Stella D'oro Biscuit Co.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 769 (N.L.R.B. 2010)

STELLA D’ORO BISCUIT CO.
355 NLRB No. 158
769
Stella D’oro Biscuit Company, Inc. and Local 50,
Bakery, Confectionery, Tobacco Workers and
Grain Millers International, AFL–CIO. Case 2–
CA–38960
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On June 30, 2009, Administrative Law Judge Steven
Davis issued the attached decision. The General Counsel
filed a brief in support of the judge’s decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions and a supporting
brief. The General Counsel and the Respondent each
filed answering briefs to the other’s exceptions.
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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and supplemented below and to adopt the rec-
ommended Order as modified and set forth in full be-
low.2
The principal issues in this case are two. First, did the
judge correctly find that Respondent Stella D’oro Biscuit
Company, Inc. (Stella), during the course of negotiations
with the Union for a successor collective-bargaining
agreement, claimed that it was unable to pay the costs of
the expiring collective-bargaining agreement, and there-
fore obligated itself to furnish the Union with the re-
quested documentation of that claim? Second, did the
judge correctly find that Stella failed to comply with that
obligation by refusing to turn over to the Union a copy of
its 2007 audited financial statement, offering instead to
allow the Union to examine this document at a locale
where it would remain in Stella’s possession? We agree
with the judge’s reasoning as to both findings, as sup-
plemented below, and accordingly, we adopt his conclu-
sion that Stella’s refusal and failure to furnish the Union

1 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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard 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.
2 We will amend the judge’s remedy and modify his recommended
Order to conform to the Board’s standard remedial practices. We will
substitute a new notice to conform to the Order as modified.
the 2007 audited financial statement violated Section
8(a)(5) and (1) of the Act.3
I. CLAIM OF INABILITY TO PAY
A. Facts
The judge comprehensively reviewed the evidence in
this case, including that pertinent to the inability-to-pay-
claim issue. We summarize that evidence briefly here.
At all times relevant to this case, Stella was owned by
Brynwood Partners (Brynwood), a private equity invest-
ment firm. Brynwood purchases companies with the aim
of improving their financial condition and then selling
them at a profit in 5 to 10 years. Stella and the Union
were parties to a collective-bargaining agreement due to
expire June 29, 2008.4 The parties began bargaining for
a successor agreement on May 30, and met six times
over the next 2 months. In those meetings, Stella’s bar-
gaining representatives made the following claims:

 Stella “can’t survive under the current labor
contract” and “could not go on with the busi-
ness unless [it was] able to further reduce
costs.”
 “We [are] losing money. We [are] losing
about a million or a million and a half. And,
if we don’t recover that kind of money, then
we may have to close.”
 Stella is a “bleeding, distressed asset—a los-
ing proposition,” and Brynwood’s goal was to
“turn this business around” so it could con-
tinue to operate and would be profitable when
eventually sold.
 Stella required savings in its labor costs or it
would “not be going forward with the busi-
ness.”
 If the Union did not agree to its proposal, “we
[are] not going to be able to survive. We
might have to close the business.”

3 We also adopt, for the reasons stated by the judge, his findings of
additional violations based on this violation. Thus, the judge found that
Stella’s refusal and failure to furnish the requested financial statement
was a factor in the subsequent decision by the employees to strike, and
that therefore their strike was an unfair labor practice strike. The judge
also found that the presence of this unremedied unfair labor practice
prevented the creation of a valid impasse in the negotiations. Thus, the
judge correctly concluded that Stella violated Sec. 8(a)(5) and (1) by
implementing the terms of its final offer absent a valid impasse. And
because those terms were unlawfully implemented, the judge also cor-
rectly concluded that the strikers’ May 1, 2009 offer to return under the
terms of the expired collective-bargaining agreement was not condi-
tional, and Stella therefore violated Sec. 8(a)(3) and (1) by refusing to
reinstate the striking employees upon their unconditional offer to return
to work.
4 All dates are in 2008, unless stated otherwise. The parties ex-
tended the expiring agreement to July 31.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770
 If Stella “didn’t get the concessions” it
sought, “they would have to” close the busi-
ness.
 Brynwood does not “buy companies to take
losses. We buy it to make a profit.” If the
company was not making a profit, Brynwood
would take its “toy” and leave.
 The employees’ choice in bargaining is to
have jobs at lower pay or no jobs at all.

Stella’s negotiators also told the Union that Brynwood had
recently decided to invest $3.1 million in new automated
packaging equipment, which was expected to result in a
work force reduction of 26 employees. The Union was also
told that Brynwood was willing to incur a $6 million liabil-
ity in consequence of withdrawing from the Union’s pen-
sion fund.5 The expiring contract was a 3-year agreement.
Presenting a proposed 5-year contract, Stella’s chief nego-
tiator, Mark Jacoby, said that Brynwood was prepared to
fund losses in the short term, but it needed a longer contract
so that it could see “light at the end of the tunnel.”6
At the first bargaining session, Stella gave the Union a
1-page financial summary for 2007, which showed a loss
of $1.5 million. At that session, and repeatedly during
bargaining, the Union’s chief negotiator, Local 50 Presi-
dent Joyce Alston, asked for the complete financial
statement. At the first bargaining session, Jacoby agreed
to present the supporting documentation at the next ses-
sion. At that next session, Jacoby placed Stella’s 19-
page 2007 audited financial statement in the middle of
the table and told Alston that she could look at it, but it
could not remain in her possession. Jacoby also told
Alston that she, the Union’s attorney, and/or the Union’s
accountant could view the statement in Jacoby’s office
and take notes, but they could not make copies. Jacoby
made substantially identical offers at subsequent bargain-
ing sessions. Alston initially agreed to this arrangement,
but subsequently changed her mind and took the position
that the Union was entitled to its own copy. Neither
Jacoby nor any other Stella representative, in response to
the Union’s requests for financial information, denied
that Stella was claiming inability to pay.7

5 The record does not establish that Stella ever withdrew from the
Union’s pension fund. According to the General Counsel’s answering
brief, it ultimately decided not to withdraw.
6 The dissent mistakenly states that Jacoby said “the Respondent”—
i.e., Stella—was prepared to fund losses in the short term. Jacoby said
that Brynwood was so prepared, contingent on demanded labor-cost
reductions. As explained below, the difference is material.
7 The judge states that Union Attorney Louie Nikolaidis testified that
he told Jacoby during a telephone conversation on June 18 that Stella
was alleging an inability to pay and was therefore obligated to supply
the requested financial documents. The judge further states that Jacoby
gave “undenied testimony” that he (Jacoby) replied that Stella had not
B. Discussion
An employer that bases its bargaining position on an
asserted inability to pay the union’s bargaining demands
is required, upon request by the union, to substantiate its
claim by providing financial information. NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). In Nielsen Lithograph-
ing Co., 305 NLRB 697 (1991),8 the Board clarified that
this duty applies only where an employer asserts “a pre-
sent inability to pay, or a prospective inability to pay
during the life of the contract being negotiated,” not
where the employer “is simply saying that it does not
want to pay.” Id. at 700. See AMF Trucking & Ware-
housing, 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 contract that is being negoti-
ated. Thus, inability to pay is inextricably linked to non-
survival in business.”). In determining whether there has
been a claim of inability to pay, the Board evaluates an
employer’s claims “in the context of the particular cir-
cumstances in that case.” Lakeland Bus Lines, 335
NLRB 322, 324 (2001), enf. denied 347 F.3d 955 (D.C.
Cir. 2003). The Board does not require that the employer
recite any “magic words,” but only that its statements
and actions be specific enough to convey an inability to
pay. Atlanta Hilton & Tower, 271 NLRB 1600, 1602
(1984).
The judge found that statements made by Stella’s rep-
resentatives during negotiations effectively claimed a
present inability to pay the wages and benefits the Union
was requesting or an inability to pay during the life of the
contract being negotiated. Based on credited testimony,
the judge found that Stella’s representatives told the Un-
ion that Stella

could not continue to run the business at a loss, it could
not survive under the current labor contract and had to
reduce those costs to stay in business, that the conces-
sions it sought were needed for the survival of the

claimed an inability to pay. The General Counsel cross-excepts to the
judge’s finding that Jacoby denied claiming inability to pay.
We find merit in the General Counsel’s cross-exception. As the
General Counsel correctly contends, no record evidence supports a
finding that Jacoby told Nikolaidis on June 18 that Stella was not
claiming inability to pay. Rather, the first time Jacoby denied making
an “inability to pay” claim was in an email dated November 24—more
than 2 months after the Union’s September 12 charge alerted Stella that
the Union was alleging that Stella had so claimed. (Of course, if Niko-
laidis is credited, Stella was aware of the Union’s view as early as June
18. But we do not so find, as the judge neither credited nor discredited
his testimony that he told Jacoby that Stella was claiming inability to
pay.)
8 Petition for review denied sub nom. Graphic Communications Lo-
cal 508 v. NLRB, 977 F.2d 1168 (7th Cir. 1992).
STELLA D’ORO BISCUIT CO. 771
company and if it did not obtain them it would close,
that it required savings in its labor costs or it would not
be going forward, and it did not have the money to go
forward with its business unless it implemented the la-
bor cost reductions it proposed.

The judge said that he “agreed” that Stella “did not ex-
pressly plead an inability to pay,” and that it told the Union
that $3 million already had been invested in new equipment
and that Brynwood was willing to fund continued losses “in
the short term.” That short term, however, was something
less than the term of the 5-year contract Stella proposed, the
judge found. And putting the statement about Brynwood’s
willingness to fund losses in context, the judge found that
Brynwood’s short-term willingness was contingent on the
Union’s acceptance of Stella’s labor-cost concession de-
mands. Stella had lost $1.5 million in the last year, and it
needed labor-cost concessions to begin making money.
Otherwise, Brynwood would withdraw its capital, close the
facility, and sell. The judge found that these statements
constituted a claim of an inability to pay because they linked
Stella’s need for labor-cost concessions with its unprofita-
bility and, in turn, with its survival.
In coming to this conclusion, the judge relied on three
of the Board’s post-Nielsen decisions.
In Shell Co., 313 NLRB 133 (1993), the employer’s
negotiator told the union representing employees at one
of its facilities that economic conditions had affected the
facility “very badly, very seriously,” that present circum-
stances were “bad” and a matter of “survival.” Id. It
reiterated these statements in a letter to its employees,
saying that the situation was “critical” and a matter of
“survival.” Id. The Board found that the employer
claimed a present inability to pay because of the “imme-
diacy of [its] claims here concerning the [operation’s]
present survival and ‘critical’ condition.” Id. at 134.
Similarly, in Lakeland, supra, 335 NLRB at 324–325,
the Board found that the employer had claimed a present
inability to pay based on its letter to employees stating
that it was “trying to bring the bottom line back into the
black,” that accepting its final contract offer would en-
able it to “retain your jobs and get back in the black in
the short term,” and that “the future of Lakeland depends
on it.” Id. at 324–325. The Board found that these
statements, in context, reasonably conveyed a present
inability to pay by indicating that Lakeland was “pres-
ently unprofitable and as such was unable to pay more
than that contained in its final offer.” Id. at 325.
Finally, in Stroehmann Bakeries, 318 NLRB 1069
(1995), enf. denied 95 F.3d 218 (2d Cir. 1996), the Board
found that the employer stated that it had suffered huge
losses in the preceding year, that it projected continuing
heavy losses in the coming year, and that it was propos-
ing drastic reductions in wages and benefits to decrease
its losses. The Board also found that, despite the em-
ployer’s reference to the “deep pockets” of its parent
company, that parent expected the employer to stand on
its own and would not continue to fund the employer’s
losses without labor-cost concessions. Id. at 1079–1080.
Turning to this case, the judge found that Stella simi-
larly linked its need for labor-cost concessions to its lack
of profits, and its lack of profits to Brynwood deciding to
take its money elsewhere and close and sell Stella D’oro.
As in the three cases above, the need for concessions is
linked to nonsurvival, and thus the judge found a claim
of inability to pay.
Stella excepts, asserting that its representatives had
only asserted an unwillingness to pay the Union’s de-
mands and not an inability to do so. Nielsen, 305 NLRB
at 700. Stella argues that its bargaining strategy was
founded upon its business objectives rather than an
empty bank account—that its statements indicated
Brynwood had the funds to operate Stella, but was not
willing to deploy them without labor-cost concessions.
In arguing that its statements reasonably could not be
interpreted as conveying an inability to pay, Stella points
to statements made by its negotiators that it had invested
$3.1 million in the business and that it was willing to
incur a $6 million pension withdrawal liability. Stella
also contends that none of its contract proposals would
have brought its finances to the break-even point, requir-
ing Brynwood to continue to fund its losses. Thus, Stella
argues that, as in the Second Circuit’s decision in
Stroehmann (denying enforcement of the Board’s deci-
sion),9 its reliance on Brynwood’s “deep pockets” indi-
cated to the Union that Stella’s owners possessed ample
funds but would choose not to pay absent labor-cost con-
cessions—a bargaining strategy based on what the em-
ployer would pay, not what it could pay. Stella also
faults the judge’s decision for relying on Board decisions
denied enforcement in the courts of appeals.
We find no merit in Stella’s exceptions and instead
agree with the judge’s findings. Specifically, we find
that Stella’s bargaining representatives claimed a present
inability to pay, but at minimum an inability to pay dur-
ing the life of the contract under negotiation. As detailed
above, Jacoby and others repeatedly and continually in-
dicated that Stella’s survival was linked to its obtaining
concessions from the Union. Thus, it was stated, for
example, that Stella could not survive under the current
labor contract and had to reduce those costs to stay in
business, that the concessions it sought were needed for

9 Stroehmann Bakeries v. NLRB, 95 F.3d 218 (2d Cir. 1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772
the survival of the Company, and that it did not have the
money to go forward unless it implemented the proposed
reductions in labor costs. Stella clearly grounded its
need for concessions in its current financial situation:
absent concessions, its present unprofitability endangered
Stella’s survival.
But even assuming that the statements to which Stella
points—i.e., that Brynwood had invested $3 million in
new equipment, that it was willing to incur a $6 million
pension fund withdrawal liability, and that it would con-
tinue to fund Stella’s operating losses “in the short
term”—showed that Stella currently had access to Bryn-
wood’s “deep pockets” and thus negated any claim of
present inability to pay, the unmistakable messages con-
veyed to the Union were, first, that Stella would become
unable to pay just as soon as Brynwood took its “toy”
and left, and second, that, absent concessions, Brynwood
would do just that. Brynwood’s emphatically “short-
term” willingness to fund losses was plainly contingent
on the concessions Stella demanded. As for Jacoby’s
statements concerning the $9 million in actual and pro-
posed expenditures, those cut both ways, as much sug-
gesting preparations for selling the business as for con-
tinuing it on a profitable basis. After all, a business
boasting new automated equipment (requiring fewer em-
ployees to operate) and shorn of pension fund costs
would be more attractive to potential purchasers and
command a higher price. Thus, even if Stella did not
claim a present inability to pay, it signified that it would
become unable to pay if Brynwood pulled the plug, and
that unless the Union accepted the demanded conces-
sions, the plug would be pulled. As Jacoby succinctly
put it, the employees’ choice was jobs at lower pay or no
jobs at all.10
That Brynwood itself has “deep pockets” does not
change the result. Stella maintains that it never asserted
an inability to pay because it clearly indicated during
negotiations that Brynwood possessed ample funds.

10 Thus, this case is unlike those in which the Board found no claim
of inability to pay where the employer’s statements, taken in context,
did not link its proposals to its survival. For example, in AMF Trucking
& Warehousing, supra, 342 NLRB at 1125, the Board found no claim
of inability to pay because although the employer stated that it was in
“distress” and “fighting to [stay] alive,” it “never said that the survival
of the Company was at stake” if it paid the union’s demands. Id. at
1126. Similarly, in Richmond Times-Dispatch, 345 NLRB 195, 197
(2005), the Board found that the employer did not claim inability to pay
a discontinued holiday bonus because it indicated only that it was los-
ing money, not that it possessed insufficient assets to pay the bonus.
Chairman Liebman agrees that, under Nielsen and its progeny,
Stella’s statements claimed an inability to pay. As discussed in her
dissent in Richmond Times-Dispatch, 345 NLRB at 202 fn. 5, however,
she would revisit the Board’s decision in Nielsen in order to devise a
“better and more practical rule.”
Stella argues that its bargaining posture signaled that it
was unwilling to pay the Union’s demands because Bryn-
wood possessed the funds, but chose not to deploy them
without labor-cost concessions. But it is Stella’s ability
to pay, not Brynwood’s, that is at issue here. See United
Stockyards Corp., 293 NLRB 1, 2 (1989) (“It is the
[r]espondent’s financial condition, and not [its parent
company’s,] that . . . was placed in issue by the remarks
made . . . during contract negotiations.”), enfd. sub nom.
NLRB v. Sioux City Stockyards, 901 F.2d 669 (8th Cir.
1990) (per curiam). And Stella’s message was plain: it
would be unable to pay if Brynwood became unwilling
to pay, and Brynwood’s willingness to pay depended
entirely on the Union accepting the wage and benefit cuts
Stella demanded.11
The decision of the Second Circuit in Stroehmann
Bakeries is not to the contrary. There, as here, the em-
ployer conveyed to the union that it would go out of
business without a parent company willing to fund its
losses. But in Stroehmann, the employer expressly de-
nied that it was claiming inability to pay because its par-
ent, a Canadian company, “intended to maintain a foot-
hold in the American baking industry and was therefore
willing to bail Stroehmann out financially.” 95 F.3d at
220. Here, by contrast, Stella never denied (until long
after the relevant events) that it was claiming inability to
pay, and it made abundantly clear that Brynwood would
“close and sell” Stella D’oro if the Union did not grant
the demanded concessions.12
Also distinguishable are the decisions of the D.C. Cir-
cuit denying enforcement of the Board’s orders in previ-
ous “inability to pay” cases. Thus, in Lakeland Bus
Lines, Inc. v. NLRB, 347 F.3d 955 (D.C. Cir. 2003), the
court relied on evidence that the employer explicitly

11 The dissent finds “unsupported by the record” the judge’s finding,
upon which it says we rely, that Brynwood was willing to fund contin-
ued losses only for a period of time shorter than the 5-year contract
term Stella proposed. Accordingly, the dissent concludes that Stella did
not claim inability to pay under the test stated in AMF Trucking &
Warehousing, supra, 342 NLRB at 1126 (“‘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 contract that is
being negotiated.”). But even assuming Brynwood was willing to fund
losses for more than 5 years, Jacoby’s message to the Union was that
Brynwood’s willingness was contingent on the demanded labor-cost
concessions, without which Brynwood would pull the plug and imme-
diately render the Respondent unable to pay. In light of United Stock-
yards, supra, that message constituted a claim of inability to pay under
the AMF Trucking test.
12 We also observe that, although it is unclear from the record
whether Stella told the Union as much in bargaining, Brynwood’s busi-
ness model appears to be incompatible with its maintaining a foothold
in any industry. As the judge found, Brynwood buys companies with
the object of turning them around financially and selling them at a
profit in 5 to 10 years.
STELLA D’ORO BISCUIT CO. 773
stated that it was not asserting an inability to pay, but
was only asserting the existence of short-term business
losses. Id. at 963. Moreover, the court stated that the
Board should not have relied on the absence of employer
statements regarding its profitability as indicating a claim
of inability to pay. Id. In contrast, Stella did not state
that it was not claiming inability to pay, and it affirma-
tively asserted that the Company was unprofitable and
that its survival depended on labor-cost concessions. In
ConAgra, Inc. v. NLRB, 117 F.3d 1435 (D.C. Cir. 1997),
the court denied enforcement because the employer’s
representatives repeatedly stated that the company re-
mained profitable, but that it needed concessions to im-
prove its ability to compete. Therefore, the Board could
not find, consistently with its decision in Nielsen, supra,
that the employer was claiming it could not afford to pay
the union’s demand. 117 F.3d at 1442–1443. This case
is far otherwise.
Accordingly, we find that Stella claimed an inability to
pay and was obligated to provide the Union with the re-
quested financial information, the 2007 audited financial
statement.13
II. FAILURE AND REFUSAL TO PROVIDE THE 2007
FINANCIAL STATEMENT
The judge found that Stella’s offer to allow the Union
to view—but not retain in its possession—the 2007 fi-
nancial statement failed to satisfy its duty to furnish re-
quested information. In determining whether Stella’s
offer was adequate, the judge applied the following fac-
tors: the volume and nature of the information; whether
furnishing a photocopy would give greater assurance of
accuracy and completeness; and the comparative cost and
convenience to both parties of providing the photocopy.
American Telephone & Telegraph Co., 250 NLRB 47, 54
(1980), enfd. sub nom. Communication Workers Local
1051 v. NLRB, 644 F.2d 923 (1st Cir. 1981). Applying
these factors, the judge found that all three favored the
Union’s stance: the document was a complex financial
statement that did not lend itself to “quick and easy com-
prehension”; possession of the document would benefit
the Union, as its professionals could “examine it in de-
tail” for purposes of advising the Union on its bargaining
posture; and the cost of photocopying the document was
negligible. The judge distinguished two cases Stella re-
lied on: Roadway Express, 275 NLRB 1107, 1107 fn. 4
(1985) (employer could allow on-premise review of 1-

13 We find no merit in the General Counsel’s cross-exception that the
Union made a broad request for financial documentation and is there-
fore entitled to all data and information verifying Stella’s financial
condition. We find that the Union requested only the 2007 audited
financial statement and that the judge properly limited the remedy to
this document.
page customer letter), and Abercrombie & Fitch Co., 206
NLRB 464 (1973) (employer need not provide photo-
copy of 3-1/2 page uncomplicated record).
The judge rejected Stella’s assertion that it needed to
keep the information in the financial statement confiden-
tial to prevent its competitors, vendors and suppliers
from either refusing to deal with it or taking advantage of
its financial weakness. The judge found that although
these were legitimate concerns, the Union met them by
offering to sign a confidentiality agreement, and there
was no evidence that the Union could not be expected to
honor such an agreement. Island Creek Coal Co., 289
NLRB 851, 851 fn. 1 (1988) (“Absent proof that the
[u]nion was unreliable in respecting confidentiality
agreements, the [r]espondent’s failure to test its willing-
ness to treat the information confidentially weighs heav-
ily against its defense.”), petition for review denied sub
nom. Mine Workers District 31 v. NLRB, 879 F.2d 939
(D.C. Cir. 1989); Facet Enterprises, 290 NLRB 152, 165
(1988), enfd. in relevant part 907 F.2d 963 (10th Cir.
1990). The judge also observed that Stella had already
disseminated a summary of the document both to the
Union and directly to its work force, and that this sum-
mary showed the exact amount of Stella’s loss, “the main
item [Stella] sought to conceal from its vendors, custom-
ers, and competitors.” Finally, the judge rejected Stella’s
assertion that the Union had abandoned its request for the
information by going ahead and bargaining without it.
The Union continued to request the information, and the
reality of bargaining, the judge found, compelled the
Union to continue to negotiate without it.
Stella excepts, emphasizing the judge’s finding that its
confidentiality concerns were “legitimate,” and arguing
that its offer to allow the Union to view the 2007 finan-
cial statement constituted a “mutually acceptable ac-
commodation” based on Stella’s need to keep the infor-
mation confidential to prevent disruption to its fragile
business. Stella also contends that the requested state-
ment comes within the scope of Roadway Express, supra,
and Abercrombie & Fitch, supra, and not American Tele-
phone & Telegraph, supra, in which the requested docu-
ments consisted of more than 90 pages. Thus, Stella met
its duty to furnish the requested information in a “manner
not so burdensome or time-consuming as to impede the
process of bargaining.” Cincinnati Steel Castings Co.,
86 NLRB 592, 593 (1949) (emphasis omitted).
We find no merit in this exception and find that Stella
failed to meet its obligations under Section 8(a)(5) by
limiting the Union’s access to this document. Contrary
to Stella’s claim, its offer to permit an in camera inspec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774
tion at its offices was not “mutually acceptable.”14 The
Union initially agreed to that arrangement, but it changed
its mind. And although there is no bright line some-
where between 3-1/2 pages (Abercrombie & Fitch, su-
pra) and 90 (American Telephone & Telegraph, supra),
the judge reasonably placed the document at issue here
within the scope of American Telephone & Telegraph
based on not only its length, but also its complexity.
Moreover, the judge’s finding that Stella was required
to provide the Union a copy of the financial statement is
consistent with Union Switch & Signal, Inc., 316 NLRB
1025 (1995). In that case, even though the employer
permitted the union to view and take notes on an air
quality study relevant to a grievance, the Board affirmed
the judge’s finding that the employer violated Section
8(a)(5) by refusing to provide the union a copy of the
study. The study included 12 pages of tabulations, which
the judge found would be laborious to copy by hand and
difficult to copy accurately. Stella’s 19-page financial
statement at issue here similarly includes information in
numerical format and is longer than the 12 pages of tabu-
lations in Union Switch & Signal, supra.
Even assuming, as Stella claims, that much of the
document consisted of data bearing no relevance to bar-
gaining, the document itself was relevant. Stella made it
so by claiming inability to pay. That settled, the only
issue is whether the Union was entitled to possession of
its own copy. For the reasons stated by the judge, we
agree that it was.
The only reason Stella gave for refusing to give the
Union its own copy was a need for confidentiality. And
although Stella emphasizes the judge’s finding that its
concerns on that score were “legitimate,” they are weak.
First, as stated above, the judge also found that Stella had
distributed a 1-page summary of the financial statement
to the Union and to its employees, and that this summary

14 The judge properly found that the 2007 financial statement was
governed by American Telephone & Telegraph, supra. There, although
the employer permitted the union to review and copy data from re-
quested employee records relevant to grievances, the Board found that
the employer violated Sec. 8(a)(5) by refusing union requests for pho-
tocopies of the records. The Board specifically endorsed the judge’s
finding that “sound policy dictates that required documentary informa-
tion should be generally furnished by photocopy,” except for “unusual
cases due to lack of photocopying equipment or because of undue in-
convenience to the furnisher of information.” 250 NLRB at 47, enfd.
Communication Workers Local 1051 v. NLRB, 644 F.2d 923, 924 (1st
Cir. 1981). Underlying this finding was “the almost universal practice
of most businesses of using photocopying equipment in copying docu-
ments and the obligation of employers to apply no lesser degree of
‘diligence and promptness’ in bargaining matters than in ‘other busi-
ness affairs of importance.’” See also Carpenters Local 35 (Construc-
tion Employers Assn. of California), 317 NLRB 18 (1995). Here, Stella
did not assert that it lacked photocopying equipment or that photocopy-
ing its financial statement would be unduly inconvenient.
showed the exact amount of Stella’s loss, “the main item
[Stella] sought to conceal from its vendors, customers,
and competitors.” Second, the Union offered to sign a
confidentiality agreement, and Stella has never claimed
grounds for believing that the Union would not honor
such an agreement. Indeed, Jacoby conceded in his tes-
timony that he had no reason not to trust the Union in
this regard. Accordingly, we adopt the judge’s conclu-
sion that Stella did not satisfy its duty to furnish the 2007
audited financial statement and therefore violated Section
8(a)(5) and (1) of the Act.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
We shall order the Respondent to provide the Union
with a copy of its 2007 audited financial report.
We shall also order that the Respondent immediately
and unconditionally reinstate all employees who partici-
pated in the unfair labor practice strike that began on
August 13, 2008,15 and make them whole for any loss of
earnings and other benefits from and after May 6, 2009,
the date the strikers made their unconditional offer to
return to work, with backpay computed on a quarterly
basis as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent’s unlawful refusal
to provide the Union with requested relevant information
precluded a lawful bargaining impasse, and accordingly
that the Respondent was not free to implement the terms
and conditions of its final offer on August 27, 2008, we
shall also order that the Respondent restore all the terms
and conditions in the contract that expired, after exten-
sion, on July 31, 2008, and maintain them unless and
until the parties bargain in good faith to an agreement or
lawful impasse. We shall also order the Respondent to
make employees whole for any loss of earnings and other
benefits resulting from its unlawful unilateral changes as
prescribed in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest
as computed in New Horizons for the Retarded, supra.
Inasmuch as the terms of the final offer implemented
on August 27, 2008, included cessation of contributions
to the Union Health Fund, we shall order the Respondent
to make whole its unit employees by making all such
delinquent fund contributions on behalf of unit employ-

15 The judge’s decision states that the strike began August 14. As
noted by Stella in its exceptions brief, the record establishes that the
strike began August 13.
STELLA D’ORO BISCUIT CO. 775
ees that have not been made since that date, including
any additional amounts due the fund in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). We shall also order the Respondent to reimburse
unit employees for any expenses ensuing from its failure
to make the required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be
computed in the manner set forth in Ogle Protection Ser-
vice, supra, with interest as prescribed in New Horizons
for the Retarded, supra.16
ORDER
The National Labor Relations Board orders that the
Respondent, Stella D’oro Biscuit Company, Inc., Bronx,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Local 50, Bakery, Con-
fectionery, Tobacco Workers and Grain Millers Interna-
tional, AFL–CIO (the Union) by failing and refusing to
promptly furnish, on request, information necessary and
relevant to the Union’s performance of its duties as the
exclusive collective-bargaining representative of em-
ployees in the unit set forth below.
(b) Unilaterally implementing changes in the terms and
conditions of employment of the unit employees as pro-
vided for in the collective-bargaining agreement that
expired, after extension, on July 31, 2008.
(c) Failing or refusing to immediately reinstate em-
ployees engaged in an unfair labor practice strike upon
their unconditional offer to return to work.
(d) 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 the Union a copy of the Respondent’s 2007
audited financial statement.
(b) Upon request of the Union, rescind any and all
changes in unit employees’ terms and conditions of em-
ployment implemented on and since August 27, 2008,
and restore and maintain the terms and conditions of the
contract that expired, after extension, on July 31, 2008,
unless and until the parties bargain in good faith to an
agreement or lawful impasse concerning any proposed
changes thereto.

16 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Employer’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
(c) Make unit employees whole, with interest, for any
loss of earnings and other benefits resulting from its
unlawful unilateral changes, in the manner set forth in
the amended remedy section of this decision.
(d) Make all delinquent Union Health Fund contribu-
tions that have not been made since August 27, 2008,
including any additional amounts due the Fund in accor-
dance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979), and make employees whole for any
out-of-pocket expenses ensuing from the failure to make
the required fund contributions, in the manner set forth in
the amended remedy section of this decision.
(e) Before making any changes in wages, hours, or
other terms and conditions of employment of employees
in the following appropriate bargaining unit, meet and
bargain in good faith with the Union as the exclusive
collective-bargaining representative of those employees
and, if an understanding is reached, embody such under-
standing in a signed agreement:

Included: All employees employed by the Employer at
its plant at 184 West 237th Street, Borough of the
Bronx, City of New York.

Excluded: All other employees employed in a strictly
supervisory capacity, salespersons, drivers, auto me-
chanics, clerical and office employees, production
managers, supervisory maintenance mechanics, engi-
neers, professionals, security guards, and contingent,
part-time employees as provided in the parties’ collec-
tive-bargaining agreement.

(f) Within 14 days from the date of this Order, offer all
employees who participated in the unfair labor practice
strike that commenced August 13, 2008, full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed, dismissing, if necessary, any employees hired to
replace them.
(g) Make each of the unfair labor practice strikers
whole for any loss of earnings and other benefits suffered
as a result of the Respondent’s unlawful failure to rein-
state them on their unconditional offer to return to work,
in the manner set forth in the amended remedy section of
this decision.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facility in Bronx, New York, copies of the attached
notice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 May 30, 2008.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER SCHAUMBER, dissenting.
Contrary to my colleagues, I would dismiss, on two
separate grounds, the complaint allegation that the Re-
spondent violated the Act by refusing to furnish the Un-
ion with its audited 2007 financial statement. First, the
Respondent’s statements in its negotiations with the Un-
ion, taken as a whole, did not amount to a claim of in-
ability to pay within the meaning of Board precedent.
Consequently, the Respondent had no obligation to pro-
vide information supporting such a claim. Second, even
if the Respondent had made a claim of inability to pay,
its offer to allow the Union’s representatives and experts
to review and take notes on the requested financial
statement was fully responsive to the information re-
quest. Therefore, I would reverse the judge’s finding
that the Respondent violated Section 8(a)(5) of the Act
by failing to provide information. I would further dis-
miss the entire complaint, as the other violations found
by the judge and affirmed by my colleagues all are predi-
cated on the alleged unlawful refusal to provide informa-
tion.

17 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
I. FACTS
The facts pertinent to the alleged refusal to provide in-
formation may be summarized as follows. The Respon-
dent, which owns and operates a bakery plant, was ac-
quired by private equity firm Brynwood Partners (Bryn-
wood) in January 2006. Brynwood buys companies with
the objective of improving their financial condition and
selling them at a profit in 5 to 10 years.
At the time of the purchase, the Respondent and the
Union were parties to a collective-bargaining agreement
running from June 29, 2005, to June 29, 2008 (and later
extended to July 31, 2008). Beginning in May 2008,1 the
Respondent and the Union held a series of bargaining
sessions to negotiate a new collective-bargaining agree-
ment. The Respondent’s labor counsel, Mark Jacoby,
was its chief spokesman. Henk Hartong, who was both a
Brynwood managing partner and chairman of the Re-
spondent’s board of directors, participated in many of the
bargaining sessions.
On May 12, prior to the first bargaining session, Har-
tong and Dan Myers, the Respondent’s chief operating
officer, visited the Union’s offices. They introduced
themselves to Union President Joyce Alston and Secre-
tary-Treasurer Calvin Williams and gave them two
documents, a financial summary and a document con-
cerning automation.
At the first bargaining session, on May 30, the Re-
spondent distributed the financial summary document to
the union bargaining committee and discussed the docu-
ment. Jacoby explained that Brynwood bought the Re-
spondent as a distressed asset suffering operating losses,
with the goal of making the business profitable within 5
to 10 years. The financial summary showed that the Re-
spondent lost $1.5 million in fiscal year 2007. It also
showed that the Respondent’s net sales had steadily de-
clined from $76.7 million in 1992 to $29 million in 2006
and $24 million in 2007, while the prices of ingredients
for its products doubled from October 2006 to February
2008, and its transportation costs had increased steadily
from January 2007 to March 2008. Jacoby described
measures that the Respondent under Brynwood’s owner-
ship had taken to improve its financial condition, includ-
ing introducing new products, raising prices, substituting
independent distributors for its in-house trucking system,
and investing substantial capital in new automated pack-
aging equipment. Jacoby further explained that, as part
of its efforts to improve its financial condition, the Re-
spondent’s bargaining objective was to modify its wage
structure and reduce overall labor costs. According to
Alston, Jacoby also said that the Respondent could not

1 All dates are in 2008, unless otherwise indicated.
STELLA D’ORO BISCUIT CO. 777
go on with the business unless it was able to further re-
duce costs and that it had to reduce the costs of the labor
agreement in order to stay in business.2 Alston asked to
see documentation supporting the Respondent’s financial
summary. Jacoby agreed to present the Respondent’s
financial statement, on which the financial summary was
based, at the next bargaining session.
On June 4, at the second bargaining session, Jacoby
presented the Respondent’s audited 2007 financial state-
ment, which consisted of 19 pages, including the cover
and table of contents. He stated that he would allow the
Union’s representatives to examine it and take notes but
not photocopy or keep the document. Jacoby showed
Alston that the figures in the previously distributed fi-
nancial summary document matched the figures in the
audited financial statement. The financial figures all
appeared on a single page of the report. Alston stated
that she wanted the Union’s attorney and accountant to
examine the statement. Jacoby offered to make the fi-
nancial statement available to the Union at his office for
review. Alston agreed to that procedure.
The Respondent also presented its first economic pro-
posal at the June 4 bargaining session. The proposal
included a 5-year contract, a three-tier wage and benefit
structure, and a reduction in vacation and sick days.
Jacoby explained that the Respondent was prepared to
fund losses in the short term and make investments to
obtain a return on its investment, but needed a longer
contract so that it could see “light at the end of the tun-
nel.” Jacoby stated that Brynwood was “not going to go
on forever funding losses.” According to Alston, Jacoby
stated that the Respondent’s proposal represented a sav-
ings of $1.5 million in labor costs that the Respondent
needed in order to survive.
The third bargaining session took place on June 17.
The Union presented its proposal for a new contract,
which included certain wage and benefit increases and a
3-year contract term. Alston offered to come to Jacoby’s
office with an accountant or attorney on June 19 to ex-
amine the Respondent’s financial statement.
Union Attorney Louie Nikolaidis subsequently advised
Alston that the Union had a right to be provided a copy
of the Respondent’s financial statement. Nikolaidis tele-
phoned Jacoby and informed him that the Respondent
was obligated to provide the Union a copy of the finan-
cial statement and that Jacoby’s offer to allow the Union
merely to view it was unacceptable. Consequently, no
union representatives visited Jacoby’s office to examine
the document.

2 The judge credited the testimony of union witnesses Alston, Wil-
liams, and Filippou but found that their testimony was essentially simi-
lar to the testimony of the Respondent’s witnesses.
At the fourth bargaining session, on July 8, Jacoby said
that he was disappointed that union representatives had
not visited his office to view the financial statement.
Alston reiterated that the Union had a right to receive a
copy of the financial statement. Regarding the Respon-
dent’s contract proposal, union committee member Mi-
chael Filippou observed that the Respondent could make
a profit by simply closing the facility and selling its
brand and real estate, but it could realize a greater profit
if it obtained the contract concessions it was seeking and
sold the business as a going concern. In response, Har-
tong acknowledged that, while closing the business and
selling its assets had been an option since the beginning
of Brynwood’s ownership, Brynwood’s preference was
to continue investing funds in the Respondent and to sell
it as a profitable company in 5 to 10 years.
On July 22, at the fifth bargaining session, the Re-
spondent modified its wage and benefit proposal for the
first year of the contract. Its proposal included ceasing
participation in the Union Pension Plan. Noting that
ceasing participation in the plan would trigger a $6 mil-
lion withdrawal liability, Jacoby stated that the Respon-
dent was willing to incur the withdrawal liability to re-
duce its future cost structure. The Union also presented a
modified proposal, adding a substantial wage increase.
On July 23, at the sixth bargaining session, the Re-
spondent again modified its wage and benefit proposal.
In turn, the Union offered to freeze wages for the first
year of the contract and to reduce its paid holiday and
sick day demands by 1 day each. Jacoby responded that
the Union’s offer did not go far enough.
The Union held a meeting with the unit employees on
July 26 to discuss the Respondent’s contract offer. After
discussion, the employees voted to reject the offer and to
strike.
The Respondent and the Union met with a mediator on
August 6 and 22, but there was no movement in the par-
ties’ positions. The employees went on strike on Au-
gust 14. The Respondent unilaterally implemented its
final contract offer on August 27.
On December 4, in the context of bargaining over ad-
ditional changes, Union Attorney Nikolaidis examined
the Respondent’s financial statement during a bargaining
session. At Nikolaidis’ request, Jacoby, on December
16, sent the financial statement to Union Accountant
Greg Auteri under an agreement that he could take notes
but not photocopy it. Auteri returned the financial state-
ment to Jacoby on January 21, 2009.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778
II. DISCUSSION
A. The Respondent did not Claim an
Inability to Pay
It is well established that where an employer’s bar-
gaining position is based upon an unwillingness to pay,
as opposed to an inability to pay, an employer is under
no obligation to furnish a union with corporate financial
information.3 Here, the record shows that, in its contract
negotiations with the Union, the Respondent was not
arguing that it lacked funding to yield to the Union’s
demands. To the contrary, the Respondent made clear
that Brynwood was willing to invest substantial amounts
in the Company, with a time horizon for achieving prof-
itability within 5 to 10 years. Brynwood, thus, clearly
anticipated that the Respondent might operate at a loss
for a number of years and that it would have to under-
write those losses. Moreover, Brynwood already had
funded a $3.1 million capital expenditure for the Re-
spondent’s new automated packaging equipment, and
indicated its willingness to absorb a $6 million with-
drawal liability to extricate the Respondent from the Un-
ion Pension Plan. Thus, the Respondent plainly was not
contending that it lacked funds to meet the Union’s con-
tract demands. Rather, it was arguing that it would not,
as a matter of business judgment, continue to invest in
the business if the wage scales and labor costs were not
restructured to help achieve profitability. Thus, the Re-
spondent based its bargaining position on what it was
“willing to pay,” not what it was “able to pay.”
To be sure, the Respondent made statements during
bargaining sessions indicating that it was losing money
and that it needed concessions from the Union to become
profitable. However, it never claimed a present inability
to pay the wages and benefits that the Union was request-
ing. Rather, the statements merely reflected the Respon-
dent’s unwillingness to indefinitely continue operating at
a loss, and its desire to achieve profitability within 5 to
10 years.
Moreover, even if one could construe the Respon-
dent’s statements as indicating an inability to pay at
some point, the Board has made clear, as the majority
concedes, that “‘[i]nability to pay’ means that the com-
pany presently has insufficient assets to pay or that it
would have insufficient assets to pay during the life of

3 See Nielsen Lithographing Co., 305 NLRB 697, 700 (1991), affd.
sub nom. Graphic Communications Local 508 v. NLRB, 977 F.2d 1168
(7th Cir. 1992) (“The difference between the two types of claims is
critical. The employer who claims a present inability to pay, or a pro-
spective inability to pay during the life of the contract being negotiated,
is claiming essentially that it cannot pay. By contrast, the employer
who claims only economic difficulties or business losses or the pros-
pect of layoffs is simply saying that it does not want to pay.”).
the contract that is being negotiated.” AMF Trucking &
Warehousing, Inc., 342 NLRB 1125, 1126 (2004) (em-
phasis added). Here, the Union sought a contract of a 3-
year duration, and the Respondent sought a 5-year con-
tract. But, as the Respondent’s stated goal was to make
the Respondent profitable in 5 to 10 years, it clearly con-
templated operating at a loss for possibly longer than 5
years. Thus, the judge’s conclusion, on which the major-
ity relies, that Brynwood was willing to fund continued
losses only for a duration shorter than 5 years is unsup-
ported by the record.4 Consequently, the Respondent’s
statements did not constitute a claim of inability to pay
such as to give rise to an obligation to provide supporting
information.
B. The Respondent’s Offer was Sufficient
Assuming arguendo that the Respondent made a claim
of inability to pay, its offer to allow the Union and its
experts to view and take notes on its audited 2007 finan-
cial statement satisfied any obligation it had to provide
the Union substantiating information. An employer is
not obligated to provide information in the exact form
requested by the union. Rather, “[i]t is sufficient if the
information is made available in a manner not so burden-
some or time-consuming as to impede the process of
bargaining.” Cincinnati Steel Castings Co., 86 NLRB
592, 593 (1949).5 Thus, depending on the nature and
volume of the information requested, in some cases it is
necessary for the employer to provide a copy of the in-
formation to the union,6 while in others it is sufficient to
allow the union to view and take notes on the informa-
tion.7 This case falls in the latter category.
At the June 4, 2008 bargaining session, the Respon-
dent showed Union President Alston the operating loss
data in its audited 2007 financial statement and matched
those figures with the operating loss figures set forth in
the financial summary document provided earlier.
Alston saw that the figures in the audited 2007 financial
statement and the figures in the presentation handout
matched. Thus, by the second bargaining session, Alston

4 While, as the judge stated, the Respondent “sought concessions for
the term of its proposed 5-year contract hoping to become profitable
during that period” (emphasis added), the 5-year timeframe for profit-
ability was merely a hope, not a deadline.
5 See also Detroit Edison Co. v. NLRB, 440 U.S. 301, 314 (1979)
(“union’s bare assertion that it needs information . . . does not auto-
matically oblige the employer to supply all the information in the man-
ner requested”).
6 See Union Switch & Signal, Inc., 316 NLRB 1025 (1995); Ameri-
can Telephone & Telegraph Co., 250 NLRB 47, 54 (1980), enfd. sub
nom. Communication Workers Local 1051 v. NLRB, 644 F.2d 923 (1st
Cir. 1981).
7 See Roadway Express, 275 NLRB 1107, 1107 fn. 4 (1985); Aber-
crombie & Fitch Co., 206 NLRB 464 (1973).
STELLA D’ORO BISCUIT CO. 779
had fully corroborated the financial data contained in the
summary document, which verified that the Respondent
had incurred an operating loss of more than $1.5 million
in 2007. The Union, therefore, had all the information it
needed to confirm the Respondent’s assertion that it was
losing money.
Even though the Respondent had already shown
Alston the relevant supporting documentation from its
financial statement, the Respondent went even further
and offered to make the complete financial statement
available to the Union and its experts for examination
and note taking at Jacoby’s office. Alston agreed to this
proposal at the June 4 bargaining session and reiterated
her acceptance at the June 17 bargaining session. Visit-
ing Jacoby’s office to examine the financial statement
would have imposed little burden on the Union’s attor-
ney or accountant, as their offices were in midtown
Manhattan near Jacoby’s office. Nevertheless, Alston
subsequently reneged on her agreement, and the Union
never took advantage of the Respondent’s offer to exam-
ine and take notes on the financial statement.
Had the Union’s attorney or accountant examined the
financial statement, they would undoubtedly have found
that it was a straightforward and uncomplicated docu-
ment that could easily be reviewed in one visit. Contrary
to the judge’s finding, the financial statement was not a
detailed, complex document, especially for an attorney or
accountant familiar with financial statements. As noted
above, it consisted of only 19 pages, 2 of which were the
cover page and the table of contents. Moreover, a single
page of the financial statement, the “statement of opera-
tions” section, was the source of the figures in the finan-
cial summary document given to the union bargaining
committee that showed that the Respondent was losing
money.
Consequently, the financial statement appropriately
falls into the same category as the similarly straightfor-
ward documents in Abercrombie & Fitch Co., 206 NLRB
464 (1973), and Roadway Express, 275 NLRB 1107,
1107 fn. 4 (1985). The Board in each of those cases
found it sufficient for the employer to allow the union to
view the documents without being furnished copies.
Like the documents in those cases, the Respondent’s
financial statement is sufficiently short and understand-
able that it could have been reviewed in a brief session,
especially by an experienced accountant.8
For the reasons stated above, I find that the Respon-
dent’s statements did not amount to a claim of inability
to pay and that its offer to allow the Union and its experts

8 Union Switch & Signal, Inc., 316 NLRB 1025 (1995), relied upon
by the majority is inapposite. There, the document in question was a
highly complex and technical scientific air quality study.
to view and take notes on the Respondent’s audited 2007
financial statement satisfied any obligation the Respon-
dent would have had if it had made such a claim. Ac-
cordingly, I would dismiss the complaint.
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
activities.

WE WILL NOT refuse to bargain with Local 50, Bakery,
Confectionery, Tobacco Workers and Grain Millers In-
ternational, AFL–CIO by failing and refusing to
promptly furnish, on request, information necessary and
relevant to the Union’s performance of its duties as the
exclusive collective-bargaining representative of our
employees in the unit set forth below.
WE WILL NOT unilaterally implement changes in the
terms and conditions of employment of our unit employ-
ees as provided for in the collective-bargaining agree-
ment that expired, after extension, on July 31, 2008.
WE WILL NOT fail or refuse to immediately reinstate
employees engaged in an unfair labor practice strike
upon their unconditional offer to return to work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above, which are guaranteed you by Section 7
of the Act.
WE WILL furnish the Union a copy of our 2007 audited
financial statement.
WE WILL, upon request of the Union, rescind any and
all changes in unit employees’ terms and conditions of
employment made on and since August 27, 2008, and
restore and maintain the terms and conditions of the con-
tract that expired, after extension, on July 31, 2008,
unless and until we bargain with the Union in good faith
to an agreement or lawful impasse concerning any pro-
posed changes thereto.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 780
WE WILL make unit employees whole, with interest,
for any loss of earnings and other benefits resulting from
our unlawful unilateral changes.
WE WILL make all delinquent Union Health Fund con-
tributions that have not been made since August 27,
2008, including any additional amounts due the Fund as
provided for in the Board’s Order.
WE WILL reimburse, with interest, any of you who in-
curred out-of-pocket expenses because of our discon-
tinuation of contributions to the Health Fund.
WE WILL, before making any changes in wages, hours,
or other terms and conditions of employment of our em-
ployees in the following bargaining unit, meet and bar-
gain in good faith with the Union as the exclusive collec-
tive-bargaining representative of those employees and, if
an understanding is reached, embody such understanding
in a signed agreement:

Included: All employees employed by us at our plant at
184 West 237th Street, Borough of the Bronx, City of
New York.

Excluded: All other employees employed in a strictly
supervisory capacity, salespersons, drivers, auto me-
chanics, clerical and office employees, production
managers, supervisory maintenance mechanics, engi-
neers, professionals, security guards, and contingent,
part-time employees as provided in the parties’ collec-
tive-bargaining agreement.

WE WILL, within 14 days from the date of the Board’s
Order, offer all employees who participated in the unfair
labor practice strike that commenced August 13, 2008,
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, dismissing, if necessary,
any employees hired to replace them.
WE WILL make each of the unfair labor practice strik-
ers whole for any loss of earnings and other benefits suf-
fered as a result of our unlawful failure to reinstate them
on their unconditional offer to return to work, less any
net interim earnings, plus interest.

STELLA D’ORO BISCUIT COMPANY, INC.

Suzanne K. Sullivan, Esq., for the General Counsel.
Lawrence J. Baer and Mark A. Jacoby, Esqs. (Weil, Gotshal &
Manges, LLP), of New York, New York, for the Respon-
dent.
Louie Nikolaidis, Esq. (Lewis, Clifton & Nikolaidis, P.C.), of
New York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on September 12, 2008, and an amended charge
filed on February 17, 2009, by Local 50, Bakery, Confection-
ery, Tobacco Workers and Grain Millers International, AFL–
CIO (Union), a complaint was issued by Region 2 of the Board
on March 13, 2009 against Stella D’oro Biscuit Company, Inc.
(Respondent or Employer). An amended complaint was there-
after issued on May 7, 2009, and an Order Correcting the Re-
medial Paragraph of the amended complaint was issued on May
8, 2009.
The complaint, as amended, alleges essentially that on May
30, 2008, the Respondent and the Union began negotiations for
a renewal collective-bargaining agreement to replace the
agreement which was due to expire on June 29, 2008.1 The
complaint further alleges that on May 30 and continuing
throughout the negotiations, the Respondent’s bargaining repre-
sentatives informed the Union that “concessionary bargaining
was necessary because the Respondent claimed inability to pay
the costs of the collective-bargaining agreement due to expire.”
The complaint further alleges that on May 30, and through-
out the negotiations, the Union’s President Joyce Alston ver-
bally requested that the Respondent verify its claim of financial
inability to pay by providing the Union with documentation to
support its bargaining position and economic proposal, and that
the Respondent verbally failed and refused to furnish the Union
with the information requested.
It is further alleged that the employees began a strike on Au-
gust 14 which was caused by the Respondent’s failure and re-
fusal to furnish the information as set forth above, and that on
August 27, the Respondent unlawfully declared impasse, uni-
laterally implemented a wage schedule, and stopped contribut-
ing to the Union Health Fund for the unit employees.
Finally, it is alleged that on May 1, 2009, the Union made an
unconditional offer to return to work on behalf of the striking
employees and that since May 6, the Respondent has failed and
refused to reinstate the employees to their former positions of
employment.
The Respondent’s answer denied the material allegations of
the complaint, and on May 12–15, 2009, a hearing was held
before me in New York, New York.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation having an office
and place of business located at 184 West 237th Street, Bronx,
New York, has been engaged in the manufacture of baked
goods. Annually, the Respondent derives gross revenues in
excess of $1,000,000 from its business operations and pur-
chases and receives at its New York facility goods and materi-

1 All dates hereafter are in 2008, unless otherwise stated.
STELLA D’ORO BISCUIT CO. 781
als valued in excess of $50,000 directly from suppliers located
outside New York. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. The Employer also admits and
I find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Stella D’oro company was family owned at its inception
decades ago. It was purchased by Nabisco which later sold it to
Kraft Foods Global, Inc. In January 2006, Kraft sold the com-
pany to Brynwood Partners, a private equity investment firm.
Brynwood solicits investors and uses the funds received to
purchase various “portfolio” companies, one of which is Stella
D’oro. Its objective is to improve the financial condition of the
acquired company and then sell it at a profit in 5 to 10 years.
For at least the past 10 years, the Union has been the exclu-
sive collective-bargaining representative of the approximately
134 employees employed at the company in the following ad-
mittedly appropriate collective-bargaining unit:

Included: All employees employed by the Employer at its
plant at 184 West 237th Street, Borough of the Bronx, City of
New York.

Excluded: All other employees employed in a strictly supervi-
sory capacity, salespersons, drivers, auto mechanics, clerical
and office employees, production managers, supervisory
maintenance mechanics, engineers, professionals, security
guards, and contingent, part-time employees as provided in
the parties’ collective-bargaining agreement.

The most recent collective-bargaining agreement ran from
June 29, 2005, to June 29, 2008.
B. The Bargaining Sessions
Six bargaining sessions were held before the August 14
strike, and two bargaining meetings took place after the strike.
The Respondent’s chief spokesperson was Mark Jacoby, its
labor counsel. Accompanying him were Henk Hartong, a man-
aging partner of Brynwood and chairman of the board of direc-
tors of the Respondent, and Dan Myers, its chief operating
officer. The Union’s chief spokesperson was its president,
Joyce Alston. Other attendees for the Union were Calvin Wil-
liams, its secretary-treasurer, and shop committee members-
employees Raymond Amerino, Michael Filippou, Alonzo Go-
mez, and Gurdip Mann. Union attorney Louie Nikolaidis was
present at only the last two sessions in December.
Prior to the first bargaining session, Hartong and Myers vis-
ited the Union’s office on May 12 and met with Alston and
Williams. According to the Union’s witnesses, it was a very
short visit at which the Respondent’s representatives introduced
themselves and said that they sought to make the Employer a
“viable business” and wanted to work together with the Union
in an ongoing relationship. Williams conceded that Hartong left
two documents with them including a financial summary and
perhaps a document concerning automation. Williams said that
Hartong went through the documents quickly and left them
with the Union agents.
In contrast, Hartong testified that he went into detail about
the two documents, one a financial summary and the other a
presentation about automation. Those documents were later
presented at the first bargaining session. It is not necessary to
resolve this dispute as the documents were admittedly reviewed
in detail during the bargaining sessions. The fact that a “pre-
view” of the Respondent’s financial condition may have been
given to the Union prior to bargaining is of no moment.
1. The bargaining session of May 30
According to Union President Alston, Hartong stated that
Brynwood bought a “troubled business” and the Employer was
losing money. Hartong also said that the Employer “can’t sur-
vive under the current labor contract” and that the Respondent
is not in business to sustain losses. Jacoby said that the Em-
ployer “could not go on with the business unless [it was] able to
further reduce costs.” It had to “reduce the costs of the labor
agreement in order for [it] to stay in business.” Employee Filip-
pou quoted Jacoby as saying “the business is not too good. We
losing money. We losing about a million or a million and a
half. And, if we don’t recover that kind of money, then we may
have to close.”
Jacoby described Brynwood as an investor whose purpose is
to make an investment and receive a return on that investment.
He described the Employer as a “bleeding, distressed asset—a
losing proposition” which suffered operating losses. He ex-
pressed Brynwood’s goal to “turn this business around” so that
it could continue to operate and be profitable when it was even-
tually sold.
Jacoby testified that he set forth the ways in which the Em-
ployer attempted to improve its financial condition. It intro-
duced new products and raised the prices of Stella D’oro prod-
ucts twice and intended to raise prices again in September.
Also, the Employer invested $3.1 million in automated
equipment in order to save money and cut costs. It also reduced
the number of employees at its headquarters and eliminated
administrative positions. In addition, Jacoby noted that the
Employer saved money by closing its in-house trucking distri-
bution system and replacing it with independent distributors.
Jacoby said that despite these measures the Employer was still
not profitable, and it had to address its labor costs. Hartong
noted that Jacoby said that in spite of all the measures the Em-
ployer was taking to improve its performance it will “require a
collective effort” in making it profitable and viable. He also
stated that Alston remarked that “we are in concessionary bar-
gaining.” Alston denied making that comment.
Two documents were distributed. One was a financial pres-
entation, and the other a presentation concerning automation.
The documents were explained in detail.
The automation document showed a schematic drawing of
the layout of new machinery expected to be installed in June
2008, a description and pictures of the equipment, and a chart
listing the numbers of employees in various job classifications
employed before the installation of the equipment and expected
to be used after its installation. The document also set forth the
expected effects of the new equipment: a work force reduction
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782
of 26 employees, increased production, reduction of worker’s
compensation risk, and improved material flow within the facil-
ity. Jacoby mentioned that the Employer was prepared to make
further investments in the Employer’s operations. Alston’s
reply to this presentation was that she was aware that the Re-
spondent had a right, under the contract, to install automated
equipment, but that it also was required to bargain over the
effects and conditions of such installation.
The financial document consisted of graphs and a “financial
summary” which stated that the Employer lost $1.5 million in
fiscal year 2007. The graphs showed that net sales had declined
steadily from $76.7 million in 1992 to $24 million in 2007.
Sales had declined from $29 million in 2006 to $24 million in
2007 in just the 2 years that the company had been owned by
Brynwood. The graphs further showed that from October 2006,
to February 2008, the prices of the ingredients of its products—
egg yolks, cake flour, bread flour, and palm shortening had
doubled. In addition, transportation costs such as diesel fuel for
the trucks which transported its products had gone up steadily
from January 2007, to late March 2008. When Hartong said
that commodities prices of its ingredients and fuel had in-
creased, Alston remarked that the employees too had to pay
higher prices for these items.
The document also showed that the Respondent had raised
prices 6.5 percent in July 2006, across its entire line of products
and at the same time eliminated a 5 percent cash discount it
offered to its customers. Further an 8.1 percent price increase
on certain products was imposed in September 2007, and an-
other 8.1 percent increase on other products was levied in
March 2008.
Finally, a “financial summary” page showed net sales of
$24,057,000, total cost of goods sold of $19,611,000 which
consisted of material of $8,212,000, labor of $8,475,000, and
factory overhead of $2,924,000, gross margin (profit) of
$4,446,000, operating expenses of $6,013,000, and a loss from
operations of $1,567,000.
Hartong testified that on May 30, the numbers set forth in the
financial summary were presented to the entire work force.
Alston testified that Jacoby pointed to the $1.5 million loss
as a reason why the Respondent needed to “restructure” its
labor costs. According to Alston, Jacoby said that the Employer
required savings in its labor costs or it would “not be going
forward with the business.”
Jacoby outlined the three areas he believed were needed to
be included in a collective-bargaining agreement in order to
modify the wage structure and reduce overall labor costs: (a) a
6-day workweek which would reduce the amount of overtime
being earned in the current 5-day week; (b) a multitier wage
proposal because the current wage structure was “overly com-
pacted” with the wage levels of the most skilled workers being
very close to the wages of the least skilled. He noted that the
least skilled employees were overpaid. Jacoby testified that the
Employer sought a wage structure that was more competitive
with wage rates in the market place; and (c) lower benefit levels
because they were too costly, with health and welfare and pen-
sion costs being about $10 per hour.
Alston told Jacoby that the employees earned their benefits
after long periods of service to the Employer, but Jacoby in-
sisted that the Employer was losing money and its investors
sought to turn the company around but needed an “adjustment”
in the labor costs.
In response to the review of the financial document pre-
sented, Alston said that the written presentation “tells us noth-
ing,” explaining that she did not know the Employer’s true
operating expenses and that she needed further financial docu-
mentation to fully explain the items listed in the financial sum-
mary and to support the information provided. She stated that
the Union needed the information in order to prove that the
Employer was, in fact, losing the amount of money represented
and that it needed savings to go forward with the business.
Jacoby replied that the items and numbers in the “financial
summary” were taken from the Respondent’s official financial
statements. Alston asked to see those statements which sup-
ported the Respondent’s claim that it was losing $1.5 million.
Indeed, Alston stated that the sales figures were a “surprise and
shock” to her and the employee-committee. Alston testified that
she asked for the financial documentation at each of the six
bargaining sessions held before the strike.2
Union secretary-treasurer Williams essentially corroborated
Alston’s testimony, noting that she told Jacoby that if the Em-
ployer is claiming that it is losing money it should show the
Union its finances to support that assertion. Jacoby agreed to
present the supporting documentation at the next session.
Jacoby and Employer official Hartong conceded that Alston
asked to see the information that supported the losses claimed
in the financial presentation.
Hartong and Jacoby testified that neither of them said, at this
meeting or at any other time, that the Employer could not pay
its labor costs, or did not have the funding necessary to pay its
labor costs. Hartong stated that he advised the Union that the
Employer is a financial investor which has access to capital,
that it chooses where it wants to invest its money and that those
decisions are made based on where it can generate a return on
its investment.
2. The bargaining session of June 4
The Employer presented its first economic proposal. Accord-
ing to Alston, Jacoby stated that this proposal represented a
savings in labor costs of $1.5 million or “concessions” that it
needed in order to “survive.”3 In fact, Alston stated that Jacoby
“reaffirmed” at every meeting that in order to survive and stay
in business it needed this level of concessions. As a result,
Alston believed that the Respondent “did not have the money to
go forward with this business unless we made those labor cost
reductions.”
Union official Williams testified that at this and at each ses-
sion Jacoby mentioned that the Employer was losing money
and could not continue to operate the business in that manner,
and wanted to “turn things around” so that it was making
money. He quoted Hartong as saying that the Respondent

2 The notes made by Alston at certain meetings do not reflect that
she asked for the financial documents at each of the meetings but it is
undisputed that she requested the documents during bargaining.
3 The proposal actually states that it has an annual impact of
$1,476,855, less than the $1.6 million allegedly required by the Re-
spondent.
STELLA D’ORO BISCUIT CO. 783
needed the concessions requested to see an improvement in the
business, and that they have been putting money into the busi-
ness and not receiving any money back or obtaining a profit.
According to Williams, Hartong said “we don’t buy companies
to take losses. We buy it to make a profit. And since we took
over since 2006, we have not made a profit.” He and employee
Filippou quoted Hartong as saying that if the company was not
making a profit he would take his “toy” and leave.
Hartong testified that he told the Union’s agents that the
Employer “was having financial challenges related to generat-
ing operating income, and that it was focused on rebuilding the
company’s financial performance in order to make it a viable
company,” and that in spite of the efforts the Employer had
already taken, it sought a “program that would help us to gen-
erate some savings.” Jacoby’s notes of this bargaining session
stated that the “financial picture is bleak and gotten worse over
the time since Stella D’oro acquired from Kraft. Lost $6 for
every $100 product sold in 2007.” Jacoby conceded saying in
this meeting that the owners were “not going to go on forever
funding losses.”
The Employer’s proposal set forth the following:

(a) A five-year contract. Jacoby explained that the
Employer was prepared to fund losses in the short term
and make investments in order to obtain a return on its in-
vestment, but needed a longer contract so that it could see
“light at the end of the tunnel.”
(b) A three-tier wage and benefit structure consisting
of current employees (Tier 1), new and recalled employees
(Tier 2), and “contingent” part-time employees (Tier 3).
(c) For Tier 1 employees, a wage schedule providing
for wage reductions of 5% to 30% for all employees in the
first year of the contract, and a 30 cent per hour raise in
years two, three, four and five of the contract.
(d) For Tier 2 and 3 employees, a set wage scale in the
first year, and a 30 cent per hour increase in each of the
succeeding four years. The first year new employee rate
was less than the current employee rate.
(e) Tier 3 employees do not receive any benefits. Tier
1 and 2 employees receive the following benefits:
a. Health and Welfare: For Tier 1 and 2 employees, the
Employer contribution would be $5.30 per hour compared
to its current $6.63 contribution with employees paying
any sum over $5.30 per hour.
b. Pension—For Tier 1 employees, the Employer
would contribute $2.73 per hour with the employee paying
any additional amount, in comparison with the current
$3.40 Employer contribution. Tier 2 employees would be
enrolled in the Employer’s 401(k) plan with employees
contributing to it with the Employer providing a matching
amount of up to 3% of their pay.
c. Paid Holidays—For Tier 1 and 2 employees, 10
holidays compared to the current 12.
d. Paid Sick Days—For Tier 1 and 2 employees, 4
days compared to the current 14 days.
e. Paid Vacation—For Tier 1 and 2 employees, a
maximum of 4 weeks compared to the current maximum
of 5 weeks.

Alston told Jacoby that if the Union accepted this proposal
the employees could no longer afford to live in New York.
Filippou quoted Jacoby as saying that if the Union did not agree
to its proposal “we [are] not going to be able to survive. We
might have to close the business.” Alston further remarked that
the proposal violated the International Union’s pension plan
agreement in that employees were prohibited from making
contributions to the plan, and the employees could not partici-
pate in a 401(k) plan without the Employer continuing to con-
tribute to the union pension plan. She also noted that the plan
required that if some employees are covered they all had to be
covered. That would mean that Tier 3 employees, as union
members, would have to pay the health benefits and pension
contributions if the Employer did not do so. Jacoby asked for
the name of the person at the pension plan who could verify
Alston’s claims and that information was given to him. There-
after, Jacoby received the information requested.
Alston testified that she told the Employer that it would incur
a withdrawal liability if it withdrew from the Union’s pension
plan or closed the facility, adding that the Employer’s represen-
tatives also said that “if they didn’t get the concessions” they
sought, “they would have to” close the business.
Alston asked for financial documentation which supported
the Employer’s level of concessions requested. Jacoby pre-
sented the audited financial statement of the Employer for the
year ending 2007. Union official Williams testified that Jacoby
put it in the middle of the table. Alston “went through” the
document briefly, but did not examine all the pages. Employee
committee member Filippou testified that Alston opened the
book and she and Filippou looked at it and immediately noticed
that it contained too many numbers and “stuff we didn’t under-
stand.” Jacoby told her she could look at it but it could not re-
main in her possession when he left. Jacoby offered to let her
look at it “all day” while the Employer waited.
Alston conceded that Jacoby brought that document to sev-
eral bargaining sessions and invited her to stay after the session
and look at the document and take notes. Alston declined, tell-
ing him that it made no sense for her to review it since she did
not know what to look for, did not know what she was looking
at, was not a “financial expert,” and preferred to have her attor-
ney and accountant review it. The audited financial statement
for 2007 presented by the Respondent at the bargaining ses-
sions consists of 19 pages and includes the auditors’ report,
detailed balance sheets, statements of operations, statements of
stockholders’ equity, statements of cash flows containing ex-
tensive numerical figures, a summary of significant accounting
policies, and notes to financial statements.
In this regard, Alston and Calvin Williams testified that they
are not accountants and have no familiarity with complex fi-
nancial statements such as the one presented. Williams testified
that as secretary-treasurer of the Union and trustee of the Un-
ion’s health and welfare plan, he maintains the Union’s books
and records, reviews invoices and signs checks, and is respon-
sible for money received and expended by the Union. Although
he testified that he attends trustee meetings and reviews the
financial statements of the Union and the fund and confirms
that the books are accurate, another trustee is responsible for
the financial reports. Further, his involvement in financial mat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784
ters is limited to recording what money is received and spent by
the Union each month and what invoices are paid. Every 2
months the Union’s accountant reviews the records and ensures
that the books are properly maintained. He does not compile the
information regarding financial matters.
Alston further stated that Jacoby said that the supporting fi-
nancial documents are available in his office at which she, the
Union’s attorney or accountant could take notes. However,
Jacoby denied permission to Alston or her attorney or account-
ant to make copies of the financial statements. Alston agreed to
that procedure.
Alston testified that later in the negotiations, Jacoby offered
to send the documents by courier to the International Union or
whoever Alston wanted to see them, and the courier would wait
while they were reviewed and notes taken by the recipient.
However, no copies could be made. Jacoby told her that the
documents would be available at his office; she did not recall
him saying that they would be available at the Employer’s
premises. Alston also stated that later in the negotiation proc-
ess, Jacoby offered to bring the documents to the negotiating
session where she could review them and take notes. She told
him that she could not adequately get the information she
needed by reviewing them and taking notes. She told him that
she did not have the “expertise” to examine the documents
since she did not know what to look for, adding that the Union
had the right to the documents. He did not offer that she could
bring her accountant or attorney to the bargaining sessions to
look at them.
Alston offered to sign a confidentiality agreement stating
that no one else would look at the document but the Union’s
attorney and accountant. Jacoby testified that he replied that
inasmuch as the Employer was a privately-held company, and
the report was private information, the financial report was
confidential containing financial information which he did not
want revealed, being particularly concerned that the informa-
tion might be disclosed to the Employer’s competitors, vendors
or customers.4 He added that confidentiality agreements are
hard to enforce, hard to prove, and that it was difficult to obtain
damages for a violation of such a clause. Alston denied that she
would do so, saying that any disclosure would hurt the employ-
ees the Union represents.
Hartong and Jacoby testified that Alston asked to see a copy
of the financial statement for 2007 and further asked that the
Union’s accountant or attorney review it. Jacoby told her that
the Union’s committee and experts could look at the documents
and take notes but he would not provide a copy.
Jacoby showed Alston that the numbers in the “financial
summary” page of the document previously shown to Alston at
the May 30 meeting matched the numbers in the “statement of
operations” section of the audited financial statement. Specifi-
cally, the figures for net sales, cost of sales, gross profit (mar-
gin), operating expenses, and loss from operations were identi-
cal.

4 Jacoby noted that if vendors became aware that the Respondent
was operating at a loss, they might refuse to extend credit, and if com-
petitors and customers had such information, customers could be per-
suaded to purchase products elsewhere.
Alston insisted on having the Union’s expert look at the
document. Jacoby repeated his offer to have them look at the
document in the bargaining room and also in his office or the
plant, but that they could not make copies. Hartong also con-
firmed that Alston offered to sign a confidentiality agreement
and Jacoby refused on the ground that if the company’s com-
petitors, vendors, or customers learned of its losses it could
harm the company. Jacoby testified that he expected, at that
time, that the Union would honor any confidentiality agreement
it entered into.
Hartong was asked why, if the Employer presented the num-
bers on the “financial summary” to the entire work force on
May 30, it refused to provide a copy of the entire 2007 audited
financial statement to the Union thereafter. He testified that the
financial summary contained limited, incomplete data which
did not include the balance sheet and cash flow statement and
management comments which were contained in the audited
statement.
Alston conceded that she agreed to have the Union’s attorney
and accountant visit Jacoby’s office for the purpose of review-
ing the documents.
3. The bargaining session of June 17
The Union presented its proposals for a new contract. They
included:

(a) A three year contract.
(b) Maintain the existing Health & Welfare Benefits in
the current contract.
(c) Add a Retiree Health Benefit provision.
(d) Increase the Employer’s contributions to the pen-
sion plan by $100 each year.
(e) Unspecified increases in wages in certain job clas-
sifications.
(f) Employer contribution to the 401(k) plan.
(g) Add two paid personal days.
(h) Unspecified increase in severance pay.

According to Alston, Jacoby made no specific response to
the proposal, but said that the parties have a “long road to go”
and that if the Employer was unable to obtain the kind of con-
cessions it needed it would “get rid of the business.”
Jacoby testified that the Union’s proposal would result in an
increase in labor costs causing the Employer to be unable to
receive a return on its investment. The notes he made while at
that bargaining session state “if not making profit, close and
sell . . . bleeding badly—not going to go on—time doesn’t
make money . . .—question: will be do people want to work
here or not, even if pay is less.” Jacoby testified that he made
these notes during a management caucus in the bargaining ses-
sion “as an outline of what I was going to say, in checklist . . .
when I came out and spoke to them. Sometimes, I’ll create a
checklist of comments that I’m going to address. I definitely
spoke about these topics.” He stated that when he spoke to the
Union he “clearly elaborated” on those notes.
According to Jacoby, Alston said that she had to educate the
employees that the Employer would be engaging in “conces-
sionary bargaining.” Alston denied making that statement.
STELLA D’ORO BISCUIT CO. 785
The parties executed an agreement extending the collective-
bargaining agreement, scheduled to expire on June 29, for 1
month, to July 31.
The Union canceled the next bargaining session set for June
19. According to Jacoby, Alston offered to come to his office
on that day with an accountant or an attorney to look at the
documents. Alston admits that she offered to do so, but then
called Union attorney Nikolaidis and advised him that, at bar-
gaining, the Employer claimed that it could not afford to pay
and that without significant concessions it would close its busi-
ness. She told Nikolaidis that she asked to see financial records
to substantiate those statements and the Employer refused to
provide them with a copy to keep. Alston stated that Nikolaidis
advised that the Union had the right to be provided with a copy
and was not limited to looking at the documents and making
notes.
Nikolaidis phoned Jacoby on June 18. He testified that he
told Jacoby that the Employer was alleging an inability to pay
and was therefore obligated to supply a copy of its financial
documents. Jacoby replied that the Employer did not have an
obligation to supply the Union with documentation. He gave
undenied testimony that he told Nikolaidis that the Employer
had not claimed an inability to pay or lack of funding, and that
the Employer’s bargaining position was simply a decision by its
investment managers as to how to deploy their assets. Niko-
laidis repeated Alston’s offer to sign a confidentiality agree-
ment. Nikolaidis quoted Jacoby as saying that such agreements
are ineffectual, and denied that the Employer had an obligation
to supply the documents, but rather making them available in
his office was sufficient. Nikolaidis replied that the Employer
was required to give the Union a copy of the document for its
inspection. Jacoby testified that he told Nikolaidis that he had
invited Alston to have an accountant or attorney come to a bar-
gaining session or the plant or his office to view the documents.
Nikolaidis responded that that was unacceptable.
In fact, no visits were made to Jacoby’s office or the plant by
a Union accountant, attorney or other expert to view the finan-
cial document.
4. The bargaining session of July 8
Jacoby expressed his disappointment that no union agent vis-
ited his office to view the financial documents. Alston re-
quested the documents, saying that she believed that the Union
was entitled to a copy, and should not have to pay an account-
ant or attorney to sit in Jacoby’s office and take notes. Jacoby
and Hartong essentially confirmed that she made that statement.
Alston also noted that although she believed that the Union
was entitled to the documents she was prepared to continue to
bargain in an attempt to reach agreement on a new contract.5
According to Williams, Alston also said that she needed a copy
because she did not know what she was looking at and the size
of the document made looking at and understanding the infor-
mation contained therein difficult. Williams told Jacoby that he
was asking the Union to inform the workers that the Employer
is losing money, but the Union needed something to show

5 Williams testified that Alston made that comment at the next meet-
ing which was held on July 22.
them. According to Jacoby, Alston said that the Union would
not treat the bargaining as concessionary bargaining. Alston
denied making that statement.
Employee Filippou suggested that the Employer could close
the facility and sell its brand and real estate and make a profit,
or if it could obtain the concessions it sought, it could sell the
business for a greater profit. Hartong agreed that the Employer
could take that course of action but stated that it wanted to in-
vest in the operation and make it profitable. Hartong pointedly
responded to Filippou, saying “but you’re right, if we can’t do
that, then we have the other option of closing it and selling the
brand and selling the real estate and we’ll probably make a
profit that way too.” Jacoby admittedly responded to the “two-
alternative scenario painted by Filippou” by saying that the
employees’ choice in bargaining is to have jobs at lower pay or
no jobs at all.
Apparently a comparison of other similar companies was
made. Hartong offered the opinion that the Employer could not
compete with Nabisco or Pepperidge Farm because their labor
costs were much less. Alston replied that the International Un-
ion represents the employees at Nabisco, and that those workers
made more money and receive the same benefits as at the unit
employees here. She added that although Pepperidge Farm was
nonunion, its wages and benefits were comparable to those at
the Employer. She also said that the wage and benefit proposals
“cut too deep.”
Jacoby presented the Employer’s contract language proposal
in which he made changes to the expiring contract, including
the insertion of a broad management-rights clause. According
to Alston, Jacoby said that the Employer needed to have such
language in the contract in order to “go forward with the busi-
ness.”
5. The bargaining session of July 22
The Employer modified its wage and benefit proposal for the
first year of the contract as follows:

(a) The wage rates for all employees for the first year
of the contract were raised from the Employer’s offer of
June 4. However, as compared to the current wage rate,
the July 22 proposal raised wages 50 cents/hour for 6 posi-
tions; 75 cents/hour (20 positions); and $1.50/hour (11 po-
sitions).
(b) In addition, the July 22 proposal reduced wages in
the first year from the current rate by $2.42/hour (2 posi-
tions); $2.60/hour (3 positions); $3.04/hour (17 positions);
$3.18/hour (2 positions); $3.30/hour (7 positions);
$3.63/hr (7 positions); $3.72/hour (6 positions);
$3.74/hour (3 positions); and $3.91/hour (1 position).
(c) Further, the current wages of seven positions re-
mained the same in the first year as in the Employer’s July
22 proposal.
(d) Wage increases of 30 cents per hour for all classifi-
cations in each of the next four years of the contract.
(e) Cease participation in the Union’s health and wel-
fare plan. Implement an Employer plan with a 3% Em-
ployer match for all employees.
(f) Cease participation in the Union pension plan and
institute a 401(k) plan with a 3% Employer match.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786
(g) Paid holidays—10.
(h) Paid sick days—4.
(i) Paid vacation—maximum 4 weeks.

Again, according to Alston, Jacoby said that the Employer
needed to have these cost savings in order for the business to go
forward. Jacoby distributed information concerning the pro-
posed health and welfare plan. The Union asked for and re-
ceived the rates under COBRA in order to compare the pro-
posed rates to the current rates. Alston remarked that the Em-
ployer’s health and welfare plan appeared to be more costly to
the Employer than the Union’s current plan.
Alston also mentioned that if the Employer ceased its par-
ticipation in the Union’s pension plan it would incur a with-
drawal liability. Jacoby said that he believed that such liability
would be about $6 million. Union International Vice President
Art Montminy, who was present, agreed with that estimate.
Jacoby remarked that the Employer was willing to incur that
liability in order to reduce the Employer’s cost structure in the
future. According to Jacoby, Alston remarked that the Em-
ployer’s ceasing its contribution to the Union’s pension plan is
a “non-starter” for reaching agreement, and “we’re not going to
get a deal on that basis.”
Alston rejected the Employer’s proposed changes in contract
language, remarking that such changes, particularly in the man-
agement’s rights clause, were so broad that it would render the
Union “ineffective.” According to Alston, Jacoby replied that
the changes were needed so that it could “go forward.”
The Union presented a modified proposal. The proposal was
the same as that offered on June 17, with the addition of a “sub-
stantial” but without particulars, wage increase. Alston ex-
plained that the Union wanted to remain flexible concerning the
exact extent of the wage increases because it sought a “pack-
age” of important items such as pension and health and welfare,
and depending upon whether its demands in those areas were
met it would consider a lesser wage increase in order to main-
tain and “protect” employees’ existing benefits. Alston con-
ceded that its demands would not result in a decrease in the
Employer’s costs, but would increase them.
6. The bargaining session of July 23
The Employer presented another proposal for a 5-year con-
tract as follows:

(a) Wages: Certain wage rates were increased and oth-
ers were reduced from its July 22 proposal for the first
year of the contract. For example, of the 29 job classifica-
tions, the wage rate in one classification was raised, 21
were reduced, and 7 remained the same.6 The proposal
provided for wage raises of 30 cents per hour across the
board in the remaining 4 years of the contract.
(b) Maintain the existing Union health and welfare
plan with an Employer contribution of $5.30 per hour, and
an employee contribution of $1.33 per hour. The Em-
ployer would pay 80% of any increases in cost and the
employee would pay 20%.

6 The number of employees in each job category is set forth in GC
Exh. 5.
(c) Pension Plan—remain in the Union’s pension plan
with Employer contributions of $3.40 per hour.
(d) Paid holidays—Ten days, the same as in the Em-
ployer’s July 22 offer.
(e) Paid sick days—zero as compared to 4 in the Em-
ployer’s July 22 offer.
(f) Paid vacation—maximum 4 weeks, effective Janu-
ary 1, 2009.

Regarding the wage proposal, Jacoby’s explanation at trial
was that job classifications were reduced to three groupings
with the most skilled receiving a 50-cent wage raise in the first
year and 30-cent per hour increases in years 2–5; the mid-level
skilled group had its current wages frozen in the first year and
then raised by 30-cents per hour in the remaining years of the
contract; and the least skilled group suffered a drop in wages
from the current $18.74 to $14 per hour and then increased by
30-cents per hour in each year of the contract. There were other
refinements not relevant here. His notes of the bargaining ses-
sion state “need to fix to make it viable.” Those notes were
written in a management caucus as a “checklist” of what he
would say or topics he would cover with the Union.
Alston testified that she told Jacoby that “in order for us to
consider the type of concessions that [the Employer] was ask-
ing for, we need documentation. Our members would never
support or ratify a contract without us being able to prove that
this company really needed the type of concessions that they
were asking for.”
The Union made another proposal. It offered to freeze sala-
ries the first year with wage increases of 35 cents and 40 cents
per hour in the second and third years. The Union also offered
to have no increase in pension in the first and second years of
the contract and a $100 increase in the third year. The Union
further offered to reduce its paid holiday and sick day demands
by 1 day each. The Union did not agree to an employee contri-
bution to health and welfare benefits, and did not agree to re-
duce the amount of paid vacation. The Union also proposed that
the contract language remain the same.
According to Alston, Jacoby responded that the Union’s of-
fer did not go far enough and that the Employer needed $1.6
million in concessions, according to Alston, in order to “go
forward” with its business. He estimated that by the end of the
Union’s proposed 3-year contract the Union’s proposals would
cost $750,000 higher than the costs under the expiring contract.
According to Jacoby, he made another proposal, and the Un-
ion made another counteroffer. Jacoby responded that the Un-
ion’s proposal is “adding significant costs and it’s nowhere near
. . . and we need some help . . . in terms of negotiating for the
future that this proposal doesn’t provide.” He concluded by
saying that his last proposal was the Employer’s final proposal
and it would make no further changes. He asked Alston to take
that offer to the membership for a vote. Hartong testified that at
this meeting the parties agreed that they were at an impasse in
bargaining.
STELLA D’ORO BISCUIT CO. 787
C. The Authorization to Strike and the Strike Vote
1. The union meeting of July 12
In the event the employees decided to strike, permission to
do so must first be obtained from the International Union. Un-
ion official Williams held such a meeting on July 12. Its pur-
pose was to hold a vote on a request for permission to strike,
and not a vote to actually engage in a strike. The employees
voted to engage in a strike if one was authorized. That day,
Alston wrote to the International Union advising that at the
meeting, 100 Union members in a unit of 120 were present, and
that those present voted unanimously for a strike. She requested
permission to strike.
On July 22, the International Union wrote to Alston approv-
ing the request for permission to strike “if and when final ad-
justment efforts fail. . . .”
2. The union meeting of July 26
Substantially all the unit employees attended a union meet-
ing at which Alston read, page-by-page, from the Employer’s
July 23 proposal, including the wages, benefits proposals, and
the changes in the contractual language proposed by the Em-
ployer, including the management’s rights clause. The purpose
of the meeting was for the unit to decide whether to accept or
reject the Employer’s proposal. Alston told those assembled the
following:

The Union had requested the financial documentation to sup-
port whether or not the company actually needed these type[s]
of concessions to stay in business. They had refused to supply
copies. They would only allow the Union to go to the com-
pany’s office and make Union’s accountant or the attorney go
to the company’s office and take notes. We didn’t think that
that was sufficient. We would be pursuing that by filing a
charge. We believed that they should be obligated and are ob-
ligated to provide us with that documentation so that we can
verify that when we come to them and say “look, they really
are in trouble. These are some real issues.” We could say that
to them. And, until that time, we could not do that. We felt
that the company had not negotiated in good faith. There
wasn’t any real negotiations. It’s basically here it is. This is
what we need and what we have to have. They did not pro-
vide us with the documentation that we needed to support the
kind of concessions that they were asking for.

According to Williams, Alston told those assembled that the
Union did not recommend that the employees accept the Em-
ployer’s last offer, but such a decision was up to the workers.
He stated that Alston told the employees that she asked for the
financial reports and offered to sign a confidentiality agree-
ment, asking “how could she inform the employees that the
Employer is losing money when I don’t have anything to show
them.” One employee asked how the Employer could tell them
prior to the negotiations that the business was “doing great” and
then when negotiations began, business was bad. Alston an-
swered that she could not answer that question. “I never got a
chance to look at the financial report.”
Employee Mesfun Kahssay was present at the meeting. Con-
firming Alston, Kahssay said that she explained all the terms of
the proposed contract in detail including the salary rates, bene-
fits, and the contract language proposed by the Employer. He
testified that Alston explained that the negotiations were diffi-
cult and the Employer was trying to take away most of their
benefits. She told them that the Respondent claimed it lost
money for the past 2 years and she requested proof of such loss,
but that the Employer refused to provide such evidence to the
Union. Alston added that if the Employer failed to provide such
proof it was very hard for the Union to determine whether it
actually lost money or to believe its claims of such loss.
Kahassay’s pretrial affidavit stated that inasmuch as the Em-
ployer’s proposal was not acceptable, the employees had “no
choice but to strike,” adding that Alston “said that the company
said that they didn’t make enough money last year and they
couldn’t pay us what we wanted. She said, we asked them to
show us the books if they were losing money. She said that the
company refused to provide the Union with the books. She
said, if they don’t provide us the books, there’s no way we can
verify if they are losing money or if they are making money.”
At hearing, Kahassay added that the employees had no choice
but to strike because of the economic basis of the proposal and
that the Employer did not want to “provide the evidence that
they lost money. That was the main point for me.” He added
that Alston told the workers that the Employer showed her
financial documents but that she was not an accountant and
could examine it but would not understand it. She told the
group that she told the Employer that she had to take the docu-
ment to someone “who’s qualified for this to understand” and
then she would respond to it.
Employee bargaining member Filippou testified that Alston
told the workers that since the Employer’s demands were so
great the Union asked to see its financial records and the Em-
ployer refused to do so, and she believed that it was not negoti-
ating in good faith. Later he testified that Alston told the em-
ployees that the Employer “refuse[d] to give us the books to
take it to our office, examine it”—“they offer us a book in the
negotiations, but they don’t allow us to take it to the Union
office.” His pretrial affidavit stated that “they refused to give us
the books. The only way to see the books is if we go to the
attorney’s office.”
The employees voted unanimously to reject the Employer’s
offer. Alston advised them that they could strike but the conse-
quences of the strike were “not easy,” the process was long and
difficult, they may not be successful, and the Employer could
replace them. She told them that the Union would be pursuing
the matter by filing a charge but cautioned that there was no
guarantee that a complaint would be issued, and even if it was,
the process would be “long and hard.” The employees then
voted unanimously to strike.
In the period September and October, the Union issued four
flyers which stated that the employees: (a) “were forced to
strike because of the unreasonable and unethical wage and
benefit cuts demanded by Brynwood and its captive Stella
D’oro management” (b) “were forced on strike because of the
unreasonable and unethical concessions demanded by its plant
management, led by Chief Operating Officer Dan Myers” (c)
“began a job action because of the unreasonable and unethical
concessions demanded by the company at the bargaining table”
and (d) “were forced on strike because of the unreasonable and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
unethical concessions demanded by its new owners private
equity company Brynwood Partners.” There was also evidence
that the strike signs used during the strike did not mention the
issue concerning the Respondent’s refusal to provide the Union
with a copy of its financial statement.
D. Subsequent Events
On July 31, the Union sent the Employer a 2-day notice, pur-
suant to provisions of its expired contract, that due to the expi-
ration of the extension agreement and the lack of progress dur-
ing negotiations, it would strike.7 The strike did not occur at
that time. A New York State mediator became involved and
asked Alston to withdraw the strike notice. Alston refused but
said that the Union would not strike if negotiations resumed.
On August 6, a session was held with a New York State me-
diator. Alston stated that no face-to-face negotiations were
held, although Jacoby testified that he reaffirmed his last offer,
adding that a part of that offer would remain on the table only
until August 20. No movement in the parties’ positions was
made. Alston stated that she told the mediator that the Union
did not have the financial documents to support the kind or
level of concessions the Employer sought, adding that the em-
ployees would not ratify a contract with the extent of conces-
sions demanded without verification that the Employer’s de-
mands were justified.
A second strike notice was sent on August 6, and on August
14 the employees went out on strike.
On August 22, another mediation session was held with a
different mediator. No face to face discussions were held, and
no movement in the parties’ positions took place.
On August 27, the Employer sent a letter to the Union and
the employees which stated that “in light of the continuing
impasse in negotiations, and the strike which has been ongoing
for two weeks, the Company has decided to proceed with im-
plementation, effective immediately, of changes in terms and
conditions of employment consistent with its last offer as pre-
sented at the bargaining session on July 23. . . .” The letter
added other particulars, including that health benefits would be
provided through an Employer plan as presented at the July 22
session, that pension benefits and contributions would remain
“unchanged at this time,” and that the language changes in the
contract presented on July 8 would also be implemented.
The complaint alleges that, by letter of August 27, the Re-
spondent unlawfully declared impasse, unilaterally imple-
mented a wage schedule, and stopped contributing to the Union
Health Fund for the unit employees.
On November 3, the Employer sent a letter to the Union
modifying its July 23 offer which was implemented by its Au-
gust 27 letter. The letter stated that the Employer “intends to
cease participation in the International Union’s Pension Fund
and will instead offer the unit employees the opportunity to
participate in the Employer’s Union Local 50 Retirement
401(k) Plan, amended to provide for an Employer match of
50% of the first 6% of pay the employee contributes to the plan
through salary deferral.” The letter noted that the Respondent

7 Alston stated that her term “lack of progress” referred to the fact
that the parties were far apart in their economic proposals.
intended to withdraw from the Pension Fund no later than No-
vember 30, 2008, and invited the Union to bargain over this
change or any other terms and conditions of employment.
The Union responded on November 6, saying that the Em-
ployer could not unilaterally terminate its participation in the
Pension Fund and was willing to negotiate this matter. The
letter stated that in order to make such bargaining “useful” it
needed information, including correspondence between the
Employer and the Pension Fund concerning possible with-
drawal from the Fund, correspondence between the Employer
and third parties concerning the Employer’s withdrawal, all
reports and studies concerning the Employer’s decision to
withdraw, a copy of the Employer’s most recent income tax
filings and the most recent financial statement and/or audit, and
any documents concerning the vested status of the Employer’s
employees in the Union’s Pension Fund. Thereafter, the Em-
ployer provided the information requested.
On December 4, the union committee with its attorney Niko-
laidis met with Jacoby. The 2007 financial statement was in the
possession of Nikolaidis during the day and was returned to
Jacoby at the end of the session. Jacoby gave undenied testi-
mony that he asked Nikolaidis if he needed more time to look
at the document and Nikolaidis said that he was finished taking
notes.
Nevertheless, Nikolaidis said that he wanted the document
sent to the Union’s accountant. Jacoby offered to send it with
the condition that no copies be made by the accountant, and
that the courier would wait while the accountant reviewed it
and then take it back with him. On December 16, Jacoby sent
union accountant Greg Auteri the 2007 audited financial state-
ment under an agreement that he could take notes but not pho-
tocopy it, promptly return it after his review, and use it only for
the purpose of consulting with the Union. Jacoby testified that
he agreed to send it to Auteri because he was an independent
Certified Public Accountant and not affiliated with the Union.
He further stated that the confidentiality of the statement was
less urgent at this time because the information was older, the
strike was well known to competitors, vendors, and customers,
and Auteri had agreed to confidential treatment of the docu-
ment. Auteri returned the document to Jacoby on about January
21, 2009.
E. The Offer to Return to Work
On May 1, 2009, the Union sent the following letter to the
Employer:

Please be advised that all of the Stella D’oro Biscuit Company
employees represented by Local 50, Bakery, Confectionary,
Tobacco Workers and Grain Millers, AFL–CIO are hereby
unconditionally offering to return to work immediately under
the terms of the June 29, 2005 through June 19, 2008 collec-
tive bargaining agreement. Please call my office so that we
can make arrangements for an orderly transition back to work.

On May 6, the Employer replied:
We are in receipt of your letter dated May 1, 2009 by which
you purport to convey an “unconditional” offer on behalf of
Stella D’oro’s striking employees to “return to work immedi-
ately under the terms of the June 29, 2005 through June 29,
STELLA D’ORO BISCUIT CO. 789
2008 collective bargaining agreement.” As you know, that
collective bargaining agreement expired without further ex-
tension on July 31, 2008, and Stella D’oro advised the Union
by letter dated August 27, 2008 that it was modifying the
terms of employment, as described in that letter, following the
impasse reached in negotiations. Accordingly the Company
regards your offer to be conditional, rather than unconditional,
and the Company does not accept the condition specified in
your letter.

The letter added that the Union declined to continue negotia-
tions after one meeting on March 24, 2009 with a mediator
appointed by Mayor Bloomberg, but the Employer remained
willing to resume negotiations in an effort to reach agreement
on a renewal of the contract and an end to the strike.
Analysis and Discussion
I. THE ISSUES TO BE DECIDED
The complaint sets forth certain specific allegations that the
Employer violated the Act. The decision in this case is based on
whether or not those allegations have been proven by the Gen-
eral Counsel. The decision is not based on whether the eco-
nomic demands of the Employer were excessive, unreasonable,
or unethical as set forth in the Union’s flyers.
The essential question before me is whether the Employer,
during negotiations for a new collective-bargaining agreement,
asserted that it was financially unable to pay more in wages and
benefits than it was offering, thereby triggering an obligation
under NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), to furnish
financial information that would enable the Union to evaluate
that assertion. If I find that it made such a claim of inability to
pay, the next question which must be answered is whether the
Union requested documentation to support that claim and
whether the Respondent unlawfully refused to supply such
information.
Other questions which must be decided include whether the
strike which ensued was caused by the Employer’s alleged
unfair labor practice of refusing to supply the information,
whether the Union’s offer to return to work was unconditional,
and whether the Employer unlawfully implemented its last
proposal without a valid impasse in bargaining having been
reached.
II. THE ALLEGED CLAIM OF INABILITY TO PAY
Where an employer, either in response to bargaining de-
mands from the union, or in support of its own proposals,
makes a claim of inability to pay, the duty to bargain in good
faith requires it to provide requested financial information to
substantiate its claim. Truitt, above.

In determining whether an employer has incurred a duty to
open its books, the Board examines whether the employer’s
communication, reasonably interpreted, communicates “fi-
nancial inability to meet the employees’ demand rather than
simple unwillingness to do so.”

No magic words are required to express an inability to pay so
long as the employer’s words and conduct [are] specific
enough to convey such a meaning. Atlanta Hilton & Tower,
271 NLRB 1600, 1602 (1984).

The standard that the Board uses is set forth in Neilsen
Lithographing Co., 305 NLRB 697, 701 (1991), in which it
stated that the Truitt duty to provide information arises “only
when the employer has signified that it is at present unable to
pay proposed wages and benefits.”
In Nielsen, the employer, although expressly stating that it
was profitable, asserted that it needed reductions in wages and
benefits to be competitive because it was losing business to
competitors. The Board, adopting the reasoning in NLRB v.
Harvstone Mfg. Corp., 785 F.2d 570, 576–577 (7th Cir. 1986),
held that in this context, the employer’s claim of inability to
compete, as well as its assertions of past and future job losses
because of this inability, did not amount to a claim of inability
to pay. 305 NLRB at 699–701, fn. 10. However, the Board
expressly disclaimed any intent to establish a per se rule in this
regard, instead adopting a totality of circumstances approach,
stating, at 700;

We do not say that claims of economic hardship or business
losses or the prospect of layoffs can never amount to a claim
of inability to pay. Depending on the facts and circumstances
of a particular case, the evidence may establish that the em-
ployer is asserting that the economic problems have led to an
inability to pay or will do so during the life of the contract be-
ing negotiated.

A claim that an employer “cannot, as opposed to will not,
pay a union’s proposed wage demand is not dependent on the
words used but rather on the substance of the employer’s asser-
tions. . . . Regardless of the words used, if an employer’s
claims can be interpreted either as a present inability to pay or a
prospective inability to pay during the contract term, it is obli-
gated to provide the union with data supporting its assertions.”
Conagra, Inc., 321 NLRB 944, 944 (1996).
Here, the Respondent’s statements during negotiations and
its bargaining posture compel a finding that in justifying the
concessions it sought, it effectively claimed a present inability
to pay the wages and benefits that the Union was requesting, or
an inability to pay during the life of the contract being negoti-
ated.
I credit the mutually consistent testimony of union witnesses
Alston, Williams, and Filippou who essentially stated that the
Respondent’s agents said that they could not continue to run the
business at a loss, it could not survive under the current labor
contract and had to reduce those costs to stay in business, that
the concessions it sought were needed for the survival of the
company and if it did not obtain them it would close, that it
required savings in its labor costs or it would not be going for-
ward, and it did not have the money to go forward with its
business unless it implemented the labor cost reductions it pro-
posed. As set forth below, their testimony in this regard is es-
sentially similar to the testimony of the Respondent’s wit-
nesses.
Respondent’s bargainers Jacoby and Hartong deny that they
made a claim at any time that the Respondent was unable to
afford the costs of the expiring contract. I agree that the Re-
spondent did not expressly plead an inability to pay. Rather, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
Respondent’s representatives asserted that the company had
lost money in each of the 2 years of its ownership, and had
undertaken cost-savings measures, but that it was still not prof-
itable and it needed to make significant reductions in its labor
costs in order to turn the company around and make the com-
pany profitable. They told the Union that the Employer was
prepared to fund its continued losses “in the short term,” that it
had already invested $3 million in new equipment and would
invest more money if there was a likelihood that such an in-
vestment would result in the Employer earning a profit.
However, the Respondent had alternative options “if Re-
spondent was unable to achieve the labor cost restructuring it
sought in bargaining, including closing the bakery operation
and selling the Stella D’oro brand and the real estate for a profit
on the price paid to Kraft to acquire the business.”8 In addition,
Jacoby informed the Union that the Employer bought a “dis-
tressed, bleeding” company which was losing money in the 2
years in which they owned it, that sales had declined and the
costs of producing its product had increased. He told the Union
that the Employer’s “financial picture is bleak and gotten
worse” and that if it was not making a profit, it could “close
and sell.”
Accordingly, the testimony of the Union’s witnesses is es-
sentially similar to the testimony of the Respondent’s wit-
nesses, who further said that the Union’s help was necessary to
make the Employer viable, it was experiencing financial chal-
lenges related to generating operating income, and it would not
go on forever funding losses. Further, if the Employer was not
making a profit, and if the concessions it sought were not
agreed to, an option it could consider is to close and sell the
brand and the real estate. In presenting its proposed conces-
sions, it asked whether the employees want to work here or not,
even if the pay is less.
It is important to note the context of bargaining which the
Respondent explained to the Union. It advised the Union that
the owners are investors who wanted to see a return on their
investment, but that the investors could not fund its continued
losses forever and that they chose where to invest their money.
At the same time, the Respondent made it very clear that it had
to reduce its $1.5 million loss by lessening its labor costs in
order to “turn the company around” and begin making a profit
within a “period of time.” The Respondent was apparently not
seeking to become profitable immediately and chose a 5-year
contract because it believed that it would take that amount of
time to achieve the actual labor cost reductions needed to “turn
the business around” and within that time hoped that the Em-
ployer would provide a “decent return on investment.” How-
ever, the Employer was not willing to maintain the current
terms and conditions for 5 years. It told the Union that if it did
not agree to the concessions sought it may close and the work-
ers may lose their jobs.
The clear implication from the above statements is that the
Respondent was currently operating at a loss and was willing to
fund its losses in the short term. Its proposed reductions in la-
bor costs were designed to reduce its losses and, over time,
achieve a profit. However, if the concessions it requested were

8 R. Br. 3.
not agreed to and if the Respondent was not able to achieve the
savings it sought and operate at a profit, its investors may
choose to cease funding the Employer’s losses and invest their
money elsewhere. By withdrawing their investment capital, the
Employer would no longer be able to afford to operate the busi-
ness. The end result, as stated by Jacoby at the June 17 bargain-
ing session, would be that if the Employer failed to make a
profit—“close and sell.”
The Respondent made it very clear to the Union that its fi-
nancial condition was “bleak.” Admittedly, the company, a
“bleeding, distressed asset,” when it was purchased by the Em-
ployer was losing money and continued to lose money in the 2
years of its ownership. The Respondent advised the Union’s
agents that in fiscal year 2007 its sales had declined $5 million,
and it had a net loss of $1.5 million. The Union was advised
that the investment company that purchased Stella D’oro was
willing to continue funding losses but would not do so “for-
ever,” adding that the business “was not going to go on, time
doesn’t make money” and “if not making profit, close and sell.”
Thus, the Respondent made a direct connection between its
need for significant labor-cost concessions and its immediate
financial condition. The Union was told that despite certain
cost-savings measures it had adopted, the Employer was still
not profitable. In addition, the Union was advised of the effect
of its financial condition on its business and the jobs of its em-
ployees. Thus, the Employer advised that its investors wanted
to see a return on their investment, they could not go on “for-
ever” funding the company’s losses but that they would do so
in the “short term.” If the Employer could not generate a profit
from the labor-cost concessions it sought and its other cost-
savings measures one option would be to close the plant and
sell the business, the real estate, and the brand.
Accordingly, the Respondent’s message to the Union was
that its need for labor-cost concessions was directly connected
to its immediate unprofitable economic condition. The Respon-
dent’s bargaining posture made it plain to the Union that if the
Employer’s significant concessions were not agreed to the in-
vestors could not achieve the savings they sought and would
cease funding the operation. The choice laid out was whether
the employees wanted “jobs at lower pay or no jobs at all.”
A reasonable employee or union official would interpret the
Employer’s statements to mean that without the concessions it
sought, there would be no future for it or jobs for its employees.
As set forth above, no magic words are required to express an
inability to pay. The Employer’s statements “reasonably inter-
preted” were “specific enough to convey” and “effectively
communicate” that it was unable to pay as an explanation to
justify the concessions it sought.
By stating that its future depended on the Union’s agreement
to its proposed concessions and that if it did not obtain the con-
cessions it sought it might close the business and dismiss its
employees, the Respondent clearly pleaded an inability to pay
within the meaning of Truitt.
The purpose of the Employer’s presentation was that the
concessions it sought were necessary to improve its financial
position and that such improvement was needed to permit the
company to continue in operations and to save jobs. In Nielsen,
the Board observed that “[n]othing in the employer’s] state-
STELLA D’ORO BISCUIT CO. 791
ments to the [u]nion . . . fairly suggests that the [employer]
would be unprofitable and thus unable to pay during the term of
the contract under negotiation. . . .” 305 NLRB at 701. That
language implies that if Nielsen had claimed unprofitability, the
Board may have found that it had thereby also claimed an in-
ability to pay. Nielsen and its progeny do not limit an inability
to pay claim to assertions of “immediate insolvency.” Rather, in
Nielsen, the Board adopted the approach of the Seventh Circuit
in NLRB v. Harvstone, above at 577, where the court held that
the relevant time period to determine the duty to furnish infor-
mation is that of the term of the new collective-bargaining
agreement. Burruss Transfer, Inc., 307 NLRB 226, 228 (1992),
confirmed this test—“the duty to provide financial information
under Truitt is triggered only where an employer claims it can-
not currently meet union demands or cannot satisfy those de-
mands during the term of the contract being negotiated.” The
Respondent sought concessions for the term of its proposed 5-
year contract hoping to become profitable during that period.
Clearly, if its concessions were not agreed to during bargaining
it could not hope to achieve profitability during a 5-year term
without, as happened here, unlawfully declaring impasse and
imposing the terms of a 5-year agreement.
The Respondent argues that its bargaining posture simply in-
dicated an unwillingness to consider more favorable economic
terms rather than an inability to pay. I do not agree. The Em-
ployer’s overall approach was one that emphasized the possibil-
ity that the company would not continue to operate if signifi-
cant concessions were not agreed to. Thus, its economic cir-
cumstances were characterized by the fact that the company
was losing money when it was purchased, it continued to suffer
a decline in sales, and had a net loss of $1.5 million in its cur-
rent fiscal year. Accordingly, the Respondent’s statements and
conduct clearly conveyed to the Union that the Respondent
pleaded an inability to pay for its continued operation as a justi-
fication for its requested concessions. Thus, when considered in
their entirety and as reasonably interpreted, the statements
made by the Respondent and its bargaining posture constituted
a claim of inability to pay which triggered an obligation by the
Respondent to provide the Union with the requested informa-
tion.
In this respect, in Cowin & Co., 277 NLRB 802 fn. 1 (1985),
is instructive. In finding that the employer expressed an inabil-
ity to pay, the Board noted that the employer stated that there
was a “real question of whether we shall be in business at the
termination of this contract unless prior contractual concepts
are radically changed.” The employer also “raised as justifica-
tions for its wage reduction proposals its financial losses for the
previous 3 years.”
Stroehmann Bakeries, Inc., 318 NLRB 1069, 1078–1079
(1995), is similar on its facts to this case. Stroehmann, a bakery
company, was a subsidiary of Weston Foods. Both Stroehmann
and Weston lost money from their operations due to reduced
sales, falling prices of its products and rising prices of its ingre-
dients. Nevertheless, Weston continued to fund Stroehmann’s
losses, but would not continue to do so without certain changes
including a drastic reduction in wages and benefits in order to
decrease its financial losses. The employer requested conces-
sions to reduce its losses. The Board found that the employer
based its contract proposals on financial hardship and an inabil-
ity to pay, holding that where an employer “predicates its bar-
gaining position as a matter of necessity by reason of current
alleged financial losses, the bargaining union is entitled to in-
formation. . . .”
The Board noted the similarity between Stroehmann and
Steelworkers Local 5571 v. NLRB (Stanley-Artex Windows),
401 F.2d 434, 436 (D.C. Cir. 1968), in which the employer
asserted that although its parent corporation was making
money, the employer involved was not and the employer had to
stand on its own. The court held that the contention that the
employer had to stand on its own and that it could not remain
competitive if it granted the union’s demands “puts ability to
pay in issue,” and the union’s request for information to verify
the employer’s losses was upheld. Similarly here, the investors
of the Respondent were not willing to fund its losses forever
and, apparently, if the concessions sought were not agreed to,
would invest their money elsewhere, thus leaving the Respon-
dent without funds to operate.
In Gas Spring Co., 296 NLRB 84, 97 (1989), where the em-
ployer was liquid although unprofitable, the Board stated that
“no matter what particular words have been said, when an em-
ployer has steadfastly relied on its own poor financial condition
and projected injury to its business, it has been required to pro-
duce information to support its claim.”
In Shell Co., 313 NLRB 133, 134 (1993), the Board found
that the employer “effectively pleaded that it was presently
unable to pay” when it told the union that economic conditions
had affected the company “very seriously,” and that its present
circumstances were “bad” and a “matter of survival.” As here,
the employer advised the union of the steps it had already taken
to cut its costs. The Board found that the “essential core of the
employer’s bargaining posture as a whole, as expressed to the
union, was grounded in assertions amounting to a claim that it
could not economically afford the most recent contract at its . . .
operation, that it was faced with a present threat to that opera-
tion’s survival, and that, therefore, it was at present unable to
pay those terms in the successor contract.” The Board’s finding
in Shell that the employer claimed an inability to pay was fur-
ther based on the “immediacy of the employer’s claims con-
cerning its operation’s present survival and critical condition.
Similarly, in Clemson Bros., 290 NLRB 944, 944 (1988), the
Board found that the employer, in telling the union that it had
sustained large losses over 4 years and had to substantially
reduce labor costs over the next 3 years “specifically linked its
bargaining position to economic hardship” by its “repeated
claims that, because of the plant’s unprofitability, it needed
concessions.” The Board held that such claims amounted to an
assertion of inability rather than unwillingness to pay. . . .”
In Lakeland Bus Lines, 335 NLRB 322, 323 (2001), the em-
ployer demanded a wage freeze and other concessions, saying
that the acceptance of that offer would enable the employer to
“bring the bottom line back into the black” so that employees
may “retain your jobs,” and that the employer’s future “de-
pends on it.” The Board found that by these statements the
employer “effectively communicated” and “reasonably con-
veyed” that the employer was losing money, was presently
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
unprofitable, and was unable to afford anything more than that
contained in its final offer.
9
To the same effect in Continental Winding Co., 305 NLRB
122, 125 (1991), the Board found that the employer “went be-
yond the expression of a mere unwillingness to pay wage in-
creases . . . and effectively conveyed to the union that it could
not at that time afford any increased labor costs. Continental’s
claim of inability to pay a wage increase was clearly grounded
in its then-current financial situation, and its statements during
bargaining plainly conveyed its then-inability to pay position.”
The Respondent cites cases to the contrary, including Nielsen
Lithographing Co., 305 NLRB 697, 701 (1991), where the
Board held that the Truitt obligation arises “only when the em-
ployer has signified that it is at present unable to pay proposed
wages and benefits. In Shell, above, the Board distinguished
Nielsen on the ground that the Nielsen employer stated that it
was still making a profit and the thrust of its economic asser-
tions related to its future economic competitiveness.
The Respondent also relies on North Star Steel Co., 347
NLRB 1364 (2006), and AMF Trucking & Warehousing, 342
NLRB 1125, 1126 (2004). AMF involved a company which had
purchased a business “in distress” and was “fighting to [stay]
alive.” In finding that no claim of present or future inability to
pay had been made, the Board noted that the employer must be
“incapable of meeting the union’s demands, and that the com-
pany 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 inability to pay is inextricably
linked to nonsurvival in business.” Further, the Board observed
that the employer has “neither claimed insufficient assets nor
stated that acquiescence to the union’s demands would cause it
to go out of business.” Here, in contrast, it may fairly be said
that if the Union did not agree to the Respondent’s demand for
concessions, the Respondent expressed that its investors would
take their money elsewhere, and it would close.
It has been noted that the Board’s decisions occasionally re-
sult in opposite conclusions on seemingly similar facts. Rich-
mond Times-Dispatch, 345 NLRB 195, 202 fn. 4. (2005). “The
Board cases in this area are difficult to reconcile.” Ameron Pipe
Products, 305 NLRB 105, 111 (1991); see also Lakeland Bus,
above, 335 NLRB at fn. 11, and the dissenting opinions in
Richmond Times-Dispatch, North Star Steel Co., and AMF
Trucking, above.
It is true that the Respondent claimed that it sought to reduce
its labor costs in order to maximize its profits. Such a goal does
not amount to an inability to pay unless the company “took the
position that the concessions it sought were linked to [its losing
money.]” Georgia-Pacific Corp., 305 NLRB 112, 116 (1991).
Here, it is clear that the Respondent made that connection.
Thus, Jacoby told the Union that in order to reverse the losses
the Employer was experiencing “we needed to address the re-

9 I am aware that the courts of appeals denied enforcement to the
Board’s decisions in ConAgra, Stroehmann, and Lakeland Bus. How-
ever, I am bound by Board precedent and not court of appeals law,
unless the Board’s decision is overruled by the Supreme Court. Iowa
Beef Packers, Inc., 144 NLRB 615, 616 (1963).
structuring of the labor costs10 that we believed was needed
together with a number of other actions . . . that were being
taken and would . . . have to be taken to make this company a
profitable company over a period of time.” In addition, Hartong
quoted Jacoby as saying that it would require a “collective ef-
fort” to make the Respondent profitable and viable. Thus, the
Respondent sought the concessions it proposed in order to re-
duce its $1.5 million loss and become profitable.
Where the employer’s “financial condition [is] a central is-
sue in the negotiations, as it related to the economic proposals
on which the parties could not agree” the documents supporting
that condition must be produced. Lakeland Bus, above at 326.
I accordingly find and conclude that the Respondent, during
negotiations for a new collective-bargaining agreement as-
serted, as justification for the concessions it sought, that it was
financially unable to pay more in wages and benefits than it
was offering.
Inasmuch as the Employer’s claim that its sales were declin-
ing and that it lost money in 2007 was relied on by it in seeking
concessions from the Union, the Union was justified in seeking
documentation in order to decide whether it should agree to
those concessions. Thus, financial documentation related to the
economic condition of the company was relevant to the bar-
gaining process.
Accordingly, I find that the Union justifiably sought the
documentation of such losses for two reasons. It wanted to
verify the Employer’s claims of economic distress, and then use
the documents to persuade its members that the concessions
sought were based in fact if that were the case. Thus, they
would be helpful for the Union to determine whether it should
agree to the concessions requested.
III. DID THE RESPONDENT FAIL AND REFUSE TO
FURNISH DOCUMENTS
The complaint alleges that on May 30, and throughout the
negotiations, the Union requested that the Respondent verify its
claim of financial inability to pay by providing the Union with
documentation to support its bargaining position and economic
proposal, and that the Respondent failed and refused to furnish
the Union with the information requested.
It is undisputed that at the first bargaining session on May
30, Alston asked to see financial documentation as proof that
the Respondent needed the concessions it sought. On June 4,
Jacoby brought the Respondent’s year ending 2007 audited
financial statement to the bargaining session held that day. It is
also undisputed that Jacoby offered to permit the Union’s bar-
gaining committee, its attorney and accountant to view the
document at each of the following bargaining sessions, and
offered to permit them to take an unlimited time to make notes
of the document, but would not permit a copy of the document
to be made. The Union declined the Employer’s offer to have
its attorney and accountant view the document at the bargaining
sessions or at Jacoby’s office or the plant.
It is also undisputed that Jacoby did not permit copies of the
document to be made at any time and did not release the docu-
ment to the Union or its agents until December, 2008, 4 months

10 Written as “labor cross” in the transcript.
STELLA D’ORO BISCUIT CO. 793
after the strike began when it sent it to the Union’s accountant.
It is further undisputed that Alston offered to sign a confidenti-
ality agreement and Jacoby refused.
Accordingly, the question is whether the limitations placed
on the Union’s examination of the document was lawful. Spe-
cifically, whether the Respondent’s refusal to permit the Union
to take the document and have its experts copy it constitutes an
unlawful failure and refusal to furnish the information. As set
forth above, Alston and Williams, who were permitted to view
the report, claimed that, as laypeople, they had no expertise in
the examination or understanding of complex financial state-
ments such as the one they were shown and therefore needed
the advice of the Union’s experts in interpreting the statement
and determining whether it supported the Respondent’s claim
that it had been losing money in the past 2 years.
An employer is not obligated to furnish information in the
exact form requested. When determining the lawfulness of the
form and manner in which an employer provides information,
the Board considers (a) the volume and nature of the informa-
tion involved (b) whether furnishing photocopies would have
given the union greater assurance of the accuracy and com-
pleteness of the information requested and (c) the comparative
cost and convenience to the employer and the union of provid-
ing copies rather than note-taking. American Telephone &
Telegraph Co., 250 NLRB 47, 54 (1980). In addition, the na-
ture of the information must be considered. Copies must be
furnished where reports consisted of many pages that could not
be assimilated in a brief review.
The Respondent’s reliance on Roadway Express, 275 NLRB
1107 fn. 4 (1985), and Abercrombie & Fitch Co., 206 NLRB
464 (1973), is misplaced. In both cases, the Board held that the
employers were not required to furnish photocopies of brief
documents consisting of a single-page customer letter which
could be “easily read and understood in a matter of minutes,”
and 3-1/2 pages of uncomplicated records with on-premise
examination and note-taking. Here, in contrast, the 19 pages of
detailed, complex financial figures and closely written auditor’s
notes were not susceptible of such easy and quick comprehen-
sion.
Similarly, the Respondent’s citation of NLRB v. St. Joseph’s
Hospital, 755 F.2d 260 (2d Cir. 1985), is inapplicable. That
case held that an employer acted lawfully in establishing certain
qualifications for the union’s auditor who was to examine the
employer’s financial records. The union in St. Joseph’s failed to
cooperate with the employer in reaching an accommodation as
to the qualifications of the records examiner. Here, in contrast,
the Union offered to sign a confidentiality agreement, and I find
that the Employer failed to present a reasonable explanation
why it would not accept such an accommodation. See Conagra,
Inc., 321 NLRB 944, 987 (1996), where the Board found that
the employer failed to establish a need for a confidentiality
agreement. The Union’s efforts to satisfy the Employer’s con-
cerns are much greater here, where the Union offered to sign
such an agreement.
The Union’s agents are not accountants, nor are they familiar
with complex financial documents. The document displayed
consisted of 19 pages of financial figures and reports. In re-
questing a copy of the document, the Union acted reasonably.
The 2007 financial statement contained complex information.
Apparently recognizing this, Jacoby permitted the Union and its
agents to take an unlimited amount of time to review it in per-
son and take notes. Alston and Williams declined that offer
upon the reasonable basis that they did not understand the
meaning of the document and did not know which parts were
important, or what to look for. They accordingly, properly
asked that a copy be made and shown to the Union’s attorney
and accountant.
Clearly, the cost of copying the document was negligible.
The benefit of the Union’s professionals having possession of a
copy was obvious. They could examine it in detail, verify the
Employer’s claims of financial distress and advise the Union on
its bargaining approach. There was no legitimate reason as to
why the Union’s attorney or accountant should have to travel to
the bargaining session, the plant or the Employer attorney’s
office to view the document and take notes.
I find no merit in the Respondent’s arguments justifying its
refusal to furnish a copy of the financial statement to the Union
or its professional advisers. First, I cannot find, as argued by
the Respondent, that the Union abandoned its request for the
documents by not requesting such documents after the July 8
meeting. Alston credibly testified that she requested a copy of
the document at each meeting. Indeed, after that time the Un-
ion’s attorney made a request on December 4, pursuant to
which a copy was sent to the Union’s accountant.
In addition, although Alston at first agreed to have the Un-
ion’s attorney or accountant visit Jacoby’s office to view the
document, she then understandably withdrew from that agree-
ment, stating that the Union should not have to pay for their
time in traveling to those locations.
In Pennsylvania Power Co., 301 NLRB 1104, 1105 (1991),
the Board held that where an employer alleges that certain re-
quested information is confidential, it is “required to balance a
union’s need for the information against any ‘legitimate and
substantial’ confidentiality interests established by the em-
ployer. . . . The party asserting confidentiality has the burden of
proof. Legitimate and substantial confidentiality and privacy
claims will be upheld, but blanket claims of confidentiality will
not. Further, a party refusing to supply information on confi-
dentiality grounds has a duty to seek an accommodation.”
Here, Jacoby refused to furnish a copy of the 2007 audited
financial statement on the ground that the information con-
tained therein was confidential, asserting that if the Employer’s
competitors, vendors, and suppliers became aware of the Re-
spondent’s poor financial condition, they would cease dealing
with it. These are legitimate concerns.
However, Alston agreed to sign a confidentiality agreement
ensuring that the document would not be disclosed. Jacoby
unreasonably refused to agree, citing the confidential nature of
the information set forth therein. He gave no compelling reason
why a confidentiality agreement would not suffice to satisfy the
Employer’s concerns. His stated reasons were that such agree-
ments were hard to enforce, hard to prove, and it would be
difficult to obtain damages for their breach. In Facet Enter-
prises, Inc., 290 NLRB 152, 165 (1988), the Board rejected the
employer’s restriction of the examination of certain information
to its office or its accountant’s office. The Board called the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
employer’s defense “specious” since it offered no support for
such a limitation including a refusal to agree to a confidentiality
agreement signed by the union’s attorneys. Here, there was no
proof that the Union could not be expected to honor its pro-
posed confidentiality agreement and upon rejecting its offer of
such an agreement the Employer did not claim that it could not
trust the Union. Island Creek Coal Co., 289 NLRB 851 fn. 1
(1988). That is an important factor in assessing the employer’s
confidentiality defense. Reiss Viking, 312 NLRB 622 fn. 4
(1993).
Moreover, the Respondent gave some of the same informa-
tion contained in its audited financial statement to its entire
work force on the first day of bargaining, May 30, when it dis-
closed the financial summary page of its presentation. That
document showed net sales of $24,057,000, total cost of goods
sold of $19,611,000, gross margin of $4,446,000, operating
expenses of $6,013,000, and a loss from operations of
$1,567,000. As Hartong testified, such data was much more
limited than that contained in the audited financial statement,
but, at a minimum, the summary’s release to the work force
served to show that not all the information in the financial
statement was considered confidential by the Employer. In fact,
the financial summary page shows the exact amount of its loss,
the main item the Employer sought to conceal from its vendors,
customers, and competitors.
Finally, I reject the Respondent’s argument that the Union
waived its request for the information by stating that it would
proceed with bargaining even though it did not receive a copy
of the financial statement. Alston testified as to the reality of
bargaining—the Union sought to reach agreement on a new
contract to replace the one that had already expired. She under-
standably would not withdraw from bargaining because the
Union did not receive a copy of the financial statement. By
continuing to bargain the Union did not waive its request for
the information that it requested. I further find, as alleged in the
complaint, that the information requested was necessary for,
and relevant to, the Union’s performance of its duties as the
collective-bargaining representative of the unit employees. The
information related directly to a critical issue in bargaining—
proof of the Respondent’s alleged inability to pay.
I accordingly find and conclude that the Respondent unlaw-
fully failed and refused to provide the requested information to
the Union by refusing to supply a copy of its 2007 audited fi-
nancial statement.
IV. WAS THERE A VALID IMPASSE
The complaint alleges that, by letter of August 27, the Re-
spondent unlawfully declared impasse, unilaterally imple-
mented a wage schedule, and stopped contributing to the Union
Health Fund for the unit employees.
As set forth above, on August 27, the Employer sent a letter
to the Union and the employees which stated that “in light of
the continuing impasse in negotiations, and the strike which has
been ongoing for 2 weeks, the Company has decided to proceed
with implementation, effective immediately, of changes in
terms and conditions of employment consistent with its last
offer as presented at the bargaining session on July 23. . . .” The
letter also stated that health benefits would be provided through
an Employer plan as presented at the July 22 session, and that
the language changes in the contract presented on July 8 would
also be implemented.
Inasmuch as I have found, above, that the Respondent has
claimed an inability to pay and has unlawfully failed to furnish
information to the Union by refusing to provide it with a copy
of its 2007 audited financial statement, it therefore follows that
no valid impasse in bargaining has taken place. In a Truitt case,
the Board found that the employer’s “refusal to bargain in good
faith by not providing the union with requested information
meant that no genuine impasse was reached in the negotiations
between the parties. Consequently, the respondent was not free
to unilaterally implement the changes it made in its employees’
wages and other terms and conditions of employment. In doing
so the respondent violated Section 8(a)(5) and (1) of the Act.”
United Stockyards Corp., 293 NLRB 1, 3 (1989).
In Wilshire Plaza Hotel, 353 NLRB 304, 305 (2008), the
Board held that “[A] finding of valid impasse is precluded
where the employer has failed to supply requested information
relevant to the core issues separating the parties.” Caldwell
Mfg. Co., 346 NLRB 1159, 1170 (2006). Here, the Union
sought information relating to the Employer’s financial condi-
tion in order to satisfy itself and its members that the Employer
was indeed justified in requesting that the Union agree to con-
cessions in wages and benefits. The parties were not able to
agree to the economic terms and conditions of a new contract.
If the Union was provided with a copy of the requested 2007
audited financial statement it may have amended its bargaining
position. Accordingly, the requested statement was related to
the core economic issues separating the parties.
It has been long held that an employer fails to meet its statu-
tory obligation to bargain in good faith when, absent an im-
passe in negotiations, it changes employees’ terms and condi-
tions of employment. NLRB v. Katz, 369 U.S. 736, 742–743
(1962). Inasmuch as no valid impasse could be reached since
the Employer did not provide the Union with a copy of its fi-
nancial statement, the Employer was not free to impose the
changes in working conditions set forth in its August 27 letter.
I accordingly find and conclude that no valid impasse in ne-
gotiations was reached, and the Employer unlawfully imple-
mented certain changes in its employees’ terms and conditions
of employment.
V. WAS THE STRIKE AN UNFAIR LABOR PRACTICE STRIKE
The complaint alleges that the employees’ strike was caused
by the Respondent’s failure and refusal to furnish the informa-
tion as set forth above.
It has been long held that a strike is an unfair labor practice
strike where the unfair labor practices were a “contributing
cause” of the strike. Larend Leisurelies v. NLRB, 523 F.2d 814,
820 (6th Cir. 1975). The Board stated that the “correct test” is
whether the strike is “caused in whole or in part” by an unfair
labor practice; whether the strike “was at least in part the direct
result of the employer’s unfair labor practices”; and whether the
employer’s unlawful conduct “played a part in the decision to
strike.” Boydston Electric, 331 NLRB 1450, 1452 (2000).
I credit Alston’s testimony that she told the workers in detail
at the July 26 union meeting that the Employer refused to sup-
STELLA D’ORO BISCUIT CO. 795
ply a copy of the requested financial document. Employees
Filippou and Kahssay corroborated such testimony, noting that
Alston told the employees that the Employer refused to permit
the Union to take the books to its office to examine them. Wil-
liams, on the other hand, testified that Alston said that she
never had an opportunity to look at the report. Of course,
Alston did view the document at the bargaining session. How-
ever, Williams also noted that Alston said that she had nothing
to show the workers regarding the Employer’s claimed losses.
That statement was correct in that she did not have a copy of
the financial statement to show the employees.
The Respondent argues that the Union’s flyers distributed af-
ter the strike began to establish that the reason for the strike
was not related to the Respondent’s alleged refusal to provide
financial documentation. As set forth in the flyers, above, the
strike was caused by the “unreasonable and unethical conces-
sions” demanded by the Employer. Further, the strike signs did
not refer to the refusal of the Employer to provide a copy of the
statement to the Union. The Board has held that “the absence of
picket sign language stating that the strike was in protest of an
unfair labor practice does not establish that unlawful conduct
was not a cause of the strike.” Child Development Council of
Northeastern Pennsylvania, 316 NLRB 1145 fn. 7 (1995). It
has also been noted that picket sign legends are “aimed at gen-
erating the broadest possible support for a labor organization’s
strike activity. They are a form of advertising. . . .” Decker
Coal Co., 301 NLRB 729, 748 (1991). In an appeal for “public
sympathy it was only natural that the union would emphasize
the economic issues involved in the negotiations, rather than
respondent’s failure to [supply information]—an issue which
might appear to be of little, if any, significance to the general
public.” Lifetime Door Co., 179 NLRB 518, 523 (1969).
I find that the Respondent’s position of being unable to pay
and failure to produce proof that it was unable to grant in-
creases and needed concessions constituted a substantial cause
of the strike. Gas Spring, above at 100; Genstar Stone Prod-
ucts, 317 NLRB 1293, 1294 (1995), where the Board found that
the employer was “seeking substantial concessions from the
union in the area of health care. It became a major dividing
point in negotiations. Further, union officials informed the
membership immediately prior to the . . . strike vote that the
respondent was bargaining in bad faith by failing to provide the
requested information. In these circumstances, we find that
there was a causal relationship between the respondent’s unfair
labor practices and the strike.”
Accordingly, I find that immediately prior to the strike vote,
Alston informed the employees of the Respondent’s failure to
provide the information requested in a form that could be util-
ized by the Union. Therefore a causal relationship existed be-
tween the advice given to the workers of the Respondent’s
unfair labor practice and the strike. Inasmuch as the Respon-
dent’s failure to provide a copy of its financial statement was an
unfair labor practice, it therefore follows that the strike was an
unfair labor practice strike from its inception.
The Respondent argues that the Union would have struck
even if it had furnished a copy of its financial statement. How-
ever, I find that what prevented progress in the negotiations was
the Union’s inability to present a copy of the Employer’s finan-
cial statement to the Union’s accountant and attorney for their
examination and report as to whether the Employer justifiably
demanded the concessions sought. If the Union had that docu-
ment and its experts concluded that the Respondent’s financial
situation required some or all of the concessions demanded, the
Union’s bargaining position may have been altered, agreement
reached, and a strike avoided.
VI. WAS THE OFFER TO RETURN TO WORK AN
UNCONDITIONAL OFFER
Finally, it is alleged that on May 1, 2009, the Union made an
unconditional offer to return to work on behalf of the striking
employees and that since May 6, the Respondent failed and
refused to reinstate the employees to their former positions of
employment.
“Under well-established Board law, an employer is required
to reinstate unfair labor practice strikers upon their uncondi-
tional offer to return to work.” Mastro Plastics Corp. v. NLRB,
350 U.S. 270, 278 (1956); NLRB v. Koenig Iron Works, Inc.,
681 F.2d 130, 145 (2d Cir. 1982); Boydston Electric, above at
1453.
Accordingly, an employer violates Section 8(a)(3) and (1) of
the Act when it fails to offer immediate reinstatement to unfair
labor practice strikers who have communicated to it their un-
conditional offers to return to work. NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 378 (1967); NLRB v. Glover Bottled Gas
Corp., 905 F.2d 681, 686 (2d Cir. 1990).
As set forth above, the Union offered to return to work under
the terms of the expired collective-bargaining agreement. The
Respondent rejected the offer on the grounds that it was inef-
fective and conditional because it insisted that the returning
employees work under the same wages and working conditions
that were in effect at the time the employees began their strike.
In identical circumstances, the Board found that such an of-
fer is unconditional where the employer unlawfully imple-
mented new terms and conditions, and the unfair labor strikers
offered to return to work under the “terms and conditions that
existed under the expired collective bargaining agreement.”
The Board stated that “an employer’s offer to reinstate unfair
labor practice strikers based on terms and conditions that have
been unlawfully imposed is not a valid offer.” The Board held
that the employees’ offer to return to work under the expired
contract’s terms was a valid unconditional offer. Spenton-
bush/Red Star Cos., 319 NLRB 988, 990 (1995); Alwin Mfg.
Co., 326 NLRB 646 fn. 2 (1998). Western Equipment Co., 152
NLRB 1014, 1015–1016 (1965).
The Board’s decision in Spentonbush is supported by well-
settled principles that once unfair labor practice strikers offer to
end their strike they are entitled to reinstatement to their origi-
nal, substantially equivalent, terms of employment. That ap-
plies to cases where, as here, the employer’s unlawful changes
were made after the employees began their strike. Brooks, Inc.,
228 NLRB 1365, 1368 (1977). Here, the Union simply insisted
on what the employees were legally entitled to—the restoration
of the terms and conditions that existed prior to the Employer’s
unlawful declaration of impasse.
Accordingly, I find that the Union’s offer in behalf of the
employees to return to work under the terms and conditions in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
the expired contract was unconditional and that the Respondent
was required to immediately reinstate them under the terms of
that contract. Spentonbush, above at 990. By refusing the Un-
ion’s unconditional offer, the Respondent violated Section 8(3)
and (1) of the Act.
CONCLUSIONS OF LAW
1. By failing and refusing to provide the Union with a copy
of its 2007 audited financial statement, the Respondent has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
2. By unlawfully declaring impasse on August 27, 2008, and
unilaterally implementing its own terms and conditions of em-
ployment, the Respondent violated Section 8(a)(5) and (1) of
the Act.
3. The strike which commenced on August 14, 2008, was
caused at least in part by the Respondent’s unfair labor prac-
tices as set forth in paragraph 1, above.
4. An unconditional offer to return to work was made by the
Union on May 1, 2009, on behalf of all the unfair labor practice
strikers.
5. By, since May 1, 2009, failing and refusing to offer to re-
instate the employees who engaged in an unfair labor practice
strike, the Respondent has violated Section 8(a)(3) and (1) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I shall order that the Respondent be ordered to provide the
Union with a copy of its 2007 audited financial report.
I shall also order that the Respondent immediately and un-
conditionally reinstate all employees who participated in the
unfair labor practice strike which began on August 14, 2008,
and make them whole for any loss of earnings and other bene-
fits from and after May 6, 2009, the date of receipt of their
unconditional offer to return to work, with backpay and interest
thereon computed on a quarterly basis as prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Inasmuch as I have found that the Respondent’s unlawful re-
fusal to provide the Union with information precluded a lawful
impasse, and that therefore the Respondent was not free to im-
pose its own terms and conditions of employment on August
27, 2008, I shall also order that the Respondent restore all the
terms and conditions in the contract that expired on June 29,
2008, and which was extended to July 31, 2008.
The General Counsel seeks compound interest computed on
a quarterly basis for any monetary awards. I deny this request
since the Board has not adopted such a remedy, adhering to its
current practice of assessing simple interest. Cox Ohio Publish-
ing, 354 NLRB No. 32, slip op. at 4 fn. 5 (2009); Glen Rock
Ham, 352 NLRB 516 fn. 1 (2008).
[Recommended Order omitted from publication.]