Coupled Products, LLC

National Labor Relations Board - Administrative Judge Opinions

Jun 20, 2012

25-CA-031883 (N.L.R.B. Jun. 20, 2012)

JD–33–12
Columbia City, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COUPLED PRODUCTS, LLC
and Cases 25–CA–31883
25–CA–62263
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW
Belinda Brown, Esq.,
for the Acting General Counsel.
Anthony Stites and Hillary Knipstein, Esqs,
for the Respondent.
Jeffrey Macey, Esq,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Fort Wayne,
Indiana, on April 2, 3, and 4, 2012. The International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (the Union) filed the charge in Case
25–CA–31883 on June 20, 20111 and filed the charge in Case 25–CA–62263 on August 4, 2011.
The Acting General Counsel issued an order consolidating cases, consolidated complaint and
notice of hearing (the complaint) on December 28, 2011.
The complaint alleges that since about May 24, 2011, Coupled Products, LLC (the
Respondent) has refused provide the Union with financial records in violation of Section 8(a)(5)
and (1) of the Act. The complaint also alleges that on or about June 20, 2011, the Respondent
unilaterally altered terms and conditions of employment including the reduction of wages, the
elimination of health insurance, the elimination of some paid holidays, and the reduction of paid
vacation, without reaching a valid impasse, in violation of Section 8(a)(5) and (1) of the Act.
Finally, the complaint alleges that the strike that began at the Respondent's facility in Columbia
City, Indiana, on June 17, 2011, is an unfair labor practice strike.2

1 All dates are in 2011 unless otherwise indicated.
2 On March 15, 2012, the Regional Director filed a petition for an injunction under Sec. 10(j) of the
Act regarding the allegations in a complaint in the United States District Court for the Northern District of
Indiana, Fort Wayne Division in Case 12CV0085. That matter is presently pending before the court.
JD–33–12
2
On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel in the Respondent, I make the
following
FINDINGS OF FACT5
I. JURISDICTION
The Respondent, a limited liability company, with an office and place of business in
Columbia City, Indiana, has been engaged in the manufacture of automobile and truck parts. 10
Annually, the Respondent sells and ships from its Columbia City, Indiana facility goods valued
in excess of $50,000 directly to points outside the State of Indiana. The Respondent admits, and I
find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the
Act. 15
II. ALLEGED UNFAIR LABOR PRACTICES
Background
20
The Respondent purchased its Columbia City, Indiana facility from the Dana Corporation
in 2007 and apparently assumed the existing collective bargaining agreement with the Union.4 In
2009 the Respondent and the Union negotiated a collective bargaining agreement effective from
June 17, 2009 through June 17, 2011 covering employees in the following unit:
25
All production and hourly employees employed by the Respondent at its 2651
South 600 E., Columbia City, Indiana, 46725 facility, as certified by the National
Labor Relations Board in Case No. 25–RC–6718 on November 14, 1977.
There are approximately 53 employees in the bargaining unit. The Respondent's 30
corporate offices are in Rochester Hills, Michigan. The Respondent is owned by Brad Ginsberg
and David Sinclair. Gustavo Ortiz is the Respondent's president. Tina Johnson is the director of
U.S. operations and highest-ranking individual at the Columbia City facility.
In 2009 and 2010 and Respondent consolidated operations from two Ohio facilities it was 35
operating at the time into the Columbia City facility. In October 2010 the only production
facilities Respondents operated were the Columbia City facility and another one located in San
Luis Petosi, Mexico.
On October 20, 2010, the Respondent notified the Union by letter that "based upon labor 40
costs, as well as other factors" the work currently being performed at the Columbia City facility
would be moved to its production facility in Mexico. In its letter, the Respondent offered to

3 On June 4, 2012, pursuant to a motion filed by the Respondent, I reopened the record to receive a
decision from the unemployment board of the State of Indiana (R. Exh.23) that issued on May 4, 2012,
after the record had closed in this case.
4 The Union has represented the unit employees at that facility since 1977.
JD–33–12
3
bargain over the effects of its decision (GC Exh. 3). In a document posted at the Columbia City
facility on October 28, 2010, the Respondent indicated that by moving the work from the
Columbia City facility to its facility in Mexico it would save over $2 million annually in labor
costs. This document further indicated that the Respondent would honor the current collective-
bargaining agreement unless or until it is altered by a subsequent agreement" (GC Exh. 4).5
In November 2010 the parties begin discussions regarding the closure of the Columbia
City facility. According to Johnson's uncontroverted testimony, which I credit, the Union's
bargaining committee was informed in late 2010 and early 2011 that while the Respondent as a
whole was making a profit, the Columbia City facility was losing money (Tr. 474–475). In this 10
connection, Johnson testified that in both 2010 and 2011 the Respondent was profitable.
At one of the meetings held in November 2010 Jeff Schrock and Ginny McMillin,
representatives of the International UAW, met with Ginsberg and Johnson. At this meeting, the
union representatives asked if there was any way that the Respondent would consider continuing15
to operate the Columbia City facility. Ginsberg indicated that he would be willing to continue to
operate Columbia City if it could operate at the breakeven point or a small loss, as he would like
to maintain a production facility in United States. The Respondent’s representatives indicated
that they would consider any Union proposals regarding the continued operation of the Columbia
City facility. After the meeting, on November 16, 2010, the Respondent's counsel sent a letter 20
again indicating that the Respondent would consider any proposal from the Union to keep the
plant open. Pursuant to the Union's request, the Respondent also submitted an unaudited profit-
and-loss statement for the Columbia City facility for the period from January to October 2010
(GC Exh. 5)
25
On January 11, 2011, the Union made a proposal to the Respondent regarding the
continued operation of the Columbia City facility. In its proposal, the Union offered to give up
the employees’ 10-minute paid lunch and have the work day extend from 6:30 a.m.to 2:50 p.m.
The Union estimated that this would save the Respondent approximately $36,000 annually. The
Respondent did not accept the Union's proposal and on January 18, 2011, submitted a 30
counterproposal. In its proposal the Respondent sought a 75-cent-an-hour reduction in pay for all
bargaining unit employees, which would increase by 6 cents an hour per week until the Union
accepted its proposal. The Respondent also proposed to eliminate its contribution to employee
health care insurance premiums, eliminate sickness and accident pay, reduce employees’
vacation time from a maximum 4 weeks to 2 weeks, eliminate several paid holidays and 35
eliminate paid bereavement leave. The Respondent also proposed changes in employee
classifications and a reduction of time in the notice period for layoffs. The Respondent advised
the Union that it would have to accept the entire proposal for the Columbia City facility to stay
open. (GC Exh. 7.)
40
On January 24, 2011, the Union replied by indicating it could not accept the Respondent's
proposal and submitted a counterproposal. The Union did not offer any wage concessions but
offered to have employees pay more toward health insurance premiums and offered concessions
with regard to other benefits. On January 25 and 27, 2011, the Respondent rejected the Union's
proposal and made a final proposal. In relevant part, the Respondent continued to propose that it 45
not pay any part of employees’ insurance premiums and continued to seek the reduction of
benefits that it had proposed earlier. The Respondent modified its proposal regarding
JD–33–12
4
classification changes and withdrew its proposal regarding layoff notice. However, the
Respondent’s proposal sought a reduction of 87 cents an hour and indicated that after February 3,
2011, it would seek a 6 cent-an hour reduction every week until the proposal was accepted. The
Respondent also indicated that unless an agreement was reached it would continue with its plans
to move work from the Columbia City facility, but that it would honor its current obligations 5
under the agreement. (GC Exhs. 9 and 10.)
On February 15, 2011, the Union notified the Respondent that it had rejected the
Respondent's final proposal and requested to meet with it to bargain over the effects of the
closure of the facility (GC Exh. 11). On February 17, 2011, Johnson replied to the Union with 10
the following letter (GC Exh. 12):
Please let this letter acknowledge I have received your letter of February 15,
2011. In light of the significant time that has elapsed since we first met to
discuss the transfer of work, Coupled Products believes it would be best for us to 15
wait until closer to the end of the current Collective Bargaining Agreement to
negotiate.
I note that we previously indicated additional lines [are] being moved to Mexico.
Those moves will still take place as communicated.20
I propose that you provide me dates in mid May to late May for negotiations, as
we should have a better understanding of the work situation at that point in time.
The Negotiations for a New Collective Bargaining Agreement25
In early May 2011, the Union and the Respondent exchanged proposals for a new
collective-bargaining agreement at the Columbia City facility. The Union's proposal sought a 3-
year agreement which included a wage increase of 90 cents per hour the first year and 75 cents
per hour during the second and third year. It also sought a $500 signing bonus and an increase in 30
the Respondent's contribution to health insurance premiums (GC Exh. 14).5 At the hearing,
Beverly Kohne, one of the Union’s bargaining committee members, testified that the amount of
the proposed wage increase was randomly selected by the committee members’ and was not
based on any empirical data. (Tr. 147-148).
35
The Respondent's proposal (GC Exh. 13) included a $4.50 per hour wage reduction for
nonskilled employees,6 a reduction in paid vacations, and the elimination of sickness and
accident pay and paid perfect attendance. The Respondent's proposal also sought the complete
elimination of its contribution toward employee health insurance premiums.
40

5 The Union proposed that employees contribute 20 percent of their health insurance premiums. In the
2009-2011 collective-bargaining agreement, bargaining unit employees contributed between 21 and 35
percent of the insurance premiums. (GC Exh. 2,p. 64).
6 The nonskilled employees included the following classifications: machine setup; gauge and tool
crib; final audit; SSR; plater; machine tech; hand bender; and assembly pack (GC Exh. 21).
JD–33–12
5
Prior to preparing the Respondent's bargaining proposal, Johnson requested Rose Ann
Rubrake, the human resources director at that Columbia City facility, to gather information on
wages paid by manufacturing facilities in the area. Rubrake obtained wage information from
several local manufacturing facilities for both skilled and nonskilled labor. She also contacted
People Link, a temporary staffing agency; because several companies indicated that it was their 5
source for nonskilled labor. Rubrake prepared a summary of the wage rates for nonskilled labor
of the employers that she had contacted in the area. (R. Exh. 10.) Rubrake also used the website
for the Bureau of Labor Statistics to find comparable wages for area employers.
Based on this information, Rubrake prepared a summary of the wages in a three-county 10
area around the Respondent's Columbia City facility (R. Exh. 11). The summary reflected the
following information: for assembly pack/benders the "market" rate ranged from $8.42 to $8.82,
while the Respondent's wages ranged from $13.04 to $13.34; for floor setup, the "market" rate
ranged from $9.28 to $11.26, while the Respondent’s current rate was $14.84; for tool and
die/maintenance the "market" rate ranged from $20.93 to $21.34, while the Respondent's current 15
rate was $20.59; for machinists, the "market" rate ranged from $18.72 to $20.41, while the
Respondent's current rate ranged from $16.86 to $18.68.
The parties met to negotiate a new collective-bargaining agreement on May 17, 18, 20,
24, and May 27, June 6, and 15, 2011.At the first bargaining session on May 17, 2011, Johnson 20
was the Respondent's chief spokesperson and Rubrake, Stephanie Jones and David Jaggers also
attended. International Union Representative McMillin was the Union's chief spokesperson. The
remainder of the Union's committee was composed of Local Union President Kathy Smith;
Recording Secretary Beverly Kohne; Joyce Lane; and Barbara West. The same individuals were
present throughout the negotiations. During the negotiations on May 17 the parties did not 25
discuss economic issues; rather they reviewed the noneconomic items and reached agreement on
several of them. On May 18, the parties were able to reach agreement on a reduction of paid
holidays.
On May 19, that Union sent the following letter (GC Exh. 15) to the Respondent:30
We the Bargaining Committee of UAW Local 2049, Unit 1 are formally
requesting from Coupled Products LLC proof of the companies (sic) finances in
all aspects. It is the Bargaining Committee's position that the company is asking
for a concessionary Collective Bargaining Agreement in respect to Wages, 35
Holidays, Vacations, S & A Pay, Bereavement Pay, Perfect Attendance and
Insurance.
We would also like to remind you that on January 13, 2011 Brad Ginsburg one of
the owners of Coupled Products LLC made a statement in front of the entire 40
Bargaining Unit members during a plant meeting that he had nothing to hide and
was willing to open his books to anyone who wanted to see them. Therefore we
are requesting to review Couple Products LLC Financial Books.
At the meeting held on May 20, Johnson gave the union committee a one-page document 45
with financial information for the Columbia City facility for January through April 2011. This
document was prepared by the Respondent and had not been audited by any outside entity. It
JD–33–12
6
purported to show that during that period the Columbia City facility incurred a net loss of
$1,603,214. (GC Exh. 16.) At this meeting, Johnson told the Union’s committee that the
Columbia City facility was losing customers and money and was not competitive.7 The parties
discussed issues of wages, insurance, vacation pay, sickness and accident pay, bereavement pay,
and the perfect attendance bonus, but no agreement was reached on any of these issues. The 5
parties were only able to agree on the elimination of the employees paid 10 minute lunch period.
Near the end of the meeting, McMillin told Johnson that the membership would not accept what
Johnson was asking of them. McMillin asked Johnson if she was trying to break the Union and
Johnson replied that she thought "there were people who would accept this."8
10
At the May 24 meeting, the parties again discussed the substantial reduction in wages for
nonskilled employees sought by the Respondent. According to Rubrake’s credited testimony, she
described to the union committee the contacts that she had with local manufacturing employers
regarding their wage rates. Rubrake offered to McMillin the underlying documents Rubrake had
prepared regarding her contacts with other employers, (including R. Exhs. 10 and 11), but 15
McMillin responded that she did not want it. (Tr. 403-404, 443-444.)9
The parties also discussed the Respondent's proposal to cease making contributions
toward the cost of employees’ health insurance premiums and the elimination of sickness and
accident pay, bereavement pay and the perfect attendance bonus. When Kathy Smith said that the 20
Union was willing to consider a freeze in pay, Johnson responded that the Respondent needed a
pay reduction. According to Kohne’s notes, Johnson said that Ginsburg has indicated he did not
want to pay anything toward employee insurance premiums. McMillin observed that the
Respondent wanted the employees to pay higher insurance premiums and take a $4.50 an hour
wage cut. Johnson indicated that in order to be competitive "we need a pay reduction." Later in 25
the meeting the Union formally offered a freeze in wages but Johnson indicated she was not

7 I credit Johnson's testimony on this point (Tr. 66). Her testimony on this issue was corroborated by
that of Kohne (Tr. 107); Kohne’s notes (GC Exh. 31, p. 8) and Jones notes (R. Exh. 8, p.4).
8 My findings regarding the substance of this meeting are based primarily on Kohne’s notes (GC Exh.
31). Kohne’s notes are very complete and I find them to be generally reliable. Consequently I have relied
on them throughout this decision.
9 Rubrake’s testimony on this point is corroborated by Kohne (Tr. 150-151). McMillin admitted that
Rubrake orally provided information about the wage rates of various local employers at the meeting (Tr.
319-321). McMillin's testimony on this point was consistent with her notes from that meeting which
reflects the names of various employers and wage rates. (R. Exh 1, p. 39.) At the hearing McMillin
testified that she did not recall saying that the Union did not need to look at the documents (Tr. 321).
Somewhat puzzling to me is a reference in an internal union memo dated May 26, 2011 from McMillin to
her superior, Mo Davison, who was then the director for UAW Region 3. This memo states "The
Company has given me a recent sheet showing their finances (January-April, 2011) and paperwork
regarding other companies’ wages in the surrounding area and what Coupled Product wants their wages
to be for the company to be competitive (copies attached). Of course, none of these other companies are
union shops." (GC Exh. 39.) There are no copies attached to GC Exh. 39, so I do not know exactly what
"paperwork" McMillin was referring to in her memo. I find this reference to "paperwork regarding other
companies’ wages in the surrounding areas" to be insufficient to discredit the detailed testimony of
Rubrake and Kohne that at the meeting held on May 24 McMillin said she did not want the information
proffered by Rubrake. However, from the memo that McMillin sent to Davidson, I draw the inference
that McMillan obtained at least some of the information proffered to her by Rubrake after the meeting and
submitted it to Davison.
JD–33–12
7
going to move on any of the economic issues and they had "to stand." McMillin stated "[Y]ou
are saying the company has an inability to pay wages." Johnson replied "[Y]es, we’re not willing
to pay." McMillin and Johnson then engaged in a heated exchange on this subject. McMillin
asked "[A]re you saying you are unable to pay." Johnson responded by saying "[D]on't put words
in my mouth." McMillin replied “I am not putting words in your mouth, you said it." (GC Exh. 5
31, pp. 23-24). McMillin then asked, are you willing to let us audit your books?" After asking
this question, McMillin looked at the union committee and said "[T]hey don't legally have to."
Johnson responded by indicating that she would notify Ginsburg of the Union's request. (R. Exh
8, p.16.)
10
According to Rubrake’s bargaining notes, after the Union committee proposed a wage
freeze, Johnson responded by saying that the Respondent was standing firm on the economic
issues. McMillin then stated "So you're saying [the] Co. can't pay the wages you are now."
Johnson replied "We have exhausted our thoughts and we stand firm on what we have to give.
It's not that we can't pay. We are not willing to pay." (R. Exh. 9, CP 0487.)1015
In the memo that McMillin sent to her superior Davison on May 26, (GC Exh. 39)
MacMillan described her exchange with Johnson on May 24 as follows:
I asked the Plant Manager, Tina Johnson yesterday in our meeting point-blank,20
are you telling me the Company is stating at this time their inability to pay the
wages as they are today. She said, "Yes, am (sic) to be competitive, we can no
longer pay these wages."
I then requested that the Union be able to look at the books and she said no. Then 25
she said don't put words into my mouth and I told her I wasn't doing that; I point-
blank asked her a question. I repeated [the] answer she had given me back to her,
with the time that she made it. She got upset and said she would give the request
to Brad the owner, but he would more than likely refuse, because his business is
privately owned.1130
Near the end of the meeting Johnson said that she was fighting to keep jobs in the U.S.
McMillin stated that the Union was not going to give up $4.50 an hour in wages and Johnson
again reiterated that they were going to stand firm on the economic issues.
35
After considering all the evidence on this point, I find that at the meeting on May 24
Johnson said that the Respondent was not willing to pay the existing wages at the Columbia City
facility but did not say that the Respondent was unable to pay the existing wages. In making this
finding, I note that none of the notes introduced in evidence at the hearing indicate that Johnson
made a definitive statement regarding the Respondent's inability to pay existing wages. Even 40
McMillin's direct testimony does not indicate that Johnson claimed an inability to pay. (Tr. 267-

10 Since Rubrake’s notes are not consecutively numbered, I refer to the page by the Bates number
assigned to it by the Respondent.
11 I give less weight to McMillin's memo than the contemporaneous notes that were made during the
bargaining meeting. I note, however, that even McMillin's memo reflects that Johnson stated that in order
to be "competitive" the Respondent could no longer pay the existing wages
JD–33–12
8
268.) On direct examination by counsel for the Acting General Counsel, McMillin testified as
follows:
Q. Did you make a request to audit the company's books?
5
A. Yes, I did.
Q. Why did you make that request?
A. Well, I felt like because the company was asking for concessions and that if they 10
would show us their books - if they were saying that they needed to be more
competitive, they were losing money, if they would just show us our [sic] books – not me
per se but I’d have somebody in research in Detroit look at them - that it be more to
our advantage trying to explain to our membership for all the concessions they were
asking for.15
On Wednesday, May 25, McMillin sent the following e-mail (GC Exh. 17) to Johnson:
I am requesting in writing our rights to audit Coupled Products LLC books and all
finances. Per NLRB rulings, when a company is demanding wage reductions on 20
poverty or their INABILITY (emphasis in original) to pay the wages on where
they are at today. We as a Union have the right to go over all books pertaining to
finances and that is what I am requesting to do. Please get back with me as
soon as possible on your answer to my request.
25
On May 25, the Union also submitted a new proposal to the Respondent (GC Exh. 18).
The counterproposal offered the Respondent additional concessions from the terms and
conditions contained in the then existing collective-bargaining agreement. Specifically the
counterproposal contained a wage freeze for the term of the contract and proposed limiting the
Respondent’s contributions for employee health care premiums to 25 percent. It lowered the 30
amount of sickness and accident pay to $205 per week and reduced employee eligibility to 20
weeks. The Union also agreed that employees would be paid for vacation at the time it was taken
and would lose any unused vacation time at the end of the year. Finally, the Union agreed to
limit bereavement pay to immediate family members
35
On May 26 Johnson responded to McMillin's May 25 email requesting an audit of the
Respondent's financial records by a letter indicating in relevant part "We are not providing an
audit because we are private company and our books are proprietary in nature. We provided you
with our financials as a total accommodation to show you we are not competitive in the
marketplace." (GC Exh. 19)40
At a meeting held on May 27, the parties reviewed the noneconomic issues and reached
agreement on those that were outstanding. Specifically, the parties reached agreement on the
notification to employees for scheduling overtime and the Respondent withdrew its proposal that
skills would supersede seniority for purposes of scheduling overtime. (GC Exh. 31, p. 28; R. 45
Exh. 9, CP 0496.) The parties then discussed the economic issues and Johnson rejected the
Union's proposal of May 25 (Tr. 68-69). Johnson indicated that the Respondent was going to
JD–33–12
9
stand firm on the economic issues. McMillin commented that it appeared that the Respondent
"did not even want to talk about this." McMillin pointed out that the Union was willing to reduce
the number of sickness and accident weeks from 26 to 20. Johnson replied that she was rejecting
the Union's proposal. McMillin indicated that employees could not give up $4.50 an hour.
Johnson replied by asking "[W]here do we go from here." McMillin again asked if the Union 5
could audit the Respondent's books and Johnson refused. Johnson reiterated that the Respondent
needed to stand firm in order to be competitive. McMillin asked if this was the Respondent's best
and final offer. Johnson said that she could "type up a letter" and give it to the Union that day.
McMillin said that she was going to file an NLRB charge because the Respondent would not
permit the Union to audit its books. Johnson replied "[D]o what you have to do." McMillin stated 10
the Respondent’s offer would be taken to the membership, but that the committee would not
support it (GC Exh. 31, pp. 29-30; R. Exh. 9, CP 0498; R. Exh. 8, pp. 19-20).
On May 27, the Respondent submitted its “last and best proposal" to the Union (GC Exh.
20). This proposal was for a 1-year contract and contained the following terms: (1) employees 15
would have to pay their own health insurance premiums, consistent with the Respondent’s
unrepresented U.S. employees; (2) a reduction in paid vacation time (3) the elimination of Good
Friday as a paid holiday; (4) the elimination of sickness and accident pay; (5) bereavement days
were to be included in paid vacation days; (6) elimination of the paid perfect attendance bonus;
(7) elimination of the 10-minute paid lunch, with new plant hours from 6:30 a.m. to 2:50 p.m.20
and; (8) a $4.25 per hour wage reduction for nonskilled employees and (9) modifying call-in
time from 4 to 2 hours. The Company's proposal also contained other terms involving
classifications, layoffs, overtime and other miscellaneous provisions (GC Exh. 20). In this
proposal, the Respondent changed its reduction in wages for nonskilled employees from $4.50 to
$4.25 per hour.25
When the parties met again on June 6, McMillin said that the 1-year duration of the
contract had not been discussed. Johnson indicated that the Respondent thought that the Union
would want a 1-year agreement considering the terms contained in the Respondent's proposal.
The Union indicated it wanted a 2-year agreement and also asked to if the Respondent would 30
make some clarifications to its final proposal, so that it was clear to employees what the proposal
took away from them. Johnson agreed to both proposals made by the Union. After a discussion
of unresolved grievances the meeting adjourned.
On June 8 the Respondent sent the Union its last, best proposal for a 2-year agreement 35
with clarifications to some provisions. In addition, it attached a document as exhibit A. which
illustrated the effect the $4.25-an hour reduction would have on the wage rates of nonskilled
employees. (GC Exh. 21.)
On June 9, Union presented a document to the membership entitled "Tentative 40
Agreement Highlights Sheet" which went through all the contract provisions and indicated any
changes sought by the Respondent’s final proposal. This document also shows the effect of the
full payment of insurance premiums on the wages of nonskilled employees. On the same date the
union committee met with the membership and explained the proposal but did not recommend its
acceptance. The membership voted to reject the Respondent's proposal by a margin of 46-4. 45
JD–33–12
10
After discussions with employees about what they were willing to accept in a new
agreement, the Union submitted a new proposal (GC Exh. 36) to the Respondent dated June 10.
This proposal contained the following terms:
Extend current agreement for (one) year;5
Freeze wages for duration of new agreement;
Vacation time up front with no pay when taken (No lump-sum payments);
S &A. Pay, stays as it is with maximum 20 weeks benefits;
Insurance, 25% across-the-board employee’s portion. Union will assist the
Company in finding a more affordable Insurance for both parties so that there will 10
not be need for the cost of a broker;
Bereavement, 3 days off with pay for Immediate Family members (open for
discussion).
The Union's proposal also indicated "We would also like to inform you that the 15
membership will never ratify any agreement that allows the company to treat the Union
employees as they do their non-union U.S employees when it comes to changing any benefit
once an agreement has been ratified."
The parties met again on June 15. Johnson told the union committee that the Respondent 20
had reviewed the Union's latest proposal but that the proposal would not make the Respondent
"competitive." Johnson said the Respondent was standing by its final and best offer as it had to
be competitive. Kathy Smith told Johnson what the employees had to offer by virtue of their
experience and that they could not live off $8.79 an hour, Johnson said that they could all live off
that amount. Johnson rejected the Union's request for an extension of the agreement that was 25
expiring on June 17. The Union advised Johnson at this meeting that it was going to go on strike.
(GC Exh. 31, pp. 36-37.)
On June 15, the Respondent posted a notice to employees indicating: "We have been
informed that Local 2049 will be going on strike as of June 17, 2011 and we regret that decision. 30
We will allow those who are willing and choose to work to do so." On June 16, the Respondent
posted notice in its facility stating that its last, best offer would go into effect on Monday, June
20.
On the morning of June 17, the union committee gave Johnson the following letter (GC 35
Exh. 40):
We, the Bargaining Committee of UAW Local 2049, Unit 1 in a last ditch
effort to avoid a labor dispute are requesting that the company open their books to
the International Union UAW Auditing Department for review.40
You stated that Brad (Coupled Products LLC) can no longer afford, and has the
inability to pay the wages where they are at today.
You tell us the company is continuously losing money, if this is true and you can 45
show us this through your financial books we may be more apt to convince the
membership that with these current wages the company would go bankrupt.
JD–33–12
11
We need your response today no later than 12 noon, in writing.
When Johnson received the Union's letter, she handwrote the following response on the
Union's letter and delivered it to the union committee (R. Exh. 6)
5
Received June 17-I disagree with the contents/accusations in this letter. I have
never stated Brad or CP could not afford or has the inability to pay wages where
they are today. Furthermore, Kathy kept using those words "can't afford" and I
told her not to put words into my mouth for this position as well
as other positions during negotiations. We stand firm in saying we need to be 10
competitive which is what was actually said during negotiations.
On the same date Johnson also sent a typewritten letter reiterating her handwritten
response. She also indicated that the Respondent would not provide an audit because it is a
private company and its “books" are proprietary in nature. Johnson further indicated that "we 15
provided you with our financials to show you were not competitive in the marketplace, which is
in fact what our position has always been throughout negotiations." (R. Exh 5.)
At midnight on the evening of June 17, the Union initiated a strike against the
Respondent. On Monday, June 20, Johnson instructed Rubrake to implement the final offer as of 20
that date, including the $4.25 per hour wage decrease for all nonskilled labor. On June 20 the
Respondent also notified the Union that it would begin hiring permanent replacement employees.
Respondent began to hire replacement employees on June 23 and, at the time of the hearing,
there were approximately 32 to 34 replacement employees working in the facility.
25
The Union's Strike
The strike that began on June 17, 2011, was continuing at the time that the hearing was
held in this case in early April 2012. On May 2, 2011, prior to the first bargaining session, the
employees at the Columbia City facility authorized the Local Union to engage in a strike if they 30
were unable to come to an agreement with the Respondent. Under the internal rules of the UAW
a local union cannot engage in a sanctioned strike without the authorization of the International
Union. In a letter dated May 20 from the bargaining committee the Local Union requested strike
authorization from the International Union. In this letter (GC Exh. 41, p.2)., the bargaining
committee indicated: 35
"The issues in dispute are as follows: Vacation, Wages, Insurance, Perfect
Attendance, Bereavement, S &A Pay and any related issues of our CBA.
We requested copies of copy Insurance Plans and any of the things that might 40
affect the employees.
On the same date McMillin submitted a memo to Davison requesting strike authorization.
On June 9 the union committee presented the Respondent's final offer to the membership for a
vote. At this meeting, McMillin told the members that she thought the Respondent’s offer on 45
wages was "ridiculous" and that the committee was not recommending acceptance of the
Respondent’s proposed agreement (Tr. 337-339). At the hearing, McMillin testified that she did
JD–33–12
12
not recall using the term "unfair labor practice" during the meeting. The membership voted
against ratifying the Respondent’s final offer.
Michael Ailes, the former assistant director for UAW Region 3, testified that after
receiving the request for strike authorization from the Local Union, he made a recommendation 5
to approve the request to then Region 3 Director Davison. In making his recommendation he
referred to the fact that the Local Union had not received information pursuant to requests it had
made and that he did not see how the dispute could be resolved without the information (Tr.
285). On June 15, the International Union issued a strike authorization approval.
10
Analysis and Conclusions
The Acting General Counsel contends that the Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to provide the Union with its financial records. In support of his
position, the Acting General Counsel asserts that the thrust of the Respondent statements made 15
during bargaining was its inability to pay current wages rather than a desire to increase its profits
through greater economic competitiveness. The Acting General Counsel further asserts that the
Respondent’s statements made during bargaining, "when coupled with the drastic concessions is
sought, conveyed that the employer would not continue to operate the facility at a loss and would
shutter that facility and move elsewhere if the Union did not agree to its concessionary 20
proposals.” Therefore, according to the Acting General Counsel the Respondent in effect claimed
an inability to pay and had a duty under the Act to provide the financial information requested by
the Union. (AGC brief, p. 16.) In support of his position, the Acting General Counsel principally
relies on Stroehmann Bakeries, 318 NLRB 1069 (1995), enf. denied 95 F.3d 218 (2d Cir. 1996).
The Acting General Counsel also relies on Stella D’oro Biscuit Co., 355 NLRB 769 (2010); 25
Lakeland Bus Lines, 335 NLRB 322 (2001), enf. denied 347 F. 3d 955 (D.C. Cir. 2003); and
ConAgra, Inc., 321 NLRB 944 (1996), enf. denied 117 F.3d 1435 (D.C. Cir. 1997).
The Acting General Counsel further contends that even if the Respondent did not claim
an inability to pay, it was obligated to provide the Union with information to substantiate the 30
specific economic claims it made to justify its concessionary proposals. The Acting General
Counsel asserts that although the Union's request for the Respondent to "open its books" was
arguably broader than what is needed to substantiate the Respondent’s specific claims, the
Respondent's refusal to provide any further information beyond the one-page profit and loss
statement is not excused because the Union's request was overbroad. The Acting General 35
Counsel contends that the Respondent was obligated to comply with the request to the extent that
it encompassed relevant information necessary to verify its assertions and that its failure to do so
violated Section 8(a)(5) and (1) of the Act.
The Acting General Counsel contends that because the Respondent violated Section 8(a) 40
(5) and (1) of the Act by failing to provide the requested information, the Respondent
implemented its final offer without reaching a valid impasse and accordingly the implementation
of its final offer also violated Section 8(a)(5) and (1) of the Act. Finally, the Acting General
Counsel contends that the strike is an unfair labor practice strike because the Respondent
unilaterally implemented its final offer without providing the Union with necessary and relevant 45
information. The Acting General Counsel claims the alleged unfair labor practices are, in part,
the cause of the strike.
JD–33–12
13
In its defense, the Respondent argues that the Union is not entitled to review and audit its
general financial records because it has not pled an inability to pay the wages sought by the
Union. Nielsen Lithographing Co., 305 NLRB 697 (1991), review denied 977 F.2d 1168 (7th
Cir. 1992). The Respondent further argues that the Union never made a specific request for 5
information regarding its claim that the wages paid at its Columbia City facility made it less
competitive and that it had, in fact, provided the Union with information regarding the cost of
operating the Columbia City facility. The Respondent further contends that because it did not
violate the Act in refusing to provide the information requested by the Union a valid impasse was
reached and therefore the implementation of its final offer was lawful. Finally, the Respondent 10
contends that since it committed no unfair labor practices, the strike is an economic strike rather
than an unfair labor practice strike.
In NLRB v Truitt Mfg. Co., 351 U.S. 149 (1956), the Supreme Court held that "a refusal
to attempt to substantiate a claim of inability to pay increased wages may support a finding of a 15
failure to bargain in good faith." 351 U.S. at 153. Since the employer in Truitt had specifically
claimed that it could not afford to pay increased wages, the Court enforced the Board's finding of
a violation of Section 8(a)(5) and (1) of the Act. In so finding, the Court noted:
We do not hold, however, that in every case in which economic inability is raised 20
as an argument against increase wages it automatically follows that the employees
are entitled to substantiating evidence. Each case must turn upon its particular
facts. [Id at 153.]
In the instant case, the Union requested to review the Respondent's general financial 25
records at the outset of negotiations in its letter of May 19. At the meeting held on May 20,
Johnson gave the Union a one-page document purporting to show that the Columbia City facility
lost more than $1,500,000 from January through April 2011. At the meeting, Johnson told the
Union that the Columbia City facility was losing customers and money and was not competitive.
Johnson did not state that the Respondent as a whole was losing money. In fact, in the 30
negotiations in late 2010 and 2011 regarding the possible closure of the Columbia City facility,
Johnson had indicated to the union committee that while the Columbia City facility was losing
money the Respondent as a whole was profitable.
At the May 24 meeting when the parties discussed the substantial reduction in wages for 35
nonskilled employees sought by the Respondent, Rubrake described to the Union her contacts
with other manufacturing facilities in the area which indicated that the Respondent's wage rate
for unskilled labor was substantially higher. As I have found above, at the meeting held on that
date, Johnson did not state that the Respondent was unable to pay the existing wages. Rather, she
stated that the Respondent was not willing to continue to pay existing wages and that in order to 40
be "competitive" the Respondent needed a pay reduction.
When the Union again requested to audit the Respondent’s financial records in its May
25 email, Johnson replied that the Respondent had furnished financial information to show that it
was "not competitive in the marketplace." At the meeting held on May 27, Johnson again stated 45
that that the Respondent had to stand firm on economic issues in order to remain competitive.
JD–33–12
14
In response to the Union's claim in its letter of June 17 that Johnson had stated that the
Respondent was unable to pay the current wages, Johnson immediately replied, indicating that
she had never said that the Respondent was unable to pay the current wages. She reiterated that
the Respondent was standing firm on its economic proposal in order to be competitive.
5
I find that the Respondent's statements that it needed wage and benefit reductions at the
Columbia City facility in order to remain competitive does not obligate the Respondent to accede
to the Union's request that it be permitted to audit its general financial records. Neilsen
Lithographing Co., 305 NLRB 697 (1991), review denied 977 F.2d 1168 (7th Cir. 1992);
Burruss Transfer, Inc. 307 NLRB 226 (1992). The Board stated in Nielsen, supra, at 700 "[A]n 10
employer's obligation to open its books does not arise unless the employer has predicated its
bargaining stance on assertions about its inability to pay during the term of the bargaining
agreement under negotiation." (fn. omitted) In AMF Trucking & Warehousing, Inc., 342 NLRB
1125, 1126 (2004) the Board held:
15
[T]he phrase “inability to pay” means, by definition that the employer is incapable
of meeting the union's demands. That is, the phrase means more than the assertion
that it would be difficult to pay, or that it would cause economic problems or
distress to pay. “Inability to pay” means that the company presently has
insufficient assets to pay or that it would have insufficient assets to pay 20
during the life of the contract that is being negotiated. Thus, inability to pay is
inextricably linked to nonsurvival in business.
When viewed under that standard, it is clear that the Respondent never claimed an
inability to pay the Union's demands. During the negotiations the Respondent did not even state25
that it was losing money as a whole. Rather, at the May 20 meeting Johnson indicated only that
Columbia City was losing money and customers. Despite the Union's repeated assertions
throughout the bargaining that Johnson had claimed an inability to pay the existing wages,
Johnson consistently emphasized that the Respondent needed wage concessions regarding its
nonskilled employees and a reduction in the cost of benefits in order to be competitive. 30
Supporting this position, the Respondent offered the research done by Rubrake reflecting that it
paid substantially more in wages for unskilled employees than that of several other
manufacturers in the area. The Board has found that statements made by an employer regarding
the need to be competitive or being at a competitive disadvantage are not a sufficient basis for an
obligation to provide to a union, upon request, records regarding its general financial condition. 35
Burruss Transfer, supra, at 228. In Concrete Pipe & Products Corp., 305 NLRB 152 (1991),the
employer’s president indicated at the outset of negotiations that the employer was in a declining
market due to many new competitive products. He also indicated that the employer had
competition from nonunion concrete pipe producers which had very low labor costs. He stated
"To survive in today's market we have got to be able to be competitive, and to be competitive 40
wage rates and benefits must be lowered.” Id. at152. The Board found that the employer’s
statement did not trigger a duty to furnish economic information because it did not raise a claim
of a present inability to pay under Truitt. The Board found that the statement regarding the need
"to survive" was nothing more than a restatement of the desire to compete. The Board noted that
the employer did not assert it was losing money or that its business was at some imminent risk of 45
closing. Accordingly, the Board found that the employer did not violate Section 8(a)(5) and (1)
of the Act by failing to comply with the union's information request
JD–33–12
15
I note that even in cases where an employer has made a claim suggesting that it is unable
to pay current wages and benefits, the Board has held that a clarification unequivocally
indicating that the employer is not claiming an inability to pay establishes that the employer is
not obligated to provide general financial information requested by the union. Richmond Times-
Dispatch, 345 NLRB 195 (2005); American Polystyrene Corp., 341 NLRB 508 (2004). In the 5
instant case when the Union, in its June 17 letter, again asserted that Johnson had claimed that
the Respondent was unable to pay the existing wages, Johnson denied that assertion in both a
handwritten and typed letter and reiterated that the Respondent's economic proposal was based
on its need to be competitive.
10
I find that under the circumstances of this case, since there is no credible evidence that
the Respondent maintained the position that it was unable to pay existing wages and benefits, the
Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing the Union's request to
review and audit its general financial records. In making this finding, however, I do not rely on
the fact that the Respondent gave to the Union the one-page profit-and-loss statement regarding 15
the Columbia City facility for the period from January to April 2011. (GC Exh. 16.) Johnson
testified that documents of this type were used by the Respondent to determine the financial
position of the Respondent's Columbia city facility. At the hearing, however, she was unable to
explain how the two largest expense items in the document; $759,856 for "Allocable Selling,
General and Administrative Expenses" and $800,000 for "Management fees," were calculated. 20
Without further explanation, this document would not appear to be of much use to the Union in
determining the effect the cost of labor and benefits had on the purported loss at the Columbia
City facility. I also note, however, that the Union never sought a more detailed explanation as to
how the document was prepared or how the various line items were calculated.
25
I find the cases relied on by the Acting General Counsel in support of the argument that
the Respondent's refusal to allow the Union to review and audit its financial information
violated Section 8(a)(5) and (1) are distinguishable. In Stroehmann Bakeries, Inc., 318 NLRB
1069 (1995), the respondent-employer, a manufacturer and distributor of bakery products, was a
wholly owned subsidiary of Weston Foods, which in turn was a subsidiary of George Weston 30
Ltd., a Canadian conglomerate. On November 16, 1993, representatives of the employer met
with the Union at their only bargaining session held for the Syracuse, New York facility. At this
meeting the employer's director of industrial relations, Spehalski stated that the employer had
lost $12 million in 1992 and was expected to lose $16 to $20 million in 1993. He noted that
Weston wished to maintain a foothold in the American baking industry but that the employer 35
could not continue and would go out of business without a parent company willing to fund its
losses. He denied claiming an inability to pay because the parent company’s "deep pockets" were
sufficient to pay for the employer's Syracuse operation. At this meeting the employer proposed a
substantial reduction in wages and benefits and a reduction in the number of unit employees. The
union was told that the employer needed concessions of approximately $150,000 to offset the 40
alleged losses sustained at the Syracuse facility.
On December 10, 1992, the employer's president sent a letter to all unit employees
indicating that as a result of the losses sustained in 1992 and 1993 the employer "cannot continue
to operate as we have in the past. We simply cannot afford it." Id. at 1073. On the same date, the 45
Union submitted an extensive request for information, including financial information. The
employer refused to provide the requested information to the union. The Board found that under
JD–33–12
16
the circumstances present in that case, the Respondent's refusal to provide the financial
information violated Section 8(a)(5) and (1) of the Act. The Board found that, in effect, the
employer stated that, absent the concessions that it sought, Weston would not continue to
subsidize the employer, and the employer could not afford to continue the present unit
complement and wage scale. The Board therefore found that the employer was basing its 5
contract proposals on asserted financial hardship and the inability to pay. Id. at 1079.
In the instant case, the Respondent never claimed it was losing money as a whole or that
its survival was an issue. Rather, it claimed that only the Columbia City facility was losing
money and therefore it sought labor cost reductions at that facility. The Respondent always 10
focused on the alleged financial condition of its Columbia City plant and never linked its
continuation as a company to the proposals it made regarding that facility. In this connection, in
the negotiations in late 2010 regarding a possible closure of the Columbia City facility, the
Respondent noted that, in its view, the cost structure at Columbia City was too expensive to
maintain and it could save over $2 million a year in labor costs by moving work performed at 15
Columbia City to its plant in Mexico.Accordingly, I find that unlike the employer in
Stroehmann, the Respondent did not base its proposal on financial hardship or the inability to
pay the current wages and benefits.
In Stella D’Oro Biscuit Co. 355 NLRB 769 (2010), the employer’s representatives20
repeatedly indicated that the employer's survival was linked to its obtaining concessions from the
union. In this regard, the Board noted that the following:
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 25
concessions it sought were needed for the survival of the Company, and that it
did not have the money to go for 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 unprofitability
endangered Stella’s survival. [Id at 771,772.].30
Given those statements, the Board found that the employer claimed it was unable to pay
the current wages and was obligated to provide the union with the requested audited financial
records. As I have noted earlier, the facts in the instant case do not establish a nexus between
statements made by the Respondent during negotiations regarding its desire for concessions at 35
the Columbia City plant and its survivability during the term of the contract.
In Lakeland Bus Lines, 335 NLRB 322, 324 (2001), the employer sent a letter to
employees stating that it was "trying to bring the bottom-line back into the black." The letter also
indicated that if employees accepted the employer's final contract offer, it would enable it to40
"retain your jobs and get back in the black into short-term." Finally the letter noted "the future of
Lakeland depends on it." Id. at 324-325. The Board found that the statements conveyed a present
inability to pay by indicating that the employer was unprofitable and was unable to pay more
than what was set forth in its final offer. Accordingly, the Board found that the employer's
refusal to furnish the Union with an audited financial statement violated Section 8(a)(5) and (1) 45
of the Act
JD–33–12
17
In ConAgra, Inc., 321 NLRB 944 (1996), the Board found that the employer violated
Section 8(a)(5) and (1) by failing to provide the union with requested financial information
regarding its plant in Molinos, Puerto Rico. The Board noted that the employer, although it made
representations that were carefully couched in terms of competitive disadvantage, also made
statements that amounted to claims that it could not presently pay the union's wage demands and 5
stay in business during the term of the proposed agreement. In particular, the Board relied on the
following:
[T]he statements of Respondent Molinos' representative, Espinosa, at a
negotiating session that he had seen the Company decline over the last 4 years, 10
"the situation is serious and fragile," "if we are not competitive we
cannot survive," and "we must do something to be able to survive;"
and its general manager's statement at the same session that if
immediate measures were not taken the probabilities were that
Molinos would not be here in the future. We also note Espinoza's statement 15
at another session, while discussing the Respondents’ proposal to cease
supplying soap to employees, that "things like this are what makes us not be
competitive and can make as have to close shop because we cannot compete.
In the instant case, while the Respondent consistently claimed that the existing wages and 20
benefits at the Columbia City facility were not "competitive" it never made statements linking its
economic proposal to its survivability as a company.
As I noted above, the Acting General Counsel argues that if I conclude that the
Respondent did not claim an inability to pay, it was still obligated to provide the Union with 25
information necessary to justify its concessionary proposal. In this connection, the Acting
General Counsel contends that even if the request to review and audit all of the Respondent's
financial records was overbroad, the Respondent had a duty to comply with the request to the
extent it encompassed relevant information necessary to verify its assertions.
30
I find the cases relied on by the Acting General Counsel to be distinguishable. In
Caldwell Mfg. Co., 346 NLRB 1159 (2006), the employer maintained that concessions were
necessary at its Rochester New York plant in order for that plant to become a viable option for
the location of new product lines and to be competitive in the industry. In response to this claim,
the union requested specific information such as the cost data for each of the employer's plants, 35
competitor data and data on possible new production. In its decision, the Board emphasized that
there was no evidence that the employer claimed an inability to pay and that the union did not
seek general access to the employer's financial records. Relying on Nielsen Lithographing and
Burruss Transfer, supra, the Board specifically noted that "generally an employer is not
obligated to open its financial records to union unless the employer has claimed an inability to 40
pay and that broad statements of ‘competitive disadvantage’ did not amount to a claim of an
inability to pay." Id. at 1160. In Caldwell, the Board found that the union's request was narrowly
tailored in response to the employer's specific claims and was necessary to evaluate those claims.
Thus, the Board found that the requested information was relevant and found that the employer
violated Section 8(a)(5) and (1) by failing to provide it.45
JD–33–12
18
In the instant case, the Union did not make specific request for information to evaluate
the specifics of the Respondent's claim that it needed concessions in order to make the Columbia
City plant more competitive. Rather, the Union requested an audit of the Respondent’s general
financial records and Caldwell itself establishes that the Union is not entitled to such information
based on the claim that concessions are necessary in order to be competitive.5
In A-1 Door & Building Solutions, 356 NLRB No. 76 (2011), the employer justified its
bargaining proposals seeking concessions by asserting that its wages and benefits were not
competitive with its competitors. The employer discussed competition in terms of being able to
get bids. The union then requested specific information regarding the employer's job bidding 10
history. Relying on Caldwell, the Board found that the information was tailored to the employer's
specific claim and did not encompass general financial data. Under the circumstances, the Board
found that the employer violated Section 8(a)(5) and (1) by failing to provide the specific
information requested by the union.
15
In Taylor Hospital, 317 NLRB 991 (1995), the employer advised the union that insurance
reimbursements had dropped and the number of patients and their length of stay had decreased.
The employer indicated that because of the decreasing revenues, the number of available beds
would be decreased and a number of RNs would be laid off and their places taken by less skilled
personnel. The union then asked for information regarding the budget and copies of census and 20
reimbursement records. The employer refused to provide the information. In finding that the
information was relevant, the Board emphasized that the union sought only information related
to the economic layoff and the purported reasons for it. The Board noted that the union never
requested that the employer "open its books" nor had it exhibited any interest in the employer's
general financial position. Id. at 994. 25
These cases are distinguishable from the instant case since the request for information in
both cases was specifically tailored to the employer's assertions in bargaining and did not seek a
review and audit of the employer's general financial records.
30
Keauhou Beach Hotel Co., 298 NLRB 702 (1990), is easily distinguished from the instant
case. There, the union requested presumptively relevant information regarding unit employees.
The Respondent claimed that the union's request was ambiguous in that it failed to specify
whether it was seeking information regarding all employees or only unit employees. It is in that
context that the Board observed that an employer may not refuse to comply with an ambiguous 35
information request but must request clarification and/or comply with a request to the extent
encompasses necessary and relevant information.
The General Counsel has not cited any case, and I am unaware of none, where a union
made a request to obtain the employer's financial records, and the Board, while not granting that 40
request, ordered an employer to provide more specific information. Rather, if the Board finds
that an employer is not obligated to provide the financial information sought by the union, it
dismisses the complaint allegation claiming such information must be provided. Neilsen
Lithographing and Burruss Transfer, supra. It is up to the union to determine what necessary and
relevant information it needs in order to properly assess claims made by an employer during 45
bargaining and then request that information. An employer is not obligated to guess at what
JD–33–12
19
information contained within its financial records could prove helpful to a union in evaluating its
assertions made at the bargaining table and to provide such information.
On the basis of the foregoing, I find that the Respondent has not violated Section 8(a)(5)
and (1) of the Act by refusing to permit the union to review and audit its financial records and 5
accordingly I dismiss that allegation in the complaint.
The Acting General Counsel does not dispute that the parties were, in fact, at an impasse
when the Respondent unilaterally implemented changes in working conditions, including a
reduction in wages and benefits on June 20, 2011. Rather, the Acting General Counsel relies on 10
Caldwell, supra, and Decker Coal Co., 301 NLRB 729 (1991), for the proposition that a valid
impasse cannot be reached when an employer has failed to provide necessary and relevant
information in violation of Section 8(a)(5) and (1) of the Act. I agree with the Acting General
Counsel on the standard to be applied in this case in determining whether the parties were at a
valid impasse when the Respondent implemented its final offer on June20, 2011. However, since 15
I have found that the Respondent did not violate the Act in refusing to provide the Union with an
opportunity to review and audit its financial records, I consequently find that the parties were at a
valid impasse when the Respondent implemented its final offer. Accordingly, I dismiss the
complaint allegation alleging that the Respondent violated Section 8(a)(5) and (1) of the Act
when it implemented its final offer.20
Since I have found that the Respondent did not commit any unfair labor practices, I
conclude that the strike the Union initiated on June 17, 2011, is not an unfair labor practice
strike, but rather an economic strike.
25
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12
ORDER
30
The complaint is dismissed.
Dated, Washington, D.C., June 20, 2012.
____________________
Mark Carissimi35
Administrative Law Judge

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.