Audio Visual Services Group, Inc., d/b/a PSAV Presentation Services

National Labor Relations Board - Board Decisions

Mar 12, 2019

367 NLRB No. 103 (N.L.R.B. 2019)

367 NLRB No. 103
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Audio Visual Services Group, Inc. d/b/a PSAV Presen-
tation Services and International Alliance of The-
atrical Stage Employees, Local 15. Cases 19–CA–
186007 and 19–CA–192068
March 12, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
On April 6, 2018, Administrative Law Judge Gerald
Michael Etchingham issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs1 and has decided to af-
firm the judge’s rulings, findings,2 and conclusions only
to the extent consistent with this Decision and Order.3
We agree with the judge that the Respondent unlawfully
failed to provide International Alliance of Theatrical Stage
Employees, Local 15 (the Union) with specific financial
information needed by the Union to assess claims made by
the Respondent during bargaining. But we do not agree
with the judge that the Respondent unlawfully failed to
provide general financial information to the Union be-
cause we find that the Respondent effectively retracted its
claim of inability to pay. Further, we reverse the judge
and dismiss the allegation that the Respondent failed to
bargain in good faith.
Facts
On December 18, 2015, the Union was certified as the
exclusive collective-bargaining representative of the Re-
spondent’s technicians in the Seattle, Washington area.
On January 4, 2016, the Union requested to bargain with
the Respondent,4 but the Respondent refused to bargain

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
3 We have amended the judge’s conclusions of law and remedy and
modified the judge’s recommended Order consistent with our findings
while its request for review of the Union’s certification
was pending with the Board. On May 23, shortly after the
Board’s denial of the Respondent’s request for review, the
Respondent contacted the Union to schedule negotiations
for the parties’ first collective-bargaining agreement.5
On June 24, the parties held their first bargaining ses-
sion, in which they primarily established ground rules for
bargaining. The Union also presented a partial contract
proposal, which the parties discussed. Shortly thereafter,
the Respondent provided the Union with information
showing that full-time unit employees’ current wage rates
range from $15 to $28.88 per hour depending on their job
classifications.
On July 19, the Union emailed its first complete con-
tract proposal to the Respondent. Regarding economic is-
sues, the Union proposed that the Respondent increase
unit employees’ wages by 73 to 120 percent depending on
the job classification, pay overtime in certain circum-
stances where overtime is not required by Federal or State
law, and make contributions to the Union’s pension and
health funds. Regarding noneconomic issues, the Union
proposed a discipline provision that required just cause
and progressive discipline, a final and binding arbitration
provision, and limitations on the Respondent’s ability to
subcontract unit work.
On August 11, the Respondent emailed its first com-
plete contract counterproposal to the Union. Regarding
economic issues, the Respondent proposed that it would
maintain the existing wage rates for current employees, set
wage rates for future hires within specified ranges for each
job classification, determine future wage increases during
the life of the contract, pay overtime as required by Fed-
eral and State law, and provide unit employees the same
benefits as unrepresented employees. Regarding noneco-
nomic issues, the Respondent proposed a discipline provi-
sion that required a “reasonable belief”6 but did not require
progressive discipline, a grievance and arbitration provi-
sion that stated that “[t]he arbitrator’s decision shall have
the effect of a judgment entered upon an award made, en-
titling the entry of a judgment in a court of competent ju-
risdiction against the defaulting party who fails to carry
and legal conclusions herein. We shall substitute a new notice to con-
form to the Order as modified.
4 All dates hereafter are in 2016, unless otherwise indicated.
5 In a prior decision, the Board found that the Respondent’s refusal to
bargain with the Union from January 4 to May 23 violated Sec. 8(a)(5)
and (1). See Audio Visual Services Group, Inc. d/b/a PSAV Presentation
Services, 365 NLRB No. 84 (2017) (PSAV I).
6 More specifically, the discipline provision stated: “[The Respond-
ent’s] decision to discipline an employee based on his/her violation of
laws, rules, regulations, and/or [Respondent’s] policy shall be supported
by a reasonable belief that the employee has committed an infraction.”
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
out or abide by such decision,”7 and a management-rights
clause that gave it “sole discretion” over subjects such as
discipline and subcontracting except as specifically re-
stricted by other provisions in the proposed contract.
The parties held their next bargaining sessions on Au-
gust 17 and 18. During the August 17 session, the Union’s
business representative, Mylor Treneer, stated that the unit
employees were “quite disappointed” with the Respond-
ent’s initial wage proposal. The Respondent’s attorney,
David S. Shankman, responded that Treneer was “delu-
sional” and fraudulently misleading the employees and
that agreeing to the Union’s wage proposal would be “su-
icide” for the Respondent. Shankman made a number of
specific claims to support the Respondent’s position, in-
cluding that the Respondent pays 50-percent commissions
to Seattle-area hotel and convention center properties, that
its contracts with those properties are nonexclusive and
precarious, and that the Seattle market would not support
event rates that would cover the Union’s wage proposal.
Shankman stated that the Union’s wage proposal would
cause the Respondent to lose contracts and go “underwa-
ter.” Treneer replied that the Union had relied, in part, on
the contractual wage rates in the Respondent’s contracts
with IATSE locals in San Diego and San Francisco to de-
velop its wage proposal.8 Shankman responded that those
contracts are not comparable because they cover sporadic,
as-needed labor that the Respondent procures from union
hiring halls to supplement its work force on specific billa-
ble events, but do not cover the Respondent’s in-house
technicians, who receive regular hours and are compen-
sated for both billable and nonbillable work. Treneer told
the Respondent to expect an information request.
During the August 18 session, the Union modified its
economic proposals to limit the circumstances in which
the Respondent would have to pay overtime and to reduce
its proposed wage rates by $2 per hour for each job clas-
sification, which still would have increased unit employ-
ees’ current wage rates by 64 to 106 percent depending on
the job classification. The Union also adhered to its “just
cause” discipline proposal but modified it to include a list
of infractions for which the Respondent would have just
cause to immediately terminate an employee. The parties
reached tentative agreements on provisions concerning
shop stewards, safety, the workweek, discrimination, and
the Respondent’s duty to supply power tools.

7 The Respondent’s proposed grievance and arbitration provision did
not cover acts occurring before the effective date of the contract, separa-
tion of employees during their first 60 days of employment, discipline
that does not involve the loss of time or pay, employee grievances that
On September 2, the Union, through its attorney, Katie
Sypher, emailed the Respondent the following infor-
mation request:
I write with respect to your remarks on PSAV’s eco-
nomic position at the parties’ most recent bargaining ses-
sion. To further the parties’ negotiations, Local 15
would like to better understand PSAV’s financial posi-
tion.
At the session, you expressed PSAV’s inability to pay
the wages requested by the tech bargaining unit in strong
terms, stating both that Local 15’s wage proposal
“would put [PSAV] underwater” and “would be suicide
for [the] company.” You also connected the company’s
inability to pay the wages requested both with the com-
missions that it pays back to its hotel property clients and
the rates it charges for its services to event clients, stating
that “50% of our revenue, roughly, goes to commis-
sions” to the hotel properties and that “the money
[needed pay the wages requested] isn’t there based on
the market rates that can be charged” for PSAV’s event
services to clients.
Thus, Local 15 makes the following request for infor-
mation from PSAV:
 Documents sufficient to substantiate
PSAV’s claim of its inability to pay the
requested wages; particularly, we re-
quest that the company provide docu-
ments that demonstrate the company’s
gross revenues, expenses, and profits
for 2015 and 2016 to date [(bullet point
1)];
 PSAV’s current contracts with any and
all of its hotel clients in Seattle,
SeaTac, Bellevue, Tukwila, and Ta-
coma [(bullet point 2)];
 If the contracts requested in above
don’t expressly establish the commis-
sion rates and sums PSAV has paid to
such property owners between January
1, 2015 and the present, documents
that demonstrate that information
[(bullet point 3)]; and,
 Documents sufficient to show the rates
charged to all event clients to whom
do not involve personal relief to the grievant, allegations of discrimina-
tion, and unfair labor practice charges.
8 Under the San Diego contract, the Respondent pays technicians
from $26.89 to $39.21 per hour. Under the San Francisco contract, the
Respondent pays technicians from $32.88 to $93.58 per hour.
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 3
PSAV has provided service in the cit-
ies listed above within the past year
(September 1, 2015 to present) [(bullet
point 4)].
If these documents can be provided electronically, I
think that will be most efficient for everyone. The Union
is willing to enter into an appropriate confidentiality
agreement to cover the requested documents. Finally, if
the last bullet of the Local’s request proves unduly cum-
bersome, we are open to negotiating some representative
sample of the documents requested above that will meet
the Local’s demand.
On September 6, the Respondent, through Shankman,
sent the following response to the Union (the September 6
response):
Thanks for your email. However, it grossly misstates the
context in which the statements were made. What I was
explaining during our negotiations is that no employer
in this business would pay such a wage to its hourly
workforce that was so grossly outside of its business
model and if it did so, it would be suicide for the com-
pany. This is not an inability to pay for lack of revenue.
It’s a refusal to pay an hourly rate that would be detri-
mental to the business. This is no different than Burruss
Transfer, 307 NLRB 226, where the Board denied the
employer claimed inability to pay when the employer
asserted during negotiations that a requested wage in-
crease was unacceptable because it would “not be able
to survive.” See also, e.g., AMF Trucking & Warehous-
ing, 342 NLRB 1125, 1126 (“‘[i]nability to pay’ means
that the company presently has insufficient assets to pay
or that it would have insufficient assets to pay during the
life of the contract that is being negotiated. Thus, inabil-
ity to pay is inextricably linked to nonsurvival in busi-
ness”). No such claim of inability to pay was ever made.
The balance of your request (hotel contracts, commis-
sion rates and rates charged to end clients) is premised
off of your inability to pay claim which we clearly did
not assert. Indeed, and to keep this in perspective (either
for purposes of your request or the negotiations going
forward), we shared with you the issue of commissions
not to explain hardship or the ability to pay wages. Ra-
ther, we shared this in the context of explaining why we
can pay higher union-call rates for billable events vs. the
rates being paid to PSAV’s regular hourly employees for
many hours which are not-billable. There was no con-
nection between these circumstances other than that. Fi-
nally, to the extent this request would be made but not
tied to the above-issues, we decline to provide this
information as it is proprietary and confidential business
information.
Please contact me if you want to discuss this further or
we can address it on the 19th.
The Union never discussed the September 6 response with
the Respondent.
On September 12, the Respondent emailed the Union a
second complete contract proposal that included its initial
proposals for wages, benefits, discipline, and grievance
and arbitration. However, the Respondent modified its
proposed management-rights clause to state that it would
only “subcontract work where it is deemed necessary for
business operations or when [it] determines that a specific
skill set or work load requires the use of part-time as
needed employees.” By reply email dated September 13,
the Union made a partial contract counterproposal that did
not modify its wages, benefits, discipline, grievance and
arbitration, or subcontracting provisions. On September
19, the parties held another bargaining session and dis-
cussed their latest proposals. They reached tentative
agreements on provisions concerning implementation of
work rules, a labor-management committee, excused ab-
sences, direct deposit, and scheduling.
On October 11, the Union filed its charge alleging that
the Respondent unlawfully failed and refused to provide
the information that the Union requested on September 2.
Two days later, the Respondent sent a letter to Treneer
and the entire bargaining unit (the October 13 letter). The
October 13 letter explained the Respondent’s wage pro-
posal and the difference between sporadic, as-needed la-
bor and regular in-house employees. The letter further
stated, “We heard your proposal for a nearly 100% pay
increase for some positions. We just don’t agree with it,
and we don’t accept it.” The letter also criticized the Un-
ion’s proposal to financially penalize the Respondent for
any unforeseen scheduling changes necessitated by client
needs. The letter closed by stating that the Union’s pro-
posals suggested that the Union either did not understand
the Respondent’s explanations or failed to recognize that
the bargaining unit here differs from the type of unit that
the Union normally represents.
On November 5, the Respondent cancelled the bargain-
ing session scheduled for November 15, but it presented a
new complete contract proposal to the Union and invited
the Union to send new proposals. The Respondent did not
modify its proposals for wages, benefits, discipline, or
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
grievance and arbitration. However, the Respondent in-
cluded a separate subcontracting provision.9
In early December, the Union cancelled the bargaining
session scheduled for December 12, but presented a mod-
ified union security proposal.
On January 24, 2017, the Union emailed the Respond-
ent another partial contract proposal, which modified ver-
sions of the Respondent’s most recently proposed disci-
pline and grievance and arbitration provisions.10 The Un-
ion also modified its most recent subcontracting provision
to allow for patterns of disputes over subcontracting (ra-
ther than individual disputes) to be submitted to the griev-
ance process. In its email, the Union also stated, “We look
forward to the parties’ return to the table and hope that the
time away brings a renewed sense of purpose to the par-
ties’ talks and an eye toward real progress.” The parties
discussed the Union’s partial proposal at the January 26,
2017 bargaining session and reached tentative agreements
on probationary period and scheduling provisions.
On January 27, 2017, the Union filed a charge alleging
that the Respondent was bargaining in bad faith.
On February 22, 2017, the Respondent emailed the Un-
ion a new complete contract counterproposal that did not
modify the wage or benefits provisions. However, except
for the “final and binding” language, the Respondent ac-
cepted the Union’s January 24 modifications to the griev-
ance and arbitration provision. Further, the Respondent
modified its discipline provision to allow it to skip pro-
gressive discipline only for repeat offenses or “particu-
larly egregious” conduct. Additionally, the Respondent
modified its subcontracting provision to allow for patterns
of disputes over subcontracting to be submitted to the
grievance process, as the Union had proposed.
On February 24, 2017, the Union cancelled the March
1, 2017 bargaining session. The Union did not respond to
the Respondent's repeated requests to reschedule.
Analysis
A. Alleged Failure to Provide Relevant
Requested Information
For the reasons that follow, we agree with the judge that
during the August 17 bargaining session, the Respondent,
through its attorney, Shankman, made a claim of inability
to pay the Union’s initial wage proposal, but we also agree
with the Respondent that it effectively retracted that claim.

9 The subcontracting provision stated that the Respondent would only
subcontract unit work “in those situations where PSAV, in its sole dis-
cretion, determines that bargaining unit employees lack the necessary
skills to perform the work, PSAV does not own or have access to the
equipment needed to perform the work, or when the bargaining unit em-
ployees are not available to perform the work.”
10 With regard to the discipline provision, the Union replaced “reason-
able suspicion” with “just cause” and specified that more serious
Therefore, we find that the Respondent did not violate the
Act by failing to provide the Union with the general finan-
cial information requested in bullet point 1 of the Septem-
ber 2 information request. However, we find that the Re-
spondent unlawfully failed to provide the Union with the
specific financial information requested in bullet points 2–
4 because that information is relevant to the Union’s abil-
ity to assess claims made by the Respondent during bar-
gaining and to formulate wage counterproposals.
An employer must provide general financial infor-
mation to a union when the employer has claimed an ina-
bility to pay but not when it has merely expressed unwill-
ingness to pay. See Nielsen Lithographing Co., 305
NLRB 697, 699–701 (1991), enfd. sub nom. Graphic
Communication Workers Local 508 v. NLRB, 977 F.2d
1168 (7th Cir. 1992). The Board has explained that “ina-
bility to pay is inextricably linked to nonsurvival in busi-
ness.” AMF Trucking & Warehousing, 342 NLRB 1125,
1126 (2004) (“‘Inability to pay’ means that the company
presently has insufficient assets to pay or that it would
have insufficient assets to pay during the life of the con-
tract that is being negotiated.”). Shankman’s statements
during the August 17 bargaining session, particularly his
statements that accepting the Union’s initial wage pro-
posal would be “suicide” for the Respondent and would
cause it to go “underwater,” indicated that the Respond-
ent’s business would not survive if the Respondent ac-
cepted the Union’s wage proposal and that it therefore
could not, rather than would not, pay the Union’s proposed
wage rates. See, e.g., Shell Co., 313 NLRB 133, 133
(1993) (finding that the employer claimed inability to pay
where it stated that “the situation . . . was ‘critical’ and a
matter of ‘survival’”). Therefore, we agree with the judge
that the Respondent claimed inability to pay during the
August 17 bargaining session.
However, an employer can retract a claim of inability to
pay by clearly informing the union that it is not making
such a claim. See Richmond Times-Dispatch, 345 NLRB
195, 198 (2005); American Polystyrene Corp., 341 NLRB
508, 509–510 (2004), revd. sub nom. Chemical Workers
v. NLRB, 467 F.3d 742 (9th Cir. 2006); see also Lakeland
Bus Lines v. NLRB, 347 F.3d 955, 963–964 (D.C. Cir.
2003). For example, in American Polystyrene, supra,
when the union asked if the employer could afford its pro-
posals, the employer’s general manager responded, “‘No,
infractions may warrant immediate suspension or termination under the
progressive discipline system. With regard to the grievance and arbitra-
tion provision, the Union modified the provision to include “final and
binding” language and to no longer exclude discipline that does not in-
volve the loss of time or pay, employee grievances that do not involve
personal relief to the grievant, allegations of discrimination, and unfair
labor practice charges.
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 5
I can’t. I’d go broke.’” Id. at 508. The Board found that
the employer’s general manager effectively retracted any
claim of inability to pay, however, by stating in response
to the Union’s written information request, “‘While I have
told you that we are a small company and times are tough,
at no time have I ever told you we cannot afford your pro-
posals. Rather, in these uncertain economic times, we be-
lieve that we need to take a more cautious approach than
what you propose.’” Id. at 508–510.
Similarly, in response to the Union’s September 2 infor-
mation request, the Respondent stated that it was not
claiming “an inability to pay for lack of revenue” but in-
stead was refusing “to pay an hourly rate that would be
detrimental to the business.” The Respondent’s Septem-
ber 9 response clearly indicated that the Respondent was
not unable to pay the Union’s proposed wage rates but,
instead, was unwilling to pay those rates. Additionally,
the Respondent did not undermine its September 9 re-
sponse by subsequently making statements that suggested
its business could not survive if it accepted the Union’s
wage proposal. Cf. Wayron, LLC, 364 NLRB No. 60, slip
op. at 5 fn. 17 (2016).11 Instead, the Respondent repeat-
edly stated that the Union’s wage proposals were contrary
to its business model and that it was neither willing nor
required to deviate from that model. The Respondent
never again suggested that it could not, rather than would
not, pay the Union’s proposed wage rates.12 Accordingly,
we find that the Respondent effectively retracted its claim
of inability to pay and therefore did not unlawfully fail to
provide the Union with the general financial information
requested in bullet point 1.
However, the Respondent’s effective retraction of its in-
ability-to-pay claim did not necessarily justify its refusal
to provide the Union with the specific financial infor-
mation requested in bullet points 2–4. See Management
& Training Corp., 366 NLRB No. 134, slip op. at 2 (2018)
(“Although an employer need not ‘open its books’ to a un-
ion in the absence of a claimed inability to pay, a union
may still seek specific financial data, and the employer
must provide such information upon a showing of rele-
vancy.”). An employer’s duty to provide requested

11 Chairman Ring and Member Emanuel did not participate in Way-
ron, supra, and they express no view as to whether it was correctly de-
cided.
12 Therefore, we find that the present case is distinguishable from
Chemical Workers v. NLRB, 467 F.3d 742 (9th Cir. 2006), which re-
versed the Board’s finding that the employer in that case effectively re-
tracted a claim of inability to pay. Cf. id. at 754 (finding that because
“the Company continued to say that the Company faced ‘uncertain eco-
nomic times,’ that ‘times [were] tough,’ and that decreased sales were
forcing the [C]ompany to institute a layoff,” it did not effectively retract
its inability-to-pay claim but instead “maintained that position through-
out the bargaining process”).
information that is necessary to a union’s performance of
its representational duties includes the duty to provide in-
formation needed by the union “to assess claims made by
the employer relevant to contract negotiations.” Caldwell
Mfg. Co., 346 NLRB 1159, 1159 (2006); see also Man-
agement & Training, supra, slip op. at 2; National Extru-
sion & Mfg. Co., 357 NLRB 127, 128–129 (2011), enfd.
sub nom. KLB Industries, Inc. v. NLRB, 700 F.3d 551
(D.C. Cir. 2012). The union will often need such infor-
mation not only to assess the accuracy of the employer’s
claims but also to develop counterproposals. See Kitsap
Tenant Support Services, 366 NLRB No. 98, slip op. at 7
(2018).
Here, the Union demonstrated that the information re-
quested in bullet points 2–4 is relevant to assessing claims
made by the Respondent at the bargaining table. During
the August 17 bargaining session, the Respondent made a
number of specific claims to support its rejection of the
Union’s wage proposal, including that the Respondent
pays 50-percent commissions to Seattle area hotel and
convention center properties, that its contracts with those
properties are nonexclusive and precarious, and that the
Seattle market would not support event rates that would
cover the Union’s wage proposal. The Union specifically
mentioned some of those claims in its September 2 infor-
mation request. Thus, unlike bullet point 1, bullet points
2–4 sought information that would help the Union assess
the Respondent’s specific assertions during bargaining.
See Caldwell, supra at 1160. Moreover, the information
requested in bullet points 2–4 will help the Union better
understand the Respondent’s business model and allow it
to develop wage counterproposals accordingly.
Thus, we find that the specific financial information re-
quested by the Union in bullet points 2–4 is relevant to the
Union’s representational duties, and that the Respondent
therefore violated Section 8(a)(5) and (1) by failing and
refusing to provide that information to the Union.
In addition, we do not agree with the judge that the Respondent’s re-
traction was disingenuous or in bad faith. In particular, we disagree with
his finding that the Respondent played a “semantical game” after retract-
ing its inability-to-pay claim. To the contrary, as discussed above, the
Respondent did not continue to make statements or engage in conduct
that suggested it could not pay the Union’s wage proposals. Further, the
Respondent’s statements that the Union’s wage proposals were contrary
to its business model in the Seattle area were not disingenuous. The Un-
ion based its wage proposals, at least in part, on wage rates that the Re-
spondent pays to sporadic, as-needed employees for work on specific
billable events. The unit employees, in contrast, are paid a regular hourly
wage regardless of whether they are performing billable or nonbillable
work.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Alleged Failure to Bargain in Good Faith
For the reasons that follow, we reverse the judge’s find-
ing that the Respondent failed to bargain in good faith in
violation of Section 8(a)(5) and (1).
Section 8(d) of the Act defines the duty to bargain col-
lectively as “the performance of the mutual obligation of
the employer and the representative of the employees to
meet at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions of
employment, . . . but such obligation does not compel ei-
ther party to agree to a proposal or require the making of
a concession.” When determining whether an employer
has violated its statutory duty to bargain in good faith, the
Board examines the totality of the employer’s conduct,
both at and away from the bargaining table. See Regency
Service Carts, 345 NLRB 671, 671 (2005). The Board
must ultimately determine “‘whether the employer is en-
gaging in hard but lawful bargaining to achieve a contract
that it considers desirable or is unlawfully endeavoring to
frustrate the possibility of arriving at any agreement.’”
Kitsap, supra, slip op. at 8 (quoting Public Service Co. of
Oklahoma (PSO), 334 NLRB 487, 487 (2001), enfd. 318
F.3d 1173 (10th Cir. 2003)). While the Board will not de-
cide whether an employer’s proposals were acceptable or
unacceptable, it will examine those proposals and “con-
sider whether, on the basis of objective factors, a demand
is clearly designed to frustrate agreement on a collective-
bargaining contract.” Reichold Chemicals, 288 NLRB 69,
69 (1988), enfd. in relevant part sub nom. Teamsters Local
515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990), cert. denied
498 U.S. 1053 (1991); see also Atlanta Hilton & Tower,
271 NLRB 1600, 1603 (1984) (“A party is entitled to stand
firm on a position if he reasonably believes that it is fair
and proper or that he has sufficient bargaining strength to
force the other party to agree.”). The Board will not find
that an employer failed to bargain in good faith if the union
failed to test the employer’s willingness to bargain. See
Captain’s Table, 289 NLRB 22, 22–24 (1988).
Initially, we find that certain portions of the judge’s
bad-faith bargaining analysis are unsound. The judge be-
gan his analysis by finding that the Respondent’s delay in
providing meaningful bargaining proposals is evidence of
bad faith. He correctly pointed out that, as discussed
above, the Board previously found that the Respondent
unlawfully refused to bargain with the Union from Janu-
ary 4 to May 23. However, he failed to consider that dur-
ing this time, the Respondent’s request for review of the
underlying representation case was pending with the

13 The root of the problem is that under the Board’s Rules, a certifica-
tion of representative may issue before the Board has ruled on a pending
request for review. Chairman Ring and Member Emanuel are willing to
Board,13 nor did he acknowledge that after the Board de-
nied the Respondent’s request for review, the Respondent
immediately reached out to the Union to schedule bargain-
ing and has been willing to bargain with the Union at all
times since then, even after the Union cancelled the March
1 bargaining session and failed to respond to the Respond-
ent’s repeated attempts to reschedule it. Further, the judge
incorrectly found that the Respondent engaged in “dila-
tory tactics” in presenting its counterproposals for wages
and benefits. As set forth above, less than a month after
the Union presented its first complete contract proposal
and prior to the parties’ next bargaining session, the Re-
spondent presented its first complete contract counterpro-
posal, which included wage and benefits provisions. Ad-
ditionally, throughout the rest of bargaining, the Respond-
ent timely responded with counterproposals after receiv-
ing new proposals from the Union. The Respondent did
not make any concessions regarding wages or benefits, but
Section 8(d) of the Act states that parties are not required
to make concessions. Thus, we find that the Respondent
did not engage in any dilatory bargaining tactics.
We also reject the judge’s finding, and our dissenting
colleague’s contention, that the Respondent’s wage and
benefits proposals themselves are evidence of bad faith.
The Respondent proposed essentially the status quo for
wages and benefits, and it maintained that position
throughout bargaining. However, the Respondent never
suggested that it would not consider any other proposals
for wages and benefits or that its initial proposals for
wages and benefits were “take it or leave it.” Instead, the
Respondent indicated throughout bargaining that it was
unwilling to accept the Union’s proposals for very sub-
stantial wage increases because it believed that those pro-
posals were contrary to its Seattle-area business model.
That the Respondent did not modify its wage proposal in
response to the Union reducing its proposal by $2 per hour
does not evidence bad faith. The Union was still propos-
ing an increase in unit employees’ current wage rates by
64 to 106 percent, and the Respondent believed that this
proposal showed that the Union was continuing to refuse
to recognize the difference between the Respondent’s
business model in Seattle and its use of referrals from un-
ion hiring halls on a sporadic, as-needed basis to supple-
ment its work force on specific billable events in other ju-
risdictions. The Respondent held firm to its initial wage
proposal throughout bargaining, and the Union continued
to insist on substantial wage increases even after adjusting
its wage proposal. Thus, both parties engaged in hard bar-
gaining over wages, and neither party was required to give
reconsider the appropriateness of permitting regional directors to issue a
certification of representative prior to the Board’s final determination on
a request for review.
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 7
up its position or make concessions. See Commercial
Candy Vending Division, 294 NLRB 908, 909 (1989)
(finding no evidence of bad faith where “the [u]nion re-
mained as firm in its basic position regarding wages as did
the [employer]”).14
The judge found that the Respondent’s proposals re-
garding certain noneconomic subjects of bargaining also
evidence bad faith. Again, we disagree. First, the judge
incorrectly found that the Respondent’s proposed disci-
pline provision would have maintained the status quo.
The Respondent did not propose maintaining the status
quo of “at-will” employment; instead, it proposed that it
must have a “reasonable belief” that an employee commit-
ted an infraction to discipline that employee. Cf. ibid.
(finding evidence of bad faith where the employer’s “final
contract proposal provided for ‘at will’ employment, with
no limits on the [employer’s] right to discharge unit em-
ployees (other than those limits imposed by law)”).15
Next, the judge found that the Respondent’s proposed
grievance and arbitration provision is evidence of bad
faith, in part because it did not incorporate the Union’s
proposal for “final and binding” arbitration. However, the
Respondent’s proposal allows a party to seek enforcement
of an arbitrator’s decision against a defaulting party in

14 Contrary to our dissenting colleague, the Respondent did not insist
“on reserving to itself unbridled discretion to unilaterally determine
wage rates for new hires and set any wage increases.” It proposed that it
would set wage rates for all new hires within defined wage ranges for
each job classification; thus, its discretion to set wage rates for new hires
would have been limited under its proposal. Further, we note that the
Union’s initial proposal did not provide for wage increases during the
term of the contract, and that its subsequent proposals did not address
wage increases during the term of the contract. Therefore, the Respond-
ent simply made an opening offer to retain discretion over wage increases
during the term of the contract, and the Union never countered it. We
also note that the Respondent did not propose to reserve the right to de-
crease the employees’ wage rates below their current levels. Cf. Kitsap,
supra, slip op. at 9 (finding evidence of bad faith where the employer
sought to reserve the right to reduce employees’ wage rates during the
term of the contract).
Although you would not suspect it from our dissenting colleague’s
opinion, we have acknowledged, and we again acknowledge here, that
the Respondent’s unlawful failure to provide the Union with the infor-
mation in bullet points 2–4 of the September 2 information request may
have contributed to the essential stalemate in bargaining over wages.
However, the Union based its entire September 2 request, including bul-
let points 2–4, on the Respondent’s inability-to-pay claim, stating that
the Respondent had “connected the company’s inability to pay the wages
requested both with the commissions that it pays back to its hotel prop-
erty clients and the rates it charges for its services to event clients.” The
Respondent noted as much, stating in its September 6 response that “[t]he
balance of your request (hotel contracts, commission rates and rates
charged to end clients) is premised off of your inability to pay claim . . .
.” The Respondent retracted its inability-to-pay claim, and the Union did
not thereafter attempt to clarify the basis of its request for bullet points
2–4 (Union Business Representative Treneer testified that he never dis-
cussed the September 6 response with the Respondent). On these facts,
we find that the Respondent’s refusal to provide the information
court, and it does not suggest that the defaulting party
would be able to relitigate the merits of the grievance in
court.16 Finally, the judge found that the Respondent’s
proposed management-rights clause is evidence of bad
faith because it would allow the Respondent to retain “sole
discretion” over important terms and conditions of em-
ployment like discipline and subcontracting. However, a
proposal for a broad management-rights clause is not nec-
essarily unlawful or evidence of bad faith. See St. George
Warehouse, Inc., 341 NLRB 904, 907 (2004), enfd. 420
F.3d 294 (3d Cir. 2005); Coastal Electric Cooperative,
311 NLRB 1126, 1127 (1993). In any event, the judge
failed to acknowledge that the proposed management-
rights clause granted the Respondent “sole discretion” ex-
cept as restricted by other provisions in its proposed con-
tract. See Coastal Electric, supra at 1127 (finding that the
employer’s proposal for a broad management-rights
clause was not evidence of bad faith, particularly in light
of language stating that its “authority was limited by what-
ever the parties agreed to elsewhere in their contract”). As
discussed above, the Respondent proposed a “reasonable
belief” restriction on its discretion over discipline. Addi-
tionally, the Respondent displayed willingness to bargain
over its discretion to subcontract, as, prior to the Union
requested in bullet points 2–4 was not an intentional ploy to disrupt the
parties’ negotiations or to thwart the possibility of reaching agreement
on wages. Indeed, the Respondent may have believed, mistakenly but in
good faith, that having retracted its inability-to-pay claim, it had no duty
to furnish any of the requested information. Moreover, as noted above,
the Union based its wage proposals in part on wage rates the Respondent
pays in other locales to employees hired sporadically to perform billable
work, and none of the information requested in bullet points 2–4 was
necessary for the Union to grasp the fundamental difference between
those employees and the employees at issue here, who are paid a regular
hourly wage whether they are performing billable work or not. In sum,
under the circumstances presented here, we find that the Respondent’s
unlawful failure to furnish certain requested information does not war-
rant a finding of bad-faith bargaining.
15 Our dissenting colleague minimizes the “reasonable belief” pro-
posal “given that ‘reasonable belief’ is not defined and no evidentiary
standard is imposed.” However, union representative Treneer admitted
that the Union never asked the Respondent what it meant by “reasonable
belief.” Thus, the Union never asked the Respondent to define “reason-
able belief,” and the Respondent never expressed unwillingness to do so.
Moreover, we simply disagree with our dissenting colleague’s conten-
tion that the “plain meaning” of the Respondent’s “reasonable belief”
proposal is “that the Respondent would retain effectively unreviewable
discretion to impose discipline whenever it believed there were grounds
for doing so.” As discussed above, the Respondent did not propose “at-
will” employment, which is universally understood to place no limits on
an employer’s right to discipline or discharge its employees, except those
limits imposed by law. Thus, by proposing to move from “at-will” em-
ployment prior to the Union’s certification to the “reasonable belief”
standard, the Respondent plainly indicated that it was willing to limit its
discretion over discipline and discharge.
16 Treneer testified that he never asked the Respondent for clarifica-
tion on the meaning and application of this language because it was a
“low priority” for the Union.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
filing its bad-faith bargaining charge, the Respondent
twice proposed language that narrowed its discretion over
subcontracting.17
In addition to the reasons discussed above, we find that
the Union did not sufficiently test the Respondent’s will-
ingness to bargain prior to filing its bad-faith bargaining
charge. Over the course of approximately 8 months of
bargaining, the parties had only five bargaining sessions,
the first of which was primarily devoted to establishing
ground rules. Nevertheless, they still reached tentative
agreements on a number of contract provisions.18 Addi-
tionally, the parties agreed in principle on the inclusion of
a union-security and dues-checkoff provision, although
they had not agreed on that provision’s specific language
by the time the Union walked away from bargaining. The
Respondent also made concessions regarding meals and
breaks. While the Respondent held firm to its initial pro-
posals for wages, benefits, discipline, and grievance and
arbitration, it did not display a general unwillingness to
bargain over those subjects, and it did not suggest that its
initial proposals for those subjects were “take it or leave
it.”
Moreover, the parties did not hold any bargaining ses-
sions from September 19, 2016 to January 26, 2017. Nei-
ther party was solely at fault for this 4-month hiatus in bar-
gaining, as the Respondent cancelled the bargaining ses-
sion scheduled for November 15, while the Union can-
celled the bargaining session scheduled for December
12.19 Prior to the parties resuming bargaining on January
26, 2017, the Union emailed a new partial contract pro-
posal to the Respondent on January 24, 2017, and stated,
“We look forward to the parties’ return to the table and
hope that the time away brings a renewed sense of purpose

17 Our dissenting colleague argues that the Respondent’s proposals
“would have given it unfettered discretion and control” over wages, ben-
efits, and discipline. Although we acknowledge that the Respondent’s
benefits proposal would have provided it with complete control over ben-
efits, we find, for the reasons discussed above, that the Respondent’s
wage and discipline proposals would not have provided it with “unfet-
tered discretion and control.” Further, unlike the employers in the cases
on which our dissenting colleague primarily relies, the Respondent did
not seek to retain such expansive and unfettered control that it would
have required the Union “to cede substantially all of its representational
function,” Kitsap, supra, slip op. at 9 (internal quotations omitted). See
ibid. (finding bad faith where the employer sought to retain unfettered
control over wages, benefits, and discipline and to exclude from the
grievance procedure “the nearly exhaustive list of rights reserved to the
[employer] under the management-rights clause”); Public Service Co.,
supra, 334 NLRB at 489 (finding bad faith where “[the employer] sought
discretion over hours, a major component of wage rates, and benefits, . .
. as well as discharge, discipline, layoffs, subcontracting, assignment of
unit work to supervisors, work and safety rules, transfers, demotions,
employee qualifications, and elimination of unit work”); A-1 King Size
Sandwiches, Inc., 265 NLRB 850, 858–859 (1982) (finding bad faith
where the employer sought to retain “total control over virtually every
significant aspect of the employment relationship,” including wages,
to the parties’ talks and an eye toward real progress.” But
those optimistic words proved deceptive: the Union filed
its bad-faith bargaining charge only 1 day after the Janu-
ary 26 bargaining session; it subsequently cancelled the
parties’ next bargaining session, which was scheduled for
March 1, 2017; and it failed to respond to the Respond-
ent’s repeated attempts to reschedule that session. The
record does not suggest that the Respondent engaged in
any conduct or made any statements at the January 26 ses-
sion that indicated further bargaining would be futile. To
the contrary, during that session the parties discussed the
Union’s new proposal and tentatively agreed on provi-
sions concerning a probationary period and scheduling.
Further, the Respondent did not have an opportunity to re-
spond to the Union’s final contract proposal with a coun-
terproposal before the Union filed its bad-faith bargaining
charge.20 Overall, we simply cannot find on these facts
that the Union had sufficiently tested the Respondent’s
willingness to bargain at the time that it filed its bad-faith
bargaining charge and ended bargaining.
The judge also relied on certain conduct by the Re-
spondent away from the bargaining table to support his
finding of bad-faith bargaining. The Board is “reluctant
to find bad-faith bargaining exclusively on the basis of a
party's misconduct away from the bargaining table.” Lit-
ton Systems, 300 NLRB 324, 330 (1990), enfd. 949 F.2d
249 (8th Cir. 1991), cert. denied 503 U.S. 985 (1992).
Moreover, the limited extent to which the Respondent
may have engaged in misconduct away from the bargain-
ing table was not nearly significant enough to support a
finding of bad faith, particularly where, as discussed
above, the Union failed to test the Respondent’s willing-
ness to reach an agreement at the bargaining table.
discipline/discharge, layoff/recall, work/safety rules and regulations,
subcontracting, and the transfer of unit work).
18 Specifically, the parties reached tentative agreements on provisions
concerning shop stewards, safety, the workweek, discrimination, the Re-
spondent’s duty to supply power tools, implementation of work rules, a
labor-management committee, excused absences, direct deposit, sched-
uling, and a probationary period.
19 In cancelling the November 15 bargaining session, the Respondent
still emailed a new complete contract counterproposal to the Union,
asked the Union to share any new proposals of its own, and offered to
exchange questions and clarifications by email until the parties could re-
schedule the cancelled session.
20 In fact, when the Respondent did subsequently present a complete
contract counterproposal to the Union on February 22, 2017, the Re-
spondent, as discussed in more detail above, made significant conces-
sions regarding discipline, grievance and arbitration, and subcontracting.
We cannot know for certain whether the Respondent would have made
those same concessions in the absence of the Union’s bad-faith bargain-
ing charge, but that uncertainty does not change the fact that by filing its
charge only 3 days after presenting its most recent contract proposal, the
Union did not give the Respondent a realistic opportunity to consider the
Union’s new proposal and develop a counterproposal.
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 9
In assessing the Respondent’s conduct away from the
table, the judge first found that the Respondent’s October
13 letter evidences bad faith. Normally, such a letter
would be a privileged communication under Section 8(c)
of the Act. “The Board has long held that ‘an employer
has a fundamental right, protected by [Section] 8(c) of the
Act, to communicate with its employees concerning its
position in collective-bargaining negotiations and the
course of those negotiations.’” Mesker Door, Inc., 357
NLRB 591, 595 (2011) (quoting United Technologies
Corp., 274 NLRB 1069, 1074 (1985), enfd. sub nom.
NLRB v. Pratt & Whitney Aircraft Division, 789 F.2d 121
(2d Cir. 1986)). However, the Board has found that an
employer may not explain its proposals directly to its em-
ployees when it “has denied the [u]nion the very infor-
mation it needed to evaluate those same proposals during
negotiations,” Globe Business Furniture, 290 NLRB 841,
841 fn. 2 (1988), enfd. mem. 889 F.2d 1087 (6th Cir.
1989), and the Respondent was unlawfully refusing to
provide the Union with the information requested in bullet
points 2–4 of the September 2 information request when it
sent the October 13 letter, which extensively discussed
wages. Nevertheless, even assuming that the October 13
letter was not privileged under Section 8(c), we find it
weakly probative of bad faith at best. As discussed above,
the Union based the entirety of its September 2 infor-
mation request on the Respondent’s claim of inability to
pay, which the Respondent retracted, and therefore the Re-
spondent may have believed—mistakenly, but in good
faith—that it did not have to provide any of the requested
information, including bullet points 2–4. Thus, the Re-
spondent did not intentionally seek to undermine or cir-
cumvent the Union with an unprivileged communication.
The judge also relied on statements by the Respondent’s
CEO Mike McIlwain at a preelection mandatory meeting
for technicians in the Philadelphia, Pennsylvania area.21
McIlwain stated that negotiations in Seattle (the

21 While the Respondent and the Union were engaged in bargaining in
January of 2017, another union, IATSE Local 8, was engaged in an or-
ganizing campaign for a unit of the Respondent’s technicians in the Phil-
adelphia area.
22 Our dissenting colleague relies significantly on McIlwain’s state-
ments in finding bad faith and claims that they “indicate[] that [the Re-
spondent] was determined not to reach agreement with any union at any
location, including Seattle.” We disagree. For starters, McIlwain did not
indicate that the Respondent sought to drag out bargaining. He noted
that the Seattle negotiations were “dragging out,” and the dissent fails to
acknowledge the Union’s share of responsibility for the slow pace of
those negotiations. The dissent also fails to give any weight to the fact
that at the time McIlwain made those statements, the parties had experi-
enced a 4-month hiatus in bargaining that was not solely attributable to
either party. In fact, as discussed above, when the Respondent was
forced to cancel a bargaining session, it tried to reduce the negative im-
pact on bargaining by presenting a new counterproposal by email and
offering to continue negotiating by email until the parties could
negotiations at issue in this case) were at a stalemate, that
things “could very well go the same way in Philadelphia,
as far as dragging out and nothing happening,” and that
the Respondent would have to bargain in good faith but
would not have to agree to any specific terms. Contrary
to the judge, we do not find that McIlwain’s statements
evidence bad faith. McIlwain accurately stated the Re-
spondent’s duty to bargain under the Act, and he did not
mischaracterize the status of negotiations in Seattle at that
time, as the parties had gone nearly 4 months without a
bargaining session.22
After considering the totality of the Respondent’s con-
duct, both at and away from the bargaining table, we find
that the General Counsel did not establish that the Re-
spondent failed to bargain in good faith in violation of
Section 8(a)(5) and (1).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 4 of the
judge’s Conclusions of Law.
“4. By failing and refusing to furnish the Union with
the information that it requested in bullet points 2–4 of its
September 2, 2016 information request, the Respondent
violated Section 8(a)(5) and (1) of the Act.”
2. Delete paragraph 5 and renumber the subsequent par-
agraphs of the judge’s Conclusions of Law accordingly.
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having found that
the Respondent violated Section 8(a)(5) and (1) by failing
and refusing to provide the Union with the information
that it requested in bullet points 2–4 of its September 2,
2016 information request, we shall order the Respondent
to provide that information to the Union.23
reschedule the cancelled session. These are not the acts of a party that
“was determined not to reach agreement.” Thus, we will not ascribe a
sinister motive to the Respondent based on McIlwain’s statements,
which accurately described the status of the parties’ negotiations at the
time.
Further, McIlwain’s statements were not remotely comparable to the
statements made by the employer in Overnite Transportation Co., 296
NLRB 669 (1989), cited by the dissent, which the Board found “reflected
an attitude contrary to good-faith bargaining.” See id. at 671 (“[The em-
ployer’s vice president] threatened the employees with plant closure and
loss of jobs if they selected the [u]nion, equated unionization with dire
consequences, stated that the [employer] would not sign a contract, and
threatened to bargain in bad faith to force a strike.”).
23 Because we find that the Respondent only violated the Act by fail-
ing to provide relevant requested information to the Union, the violations
clearly are not numerous or egregious enough to justify the notice-read-
ing remedy recommended by the judge.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that the Re-
spondent, Audio Visual Services Group, Inc. d/b/a PSAV
Presentation Services, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with International
Alliance of Theatrical Stage Employees, Local 15 (the Un-
ion) by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the 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) Furnish to the Union in a timely manner the infor-
mation requested by the Union in bullet points 2–4 of its
September 2, 2016 information request.
(b) Within 14 days after service by the Region, post at
its Seattle, Sea-Tac, Bellevue, Tukwila, and Tacoma,
Washington facilities copies of the attached notice marked
“Appendix.”24 Copies of the notice, on forms provided by
the Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous places, including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an in-
tranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall dupli-
cate 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 September 2, 2016.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 19 a sworn certification

Further, we shall not order the Respondent to post notices at its Phil-
adelphia, Pennsylvania facilities because the General Counsel did not al-
lege, and we do not find, that the Respondent committed unfair labor
practices against any employees outside of the Seattle, Washington area.
24 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.”
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. March 12, 2019
______________________________________
John F. Ring, Chairman
______________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting in part.
Contrary to the majority, the record demonstrates (as the
judge found) that the Respondent engaged in bad-faith
bargaining.1 The Respondent’s conduct, both at and away
from the bargaining table, reveals its desire to avoid reach-
ing a collective-bargaining agreement in Seattle (the set-
ting here), a tactic that also served its goal of avoiding un-
ionization at its facilities in Philadelphia, where the Re-
spondent’s top executive invoked the difficult Seattle ne-
gotiations, and made telling statements regarding the Re-
spondent’s bargaining intentions, to dissuade the Philadel-
phia employees from supporting a union during an organ-
izing campaign there. The Respondent’s key bargaining
proposals—reserving authority for itself on wages, on
benefits, and on discipline—would have left employees
with less protection against unilateral employer action
than having no collective-bargaining agreement at all (the
opposite of what the National Labor Relations Act envi-
sions). Finally, as we all agree, the Respondent unlaw-
fully failed to provide the Union with information it
needed for meaningful bargaining. Not all of the admin-
istrative law judge’s cited evidence supported his finding
of bad-faith bargaining,2 but there was more than enough
here to find a violation of the Act.
1 I join the majority in concluding that while the Respondent was not
required to open its financial books to the Union (it retracted its claim of
any inability to pay the Union’s bargaining demands), the Respondent
did violate Sec. 8(a)(5) of the Act by refusing to provide the Union with
other relevant information.
2 I do not rely on what the judge called the Respondent’s “dilatory
tactics” in presenting its counterproposals or the initial delay in bargain-
ing while the Respondent’s request for review of the underlying repre-
sentation case was pending before the Board; the Respondent’s griev-
ance/arbitration proposals; the claim that the Union miscalculated the
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 11
I.
A brief review of the facts is helpful here, focusing on
the Respondent’s bargaining proposals, its Philadelphia
statements, and its unlawful refusal to provide the Union
with requested information.
The Union was certified as the exclusive bargaining
representative of the Respondent’s Seattle, Washington
technicians on December 18, 2015. However, the Re-
spondent refused to bargain until May 23, 2016, after the
Board denied its request for review of the certification.
The parties began to bargain in late June, and the Union
sent its first full contract proposal to the Respondent on
July 19. On August 11, the Respondent responded with
its first counterproposal. Critically, the Respondent pro-
posed to maintain the existing wage rates for current em-
ployees, have the sole discretion to set wage rates for fu-
ture hires within specified ranges for each job classifica-
tion, determine future wage increases during the life of the
contract, pay overtime as required by Federal and State
law, and provide unit employees with the same benefits as
it, at its sole discretion, chose to give to unrepresented em-
ployees. The Respondent also proposed a discipline pro-
vision that required a “reasonable belief” before discipline
was imposed, but did not require it to use progressive dis-
cipline in any given case. The Respondent did not offer
any definition of what would constitute a “reasonable be-
lief” or provide for a method of investigating alleged
wrongdoing, leaving disciplinary matters effectively to its
own discretion.
Even though the Respondent refused to alter its wage,
discipline, and benefits positions, the Union modified its
own discipline provision during the August 18 session to
include a list of infractions that would constitute automatic
just cause for termination and decreased its wage proposal
by $2 across the board. Tellingly, when the Respondent
emailed its second set of complete proposals to the Union
on September 12, it still made no modifications to its ini-
tial proposals concerning wages, benefits, and discipline.3
Nor did it modify these proposals when it sent another
contract proposal to the Union on November 5. Instead,
despite movement on other provisions, it continued to in-
sist on virtually exclusive control over those terms and
conditions of employment into the parties’ exchange of
proposals during January 2017.

basis for its wage proposals; the Respondent’s proposed broad manage-
ment-rights clause; or the Respondent’s other noneconomic proposals.
Nor do I rely on the Respondent’s October 13 letter to the bargaining
unit.
With respect to the delay in bargaining while the request for review
was pending, however, I reject my colleagues’ assertion that the “root of
the problem is that under the Board’s Rules, a certification of
The Respondent also denied the Union access to infor-
mation that would help it fully analyze and respond to the
Respondent’s unchanging wage proposal. During the par-
ties’ negotiating sessions on August 17 and 18, the Union
expressed disappointment with the Respondent’s initial
proposals. In response, the Respondent’s attorney (David
Shankman) claimed the Union’s business representative
was delusional. Shankman also claimed that the Respond-
ent paid 50 percent commissions to Seattle hotels and con-
vention centers under precarious contracts, and that the
market would not support the Union’s wage proposal. The
Respondent indicated that the Union’s use of contractual
wage rates in the Respondent’s contracts with local unions
in San Diego and San Francisco were inapplicable as they
only covered as-needed labor, not in-house technicians
such as the Seattle unit employees. The Union made an
information request on September 2, based on Shank-
man’s comments regarding the Respondent’s reasons for
its wage proposal. These included requests concerning the
Respondent’s current hotel contracts in the Seattle and
surrounding area; commission rates and sums that the Re-
spondent paid to those property owners from 2015 to the
present; and documents to show the rates charged to all
event clients. In its reply email of September 6, the Re-
spondent refused to provide the requested information.
The events described above did not take place in a vac-
uum. While the Union in Seattle was attempting to nego-
tiate a contract for area technicians in the face of the Re-
spondent’s unchanging proposals and refusals to provide
information, the Respondent faced another organizing
campaign concerning the technicians at its Philadelphia
facility. As both the Seattle negotiations and the Philadel-
phia campaign continued, the Respondent held a manda-
tory meeting for Philadelphia technicians on January 26,
2017. During that meeting, Mike McIlwain, the Respond-
ent’s CEO, described the negotiations with the Union in
Seattle, indicating the parties were at a stalemate and not
making progress. CEO McIlwain also told the Philadel-
phia technicians that negotiations “could very well go the
same way in Philadelphia, as far as dragging out and noth-
ing happening,” and that the Respondent would have to
bargain in good faith but would not have to agree to any
specific terms. The Seattle negotiations therefore became
leverage in Philadelphia, revealing the Respondent’s view
representative may issue before the Board has ruled on a pending request
for review.”
3 The Respondent did modify part of its subcontracting provision,
and, in subsequent bargaining on September 19, the parties reached
agreement on certain noneconomic provisions such as scheduling, direct
deposit, and a labor-management committee.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of bargaining and simultaneously attempting to deter the
Philadelphia employees from choosing a union.
The Union filed a charge alleging the Respondent was
bargaining in bad faith on January 27. For the reasons set
forth below, I would find that the Respondent violated the
Act as alleged.
II.
Section 8(d) of the Act defines the duty to bargain col-
lectively as “the performance of the mutual obligation of
the employer and the representative of the employees to
meet at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions of
employment . . . but such obligation does not compel ei-
ther party to agree to a proposal or require the making of
a concession.” While neither the Board nor the courts may
compel concessions, “[e]nforcement of the obligation to
bargain collectively is crucial to the statutory scheme.”
NLRB v. American National Insurance Co., 343 U.S. 395,
402, 403–404 (1952).
Good-faith bargaining under the Act “presupposes a de-
sire to reach ultimate agreement, to enter into a collective
bargaining contract.” NLRB v. Insurance Agents’ Union,
361 U.S. 477, 485 (1960). In determining whether a party
has violated its statutory duty to bargain in good faith, the
Board examines the totality of the party’s conduct, both at
and away from the bargaining table. See, e.g., Public Ser-
vice Co. of Oklahoma (PSO), 334 NLRB 487, 487 (2001),
enfd. 318 F.3d 1173 (10th Cir. 2003); Overnite Transpor-
tation Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d 815
(7th Cir. 1991). The Board does not evaluate whether par-
ticular proposals are acceptable or unacceptable, but the
Board will examine proposals to assess whether, on the
basis of objective factors, they evidence bad faith. Reich-
hold Chemicals, 288 NLRB 69 (1988), affd. in relevant
part 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S.
1053 (1991).
An inference of bad-faith bargaining is appropriate
when the employer’s proposals, taken as a whole, would
leave the union, and the employees it represents, with sub-
stantially less protection than provided by statute without
a contract. In such circumstances, the union is effectively
stripped of any meaningful opportunity to represent its
members. See A-1 King Size Sandwiches, Inc., 265 NLRB
850, 859 (1982). Examples of this problem are especially
evident when the employer’s proposals allow it to retain
virtually “unfettered discretion” over key terms and con-
ditions of employment, such as wages, benefits, and disci-
pline. Kitsap Tenant Support Services, 366 NLRB No. 98,
slip op. at 9 (2018).
Bad faith is also evidenced by an employer’s failures to
provide a union with relevant information, as the Board
noted when considering an employer’s “unreasonabl[e]
delay” in providing information “critical to the Union’s
ability to formulate proposals and engage in meaningful
bargaining,” including wage-related information. Id., slip
op. at 8 (citing Regency Service Carts, 345 NLRB 671,
672–673 (2005)).
As I will explain, looking at all the circumstances of the
present case in light of the Board’s case law, I am per-
suaded that the Respondent engaged in bad-faith bargain-
ing.
III.
The Respondent’s bad faith is reflected in three clear
forms. First, the conduct and statements by its CEO away
from the bargaining table indicate that the Respondent
sought to exploit the difficult negotiations in Seattle to its
benefit in order to avoid unionization at its other facilities
rather than working towards an agreement. Second, the
Respondent’s bargaining proposals regarding wages, ben-
efits, and discipline would have given it virtually unfet-
tered control over those key terms and conditions of em-
ployment, undermining the Union’s ability to represent its
unit members. Third, the Respondent’s failure to provide
the Union with information that it needed to meaningfully
bargain regarding wages underscored its unwillingness to
negotiate toward agreement on this key contractual com-
ponent. My colleagues in the majority err by not giving
proper weight to this evidence.
A.
Consider first the Respondent’s use of the stalled Seattle
negotiations at issue here to avoid unionization at its other
facilities. On January 26, 2017, in the midst of the nego-
tiations at the Seattle facility, the Respondent’s CEO Mike
McIlwain held a mandatory meeting at its Philadelphia,
Pennsylvania facility, where another union was engaged
in an organizing campaign for a unit of the Respondent’s
technicians. During the meeting, McIlwain described the
difficult negotiations in Seattle and stated that the parties
were not making progress, adding that things “could very
well go the same way in Philadelphia, as far as dragging
out and nothing happening.” Although he acknowledged
that the Respondent would have to bargain in good faith,
McIlwain made clear that it would not have to agree to any
specific terms.
These facts echo those in Overnite Transportation Co.,
supra, 296 NLRB at 670–671, in which the Board empha-
sized that it “looks not only at the parties’ behavior at the
bargaining table, but also to their conduct away from the
table as bearing on a party’s good faith while engaged in
bargaining.” Id. at 671. In that case, the Board found bad
faith when the employer not only informed the union that
it did not plan to depart from existing company policies
but also made a series of pre-election speeches telling
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 13
employees that the union could not force the company to
do anything it did not consider reasonable or practical, and
that the employees would not have a better job or wages
with the union because the company would never be un-
ionized and it would resist any union pressure. Id. at 670.4
These comments by the employer’s vice president “re-
flected an attitude contrary to good-faith bargaining.” Id.
at 671. While making clear that the employer was not re-
quired to offer the union what it wanted or advance any
particular proposal, the Board found that the employer
was “bent on behaving as its managers had earlier threat-
ened” and was not approaching the bargaining process
“with an aim of reaching agreement with the union.” Id.
As in Overnite, the Respondent’s CEO here informed
employees that the company’s negotiations in Seattle were
“dragging out” with “nothing happening” and that the
same might happen at the Philadelphia facility if those em-
ployees chose a union. Implicit in this description of col-
lective bargaining negotiations was the prospect that em-
ployees could not win better terms and conditions at work
through union representation. The fact that the comments
were made at the Philadelphia facility does not change
their implications, for the statements by the CEO still pro-
vide evidence of “an attitude contrary to good-faith bar-
gaining” with a union, in whatever facility. Id. at 671.
The CEO’s express reference to the Seattle facility casts
light on its true intentions in Seattle as part of an overall
union-avoidance and bad-faith bargaining strategy.5 That
the Respondent would use one set of stalled negotiations
as a veiled threat of the same at another facility indicates
that it was determined not to reach agreement with any
union at any location, including Seattle.6
B.
The Respondent’s bad faith is further demonstrated by
its conduct at the bargaining table in Seattle. Although
parties are entitled to lawfully engage in hard bargaining
and cannot be compelled to agree to a proposal or make a
concession, they cannot act so as to “frustrate the

4 In its speeches to employees, the employer also stated that the com-
pany would hire replacements if the union were to call a strike. Id at 670.
The Board found that, in addition to providing evidence of bad faith, the
employer’s comments unlawfully threatened that the employees’ efforts
to organize would be futile. Id. at 671.
5 Certainly, the statements in Overnite constituted an independent un-
lawful threat of futility, and there is no such allegation here. Importantly,
however, the weight of those statements as evidence of bad faith in bar-
gaining in Overnite was not based solely on their status as unlawful
threats. The majority argues that CEO McIlwain’s statements are “not
remotely comparable” to those in Overnite, but they share the same es-
sential feature. As in Overnite, the Respondent’s CEO here led employ-
ees to the clear conclusion that the company would ensure that there
would be significant (albeit unspecified) adverse consequences to union-
ization. Highlighting the example of the stalled Seattle negotiations
possibility of arriving at any agreement.” Kitsap Tenant
Support Services, supra, slip op. at 8 (internal citations
omitted).
Applying these principles in Public Service Co. of Ok-
lahoma, supra, 334 NLRB 487, the Board found that an
employer bargained in bad faith when it denied the union
any role in establishing employee-benefit levels, commit-
ting only to treating unit employees as it treated non-rep-
resented employees, and demanded an expansive defini-
tion of “just cause” that would provide “virtually no limi-
tation on disciplinary action imposed by the Respondent.”
Id. at 488–489. The Board was particularly troubled by
the fact that the employer’s proposals showed an insist-
ence on “unilateral control to change virtually all signifi-
cant terms and conditions of employment of unit employ-
ees during the life of the contract,” including discretion
over wages, benefits, and discipline, “clearly the most
basic terms for bargaining.” Id. at 489. As the Board ex-
plained, the employer’s proposals “would have left the
Union and the employees with substantially fewer rights
and protection than they would have had without any con-
tract at all.” Id. Because the proposals would also have
undermined the Union’s ability to represent its unit em-
ployees, the Board concluded that the employer “could not
seriously have expected meaningful collective bargain-
ing.” Id.7 Similarly, the Board held in Kitsap, supra, that
an employer bargained in bad faith when its proposals re-
garding discipline and discharge reflected a goal of ‘un-
fettered discretion” over those “vitally important areas”
and it attempted to deny the union a role in determining
wages and benefits by reserving the right to reduce rates
and giving the union only notice of the changes. Id., slip
op. at 9.
The Respondent’s key proposals on wages, benefits,
and discipline plainly were designed to strip away the Un-
ion’s ability to effectively represent employees concern-
ing important terms and conditions of employment. Its
wage proposal exemplified the type of proposal that tends
strongly implied that unionization in Philadelphia would ultimately be
futile.
6 My colleagues assert that at the time of McIlwain’s statements, the
4-month hiatus in the Seattle negotiations was attributable to both parties
and that the Respondent attempted to reduce the impact of that hiatus by
emailing proposals. What matters, however, is the foreseeable impact of
his statements on the Philadelphia employees, and the fact that the Re-
spondent sought to leverage the break in negotiations to its own benefit—
evidence of its own view of what was happening in Seattle.
7 The Board also noted the Respondent’s proposal for a broad man-
agement-rights clause, which further emphasized its unilateral control
over key terms and conditions of employment but was not in itself dis-
positive. Id. at 488. See also A-1 King Size Sandwiches, supra, 265
NLRB at 527 (bad faith when the employer sought to retain unbridled
control over discipline and discharge and would not consider wage-rate
modifications; union would be relegated to observer status).
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to frustrate agreement, as squarely illustrated in Public
Service Co. of Oklahoma, supra, and Kitsap, supra. As
discussed above, in both of those cases the employer
sought to retain exclusive or near-exclusive control over
the most critical terms and conditions of employment, en-
gaging in bad-faith bargaining. The same is true here.
Throughout bargaining, the Respondent insisted not only
on maintaining current wage rates, but also on reserving
to itself unbridled discretion to unilaterally determine
wage rates for new hires and set any wage increases.8
Seeking such sweeping discretion over wages, “clearly the
most basic terms for bargaining,” is particularly revealing.
Public Service Co. of Oklahoma, supra, 334 NLRB at 489.
Similarly indicative of bad faith was the Respondent’s
insistence, as the majority concedes, that it be entitled to
align bargaining unit employees’ benefits with whatever
benefits the Respondent—at its discretion—would (or
would not) give to nonunit employees. See id. at 488–489.
The Respondent’s discipline proposals reflected the same
dubious desire for unfettered control as seen in Public Ser-
vice Co. of Oklahoma, giving it complete discretion as to
whether it would use progressive discipline in any given
instance and incorporating only a “reasonable belief” lim-
itation on the imposition of discipline itself. See id. (ex-
pansive just-cause definition that would provide “virtually
no limitation on disciplinary action imposed” was evi-
dence of bad faith). Contrary to the view of my col-
leagues, the “reasonable belief” limitation is effectively
meaningless, given that “reasonable belief” is not defined
and no evidentiary standard is imposed.9
In essence, then, the Respondent insisted on retaining
exclusive control over the important issues of wages, ben-
efits, and discipline, which the Board has found to be

8 My colleagues dismiss the significance of the Respondent’s wage
proposal because the wage rates would fall within specified ranges for
each job classification. But that does not change the fact that the Re-
spondent would retain full control over whether to assign a new hire a
wage rate on the higher or lower side of those ranges, or that the Re-
spondent alone would determine what an appropriate wage would be.
Nor were those ranges negotiated with the Union during the bargaining
sessions at issue; the Respondent’s adherence to its proposal foreclosed
the possibility of that participation.
My colleagues unconvincingly assert that the Respondent’s wage pro-
posals were unproblematic because the Respondent did not reserve the
right to decrease wages below current levels. Even so, by insisting on
maintaining current wage rates, the Respondent foreclosed the possibil-
ity of the Union participating in negotiations for wage increases in sub-
sequent years of the contract. Further, none of this conduct is excused
by the Union’s proposed wage increases, particularly because the Union,
unlike the Respondent, demonstrated its willingness to adjust its proposal
in order to reach an agreement with the Respondent.
9 The majority suggests that the burden was on the Union to ask what
the Respondent meant by “reasonable belief” and that because it did not
expressly do so, the Respondent’s insistence on that amorphous standard
did not adversely affect the parties’ bargaining. To the contrary, the Un-
ion cannot be faulted for assuming that the Respondent intended the
evidence of bad faith. Here, as in Kitsap, supra, “[t]hese
proposals would have required the Union to cede substan-
tially all of its representational function and would have
so damaged the Union’s ability to function as the employ-
ees’ bargaining representative that the Respondent could
not seriously have expected meaningful collective bar-
gaining.” 366 NLRB No. 98, slip op. at 10.10 Absent any
evidence that the Respondent was open to moving away
from its proposed unilateral control over those key issues,
and in light of evidence that the Union did revise its pro-
posals (even if not to the Respondent’s satisfaction), it is
reasonable to conclude that the Respondent did not intend
to meaningfully bargain toward a complete contract, de-
spite its negotiations and tentative agreements in other ar-
eas. That the Respondent might not have made any state-
ments of futility at the bargaining session just before the
Union filed the bad-faith bargaining charge (as the major-
ity observes) is immaterial in context. Although the par-
ties discussed scheduling and a probationary period, the
Respondent’s adamant refusal to change its extreme bar-
gaining positions on the most critical issues of wages, ben-
efits, and discipline speaks for itself.
C.
Last, we all agree that the Respondent unlawfully failed
to provide the Union with requested information—in my
view yet another indicator of bad-faith bargaining. As the
Board held in Kitsap, supra, the employer’s “unreason-
abl[e] delay” in providing information “critical to the Un-
ion’s ability to formulate proposals and engage in mean-
ingful bargaining,” including wage-related information,
further supported the bad faith finding. 366 NLRB No.
phrase “reasonable belief” to have its plain meaning—that the Respond-
ent would retain effectively unreviewable discretion to impose discipline
whenever it believed there were grounds for doing so. The Respondent
itself certainly suggested no limitation on its discretion. The sweeping
nature of this proposal therefore supports the conclusion that, at the time
the Respondent made it, it sought very broad control over disciplinary
matters.
10 See also John Ascuaga’s Nugget, 298 NLRB 524, 525, 527 (1990)
(employer’s proposal of existing wage rates and exclusive control over
wage increases showed bad faith), enfd. sub nom. Sparks Nugget, Inc. v.
NLRB, 968 F.2d 991 (9th Cir. 1992); Regency Service Carts, supra, 345
NLRB at 672–676 (employer bargained in bad faith where it failed to
timely respond to information requests and adhered to a proposed man-
agement-rights clause that left it with “unilateral control [] over virtually
all significant terms and conditions of employment” and insisted on ex-
cluding from arbitral review the employer’s exercise of discretion under
its proposed management-rights clause); A-1 King Size Sandwiches, su-
pra, 265 NLRB at 858–859 (employer bargained in bad faith where it
insisted on the unilateral right to set wage rates and “total control over
virtually every significant aspect of the employment relationship,” in-
cluding discipline and discharge, work rules and regulations, subcon-
tracting, and the transferring of unit work).
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 15
98, slip op. at 8 (citing Regency Service Carts, supra, 345
NLRB at 672–673).
Here, as in Kitsap, the Union’s requests included infor-
mation directly bearing on the Respondent’s claims during
wage-related negotiations, such as the Respondent’s other
contracts with hotel clients in the area, documents demon-
strating the commission rates and sums paid to those own-
ers, and documents showing the rates that event clients
paid over the past year. By refusing to provide this infor-
mation, the Respondent hindered the Union’s ability to
meaningfully bargain over wages and respond to the Re-
spondent’s bargaining positions.11 The Board has viewed
such refusals, particularly with respect to information
bearing on wage negotiations, as evidence of bad-faith
bargaining.12
D.
In sum, the record amply demonstrates not merely that
the Respondent unlawfully failed to provide the Union
with information that it needed during bargaining for a
first contract, but also that the Respondent engaged in bad-
faith bargaining. My colleagues, meanwhile, are mistaken
in asserting that the Union did not sufficiently test the Re-
spondent’s willingness to bargain prior to filing its bad-
faith bargaining charge. The majority recognizes that over
the parties’ bargaining sessions, the Respondent did not
waver from its initial proposals for discipline, wages, and
benefit provisions. As discussed above, those proposals
would have given it unfettered discretion and control over
those terms of employment—and they frustrated further
negotiations. Despite some tentative agreements on non-
economic provisions, the Respondent remained unmoved
on these most basic terms of employment, even if it never
expressly said that it was unwilling to bargain or that the
proposals were (as the majority puts it) “take it or leave
it.” Its actions, rather than its words, demonstrate its in-
tentions.13 Moreover, as the majority concedes, the Re-
spondent only presented revisions to its proposal on disci-
pline and other matters after the Union filed its bad-faith

11 The majority asserts that the Union’s wage proposals were based on
rates that the Respondent paid in other areas for billable work and that
“none of the information requested in bullet points 2–4 was necessary
for the Union to grasp the fundamental difference between those employ-
ees and the employees at issue here, who are paid a regular hourly wage
whether they are performing billable work or not.” But the provision of
the information could have better illuminated for the Union the merits of
the parties’ respective proposals, as the information would have allowed
the Union to understand the Respondent’s business model, develop wage
counterproposals, assess the Respondent’s claim during negotiations that
the Seattle market would not support event rates to cover the Union’s
wage proposal, and evaluate the Respondent’s position that the commis-
sions and contracts it maintained with hotel and convention center prop-
erties were nonexclusive and precarious. The mere fact that the unit em-
ployees were paid differently did not make the requested information any
bargaining charge. Such after-the-fact evidence has no
bearing on the Union’s expectation at the time the charge
was filed. The Board requires only that a union not itself
“remove the possibility of negotiation” such that the em-
ployer’s good faith cannot be tested. Times Publishing
Co., 72 NLRB 676 (1947).
For all of these reasons, the Board should find that the
Respondent bargained in bad faith in violation of Section
8(a)(5) and should order an appropriate remedy.14
Dated, Washington, D.C. March 12, 2019
____________________________________
Lauren McFerran Member
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain collectively with Inter-
national Alliance of Theatrical Stage Employees, Local 15
(the Union) by failing and refusing to furnish it with
less relevant or useful, or diminish the impact of the Respondent’s failure
to provide that information.
12 See Kitsap Tenant Support Services, supra, 366 NLRB No. 98, slip
op. at 8; Landmark Family Foods, 356 NLRB 1357, 1369 (2011).
13 Captain’s Table, 289 NLRB 22 (1988), cited by the majority, is
inapposite. In that case, the employer revised its proposals on wages and
indicated that its first specific proposal was a “starting point for future
negotiations.” In contrast, here the Respondent did not offer indications
that it would negotiate for anything less than broad control over wages,
benefits, and discipline. The Union was not required to wait in the vain
hope of a changed proposal.
14 I would adopt the remedies ordered by the administrative law judge,
including a bargaining order and the extension of the certification year,
as well as ordering notice-reading. I agree with the majority, however,
that the judge erred in ordering the remedial notice to be posted at the
Respondent’s Philadelphia facilities.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
requested information that is relevant and necessary to the
Union’s performance of its functions as the collective-bar-
gaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union in bullet points 2–4 of
its September 2, 2016 information request.
AUDIO VISUAL SERVICES GROUP, INC. D/B/A
PSAV PRESENTATION SERVICES
The Board’s decision can be found at
https://www.nlrb.gov/case/19-CA-186007 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
Ryan Connolly, Esq. & Patrick Berzai, Esq., for the General
Counsel.
David Shankman, Esq. & Michael Willats, Esq. (Shankman Le-
one, P.A.), for the Respondent.
Katelyn M. Sypher, Esq. (Schwerin Campbell Barnard Iglitzin &
Lavitt, LLP), for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. Inter-
national Alliance of Theatrical Stage Employees (IATSE), Local
15 (Charging Party or Union or Local 15), filed the original
charge in this case on October 11, 2016,1 and a second charge

1 All dates are 2016 unless otherwise indicated.
2 The Charging Party also submitted a “corrected” closing brief on
October 16, 2017, which no party has raised any objection to and, there-
fore, I accept as the Charging Party Union’s closing brief.
3 The transcript in this case (Tr.) is mostly accurate, but I correct it as
follows: Tr. 2 and 161; line (l) 7: “Employer Rhino Northwest” should
be “Employer Audio Services Group, Inc.” or “PSAV”; Tr. 90; l 2:
“prentices” should be “proposals”; Tr. 90, l. 7: “call” should be “hall”;
Tr. 172–173: “CVA” should be “CBA.”
4 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for General
was filed on January 27, 2017. The General Counsel issued the
complaint on May 24, 2017 (complaint), and the Respondent Au-
dio Visual Services Group, Inc. doing business as PSAV Presen-
tation Services (Respondent or PSAV) answered the complaint
on June 7, 2017, basically denying the material complaint alle-
gations.
This case involves allegations that Respondent: (1) failed to
provide relevant financial information after expressing an inabil-
ity to pay the Union’s proposed wage increases for a first collec-
tive-bargaining agreement (CBA); and (2) committed other bad
acts that constitute bad faith bargaining in violation of Section
8(a)(5) and (1) of the Act. Respondent denies the essential alle-
gations in the complaint and argues that at all times relevant, Re-
spondent bargained in good faith with the Union.
This case was tried in Seattle, Washington, on August 8 and
9, 2017. Closing briefs were submitted by the General Counsel,
the Charging Party, and the Respondent on October 13, 2017.2
On the entire record,3 including my observation of the demeanor
of the witnesses, and after considering the closing briefs,4 I make
the following
FINDINGS OF FACTS
I. JURISDICTION
The Respondent is a State of Delaware corporation with of-
fices and places of business in Tukwila, Seattle, Sea-Tac, Belle-
vue, and Tacoma, Washington, and Philadelphia, Pennsylvania,
where it is engaged in the business of providing event technology
services at hotels and conference centers. In conducting its oper-
ations during the 12- month period preceding issuance of the
complaint, which period is representative of all material times,
the Respondent received gross revenue in excess of $500,000,
and purchased and received at its facilities located within the
State of Washington goods valued in excess of $50,000 directly
from points outside the State of Washington. I find that the Re-
spondent is an employer engaged in commerce within the mean-
ing 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.
I. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent provides technology nationwide for events,
within hotels and conference centers. The Union represents rig-
gers and technicians employed by PSAV.5 PSAV’s riggers and
technicians are responsible for the set-up and breakdown of au-
dio and visual equipment used for presentations in client hotels
and conference centers—riggers work with scaffolding and
Counsel’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for the General
Counsel’s closing brief, “CP Br. For the Charging Party’s closing brief;
and “R. Br.” for the Respondent’s closing brief. Although I have in-
cluded numerous citations to the record to highlight particular testimony
or exhibits, my findings and conclusions are based not solely on the evi-
dence specifically cited, but rather on my review and consideration of
the entire record.
5 Rigger CBA’s are different than technician CBAs. This case does
not involve rigger employees although the Union and Respondent were
negotiating rigger CBA’s at the same time they were negotiating a first
technician CBA.
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 17
attached devices while technicians work with the operation,
transportation, maintenance, and repair of equipment. (Tr. 76–
77.)
B. Certification
The Union was certified as the exclusive bargaining repre-
sentative on December 18, 20156, as the exclusive collective-
bargaining representative of the employees in the following unit:
All full-time and regular part-time technicians, including entry-
level technicians, senior technicians, lead technicians, driver
technicians, concierges, equipment repair QC specialists, tech-
nical specialists, and warehouse technicians employed by the
Employer at its Seattle, Sea-Tac, Bellevue, Tukwila, and Ta-
coma, Washington facilities, excluding project managers, rig-
gers, union-referred employees subject to the Union’s national
agreement with the Employer, and guards and supervisors as
defined by the Act.
On January 4, 2016, the Respondent filed with the Board in
Washington, D.C., a request for review of both the Decision and
Direction of Election and the Decision on Challenges and Objec-
tion and Certification of Representative. On May 19, 2016, the
Board denied the Respondent’s request for review (the Board’s
May 19 Denial).7
PSAV refused to bargain with the Union from January 4,
2016, until after the Board issued the Board’s May 19 Denial.
Pursuant to a charge filed on January 7, 2016, the General
Counsel issued a complaint and notice of hearing on June 23,
2016, alleging that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to recognize and bargain
with the Union from January 4 to May 23, 2016, following the
Union’s certification in Case 19–RC–161471.8
On May 23, 2016, following the resolution of Case 19–RC–
161471, PSAV purportedly began its efforts to bargain. (See Jt.
Exh. 1.)
The parties met for their first bargaining session on June 24,
2016, at the Edgewater Hotel in Seattle and then for their second
and third sessions on August 17 and 18, 2016. A fourth bargain-
ing session was held on September 19, 2016, and then finally a
fifth one on January 24, 2017.
The bargaining team for the Union was comprised of the un-
ion local business representative Mylor Treneer (Treneer), the
Union’s assistant business representative, Aaron Gorseth
(Gorseth), and Union Attorney Katelyn Sypher (Sypher). The
Respondent was represented at the bargaining sessions by attor-
neys David S. Shankman9 (Shankman) and Michael R. Willats

6 The representation elections were held by mail ballot from Novem-
ber 9, 2015, to November 30, 2015, and the Region 19 Regional Director
issued a Decision on Challenges and Objection and Certification of Rep-
resentative in Case 19–RC–161471.
7 Respondent’s Shankman admits that PSAV did not begin good-faith
bargaining negotiations with the Union until late May 2016 because
PSAV objected to the November 2015 election. Tr. 166–167; Jt. Exh.
“1.”
8 On February 12, 2016, Region 19 General Counsel informed the
bargaining teams for PSAV and the Union that the unfair labor practice
(ULP) Case 19–CA–167454 was “being held in abeyance [by Region 19]
pending the Board’s ruling on the [PSAV’s] request for review in Case
19–RC–167141.” (R. Exh. 7.) Despite the General Counsel’s deferment
(Willats), and at some sessions also by Manager Jason Younce
(Younce), VP John Riggi (Riggi), and Manager Laura Brassing-
ton (Brassington). (Tr. 78, 88.)
C. Structure of Representation and Respondent’s First Unlaw-
ful Failure and Refusal to Bargain with the Union from Janu-
ary 4 to May 23, 2016
The Union’s relationship with the Respondent includes multi-
ple collective-bargaining contracts (CBAs). In Washington,
there is a rigging contract and the parties have been working on
an initial technicians’ contract since the November 2015 elec-
tion. (Tr. 75.) Riggers operate differently than those in other
bargaining units. PSAV employs riggers who have their own
call-list. Treneer was the business agent of Local 15 who was
responsible for both the riggers and technicians’ CBAs. He was
approached by workers who had been gathering cards and he
provided them with assistance in completing the organizing
drive.
As stated above, the Union won representation in late 2015
which was appealed by PSAV, and PSAV decided not to bargain
with the Union during the pendency of the appeal until approxi-
mately May 24, 2016.10 On May 19, 2017, ruling on a motion
for summary judgment in Case 19–CA–167454, the First PSAV
case, the Board found PSAV in violation of Section 8(a)(5) and
(1) of the Act by failing and refusing to recognize and bargain
with the Union from January 4 to May 23, 2016.11
The International Union and the Respondent also have CBAs
with large city technicians who work on an as-needed or on-call
basis in cities such as San Diego (SD) and San Francisco (SF)
where events come about unexpectedly and require the Respond-
ent to staff these pop-up events with these on-call employees.
D. June 24 Session and Events ON JULY 19 AND Afterwards
As far as the June 24 bargaining session is concerned, the par-
ties largely discussed the successor rigger CBA and only ground
rules were set for the technician’s initial CBA negotiations. After
this bargaining session, PSAV provided the Union at its request,
the current wage rates that were being paid by PSAV to the bar-
gaining unit members in Seattle, Sea-Tac, Belleview, Tukwila,
and Tacoma, WA (Respondent’s status quo wages). (Tr. 168–
169; R. Exhs. 1 and 2.)
The Union’s first proposed CBA to PSAV in June was com-
prised of the Union’s typical “scaffold agreement” that the Union
and Treneer used in other CBAs over the years as a guide before
adding the specific wage provisions contained in its next version.
(Tr. 78–79, 83, 170; Jt. Exhs. 3–4.)
of an investigation into the Union’s alleged ULP against the Respondent,
I find that the Respondent made its own separate business decision not
to bargain with the Union from January 4 through May 23, 2016, accept-
ing all associated risks for this conduct.
9 Shankman has been a lawyer representing Respondent PSAV since
2000 and has negotiated CBA’s for PSAV nationwide. Tr. 165. Treneer
has been involved in the live events business since 1978 and has negoti-
ated CBAs since 1980. Tr. 74.
10 See Cases 19–RC–161471 and 19–CA–167454 and Audio Visual
Services Group, Inc., 365 NLRB No. 84 (May 19, 2017) (otherwise re-
ferred to as the First PSAV case).
11 The First PSAV case, slip op. at 3.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Article “H” in the Union’s proposed CBA to PSAV is a draft
provision referring to one-hour increments which is common in
the Union’s CBA’s and basically says that if a worker works 15
minutes into an hour, they get paid for a full hour. (Tr. 79–80; Jt.
Exh. 3.) The next provision in the Union’s proposed CBA refers
to if a technician works a 12-hour shift, they get paid time-and-
a-half after 8 hours and the proposed language prevents PSAV
from bringing in a whole new crew for the last 4 hours to avoid
paying overtime. (Tr. 80; Jt. Exh. 3.) Both of these proposed sec-
tions would have changed the existing status quo wage condi-
tions at PSAV. (Tr. 79–80.)
Article “Q” in the Union’s proposed CBA to PSAV refers to
“dismissal for cause” and the Union was seeking a change to
PSAV’s status quo treatment of its employees to language that
also was common in the Union’s prior CBA’s requiring there to
be “just cause” and a progressive discipline policy once “just
cause” for discipline had been evoked. (Tr. 81; Jt. Exh. 3.)
Article “R” in the Union’s proposed CBA to PSAV involves
“grievance and arbitration” language which was, once again,
standard language in the Union’s prior CBA’s, and describes the
grievance process, the timeline of the process and how step
grievances get resolved up until arbitration. (Tr. 81; (Jt. Exh. 3.)
These provisions were proposed changes to the status quo of
PSAV’s current terms and conditions with its employees. (See
PSAV’s employee handbook; Tr. 84–85; GC Exh. 2.)
The Union also proposed in June that since it already had a
rigger CBA with PSAV, the Union was negotiating the initial
technicians’ CBA, and there was already a CBA between the In-
ternational Union and PSAV for the same region, the Union sug-
gested that all three CBA’s be combined into one so that only
one CBA would need administering in place of 3 separate
CBA’s. (Tr. 82.) PSAV responded that it was not interested in
combining the 3 CBA’s into one CBA. Id.
PSAV submitted no CBA proposals at the June bargaining
session. (Tr. 82–83.) Instead, PSAV spent its time during the
session asking the Union questions about the Union’s proposals
and being disappointed with the Union for not bringing a full
draft contract for PSAV to review. (Tr. 81–83.)
There was a marked uptick in the Union’s demand for wages,
as represented in the Union’s first full CBA proposal sent by the
Union to PSAV on July 19. The Union proposal was to have in-
creased wages ranging from $33 to $45 to for a variety of classi-
fications, for example, a technician, who was currently earning
between $15 to $18.54 an hour, would be increased to a wage of
$33 an hour (the Union’s July 19 increased wage proposal). (Tr.
83–84, 169–170; Jt. Exh. 4; R. Exh. 2.)
The Union’s July 19 increased wage proposal was anywhere
from 73 percent to 120 percent higher than the Respondent’s sta-
tus quo wages and it is distinguished from its earlier June CBA
proposal with red-lined additions. (Tr. 83–86, 170–171; Jt. Exhs
3–4; R. Exh. 8.) The Union’s July 19 increased wage proposal
was created by Treneer, the union bargaining unit contract com-
mittee, and the Local’s president by reviewing a number of fac-
tors such as market rates in the Seattle area and wage rates from
other west coast IATSE Locals’ CBAs, including agreements
with PSAV for its workers in cities like SD and SF. (Tr. 28, 86.)
Respondent’s CBA with SF technicians IATSE Local 16, a 27
page agreement, provides that from July 1, 2016 through June
30, 2017, the Respondent pays SF technicians a wage rate that
ranged from $32.88 to $93.58. (R. Exh. 11 at p. 17.) Respond-
ent’s CBA with SD technicians IATSE Local 122, a 12 page
agreement, provides that on May 15, 2015, the Respondent pays
SD technicians a wage rate that ranged from $26.89 to $39.21.
(R. Exh. 13 at p. 5.)
On August 10, before the next bargaining session, PSAV sent
its first counter-proposal with changes marked over to the Union
with no proposed wage rates. (Tr. 86–87; Jt. Exh. 5.)
On August 11, PSAV sends the Union an updated and more
complete version of the August 10 counterproposal. (Tr. 87; Jt.
Exh. 6.) The Respondent’s revised proposal included a wage
breakdown of its own which did not offer any change to Re-
spondent’s current status quo wages referenced above. (Tr. 172;
Jt. Exh. 6 at 14; R. Exh. 2.)
PSAV also proposed a broad management rights clause, re-
taining “sole discretion” not only over customary management
rights, but also over “discipline and discharge” and “subcon-
tract[ing] work where deemed necessary [by PSAV] for the busi-
ness.” (Jt. Exh. 6 at art. II.)
PSAV also proposed a grievance and arbitration policy that
placed numerous limitations on what could be grieved, exclud-
ing “any complaints related to . . . [a]ny discipline that does not
involve the loss of time or pay; . . . [a]ny employee grievance
where there is no personal relief to the grievant; . . . [a]llegations
of discrimination . . .; . . . [u]nfair labor practice charge[s].” (Jt.
Exh 6. at art. XIX.) PSAV also rejected the Union’s proposal for
a “final and binding” arbitration. Id.
E. August 17 and 18 Sessions
The parties next met on August 17 and 18, with the morning
of the first day again primarily devoted to the successor rigger
unit bargaining. Also present at this meeting for PSAV besides
Shankman were Willats, Younce, Rissi, and Brassington. (Tr.
88.)
In the afternoon of the August 17 session, the parties discussed
various technician proposals, including economic proposals.
Shankman especially did not agree with the Union’s July 19 in-
creased wage proposal and he commented to the Union bargain-
ing team in a condescending and dismissive tone that any Re-
spondent agreement with the Union’s July 19 increased wage
proposal would be financial suicide for the Respondent and drive
it underwater. (Tr. 29–30, 89–90.)
Specifically, on August 17, Treneer attempted to make an
opening statement in order to share feedback that he had received
from bargaining unit members regarding PSAV’s August 11 pro-
posed CBA with status quo wages. (Tr. 89.) Treneer told the
group that union members were “quite disappointed” with
PSAV’s unchanged “business as usual” August 11 CBA pro-
posal because the union members had some expectation, perhaps
from conversations with PSAV management prior to the Novem-
ber 2015 election vote, that PSAV was going to increase em-
ployee wages from the status quo and address some of the union
members’ concerns. Id.
PSAV’s chief negotiator, Shankman, then cut Treneer off and
went into a fairly lengthy harangue or lecture about the Union’s
July 19 increased wage proposal and also about a Facebook post-
ing that had gone up on the Union’s bargaining unit’s Facebook
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 19
page. (Tr. 89.)
Shankman also accused Treneer of being “delusional” and
Shankman alleged that Treneer was fraudulently misleading his
bargaining unit. (Tr. 29–30, 34, 89–90.)
Shankman then made a number of factual assertions in support
of this statements, including that PSAV paid 50 percent commis-
sions to their Seattle hotel and convention center properties on
all their labor and event rentals and that the market in Seattle
could simply not support the wage rates proposed by the Union
in its July 19 increased wage proposal. (Tr. 89–90.)
Shankman continued his vehement and lengthy rebuke to the
union bargaining team on August 17 arguing that Respondent’s
revenue contracts with the Seattle properties were “nonexclu-
sive” and “precarious.” (Tr. 31–32, 34, 90–91, 151, 153.) Shank-
man then argued to Treneer that acceding to the increased wage
rates asked for by the Union “would be suicide” for PSAV and
“would cause them [Respondent] to lose hotel properties.” (Tr.
29, 30–31, 34, 89–91.) Shankman concluded by repeating that
PSAV was not rejecting these proposed union wage rates out of
stubbornness, but if Respondent accepted them, “the company
would be underwater.” Id.
The Union’s response to PSAV’s inability to pay statements
on August 17 was to say that Shankman “can expect a request
for information based on that information that you [Shankman]
provided us [the Union].” (Tr. 35, 89–91.) 12
Treneer opined that Shankman was basically telling him and
the other uUnion representatives that the Union was comparing
apples to oranges and the wage rates in SD and SF were for in-
termittent hiring hall dispatch labor from the relevant IATSE Lo-
cals instead of retaining full-time or part-time employees on
standby as PSAV did in Seattle. (Tr. 31–32, 34, 90–91.) In fact,
Treneer explains that the Union’s proposed increased wage rates;
instead, were “built not only on these [SD and SF] wages but
also wages paid in Seattle locally by PSAV to contractors.” Id.
The Union was further notified during the bargaining session
by Attorney Shankman that PSAV employs a regular work force
within hotels to do both billable and nonbillable work. Gorseth
further opined that he was aware of the distinction between the
two groups because bargaining unit employees can perform both
billable and nonbillable work.
Treneer’s specific response during the August 17 bargaining
session was to let Shankman know that Respondent should ex-
pect a request for financial information related to the Union’s
July 19 increased wage proposal based on Shankman’s response
that: (1) the Union’s proposed wage increases would make Re-
spondent financially bankrupt; (2) Respondent pays 50 percent
commissions to Seattle hotel convention center clients; and (3)
Respondent’s current client contracts are non-exclusive and

12 I reject the findings of the purported Mercer study, R. Exh. 15, be-
cause the study post-dates the initial economic proposal by five months
and I find Treneer’s confident testimony as to what Shankman said on
August 17 confirmed by Gorseth and more believable than Shankman’s
version of what was said at the August 17 bargaining session as Treneer
and Gorseth recalled key conversations at ease at hearing while Shank-
man testified quickly with what appeared to be less reliable scripted tes-
timony. Moreover, despite Willats, Younce, Rissi, and Brassington all
being present at the August 17 and 18 bargaining sessions for PSAV with
Shankman, none of them testified at hearing about what Shankman said
precarious. Treneer also admits that the Union informed the Re-
spondent that Respondent’s wage proposal simply maintains the
status quo with no increases to Respondent’s unit employees’
wages. (Tr. 35, 89–91.)
On the discussion of wages and overtime, PSAV’s August 11
counterproposal deleted most of the language inserted by the Un-
ion, and instead inserted language that indicated that they would
pay rates consistent with the Fair Labor Standards Act (FLSA)
provisions and the overtime laws of the State of Washington.
Minor changes were also proposed by PSAV to the articles con-
cerning discipline, recognition, management rights, grievance
and arbitration, wages and overtime, among others with PSAV
basically maintaining its unchanged status quo language in all
these provisions from earlier proposals.13 (Tr. 91–95; Jt. Exh. 6
vs. Jt. Exhs 7–9.)
At the August 18 bargaining session, a second union counter-
proposal to Respondent’s status quo wages was then made by the
Union. (Tr. 95; Jt. Exh. 9 at art. J.) This second union countepro-
posal, on average, decreased the Union’s July 19 increased wage
rates by $2 an hour across the board. (Tr. 116; Jt. Exh. 9.)
As stated above, the Union’s revised wage rates were, on av-
erage, a $2 decrease in hourly wages across the board from its
initial July 19 proposal through all four tiers and still represented
a range of 64 percent to 106 percent of an increase from the unit
technicians’ then-current hourly wage rates. The Union’s second
counterproposal also withdrew some overtime pay provisions
that were in the Union’s first July 19 increased wage proposal.
(Tr. 95 and 97; Jt. Exh. 9; R. Exh. 14.)
Outside of wages, the parties also discussed other topics dur-
ing this session. (See Jt. Exhs. 7 and 8 for other proposals the
Union made.) The Union also moved toward PSAV’s position
on overtime pay, removing two conditions that would trigger
overtime pay from its proposal. (Jt. Exh. 9 at Art. K.) The Union
further came back from its July 19 proposed CBA and offered
additional changes to the recognition and discipline provisions
signaling a willingness to work with PSAV in order to get an
initial CBA but which PSAV never provided a counteroffer in
response. (Tr. 96–97; Jt. Exh. 7, and Jt. Exh. 8.) Some of the
issues were deferred for a later bargaining session. No counter-
offers from Respondent were made at this point, but an agree-
ment to meet again in September was established.
F. The Union’s September 2 Request for Information to PSAV
Thereafter on September 2, via email from Sypher to Shank-
man, the Union followed up on Treneer’s oral request on August
17 and asked PSAV for financial information about the Respond-
ent, copies of its contracts with various properties in Seattle, and
documents showing the rates they charge to event clients,
or did not say on August 17. In addition, The Union’s version of facts is
more consistent with the rest of the record including the nonmovement
from Respondent’s status quo positions at negotiation sessions and in
general from November 2015 through August 18, 2016, and thereafter.
See Tr. 192–193; Jt. Exhs. 4–11, 13–17.
13 Treneer pointed out overtime paid by PSAV to union employees in
California and Shankman rejected it for the Union in this case not for
financial reasons but, instead, saying that the provision is mandated by
CA state law but not by WA state law. Tr. 93.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
seeking to see if the Respondent could substantiate its claims
about its inability to pay the Union’s proposed increased wages.
(Jt. Exh. 10 at 2.)
The September 2 Union request for information specifically
provides:
Dear David [Shankman]:
We write with respect to your remarks on PSAV’s economic
position at the parties’ most recent bargaining session [on Aug.
17]. To further the parties’ negotiations, Local 15 would like to
better understand PSAV’s financial position.
At the session, you expressed PSAV’s inability to pay the
wages requested by the tech bargaining unit in strong terms,
stating both that Local 15’s wage proposal “would put [PSAV]
underwater” and “would be suicide for [the] company.” You
also connected the company’s inability to pay the wages re-
quested both with the commissions that it pays back to its hotel
property clients and the rates it charges for its services to event
clients, stating that “50% of our revenue, roughly, goes to com-
missions” to the hotel properties and that “the money [needed
pay [siq.] the wages requested] isn’t there based on the market
rates that can be charged” for PSAV’s event services to clients.
Thus, Local 15 makes the following request for information
from PSAV:
 Documents sufficient to substantiate PSAV’s claim
of its inability to pay the requested wages; particu-
larly, we request that the company provide docu-
ments that demonstrate the company’s gross reve-
nues, expenses, and profits for 2015 and 2016 to date
(Bullet Pt. 1);
 PSAV’s current contracts with any and all of its ho-
tel clients in Seattle, Sea-Tac, Bellevue, Tukwila,
and Tacoma (Bullet Pt. 2);
 If the contracts requested above don’t expressly es-
tablish the commission rates and sums PSAV has
paid to such property owners between January 1,
2015 and the present, documents that demonstrate
that information (Bullet Pt. 3); and,
 Documents sufficient to show the rates charged to
all event clients to whom PSAV has provided ser-
vice in the cities listed above within the past year
(September 1, 2015 to present) (Bullet Pt. 4).
(Tr. 98–101; Jt. Exh. 10 at 2.)
The Union requested this specific financial information from
PSAV because of the direct relationship between the assertions
made by Shankman at the bargaining table on August 17 about
PSAV’s financial position, the terms and nature of its contractual
relationship with its clients, and the wage rates that PSAV in Se-
attle could or could not sustain based upon the rates PSAV

14 Treneer convincingly recalled that at no time during Shankman’s
August 17 lecture to the Union’s negotiating team did Shankman ever
say that “no employer” in this business would pay such a wage as pro-
posed by the Union on July 19 because Shankman did not say this and
because Treneer knows there are employers who pay those same wage
rates proposed by the Union. Tr. 101–102. Moreover, Treneer and
Gorseth both had clear recollections at hearing that Shankman did not
charged. (Tr. 35, 99–101.)
The September 2 union request for information concludes
with the Union informing PSAV that it is willing to enter into an
appropriate confidentiality agreement to cover the requested
documents and if the last bullet point “proves unduly cumber-
some,” the Union is willing to negotiate some representative
sample of the requested documents that will meet the Local’s
need. (Jt. Exh. 10 at 2.)
G. PSAV’s September 6 Response to the Union’s September 2
Request and Its Attempt to Retract the August 17 Session Con-
versation
In response on September 6, Attorney Shankman sent an email
to Treneer, Sypher and Respondent’s attorney Willats, in which
Shankman thanks the Union for its September 2 request and adds
the following:
However, it [the September 2 request] grossly misstates the
context in which the statements [from Shankman at the August
17 bargaining session] were made. What I [Shankman] was ex-
plaining during our negotiations is that no employer in this
business would pay such a [n increased] wage [rate] to its
hourly workforce that was so grossly outside of its business
model [and] that if it did so, it would be suicide for the com-
pany. This is not an inability to pay for lack of revenue. It’s a
refusal to pay an hourly rate that would be detrimental to the
business. … [citations omitted.] No such claim of inability to
pay was ever made.14
(Jt. Exh. 10 at 1.)(Emphasis added.)
Shankman’s September 6 email response to the Union’s re-
quest for information also provides:
The balance of your request (hotel contracts, commission rates
and rates charged to end clients) is premised off of your inabil-
ity to pay claim which we clearly did not assert. Indeed, and
keep this in perspective (either for purposes of your request or
the negotiations going forward), we shared with you the issue
of commissions not to explain hardship or inability to pay
wages. Rather, we shared this in the context of explaining why
we can pay higher union-call rates for billable events vs. the
rates being paid to PSAV’s regular hourly employees for many
hours which are not-billable. There was no connection between
these circumstances other than that. Finally, to the extent this
request would be made but not tied to the above-issues, we de-
cline to provide this information as it is proprietary and confi-
dential business information.
(Tr. 97–101; Jt. Exh. 10.) (Emphasis in original.)
At no time prior to the hearing, however, did Shankman or
Respondent provide the Union with the Respondent’s SD or SF
CBAs or supply the Union with the requested wages paid in Se-
attle by PSAV to contractors to explain or clarify to the Union
state that “no employer” in the industry could or would be able to pay
such wages, but instead, that Shankman was asserting that PSAV’s com-
pany, specifically, would be bankrupted and unable to pay the Union’s
wage proposals. Tr. 31, 101–102. As a result, I reject as untrue Shank-
man’s attempt to re-shape his statements from August 17 by adding the
“no employer in this business” language to his September 6 email.
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 21
Shankman’s distinction in wage rates paid by Respondent be-
tween the International Union’s members working on an inter-
mittent hiring hall dispatch labor basis and the unit employees
here who work as billable and nonbillable employees. (See Tr.
29, 31–32, 34, 90–91; R. Exhs. 9–11 and 13.) Once again, Re-
spondent’s CBA with SF technicians IATSE Local 16, a 27 page
agreement, provides that from July 1, 2016 through June 30,
2017, the Respondent pays SF technicians a wage rate that
ranged from $32.88 to $93.58. (R. Exh. 11 at p. 17.) Respond-
ent’s CBA with SD technicians IATSE Local 122, a 12-page
agreement, provides that on May 15, 2015, the Respondent pays
SF technicians a wage rate that ranged from $26.89 to $39.21.
(R. Exh. 13 at p. 5.)
The Union never received any of the requested financial in-
formation from Respondent and the Respondent never proposed
any change to its status quo wages in response to the Union’s
two economic counterproposals on July 19 and August 18.
H. September 19 Session
Both parties drafted proposals and presented them during a
third bargaining session in late September. PSAV’s proposal did
not include any changes to its then-current status quo wage rates
it proposed maintaining nor to the discipline article. (Tr. 103–
105; Jt. Exh. 11, art. 9 and 18.) The Union’s counterproposal did
not include an updated wage provision to its two earlier wage
proposals because they had already made two wage proposals to
Respondent with no counterproposals offered by Respondent
that increased wage rates from the status quo. (Tr. 103–105.)
The Union reasoned that this was because discussions of
wages, including overtime, would be “shut down” at the bargain-
ing session by Shankman under the vague justification that any
changes to employee wages would apparently be contrary to Re-
spondent’s business model. (Tr. 105–106.) When the Union
tried to ask PSAV financial questions that it had put at issue dur-
ing the prior bargaining session related to the rates PSAV
charged for equipment and labor, PSAV continued to refuse to
answer. (Tr. 105–106.)
I. October 13 PSAV Letter to Union Team and All of Its Mem-
bers and Allegations of Direct Dealing
Shankman then sent an October 13 letter to Treneer and the
entire technicians’ bargaining unit, which disputes the basis of
the Union’s wage proposals and explicitly states that PSAV will
not agree to the proposals, whether on wages or scheduling, and
that PSAV is not “required to deviate from the business model
that works throughout the Company.” (Tr. 107; Jt. Exh. 13.)
PSAV sent over another proposed CBA ahead of a suggested
November bargaining session that contained the same status quo
language for job classifications and wages article, discipline, and
grievance and arbitration articles. (Tr. 106–109; Jt. Exh. 14.)
J. January 26 Session and Thereafter
In preparing for the next bargaining session, PSAV sent over
another proposal. (Jt. Exh. 15.) The relevant article provisions in
question once again did not change. Both sides canceled upcom-
ing bargaining sessions in November and December so the next
bargaining session did not take place until January 2017. (Jt.
Exhs. 14–16.)
After some back-and-forth, the parties agreed to meet for
another session of bargaining. The Union forwarded to the Re-
spondent a counterproposal and the PSAV did the same. (Jt.
Exhs. 16 (Union) and 17 (PSAV).) The Union’s proposal did
not include economic proposals for the reason that PSAV did not
include any increased or changed economics in its latest pro-
posal. (Tr. 112–113.) This session was brief, lasting less than 3
hours, and was only attended by Treneer, Sypher and Willats.
(Tr. 109–110, 112.)
Some noneconomic tentative agreements (TA’s) between the
Union and PSAV were agreed to, however. The PSAV proposal
did include some minor changes to the section on discipline. (Jt.
Exh. 17, art. 18.) This proposal also accepted certain non-mate-
rial changes made by the Union to the grievance and arbitration
section. (Tr. 111; Jt. Exh. 17 at 25.)
No further bargaining sessions occurred after the January
2017 session. (Tr. 114.) By this time, the Union had sent to
PSAV two counterproposals, Jt. Exh. 4 and Jt. Exh 9, which con-
tained economic employee wage rate classifications and the un-
answered September 2 request for financial information. After
PSAV refused to provide the information requested since Sep-
tember 2, the Union was unable to formulate economic pro-
posals, a position it communicated to PSAV. (Tr. 151–153; Jt.
Exh. 10 at 3.) PSAV had proposed maintaining the status quo for
all wage classifications for the bargaining unit technician’s em-
ployees from January 2016 through and after the January 2017
bargaining session without any material compromise on wages,
scheduling, discipline, management rights, or arbitration. (Tr.
108; R. Exh. 2, Jt. Exh. 6, Jt. Exh. 11, Jt. Exh. 14, Jt. Exh. 15, Jt.
Exh. 16, and Jt. Exh. 17.)
On January 27, 2017, the Union filed a new unfair labor
charge in Case 19–CA–192068 alleging that Respondent had
failed to bargain in good faith with the Union in violation of Sec-
tion 8(a)(5) and (1) of the Act. (GC Exh. 1(c).)
K. Summary of Negotiations
1. PSAV’s unchanged economic provisions
As part of the Union’s July 19 increased wage proposal, the
Union also sought to change the 8 existing wage classifications
to a four-tier wage structure within the bargaining unit with
wages ranging between $33 and $45 per hour. (Tr. 86; Jt. Exh.
4.) The Union’s July 19 increased wage proposal also included
changes to other economic terms and conditions such as mini-
mum-call pay, shift differential, and overtime. Id. PSAV com-
pletely rejected the Union’s tier-based system and instead pro-
posed simply maintaining an unchanged status quo wage system
with each classification having a specific pay range of several
dollars an hour, the lowest range being $15-$18 an hour and the
highest being $25-$30 an hour. (Tr. 93; Jt. Exh. 6.) PSAV’s un-
changed wage proposal also maintained its “sole and absolute
discretion . . .” to set wage rates within a classification. Id.
When wages were discussed at the August 18 bargaining ses-
sion, the Union proposed a new counteroffer that reduced wage
rates by $2 per hour across the board and removed some of the
proposed overtime pay language. (Jt. Exh. 9.) In response, PSAV
failed to move off their status quo wage proposal and refused to
compromise at all, stating that the Union’s proposal was not con-
sistent with PSAV’s business model. (Tr. 93, 97.) Once again, it
was at these August 17 and 18 sessions that Shankman for PSAV
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made a number of assertions regarding why PSAV was unable
to pay what the Union was putting forth which ultimately led to
the Union’s September 2 information request. (Jt. Exh. 10.)
After already making two unanswered wage counterproposals
and as the Union waited for the requested financial information
from PSAV to gauge the veracity of Shankman’s August 17
statements reduced to the Union’s September 2 information re-
quest, PSAV continued to provide proposals after the August 18
session which made no material movement on economics,
simply maintaining its initial unchanged status quo wage pro-
posal and unilateral discretion within the classification wage
ranges. (Tr. 113; Jt. Exhs. 11, 14, and 17.) In addition, unchanged
throughout, PSAV also proposed retaining the preexisting com-
pany practices which apply to all union and nonunion employees
with respect to benefits. (See, e.g., Jt. Exh. 6 at art. XVII.)
2. PSAV’s unchanged noneconomic provisions
(a.) Discipline and discharge provision
As stated above, the Union’s initial counter-proposal in June
to PSAV included a progressive discipline system and required
that PSAV have “just cause” for discipline and discharge. (Tr.
81; Jt. Exh. 3.) PSAV responded by rejecting any “just cause”
standard and, like all other subjects, simply proposed to maintain
the status quo, rejecting both the progressive discipline system
and “just cause” provision. (Tr. 94; Jt. Exh. 6.) The Union pro-
posed a compromise in August which added a list of misconduct
that would constitute grounds for immediate termination, but
PSAV once again stubbornly maintained its status quo for this
provision both at the August and September sessions. (Tr. 96–
97, 108; Jt. Exh. 8.) Even when PSAV finally made a change to
its disciplinary proposal later in January 2017, it was not a sub-
stantive change as PSAV retained unilateral discretion. (Tr. 113;
Jt. Exh. 17.)
(b) Grievance and arbitration provision
PSAV also proposed a grievance and arbitration policy that
placed numerous limitations on what could be grieved, exclud-
ing “any complaints related to . . . [a]ny discipline that does not
involve the loss of time or pay; …[a]ny employee grievance
where there is no personal relief to the grievant; . . . [a]llegations
of discrimination . . .; . . . [u]nfair labor practice charge[s].” (Jt.
Exh 6. at art. XIX.) PSAV also rejected the Union’s proposal for
a “final and binding” arbitration. Id. While PSAV appeared will-
ing to consider arbitration, it rejected final and binding arbitra-
tion. (Tr. 108; Jt. Exhs. 11, 14, and 17.)
(c) Management-rights provision
PSAV also refused to move from its initial proposal to main-
tain an expansive management-rights clause as part of its initial
proposal to the Union in August. (Tr. 149; Compare Jt. Exhs 5-
6 with Jt. Exh. 11 at art. II, with Jt. Exh. 14 at art. II, and Jt. Exh.
17 at art. II.) Under this proposal, PSAV would retain the sole
right to determine terms and conditions of employment such as
discipline and subcontracting.

14 PSAV’s Human Relations vice-president, Kellie Russell (Russell),
corroborated the existence of such a union organizing drive involving
PSAV and Local 8.
L. The Philadelphia Union Organizing Campaign in
February 2017
Respondent employee, Phillip M. Effinger (Effinger), in Phil-
adelphia, asserted at hearing that an election was held on Febru-
ary 17, 2017, to certify IATSE- Local 8, as the sole bargaining
representative on behalf of PSAV bargaining unit technician em-
ployees in the Philadelphia region.14 (Tr. 59.)
As a result of the union organizing drive, on February 16,
2017, before the vote, PSAV held a mandatory meeting in Phil-
adelphia with 60 or so technician employees, during which upper
management of PSAV spoke. (Tr. 59–60.) PSAV’s CEO McIl-
wain spoke as well and presented a PowerPoint presentation to
employees, which made the statement that, “Collective bargain-
ing does not always result in an agreement. . . . PSAV will not
enter into an agreement that would negatively impact our busi-
ness model.” (R. Exh. 3 at 10.)
In his oral presentation, McIlwain further painted “a dismal
picture of what was going on with [PSAV’s] negotiations [with
the Union] in Seattle.” (Tr. 59–60.) McIlwain stated that “things
aren’t going well with the negotiations in Seattle, so they could
very well go the same way in Philadelphia,” and referenced the
negotiations being “drag[ged] out and nothing happening.” Id.
Effinger opined that CEO McIlwain was trying to get the Phila-
delphia technicians to use the Seattle stalemate as a warning and
that they should vote “no” in the next day’s representative elec-
tion.15 (Tr. 62–64.)
On February 17, 2017, the Union filed an amended unfair la-
bor charge in Case 19-CA–192068 alleging Respondent contin-
ued to fail to bargain in good faith with the Union in violation of
Section 8(a)(5) and (1) of the Act.
Analysis
A. Credibility
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’ de-
meanor, and the weight of the respective evidence, established
or admitted facts, inherent probabilities and reasonable infer-
ences that may be drawn from the record as a whole. Double D
Construction Group, 339 NLRB 303, 305 (2003); Daikichi Su-
shi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Deal-
ership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx.
516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all
kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, 335 NLRB at 622. My cred-
ibility findings are generally incorporated into the findings of
fact set forth above.
B. PSAV Has a Duty to Provide the Union with Its Requested
Information That Is Necessary and Relevant to the Union’s
Performance of Its Duties as Union Representative
The General Counsel alleges that Respondent violated Section
8(a)(5) and (1) of the Act when Respondent refused to provide
15 This impression is also confirmed by looking to the PowerPoint
presentation itself from January 26th, where Respondent on its Slide en-
titled “We are PSAV” included a bullet point stating, “Please Vote ‘No’
on Friday.” R. Exh
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 23
the Union the September 2, 2016 requested financial infor-
mation.
1. The duty to provide relevant and necessary information after
a claim of financial inability is made
An employer violates Section 8(a)(5) of the Act by refusing to
provide the collective-bargaining representative of its employees
with requested information to substantiate a claim that it cannot
afford to agree to bargaining demands. NLRB v. Truitt Mfg. Co.,
351 U.S. 149 (1956). The predicate for this doctrine is, as stated
by the Supreme Court: ‘‘Good-faith bargaining . . . requires that
claims made by either bargainer should be honest claims.’’ (Id.
at 152.)
A claim of financial inability to pay is not the same as a claim
of competitive disadvantage. In the former instance the employer
claims it cannot pay and in the latter simply asserts it will not
pay. Nielsen Lithographing Co., 305 NLRB 697, 700 (1991),
affd. sub nom. Graphic Communications Local 50B v. NLRB,
977 F.2d 1169 (7th Cir. 1992). An unwillingness to pay does not
trigger an employer obligation to turn over financial records.
Claims of economic hardship and business losses can reasonably
convey “a present inability to pay” and “must be evaluated in the
context of the particular circumstances [of the] case.” Lakeland
Bus Lines, Inc., 335 NLRB 322 (2001), citing Nielsen Litho-
graphing Co, supra, and Shell Co., 313 NLRB 133 (1993). “‘In-
ability to pay’ means that the company presently has insufficient
assets to pay or that it would have insufficient assets to pay dur-
ing the life of the contract that is being negotiated.” AMF Truck-
ing & Warehouse, Inc., 342 NLRB 1125, 1126 (2004).
In the instant matter, Respondent’s chief negotiator, Shank-
man, vehemently expressed during August 17 negotiations that
Respondent could not afford to pay the Union’s increased wage
proposals and that acceding to the increased wage rates would
cause Respondent to lose hotel property clients and go “under-
water” or become bankrupt or insolvent as it would “be suicide”
for Respondent to agree to pay the Union’s increased wage pro-
posals.
Respondent argues that it intended to say that Respondent
“would not pay” the increased wage rates proposed by the Union
because the Union was mixing apples with oranges and confus-
ing the different type of technician work the Respondent had in
Seattle versus SF and SD. I find that the Union’s increased wage
rates are not unreasonable, illogical, or submitted in bad faith as
Respondent argues as the Union’s proposed increased wage rates
ranged from $33 to $45 for a variety of classifications as com-
pared to what PSAV pays in SF and SD technicians’ wage rates
in 2016 and 2015 respectively, ranging from $32.88 to $93.58 in
SF and $26.89 to $39.21 in SD. The Union also sought financial
information from the Respondent tied to Seattle wages paid by
PSAV to contractors. Moreover, at no time prior to the hearing
did Shankman or Respondent provide the Union with the Re-
spondent’s SD or SF CBAs or supply the Union with the re-
quested wages paid in Seattle by PSAV to contractors to explain
or clarify to the Union Shankman’s distinction in wage rates paid

16 I also reject Shankman’s sole testimony that PSAV informed the
Union at an August bargaining session that Shankman referred Treneer
to speak with Bill Gearns of the international union to better understand
PSAV and its business. See Tr. 187–189. Shankman’s September 6 email
by PSAV to the International Union’s members working on an
intermittent hiring hall dispatch labor basis and the unit employ-
ees here who work as billable and non-billable employees.16 (See
Tr. 29, 31–32, 34, 90–91; R. Exhs. 9–11 and 13.)
I find that these August 17 Shankman statements convey an
inability to pay the Union’s increased wage proposal under the
unique circumstances of this case especially where here the Re-
spondent comes in as a recidivist employer having previously
failed and refused to recognize and bargain with the Union from
January 4 to May 23, 2016. See the First PSAV case, 365 NLRB
No. 84, at slip op. 3. As a result, Respondent started out in the
negative when considering factors or events to the totality of cir-
cumstances analysis of Respondent’s conduct from November
2015 when the Union won its election through at least October
11 when the Respondent continued to fail to furnish the Union
with the requested financial information. I find that making no
substantial movement in economical and noneconomical provi-
sions during bargaining sessions to maintain the status quo is Re-
spondent’s chosen business model when one looks at the totality
of circumstances.
I further find that beginning 20 days after uttering his inability
to pay message to the Union and continuing PSAV’s refusal to
furnish the requested information, Attorney Shankman disingen-
uously and in bad-faith attempts to put forth his semantical twist
and denies making any such inability to pay statement as applied
specifically to Respondent rather than to all employers in the
same industry. (Jt. Exh. 10.) (Emphasis added.) Consequently,
from on and after September 6, PSAV’s Shankman’s inability to
pay statements morphed to become the more vague statement
that no employer in this business would pay such an increased
wage rate to its union employees that is so grossly outside of its
business model. Id. Notably, however, Shankman never retracted
or pulled back any of his other August 17 assertions made in
support of his earlier inability to pay statement such as his state-
ment that PSAV paid 50 percent commissions to its Seattle hotel
and convention center clients and that the Seattle market could
not support the Union’s proposed increased wage rates. This in-
congruity of statements from Shankman as to PSAV’s true fi-
nancial status is further evidence causing me to doubt the verac-
ity of Respondent’s changing positions.
The Board has repeatedly held that where, as here, an em-
ployer predicates its bargaining position as a matter of necessity
by reason of current alleged financial losses or pending bank-
ruptcy, the bargaining union is entitled, on request, to infor-
mation pertaining to the alleged losses and their impact on the
employer’s business. The employer violates its bargaining obli-
gation by failing or refusing to provide such information, not-
withstanding an express disclaimer that it is pleading inability to
pay, where the thrust of the employer’s position indicates other-
wise. The employer’s entire course of conduct should be exam-
ined to determine whether the retraction or disclaimer “rings hol-
low.” See Shell Co., 313 NLRB 133–134 (1993); International
Chemical Workers Union v. NLRB, 467 F.3d 742 (9th Cir. 2006);
response makes no reference to these alleged facts and no other testi-
mony from any of the other 6 witnesses at the August 17 and 18 bargain-
ing sessions confirm Shankman’s statements.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Continental Winding Co., 305 NLRB 122, 125 (1991); Facet En-
terprises, 290 NLRB 152, 153 (1988), enfd. 907 F.2d 963, 979–
981 (10th Cir. 1990); Clemson Bros., 290 NLRB 944 (1988); and
C-B Buick, 206 NLRB 6, 7–8 (1973), enfd. in relevant part 506
F.2d 1086 (3d Cir. 1974).
Respondent argues that where an employer makes clear that it
is not pleading inability to pay or if an employer retracts its ear-
lier claimed inability to pay, the Board will not require the em-
ployer to open its books to the union. In this regard, Respondent
cites Coupled Products, LLC, 359 NLRB 1443, 1453 (2013)17;
Media General Operations, Inc., 345 NLRB 195, 198 (2005);
and American Polystyrene Corp., 341 NLRB 508, 509 (2004),
reversed in full International Chemical Workers Union v. NLRB,
467 F.3d 742 (9th Cir. 2006).18 These cases are inapposite for
the reasons noted in footnotes 18 and 19 below and for the fol-
lowing reasons.
In Coupled Products, the Board found that, unlike here, the
employer never claimed an inability to pay the union’s demands
but, instead, the employer consistently told the union that in or-
der to be “competitive” it needed a pay reduction. Coupled Prod-
ucts, supra at 1452–1453. In Media General Operations, the
Board held that an “inability to pay” statement can be retracted
under certain conditions not present in this case. The Board in
Media General Operations goes on to hold:
“It may well be that an employer cannot make a clear claim of
inability to pay and then say ‘disingenuously or in bad faith’
that it never made such a claim. [citing] Lakeland Bus Lines v.
NLRB, 347 F.3d [955,]at 964 [(D.C. Cir. 2003)]. However, the
Respondent here made a claim that, at worst, could be inter-
preted as a claim of inability to pay and then clarified that this
was not its claim.
Id. at 198. The Board further affirmed the administrative law
judge in Media General Operations who found that the em-
ployer’s statement that it was unable to pay was not made in bad
faith but was taken out of context and meant that employer was
losing money, not that it had insufficient assets to pay the bonus.
In this case, examining the Respondent’s entire course of con-
duct here as stated above, I further find that PSAV’s attempt to
retract Shankman’s clear inability to pay statements was made
disingenuously and in bad faith as part of PSAV’s semantical
game consistent with its past unlawful refusal to bargain conduct
in the First PSAV case. PSAV did not retract its pending insol-
vency painting its upcoming source of funds as being doubtful
and unreliable. (Tr. 31–32, 34, 90–91, 151, 153.) Moreover, I
further find that PSAV’s business strategy all along from No-
vember 2015 through at least October 11, 2016, was to maintain
its prior nonunion status quo for as long as possible even after
the Union won its election in November 2015.
Accordingly, I conclude that Respondent claimed financial in-
ability to pay for the Union’s proposed increased wages during
its collective bargaining with the Union and violated Section

17 This case is not proper precedent as on June 26, 2014, the United
States Supreme Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appointments to the Board
were not valid which invalidated this case.
18 The General Counsel and Respondent leave out the proper citation
indicating that the Ninth Circuit Court of Appeals, the circuit court where
8(a)(5) and (1) of the Act by refusing to furnish since September
6 the requested financial information to the Union.
2. Alternatively, the Union’s bullet point Items 1–4 are rele-
vant and necessary to the Union’s representative duties and Re-
spondent’s refusal to produce this information is further bad-
faith conduct
An employer has a duty to furnish a union representing its em-
ployees with requested information that is relevant and necessary
to the union’s performance of its duties as the collective-bargain-
ing representative, including contract negotiations, contract ad-
ministration, grievance adjustment, and other representational
duties. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967); Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). Ac-
cord: Centura Health St. Mary-Corwin Medical Center, 360
NLRB 689 (2014). Because the duty to furnish information is
meant to further the union’s ability to represent the bargaining
unit, information pertaining to unit employees’ terms and condi-
tions of employment, such as their wages and hours of work, is
presumptively relevant to the union, and the burden is on the em-
ployer to rebut the relevance of the information requested.
Bacardi Corp., 296 NLRB 1220, 1223 (1989). See also Ohio
Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381
(6th Cir. 1976).
By contrast, information concerning extra or nonunit employ-
ees is not presumptively relevant; rather, relevance must be
shown by the requesting party. Shoppers Food Warehouse
Corp., 315 NLRB 257, 259 (1994). The burden to show rele-
vance, however, is “not exceptionally heavy,” Leland Stanford
Junior University, 262 NLRB 136, 139 (1982), enfd. 715 F.2d
473 (9th Cir. 1983); “[t]he Board uses a broad, discovery-type
standard in determining relevance in information requests.”
Shoppers Food Warehouse, supra at 259.
Notably, once the burden of showing the relevance of nonunit
information is satisfied, the duty to provide the information is the
same as it is with presumptively relevant unit information. De-
pending on the circumstances and reasons for the union's inter-
est, information that is not presumptively relevant may have “an
even more fundamental relevance than that considered presump-
tively relevant.” Prudential Insurance Co. of America v. NLRB,
412 F.2d 77, 84 (2d Cir.), cert. denied 396 U.S. 928 (1969).
“[A]n employer's duty to bargain includes a general duty to pro-
vide information needed by the bargaining representative to as-
sess claims made by the employer relevant to contract negotia-
tions.” Caldwell Mfg. Co., 346 NLRB 1159, 1159–1160 (2006).
This follows from the Supreme Court-approved understand-
ing that under the Act “[g]ood-faith bargaining necessarily re-
quires that claims made by either bargainer should be honest
claims. . . . If such an argument is important enough to present
in the give and take of bargaining, it is important enough to re-
quire some sort of proof of its accuracy.” NLRB v. Truitt Mfg.
Co., 351 U.S. 149, 152–153 (1956). As the Supreme Court
the instant proceeding arises, reversed the Board on June 30, 2006, grant-
ing the Union’s petition to review and remanding the case to the Board
with directions to reinstate the ALJ’s January 24, 2003 Decision and Or-
der. International Chemical Workers Union v. NLRB, 467 F.3d 742
(2006). I admonish both parties’ counsel here as it is it bad form to omit
either “convenient” or “inconvenient” case reversals from closing briefs.
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 25
explained in Truitt, relying on principles adhered to since the
earliest years of the Act, when a party asserts its positions with-
out permitting proof or independent verification, “[t]his is not
collective bargaining.” 351 U.S. at 153 (quoting Pioneer Pearl
Button Co., 1 NLRB 837, 842–843 (1936)).
The failure to provide requested relevant information is a vio-
lation of Section 8(a)(5) of the Act. Like a flat refusal to bargain,
“[t]he refusal of an employer to provide a bargaining agent with
information relevant to the Union’s task of representing its con-
stituency is a per se violation of the Act” without regard to the
employer’s subjective good or bad faith. Piggly Wiggly Midwest,
LLC, 357 NLRB 2344, 2355 (2012); Brooklyn Union Gas Co.,
220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co., 237
NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979).
Here, the minimal burden the Union would be required to
carry to establish the relevance of the information requested from
PSAV, again, was outlined in its September 2 email. In this com-
munication, the Union detailed item by item how the requested
information would enable to the Union to better understand and
evaluate PSAV’s financial concerns for paying Union technician
bargaining unit employees’ proposed higher wages. Moreover,
the Union requested this specific financial information from
PSAV because of the direct relationship between the assertions
made by Shankman at the bargaining table on August 17 about
PSAV’s financial position, the terms and nature of its contractual
relationship with its clients, and the wage rates that PSAV in Se-
attle could or could not sustain based upon the rates PSAV
charged. (Tr. 35, 99–101.)
I further find that starting at the August 17 bargaining session,
it was unclear to the Union what the Respondent was really say-
ing when Shankman’s words equated to PSAV’s “inability to
pay” the Union’s proposed increased wages. All that the Shank-
man and Respondent told the Union was that the Union’s July 19
and August 18 proposed increased wages did not fit Respond-
ent’s business model and the Respondent asserted why this was
referencing the same 4 bullet points that became the Union’s
September 2 request for financial information. As a result, these
4 bullet point assertions by the Respondent is all the Union had
to go on to get more information so it was not continuing to be
the only party at the bargaining table proposing a change to the
status quo. Even if the Respondent was arguing the “status quo”
had to be, PSAV’s 4 assertions backing that up were the only
way the Union could move forward.
Also in the present case, Respondent has completely refused
to respond to the Union’s August 17 and September 2 infor-
mation requests. Respondent argues that it never claimed “ina-
bility to pay” and therefore the duty to provide information was
never triggered. The Respondent’s arguments (R Br. at 11–14)
to the contrary are unavailing. Viewing Respondent’s September
6 email response to the Union’s request for information, the Re-
spondent contends that the financial data sought in the requested
financial documents is irrelevant because it “is premised off your
inability to pay claim. . . . (Jt. Exh. 10.) Even more fundamen-
tally incorrect is the Respondent’s contention (R. Br. at 13) that
the Union’s request for the financial documents comprised in its
September 2 four bullet points “is clearly the type of general fi-
nancial information that even the decision in Caldwell would not
have required be provided.” The Respondent’s contention is
incorrect.
Respondent’s assertions regarding “inability to pay” fall short.
The Board in Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006),
openly rejected the notion that only assertions of “inability to
pay” will trigger a duty to disclose information. The Board in-
stead held 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 nonunit employ-
ees.” (Emphasis added.) See also General Counsel Advice Mem-
orandum in Rotek, Inc. Cases 08–CA–099704 et. al. (Nov. 26,
2013)(Same).
In Caldwell, the Board specifically held that “the General
Counsel established that the information was relevant, because it
would have assisted the Charging Party in assessing the accuracy
of the Respondent’s proposals and developing its own counter-
proposals. The record evidence demonstrates that the Charging
Party’s requests were made directly in response to specific fac-
tual assertions made by the Respondent in the course of bargain-
ing.” (Id.) A similar result was reached in KLB Industries, Inc.
v. NLRB, 700 F.3d 551 (D.C. Cir. 2012), wherein the company
sought wage concessions on the basis of competitive pressures it
claimed to be facing. In KLB, the court reaffirmed the Board’s
holding that when the company relied on competitive pressures
to justify wage concessions it “made the veracity of that claim
relevant to the negotiations.” (Id. at 557.) The reasoning and
rationale of Caldwell and KLB is particularly applicable to the
facts of this case and directly address the very questions pre-
sented.
The information requests at issue is a request for information
in order to prepare for first-contract bargaining. All of the out-
standing information requested by the Union (its four bullet
points) is relevant information as it is necessary information
needed by the bargaining representative to assess claims made
by the employer relevant to contract negotiations. See Caldwell
Mfg. Co., 346 NLRB 1159, 1159–1160. Respondent has failed
to rebut the discovery-like relevance standard in play here.
Here too, the requested information is relevant because it will
assist the Union in assessing the accuracy of the Respondent’s
August 17 bargaining statements and proposals and for develop-
ing the Union’s own counterproposals. The Respondent must
concede that its claim that PSAV was unable to pay the Union’s
increased wages was an important one; not only relevant but a
central premise for the bargaining negotiations. It was a claim
supported by Shankman’s statements that PSAV’s current con-
tracts with its hotel and convention center clients in the Seattle
area were precarious and unreliable and that PSAV does not al-
low these higher wages and that if untrue, or if not the whole
story, could have significant ramifications for the negotiations.
Given this, it is simply inconsistent with the Act for the Union to
be required to take Shankman’s word on this important matter
that the requested financial records are too general or not rele-
vant here. The documents to verify this claim were requested and
should have been provided.
The preponderance of the evidence shows that Respondent
specifically told the Union that Respondent was unable to pay
the Union’s proposal to increase wages and did not fully explain
any misunderstanding between the parties until the hearing in
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this case. Moreover, the Respondent firmly held onto its status
quo positions from May 24, 2016 through February 17, 2017
without any material compromises offered to the Union. By the
time of hearing, it was too late to retract Respondent’s prior “in-
ability to pay” statements and this combined with Respondent’s
condescending and dismissive attitude toward the Union and its
prior bad faith conduct from January 4 through May 23, 2016,
provide special circumstances for Respondent to produce the re-
quested financial information.
As a result, I further find that the General Counsel has demon-
strated that this four-bullet pointed requested information was
relevant and necessary to the bargaining with PSAV under a lib-
eral discovery standard. I further find that the Respondent was
under a duty to supply the Union with the financial documents
upon the Union’s four bullet point request. To the extent none of
the four categories of financial documents have been provided,
the Respondent has unlawfully failed to provide it upon the Un-
ion’s request in violation of Section 8(a)(5) and (1) of the Act.
Respondent also argues that the Union acted in bad faith here
and that PSAV should receive a pass because of this. I find that
if the Respondent really believed that the Union was acting in
bad faith, it could have filed its own unfair labor practice claim.
Since it did not and given Shankman’s other less than credible
and rejected assertions, I further find that PSAV’s argument that
the Union somehow acted unlawfully is unsupported by the evi-
dence and lacks merit. Lastly, PSAV argues that the requested
financial information is proprietary and confidential. However,
if PSAV was concerned about the confidentiality of the infor-
mation, it was obligated to propose and bargain over a reasonable
accommodation, such as redacting the information and/or re-
stricting its use. The burden is on the employer not the union to
propose a precise option to providing the information. See A-1
Door &Building Solutions, 356 NLRB 499, 500–501 (2011); and
Borgess Medical Center, 342 NLRB 1105, 1106 (2004). See also
U.S. Testing Co. v. NLRB, 160 F.3d 14, 20–21 (D.C. Cir. 1998),
and cases cited there. There is no evidence that PSAV ever did
so.
By the August 17 oral request and September 2 email, the Un-
ion requested that PSAV furnish the Union with information that
is relevant and necessary to the Union’s performance of its duties
as the exclusive collective–bargaining representative of the unit.
Since about September 6, 2016, the Respondent has failed and
refused to furnish the Union with the requested information. Ac-
cordingly, I find that PSAV’s refusal to provide the Union with
the requested financial information violated Section 8(a)(5) and
(1) of the Act, as alleged.
C. The Totality of PSAV’s Conduct Shows a Lack of Good
Faith Bargaining
Section 8(d) of the Act defines the obligation of employers to
bargain collectively as the “obligation … to meet at reasonable
times and confer in good faith with respect to wages, hours, and
other terms and conditions of employment.” The obligation to
bargain in good faith “does not compel either party to agree to a
proposal or require the making of a concession.” A party who
enters into negotiations with a pre-determined resolve not to
budge from an initial position, however, demonstrates “an atti-
tude inconsistent with good-faith bargaining.” General Electric
Co., 150 NLRB 192, 196 (1964), enfd, 418 F.2d 7736 (2d Cir.
1969), discussed in American Meat Packing Co., 301 NLRB 835
(1991). Nevertheless, the Board considers the context of the em-
ployer’s total conduct in deciding “‘whether the employer is en-
gaging in hard but lawful bargaining to achieve a contract that it
considers desirable or is unlawfully endeavoring to frustrate the
possibility of arriving at any agreement.’” Public Service Co. of
Oklahoma, 334 NLRB 487 (2001) (quoting Atlanta Hilton &
Tower, 271 NLRB 1600, 1603 (1984)), enfd. 318 F.3d 1173
(10th Cir. 2003).
In determining whether the employer bargained in good faith,
the Board may not “sit in judgment upon the substantive terms
of collective bargaining agreements.” NLRB v. Am. Nat’l Ins.
Co., 343 U.S. 395, 404 (1952). However, in determining good
faith, the Board should examine the totality of the circumstances,
including the substantive terms of proposals. Public Services,
334 NLRB at 488; see also Borden, Inc. v. NLRB, 19 F.3d 502,
512 (10th Cir. 1994) (noting also that “rigid adherence to disad-
vantageous proposals may provide a basis for inferring bad
faith”); Colorado-Ute Electric Assn. v. NLRB, 939 F.2d 1392,
1405 (10th Cir. 1991) (recognizing the same). “Sometimes, es-
pecially if the parties are sophisticated, the only indicia of bad
faith may be the proposals advanced and adhered to.” NLRB v.
Wright Motors, Inc., 603 F.2d 604, 609 (7th Cir. 1979). For ex-
ample, an employer’s predetermined and inflexible position to-
ward union security and merit increases has helped to support a
finding of surface bargaining. Duro Fittings Co., 121 NLRB 377
(1958). In Irvington Motors, 147 NLRB 377 (1964), enfd. 343
F.2d 759 (3d Cir. 1965), the employer violated the Act by engag-
ing in surface bargaining where its offer merely reiterated exist-
ing practices and its first written counterproposal was not sub-
mitted until 3.5 months after it had been requested. See also Mac-
Millan Ringerfree Oil Co., 160 NLRB 877 (1966), enf. denied
on other grounds 394 F.2d 26 (9th Cir. 1968).
Although an adamant insistence on a bargaining position is not
of itself a refusal to bargain in good faith [citation omitted],
other conduct has been held to be indicative of a lack of good
faith. Such conduct includes delaying tactics, unreasonable
bargaining demands, unilateral changes in mandatory subjects
of bargaining, efforts to bypass the union, failure to designate
an agent with sufficient bargaining authority, withdrawal of al-
ready agreed-upon provisions, and arbitrary scheduling of
meetings.
Atlanta Hilton & Tower, 271 NLRB 1600, 1603. (Footnote cita-
tions omitted.)
In Stevens International, 337 NLRB 143, 149–50 (2001), the
Board found that the respondent did not engage in good-faith ef-
fects bargaining. Although the respondent met with the union
and invited it to propose terms for a plant closing agreement, the
Board found bad faith bargaining because the respondent sum-
marily rejected the union’s proposal without offering a counter-
proposal and failed to negotiate further, despite the union’s offer
to modify its proposal. See also Dallas & Mavis Specialized Car-
rier Co., 346 NLRB 253, 257 (2006) (finding no good-faith bar-
gaining where the respondent listened and responded to the un-
ion’s proposal regarding the effects of ceasing operations but
then summarily rejected all but one of the union’s proposals
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 27
without providing an explanation or counterproposal and did not
respond when the union requested further bargaining).
The complaint also alleges that Respondent violated Section
8(a)(5) and (1) of the Act at various times from January 4, 2016
through February 22, 2017, when Respondent engaged in surface
bargaining to frustrate or avoid mutual agreement by: (1) refus-
ing to recognize and bargain with the Union causing delay in
providing bargaining proposals from January 4 through May 23,
2016; (2) failing and refusing to furnish the Union with financial
information since September 6, 2016; (3) failing to offer con-
crete and meaningful bargaining proposals to the Union on mat-
ters relating to wages and benefits, grievances and arbitration,
just-cause protections from discipline or discharge, and an overly
broad management rights clause that were either statutorily re-
quired or were heavily tipped to Respondent as part of its status
quo ante position; and (4) bypassing the Union with an October
13 letter to employees and by informing Respondent employees
in Philadelphia that it would be futile to elect a union when bar-
gaining in Seattle had been at a stalemate. (GC Exh. 1(g) at 2–
3.)
The General Counsel asserts that Respondent violated Section
8(a)(5) by coming to the bargaining table “with no intention of
reaching an agreement, and it was simply continuing down its
well-established path of refusing to recognize and bargain with
the Union.” (GC. Br., at 30.) While the duties imposed under
Section 8(a)(5) of the Act do not obligate a party to make con-
cessions or yield a position fairly maintained, it does require a
serious intent to adjust differences and to reach an acceptable
common ground, rather than merely going through the motions
of bargaining. Unbelievable, Inc. d/b/a Frontier Hotel & Ca-
sino, 318 NLRB 857, 876 (1995), enfd. 118 F.3d 795 (D.C. Cir.
1997). Thus, negotiating as a kind of “sham” while intending to
avoid an agreement amounts to bad faith bargaining in violation
of Section 8(a)(5) of the Act and if a party to the bargaining pro-
cess is unwilling to make any meaningful modifications of its
principal proposals, in effect it is maintaining “an attitude of
‘take it or leave it’” which the U.S. Supreme Court in the NLRB
v. Insurance Agents’ International Union [Prudential Insurance
Co. of America], 361 U.S. 477, 485 (1960), case condemned. K
Mart Corp., 242 NLRB 855, 875 (1979).
Applying these principles here, I find that the totality of Re-
spondent’s conduct amounted to bad faith bargaining as Re-
spondent, among other things referenced herein, at all times from
May 24, 2016 through February 22, 2017, refused to move past
its initial status quo bargaining offer with the Union. Viewed in
its entirety, the evidence shows that Respondent pursued tactics
designed to delay and prolong negotiations while at the same
time trying to undermine support for the Union.
1. Delay in providing meaningful bargaining proposals
As stated above, surface bargaining can be found where it is
manifestly detrimental to the Union’s preservation of employee
support to delay the submission of proposals. J. P. Stevens &
Co., 239 NLRB 738, 765 (1978), enfd. in pert. part 623 F. 2d 322
(4th Cir. 1980). Thus, Respondent’s delay in presenting mean-
ingful counterproposals is a factor I have considered in finding
bad faith. See United Technologies Corp., 296 NLRB 571
(1989)(Board found bad-faith bargaining where employer’s
failure to make an economic proposal after almost 1 year of bar-
gaining found to be part of a pattern of delaying tactics).
First of all, the Board ruled in May 2017 that PSAV unlaw-
fully failed and refused to recognize and bargain with the Union
as the exclusive collective-bargaining representative of the unit
from January 4 through May 23, 2016. The First PSAV case at
slip. op pp. 2–3. As a result, I take administrative notice that
PSAV’s past conduct involves its unlawful delay of bargaining
with the Union here so, at stated above, PSAV comes before me
here as a recidivist employer with a history of bad-faith bargain-
ing with this Union. See Langston Cos., 304 NLRB 1022 (1991)
(Past conduct by an employer’s president that occurred preelec-
tion used as a factor in a surface bargaining finding by the
Board); see also Unbelievable, Inc. d/b/a Frontier Hotel & Ca-
sino, 318 NLRB supra at 857) (Same).
At the initial bargaining session on June 24, PSAV turned over
its current wage information which has remained the status quo
wages offered by PSAV with no change. Also on June 24, the
Union presented its proposal for a first contract which was based
on the Union typical scaffold agreement with no wage provisions
yet and contained many different provisions from PSAV’s em-
ployee handbook rules. On July 19, the Union provided PSAV
its first wage proposal with its revised CBA proposal. On August
11, PSAV provided the Union with a proposed CBA that con-
tained the status quo wages and benefits for unit employees. On
August 18, the Union provided another counterproposal to
PSAV with wage rate concessions from its July 19 proposal.
After making two unanswered wage counterproposals and as
the Union waited for the September 2 requested financial infor-
mation from PSAV to gauge the veracity of Shankman’s August
17 statements as reduced to the Union’s September 2 information
request, PSAV continued to provide proposals after the August
18 session which made no material movement on economics,
simply maintaining its initial unchanged status quo wage pro-
posal and unilateral discretion within the classification wage
ranges. (Tr. 113; Jt. Exhs. 11, 14, and 17.) In addition, as dis-
cussed below, PSAV also proposed retaining the pre-existing
company practices which apply to all union and nonunion em-
ployees with respect to benefits. (See, e.g., Jt. Exh 6 at art. XVII;
Jt. Exh. 17 at art. IX.)
I find it significant that by January 27, 2017, Respondent did
not present any counterproposals on any key economic issues.
Instead, it simply “rejected” the Union’s proposals without suf-
ficient explanation and said that anything outside the status quo
wages would negatively impact PSAV’s “business model.”
However, Respondent did not present any departure from the sta-
tus quo wage proposal at any time through January 27, 2017 over
more than 7 months of negotiations after receiving the Union’s
initial proposals in June 2016. In Bewley Mills, 111 NLRB 830,
831 (1955), the Board found a delay of “almost 7 weeks” in sub-
mitting counterproposals to be a factor indicative of bad faith.
And in J.P. Stevens & Co., 239 NLRB supra at 765, the Board
noted that when “an employer takes 6 months or a year just to
submit proposals, it can reasonably foresee the erosive effect . .
. on a union’s strength among the employee population . . . [and]
strongly suggests that such an effect was deemed desirable.”
Given the circumstances of this case where more an a year from
January 4, 2016 through at least January 27, 2017, the specific
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unwillingness of Respondent to bargain regarding the above eco-
nomic provisions and the provisions referenced below, and the
unique history of Respondent’s unlawful conduct against the Un-
ion, I find Respondent’s dilatory tactics on presenting its initial
counterproposals on the key economic provisions of wages and
benefits is evidence of its bad faith.
In sum, I find that Respondent’s bad faith was independently
demonstrated by the totality of its conduct throughout negotia-
tions with the Union. Specifically, Respondent negotiated with a
predetermined rigid resolve not to budge from an initial status
quo position. Respondent maintained throughout its original un-
changed positions as to the key economic provisions involving
wages and benefits. In these special circumstances, under which
the Union typically obtains wage and benefits increases in its
first CBA, I find Respondent’s rigid “take-it-or-leave-it” posi-
tion on wages and benefits was put forth in bad faith in an at-
tempt to delay or frustrate bargaining.
2. Respondent never put forth any meaningful proposals that
significantly changed from its initial status quo position on non-
economic provisions
a. Bargaining regarding discipline and discharge provisions
As stated above, the Union’s initial counterproposal in June to
PSAV included a progressive discipline system and required that
PSAV have “just cause” for discipline and discharge. (Tr. 81; Jt.
Exh. 3.) PSAV responded by rejecting any “just cause” standard
and, like all other subjects, simply proposed to maintain the sta-
tus quo, rejecting both the progressive discipline system and
“just cause” provision. (Tr. 94; Jt. Exh. 6.) The Union proposed
a compromise in August which added a list of misconduct that
would constitute grounds for immediate termination, but PSAV
once again stubbornly maintained its status quo for this provision
both at the August and September sessions. (Tr. 96-97, 108; Jt.
Exh. 8.) Even when PSAV finally made a change to its discipli-
nary proposal later in January 2017, it was not a substantive
change as PSAV retained unilateral discretion. (Tr. 113–114; Jt.
Exh. 17.)
I find that Respondent failed to act in good faith when it ne-
gotiated the discipline and discharge provisions with the Union.
Meanwhile, during this same timeframe, Respondent was en-
couraging PSAV’s technician employees in Philadelphia to vote
“no” to unionization using PSAV’s deliberately-created Seattle
stalemate as an explanation why it would be futile for Philadel-
phia employees to vote in a union and encouraging these em-
ployees to not join a union. Thus, I find that throughout negoti-
ations, Respondent maintained a “take-it-or-leave it” attitude in-
tending to deliberately draw out negotiations in hope the certifi-
cation period would lapse or that the delay could get communi-
cated by PSAV to other PSAV technicians in other regions as an
example why unionizing would not benefit them.
b. Respondent’s position on grievance and
arbitration provision
PSAV also proposed a grievance and arbitration policy that
placed numerous limitations on what could be grieved, exclud-
ing “any complaints related to . . . [a]ny discipline that does not
involve the loss of time or pay;. . . a]ny employee grievance
where there is no personal relief to the grievant;. . . [a]llegations
of discrimination …; …[u]nfair labor practice charge[s].” (Jt.
Exh 6. at Art. XIX.) PSAV also rejected the Union’s proposal
for a “final and binding” arbitration. Id. While PSAV appeared
willing to consider arbitration, it rejected final and binding arbi-
tration. (Tr. 108, 111-112; Jt. Exhs. 11, 14, and 17.)
As further evidence of bad faith, I find that Respondent’s re-
fusal to veer from its status quo language on grievance and arbi-
tration proposals was intended to either purposely delay bargain-
ing while a certification lapsed, to use as an example in Philadel-
phia and anywhere else a union vote was approaching to bad-
mouth the Union in Seattle, or were otherwise advanced to
“make concessions here and there . . . to conceal a purposeful
strategy to make bargaining futile or fail.” See NLRB v. Herman
Sausage Co., 122 NLRB 168 (1958), enfd. 275 F.2d 229, 232
(5th Cir. 1960)(Board found as evidence of bad faith against em-
ployer, its unwillingness to accept or consider any contract other
than its proposed contract).
c. Respondent’s management rights provision
PSAV also refused to move from its initial proposal to main-
tain an expansive management rights clause as part of its initial
proposal to the Union in August. (Tr. 149; Compare Jt. Exhs. 5–
6 with Jt. Exh. 11 at art. II, with Jt. Exh. 14 at art. II, and Jt. Exh.
17 at Art. II.) Under this proposal, PSAV would retain the sole
right to determine terms and conditions of employment such as
discipline and subcontracting.
Finally, four of the tentative agreements reached between the
parties on various provisions involve the Union’s compromise
and agreement to withdraw proposals that would have changed
the Respondent’s status quo provisions while others merely in-
corporated into the CBA rights that employees were granted
through statute. See Jt. Exh. 17 at 30.
I find that Respondent failed to act in good faith when it ne-
gotiated the management-rights provision with the Union. In
summary, I find that PSAV acted unreasonably extreme or harsh
with all of its proposals which I find to be further evidence that
PSAV was offering them lacking serious intent to compromise
with the Union and this is further proof of PSAV’s failure to bar-
gain in good faith because PSAV failed to budge from its status
quo positions
3. Respondent’s bypassing the Union with Its October 13 letter
and CEO McIlwain’s February 2017 statements to Philadelphia
employees are further evidence of Respondent’s lack of
good faith
Shankman sent an October 13 letter to the Union bar-
gaining team but he also sent it to the entire technicians’
bargaining unit, which disputes the basis of the Union’s
wage proposals and explicitly states that PSAV will not
agree to the proposals, whether on wages or scheduling,
and that PSAV is not “required to deviate from the busi-
ness model that works throughout the Company.” (Tr.
107; Jt. Exh. 13.) I find that this October 13 letter directly
to Respondent’s technicians’ unit, was sent in bad faith by
Attorney Shankman as it injures the Union’s status as ex-
clusive bargaining representative and PSAV’s failure to
accord the Union its rightful role in the establishment of
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 29
new wages, the subject of the letter, necessarily tended to
undermine the Union’s authority among the employees
whose interests it represented. See C&C Plywood Corp.,
163 NLRB 1022, 1024 (1967) (Real injury from bypass-
ing the union is not flowing from breach of contract but
from injury to the union’s status as bargaining representa-
tive.)
Also as stated above, on February 16, 2017, before a union
election vote in Philadelphia, Pennsylvania, PSAV held a man-
datory meeting in Philadelphia with 60 or so technician employ-
ees, during which PSAV’s CEO McIlwain spoke upper manage-
ment of PSAV spoke and presented a PowerPoint presentation
to employees, which made the statement that, “Collective bar-
gaining does not always result in an agreement . . . . PSAV will
not enter into an agreement that would negatively impact our
business model.” (Tr. 59–60; R. Exh. 3 at 10.) In his oral presen-
tation, McIlwain further painted a dismal picture of what was
going on with PSAV’s negotiations with the Union in Seattle and
McIlwain stated that “things aren’t going well with the negotia-
tions in Seattle, so they could very well go the same way in Phil-
adelphia,” and referenced the negotiations being “drag[ged] out
and nothing happening.” Id. I find that CEO McIlwain was trying
to get the Philadelphia technicians to use PSAV’s bad faith con-
duct creating the Seattle stalemate as a warning that employees
should vote “no” in the next day’s representative election and
that it would be futile to vote a union in. (Tr. 59–60, 62–64.)
In Langston Companies, 304 NLRB 1022 (1991), the Board
considered the employer’s president’s preelection statements to
employees that “it might take 8 to 10 years for [the union] to get
a contract” as a threat that, tied to the employer’s other actions
at the bargaining table, amounted to bad faith bargaining. The
president’s statements occurred preelection and the Board held
that the employer’s past conduct reveals surface bargaining. Id.
In Western Summit Flexible Packaging, 310 NLRB 45 (1993),
the Board found that an employer’s owner’s antiunion state-
ments together with the employer’s insistence on a broad man-
agement-rights clause and employment-at-will language evi-
denced the employer’s bad faith.
Here, PSAV’s CEO McIlwain’s PowerPoint presentation, his
antiunion message to vote “no” in the election, and his preelec-
tion message to Philadelphia employees that it would be futile to
vote for the union given the bargaining session stalemate with
the Seattle Union employees created by PSAV in bad faith also
adds another bad faith bargaining factor as evidence of PSAV’s
failure to bargain in good faith with the Union.
Based upon the foregoing, the totality of the circum-
stances show that Respondent engaged in bargaining with-
out a good-faith intent to resolve differences and reach
common ground in violation of Section 8(a)(5) and (1) of
the Act. 25
CONCLUSIONS OF LAW
1. The Respondent, Audio Visual Services Group, Inc. d/b/a

25 I do not find that any of the individual acts set forth in this section,
standing on their own, are unlawful in and of themselves. Instead, Re-
spondent’s conduct as a whole, supports a finding that it was not
PSAV Presentation Services, is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Charging Party International Alliance of Theatrical
Stage Employees, Local 15 (Union) is a labor organization with
the meaning of Section 2(5) of the Act.
3. At all material times the Union has been the designated ex-
clusive collective-bargaining representative of the following bar-
gaining units of the Respondent’s employees:
All full-time and regular part-time technicians, including entry
level technicians, senior technicians, lead technicians, driver
technicians, concierges, equipment repair QC specialists, tech-
nical specialists, and warehouse technicians employed by the
Employer at its Seattle, Sea-Tac, Bellevue, Tukwila, and Ta-
coma, Washington facilities, excluding project managers, rig-
gers, union-referred employees subject to the Union's national
agreement with Respondent, and guards and supervisors as de-
fined by the Act.
4. By failing and refusing, since about September 6, 2016, to
furnish the Union with the requested information, described
above, the Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
5. By failing and refusing to bargain in good faith with the
Union from May 24, 2016, through February 22, 2017, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
6. The unfair labor practices committed by the Respondent af-
fect commerce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
7. I recommend dismissing the complaint allegations that are
not addressed in the Conclusions of Law set forth above.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices and has violated Section 8(a)(5) and (1) of the
Act, I shall order it to cease and desist, to recognize and bargain
on request with the Union and, to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent shall provide the Union with the information
that it has to date failed and refused to provide that was requested
by the Union in its September 2, 2016 information request to the
Respondent, as described in this decision.
To ensure that the employees are accorded the services of their
selected bargaining agent for the period provided by law, I shall
construe the initial period of the certification as beginning the
date the Respondent begins to bargain in good faith with the Un-
ion and furnishes the Union with the information that was re-
quested by the Union in its September 2, 2016 information re-
quest to the Respondent, as described in this decision. Mar-Jac
Poultry Co., 136 NLRB 785 (1962); accord Burnett Construc-
tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964).
The Respondent shall also post the notice in accord with J.
bargaining in overall good faith and therefore constitutes a violation of
Sec. 8(a)(5) and (1) of the Act. See Universal Fuel, Inc., 358 NLRB
1504, 1504 (2012) (Same).
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Picini Flooring, 356 NLRB 11, 15–16 (2010). In accordance
with J. Picini Flooring, the question as to whether an electronic
notice is appropriate should be resolved at the compliance phase.
Id. at 13.
In addition, a public reading of my remedial notice is appro-
priate here. The Respondent’s violations of the Act are suffi-
ciently serious and Respondent is a recidivist Act violator that
the reading of the notice is necessary to dissipate as much as pos-
sible any lingering effects of the Respondent’s unfair labor prac-
tices, and to enable employees to exercise their Section 7 rights
free of coercion. See, e.g., The Sheraton Anchorage, 363 NLRB
No. 6, slip op. at 2 (2015); Carey Salt Co., 360 NLRB 201, 202
(2014); HTH Corp., 356 NLRB 1397, 1403 (2011), enfd. 693
F.3d 1051 (9th Cir. 2012); Homer D. Bronson Co., 349 NLRB
512, 515 (2007), enfd. mem. 273 Fed.Appx. 32 (2d Cir. 2008).
Therefore, I will require that the remedial notice be read aloud to
the Respondent’s employees at each of Respondent’s Seattle
Area and Philadelphia facilities by CEO McIlwain (or, if he is
no longer employed by the Respondent, the current senior vice
president of Human Relations) in the presence of a Board agent
or, at the Respondent’s option, by a Board agent in that official’s
presence.
On these findings of fact and conclusions of law and on the
entire record, pursuant to Section 10(c) of the Act, I issue the
following recommended26
ORDER
The Respondent, Audio Visual Services Group, Inc., d/b/a
PSAV Presentation Services, doing business in Seattle, Sea-Tac,
Bellevue, Tukwila, and Tacoma, Washington, and Philadelphia,
Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and Refusing to bargain collectively and in good
faith with the International Alliance of Theatrical and Stage Em-
ployees, Local 15 concerning the wages, hours, and other terms
and conditions of employment in the following unit:
All full-time and regular part-time technicians, including entry
level technicians, senior technicians, lead technicians, driver
technicians, concierges, equipment repair QC specialists, tech-
nical specialists, and warehouse technicians employed by the
Employer at its Seattle, Sea-Tac, Bellevue, Tukwila, and Ta-
coma, Washington facilities, excluding project managers, rig-
gers, union-referred employees subject to the Union's national
agreement with Respondent, and guards and supervisors as de-
fined by the Act.
(b) Failing and refusing to bargain collectively with the Inter-
national Alliance of Theatrical and Stage Employees, Local 15,
by failing to provide information requested by the Union that is
necessary and relevant for the Union’s performance of its duties
as the collective bargaining representative of the employees in

26 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
27 While it is recognized that the Board previously extended the Un-
ion’s certification year under Mar-Jac Poultry in PSAV Presentation Ser-
vices, 365 NLRB No. 84 (May 19, 2017), as Respondent has not
the unit.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request, bargain with the Union as the exclusive col-
lective bargaining representative of the employees in the follow-
ing appropriate unit on terms and conditions of employment for
the period required by Mar-Jac Poultry, 136 NLRB 785
(1962),27 and if an understanding is reached, embody the under-
standing in a signed agreement.
All full-time and regular part-time technicians, including entry
level technicians, senior technicians, lead technicians, driver
technicians, concierges, equipment repair QC specialists, tech-
nical specialists, and warehouse technicians employed by the
Employer at its Seattle, Sea-Tac, Bellevue, Tukwila, and Ta-
coma, Washington facilities, excluding project managers, rig-
gers, union-referred employees subject to the Union's national
agreement with Respondent, and guards and supervisors as de-
fined by the Act.
(b) Within 14 days, provide the Union with financial infor-
mation responsive to the 4 bullet points contained in Union’s
September 2, 2016, information request.
(c) Within 14 days of service by the Region, have its repre-
sentative read the attached notice to employees during work
time, in the presence of a Board Agent. Alternatively, within 14
days of service by the Region, have a Board Agent read the at-
tached notice to employees during work time, in the presence of
Respondent’s representatives. The attached remedial notice shall
be read aloud to the Respondent’s employees at each of Re-
spondent’s Seattle Area and Philadelphia facilities by CEO
McIlwain (or, if he is no longer employed by the Respondent,
the current senior vice president of Human Relations) in the pres-
ence of a Board agent or, at the Respondent’s option, by a Board
agent in that official’s presence.
(d) Within 14 days after service by the Region, post at its Se-
attle, Sea-Tac, Bellevue, Tukwila, and Tacoma, Washington, and
Philadelphia, Pennsylvania facilities, copies of the attached no-
tice marked Appendix.28 Copies of the notice, on forms provided
by the Regional Director for Region 19 after being signed by the
Respondent's authorized representative, shall be posted by Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced, or
complied with the Board’s Order to bargain in good faith, it is also in-
cluded in this Order.
28 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.”
AUDIO VISUAL SERVICES GROUP, INC. D/B/A PSAV PRESENTATION SERVICES 31
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by Respondent.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn 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., April 6, 2018
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 a representative 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 ac-
tivities.
WE WILL NOT do anything to prevent you from exercising
the above rights. International Alliance of Theatrical
and Stage Employees, Local 15 (Union) is our em-
ployees’ representative in dealing with us regarding
wages, hours and other working conditions for the
following unit (Unit):
All full-time and regular part-time technicians, including
entry-level technicians, senior technicians, lead technicians,
driver technicians, concierges, equipment repair QC special-
ists, technical specialists, and warehouse technicians em-
ployed by us at our Seattle, Sea-Tac, Bellevue, Tukwila,
and Tacoma, Washington facilities, excluding project man-
agers, riggers, union-referred employees subject to the Union's
national agreement with us, and guards and supervisors as
defined by the Act.
WE WILL NOT refuse to bargain in good faith with the
Union as the exclusive collective bargaining representative of
our Unit employees.
WE WILL NOT fail and refuse to provide information requested
by the Union that is relevant and necessary to its role as your
exclusive collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the Act.
WE WILL, upon request, bargain in good faith with the Un-
ion as your exclusive collective-bargaining representative.
WE WILL, promptly furnish to the Union with the information
requested on September 2, 2016, related to bargaining over
wages for the years September 1, 2015, to the present.
AUDIO VISUAL SERVICES GROUP, INC., A
DELAWARE CORPORATION, D/B/A PSAV
PRESENTATION
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/19-CA-186007 or by using the QR
code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.