and conditions of employment . . . But such obligation does not compel
either party to agree to a proposal or require the making of a concession . . .” :Both the
employer and the union have a duty to negotiate with a ‘sincere purpose to find a basis of 20
agreement,”’ Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) (quoting NLRB v.
Herman Sausage Co., 275 F.2d 229, 231 (5th Cir.)), But “the Board cannot force an
employer to make a ‘concession’ on any specific or to adopt any particular position.” Id.
(quoting NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir. 1953), cert.denied
346 U.S. 87 (1953)). The employer is, nonetheless, “obliged to make some reasonable effort 25
in some direction to compose his differences with the union, if [Section] 8(a)(5) is to be read
as imposing any substantial obligation at all.” Ibid. (Emphasis in original.) Therefore, “mere
pretense at negotiations with a completely closed mind and without a spirit of cooperation
does not satisfy the requirements of the Act.” Mid--Continent Concrete, 336 NLRB 258, 259
2001) enfd. sub nom. NLRB v. Hardesty Co., 308 F.3d 859 (8th Cir. 2002) (quoting NLRB v. 30
Wonder State Mfg. Co., 344 F.2d 210 (8th Cir. 1965)). A violation may be found where an
employer will reach an agreement on its own terms and none other. Id.; Pease Co., 237
NLRB 1069, 1070 (1978).
In Mid-Continent Concrete, supra, at 259-260, the Board noted that in determining whether a 35
respondent has bargained in bad faith, it looks at the totality of the circumstances. In this
connection, relevant factors include unreasonable bargaining demands,16 delaying tactics, efforts
to bypass the bargaining representative, failing to provide relevant information, and unlawful
conduct away from the table. The Board has never held, however, that a respondent must have
engaged in each of those factors before concluding that bargaining has not been conducted in 40
good faith. Rather, as noted above, the focus is on the entirety of a respondent’s conduct in

16 The Board examines proposals when appropriate and considers whether, on the basis of objective
factors, bargaining demands constitute evidence of bad-faith bargaining. Public Service Co. of Oklahoma,
334 NLRB 487,488 (2001), enfd. 318 F.2d 1173 (10th Cir. 2003); Reichhold Chemicals, 288 NLRB 69
(1988), affd. in relevant part 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991).
JD–41–15
28
determining whether the evidence establishes that it intended to avoid reaching an agreement.
Regency Service Carts, supra at 671; Altorfer Machinery Co., 332 NLRB 130 fn. 2 (2000).
Applying these principles to the instant case, I find that the Respondent’s overall conduct
during the bargaining that occurred in 2013 violated Section 8(a)(5) and (1) of the Act. 5
Examining the entirety of the Respondent’s conduct during this period, I find that it did not have
a sincere purpose to find a basis for an agreement and thus crossed the line from hard bargaining
to bargaining without the intention of reaching an agreement. In reaching this conclusion, I rely
on the fact, as explained in detail above, that the Respondent failed to provide relevant and
necessary information to the Union in violation of Section 8(a)(5) and (1). As set forth above, 10
this is an important factor to consider when determining whether a Respondent has engaged in
overall bad faith bargaining.
I also considered the fact that in December 2013, the only information that the Respondent
did provide to the Union was incomplete and misleading. As set forth in detail above, the15
information provided to the Union regarding the Respondent’s revenue during the period from
2009 through November 2013, included only the revenue it received from toll processing and not
from metal sales. Since metal sales comprises approximately 20 percent of the Respondent’s
production operations, the information provided substantially underreported the Respondent’s
revenue during that period. The Board has held that furnishing incomplete and misleading 20
information to a union during bargaining is indicative of a lack of good faith. Northwestern
Photoengraving Co., Inc. 140 NLRB 24, 49-50 (1962).
With regard to the substance of the negotiations in 2013, following the July 8, 2013 approval
of a settlement agreement in which the Respondent agreed to meet and bargain in good faith, the 25
parties met on September 12, 2013, but that meeting was devoted primarily to a discussion of the
termination of the union’s steward and insurance issues involving two employees. On October
31, 2013, the parties resumed their negotiations to attempt to reach a collective-bargaining
agreement and focused on the economic issues on which they had not reached agreement. At this
meeting, the Union gave the Respondent a document outlining what it viewed as the adverse 30
economic consequences that unit employees had experienced by virtue of working under the
terms of the Respondent’s final offer that was unilaterally implemented in 2009 and unilaterally
modified on January 1, 2012. The Union then gave the Respondent its eleventh economic
proposal which included a proposal to modify the Respondents unilaterally implemented 2012
terms regarding the ability to receive overtime pay and to include time off for union business in 35
calculating the number of hours worked in order to be eligible to receive overtime pay. In
addition, the Union’s proposal agreed to the Respondent’s implemented proposal for vacation
pay for newly hired employees but wanted to allow current employees to have up to the 4 weeks
of vacation they previously could attain. With respect to wages, the Union proposed to restore
the wages that were previously in effect based on a formula reflecting production per employee 40
that was equal to the 180,000 ton average per year set forth in the Respondent’s unilaterally
implemented proposal. The Union’s proposal also included a $1000 payment upon ratification
and general wage increases for both 2014 and 2015. In effect, the Union proposed to the
Respondent that it consider a formula that recognized the increased productivity of employees
and would enable them to meet and perhaps exceed the wage rates that were in effect before the 45
Respondent’s unilateral implementation of the cuts in 2009. Gibbons pointed out to Miossi that
under the present circumstances, the formula implemented by the Respondent that there must be
JD–41–15
29
180,000 tons of steel processed annually in order for employees to achieve a wage increase from
their present level did not seem to be relevant and was unfair as it appeared that level of
production may not be met in the future. Gibbons asked the Respondent to look at a reasonable
trigger for the employees to receive a wage increase and stated that the Union did not know
whether the Respondent was making money or not. Miossi responded that the level of tons of 5
steel processed was related to the operating costs of the business and was not related to profit or
loss and added that the Respondent’s owners were not applying the same analysis as the Union.
Miossi did not further explain the analysis applied by the Respondent’s owners.17 During the
discussions that were held during this meeting the Union further indicated that it was willing to
waive its request for a wage increase and accept a lump-sum payment of $1,000 dollars upon 10
ratification of the contract but that it would prefer for employees to have an hourly wage
increase. The Union further indicated that it was willing to look at a profit sharing agreement
dependent upon the Respondent’s financial condition. Miossi, indicated that Respondent was not
going to grant a wage increase just to get an agreement and that few employees had left and that
the terms the Respondent had implemented was the best it could do. In support of the 15
Respondent’s position that its unilaterally implemented offer was the best it could do, Miossi
indicated that the Respondent was confronted with increased costs; taxes had gone up and there
was downward pressure on pricing. He also indicated that business conditions had not changed
and, if anything, had worsened. At the conclusion of the meeting, after speaking with the
Respondent’s owners, Miossi formally rejected the Union’s proposal and indicated that the 20
Union could obtain a contract if it accepted the terms of the Respondent’s 2012 implemented
proposal.
On November 11, 2013, the Respondent indicated it would accept the Union’s proposal for
unpaid time off for union business but would limit it to one person for a maximum of 20 hours 25
per year. The Respondent indicated that the Union’s remaining proposals were not acceptable
and that the Respondent stood on the currently implemented terms.
At the next meeting held on December 11, 2013, Gibbons gave Miossi the Union’s request
for information and that stated that the Union’s proposal was not unreasonable and that 30
employees should have the ability to obtain a raise because they were producing more per
employee. Miossi again indicated that the Union could sign the Respondent’s final offer and that
it was a fair deal since there had been no employee turnover. Gibbons then indicated that the
Union would not present another offer at that time but would await a response to its information
request. Thereafter, the Union requested information in order to verify the accuracy of the claims 35
that Miossi had made during the October 31 meeting and to assist it in developing new
proposals. The Respondent refused to provide the requested information except for providing
incomplete and misleading summary of information regarding tonnage and revenue for the 2009-
2012 period. As noted above, there were no further bargaining meetings between the parties.
40
The Respondent and the Union had a substantial number of meetings between 2008 and
December 2013, and had reached a tentative agreement regarding the noneconomic of a contract.
During the two bargaining sessions that occurred in 2013, the Union made a substantial attempt

17 As noted previously, Timothy Orlowski did not relate the processing of 180,000 tons of steel to the
operating costs of the business but rather stated that he believed the processing of 180,000 tons of steel to
be a proper utilization of the equipment and that it was his prerogative to want his assets fully utilized.
JD–41–15
30
to reach an agreement with the Respondent. The Union’s proposal addressed the economic
reality that the Respondent produced less processed steel with less employees than it did in 2007,
but also sought to restore the wage cuts that the Respondent had unilaterally implemented in
2009 by virtue of the fact that, on a per capita basis, the remaining employees were more
productive. The Respondent indicated a complete unwillingness to consider the Union’s proposal 5
seeking a formula that could result in employees receiving a wage increase for their increased
productivity. The Respondent rejected the Union’s proposal and repeatedly indicated that if the
Union wanted an agreement it could sign the Respondent’s unilaterally implemented proposal.
At the same time the Respondent refused to provide the Union with necessary and relevant
information that would enable the Union to understand the basis for the Respondent’s position 10
on wages and to see if the assertions made by the Respondent as to the underlying basis for that
position were substantiated.
I find that during the bargaining that occurred in 2013, the Respondent’s refusal to consider
making anything more than a minor modification in its unilaterally implemented terms and 15
conditions of employment and its refusal to provide relevant information to justify and explain
its position demonstrates a lack of any effort in some direction in order to reach an acceptable
common ground with the Union. The Respondent maintained its intransigent position despite the
Union’s willingness to modify its proposals in order to reach an agreement. I find the conduct of
the Respondent establishes that it maintained a predetermined resolve that its unilaterally 20
implemented offer, with the minor modification noted above, constituted the only terms upon
which it would enter into a collective-bargaining agreement with the Union.
In Mid-Continent Concrete, 336 NLRB 258, 260 (2001), enfd. 308 F.3d 859 (8th Cir. 2002),
the Board noted, “Where the proponent of a regressive proposal fails to provide an explanation 25
for it, or the reason appears dubious, the Board may weigh that factor in determining whether
there has been bad-faith bargaining.” In the instant case, Miossi stated, during bargaining in
2013, that the basis for the position that 180,000 tons of steel had to be processed before the
Respondent would restore the wage cuts it had unilaterally implemented was related to the
operating costs of the business. In 2009, Miossi indicated during bargaining that the 180,000 tons 30
of steel processed level was the Respondent’s breakeven point. Timothy Orlowski’s testimony
that it is his prerogative to want that level of production in order to fully utilize his assets,
without relating that in any way to operating costs, certainly makes the reasons advanced in
bargaining appear dubious. The Respondent, of course, refused to provide the information that
would perhaps provide an explanation for the Respondent’s position. Under these circumstances 35
I find that Respondent has not provided a reasonable explanation for its unilaterally imposed
wage cuts.
The Board has held that it is a significant manifestation of bad faith bargaining for an
employer to refuse to budge from an initial bargaining position, refuse to offer reasonable 40
explanations for a proposal and refuse to make any efforts to compromise in order to reach
common ground. Altofer Machinery Co., 332 NLRB 130, 150 (2000); John Asuaga’s Nugget,
298 NLRB 524, 527 (1990), enfd. in pertinent part 968 F.2d 991 (9th Cir. 1992).
On the basis of all of the foregoing, I find that the Respondent violated Section 8(a)(5) and 45
(1) of the Act by engaging in surface bargaining in 2013 with no intention of reaching an
agreement. In reaching this conclusion, I have considered the fact that parties had approximately
JD–41–15
31
37 collective-bargaining sessions between November 2007 and December 2013; that the parties
reached a tentative agreement on the noneconomic provisions of a collective-bargaining
agreement; and that in 2013 the Respondent made a minor compromise with respect to granting
20 hours of unpaid time annually to conduct union business and to consider those hours for
purposes of calculating the number of hours worked necessary before an employee would 5
receive overtime pay. However, when I consider the totality of the Respondent’s conduct in
bargaining during 2013, it convinces me that the Respondent did not bargain in good faith in
2013 with the intention of reaching an agreement with the Union.
Whether the Responded Violated Section 8(a)(5) and (1) of the Act by Withdrawing 10
Recognition from the Union
As set forth in detail above, on July 10, 2014, the Respondent withdrew recognition from the
Union based on a petition purportedly signed by a majority of the unit employees.
15
The General Counsel and the Union contend that the Respondent’s withdrawal of recognition
violates Section 8(a)(5) and (1) because it occurred in the context of serious unremedied unfair
labor practices and thus the petition cannot serve as a basis for withdrawing recognition from the
Union.
20
The General Counsel and the Union also contend, pursuant to the principles expressed in
Levitz Furniture Co., 333 NLRB 717 (2001) and Latino Express Inc., 360 NLRB No. 112
(2014),that the Respondent did not meet its burden of establishing that the petition demonstrated
that the Union had, in fact, lost majority support among unit employees at the time it withdrew
recognition from the Union. 1825
The Respondent argues that the petition was sufficiently authenticated to establish that
the Union had in fact, lost majority support of the time it withdrew recognition from the Union.
The Respondent further argues that it has not committed any of the unfair labor practices alleged
in the complaint, but even if it did, those unfair labor practices cannot reasonably be found to 30
have caused employee disaffection from the Union sufficient to taint the withdrawal of
recognition.
As noted in substantial detail above, I have found that the Respondent engaged in surface
bargaining without the intention of reaching an agreement in October and December, 2013 in 35
violation of Section 8(a)(5) and (1). I have also found that since December 16, 2013, the
Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union necessary and
relevant information in order for it to perform its function as the collective-bargaining
representative of the unit employees.
40

18 At the trial, counsel for the General Counsel clearly expressed the position, consistent with the
allegations of the complaint that, in addition to contending that the Respondents withdrawal of
recognition occurred in the context of unremedied unfair labor practices, the General Counsel was also
alleging that the Respondent had not established, by a preponderance of the evidence, that there was an
actual loss of majority status at the time it withdrew recognition from the Union. (Tr. 234-235.)
JD–41–15
32
In Vincent Industrial Plastics, Inc. 328 NLRB 300 (1999), enfd. in part 209 F.3d 727 (D.C.
Cir. 2000), supplemental decision 336 NLRB 697 (2001), the Board relied on its previous cases,
Williams Enterprises, 312 NLRB 937, 939 (1993),enfd. 50 F.3d 1280 (4th Cir. 1995) and Master
Slack Corp., 271 NLRB 78, 84 (1984) in holding:
5
In cases involving unfair labor practices other than a general refusal to recognize and
bargain, the Board considers several factors to determine whether there is a causal
relationship between unremedied unfair labor practices and the subsequent employee
expression of disaffection with the incumbent union. These factors include:
(1)The length of time between the unfair labor practices and the withdrawal of recognition10
(2) the nature of the illegal acts, including the possibility of detrimental or lasting effect on
employees; (3) any possible tendency to cause employee disaffection from the union; and (4)
the effect of the unlawful conduct on employee morale, organizational activities and
membership in the union. 328 NLRB at 301-302.
15
In applying those factors to the instant case, I note that respect to the first factor noted above,
the Respondent’s bargaining in bad faith occurred approximately 8 months prior to the
withdrawal of recognition as did its unlawful refusal to provide information. The nature of the
Respondent’s unfair labor practices are such, however, that they have a lasting effect and would
reasonably cause employee disaffection from the Union. In this regard, in Prentice-Hall, Inc., 20
290 NLRB 646, 672-673 (1988) the Board clearly indicated that bad faith bargaining completely
taints an employee petition relied on by an employer to withdraw recognition from an incumbent
union. In addition, the Respondent’s unlawful refusal to provide information is of a continuing
nature since, without that information, the Union is greatly hindered in bargaining in a knowing
and intelligent fashion. With respect to the second factor, as noted above, the nature of the 25
Respondent’s unlawful conduct in bargaining in bad faith and refusing to provide relevant
information related to the bargaining clearly has a greatly detrimental and lasting effect on
employees. With respect to the third factor, I find that that the passage of time without any real
prospect of reaching a contract, has a substantial tendency to cause employee disaffection from
the Union. As noted above, in Prentice Hall, Inc., supra, the Board found that the employer’s bad 30
faith bargaining nullified an employee petition expressing employee dissatisfaction with the
union. Finally, I find, based on the principles expressed in Prentice-Hall, Inc., that it is manifest
that the Respondent’s conduct in bargaining in bad faith and refusing to provide relevant and
necessary information would adversely affect employees’ desire to engage in activities on behalf
of the Union, since such conduct greatly hinders the Union’s effectiveness in representing the 35
unit.
I find the cases relied on by the Respondent in support of its position that, if I should find any
unfair labor practices occurred here, they are insufficient to conclude that the employee petition
was affected by those unfair labor practices, to be distinguishable from the instant case. In 40
Champion Enterprises Inc., 350 NLRB 788 (2007), the Board found that the respondent had
refused to provide to the union requested information regarding company procedures regarding
handling customer complaints and unilaterally laid off employees in violation of Section 8 (a)(5)
and (1). The Board further found that the Respondent had also committed two independent
violations of Section 8(a)(1). The Board found that the unfair labor practices that occurred were 45
insufficient to cause employee disaffection with the union. In making this finding, the Board
specifically noted that there was no evidence that the respondent had engaged in bad-faith
JD–41–15
33
bargaining during its negotiations with the union. Id. at 792. In the instant case, of course I have
found that the Respondent has engaged in bad faith bargaining and Prentice-Hall, Inc., supra,
stands for the proposition that it is a given that such conduct has a lasting and negative impact on
employees
5
I also find Bunting Bearings, Corp. 343 NLRB 479 (2004) to be distinguishable from the
instant case. There, the Board found that two independent violations of Section 8(a)(1), the
discharge of one employee in violation of Section 8(a)(3) and (1), and a partial lockout of
nonprobationary bargaining unit employees in violation of Section 8(a)(5) and (1) were
insufficient to taint the employee petition that the respondent relied on to withdraw recognition 10
from the union. Id. at 483 fn. 17. Unlike the instant case, there was no finding that the
respondent engaged in a pattern of bad faith bargaining. Again, Prentice-Hall, Inc., makes it
clear that an unremedied pattern of bad faith bargaining has the effect of causing employee
disaffection from the union.
15
Based on the foregoing I find that a causal relationship existed between the Respondent’s
unfair labor practices and the petition received by the Respondent on July 10, 2014, and
therefore did the Respondent cannot rely on that petition to assert that the Union no longer
enjoyed majority status as of that date. Accordingly, I find that the Respondent violated Section
8(a)(5) and (1) by refusing to recognize and bargain with the Union on and after July 10, 2014.20
As noted above, General Counsel and the Union also contend that the Respondent’s
withdrawal of recognition violated Section 8(a)(5) and (1) because the Respondent did not meet
its burden to establish that the Union had, in fact, lost majority support.
25
In Levitz, supra, at 725, the Board held that:
“[A]n employer may rebut the continuing presumption of an. incumbent union’s majority
status, and unilaterally withdraw recognition, only on a showing that the Union has, in
fact, lost the support of a majority of the employees in the bargaining unit.30
. . . .
We emphasize that an employer with objective evidence that the union has lost majority
support-for example, a petition signed by a majority of the employees in the bargaining 35
unit-withdraws recognition at its peril. If the union contests the withdrawal of recognition
in an unfair labor practice proceeding, the employer will have to prove by a
preponderance of the evidence that the union had, in fact, lost majority support at the
time the employer withdrew recognition. If he fails to do so, it will not have rebutted the
presumption of majority status, and the withdrawal of recognition will violate Section 40
8(a)(5). (Footnote omitted.)
In Latino Express, supra, at 15 the Board clearly indicated that when an employer relies on
the employee petition to establish the union’s loss of majority support it is the employer’s
obligation to authenticate the signatures on the petition that it relies on.45
JD–41–15
34
I find that July 10, 2014, the day the Respondent withdrew recognition, the unit was
composed of 26 employees, including Neace and Sterczek. I base this finding on the employee
census that was submitted to the Union on April 11, 2014, and Timothy Orlowski’s
uncontradicted testimony that none of the employees on that list had left voluntarily or been
terminated prior to July 9, 2014. The petition that the Respondent relied on to withdraw 5
recognition contained 16 signatures, including those of Neace and Sterczek. Before it withdrew
recognition, the Respondent did not undertake any review of employee signatures on personnel
records but rather relied solely on Timothy Orlowski’s assessment that the signatures appeared
valid to him.
10
In the instant case, the only evidence regarding the authenticity of the signatures on the
petition came from the testimony of Timothy Orlowski. The Respondent did not call any
employees to testify that they solicited signatures or signed the petition. The Respondent also did
not introduce any personnel records with employee signatures in order for me to compare the
signatures on the petition to signatures contained within the Respondent’s regular business 15
records. On direct examination Orlowski testified that he had known the employees for a long
time, had seen their signatures on a multitude of documents, and the signatures looked valid to
him. On cross-examination, however, Orlowski admitted that Brandon Trezzo and Brandon de la
Cruz were newer employees and that he had not seen their signatures many times prior to July
10, 2014. Orlowski also admitted that there were other employee signatures that he had not seen 20
very often because they were newer employees. As set forth above, there were four other
employees in addition to De la Cruz and Trezzo, who were hired in 2013. Coronel was hired on
April 8, 2013, approximately 2 weeks before Trezzo. Keiler was hired on July 15, 2013;
Krasinski was hired on August 7, 2013; and Mennotti was hired on September 5, 2013.
25
Timothy Orlowski’s admitted at the trial that he was not very familiar with the signatures of
De la Cruz and Trezzo and some of the other newer employees. Objective evidence establishes
that in addition to Trezzo, four other employees were hired in 2013 after De la Cruz. I find that
Timothy Orlowski’s testimony, uncorroborated by any other evidence, establishes that at most,
10 of the 26 signatures on the petition were valid. Given Orlowski’s admitted unfamiliarity with 30
the signatures of De la Cruz, Trezzo, and the four other employees hired in 2013, and without
any other evidence to establish the validity of those signatures, I find that the Respondent did not
carry its burden to establish the authenticity of those six signatures. Since I find that Timothy
Orlowski’s uncorroborated testimony can only establish the authenticity of 10 of the 26
signatures on the petition, I find that Respondent has not established by a preponderance of the 35
evidence that the Union had, in fact, lost majority status on July 10, 2014.19 Accordingly, I also

19 There is no stipulation in the record between the parties regarding the exact number of employees
in the bargaining unit on July 10, 2014. At the hearing, the General Counsel and the Union appeared to
suggest that Harve and Sterczek are supervisors within the meaning of Section 2(11) of the Act and thus
should be excluded from the unit. There is, however, scant evidence in the record regarding the job duties
and authority of Harve and Sterczek. Based on the circumstances, I find that it is unnecessary to
determine the status of Neace and Sterczek. If Neace and Sterczek are included in the unit the
Respondent authenticated 10 signatures in a unit of 26 employees. If Neace and Sterczek are excluded
from the unit, the Respondent has only authenticated 8 signatures in a unit of 24 employees. Under either
scenario, the Respondent has not established that the Union, in fact, lost majority status in the unit based
on the employee petition.
JD–41–15
35
rely on this basis to conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from the Union on July 10, 2014.
Whether they Respondent Violated Section 8 (a) (5) and (1) of the Act by denying the
Union’s Request to Conduct a Health and Safety Inspection5
As set forth in greater detail above, on July 10, 2014, the Union requested that the
Respondent provide available dates for the union to conduct a safety and health inspection to
review the “OSHA matters that require abatement and compliance.” The Respondent denied the
Union’s request to conduct a health and safety inspection on the basis that it had withdrawn 10
recognition.
In Holyoke Water Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d 49 (1st Cir. 1985) the
Board noted that health and safety matters are mandatory subjects of bargaining upon which an
employer is obligated to bargain on request. The Board determined that in granting a union 15
access to an employer’s property to insure the health and safety of employees, it is necessary to
determine that the responsible representation of employees can only be achieved by a union
having access to an employer’s premises. Under such circumstances, an employer’s property
rights must yield to grant a union reasonable access to the facility. Applying that test, the Board
granted the union reasonable access to the employer’s facility in order to conduct a survey of 20
potential health and safety hazards.
In Standard Motor Products, 331 NLRB 1466, 1494 (2000), the Board determined that an
employer violated Section 8(a)(5) and (1) when it refused to provide the union access to its
facility for a health and safety inspection by the union’s safety expert, after the union had been 25
presented with the number of complaints by employees regarding safety issues in the plant.
In the instant case, since employees had presented concerns to the Union regarding safety
matters in the plant after OSHA had cited the Respondent for safety violations, I find that the
Union has demonstrated it was necessary for it to have access to the Respondent’s facility in 30
order to determine the status of the Respondent’s compliance with the OSHA citations. The fact
that a fair reading of the Respondent’s implemented offer granted the Union reasonable access to
the plant in order to discuss safety matters with the Respondent strengthens the Union’s position
in this matter.
35
Since the only basis for the Respondent’s refusal to grant the Union reasonable access to its
facility in order to conduct a health and safety inspection was its reliance on its withdrawal of
recognition on July 10, 2014, the Respondent has violated Section 8(a)(5) and (1) by summarily
rejecting the Union’s request for a health and safety inspection.
40
CONCLUSIONS OF LAW
1. The Union is now and, at all material times, has been the exclusive bargaining
representative of the employees in the following appropriate unit:
45
All full-time and regular part-time production, maintenance, and shipping and receiving
employees employed by the Employer at its facility currently located at 11355 Franklin
JD–41–15
36
Avenue, Franklin Park, Illinois; but excluding office clerical employees and guards,
professional employees and supervisors as defined in the Act.
2. By failing to bargain in good faith with the Union by engaging in surface bargaining
without the intention of reaching an agreement, the Respondent violated Section 8(a)(5) and (1) 5
of the Act.
3. By refusing to provide the Union with necessary and relevant information, the Respondent
violated Section 8(a)(5) and (1) of the Act
10
4. By withdrawing recognition from the Union as the collective-bargaining representative of
the above-noted unit on July 10, 2014, the Respondent violated Section 8(a)(5) and (1) of the
Act.
5. By denying the Union access to its Franklin Park, Illinois facility to conduct a health and 15
safety inspection, the Respondent has violated Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall order 20
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.
As part of the remedy for the Respondent’s unlawful withdrawal of recognition in violation
of Section 8(a)(5) and (1) and its failure to bargain in good faith, I shall order the Respondent to 25
on request, recognize and bargain with the Union in good faith. The General Counsel and the
Union argue that, under the circumstances present in this case, it is appropriate to extend the
Union’s certification year pursuant to the principles expressed in Mar-Jac Poultry Co., 136
NLRB 785 (1962), and its progeny. In Dominguez Valley Hospital, 287 NLRB 149 (1987), the
Board explained these principles as follows:30
In order to assure a reasonable time for bargaining “without outside interference or pressure.”
The Board has held that “absent unusual circumstances, an employer will be required to
honor a certification for a period of one year.” Mar-Jac Poultry Co. 136 NLRB 785, 786
(1962) (footnote omitted). As the Board there held, when an employer has, during part or all 35
of the year immediately following the certification, refused to bargain with the elected
employee representative and thereby “taken from the Union” the opportunity to bargain
during the “the period when Unions are generally at their greatest strength,” the Board will
take measures to assure a period of at least a year of year good-faith bargaining during which
a bargaining representative need not fend off claims that it has lost its majority support.” Id 40
at 149.
In Dominguez Valley Hospital, at 650, the Board reiterated its policy that the certification
year begins to run on the date of the parties first bargaining session. The Board has, depending
on the circumstances, also extended the certification year for less than a year for what it 45
considers to be a “reasonable period of time Latino Express, Inc., supra, fn. 6 and JD slip op at
17 fn. 21; Valley Inventory Service, 295 NLRB 1163, 1167 (1989).
JD–41–15
37
In the instant case, as noted above, pursuant to an election conducted in Case 13-RD-068844,
the Union was again certified as the representative of the bargaining unit on July 31, 2012.
Pursuant to a settlement agreement approved on July 8, 2013, the Respondent agreed to an
extension of the Union’s certification year for 1 year from the date of the approval of the 5
settlement agreement. In late August 2013, the Union contacted the Respondent to discuss the
discharge of the Union’s steward at the Franklin Park facility and to schedule negotiation
meetings. On September 12, 2013, the parties met to discuss the discharge of the Union’s
steward and some insurance issues involving two employees. At that meeting the parties agreed
to meet for collective-bargaining on October 31, 2013. As noted above in detail, beginning on 10
October 31, 2013, I find that the Respondent engaged in a course of conduct that established that
it was engaging in surface bargaining without the intention of reaching an agreement in violation
of Section 8(a)(5) and (1). Thereafter, the Respondent refused to provide the Union with relevant
and necessary information in violation of Section 8(a)(5) and (1). There is no contention and no
evidence to establish that the Respondent engaged in any unlawful conduct at the meeting held 15
on September 12, 2013. Under these circumstances, I find that it is appropriate to extend the
certification year for a 10-month period after the parties have commenced good-faith bargaining.
The General Counsel and Union also request that the Respondent be ordered to post a
notice to employees in both English and Polish. When the Union was first certified as the 20
bargaining representative of the unit in 2007, approximately two thirds of the bargaining unit
was predominantly Polish speaking. At meetings the Union had to rely on the use of a translator
to communicate with a substantial number of unit employees. As late as 2013 approximately two
thirds of the remaining 26 unit employees were predominantly Polish speaking. In such
circumstances, the Board’s policy is to post a notice in multiple languages in order to fully 25
communicate to employees their rights under the Act. Alstyle Apparel, 351 NLRB 1287 (2007).
Accordingly, I shall order the notice to be posted in both English and Polish.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2030
ORDER
The Respondent Arlington Metals Corp., Franklin Park, Illinois its officers, agents,
successors, and assigns, shall35
1. Cease and desist from
(a) Failing to bargain in good faith with the Union as the collective-bargaining representative
of the employees in the following appropriate unit by engaging in surface bargaining without the 40
intention of reaching an agreement. The appropriate unit is:

20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–41–15
38
All full-time and regular part-time production, maintenance, and shipping and receiving
employees employed by the Employer at its facility currently located at 11355 Franklin
Avenue, Franklin Park, Illinois; but excluding office clerical employees and guards,
professional employees and supervisors as defined in the Act.
5
(b) Refusing to provide the Union with necessary and relevant information contained in its
December 16, 2013 information request.
(c) Withdrawing recognition from the Union as the collective-bargaining representative
of the employees in the unit described above.10
(d) Denying the Union access to its Franklin Park, Illinois facility to conduct a health and
safety inspection.
(e) In any like or related manner interfering with, restraining, or coercing employees in the15
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, recognize and bargain in good faith with the Union for a reasonable period 20
as set forth in the remedy portion of this decision, as the exclusive representative of the
employees in the following appropriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement:
All full-time and regular part-time production, maintenance, and shipping and receiving 25
employees employed by the Employer at its facility currently located at 11355 Franklin
Avenue, Franklin Park, Illinois; but excluding office clerical employees and guards,
professional employees and supervisors as defined in the Act.
(b) Provide the Union with the following necessary and relevant information it requested on 30
December 11, 2013:
Audited financial statements for the past 4 years (2009-2012) certified by an
outside CPA.
Financial reports for 2010-2013 which include a detailed income statement, a 35
detailed balance sheet, and a statement of cash flows.
Sales by customer for each of the last 4 years (2009-2012) and current (2013) and
projected sales for the next 3 years (2014-2016).
An explanation of the Employer’s business conditions, including specific changes
that have occurred and the actual impact on the Employer’s financial condition. 40
Provide specific data, reports and analysis.
Federal and state tax returns for the last 4 years (2009-2012).
(c) Provide the Union reasonable access to its Franklin Park, Illinois facility in order to
conduct a health and safety inspection.45
(d) Within 14 days after service by the Region, post at its facility in Franklin Park, Illinois,
JD–41–15
39
copies of the attached notice marked “Appendix”21 in both English and Polish. Copies of the
notice, on forms provided by the Regional Director for Region 13, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be 5
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these 10
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
October 31, 2013.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn 15
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., July 23, 2015.
20
____________________
Mark Carissimi
Administrative Law Judge

21 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail to bargain in good faith with the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied, Industrial and Service Workers International Union,
AFL-CIO (USW) (the Union), as the collective-bargaining representative of our employees in
the following appropriate unit by engaging in surface bargaining without the intention of
reaching an agreement. The appropriate unit is:
All full-time and regular part-time production, maintenance, and shipping and
receiving employees employed by the Employer at its facility currently located at
11355 Franklin Avenue, Franklin Park, Illinois; but excluding office clerical
employees and guards, professional employees and supervisors as defined in the
Act.
WE WILL NOT refuse to provide the Union with necessary and relevant information
contained in its December 16, 2013 information request.
WE WILL NOT unlawfully withdraw recognition from the Union as the collective-
bargaining representative of the employees in the unit described above.
WE WILL NOT deny the Union reasonable access to our Franklin Park, Illinois facility
to conduct a health and safety inspection.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL recognize the Union as your collective-bargaining representative, and on
request, bargain in good faith with the Union and sign any agreement reached on terms and
conditions of employment for our employees in the bargaining unit.
WE WILL provide the Union with the following necessary and relevant information it
requested on December 11, 2013:
Audited financial statements for the past 4 years (2009-2012) certified by an
outside CPA.
Financial reports for 2010-2013 which include a detailed income statement, a
detailed balance sheet, and a statement of cash flows.
Sales by customer for each of the last 4 years (2009-2012) and current (2013) and
projected sales for the next 3 years (2014-2016).
An explanation of the Employer’s business conditions, including specific changes
that have occurred and the actual impact on the Employer’s financial condition.
Provide specific data, reports and analysis.
Federal and state tax returns for the last 4 years (2009-2012).
WE WILL provide the Union reasonable access to our Franklin Park, Illinois facility in
order to conduct a health and safety inspection.
ARLINGTON METALS CORP.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604-5208
(312) 353-7570, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/13-CA-122273
or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary,
National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 353-7170.