Goodrich Corporation

National Labor Relations Board - Administrative Judge Opinions

Sep 21, 2004

08-CA-033598 (N.L.R.B. Sep. 21, 2004)

JD–92–04
Cleveland, OH

STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

GOODRICH CORPORATION, LANDING
GEAR DIVISION, CLEVELAND
PLATING OPERATIONS

and Case No. 8-CA-33598-1

INTERNATIONAL UNION, UNITED
AUTOMOBILE AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, UAW

Steven Wilson, esq., for the General Counsel.
Bryan O’Connor, esq., of Cleveland Ohio,
for the Charging Party.
David P. Hiller, esq., and Melanie Webber, esq.,
of Columbus, Ohio, for the Respondent.

DECISION

Statement of the Case

ERIC M. FINE, Administrative Law Judge. This case was tried in Cleveland, Ohio, on
June 2 to 6, 2003. The charge was filed on August 16, 2002, by the International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America, UAW (the UAW) against
Goodrich Corporation, Landing Gear Division, Cleveland Plating Operations (Respondent).1
The complaint, as amended at the hearing, alleges the UAW and its Local 2333 (collectively
referred to as the Union) have been recognized by Respondent as the exclusive representative
of the collective bargaining unit listed in the complaint located at Respondent’s 2800 East 33rd
Street, Cleveland, Ohio facility (the Plating plant). The complaint alleges that since March 15,
by letter, and by verbal requests of April 5, 15, 29, 30, and May 1, the Union has requested
Respondent furnish it with certain information listed in the March 15 letter. The complaint also
alleges that since April 5, the Union has verbally requested Respondent furnish the Union with
information relating to productivity at the Plating plant. The complaint alleges the requested
information is necessary and relevant for the Union’s performance of its duties as exclusive
collective bargaining representative and that since April 5, Respondent has failed and refused to
furnish the Union with the requested information in a timely and complete manner in violation of
Section 8(a)(1) and (5) of the Act. The complaint alleges that since May 6, certain of
Respondent’s employees represented by the Union ceased work and engaged in a protected
strike caused and prolonged by Respondent’s unfair labor practices. The complaint alleges that
since June 14, the striking employees made an unconditional offer to return to work to their
former or substantially equivalent positions and that since June 16, Respondent has failed to
reinstate certain named employees,2 and failed to reinstate other named employees at the time
Continued
1 All dates are 2002 unless otherwise indicated.
2 The complaint names one category of employees, who Respondent allegedly unlawfully
refused to reinstate following the employees’ unconditional offer to return to work, and another

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of their unconditional offer to return to work, although it did eventually reinstate the second
group of named employees. It is alleged in the complaint that by its failure to reinstate certain
employees and its delay in reinstating others, Respondent has violated Section 8(a)(1) and (3)
of the Act.3

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party, and Respondent, I
make the following

Findings of Fact4

I. Jurisdiction

Respondent, a corporation, with a facility located in Cleveland, Ohio (the Plating plant)
has been engaged in the plating of landing gear parts for the airline industry. Respondent
annually purchases and receives at the Plating plant goods valued in excess of $50,000 directly
from points outside the state of Ohio. Respondent admits and I find it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the UAW and Local
2333, are labor organizations within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Respondent’s operations

Respondent maintains two facilities in Cleveland the Plating plant and a machining and
assembly plant located at Marble Avenue (Marble Ave. plant). The Marble Ave. plant machines
landing gear components, which are sent to the Plating plant for coating then returned to the
category of employees who suffered unlawfully delayed reinstatement. At the hearing, counsel
for the General Counsel successfully moved to amend the complaint to delete William Jones
from the list of alleged discriminatees; and to shift alleged discriminatees James Ratliff and Jose
Vanderdys from those alleged not to have been reinstated to the category of employees with
alleged unlawfully delayed reinstatement dates of December 5 for Ratliff, and January 2, 2003,
for Vanderdys.
3 The parties stipulated at the hearing that should the alleged discriminatees named in the
complaint, as amended at the hearing, be found to be unfair labor practice strikers, their
reinstatement rights as to date, position, back pay, other benefits, and seniority will be resolved
in a compliance proceeding, absent a settlement following the unfair labor practice litigation.
4 In making the findings herein, I have considered the demeanor of all witnesses, the
content of their testimony, and the inherent probabilities of the record as a whole. In certain
instances, I have credited some but not all of what a witness said. See NLRB v. Universal
Camera Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474
(1951). All of the witnesses’ testimony and record evidence has been considered in making
these findings. Multiple witnesses for each side testified about the bargaining sessions at issue.
I have concluded that many of the witnesses in this proceeding tended to shade their testimony
to advance the cause of the party calling them. As a result, I have credited certain portions of a
witness’ testimony, based on their demeanor as to that testimony, the specificity of their
recollection and the record as a whole, while not crediting other aspects of the same witness’
testimony. Testimony that is not specifically mentioned in this decision has been considered,
but rejected, or it is repetitive of the testimony that has been cited and credited. Specific
credibility resolutions will be discussed in more detail during the course of the decision.

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Marble Ave. plant for assembly. Both plants are part of Respondent’s Landing Gear Division,
which includes two other facilities in the United States, one in Canada, and one in Poland.

The UAW and Local 2333 represent a bargaining unit at the Plating plant with about 58
employees and a second bargaining unit at the Marble Ave. plant including about 300
employees.5 The dates of the most recent collective bargaining agreement at the Plating plant
leading to the negotiations at issue herein were May 1, 1999, through April 30. William Minor
has been an International Representative for the UAW Region 2B since 1993 and, at the time of
the 2002 Plating plant negotiations, had served as the lead negotiator for the Union for a total of
six prior contracts for the two Cleveland bargaining units. John Jordan, the former general
director of human resources for the Landing Gear Division, served as lead negotiator for
Respondent for the same six contracts. Minor was the Union’s lead negotiator for the Plating
contract during the 2002 negotiations, and Jordan came out of retirement as a paid consultant
to serve as Respondent’s lead negotiator for those negotiations.

B. Minor’s March 15 letter

Minor credibly testified he authored a letter requesting information, dated March 15, to
Tom Lemin, who at the time was Respondent’s director of human resources for the Plating and
Marble Ave. plants. The March 15 letter was written in preparation for negotiations for the
Plating plant’s 2002 contract. Minor testified the process for mailing letters in his office is he
prepares a draft and gives it to a secretary for typing. The secretary returns the typed draft to
Minor for proofing and his signature. Minor then returns it to the secretary for mailing. Minor
testified he followed this procedure for the March 15 letter. Minor testified he signed the letter
on March 15, which is the date he forwarded it for mailing. Minor testified the letter was to be
sent by regular mail, as was his practice for information requests.

Mary Keck works for the UAW as a clerical employee. Keck credibly testified to the
following: Once an International Representative signs a letter, copies are made for circulation
and filing, and the letter is then posted in an envelope, run through a postage meter and placed
in an outgoing mail basket. There is a postal mailbox in the driveway outside the office building.
Anyone of 23 people working in the office takes the mail from the outgoing basket and drops it
in the mailbox. Keck’s initials appear on Minor’s March 15 letter, signifying she typed the letter
and that she placed the letter in the out going mail box. Keck typed the March 15 date on the
first page of the letter. Keck’s practice was for Minor to sign the letter the day she typed it.6
Keck retains her own copies of the correspondence she prepares and pursuant to her search
the morning of her testimony, she found the March 15 letter in her personal correspondence
file.7 Keck testified that to her knowledge, Minor’s March 15 letter was not returned to the
Union’s office.8
Continued
5 The unit description for the Plating plant bargaining unit is set forth in the complaint and is
not in dispute in this proceeding.
6 The second page of the letter is also dated March 15, which Keck testified was placed
there by a computer macro showing the letter was typed on March 15. However, another letter
for Minor, which Keck typed on May 23, did not have the computer generated date on the
second page. Keck had no explanation for the missing date.
7 Keck did not have a specific recollection of the March 15, letter. On a monthly basis Keck
could originate between 50 and hundreds of mailings.
8 I have credited Minor’s testimony that he did draft and sign the letter dated March 15, to
Lemin requesting information, with intent to have the letter mailed through his office mailing
procedures on that date. In this regard, Keck, who I found to be a credible witness, testified she

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Minor requested the following information in the March 15 letter: 9

1. A list of all hourly rated employees, setting forth their classifications, present hourly
rate, date of hire, date of birth –both male and female.
2. A copy of the present contract of sick and accident insurance benefits; the amount
received by each employee per week, and the premium the Company pays for this
coverage per month.
3. A copy of the present contract on hospitalization and medical coverage and the
monthly premiums for family and single coverage, including any contributions which may
be required by employees.
4. The amount of life insurance the employees are covered for and the monthly premium
paid by the Company.
5. The number of days of vacation received by each employee.
6. A copy of the present pension/401(k) contract and the cost/contribution for same.
This is to include name, age, and date or retirement of those already retired. 10

C. The April 5 bargaining session

The first negotiation session for a new contract at the Plating plant was held on April 5.11
The Union’s negotiating committee included: Minor, Joe Cantale, president of Local 2333; Jerry
Valentine, a chief shop steward for Local 2333; Lou Pestello, the recording secretary of Local
2333; Eddie Busler, a chief shop steward for Local 2333; Dave Morrow and Phil Van Almen.
Cantale, Valetine, and Pestello worked at the Marble Ave. plant. Busler, Morrow, and Van
Almen worked at the Plating plant. Respondent’s negotiating committed included Jordan,
Lemin, Sarah Niebauer, a human resources generalist, and Russ Tucholski, plant manager of
the Plating plant. Doug Wright, a vice president of the Landing Gear Division, was also present.
The named individuals, aside from Wright, attended all the negotiations sessions leading to the
May 6 strike.

Minor credibly testified that the majority of the April 5 meeting was spent with a
presentation by Wright concerning the strategic plan for the entire Landing Gear Division,
found a copy of the letter in her files and that her initials on the letter and past practice reveal
she typed it on March 15. I also note that Jordan, who had an extensive history of negotiating
contracts with Minor, admitted it was Minor’s practice, during prior negotiations, to send a letter
requesting information before negotiations commenced. I have also credited the testimony of
General Counsel witnesses Eddie Busler, Joe Cantale, and Jerry Valentine, who were on the
Union’s negotiating committee, that they saw a copy of Minor’s March 15, letter prior to the start
of negotiations. Since I have concluded that Minor crafted the document, I have also concluded
it was likely and that he did in fact display it to certain Union bargaining committee members.
Respondent’s witnesses have denied receipt and knowledge of Minor’s March 15, letter until it
May 13, after it was forwarded to Respondent’s counsel by the Region 8, following the filing of
Minor’s initial unfair labor practice charge in this matter. For reasons set forth in more detail
below, I do not credit Respondent’s claims that the letter was not received in a timely fashion.
9 Respondent’s counsel stated at the hearing there is no dispute as to the relevancy or the
availability of the information requested in Minor’s March 15, letter.
10 Minor admitted that, although requested in the March 15 letter, the amount of medical
contributions required of employees; the amount of the weekly sickness and accident benefit;
and the amount of life insurance coverage were set forth in the 1999 contract.
11 The parties also met on April 12, 15, 22, 23, 24, 25, 26, 29, 30, and May 1, prior to the
start of the May 6, strike.

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although Wright also specifically referred to the Cleveland operations. Wright’s presentation
included a description of some of orders Respondent had lost, and some of the problems they
faced in the future with the market down turn. Wright said Respondent signed a long-term
contract with Boeing, its major customer, at a price reduction. Wright spoke of an expected
down turn in future business, and about productivity. Similarly, Jordan testified Wright gave a
state of the business overview of the Landing Gear Division. Jordan testified Wright’s
presentation indicated that overall business conditions were not great. Jordan testified Wright’s
presentation included a power point slide show taken from portions of the Landing Gear
Division’s strategic plan. Niebauer testified that her notes, taken during the April 5 meeting,
reveal that Jordan opened the meeting with remarks about the state of the economy, which
Niebauer characterized in her notes as “gloom and doom.” Niebauer testified her notes read
that, in response to Minor’s request for a copy of the strategic plan, Wright said,

No copy but it is important stuff. All these consolidations going on. Bombard Air # 3, air
frame in the world. 9/11 not solely to blame. We were in a tailspin before. We were
over producing anyway….This year's most difficult plan. Don't understand dynamics of
9/11. Our performance is dismal.

Niebauer testified Wright was referring the Landing Gear Division’s performance when he said
our performance is dismal. Niebauer testified Wright said the customers were “pissed off”
because we were behind in our deliveries.

Niebauer’s notes go on to state: "4 themes follow". At one point in the notes it states,
“2nd Major Theme” was to "Improve throughput” which included, “implement new planning
system, six Sigma data, productivity increase, dedicated equipment." The notes reflect that the
fourth major theme was “LEAN". The notes read following LEAN, "Refocus but overall in good
shape. Past due are decreasing, productivity is increasing, more product shipping." Niebauer
testified these references in the notes related to Wright’s presentation.

Niebauer credibly testified that one of the slides Wright showed at his presentation
contains a graph entitled, “Productivity-Cleveland Machining." Niebauer testified the graph was
in reference to the Marble Ave. plant and does not apply to Plating plant. Niebauer credibly
testified that, after the slide was shown, Van Almen asked, can you produce separate quality,
scrap, and productivity numbers for the Plating plant as they had for the Marble Ave. plant.12
Niebauer testified Tucholski looked at Van Almen and said he had quality and scrap numbers
and he would look into the rest of them. Niebauer, at one point in her testimony, credibly stated
that Tucholski said he did not have productivity numbers for Plating. Niebauer credibly testified
Tucholski said “he was going to get qualities and scrap numbers for plating, that he couldn't get
productivity. He could get everything Bill wanted but productivity.”13 Wright then said Tucholski
Continued
12 Similarly, Van Almen testified that he asked Wright if he could provide productivity
numbers for the Plating plant separate from the Marble Ave. plant numbers.
13 Considering her demeanor, I found Niebauer’s description of the April 5 meeting, which
was for the most part buttressed by her notes, to be the most accurate description of all of the
witnesses. I do not credit Minor’s claim that Tucholski said he could get productivity figures
during the meeting. This assertion was undercut by the testimony in Minor’s prehearing
affidavit, where Minor said Respondent informed the Union at the meeting that they did not have
productivity or utilization data for the Plating plant. I did not find Minor’s explanation at the
hearing for the sworn testimony in his affidavit to be very convincing. General Counsel witness
Valentine, whose testimony vacillated about what transpired at the meeting, belatedly admitted
that the Union was informed Respondent could not get productivity data because they do not

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Continued
separate the data. In view of these admissions, and Niebauer’s credited testimony, I do not
credit the testimony of Minor, Valentine, or any of the other Union witnesses who testified that
Tucholski said at the meeting he could provide the Union with productivity data during the
meeting. Rather, I credit Niebauer’s testimony that Wright directed Tucholsky to see if it made
sense to develop productivity numbers for the Plating plant and Tucholski said he would do so.
It was the contention of Respondent’s witnesses that Respondent could not and did not
measure productivity at the Plating plant because they did not have standard hours calculations
made by industrial engineers for the plating processes, while standard hours calculations had
been made at the Marble Ave. plant and were used to measure productivity there. However, I
do not credit the testimony of Wright, Jordan, Lemin, and Tucholski concerning their claims that
Tucholski explained to the Union that Respondent did not have standard hours for the Plating
plant as the reason he could not calculate productivity. There is no such explanation reflected
in either Lemin or Niebauer’s notes of the meeting, nor did Niebauer testify that such an
explanation was given. Rather, Lemin’s notes just state “Separate us out from Marble,” to which
Tucholski responded, “Everything except productivity.” I also do not credit Jordan, Lemin,
Wright, or Tucholski concerning their claims that Tucholski gave an explanation, during the
meeting, about alternative metric measurements Respondent maintained at the Plating plant,
beyond stating, as Niebauer testified, that he could provide everything Van Almen asked for
aside from productivity. In this regard, I found the testimony of Respondent’s witnesses about
this meeting to be somewhat inconsistent and of a disingenuous nature. For example, Jordan
testified that he did not take Van Almen’s request for information seriously because Van Almen
was not the lead negotiator and Jordan viewed the remark more as a comment than a request
for information. Yet, Niebauer testified there were no ground rules prohibiting Van Almen, as a
member of the Union’s negotiating committee, from making an information request. She also
testified that Tucholski said that, “he was going to get qualities and scrap numbers for plating,
that he couldn't get productivity. He could get everything Bill wanted but productivity.” Wright
also testified he took Van Almen’s request serious enough to have Tucholsky investigate Van
Almen’s inquiry.
I do not credit the claims of Respondent’s witnesses that they could not measure
productivity at Plating because they do not have standard hours. Rather, at various points in
their testimony, Tucholski, Wright, and Lemin testified that, aside from standard hours,
Respondent had other means available to measure performance at the Plating plant. I have
concluded Respondent’s officials, in fact, used the other measurements to monitor the
productivity at the Plating plant. In this regard, Wright testified that because Respondent did not
have standard hours calculations for the Plating plant, Respondent could not measure
productivity at Plating and therefore he could not and did not criticize it at the April 5 meeting.
However, Wright then testified concerning Plating that, “We use other ways to measure
productivity or performance.” Wright testified that Cleveland Plating “was more effective” than
Respondent’s other plating facilities. Wright then admitted he had a way to determine if he was
satisfied with the output at the Plating plant. He testified, “If I was not happy with the output I
could have criticized them.” Wright testified if their utilization or throughput was deficient, Wright
could you have criticized them. Wright testified he was relying primarily on throughput to
compare Respondent’s plating facilities. He testified that Cleveland Plating was completing the
same type of parts at a much quicker rate than Respondent’s other plating facilities. Wright
testified performance is measured at the Plating plant in a number of ways, but that the key
measure was how long would took to completely plate a part, which is called throughput.
Similarly, Tucholski testified Respondent measures performance at Plating by calculating
“utilization”, which measures the amount of time the employees are engaged in direct labor as
opposed to being idle. While denying Respondent measured productivity at Plating, Tucholski
testified that “utilization” is a metric that Respondent calculates to determine how productive the

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should look into it to see if it made sense to develop productivity numbers and Tucholski said he
would look into it.

Niebauer’s notes of the April 5 meeting read, in pertinent part:

Jerry: 911 didn’t impress him. 11 million in cost is Co’s fault/
Plate: World class a month ago what changed. Since Russ back were “almost world
class”
Doug: Pretty proud about Plate. Let’s not argue about semantics.
Jerry: PPI messed up C17. Plating fixed the vendors mistake so that means they’re
world class. Get rid of Russ.
Doug: Plate is buried in parts. What do want us to do. Work to make it better. Good
facility, good people. Strategic intent to build Plating facility.
Phil: Want individu #’s @ Plating productivity, quality (scrap)
Doug: Calculate productivity is different at each plant. Agree we should have site
metrics.
Eddie: Still problems at plating, so help us help ourselves.
Phil: We need an MRB engineer!
Bill: We’ve asked @ last 4 negot for separate Plating #’s14
Doug: Should do better job @ posting & discussing metrics. We’ll get people involved.
Plating work force is. When asked if he was constantly looking for ways to make the employees
more productive, Tucholski testified, “I would use the word, ‘continuous improvement.’”
Tucholski testified that in January through April 2002, the Cleveland Plating employees were
significantly exceeding Respondent’s “utilization” plan. Tucholski testified that “throughput” is
another metric measurement Respondent uses at the Plating plant. Tucholski testified
“throughput” is the actual number of days it takes to get parts through the Plating plant. When
asked it if was a measure of how productive the facility is, Tucholski fenced with counsel stating,
“It—it’s one of the measures that we use to gauge the health of the operation.” Tucholski
admitted Respondent also tracked “on time delivery.” He then conceded that this was one of
the tools in measuring how productive the facility is. Tucholski also testified that Respondent
uses health and safety metrics, which included lost time due to injury. Tucholski agreed that the
less time lost on the job injury the more productive the facility. Tucholski testified Respondent
also tracks program hours, as to the actual number of hours they a spending on a program like
the 747, or 767 during the plating process. He testified that the goal is to meet the budgeted
hours that are established during the year. The less hours spent the better off the facility.
Tucholski testified that all of these charts are used to measure the health of the operation.
I also note that while Tucholski claimed that, during the April 5 meeting Wright asked him to
look into whether developing standard hours at Plating was feasible, Tucholski testified that
prior to April 5, he had a couple of meetings with Respondent’s capacity planning manager to
determine whether to develop standard hours at the Plating plant. He testified that the Plating
plant had 1,700 operations that had to be engineered and that it would take months to complete
such a project. Thus, even assuming I were to credit the testimony of some of Respondent’s
witnesses that the Union was only asking for productivity based on a standard hours calculation,
which I do not; Tucholski had substantial information at his disposal at the meeting, as to the
length of time it would take to develop this metric for Plating, but he failed to provide it to the
Union. Rather, the Union was left to guess concerning its inquiry about productivity information
with Respondent’s open ended response to the Union’s information request.
14 Lemin’s testimony reveals that, during the meeting, Minor stated that the Union had asked
during the last four sets of negotiations for productivity figures for the Plating plant separate
from the Marble Ave. plant.

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Niebauer testified that there was a slide presented by Wright that had under the caption,
“Continue Promoting a Culture of Continuous Improvement,” a bulleted statement reading
"World Class in plating processes." She testified Wright talked about the Cleveland Plating
facility as being almost world class. Niebauer testified that Wright said he wanted all of the
components of the Landing Gear Division to become world class. Van Almen credibly testified
Wright said the Plating plant is already almost world class and Valentine responded they were
world class before Tucholski came back as plant manager, and now they were just almost world
class. Similarly, Valentine credibly testified he responded to Wright’s almost world class remark
by stating they had been world class before Tucholski returned as plant manager. Valentine
testified, “I believe my comment to Doug Wright was, I would fire Russ Tucholski if I was world
class and I sent one guy down there and he made us almost world class, …”.

Jordan, Lemin, Tucholski, and Wright confirmed Van Almen and Valentine’s description
of the above conversation. However, Jordan incredibly claimed that he viewed Wright’s “almost
world class” remark as a “tremendous compliment.” Yet, Wright testified he used the term
“almost world class” because “from a management perspective, you can never be happy with
the performance of any site. You're always looking for continuous improvement. I didn't want to
say that any site was world class implying that we had ended our journey for improvement.”
Wright testified that he made the comment about the Plating plant being almost world class,
when one of Respondent’s slides was posted containing a bullet point under the “Continuous
Improvement” caption that says “world class in plating processes.” Similarly, Lemin testified he
understood Wright’s remark to mean that there is always room for improvement, the bar always
gets higher and higher, so they need to do things better and better.

Respondent’s witnesses credibly identified two documents depicting power point slides
that Wright showed during the meeting. One of the documents presented by Wright is entitled
“Summary” and includes the caption, “Continue Promoting a Culture of Continuous
Improvement,” which includes four bulleted items reading:

Flexibility in manpower and equipment
Embrace LEAN Principles
Increased involvement of all employees
World Class in plating process

While Wright repeatedly raised productivity issues during his presentation to the Union,
Respondent’s officials attempted to obfuscate the obvious in order to down play the relevancy of
the Union’s request for productivity records. Niebauer testified that during the April 5, meeting
Wright stated he wanted Landing Gear to become actively involved with the LEAN principals.15
Wright testified LEAN is a way to improve your performance throughout the organization.
However, he attempted to side step question of whether LEAN encompassed efforts to improve
productivity. When asked if one of the objectives of LEAN is to increase productivity, Wright
testified, “One of the objectives of the LEAN program in plating was to improve throughput.”
Wright finally testified that across the division in the wider context, LEAN can relate to improving
productivity. Tucholski testified that LEAN principles are an elimination of waste in the process
and that it “is an initiative that promotes continuous improvement in all processes every day.”
When asked if continuous improvement meant productivity, Tucholski testified, “It could very
well apply to productivity in someone else’s facility.” Tucholski used Marble Ave. as an
example. However, he admitted that LEAN principles also applied to the Plating plant.
15 Niebauer testified LEAN principles require doing things in the least waste way. Yet, she
incredibly claimed that LEAN principles did not involve productivity.

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Minor credibly testified that: During the April 5 session, Jordan commented on the
escalation in Respondent’s medical costs under the old contract. Minor responded that national
health care costs had been soaring since Clinton’s national health bill had been defeated and
the business community bore some responsibility for defeating the bill. Minor said he did not
want the Respondent to “take it off the backs of the workers.” Minor voiced opposition to
Respondent’s plan to propose increased medical cost sharing for the employees. Minor stated
he had requested information on this, in reference to his March 15 letter, and it had not been
provided.16 Respondent’s officials had no response concerning Minor’s mention of an
information request. While Respondent’s witnesses denied that Minor made any information
requests or referenced the March 15 letter prior to April 29, I have credited Minor’s testimony on
this point. Both Lemin and Niebauer’s notes for April 5, corroborate Minor’s testimony that there
was a discussion about the cost of health care during that meeting. While neither set of notes
confirm Minor’s testimony that Minor made a request for information at the time, the notes were
not verbatim, and Minor’s testimony reveals that he did not go into detail about the request.
Moreover, Lemin’s notes for the April 30, meeting for the 9 p.m. session, reveal that Minor
stated at that time, as reflected in the notes, “Asked for cost of insurance and not get.” Lemin
testified that he did not remember Minor making the remark during the April 30 meeting, but he
knew there was a note about Minor complaining he had asked for the cost of health care
insurance and not gotten it.

D. The April 15 bargaining session

During the April 12 session, the parties exchanged non-economic proposals. Minor
credibly testified that, as of April 15, Minor had not received any response to the request for
productivity information and Minor raised this with the Respondent. Minor credibly testified he
told Respondent’s committee on April 15, that Wright had promised the Union some productivity
numbers and they still had not received them. Minor testified he also asked for the ISO 9000
records because he thought those could tie into productivity. Minor testified that he received
very little response other than Jordan stating he would review it, and Tucholski stating he would
have to check on the ISO 9000 to determine if they could release the form because it was not
Respondent’s criteria. 17

Minor testified the ISO 9000 consists of reports relating to quality of paper work required
with all manufacturing. Minor’s credited and uncontradicted testimony is that he requested the
ISO 9000 because he thought it related to movement of employees concerning inspection work,
quality and inventory control and he thought it tied to requiring operators to perform duties in
addition to their normal job functions. Minor testified Respondent told the Union something was
required by ISO in an argument to expand job duties, and the Union asked to see what the
requirement was. He testified the Union was saying if your reason is ISO compliance show us
16 Minor’s testimony reveals that he alluded to the letter, without specifically mentioning it.
Busler also testified that Minor requested information during this meeting in that Minor said to
Jordan that Minor was still waiting for a response for his information request.
17 Busler credibly testified, that during the April 15, meeting, Minor said they had made the
request for productivity, and he asked if anyone was working on that. Tucholski replied that
they were looking at it. Similarly, Van Almen testified, that during one session prior to the May
6, strike, Van Almen passed Minor some notes stating that he wanted Minor to re-ask for
productivity numbers and that Minor, in response, asked for “productivity numbers.” Van Almen
testified that he also asked Minor to request the ISO 9000 and that as a result Minor requested
this information. Busler also testified Minor requested ISO 9000 documentation.

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the document that says the ISO requires it. Minor testified he thought the request tied into
productivity because the scope of job duties ties into productivity.

I have credited Minor’s account of April 15, meeting, over that of Tucholski, Jordan, and
Lemin. Minor had a more specific recall of what transpired at the meeting than Respondent’s
witnesses, and Van Almen and Busler confirmed much of his testimony, which was also
confirmed by admissions of Respondent’s witnesses and by Tucholski’s notes of the meeting.
Tucholski testified Minor brought the subject of productivity up again on April 15. Tucholski
testified that Minor, “asked how I was doing relative to -- uh, creating standard hours, and I said
I was still looking at it.” I do not credit Tucholski’s claim that Minor specifically asked Tucholski
about the development of standard hours, rather then making a general request for productivity
information as Minor testified. Tucholski’s notes from the April 15 session state, "Russ slash
Eric productivity need number". Thus, Tucholski’s notes do not reference a remark by Minor
relating to standard hours. Moreover, neither Jordan nor Lemin testified that Minor mentioned
standard hours at the meeting.18 There is also a reference to ISO 9000 standards in
Tucholski’s notes for the April 15 meeting, which Tucholski testified relates to international
quality standards. Tucholski testified he did not recall who brought up ISO 9000, but stated it
came up during the session. Tucholski testified that he made a notation in his notes should any
information be needed, but he did not follow up on it.

E. The April 29 to May 1 bargaining sessions

Minor credibly testified that the Union had been asking for a copy of the medical plan for
a couple of years prior to the expiration of the parties’ 1999 collective bargaining agreement in
that Minor had attended meetings where it had been discussed and requested. Similarly, Busler
credibly testified that Union had been requesting a copy of the medical plan for the past three
years; in order to know in advance what was covered before an employee sought a particular
service. Lemin, in fact, admitted that the Union first made a request for a copy of the medical
plan in late 2000. Lemin never claimed that Respondent provided the Union with a copy of the
plan pursuant its request. Minor also credibly testified that there had been a problem with the
pension plan, and the Union had a longstanding request for it. Minor testified he had been told
in prior years by the vice president in human resources, that there was a change in the plan,
which the Union had agreed to, but had not received an updated copy.

Minor credibly testified that as of April 29, when the parties started bargaining
economics, he had not received a response to his March 15 letter requesting information.19
Continued
18 Lemin testified that Minor asked if Respondent was moving forward in getting productivity
numbers for Plating. Tucholski said he still had not made up his mind. Jordan testified all Minor
said to Tucholski was “how are you coming with those numbers?” Jordan testified Tucholski’s
response was, “I'm still thinking about it.”
19 I do not credit Minor’s testimony that he verbally asked for the information contained in the
March 15, letter, two or three times prior to the April 29 meeting. Minor’s testimony about the
circumstances concerning these requests, aside for the one made during the April 5 session,
was vague and lacked specificity. Moreover, Minor admitted he never showed the letter to the
company team, and asked them why he had not gotten a response. The testimony of the
General Counsel’s other witnesses concerning Minor’s references to the March 15 letter, prior to
April 29, was also vague as to date, time, and as to the circumstances when these alleged
requests were made. In particular, General Counsel witnesses Valentine and Cantale
overstated the case in terms of the number of times and nature of Minor’s alleged references to
the March 15, letter during negotiations when compared to Minor’s testimony. Accordingly,

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Continued
Minor testified that by the April 29 session all non-economic proposals had been agreed to or
dropped, except for the Union’s demand for an office for senior steward Busler. Minor testified
that, during the April 29 session, the party’s initial economic proposals were exchanged around
11:00 a.m. Minor testified item 7(e) of the Union’s initial economic proposal requests the
elimination of employee premium contributions for medical benefits.20 The Union also proposed
a wage increase of $3 per hour in each of the three years of the contract. The Respondent’s
initial economic counter proposal included an increase the employees’ health care costs to a 20
percent co pay. Minor testified he said the Union was vehemently opposed to the increased
cost in health care for employees, and particularly percentage increases. Minor credibly
testified that after a discussion about health care and the pension, Minor stated concerning the
pension, he had requested information, a year ago from Mr. DiFalko, the former vice president
in human resources, which he had followed up with an information request to Lemin last
month.21 Minor testified there was no response. I have credited this aspect of Minor’s
testimony. In this regard, Neibauer’s notes for the April 29, session reveal that the parties did
discuss the pension during that session.22

The 1999 agreement was set to expire at midnight April 30. Jordan credibly testified that
the April 30, bargaining session began around 10 a.m. and that Minor said he thought they
could do everything they needed to do to get a new contract by midnight. Minor said he did not
want to repeat what happened in the past and stay until dawn.23 The Union’s third economic
proposal was given around 10 a.m., and it contained an offer for a wage increase of $3.00,
$2.50 and $2.50 per hour, respectively, for each year of the proposed agreement. Jordan
informed the Union committee the wage proposal was beyond the stratosphere and Respondent
could not even get close to getting an agreement there. Jordan said the Union had to get real if
they were going to meet the midnight time frame. Jordan credibly testified Minor said the
Plating plant needed to catch up to the Marble Ave. plant, or words to that effect. Minor said
there was a $6 difference between Plating and Marble Ave. in average hourly earnings.24
there is no credible evidence that Minor made a request for the information contained in his
March 15 letter on April 15, and the allegation contained in complaint paragraph 6(A) solely as it
relates to an alleged request on April 15, is dismissed.
20 Minor testified that, under the 1999 agreement, employee contributions ranged from $5 to
$13 a month, depending on whether they had coverage for dependents.
21 Minor testified the last month reference related to Minor’s March 15 letter to Lemin.
22 I do not credit Busler’s testimony that Minor also asked for hospitalization and medical
coverage, the 401(k) contract, and the seniority list during the April 29, meeting. Minor failed to
substantiate these assertions in his testimony, and Busler gave little specificity as to the
conversation in which Minor made these alleged requests.
23 Similarly, Lemin testified that when the bargaining session started Minor indicated that the
contract expires at midnight, that there was no reason they should not get it done by midnight.
he did not see any reason why he had to be there until 7 the next morning. Respondent
witnesses Niebauer and Tucholski and General Counsel witnesses Busler and Van Almen also
confirmed that Minor made this remark. When asked if he began the final negotiation session
on April 30 by saying his deadline was midnight, Minor became evasive and testified,
“”Probably. I don’t recall that, yes.”.
24 Similarly, Lemin testified that Minor stated that the membership had indicated wages were
the key that they were behind the Marble facility about $6, and wage catch up was the thing
they were coming after. Jordan and Lemin testified Minor’s reference was incorrect, and in
actuality there was $8.00 an hour differential between the two facilities, although they did not
correct Minor’s assertion at the time it was made. Tucholski testified Minor stated that the
plating employees, were interested in a wage catch up to the Marble plant wages, and that

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Jordan replied they had to compare apples to apples, and that they were a plating facility and
should be compared to other plating facilities. Jordan testified Respondent’s data indicated they
were not behind other Cleveland area plating facilities. Jordan testified he stated the skills for
the Marble plant machinists far exceed the skills required for platers at the Plating plant.25

Niebauer’s notes for the meeting reflect that Jordan said, "We're hopeful that you will
soon come back to the stratosphere. Three dollar, two dollar increases not in the cards. We
want to be reasonable. Looking at Cleveland Data we are fine, more than competitive. Our
GWI proposal is not the best but we're close." Niebauer credibly testified that Minor responded
that they were $6 an hour behind the Cleveland Marble plant, that general wage increases were
the priority for the membership this time and they were looking to catch up to the Marble Avenue
facility. Niebauer’s notes attribute the following remarks to Minor:

Didn't put in a signing bonus: Membership made it clear what they were looking for,
pretty skilled jobs @ Plating $6 behind Cleveland plant. 20 cent, 30 cent increase isn't
going to do it. We want the $ in wages - that's why the signing bonus wasn't specified.
Co gave out lump sums and that's how the wages got behind. Priority is GWI.26
Incentive to sign the contract is fine but we're looking @ GWI to catch up.

Niebauer’s notes reflect that Jordan responded:

Catch up refers to behind. We're not comparing machinists to platers. Can't go down
the street and get more money for plating, they're not behind. I can't hire them to run a
machine at Cleveland."

wages were a priority.
25 I have credited Jordan’s testimony, as confirmed by Respondent’s witnesses and
Niebauer’s notes, over the Union witnesses version of this conversation. While Minor denied he
used the term “catch up” for wages for the Plating plant to Marble Ave. plant, he and the other
Union witnesses made certain admissions confirming Jordan’s testimony that this was one of
the Union’s goals. Minor testified the employees at Plating were adamant about a wage
increase and that the Plating employees felt left out. Minor went on to testify that, “I know that
they wanted big wage increases at Plating because they felt they was treated differently at
Marble, and they wanted to get closer to Marble.” Minor also testified that one of the reasons
Plating fell behind Marble Ave. was that in the past Plating accepted lump sum payments in lieu
of general wage increases. Minor testified the Marble Ave. plant employees have machining
skills that Plating employees do not have. Minor testified, “But the employees at Plating feel,
you know, they plate to size, and very few plating operations plate to size.” When asked if the
skills at both plants were comparable, Minor testified, “Well, according to the company (they)
were not.” Minor testified the employees at Plating thought that some of the skill levels were
comparable to the main plant. Minor admitted he felt there is a higher skill level at the Marble
Ave. plant than the Plating plant, but testified some of the employees are performing
interchangeable functions at both plants with the employees working at the Marble Ave. plant
receiving much higher pay for similar work. Similarly, Cantale testified the Plating employees
cared about the disparity in wages between the Plating and Marble Ave. plants, and that wages
were an issue during negotiations. Busler also testified the Plating employees resented being
so far behind Marble in wages. Yet, Busler incredibly denied he was determined to narrow the
wage gap between Plating and Marble Ave. during bargaining.
26 GWI refers to general wage increase.

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The Union’s fifth economic proposal was delivered around 7 p.m. on April 30. It is stated
in paragraphs 7(e) and (g) the Union is willing to retain the employee medical contribution rates
in the expiring contract if the Respondent withdraws its proposal to increase medical and dental
contributions. Subparagraph 7(f) under insurance states, "Maintain exact coverage, including
drugs."27 Jordan credibly testified that, during the April 30 meeting, Minor made a request for
the formulary drug list, which is a list kept by the insurance company setting forth covered
drugs. Jordan testified the list is a dynamic list in that it changes over time as new drugs are
added to the market place. Jordan testified Minor made the request citing a grievance Busler
had filed during the term of the 1999 contract because the insurance would not cover viagra.28
Jordan credibly testified Minor also asked for copies of the master medical plans on the evening
of April 30, citing an incident where Van Almen had gone to the hospital for a skin ailment, and
was denied coverage. Minor stated he wanted the medical plans and the drug list to prevent
similar incidents from occurring in the future. Jordan testified Minor made the request for the
medical plans and the formulary drug list around 7 or 8 p.m., which was after normal business
hours.29 Concerning the formulary drug list, Jordan testified that he was sure Respondent’s
committee said we will get it for you.

Niebauer testified that although the Union requested a formulary drug list on April 30, it
was not provided by the May 15, bargaining session and she did not know if it was even
provided at the time of the unfair labor practice trial in June 2003. She testified she was also
not aware of the master health care plans being given to the Union any time prior to May 15,
and that neither of these items were given to the Union prior to the May 6, strike. She testified
that she thought these documents were in the possession of the Landing Gear Division's
corporate office. Niebauer testified if corporate had a document, and had no problem in
providing it, it could be provided to the Cleveland facility the next day. Niebauer testified she did
not know why it took Respondent about 3 weeks to eventually provide Minor the master
healthcare document after he requested it. However, she testified, “But I do know that Bill
stated several times he had been requesting that information for a long time. He stated that as
part of the grievance that was entered.”

Minor testified, as confirmed by Busler, that the Union wanted a copy of the Aetna
insurance plan because the Union had made a proposal that the benefits remain exactly the
same since it was felt Respondent had changed the benefits over the life of the 1999 contract.
Minor testified he wanted the plan to determine what the benefits were. He testified that Busler
had been trying to get that plan for some time. Busler testified he asked Minor to convey to
Respondent that for the past three years the Union had been requesting a copy of the medical
plans to be able to know what was covered so employees would not try to receive a particular
service for which there was no coverage. Busler testified that was why Minor asked for the
Aetna and Kaiser plans.
27 Item 7(f) had been included in the Union’s initial proposal on through all of its proposals
up to the May 6, strike.
28 Jordan testified that he was almost certain Respondent’s staff in Human Resources had a
copy of the formulary drug list.
29 Lemin confirmed Minor asked for a copy of the list of drugs and the medical plans on April
30. Lemin testified that, as far as he was aware, the list was not provided to the Union before
Lemin’s leaving Respondent’s employ on May 17. Yet, Lemin admitted there were no
representations to Minor on April 30, or at any other time Lemin was aware, that a formulary
drug list could not be produced. Niebauer’s testimony and her notes also confirm that, around 7
p.m. on April 30, Minor requested a copy of the formulary drug list and the master medical plans
citing Busler and Van Almen’s coverage disputes.

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The April 30 bargaining session went through the night to early morning hours of May 1.
Minor testified that, during this meeting, he had discussions with Jordan across the table, and
they also had off the record discussions. Minor credibly testified that: During a conversation he
had with Jordan, Jordan stated going back to the 1999 contract on health care concerning
employee contribution rates would have a huge cost and effect the outcome on the total
package. Jordan said they would have to eat the cost of the premium increases in the future,
which would cut into any wage increase.30 Minor credibly testified that he told the company
during the April 30 to May 1 sessions, concerning the health care package that “we still haven't
been provided the information we needed on the plan for hospitalization.” Minor testified he
received no response from the Respondent when he made this remark. In this regard, Lemin’s
bargaining notes for April 30 at 9 p.m., quote Minor as stating, “Asked for cost of insurance and
not get.” Lemin testified he did not remember Minor making the remark, but he knew there was
a reference in his notes about Minor complaining he had asked for the cost of health care
insurance and not received it.

Lemin credibly testified to the following: The Union’s seven economic proposal was
given on May 1 at around 1:30 a.m. and Respondent’s seventh economic proposal was
tendered in response. At that time, Respondent agreed to the Union’s outstanding proposal to
return to employee medical and dental insurance contribution levels as they were in the 1999
contract. Until that time, Respondent had been proposing increased contribution levels for
employees. Jordan also proposed to the Union that they engage in problem solving to hold
down escalating medical costs. The Union committee was enthusiastic towards Jordan’s
approach, and Cantale wanted to start right away suggesting they replace Aetna with Blue
Cross Blue Shield. Jordan testified he responded to Cantale’s suggestion by stating that
problem solving should occur after the contract was in place.

Lemin testified the Union’s eighth economic proposal was given to Respondent on May
1, around 4 a.m. Lemin testified he did not see anything in the proposal regarding co-pay
therefore he concluded medical cost sharing was resolved. Similarly, Jordan testified in the
Union’s eighth economic proposal, they were no longer continuing to propose the deletion of
employee medical contributions. The Union’s eighth proposal Section 7(f) states maintain exact
coverage including drugs. Jordan testified he interpreted this to mean stay with the 1999
contract. Jordan testified Respondent was not trying to change the existing medical plan in its
proposal. Jordan testified to his understanding there was an agreement on medical coverage at
the time, and there was no dispute on medical cost sharing. At that time, the Union was also
proposing a wage increase of a dollar an hour for each of the 3 contract years. 31
Continued
30 I do not credit Jordan’s denial of having told Minor that Respondent dropping its proposal
for increased medical cost sharing would impact on other features of the economic package,
and in particular on the wage increase. Jordan testified Respondent had looked at its proposed
wage increase, determined it was fair, and was unwilling to expand it because of its possible
impact on upcoming contract negotiations at its Marble Ave. and Troy plants. However, during
a meeting on May 28, Respondent did increase its wage offer beyond its final offer given on
May 1, while at the same time returning to its position that employees’ insurance co-pays should
increase. Moreover, Wright admittedly informed Van Almen on May 2, when attempting to
persuade him to recommend Respondent’s outstanding May 1, offer that the pie was only so
big. Wright’s remarks to Van Almen serve to corroborate Minor’s testimony that Respondent
was weighing the total costs of its offer, and that returning to the 1999 co pay levels, impacted
on Respondent’s wage offer and over all economic package.
31 For the first year, using $14.29 as the weighted average this in an increase of 6.99

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Continued

Minor testified that, concerning the Union’s eighth and last economic proposal, prior to
the strike, since Respondent agreed to the Union’s offer go back to the 1999 contract level for
employee medical contributions, the Union no longer proposed to delete all employee medical
contributions. Minor testified that the Union’s goal during the course of bargaining was to avoid
any increase in medical cost sharing and the Union prevailed in that goal. Minor testified the
medical issue was off the table as it related to cost sharing, but not as it related to the entire
package because Jordan had tied the size of the wage increase and other benefits which were
still in dispute to the amount the employees paid for their health insurance.

Jordan credibly testified to the following: After the Union made its eighth economic
proposal and before the Company made its final offer, Jordan had a side bar conference with
Minor. Jordan told Minor that Jordan’s outside limit on wages was a four percent increase the
first year and three percent for each of the two subsequent years. Minor said he was having
difficulty getting his committee to accept the three percent increases. Minor said if Jordan could
get it to four percent for each year, Minor would take it back to the membership. 32 Jordan
testified he called Dick Strehle, vice president of manufacturing, and Strehle called Wright.
Jordan testified he got authority for the four percent with the understanding Minor needed it in
order to get the contract where it needed to be.33 Jordan testified Respondent’s final wage offer
was a four percent increase per year, which was the equivalent of $.57, $.59, and $.62 for each
year of the contract as applied to the weighted average wage in the bargaining unit.

Jordan delivered the four percent per year wage increase offer to the Union, which took a
caucus. Lemin testified that, following the caucus; Minor stated the Union committee was not
happy with the economics or the wage increase. Jordan testified that Minor stated the Union
committee had looked at Respondent’s final offer and felt the wage offer was too small and they
would take it back to the membership but they would not sign a tentative agreement and they
would not recommend ratification.34 After Minor’s announcement there was another caucus,
percent, with the three year wage increase being over 20 percent.
32 Minor initially testified he did not recall discussing the possibility of four percent increase
with Jordan for all three years during this conversation, but he later testified, on cross-
examination, that, “I suggested -- Jordan had, I believe 4-3-3. I said, if you can go to 4-4-4, I will
take it back to the membership for a vote.” I do not credit Minor’s claim that, at that time, he told
Jordan that Minor was not going to recommend the four percent for each contract year to the
membership. Cantale testified Minor told Cantale that, during a sidebar conference, Minor and
Jordan discussed the possibility of a four percent per year wage increase. Cantale testified he
thought Respondent’s final offer was a four percent per year wage increase and that it was a
pretty good offer. Cantale at first denied that the Plating employee members of the Union
committee were unhappy with the wage offer. He then testified that “I guess he was not happy”
in reference to Busler. Cantale testified that Busler wanted the Union’s requested dollar per
hour increase, and he was not happy with four percent.
33 I do not credit Jordan’s testimony that Strehle and Wright almost lost their jobs because
they went beyond the scope of what had been established by their bosses when Respondent
went to four percent in wages for the second and third year. In this regard, Wright testified there
was no threat to Wright’s job for approving Respondent’s offer of four percent wages increases
for each of the three contract years.
34 Minor testified that, during the caucus, the Union committee’s reaction to Respondent’s
wage offer was negative. He testified that, following the caucus, Minor informed Respondent’s
bargaining team that the Union committee would present Respondent’s final offer to the
membership, but would neither sign a tentative agreement, nor recommend the offer. Minor

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during which Jordan had a side bar with Minor and Busler. Busler was wearing a shirt that said,
“In It For The Money,” and on the back it said, “Right John.” Jordan credibly testified that:
During the side bar, Jordan said to Minor that Jordan was very disappointed they could not
reach an agreement. Minor said the committee feels they have got to have more money in that
the catch up to the Marble facility was a major thing on their mind. Busler said Respondent
needed to give more money and could give more money. Busler referenced Respondent
President Dave Burner stating Burner had received a two million dollar increase. Busler also
said he had to have an office. Busler testified that during the caucus, Busler told Jordan that the
four percent wage increase was not enough.

Jordan credibly testified that: Following the side bar with Minor and Busler, the parties
reconvened at around 6 a.m. At that time, Jordan told the union they were taking a short view.
Jordan asked if there was anything Respondent could do to prepare the Union for their
ratification meeting. Minor responded he did not think there was anything other than producing
copies of the final offer.35 The parties parted around 6:30 a.m. on May 1.

The parties reconvened at 4 p.m. on Wednesday May 1. Strehle and Wright were there
in addition to Respondent’s bargaining team. They delivered a letter from Brian Gora, the
president of landing gear division, which Wright read and then gave a copy to Minor. The letter
states, in pertinent part, “Attached is the Company’s last, best and final offer for a new collective
bargaining agreement. It is open for acceptance until midnight, Sunday, May 5. If this offer is
not ratified by the Sunday deadline: (a) the offer lapses; (b) any future offer will be less
generous, including increased medical cost sharing; and (c) the Company will take whatever
measure it deems prudent to protect our customers, including the off-loading of Plating facility
work until the risk of a work stoppage has been alleviated.” Jordan credibly testified that: Minor
responded that Gora could not do that, and that he thought they were coming back at 4 p.m. to
negotiate further. Minor threw his pencil down and looked perturbed. Jordan responded they
were not there to negotiate. Minor said Gora’s statement that they would remove the offer if it
was not ratified was not legal. Minor said he could have struck Respondent at the end of the
earlier bargaining session when they did not have a tentative agreement, but he did not
because he hoped they were going to come back and work out an agreement. Minor said he
wanted the members to vote on the agreement. During the meeting, Busler said Respondent
knew they wanted more money, and he talked about Respondent’s ability to give more money
testified he told Jordan that the Union would not recommend the final offer because the Union
committee was looking for more benefits in the pension area, more raises, and that “They was
after more stuff.” Minor testified he did not remember exactly what he told Jordan because the
Union still had several items on the table. I have concluded that based on Lemin and Jordan’s
credited testimony, and admissions by Minor, that he told Respondent that the Union committee
was not recommending the offer primarily due to their dissatisfaction with the wage offer.
35 Similarly, Lemin testified Jordan asked the Union if they needed any information to
present to the membership. Minor said he did not need anything else, he would bring the
proposal to the membership for a vote. Niebauer and Tucholski confirmed Lemin and Jordan’s
testimony as to Jordan’s query and Minor’s response. Niebauer’s notes read that Jordan asked,
“Is there anything you need for your meeting?" General Counsel witnesses Busler and Cantale
admitted that Jordan asked whether there was anything he could provide the Union for their
membership meeting and Minor said there was nothing he could provide that they had
Respondent’s offer and Minor was just going to present the offer. Minor testified he was unsure
whether Jordan posed this question to Minor stating, “He might have. He might not. I don't
know.” Minor explained that it was customary for Respondent to prepare the final offer for the
Union to present to its membership.

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including Burner’s receiving substantial increases in his salary. Jordan credibly testified that, at
no time during the meeting, did Minor state he was having trouble evaluating Respondent’s final
offer or that he had requested and been denied information.36 Busler admitted that, during this
meeting, Busler characterized Respondent’s final offer as an insult and that Busler stated if
Respondent could pay its president two million dollars, they ought to pay the employees more
than they offered. Minor credibly testified that by the end of the session on May 1, the Union
had not received any of its requested information.

F. The May 2 conversation between Van Almen and Wright

Van Almen credibly testified that Wright came over to where he was working on May 2.
Wright said the company felt they offered the Union a good contract. Van Almen said he was
not there to negotiate. Wright said he believed health care was an issue they had taken off the
table. Van Almen said you did not give us the health care information and the employer costs
we had asked for. Wright said well the pie is only so big and that because health care was an
issue they had taken off the table, there was nothing left for anything else that the union wanted.
Wright acknowledged speaking with Van Almen on Thursday, May 2. Wright testified he told
Van Almen the pie was only so big, and he had gotten every last nickel out of it. Wright did not
deny that Van Almen mentioned Respondent’s failure to provide the Union with requested
health care information. Van Almen testified with specificity and in a credible manner
concerning this conversation, which Wright admitted in part. Noting the lack of a specific denial
by Wright, I have credited Van Almen’s account of the conversation, including his statement that
36 Niebauer, Lemin, and Tucholski confirmed Jordan’s description of the afternoon meeting
on May 1. Niebauer testified that during the afternoon meeting on May 1, after Gora’s letter was
presented to the Union, Minor threw his pen down on the table and said he thought Respondent
would come back for further bargaining. Minor said he could have struck Respondent that
morning but felt it was important to let the membership vote on the Respondent’s final offer.
Niebauer’s notes for the session read that Minor stated, “I've waited three hours here under the
disguise that the Company wanted to work out a settlement." In parenthesis it says, “He's very
angry, throws pen, paper down”. The notes reflect that Minor also stated, "I didn't strike them
this morning. I felt it was important to let the members vote." Niebauer testified Minor also said
Respondent could not take the offer off the table after the Union committee had agreed to take it
back to the membership. There is a statement in her notes attributed to Minor reading, “Can't
take it off the table after, after we said it, it will take it to members." Niebauer testified Busler
said Respondent’s final offer was an insult especially after the Respondent’s CEO Dave Burner
had reportedly received a two million dollar raise. Niebauer’s notes reveal that Busler stated,
“Did it, referring to the proposal, go to Mr. Burner for approval. He got a two million dollar raise."
Niebauer’s notes reflect that Busler said, “we won that battle with Texas. We're just trying to be
World Class under Russ. With the work that's coming our impression is this contract is an insult
and I've never said that before." Niebauer’s notes also state that Busler said, "He could not get
a friggin' desk to use for my Union business. It's not a win win situation. If I can't get a desk
and a chair, then it's not a fair proposal". The notes state that Jordan said, "Doug and Dick did
not come here to negotiate." Minor responded, "This is painfully obvious". Niebauer, Lemin,
and Tucholski testified that at no time during the afternoon session did Minor state he wanted
more information. In the face of the denials by Respondent’s witnesses, I do not credit Minor’s
claim that he stated, during 4 p.m. meeting on May 1, that Respondent had still not provided the
health care information Minor requested. None of the General Counsel’s witnesses
corroborated Minor’s claim that he raised the Union’s request for health care information during
this meeting. In fact, Cantale testified that Minor did not say at the meeting he needed more
time or more information before he could take Respondent’s offer to a vote.

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he informed Wright that Respondent had failed to provide the Union with requested health care
information and costs.37

G. The May 5 contract ratification meeting

The Union’s contract ratification meeting with bargaining unit members was held on
Sunday, May 5 at a hall in Cleveland, Ohio. Minor testified the meeting lasted around 2 hours.
Van Almen credibly testified that, during the meeting, Minor, as well as himself, were trying to
calm employees down. Van Almen explained that, “the company presented the contract to
them first, before we ever did. So they were pretty upset when they even got there.”38

Minor credibly testified as follows:39 Minor opened the meeting and explained
Respondent had presented their last and best offer. Minor read Gora’s letter. Minor said the
committee was not recommending the contract, but they had agreed to take it to a vote. Minor
reviewed the non-economics first, and there was very limited discussion. Then he reviewed the
economic proposal and discussed it with the employees. Minor then explained he had made
various information requests that had not been provided, and that if the contract was voted
down, Minor felt it should be an unfair labor practice strike because Respondent had denied his
information requests. Minor testified the vote was 53 to 5 against the contract offer. Minor
testified that, after the vote was taken, he stated Respondent was not providing information to
him, and he was going to file charges with the NLRB. Minor testified he told the employees if
there was a strike there was an advantage if they could get the strike ruled an unfair labor
practice strike in that they could not be replaced. Minor asked the employees not to go on strike
when they rejected the contract and they did not vote to strike at that time. He advised them to
keep working while Minor went to Federal Mediation to schedule another bargaining session.
Minor testified that, during the meeting, he told the employees he had requested health care
plans, productivity records concerning the Plating plant, and pension plan, and those records
were not provided.

Busler confirmed Minor’s testimony about the meeting. He credibly testified that: Minor
read the changes in the contract. Minor then said Respondent had not given the Union all of the
information they requested and it was hard to answer the people's questions on some issues as
a result. Minor said the bargaining committee considered it to be an unfair labor practice for the
company not to supply the information and that if employees voted to go on strike, Minor felt it
would be an unfair labor practice strike. Minor mentioned that the hospitalization and medical
coverage had been requested and not received because there were questions about that from
employees.40 At some point in the meeting a vote was taken to reject the employers last offer.
Continued
37 There is no complaint allegation that the Union renewed its information request on May 2.
Nevertheless, I have concluded that the contents of this conversation were closely related to the
underlying complaint allegation, and that the conversation itself was fully litigated.
38 Similarly, Pestello testified there were also shouts and obscenity by the employees and
that they were mainly upset about Respondent’s offer. Pestello testified the employees said
they were unhappy with the pension, the general wage increase, and one of the biggest things
was the cost of health care. Cantale testified employees were upset because wages were low,
the hospitalization would be going up, and as to money in the pension and 401(k).
39 I have credited Minor’s testimony as to what transpired at the contract ratification meeting.
Minor was the principle speaker at the meeting and had a fairly specific recall of the event.
While the meeting was somewhat boisterous, the General Counsel’s other witnesses, as set
forth below, confirmed Minor’s account of what transpired there.
40 Van Almen testified Minor mentioned health care and productivity numbers as requested

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Busler testified that, after the vote was taken, Minor said he was going to the Labor Board to file
charges against Respondent. Minor said if the charge was found to be in the Union’s favor, he
felt it would be an unfair labor practice strike. Busler testified it was stated at the meeting that if
it was an unfair labor practice strike employees could not be permanently replaced. Minor
asked the employees to hold off on strike because he wanted to give Respondent an
opportunity to revise its proposals.

Pestello testified that: Minor read Respondent’s proposal and stated it was their last and
final proposal. Minor said the Union Committee did not recommend it, nor would they sign it,
and there was shouting that we should go on strike. Minor said this is not the time to go on
strike, but they were filing an unfair fair labor practice suit against the Company for information
that they requested at negotiations and never received.41 Similarly, Cantale testified Minor
advised the membership not to go on strike and that he was trying to set up a meeting with
Respondent through Federal Mediation. Cantale and Van Almen confirmed Minor said he was
going to file some unfair labor practice charges against the company for not providing requested
information. Cantale testified that, during the meeting, employees said they needed more
information to know if they were going to have a good contract.” He testified the employees
wanted to know the cap on medical insurance.

Curtis McGuire participated in the May 6 strike and returned to work with the first group
called back. McGuire credibly testified to the following about the May 5 meeting:42 After
discussing the contract, Minor said Respondent was not providing the Union with necessary
information. Minor said he was going to file labor charges on Monday to see if he could get
information from the company. McGuire testified that he went out on strike for a few reasons,
included in which was Respondent was dragging its feet in providing requested information.
McGuire also testified he did not like the retirement or the medical benefits the Respondent was
offering. McGuire testified he wanted decent retirement and he was “looking to take care of my
health.” McGuire testified, “I didn't want to go into another year where I sign a three-year
contract, and only had medical for two-and-a-half years of it. Because our medical had a
change in between contracts without our knowledge. And I just -- me, myself, I like to see
information.
41 Pestello testified Minor informed the Local Union officials that the unfair labor practice
charge was over Respondent’s refusal to provide the Union with requested information.
Pestello also testified Minor discussed the matter with a couple of employees, but he thought
other employees had trouble hearing Minor explaining the reason for the unfair labor practice
charge because of the shouting in the room. I have concluded more people heard the Minor’s
explanation of the unfair labor practice charges than Pestello recalled, as the General Counsel’s
witnesses, who attended the meeting, both Union officials and non officials uniformly testified in
a credible fashion that Minor explained that the charges were over Respondent’s refusal to
provide requested information.
42 I found McGuire, considering his demeanor and the content of his testimony, to be a
particularly credible witness as to how Respondent’s refusal to provide information impacted on
his decision to strike. In this regard, McGuire, a long time employee, explained in detail
including his medical history the reasons why he was more concerned about health care and
retirement than he was about Respondent’s wage offer, and how Respondent’s refusal to
provide requested information in these areas impacted on his decision to strike. Respondent
argues in its brief that McGuire was a union steward towing the Union’s position in his
testimony. However, it was not established on the record that McGuire was a union steward,
nor were it to be so it would not have impacted on my decision to credit his testimony in full
since he testified in a detailed straight forward fashion and his testimony was worthy of belief.

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something locked in so you're stable.” McGuire testified Respondent did not provide medical
information, retirement benefits, and that if there was information they were supposed to have,
he felt the Union should have it so they could make a decent decision, and this played a role in
McGuire’s decision to strike.

Josip Mosnja was another striker who attended the May 5 ratification meeting. Mosnja
testified Minor addressed the employees at the meeting. When he was asked what Minor said,
Mosnja testified “He said he brought the contract forward that the company gave him, and that
he hadn't received any information that he had requested on our behalf about medical and
pension and other things on the bargaining table and he had not received what he had
requested, I believe a month earlier, and that he had continually asked for them…”. Mosnja
testified Minor discussed with the employees that he was going to file an unfair labor practice
charge. Mosnja testified he participated in the May 6 strike “because we weren't receiving the
information that Bill had requested so we could negotiate a contract with us, and I felt that
without the information that he was requesting, he couldn't do his job to the best of his ability
because the company wasn't cooperating and being fair about negotiating with us from that
nature.” Similarly, Van Almen testified he joined the strike for the “same reason I didn't give
them a tentative agreement at the negotiating table is because they weren't providing us with
information.”43

Minor credibly testified the pension plan, hospitalization plan, and the productivity
records “were the major items still outstanding at that time that were still major subjects of
negotiations, causing a package to be not recommended by the committee.” Minor explained,
during his testimony, the Union’s need for productivity records by stating “Plating had felt, you
know, that they were being tied in to the Cleveland operations, and they felt, you know, that their
productivity records, they had exceeded what the Cleveland Plant was doing, and they felt that
they should (not) be held back because of that.” Minor testified the Union needed the cost of
the pension plan because the Union was trying to get additional benefits, and Respondent
proposed a lot lower offer than the Union was seeking. Minor testified, “there was another issue
on the pension, you know, not only the costs but the makeup of the plan. We had agreed to
something in prior negotiations, which we had discussions throughout negotiations, and that
plan had not been provided yet either to show the changes in the plan.” Minor testified that the
Union wanted a copy of the medical plan, which included prescriptions, hospitalization, and
dental. Minor testified the Union also wanted to know the cost of the plan, “because the
company had proposed -- you know, originally, they had proposed, you know, big increases.
They had got off of those increases but Mr. Jordan had stated that this was a huge cost to the
company that definitely affected the overall economic package they presented. So cost of the
plan was still in effect, even though they withdrew the actual proposal for employee co-pays.”

43 Respondent, in its brief, asserts that Van Almen was not a credible witness because he
failed to acknowledge that during the May 5, meeting Minor asked the employees not to strike
as Minor was going to try to set up a meeting with the federal mediator. Van Almen testified, “I
don’t believe he said that. If he did, I don’t recall it.” However, Van Almen also testified that
Minor did not recommend that the employees strike during the meeting, and that he did not hear
Minor discuss it one way or the other. Given the tumultuous nature of the meeting, I do not find
that it impacts on Van Almen’s credibility that he did not hear or recall every thing Minor said.
Pestello testified there was a lot of shouting at the meeting, and Van Almen testified that both he
and Minor were trying to calm employees down.

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H. The May 6 strike and the Union’s initial Unfair Labor Practice charge

Minor filed an unfair labor practice charge over Respondent’s refusal to provide
information on May 6. Minor credibly testified that: Minor spoke to Busler by phone on the
morning on of May 6. Minor told Busler that Minor had been in touch with the federal mediator
trying to get a meeting scheduled and that Minor had filed charges with the NLRB. Around 3
p.m., on May 6, Minor received a call from Cantale stating the employees were walking out at 3
p.m. at the end of the first shift. Minor called the International for approval of the strike following
Minor’s receipt of Cantale’s call. The UAW requires that the International Union approve local
union strikes. Minor testified the International Union approved the strike close in time to when it
began as Minor called the International as employees were walking out.44

Busler credibly testified that: Busler worked the 7:00 a.m. to 3:00 p.m. day shift on May
6. Busler announced the strike on that date by word of mouth at around 2:55 p.m. Busler
spoke to Minor and Cantale before the strike that day. Busler testified he spoke to Cantale
around 9 a.m. and Minor before noon by phone. Busler testified he had basically the same
conversation Cantale and Minor. Busler told them the employees in the shop were upset
because they felt should not be working because it was helping Respondent, although
Respondent was not negotiating in good faith. Busler testified he told Minor the people were not
happy with the contract, they were not happy with Respondent’s refusal to provide any
information, and they did not feel that Respondent was negotiating in good faith.45 When asked
the reasons he went on strike Busler testified that he did not believe Respondent was going to
fairly compensate employees for the next three years, that the wage increase was insufficient,
and Respondent had not provided the Union the information to make an intelligent decision on
whether the costs Respondent was trying to put on the employees including medical costs were
justified. Busler testified in the days leading up to the strike he learned the opinions of co-
workers by direct remarks to him by employees, and employees reporting complaints of other
employees to him. Busler testified they were trying to give Respondent time to respond to the
Union’s request to meet the next day to try and work out a contract. However, Respondent was
stonewalling and not getting back to them. Minor’s advice to delay a strike was over ruled,
“Because we told Bill Minor what the attitude of the people in the plant was, that their attitude
was that we're helping the company out by putting the product out when they're not giving us
the information that we requested, not giving us a fair contract offer in our -- in the people's
opinions. And that they wanted to be out on the street instead of in the shop, which is what they
told Bill Minor on Sunday, and 24 hours later, we were trying to get the issue resolved, and it still
hadn't been resolved by the company.”46
Continued
44 Minor testified that a strike vote took place among the employees prior to the start of
negotiations and there was no separate meeting to vote on the strike once the employees
rejected the contract.
45 While Minor did not report this aspect of Busler’s conversation, I have credited Busler’s
testimony here. As the credited evidence established that the employees were loud and angry
over Respondent’s contract proposal on May 5, and during that meeting Minor had informed
them that Respondent had not provided requested information and that he was going to file an
unfair labor practice charge.
46 I did not find Cantale’s version of his phone call with Busler to be credible. Cantale
testified that Busler called Cantale on May 6 in the afternoon before 3 p.m. and Busler said he
still had not received any of the requested information, and they were having problems in the
shop as employees were asking to go on strike. Cantale testified Busler said he expected to
receive information because Busler and Tucholski had talked, and Busler told Tucholski if we do
not get any information by 3 p.m. we are going on strike. However, Tucholski credibly testified

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The parties stipulated that the strike began at the Plating facility on May 6, and that the
Union filed the initial charge in this matter on that date, which Respondent received on May 10.
On May 13, Respondent faxed a copy of the charge to its counsel David Hiller, who contacted
the Board’s regional office on that date. As a result, the Region faxed Hiller a copy of Minor’s
March 15 letter to Lemin requesting information. The credited evidence reveals that the picket
signs displayed during the strike read “UAW Local 2333 on strike General Plating.” One of the
signs contained the additional remark, “You just can’t fix stupid.”47

I. The May 15 bargaining session

1. The General Counsel’s witnesses

The first bargaining session after the start of the strike was held on May 15, at the
federal mediator’s office. Minor attended with the entire Union committee. Minor credibly
testified to the following: Minor told Jordan that Respondent’s final offer had been rejected 53 to
5. Minor testified that he explained to Jordan “wages, 401k, and there's a couple of non-
economic items, and pension were major issues with the employees.”48 During the meeting,
Jordan told Minor that Jordan wanted to talk about the unfair labor practice charge. Jordan
asked what information Minor had not received. Minor said they did not get any of it. Jordan
said Lemin provided some of it to Cantale. Cantale said the only thing he received was the
seniority list. Minor told Jordan, “it was much more than that I had requested.” Jordan replied,
“I know, someone on our team misplaced that letter.” Minor offered Jordan a copy of the March
15 letter, but Jordan said, “we have the letter now, and we got it from our attorney.” Jordan
briefly went through the items in the letter, and Minor told them the only thing they provided was
the seniority list. Then the mediator called for a caucus, during which, the mediator came back
into the room and said he wanted to know what Minor had not received from the letter. Minor
said he already told Jordan he had not received any of it. Minor thought the mediator said he
was told Cantale had received part of it. Minor asked Cantale who said he received the
seniority list, including the date of birth and nothing else.49 Minor told the mediator he was not
he was not at the Plating facility on May 6, and he denied having a conversation with Busler on
that date. I do not credit Cantale’s testimony concerning Busler’s alleged conversation with
Tucholski, over Tucholski’s denial. In addition to considerations of demeanor, I note Cantale’s
testimony about the conversation was hearsay, and that Busler failed to corroborate it.
47 Minor testified that normally UAW picket signs say, “UAW on strike,” however, he has
seen some signs with writing on them in other strikes that also state unfair labor practice strike.
48 Jordan, Lemin, and Niebauer confirmed that Minor stated that wages, the pension, 401(k),
and COLA stood as impediments to an agreement.
49 While I find that the discussion occurred as Minor relayed it, I have concluded that he was
mistaken about his conclusion that Respondent had provided the Union with a current seniority
list in response to the March 15 letter. In this regard, Valentine testified he had an old list, which
he probably received from Busler, not a current list, which was what the Union requested.
Valentine testified he thought Busler received the list from Respondent as part of the terms of
the 1999 agreement, wherein Respondent had an obligation to furnish the Union with an
updated seniority list. Moreover, Cantale testified, concerning Minor’s March 15, letter, that no
information was provided to the Union before the May 6, strike began. Cantale testified he did
not recall if he provided Minor with a seniority list prior to the start of negotiations. I have
concluded based on the testimony of Valentine and Cantale that the seniority list Minor was
referencing in his testimony and at the meeting was an old list provided under the terms of the
1999 agreement, and not pursuant to Minor’s March 15 letter.

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there to bargain over an unfair labor practice strike. Minor said he would let the National Labor
Relations Board handle that. The mediator left the room and returned a few minutes later and
asked if Minor sent the March 15 letter by certified mail. Minor said he had not. The mediator
left then returned and said Respondent claims they did not receive your letter.

Busler credibly testified that: There was a discussion of the March 15, letter, during the
May 15, meeting, relating to Minor’s filing the unfair labor practice charge. Minor said they were
not there to discuss the Labor Board charge; they were there to negotiate a contract. Minor also
said he had not received any information requested in his March 15 letter. Minor asked Jordan
if he needed a copy of the March 15 letter, and Jordan replied he had already received it from
the Labor Board. Respondent’s committee talked among themselves, and then Jordan said that
one of the committee members on his team had misplaced the letter. At that point, Lemin
blushed and hung his head. Busler testified Respondent took a caucus. Then the mediator
came back in the room and asked if Minor had sent the letter by certified mail. Minor said no.
The mediator then said Respondent was saying they had not received the letter at all.

Van Almen credibly testified that, during the meeting: Jordan wanted to know about the
unfair labor practice charges against the company. Minor responded they were not there to
discuss that, but were there to get a contract. Minor said they had sent Respondent a letter
requesting information, and they still had not received anything. Van Almen testified that, in
response to Minor’s remark, there was some whispering at the other side of the table between
Jordan, Lemin, and a woman on Respondent’s committee, and “then John Jordan made a
statement that one of his team misplaced the letter.” Similarly, General Counsel witnesses
Cantale, Valentine, Morrow, and Pestello all testified that, during the May 15 meeting, Jordan
stated someone from Respondent’s team had replaced Minor’s March 15 letter. Valentine and
Morrow testified to the effect that, when Jordan made the remark, Lemin looked embarrassed.

2. Respondent’s witnesses

Jordan testified that, during the May 15 session, he asked Minor what he wanted
concerning the March 15 letter, and Minor said they were not there to negotiate the Board
charge. Jordan testified, “I went on to say to him; Bill, let me just say that I don't understand
what's going on. I stated, I said, if you had mailed the letter, and let me suppose further, if your
secretary was supposed to have done this, and if, as you suppose it was mislaid, what bothers
me, Bill, about the whole process of my hypothetical is why would you not say something
between the time that I was here, at the beginning on April 5 to now.” Jordan testified Minor
responded that he was not there to negotiate the letter and the charge, they were there to try
and get a contract, and that was the only thing he was going to talk about. Jordan denied
making any statement that the letter had been received and misplaced.50 Jordan testified Minor
did not offer to give Jordan a copy of the March 15 letter. Jordan initially testified Minor did not
tell Respondent what information the Union still needed. Jordan later testified that, “I recall, very
vividly, that he did not want to talk about. I asked him specifically what is it that you don't have
and Bill said, look, I'm not going to discuss that because I'm here to negotiate not answer an
NLRB charge. That's precisely what Bill said.” Jordan then denied that Minor said that he did
not receive any information requested in the letter.

50 Jordan testified that no one from Respondent told him that they had seen the March 15
letter before Hiller obtained it from Region 8 on May 13, or that the letter had been received and
misplaced.

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Lemin testified that, during the May 15 meeting, Jordan asked Minor if he wanted to go
through the March 15 letter and see what information was lacking. Lemin testified Minor
refused and Minor said, “he was there to negotiate a contract and not there to negotiate an
unfair labor practice.” Lemin denied that Jordan said a member of Respondent’s team
misplaced the letter. Lemin testified that Jordan “made an assumption of format where assume
that you had sent the letter on March 15th or your secretary had sent it on March 15th. Assume
that it got to Goodrich and assume that it did not get to Tom Lemin. Why would you just be
bringing it up for the first time now, versus having brought it up throughout the whole entire
bargaining session.” Lemin testified that he thought Jordan did use the word misplaced in his
statement stating, “I think he said assume it was misplaced at Goodrich.” Lemin claimed he did
not remember Minor, during the May 15 session, stating he had asked for information several
times and not received it. He testified Minor may have said it.

Niebauer testified that, during the May 15, meeting, Jordan asked Minor what
information he still needed to receive from the March 15 letter. Minor responded he was not
there to discuss an unfair labor charge; he was there to bargain a contract. However, at a later
point in her testimony, Niebauer admitted Minor said that he had not received any of the
information that was requested in Minor’s March 15 letter. She testified Jordan said, “I don't
understand. Suppose your secretary typed and mailed the letter. Suppose Goodrich received
it. Suppose somebody at Goodrich misplaced it. Why didn't you say anything during this
negotiations.” She then claimed Minor did not respond to Jordan’s question except to say he
was not there to discuss the unfair labor practice charge. Niebauer denied that Jordan stated
one of Respondent’s team members misplaced Minor’s letter. Niebauer’s notes for the May 15
bargaining session contain the following:

John: Details around your letter w/ unfair labor practice charges, which items have you
gotten to date?".
Bill: None
John: What you mentioned was F (Health Care)
Bill: Mentioned it numerous times.51
Bill: You sent those costs to ees home -not to us circumvented the bargaining committee
it’s too late now after an unfair labor practice strike starts.

3. Credibility

I found, considering the demeanor of the witnesses, the General Counsel’s witnesses to
have testified in a consistent and credible fashion that Jordan brought up the March 15 letter
during the meeting, and that Minor responded that he did not want to discuss it. Thereafter,
Jordan asked Minor what information he had received that was set forth in the letter, and Minor
51 Niebauer initially testified she understood Minor to be saying, as referenced in her notes,
that he mentioned healthcare issues numerous times during negotiations, not a request for
information pertaining to healthcare numerous times. She testified the “F (Health Care)” in her
notes was a reference to Section 7(F) in the Union’s proposal on health insurance. I found this
explanation to be self-serving and contrary to the plain reading of the notes. Moreover,
Niebauer later testified she did not know why it took Respondent about 3 weeks to provide
Minor the master healthcare documents after he requested it. She then testified that, “But I do
know that Bill stated several times he had been requesting that information for a long time. He
stated that as part of the grievance that was entered.” Niebauer testified if corporate
headquarters had a document, and had no problem in providing it, it could be provided to the
Cleveland facility the next day.

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responded that he had not received any of it. During the conversation, Jordan said that one of
the committee members on his team had misplaced the letter. At which point Lemin, to whom
the letter was addressed, began blushing and hanging his head. Minor offered Jordan another
copy of the letter, and Jordan replied that it was not necessary because Respondent’s counsel
had since provided him a copy. In addition to the consistent testimony of the General Counsel’s
witnesses on the matter, I note there is circumstantial evidence supporting their testimony.
First, it was customary for Minor, as admitted by Jordan, to prepare a written information
request prior to the start of negotiations, and Keck credibly testified that she typed the letter, and
deposited it for mailing in accord with the Union’s office procedures. While the letter was sent
by regular mail, there was no claim that Respondent, prior to this instance or thereafter, ever
had a problem receiving mail from the Union.

I did not find Jordan’s testimony that Minor refused Jordan’s request to talk about the
letter and thereafter Jordan presented Minor with a hypothetical which included the supposition
that one of Respondent’s officials mislaid the letter to be very convincing. First, given Jordan’s
claim that Minor refused to discuss the letter, there was no basis for Jordan to hypothesize that
Minor’s secretary had typed and mailed the letter, which Respondent’s witnesses testified was
part of Jordan’s hypothetical. Rather, it appears that Jordan’s hypothetical was created as part
of Respondent’s trial defense after Respondent had the luxury of hearing Minor and Keck’s
testimony that secretary Keck typed and then deposited the letter for mailing for Minor. Thus, I
do not credit Jordan, Lemin, or Niebauer’s claim that Jordan presented such a hypothetical to
the Union during the meeting. Moreover, considering his demeanor, I found Jordan to be an
individual who spoke in a direct fashion, and that it was unlikely that he would have danced
around the issue at the meeting by presenting a hypothetical, as opposed to directly asking
Minor why he did not display the letter. Jordan also denied Minor told Jordan that he had not
received any of the requested information during the meeting. Niebauer’s admission and
Niebauer’s notes undercut Jordan’s testimony on this point. Niebauer testified and her notes
reveal that when Jordan asked what information Minor had received that was requested in the
letter, Minor replied none of it. Thereafter, Jordan acknowledged, as set forth in the notes, that
Minor had requested health care information, and Minor replied that he had done so numerous
times. In this regard, Niebauer later testified that Minor stated several times during negotiations
that the Union had been requesting the master health care plans for a long time. Thus, I have
concluded that, during the May 15, meeting, Jordan told the Union committee that one of
Respondent’s committee members had misplaced the March 15, letter, at which point Lemin,
the addressee on the letter, showed signs of embarrassment. I find that Jordan’s statement to
the Union committee constituted an admission that the letter had been received and
misplaced.52
Continued
52 In Associated Machines, Inc., 114 NLRB 390, 396 (1955) enfd. 239 F.2d 858 (6th Cir.
1956), it was stated that, “The generally accepted rule in most United States jurisdictions is that
proof of the existence of an office practice or custom in the mailing of letters, together with proof
that the custom was followed in the particular instance, constitutes sufficient evidence of mailing
to support a presumption of due receipt by the addressee. This presumption is strengthened
where, as in this case, it is shown that the letter was not returned to the sender, although the
envelope bore a return address, and also that other letters mailed by the sender at the same
time as the letter in issue were received by their respective addressees. Furthermore, the
addressee’s positive denial of receipt does not nullify the presumption but merely creates an
issue of fact with such weight to be given the presumption as the trier of facts thinks it entitled
to, the burden of proving receipt remaining throughout on the party who asserts it.” In that case,
a presumption of receipt of a representation petition was found where regional office supervisor
of “affidavit compliance” testified to a routine office procedure where she addressed envelopes

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Continued
with a return address, inserted a petition in the envelope and deposited the envelope on a desk
which was used for outgoing mail, and either she or a subordinate in the normal course of
business removed the mail from the desk that same evening and placed it in a U.S. mail box. A
file in the office was maintained for returned mail, and the file did not contain the disputed letter
as being returned. It was also concluded there that the testimony of the respondent’s witnesses
denying receipt of the letter was not worthy of belief. In L.A. Baker Electric, 265 NLRB 1579,
1588 (1983), it was stated that when a litigant seeks “to raise a presumption with regard to a
letter’s receipt by presenting evidence descriptive of routine office procedures followed with
respect to mailings, most jurisdictions consider such evidence insufficient to raise a presumption
regarding the letter’s receipt, unless the proffered witness claims actual personal knowledge
that the routine was, in fact followed completely. (Citations omitted.) Monsoons’ conclusionary
testimony, that she ‘always’ follows the same procedure, can hardly be considered sufficiently
detailed or precise to raise a presumption with respect to the designated letter’s receipt.”
Citing the L.A. Baker decision, counsel for the General Counsel states at page two of his
brief that, “Minor did not personally mail the letter so General Counsel cannot rely on any
presumption of receipt by the Respondent.” Similarly, Respondent cites U.S. v. Wolfson, 322 F.
Supp. 798, 813-14 (D. Del. 1971), affd. 454 F.2d 60 (3rd Cir. 1972), cert. denied 406 U.S. 924
(1972), for the proposition that where an officer of the company who had a letter placed in an
outgoing mail basket would not have personal knowledge that the mail clerk actually deposited
the letter in the U.S. mail, there must be testimony of the mail clerk that the letter was deposited
in the U.S. mail in order to create a presumption of receipt. However, the court in Wolfson
noted the authorities were divided and that some courts have held that mailing may be
presumed without the testimony of the clerk. Regardless of which standard is applied, the court
in Wolfson stated that even assuming the requirements necessary to raise the presumption of
receipt are not met, the actual receipt of a letter can be established by circumstantial evidence.
Id. at 813-14.
In the instant case, Keck credibly testified to a standard practice for the mailing of letters,
and identified the March 15 letter as one she typed because her initials appeared on the letter.
She credibly testified that it was typed on March 15 for mailing, and that on that date, based on
her practice; Keck deposited the letter in the Union’s outgoing office mailbox. Keck also
produced her file copy of the letter and she testified that she was unaware of the mail being
returned to the Union’s office. While Keck was unable to identify who in the Union’s office
removed the letter from the outgoing box and deposited it in the U.S. mail, it was concluded that
such testimony was not necessary to establish a presumption of receipt in Associated
Machines, Inc., supra. I have concluded that Keck’s testimony concerning the circumstances of
this letter was specific and suggests a strong likelihood that the letter was in fact mailed on the
date Minor signed it. I do not find it necessary to determine whether Keck’s testimony is
sufficient under Board law to establish a presumption of receipt on the part of the Respondent.
Rather, I conclude her testimony, along with Jordan’s informing the Union committee on May
15, that a member of Respondent’s committee had misplaced the letter, establishes that
Respondent had in fact received it, and I have discredited the testimony of Respondent’s
witnesses to the contrary. In doing so, I have considered but rejected the testimony of certain of
Respondent’s witnesses that there was a search for the letter after the filing of the Union’s unfair
labor practice charge. I did not find the testimony of this purported search to be worthy of belief.
Some of the testimony was based on a hearsay statement from an individual who no longer
worked at the Cleveland plants’ human resources department, was out of state at the time of the
trial, and not called as witnesses. However, the hearsay account of this absent individual’s
statement was relayed through the testimony of Lemin. Since I have concluded Lemin’s denial
of receipt of the letter March 15 letter prior to May 13 was unreliable, I have discredited his
claims that other individuals made similar statements as to the letters receipt.

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_________________________
J. Lemin’s May 17 letter and Minor’s May 23 response

By letter dated and hand delivered on May 17, Lemin wrote to Minor and attached
information in response to Minor’s March 15 letter. Lemin stated in the letter that May 17, was
his last day at Respondent, but Pat Borah was prepared to meet with Minor on Monday, or as
soon as Minor’s schedule permits if the enclosed information needs to be supplemented prior to
the parties’ next bargaining session. Lemin stated in his May 17, letter that the following
information was attached:

1. Attached at Tab #1 is the list of all hourly rated Plating employees, their job
classification, hourly rate, date of hire, date of birth and gender.
2. Because sickness and accident coverage is 100% self-funded, there is no insurance
‘contract’ and Goodrich does not pay any “premium.” (Aetna processes claims for a
monthly fee of $2.88 per employee.) The weekly S & A benefits is $260.00. The
Summary Plan Description is attached at Tab #2.
3. The Aetna Managed Choice plan is entirely self-funded so there is no insurance
“contract.” Aetna’s role is to process claims for a fee. Regarding the Kaiser HMO
option, our agreement with Kaiser is attached at Tab #3. Also attached at Tab #3 is
a letter from AON setting forth the premiums and employee contributions.
4. The life insurance coverage is $22,000.00 and the Company’s monthly premium is
$3.85 per employee.
5. Each employee’s accrued vacation hours as of May 1, 2002 are attached at Tab #5.
6. Because the pension and 401(k) plans are self-funded, there is no “contract.” The
Company’s matching contribution of 50% of the employee’s contribution up to 6% of
the employee’s gross earnings represents the Company’s 401(k) cost. Regarding
the cost of the pension, attached at Tab #6 are the Company’s most recent 5500
filing and audited financial statements. Also attached at Tab #6 is a list of all Plating
retirees, their age and date of retirement.

By letter dated May 23, addressed to Borah, Minor responded to Lemin’s May 17,
letter.53 Minor stated in the letter the information Lemin provided was incomplete, and Minor
asked for the following information which he stated was omitted from Lemin’s May 17, letter:
I have considered the testimony of Respondent witness Christina Bratun, an administrator,
who distributed the mail for Respondent’s Cleveland human resources department in 2002.
Bratun testified that she did not read incoming mail, but opened the letters, date stamped them,
and delivered them to the addressee. Bratun testified that she handled between 2 and 15
pieces of incoming mail a day, and testified to a certainty that she did not see Minor’s March 15
letter, prior to May 13, when a copy was received from Respondent’s counsel. There were 40
business days from the March 19, the estimated day of arrival of the March 15, letter at
Respondent’s facility, and May 13. On average, according to Bratun’s testimony, she would
have handled eight pieces of mail a day, or 320 pieces of mail, without reading the letters. I
find, in these circumstances, Bratun’s claims to have recalled when she first saw Minor’s March
15, letter at the time of her testimony in June 2003 not worthy of belief. I also do not credit
Bratun’s testimony that she was asked to search for the March 15, letter. Moreover, even
assuming, some type of search was conducted for the letter, I do not find that is inconsistent,
with Jordan’s admission that the letter had been received but misplaced.
53 Lemin, in his May 17, letter, and Minor, in his May 23, letter, engaged in banter as to their
positions about what occurred during negotiations concerning Minor’s information requests. I
have not repeated the statements contained the letters here, as I found it to be mainly repetitive
of testimony at the trial that I have previously credited or discredited.

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1. A copy of the Aetna Managed Choice plan. Obviously there has to be a plan,
otherwise how can Aetna know what benefits and or benefit levels Employees are
entitled to? The Union’s Senior steward at Plating has been asking for a copy of this
plan for at least a year prior to my request on March 15, 2002. If Aetna doesn’t have
a plan then certainly Goodrich must have a plan or a description of some kind.
2. If there is no “contract” as Mr. Lemin indicated on the pension plan, please provide a
copy of the current pension plan for this group of employees. All I received from Mr.
Lemin on May 17th was a 5500 report and financial data.
3. A copy of the current 401(k) plan that covers the Plating Operation employees.

Minor also stated in his May 23, letter that, “during our negotiations, the Union requested other
information verbally which was never provided to the Union.”

1. On April 5th, as a result of Mr. Wright’s presentation, the Union asked for separate
production records for the Plating Operations. Mr. Wright agreed to provide but as of
this date nothing has been provided.
2. On April 15th the union asked for ISO 9000 standards, this was a result of the
Company’s statements that certain operations were required per ISO 9000, again
nothing has been provided.54
3. On April 30th the Union asked for information dealing with Emergency and or Non-
Emergency visits to Kaiser. Again this was requested because of the Company’s
contention that part of the health care cost increases was a result of non-emergency
use of emergency facilities. The Union need breakdown for these costs for each
individual who used either of these services, including any information the Company
or Kaiser has to support your claim that this is resulting in an increase in health care
costs.

Minor ended the letter by stating the Union is requesting this information be provided as soon as
possible.

K. The May 23 Newspaper article

During the course of the strike, a reporter from the Cleveland Plain Dealer interviewed
Busler, and there was an article published in that paper on May 23, which contains quotes from
Busler. There is a statement in the article that "The union is seeking a $1 an hour increase for
each of the three years. The company has offered yearly increases averaging 59 cents. The
dispute is in the hands of the Federal Mediator." Busler testified he provided the reporter with
this information when the reporter asked him what the parties were discussing concerning
wages, and that her question was limited to wages. The Plain Dealer article does not say
anything about withholding information or an unfair labor practice. Busler explained the reporter
did not ask Busler if the Union had filed an unfair labor practice charge, or if he thought it was
an unfair labor practice strike.

L. The May 28 bargaining session

On May 28, the parties attended a bargaining session held at Federal Mediation. Minor
testified the parties made what they called supposals of what would occur if they each did
54 Minor testified the Respondent’s subsequent letter of May 31, provided an acceptable
response for the Union’s request for ISO standards.

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certain things but that none of the supposals were acceptable to either party. Minor testified
that, as of that time, Respondent had withdrawn its offer final offer based Gora’s letter that it
would be withdrawn if it was rejected. Minor testified Respondent had made a verbal offer on
May 28, which had health care co pay back in it as an issue, and other things which lead Minor
to conclude that it was a regressive proposal from Respondent’s May 1 final offer. Niebauer
testified that during the bargaining session on May 28, the Union was still demanding a one
dollar an hour annual wage increase. She testified Respondent made a different proposal
during the May 28 meeting than that set forth in its pre strike final offer. Niebauer concurred
with Minor’s terminology stating they labeled their proposals as supposals.

Niebauer testified her notes reveal Respondent had a new proposal on May 28, which
had wage increases greater than Respondent offered on May 1. She testified Respondent also
had a different proposal on medical benefits than it had proposed on May 1 in that Respondent
was proposing that employees contribute percentages toward the premium cost in each of the
three years of the contract. They were proposing 5 percent the first year, 10 percent the second
year, and 15 percent the third year. Niebauer testified these were higher contribution rates than
were in the parties’ 1999 contract, and it was higher than Respondent’s May 1 final offer.
Niebauer’s notes for May 28, read that the Union made a verbal proposal at 11 a.m. The notes
then state:

Company’s Counter Proposal 5/20 Noon
1. GWI 75(cents), 60(cents), 65 (cents)
* * *
5. Medical Insurance ee contributions 5%, 10%, 15%

12:20 Bill wont respond as long as medical is on the table. Would take our last best
final.

Company’s Counter Proposal (never given as Union refuses med. Disc.
5. Medical Insurance 3%, 6%, 9%
1. GWI $1, .75, .65.55

M. The May 31 correspondence

By letter to Minor dated May 31, Borah stated, in response to your letter dated May 23,
2002, which the Company received on May 29, 2002, enclosed is the following information:

1. A copy of the Aetna Managed Choice plan.
2. A copy of the current Plating pension plan.
3. A copy of the current 401(k) plan that covers the Plating employees.
4. A copy of the AS9100 Aerospace standard.
5. A copy of the Kaiser Medical Utilization Report.

55 Niebauer claimed she could not recall if the parties actually exchanged proposals on May
28, but testified Respondent was prepared to make a counter proposal on this date, which had a
wage increase greater than the one Respondent proposed on May 1. However, Niebauer’s
notes clearly reveal that the parties did exchange proposals on May 28, and Respondent’s
proposal included an increase in its wage offer, in exchange for an increase in the employees’
costs for medical co pay. Niebauer’s notes confirm Minor’s testimony that Respondent made a
regressive proposal on health insurance costs during the May 28 meeting.

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Borah stated in the letter, “I need further clarification regarding your request for ‘Production
records for the Plating Operations’. Can you please be more specific as to what production
records you are requesting?” Borah stated, “If you have any further questions, please feel free
to give me a call.” 56

Minor testified Jordan called him at home on the evening of May 31, and told Minor that
Borah’s May 31, letter and attached documents had been delivered to Minor’s office after the
office was closed. Minor went to his office Saturday evening June 1, and saw the material.
Minor testified that after receiving Borah’s May 31 letter, all the Union was missing was the
productivity records and a few pages from the pension documents, which were not provided
until September. Minor testified the following week he went to the UAW convention, and Minor
did not return home until June 10. On June 10, Minor called the Federal Mediator and asked if
a meeting was scheduled the next day. The mediator replied he had he had not heard anything
from Respondent, and he was not going to schedule anything until they called him.

N. Respondent hires permanent replacements

On June 14, Minor received a letter from Respondent President Brian Gora, dated June
12. The letter reads, in pertinent part:

In order to protect the long-term viability of the business, we have begun to hire
permanent replacement workers and have made a preliminary decision to permanently
off-load all Boeing commercial and the C-17 main shock strut, cylinder and piston work.
We are available to discuss this off-loading decision and its effects upon your members.
In the meantime, I want to make clear that so far as the company is concerned there are
no offers outstanding or, if that is contrary to you understanding, all prior offers are
hereby withdrawn.

On June 14, Minor sent by Fax and certified mail a letter to Gora stating the Union is
making an unconditional offer to return to work with the right to continue to negotiate. By letter
dated June 14, Gora informed Minor that Respondent was in receipt of the Union’s letter
regarding an unconditional offer to return to work. Gora stated a further response would be
provided on Monday, June 17. By letter dated June 17, to Minor, Gora stated Respondent had
suspended the hiring of permanent replacements, but that a substantial number had already
been hired before Respondent received Minor’s letter. Gora stated, “We currently have only
twelve (12) positions which are not filled by a permanent replacement employee. We will recall
twelve (12) strikers for Wednesday morning.”

O. Remaining correspondence

By letter dated July 19, to Borah, Minor replied to Borah’s letter of May 31. Minor stated
that in response to Borah’s letter, the Union was requesting the following information:

56 By letter to Borah dated May 31, Minor wrote, “As a clarification to my May 23, 2002 letter
to you, please include the monthly premium for family and single coverage for hospitalization as
part of the plan documentation requested. These costs were originally requested by the Union
on March 15, 2002, but has still not been provided by the Company.” By letter dated June 7,
2002, Borah wrote Minor, “Per your request, enclosed is another copy of the monthly premium
for family and single coverage for hospitalization. These rates were in the third section of the
binder that was hand delivered to you on May 17th.”

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1. Daily productivity numbers for the Plating Operations for the last calendar year prior
to May 1st 2002.
2. Scrap records for the Plating Operations, including the percentage of scrap for total
production at the Plating Operations along with the total dollar amount of that scrap,
on a monthly basis for the term of the expired contract.
3. Any and all records dealing with shipping requirements, percentage of on-time
delivery etc., on a monthly basis for the term of the expired contract.
4. In my prior letter to you on May 23, 2000, I requested various information on Kaiser
emergency and non-emergency visits. The information you provided on May 31st
deals with employees division wide and is not specific to Plating. Would you please
provide information which is specific to the Plating employees? 57

Tucholski responded Tucholski responded to Minor’s July 19, letter by letter dated
August 1, 2002. Tucholski stated:

1. ‘Daily productivity numbers for Plating Operations for the last calendar year prior to
May 1, 2002.’ As was explained to you during negotiation sessions last spring,
productivity at Goodrich is measured by both ‘efficiency’ and ‘utilization.’58 In order
to calculate efficiency, there needs to be standards set by a manufacturing engineer.
Although such production standards are set for the Landing Gear’s machining
operation, no such standards have ever been set for the plating operation.
Therefore, with respect to plating, productivity cannot be calculated.
Beginning this calendar year, the plating operation did begin tracking ‘utilization.’
Plating’s utilization numbers have been posted on the bulletin board at the plant
since January of 2002. Enclosed is a chart setting for the utilization figures for the
time period January 1, 2002, through April 30, 2002.
2. ‘Scrap records for the Plating Operations, including the percentage of scrap for total
production at the plating Operations along with the total dollar amount of that scrap,
on a monthly basis for the term of the expired contract.’ Goodrich does not measure
scrap by percentage at the site level. Goodrich measures the dollar value of the
57 Minor gave the following explanation for the delay between Borah’s May 31 letter and
Minor’s July 19 response. Minor testified that as of May 31, he was still in need of Plating
production records. Minor testified that it took him six weeks to inform Borah what he wanted
because after he received the May 31 letter, Minor went to the UAW convention in Las Vegas
from June 1 to 10. Minor credibly testified that when he returned, he called the mediator to see
if they could meet but June 25 was the next date, and then in the same week Minor returned
there were the replacement issues and the unconditional offer to return to work which became
the priority at the time. Minor testified he was reviewing records, and “It took me some time
period to do it.” He credibly testified that Respondent’s attorney Hiller made an offer on June
25, and the productivity number “probably wouldn't have made a whole lot of difference at that
point. It wasn't a major now as it was prior to May 1st.” Minor testified that Respondent’s offer
of June 25, impacted on the Union’s need for productivity information because now there was
what Minor considered to be a huge take away proposal including a company proposal
eliminating the union security agreement and of other items which were far more important than
productivity at that time.
58 I do credit Tucholski’s statement in his letter that Respondent’s productivity
measurements were explained to the Minor “last spring.” Rather, as set forth earlier, I have
reached the opposite conclusion, and I find the statements in Tucholski’s letter about what
occurred during prior negotiations were written to create a record for the unfair labor practice
case.

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scrap. A chart showing the dollar value of scrap for the three-year period requested
is attached. Monthly scrap reports are available for your inspection.
3. ‘Any and all records dealing with shipping requirements, percentage of on-time
delivery etc., on a monthly basis for the term of the expired contract.’ I am not
entirely clear of what you mean by the reference to ‘shipping requirements,
percentage of on-time delivery, etc.’ Daily schedule sheets, maintained by Paul
Pepin, are available for you inspection. I have enclosed a chart summarizing this
information for the time period January 1, 2002 through April 30, 2002.
4. ‘In my prior letter to you on May 23, 2002, I requested various information on Kaiser
emergency and non-emergency visits. The information you provided on May 31st
deals with employees division wide and is not specific to Plating. Would you please
provide information that is specific to Plating employees?’ Goodrich doe not have
such information that is specific to Plating employees. Pat Borah has telephoned
Kaiser and asked for such information, but was told that Kaiser does not have and
cannot segregate such information either.

On August 23, Minor sent a letter to Pat Borah stating that several pages were missing
from the pension plan Respondent had provided. By letter dated September 3, 2002,
Respondent provided the requested information.

P. Analysis and conclusions

1. The information requests

a. Legal principles

In Ethan Enterprises, Inc., 342 NLRB No. 15, JD slip op. at 6-7 (2004), the Board
approved the following principles concerning a union’s right to requested information:

The duty to bargain in good faith requires an employer to furnish information requested
and needed by the employees' bargaining representative for the proper performance of
its duties to represent unit employees of that employer. NLRB v. Acme Industrial Co.,
385 U.S. 432, 437 (1967). A Union's request for information regarding the terms and
conditions of employment of the employees employed within the bargaining unit
represented by the union, is "presumptively relevant" to the Union's proper
performance of its collective-bargaining duties, Samaritan Medical Center, 319 NLRB
392, 397 (1995), because such information is at the "core of the employee-employer
relationship." Graphics Communications Local 13 v. NLRB, 597 F.2d 267, 271, fn. 5
(D.C. Cir. 1979), thus it is relevant by its "very nature." Emeryville Research Center v.
NLRB, 441 F.2d 880, 887 (9 Cir., 1971). th
* * *
In making this determination of relevance, the Board has followed the following
principles:
Wage and related information pertaining to employees in the bargaining unit is
presumptively relevant, for, as such data concerns the core of the employer-
employee relationship, a union is not required to show the precise relevance of
it, unless effective employer rebuttal comes forth; as to other requested data,
however, such as employer profits and production figures, a union must, by
reference to the circumstances of the case, as an initial matter, demonstrate
more precisely the relevance of the data it desires. Curtiss-Wright Corp. v

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NLRB, 347 F.2d 61, 69 (3d Cir. 1965), cited with approval in Coca Cola Bottling
Co., 311 NLRB 424, 425 (1993).59
Thus, if the requested information goes to the core of the employer-employee
relationship, and the employer refuses to provide that requested information, the
employer has the burden to prove either lack of relevance or to provide adequate
reasons why it cannot, in good faith, supply the information. If the information requested
is shown to be irrelevant to any legitimate union collective-bargaining need, however, a
refusal to furnish it is not an unfair labor practice. (Coca-Cola Bottling Co., 311 NLRB at
425 (citing Emeryville Research Center v. NLRB, 441 F.2d 880 (9th Cir. 1971)).
The standard to determine a union's right to information will be ‘a broad discovery
type standard,’ which permits the union access to a broad scope of information
potentially useful for the purpose of effectuating the bargaining process. NLRB v. Acme
Industrial, 385 U.S. at 437, fn. 6; see also Anthony Motor Co., 314 NLRB 443, 449
(1994). There only needs to be ‘the probability that the desired information was
relevant, and that it would be of use to the union in carrying out its statutory duties and
responsibilities.’ Acme Industrial, 385. U.S. at 437.

In Ethan Enterprises, supra, JD slip op. at 7, it was determined that the union’s request for
“employee names, addresses, phone numbers, job classifications, hours worked, rates of pay,
and benefits, is presumptively relevant. As such, no showing of particular need is necessary.”
Similarly, the Board has found that a union is entitled to copies of health insurance and pension
plans. See, Honda of Haywood, 314 NLRB 443 (1994); and IMTT-Bayonne, 304 NLRB 476
(1991). In St. George Warehouse, Inc., 341 NLRB No. 120, JD Slip op. at 22 (2004), in finding
that an employer unlawfully delayed in furnishing a union with health insurance premium
information it was stated that:

The Board has held that the premiums paid under health insurance plans constitute
wages, and as wages, such information is presumptively relevant. The Nestle Company,
238 NLRB 92, 94 (1978). The cost of employee fringe benefits is particularly important
during ongoing negotiations, and the 6-month delay in providing such information was
improper and unlawful Baldwin Shop’ N Save, 314 NLRB 114, 124 (1994).

In Baldwin Shop’ N Save, supra at 124, fn. 8, it was noted that the court in Sylvania Electric
Products v. NLRB, 358 F.2d 591 (1st Cir. 1966), cert. denied 385 U.S. 852, held “that the Board
could properly find that a union was entitled to information concerning the cost of welfare
benefits, where the Union sought ‘better to evaluate the desirability of an increase in welfare
benefits as against an equivalent increase in take-home pay.’"

A Union’s request for information is not required to be in writing, nor is a union required
to make repeated requests. Bundy Corp, 292 NLRB 671, 672 (1989). It has also been held that
an employer has an obligation to furnish requested information without undue delay, and in a
reasonable time. Barclay Caterers, 308 NLRB 1025, 1037 (1992); and Sivals, Inc., 307 NLRB
986, 1007 (1992). In evaluating the speed with which the information is furnished, the Board
considers the complexity and extent of the information sought, its availability, and the difficulty in
retrieving the information. Samaritan Medical Center, 319 NLRB 392, 398 (1995). In Good Life
59 See E.I. Dupont & Co, 276 NLRB 335 (1985), where an employer was required to provide
requested production related information, as a result of its proposal to restructure certain jobs
within the bargaining unit; and Calmat Co., 331 NLRB 1084, 1096, (2000), where requested
information concerning the productivity of an employer’s competitors was found to be relevant
where the employer claimed the need of concessions to remain competitive.

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Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993), the Board stated:

Indeed, it is well established that the duty to furnish requested information cannot be
defined in terms of a per se rule. What is required is a reasonable good faith effort to
respond to the request as promptly as circumstances allow.60

An employer may not refuse to furnish information to a union on the ground that the
union has an alternative source or method in obtaining the information. See People Care, Inc.,
327 NLRB 814, 824 (1999); Orthodox Jewish Home for the Aged, 314 NLRB 1006, 1008 (1994);
and KCET-TV, 312 NLRB 15, 19 (1993).

In Keauhou Beach Hotel, 298 NLRB 702, 702 (1990), the Board stated that:

It is well established that an employer may not simply refuse to comply with an
ambiguous request and/or overbroad information request, but must request clarification
and/or comply with the request to the extent it encompasses necessary and relevant
information.61

An employer must provide a union with requested information in the employer’s
possession even if it is not in the precise form requested by the Union. See, Pacific Maritime
Ass’n, 315 NLRB 24 (1994). In Yeshiva University, 315 NLRB 1245, 1248 (1994), it was stated
that, when an employer “possesses the requested information but not in the form as requested,
‘it must make some effort to ‘inform’ the union so that the union may, if necessary, modify its
request accordingly.’”

In NLRB v. Fitzgerald Mills Corp. 313 F.2d 260, 266 (2d Cir., 1963); cert denied, 375
U.S. 834, the court held that, “failure to supply requested wage data is a refusal to bargain in
violation of Section 8(a)(5) and (1), standing alone.” The court went on to state, “And even if the
Union negotiated a contract without the data, this does not render the information irrelevant.” In
NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2 Cir., 1941), the court stated:

Nor is our determination that the information was relevant affected by the subsequent
execution of a contract without disclosure. The most that can be inferred from the
Union's action is that the advantages of a contract in hand outweigh those which the
Union might later obtain when all relevant information would be available to it.

b. The Union’s request for productivity information

The Union made verbal requests for productivity information for the Plating plant during
the April 5 and 15 bargaining sessions, and by letters drafted by Minor on May 23, and July 19.
However, the complaint only alleges the request made on April 5, and asserts that since that
60 See also, Bundy Corp. 292 NLRB 671, 672 (1989).
61 See also Taylor Hospital, 317 NLRB 991, 994 (1995), review denied 82 F.3d 406 (3rd Cir.
1996), where it was specifically noted that the records relied on in determining the necessity of a
layoff were within the knowledge of the respondent’s officials, not that of the union, and that if
the respondent did not understand the union’s information request pertaining to those records it
was their “duty to inquire, not to simply reject the request out of hand.” See also, A-Plus
Roofing, 295 NLRB 967, 972, fn. 7 (1989), enfd. 39 F.3d 1410 (9th Cir. 1994); Barnard
Engineering Co., 282 NLRB 617, 621 (1987); and Colgate-Palmolive Co., 261 NLRB 90, 92 fn.
12 (1982).

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date Respondent failed to furnish the Union with the requested information in a timely and
complete manner. While the complaint was not specifically amended to allege the information
requests on April 15, May 23, and July 19, the parties put on evidence concerning those
requests, which were essentially follow up requests to that raised by the Union on April 5.
Moreover, toward the end of the hearing, the following exchange occurred, when counsel for the
General Counsel was asked if there was still any requested information the General Counsel
was asserting that the Union still had not been provided:

MR. WILSON: Two things, Your Honor. We think overall that as of September 3rd,
2002, with Mr. Minor's receiving GC 6, most of the relevant information at issue in this
matter was provided. The two exceptions we would argue, are these. The formulary
drug list, which you've heard testimony about. And based upon Mr. Tucholski's
testimony yesterday, regarding how long the company has kept utilization records for the
plating operation. We also believe the utilization records for the calendar year 2001
need to be provided.
JUDGE FINE: Are you contending they were asked for?
MR. WILSON: Based on Mr. Minor's request in GC 20, and Mr. Tucholski's response in
GC 23, I believe so. Yes.

The referenced GC 20 is Minor’s July 19, letter, and GC 23 is Tucholski’s August 1,
response thereto. Thus, I have concluded that the Union’s information requests on April 15,
May 23, and July 19, concerning production records were closely related to its request on April
5, and were fully litigated during the course of this proceeding. See, Ormet Aluminum Mill
Products, 335 NLRB 788, 788, fn. 5.

I have concluded that Respondent unlawfully delayed in furnishing the Union with
requested productivity information in violation of Section 8(a)(1) and (5) of the Act. The
relevancy of the Union’s information request is clear and was created by Wright’s April 5,
presentation. The credited testimony of Minor, Jordan, and Niebauer, reveals that at the outset
of his presentation concerning the Landing Gear Division, Wright reported economic hard times,
which Niebauer described in her notes as “gloom and doom.” Niebauer’s notes and her
testimony reveal that Wright informed the Union that the performance of the Landing Gear
Division was “dismal,” and that the division was in a tailspin even before 9/11. Wright stated
that one of the goals was to improve “throughput” which Niebauer’s notes reveal was related to
increasing productivity, and which Tucholski’s testimony reveals was one of the metric
measurements Respondent uses to measure performance at the Plating plant. Wright also
showed the Union a slide during the meeting, which contained a heading as one of
Respondent’s goals was to “Continue Promoting a Culture of Continuous Improvement.”
Included in that category were “Embrace LEAN Principles” and “World Class in plating process.”
Niebauer explained the LEAN concept was to do things in the least waste way, and Wright
belatedly acknowledged that across the division LEAN relates to improving productivity. Wright
acknowledged the LEAN principles applied to the Plating plant.

As to the other goal in the slide, Wright testified he informed the Union that the Plating
plant was “almost world class.” While Jordan testified this was a complement, it is clear from
the Union’s reaction to the remark that their negotiation committee did not perceive it that way.62
62 Wright also admitted that he meant by the “almost world class” remark that “you can
never be happy with the performance at any site. You’re always looking for continuous
improvement.” Similarly, Lemin testified that he understood Wright’s remark to mean “they need
to do things better and better” at Plating.

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Rather, Valentine responded that the facility was world class before Tucholski returned as plant
manager, and that Tucholski should be discharged because they were now only almost world
class. Finally, Wright showed the Union committee a slide depicting separate graphs of
productivity and past due hours at the Cleveland Machining plant. The productivity for
Cleveland Machining, according to the graph was under 60 percent for the first three months of
2002, and the other graph showed significant past due hours for the delivery of machined parts.
As Jordan testified, it was Respondent’s intent concerning the presentation of its strategic plan
for the Union to have this information in order to evaluate Respondent’s contract proposals.
Respondent clearly introduced productivity and the state of the Landing Gear Division as an
element in negotiations in the hopes of limiting the Union’s contract demands. By doing so,
Respondent made the Union’s request for productivity information specific to the bargaining unit
employees relevant as an instrument to counter Respondent’s argument.63 Moreover,
Respondent did not dispute the relevancy of the requested information at the time the request
was made, and in fact it eventually turned the information over to the Union, albeit in a belated
fashion. Accordingly, I have concluded that the Union was entitled to be provided with the
requested productivity information. See, Ethan Enterprises, Inc., 342 NLRB No. 15, JD. slip op.
at 6-7(2004); Curtiss-Wright Corp. v NLRB, 347 F.2d 61, 69 (3d Cir. 1965); E.I. Dupont & Co,
276 NLRB 335 (1985); and Calmat Co., 331 NLRB 1084, 1096, (2000).

Niebauer’s credited testimony reveals that: that one of the slides Wright showed at his
April 5, presentation contains a graph entitled, “Productivity-Cleveland Machining." Niebauer
testified the graph does not apply to Plating. Niebauer testified that, after the slide was shown,
Van Almen asked, can you produce separate quality, scrap, and productivity numbers for the
Plating plant as they had for the Marble Ave. plant. She testified Tucholski looked at Van Almen
and said he had quality and scrap numbers and he would look into the rest of them. Niebauer,
at one point in her testimony, stated that Tucholski said he did not have productivity numbers for
Plating. Wright then said he thought Tucholski should look into it to see if it made sense to
develop productivity numbers. Tucholski said he would look into it. Niebauer testified in terms
of Tucholski’s response that, “I recall that he said he was going to get productivity and -- he was
going to get qualities and scrap numbers for plating, that he couldn't get productivity. He could
get everything Bill wanted but productivity.”
63 I do not find Respondent’s contention that Union officials admitted Respondent never
specifically accused the Plating plant of poor productivity undermines the relevancy of the Union
officials request for productivity information pertaining to that facility. Rather, Respondent raised
productivity problems of the division, as well as of another Cleveland plant, in order to impact on
the Union’s bargaining position. It clearly brought productivity into play, and the Union was
entitled to records for the facility for which they were bargaining. While Respondent’s officials
testified that the Plating plant was performing well based on Respondent’s review of its metric
records, the Union was entitled to this information in support of its claim that the unit employees’
wages and benefits should be increased. Respondent also pointed out that Respondent posted
metric records on a bulletin board to which the Union officials had access and there was
testimony that the Union officials could have taken down these postings. However, there was
no evidence presented that the Union officials were ever informed they could take down these
management postings, without being subject to discipline. Moreover, the Board has held that
an employer may not refuse to furnish information to a union on the ground that the union has
an alternative source or method in obtaining the information. See People Care, Inc., 327 NLRB
814, 824; Orthodox Jewish Home for the Aged, 314 NLRB 1006, 1008 (1994); and KCET-TV,
312 NLRB 15, 19 (1993). Here the Union could have taken the records off the bulletin board at
the risk of discipline, or make a formal request for information, which they did do, and which
Respondent ignored until they Union filed its unfair labor practice charge.

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Despite Tucholski’s assurances on April 5 that he would provide the Union with quality
and scrap numbers, they were not provided. Moreover, during the April 15 bargaining session
Minor told Respondent’s committee that Wright had promised the Union some productivity
numbers and they still had not received them. Minor testified he also asked for the ISO 9000
records on April 15, because he thought those could tie into productivity. Minor testified that he
received very little response other than Jordan stating he would review it, and Tucholski stating
he would have to check on the ISO 9000 forms because he was not sure if they could release
the form because it was not Respondent’s criteria. Minor’s credited testimony is that the Union
requested the ISO 9000 because he thought it tied to a proposal made by Respondent requiring
operators to perform functions in addition to their normal job functions as Respondent’s officials
informed the Union it was required by ISO 9000, when Respondent was attempting to expand
certain job duties. Minor testified the Union’s request for the ISO forms tied into productivity
because the scope of job duties tied into productivity. Tucholski testified he made a reference in
his notes for the April 15, meeting concerning the ISO 9000, should any information be required,
but admitted he did not follow up on it.

Thus, the Union twice requested productivity records, and never received a firm
response from Respondent. Board law is clear that an employer may not simply refuse to
provide information because there is an ambiguous request, but it must request clarification of
the request. See, Keauhou Beach Hotel, 298 NLRB 702, 702 (1990); A-Plus Roofing, supra. at
972, fn. 7; Barnard Engineering Co., supra. at 621; and Colgate-Palmolive Co., supra. at 92 fn.
12. For an employer must also provide a union with requested information in the employer’s
possession even if it is not in the precise form requested by the Union. See, Pacific Maritime
Ass’n, 315 NLRB 24 (1994).

After viewing Respondent’s chart concerning Cleveland Machining, Van Almen
requested productivity records of a similar nature for the Plating plant. It is true that Respondent
did not have standard hours at Plating that were used for the productivity calculations at
Cleveland Machining. However, Niebauer’s notes of the April 5 meeting, reveal that Wright
stated, “Calculate productivity is different at each plant. Agree we should have site metrics.”
Thus, despite Respondent’s witnesses’ testimony that they did not measure productivity at the
Plating plant, Wright’s statement, as documented in Niebauer’s notes, reveals that they did
measure productivity at Plating but using different criteria. The criteria used for measuring
productivity should have been specifically explained to the Union, and the information provided.
However, this was not done until the Union filed its May 6, unfair labor practice charge. In this
regard, when properly motivated, Respondent was able to act promptly and comply with its
statutory obligations. Tucholski informed Minor by letter dated August 1, that “productivity at
Goodrich is measured by both ‘efficiency’ and ‘utilization’.” Attached to that letter, Tucholski
provided the Union with Respondent’s utilization charts for 2002.64 Similarly, Wright, who
testified, according to Respondent’s mantra at the hearing, that standard hours were the only
way to measure productivity, admitted at one point in his testimony concerning Plating that “We
have other ways to measure productivity or performance.” Wright cited what Tucholski
described as metric categories of “utilization” and “throughput” for measuring performance at
Plating, and he testified the key measure of performance at Plating was “throughput.”

Following the filing the May 6, filing of the Union’s unfair labor practice charge,
64 Tucholski admitted during the hearing that Respondent began tracking utilization charts in
2001 at the Plating plant. To the extent those charts exist, I find they are encompassed by
Minor’s repeated requests for productivity information, and should be turned over to the Union.

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Respondent began to comply with the Union’s information requests. By letter dated May 23,
Minor reminded Respondent of the Union’s request for “production records” and the ISO 9000
standards. By letter dated May 31, Borah provided Minor with the AS9100 Aerospace standard,
and asked for clarification of Minor’s request for production records. Minor issued a letter on
July 19, clarifying the request and Tucholski responded with the requested information by letter
dated August 1. Thus, Respondent was able supply the Union the AS9100 standard within 9
days after it began to act on Union’s request. Since the Union’s initial request was made on
April 15, and Tucholski admitted he ignored it, I have concluded that Respondent unlawfully
delayed in providing the Union this requested information. Similarly, Respondent was able to
provide the Union with scrap records within 13 days after it affirmatively acted on Minor’s July
19, request. Since I have concluded that the Union initially requested this information on April 5,
I have concluded that Respondent unlawfully delayed in providing the Union with this
information for it has been long held that an employer has an obligation to furnish a union with
requested information without undue delay and as promptly as circumstances allow. See,
Barclay Caterers, 308 NLRB 1025, 1037 (1992); Sivals, Inc., 307 NLRB 986, 1007 (1992);
Samaritan Medical Center, 319 NLRB 392, 398 (1995); Good Life Beverage Co., 312 NLRB
1060, 1062 fn. 9 (1993).

I also find that it was incumbent on Respondent’s officials to explain to the Union when
the request was made for productivity records on April 5, that they did not have standard hours
and could not provide the Union with those records any time soon, even if they decided at some
point to create standard hours for the Plating plant. Moreover, I find it was incumbent on
Respondent’s officials to inform the Union on April 5, that they measured productivity at the
Plating plant by “utilization” and “throughput”, as well as by other metric records as Tucholski
and Wright belatedly admitted, and that Tucholski made no effort to do so until his letter of
August 1, letter following the Union’s filing of its unfair labor practice charge.65 I do not find
Respondent’s actions here were a result of a misunderstanding of the Union’s request for
productivity records. Rather, I have concluded that Respondent’s officials demonstrated an
intent to ignore the Union’s requests as evidenced by their failure to provide the Union with
scrap records which were admittedly requested by the Union on April 5 and in Respondent’s
possession, and the AS9100 standards which were requested on April 15 which were in
Respondent’s possession but not provided until after the Union filed an unfair labor practice
charge. Accordingly, I find that Respondent failed to furnish the Union with requested, scrap,
65 The parties had in fact maintained a side letter in the expired contract, which the
Respondent sought to maintain in the new agreement. While Respondent’s witnesses argued
that they could not measure productivity at Plating, the language in the side letter further
undermines their position, as the letter reads in pertinent part, “During the negotiations for the
new Collective Bargaining Agreement, we discussed the need for Plating Operations to be more
productive and efficient through improved safety, quality, delivery, throughput and cost.”
Respondent also made another proposal concerning “Alternative Work Schedules”, which
begins, “The parties agree that it is in their mutual interest to insure that the Cleveland Plating
plant remains competitive and reached the highest levels of productivity possible. To this end,
the following Appendix is agreed:” I do not find that the Union relied on these proposals in
generating its information request concerning productivity as the Union’s request was made in
response to Wright’s presentation at the April 5 meeting, before either of these proposals were
presented. Moreover, Respondent withdrew its “Alternative Work Schedules” proposal before
the start of the May 6, strike. However, I do view these proposals as further evidence that
Respondent maintained a strong concern about productivity at the Plating plant, and that
Respondent had measures in effect at the time of the Union’s information request to measure
productivity there such as “safety, quality, delivery, throughput and cost” to mention a few.

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productivity records as well as the AS9100 standards in a timely fashion in violation of Section
8(a)(1) and (5) of the Act.66

c. Minor’s March 15 letter and related information requests

Respondent’s counsel conceded at the hearing that the information requested in Minor’s
March 15 letter was relevant and within the possession of Respondent. Respondent’s
concession is in conformance with established Board precedent. See, In Ethan Enterprises,
Inc., 342 NLRB No. 15 JD slip op. at 7 (2004)(request for employee names, addresses, phone
numbers, job classifications, hours worked, rates of pay, and benefits, is presumptively
relevant); Honda of Haywood, 314 NLRB 443 (1994); and IMTT-Bayonne, 304 NLRB 476
(1991) (a union is entitled to copies of health insurance and pension plans); and St. George
Warehouse, Inc., 341 NLRB No. 120, JD slip op at 22 (2004)(a union is entitled to health
insurance premium information); and Baldwin Shop’ N Save, 314 NLRB 114, 124 (1994).

The credited evidence reveals that Minor authored and had mailed to Lemin a letter,
dated March 15, requesting information of the nature described in the above paragraph for
negotiations set to begin on April 5. I have found Respondent received the letter shortly after it
was mailed, but ignored the letter, as it did with verbal requests for information made during the
course of negotiations.67 Minor mentioned to Respondent’s officials during the initial bargaining
66 I do not find persuasive Respondent’s assertion in its brief that it failed to provide the
Union productivity records because of a misunderstanding that the Union was only interested
productivity based on standard hours calculations as measured at the Marble Ave. plant, or that
the Union was only making a casual inquiry as to whether Respondent was in possession of
such records. Any doubt that the Union’s inquiry was casual was eliminated when Minor
repeated the request for the records on April 15. Moreover Tucholski admitted Minor brought
the subject of productivity up again on April 15, and Tucholski’s response was “I said I was still
looking into it.” Yet, Tucholski never informed the Union the results of his purported inquiry
concerning productivity at the Plating plant. Similarly, Wright admitted he never followed up to
determine the results of Tucholski’s alleged inquiry. I have concluded that after the Union’s
April 5 request that Tucholski never made an additional inquiry about the creation of standard
hours for Plating, nor did he intend to do so. Rather, prior to the Union’s filing of its unfair labor
practice charge, Respondent’s responses to the Union’s information requests were designed to
side step and ignore them. This case is distinguishable from Reebie Storage & Moving Co., 313
NLRB 510, 513 (1993), enfd. denied 44 F.3d 605 (7th Cir. 1995), cited by Respondent, standing
for the proposition that, “The Board is reluctant to find a refusal to furnish information violation in
circumstances where no formal request was made for information or where the failure to furnish
information arose from a good-faith misunderstanding.” In Reebie Storage, the employer
responded immediately in writing to the union’s information request and suggested to exchange
information the union and the employer was requesting at the next bargaining session.
However, the union did not further respond to the employer’s offer and the Board concluded the
employer could reasonably assume the union dropped its request. Here the Union’s request
was repeated at the following bargaining session. The Respondent merely ignored it as it
ignored other requests for information made during the course of bargaining. In doing so, I find
that Respondent’s actions were not premised on a good faith misunderstanding.
67 I do not find Respondent’s informing the Union on May 15, that Minor’s March 15 letter
had been misplaced constitutes a defense to the timely provision of the requested information
contained in the letter. Even assuming the letter was misplaced as opposed to ignored by
Respondent’s officials, it was incumbent upon them to have asked Minor for a duplicate copy so
they could have provided the requested information in a timely fashion.

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session on April 5, that he had requested health care cost information and it was not provided.
Minor stated, during the April 29, session, that he had requested pension information and it had
not been provided. On April 30, Minor requested a copy of Respondent’s health master health
insurance plans, as well as a formulary drug list for those plans. Minor, Busler, and Lemin’s
credited testimony reveals that the Union had been requesting a copy of the health care plans
from Respondent since 2000, and they were not provided. Lemin’s notes for the April 30,
session reveal that during that meeting, Minor complained that he had requested the cost of
health care and not received it. Niebauer also admitted at one point in her testimony that Minor
stated several times during negotiations that the Union had been requesting copies of the health
care plans for a long time.

I do not find Minor’s failure to repeat the Union’s information requests at 6 a.m. on May
1, when Jordan asked him if there was anything else Respondent could provide for the Union’s
May 5 ratification meeting constitutes a waiver of the Union’s right to the requested information
prior to that meeting. Respondent has shown a propensity during these negotiations to ignore
the Union’s requests for information. In fact, Lemin acknowledged that the Union had been
requesting copies of the two health care plans used by Respondent since 2000, but they had
not been provided. In these circumstances, Minor was not required to repeat his information
request at 6 a.m. on May 1,after negotiating all night with Respondent for Respondent had
displayed by its conduct that such a request would have been a futile act. I find that
Respondent, as demonstrated by its course of conduct prior to the Union’s filing of the unfair
labor practice charge on May 6, had no intention of providing the Union with requested
information. See, Ormet Aluminum Products, 335 NLRB 788, 803 (2001); Automatic Sprinkler
Corp., 319 NLRB 410, 417 (1995); and Iron Workers Local 377 (M.S.B., Inc.), 299 NLRB 680,
684 (1990) holding that a party is not required to engage in a futile act. Moreover, Van Almen
informed Wright on May 2, during an encounter that Wright initiated that Respondent failed to
provide the Union with requested health care information. Yet, Respondent still failed to provide
the Union with any information until Lemin’s letter of May 17, at which point copies of the Aetna
health care plan as well as the requested formulary drug lists were still omitted from
Respondent’s response. These items were omitted, even though Jordan, Lemin, and Niebauer
testified that the Union had requested copies of the master health plans and the formulary drug
list on April 30.68 The Respondent had not provided the Union with a copy of the formulary drug
list as of the time of the unfair labor practice trial in June 2003. Respondent never provided the
Union with an explanation for failing to supply the latter document, and there is no contention
that Respondent was not in possession of the document.69
Continued
68 I have considered, but reject Respondent’s argument that the March 15, letter, only called
for the health plan contracts, and not the plan itself. Minor testified he wanted both the plans
and the costs behind them. Any ambiguity in the March 15 letter, as to Minor’s intent was
specifically cleared up during the April 30, negotiating session, wherein Respondent’s officials
testified that Minor specifically asked for copies of the health care plans and the formulary drug
lists. I do not view Minor’s failure to repeat his request for the formulary drug list in subsequent
correspondence to Respondent to constitute a waiver of the Union’s right to receive the list.
Respondent’s officials never testified that was the reason the list was not provided. Moreover,
Respondent was well aware that the Union’s request for the list was outstanding as
Respondent’s counsel brought up the list on cross-examination and through the direct testimony
of Respondent’s witnesses.
69 While the Union’s request for the formulary drug list was not specifically set forth in the
complaint, it is closely related to the Union’s request for the “present contract on hospitalization
and medical coverage” which is set forth in the complaint. Moreover, counsel for the General
Counsel informed Respondent at the hearing that the failure to provide the formulary drug list

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_________________________

Accordingly, I find that Respondent demonstrated a pattern of ignoring the Union’s
written and verbal information requests during this set of negotiations until after the start of the
May 6, strike, when the Union had filed an unfair labor practice charge. I find that Respondent
received Minor’s March 15, letter prior to the start of negotiations on April 5. The letter
requested information to aid the Union in the upcoming contract negotiations, and the parties
met on 10 occasions, prior to the start of the May 6 strike, during which time, Minor made verbal
information requests, which Respondent also ignored. Moreover, Lemin admitted that the Union
had been requesting copies of the health care plans since 2000, a request renewed during the
negotiations, and the Respondent still failed to provide them prior to the strike. Respondent’s
actions here where compounded by its informing the Union on the afternoon of May 1, that if the
Union did not accept Respondent’s final offer by May 5, the offer would be withdrawn, and
replaced by less generous offers. Respondent set a deadline for the Union to take or lose its
offer that had resulted from extensive negotiations between the parties without providing the
Union with any of its requested information. I find that Respondent violated Section 8(a)(1) and
(5) of the Act, by its unlawful delay in providing the Union with requested information described
in complaint paragraph 6(A), and by its failure to provide the Union with a copy of the formulary
drug lists for each of its medical plans. I note that there is no contention that Respondent was
not in possession of any of the requested materials at the time the Union made its information
request. I have also considered Niebauer’s admission, that Respondent could have received
requested information in the possession of corporate headquarters in Cleveland the next day if
Respondent had desired to be forthcoming with the requested information. Accordingly, I find
Respondent engaged in an undue delay in furnishing the Union with requested information, and
failed to furnish the Union with copies of the formulary drug lists for its health care plans with no
justification for doing so. See, Barclay Caterers, 308 NLRB 1025, 1037 (1992); Sivals, Inc., 307
NLRB 986, 1007 (1992); Samaritan Medical Center, 319 NLRB 392, 398 (1995); Good Life
Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993); and Bundy Corp. 292 NLRB 671, 672 (1989).

2. The May 6 strike was an unfair labor practice strike

a. Legal principles

In Dorsey Trailers, Inc., 327 NLRB 835, 855 (1999), enfd. in relevant part 233 F.3d 831
(4th Cir. 2000), it was stated that:

The character of a strike depends on its cause. Thus, a work stoppage by employees is
considered an unfair labor practice strike if it is motivated, at least in part, by an
employer's unfair labor practices. C-Line Express, 292 NLRB 638 (1989).
Characterization of a strike as such is not dependent on a finding that the strike would
not have occurred but for the commission of the unfair labor practices. Decker Coal Co.,
301 NLRB 729, 746 (1991). Rather, so long as an unfair labor practice has ‘anything to
do with’ causing the strike, it will be considered an unfair labor practice strike. Child
Development Council of Northeastern Pennsylvania, 316 NLRB 1145, fn. 5 (1995),
quoting NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir. 1972), cert. denied 419
U.S. 850 (1972).

A causal connection between an employer’s unlawful conduct and a strike may be inferred from
the record as a whole. See, Child Development Council of Northeastern Pennsylvania, supra at
was being alleged as violative of the Act, and the matter was raised by Respondent’s counsel at
the hearing and was fully litigated.

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1145, where the Board noted that an unlawful threat was made just three days prior to the start
of the strike. The threat was discussed with employees at a strike vote meeting held that
evening. Employee negotiators who had first hand knowledge of the threat participated in the
strike. After the discussion, the membership held a ratification vote on the Respondent’s final
contract offer and voted to reject it. The membership then held a separate strike vote, and the
employees overwhelmingly voted to strike. The Board concluded that it was reasonable to infer
that the threat, which was discussed and became a matter of consternation contributed to the
employee’s decision to strike.

In C-Line Express, 292 NLRB 638, 638-639 (1989), the Board set forth the following
principles concerning the conversion of an economic strike to an unfair labor practice strike:

The Board has long held that an employer's unfair labor practices during an economic
strike do not ipso facto convert it into an unfair labor practice strike. Rather, the General
Counsel must establish that the unlawful conduct was a factor (not necessarily the sole
or predominant one) that caused a prolongation of the work stoppage. As the First
Circuit Court of Appeals aptly observed in Soule Glass Co. v. NLRB, this search for a
causal link is often problematic, leading the Board to rely on both objective and
subjective considerations:
Applying objective criteria, the Board and reviewing court may properly consider
the probable impact of the type of unfair labor practice in question on reasonable
strikers in the relevant context. Applying subjective criteria, the Board and court
may give substantial weight to the strikers' own characterization of their motive
for continuing to strike after the unfair labor practice .... However, in examining
the union's characterization of the purpose of the strike, the Board and the court
must be wary of self-serving rhetoric of sophisticated union officials and
members inconsistent with the true factual context. [652 F.2d 1055 at 1080 (1st
Cir. 1980).]
* * * *
However, the presence or absence of evidence of such subjective motivations has not
always been the sine qua non for determining whether there has been a conversion.
Certain types of unfair labor practices by their nature will have a reasonable tendency to
prolong the strike and therefore afford a sufficient and independent basis for finding
conversion. The most notable examples typically involve an unlawful withdrawal of
recognition, which may be accompanied by a course of other unlawful conduct including
withdrawal of contract proposals, refusals to meet and bargain, and recognition of
another union. [FN4] The common thread running through these cases is the judgment
of the Board that the employer's conduct is likely to have significantly interrupted or
burdened the course of the bargaining process. Thus, when an employer has unlawfully
withdrawn recognition from the bargaining representative or engaged in bad-faith
bargaining during an economic strike, and it appears from the record that such unlawful
conduct necessarily prolonged the strike, the Board has found that the economic strike
has converted to an unfair labor practice strike. See Powell Electrical Mfg. Co., and
Brooks & Perkins, Inc., supra.
* * * *
Finally, while there may well be situations in which an employer's unlawful refusal to
provide information may obstruct the progress of bargaining over the economic issues
over which the strike is being waged, we do not think that the information requested and
refused here falls into that category. Shortly after the strike commenced, the Union made
an information request asking for the particulars surrounding the sale of the
Respondent's trailers and, in addition, asking for information regarding the impact of the
sale on unit employment and regarding the hiring of strike replacements. It is undisputed

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that the request was ignored. Although this information was clearly relevant to the Union
in exercising its responsibilities as the exclusive bargaining representative of unit
employees, and we affirm the judge's finding that the Respondent's refusal to provide
that information was violative of Section 8(a)(5) and (1), the information requested was
not germane to the issues that stood in the way of the parties reaching agreement on a
contract. Thus, in the absence of any evidence that this was known to the strikers or that
it was linked to an issue that was proving an obstacle in negotiations, we decline to
assume that it prolonged the strike.

In Orthodox Jewish Home for the Aged, 314 NLRB 1006, 1008, (1994), the Board
approved a finding of an unfair labor practice strike where the employer refused to provide
requested Medicaid information which related to its demand for a one year contract, until three
weeks after the issuance of the unfair labor practice complaint. In finding the strike to be an
unfair labor practice strike, the judge stated the following:

The information request was resolutely pressed by the Union and it related directly to
one of the main issues (contract duration) in the negotiations (cf. C-Line Express, 292
NLRB 638 (1989); and I find probable and credit Regan's claim that on the morning of
February 22, just prior to their strike vote, assembled union members were told that
denial of the information request would be pursued through an unfair labor practice
charge. I attribute no special significance to the circumstance that the Union's effort to
generate public sympathy and support during the strike did not include publicizing
Home's failure in that regard but instead focused exclusively on easily understood
"bread and butter" issues. See Lifetime Door Co., supra. I conclude that Home's failure
immediately to reinstate striking employees on receipt of their unconditional offer to
return was discriminatory in violation of Section 8(a)(1) and (3).

Similarly, in Gas Spring Co., 296 NLRB 84, 100, (1989), enfd. 908 F.2d 966 (4th Cir. 1990), it
was determined that the employer’s unlawful refusal to provide a union with requested financial
information constituted a substantial cause of a strike. It was stated therein that:

The Board has held that picket sign language is not necessarily determinative of the
purpose of the strike and that the absence of any reference to the strike being a protest
against an unfair labor practice does not exclude such a practice being the cause of the
strike. Lifetime Door Co., 179 NLRB 518, 522-523 (1969); Head Division, AMF, 228
NLRB 1406 (1978), enfd. 593 F.2d 972, 979-981 (10 Cir. 1979).

In Gas Spring Co., supra. at 100, it was concluded that:

…Respondent’s position of inability to pay and failure to produce proof that it was unable
to grant increases and needed concessions constituted a substantial cause of the strike.
Buffalo Concrete, 276 NLRB 839, 841-842 (1985), enfd. in relevant part sub nom.
Washington Materials v. NLRB, 803 F.2d 1333 (4th Cir. 1986); Stanley Building
Specialties Co., 166 NLRB 984, 986 (1967), enfd. Sub nom. Steelworkers Local 5571 v.
NLRB, 401 F.2.d 434 (D.C. Cir. 1968), cert. Denied sub nom. Stanley-Artex Windows v.
NLRB, 395 U.S. 946 (1969); Stafford Trucking, Inc., 166 NLRB 894 (1968), enfd. 418
F.2d 244 (5th Cir. 1969).70

70 The above cited cases provide additional examples of where the failure to provide
requested information contributed to unfair labor practice strike findings.

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b. Analysis

In the instant case, on March 15, Minor sent Lemin a letter requesting information to prepare for
upcoming contract negotiations, which despite Respondent’s denials, I have concluded was
received by Lemin in a timely fashion. Minor provided Local 2333 President Cantale with a copy
of the letter, and Local 2333 Plating Plant Chief Steward Busler was also shown a copy of the
letter. The letter, among other things, requested a seniority list showing employees names, job
classifications, pay rate, date of hire and date of birth; a copy of the contract for sick and
accident insurance benefits and the premium Respondent pays; a copy of the contract on
hospitalization and medical coverage and the monthly premiums for single and family coverage;
the monthly premium Respondent pays for employee life insurance; and a copy of the
pension/401(k) contract and the cost contribution for the same, as well as the name, age, and
date of retirement of those already retired.

During the parties’ initial bargaining session on April 5, Wright made a presentation
concerning the Landing Gear Division, of which the Plating Plant was a part. Wright described
economic hard times or “gloom and doom” as reflected in Niebauer’s notes. He stated
performance of the Division was dismal, and that customers were “pissed off” because
Respondent was behind in their deliveries. Wright stated Respondent was interested in
improving performance citing such productivity principles and LEAN and “Continue Promoting a
Culture of Continuous Improvement.” The same slide states as a goal for Respondent to be
“world class in plating” to which Wright informed the Union team that the Plating plant was only
“almost world class.” Wright also showed a slide depicting the productivity and passed due
hours rating for the Marble Ave. machine facility, which showed less than stellar performance.
This lead Union negotiating committee member and Plating plant employee Van Almen to ask
for scrap, quality, and productivity numbers for the Plating plant. Plant Manager Tucholski
stated that he that he had quality and scrap numbers, but that he did not have productivity
numbers for the Plating plant. Wright told Tucholski to look into whether it made sense to
develop productivity numbers for the Plating plant, and Tucholski said he would do so.

During the April 5, meeting, Jordan stated that there was an escalation of Respondent’s
medical costs under the current agreement. Minor voiced opposition to Respondent’s plan to
propose increased medical cost sharing for the unit employees, and stated that he had
requested information on this, concerning his March 15 letter, and it had not been provided.

During the April 15, bargaining at Van Almen’s suggestion, Minor stated Wright had
promised the Union some productivity numbers, and they had still not received them. Van
Almen also suggested, and Minor requested Respondent to produce an ISO 9000 form, which
Respondent’s officials had sighted as justification for increasing the job duties of one of the unit
positions.

The parties began negotiating economics on April 29, just one day before the current
contract was set to expire. At that time, they had reached agreement on all non-economic
issues except for Respondent’s refusals to provide an office for Plating plant Chief Steward
Busler. However, Minor had not received any of the Union’s requested information. During the
April 29, session, the parties discussed their health care and pension proposals. Minor
informed Respondent’s officials that he had requested information concerning the pension plan
from Lemin’s predecessor a year earlier, and that he had followed it up with an information
request to Lemin last month. Minor received no response to his remarks.

At the start of the April 30, session, beginning around 10 a.m., Minor stated that the
contract expired by midnight, and that he thought the parties could do everything they needed to

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do to get a new agreement by that time. The Union presented its third economic proposal
around that time, and Jordan stated that Respondent could not get close to the Union’s proposal
on wages. Minor replied there was a $6 an hour difference in wages between the Plating plant
and the Marble Ave. plant, and that Plating needed to catch up to Marble Ave. Jordan replied
they needed to compare apples to apples, that the Plating plant should be compared to other
Plating facilities, and Respondent’s wages were not behind other Cleveland area plating
facilities.

The Union’s fifth economic proposal was delivered around 7 p.m. on April 30. It is stated
in paragraphs 7(e) and (g) the Union is willing to retain the employee medical contribution rates
in the expiring contract if the Respondent withdraws its proposal to increase medical and dental
contributions. Subparagraph 7(f) under insurance states, "Maintain exact coverage, including
drugs." During the April 30 meeting, Minor made a request for the formulary drug list, which is a
list kept by the insurance company setting forth covered drugs. Minor made the request citing a
grievance Busler had filed during the term of the 1999 contract because the insurance would not
cover viagra. Minor also asked for copies of the master medical plans on the evening of April
30, citing an incident where Van Almen had gone to the hospital for a skin ailment, and was
denied coverage. Minor stated he wanted the medical plans and the drug list to prevent similar
incidents from occurring in the future. Concerning the formulary drug list, Jordan testified that
he was sure Respondent’s committee said we will get it for you. It was at Busler’s suggestion
that Minor asked for a copy of the medical plans. Busler also asked Minor to convey to
Respondent that for the past three years the Union had been requesting a copy of the medical
plans to be able to know what was covered so employees would not try to receive a particular
service for which there was no coverage.

The April 30 bargaining session went through the night to early morning hours of May 1.
During this session, Jordan told Minor that going back to the 1999 contract for employee
contribution rates for health care would have a huge cost and effect the outcome on the total
package. Jordan said Respondent would have to eat the cost of the premium increases in the
future, which would cut into any wage increase. Minor credibly testified that he told the
company during the April 30 to May 1 sessions, concerning the health care package that “we
still haven't been provided the information we needed on the plan for hospitalization.” Minor
testified he received no response from the Respondent when he made this remark. Lemin’s
bargaining notes for April 30 at 9 p.m., quote Minor as stating, “Asked for cost of insurance and
not get.” Lemin testified, in reference to the notes, that he knew there was a note about Minor
complaining he had asked for the cost of health care insurance and not received it.

The Union’s seven economic proposal was given on May 1 at around 1:30 a.m. and
Respondent’s seventh economic proposal was tendered in response. Respondent agreed to
the Union’s outstanding proposal to return to employee medical and dental insurance
contribution levels as they were in the 1999 contract. The Union’s eighth economic proposal
was given to Respondent on May 1, around 4 a.m. The Union’s proposal Section 7(f) states
maintain exact coverage including drugs. Jordan testified he interpreted this to mean stay with
the 1999 contract. Jordan testified Respondent was not trying to change the existing medical
plan in its proposal. Jordan testified to his understanding there was an agreement on medical
coverage at the time, and there was no dispute on medical cost sharing.71 Minor testified the
Continued
71 While Jordan maintained there was an agreement on medical coverage, Respondent took
the position on September 19, 2000, in a step 3 in response to Busler’s grievance that “It is the
Company’s position that the specifics of the Medical Plan such as drugs covered or not covered
is not grievable.” It stated in the grievance answer quoting from the contract that:

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medical issue was off the table as it related to cost sharing, but not as it related to the entire
package because Jordan had tied the size of the wage increase and other benefits which were
still in dispute to the amount the employees paid for their health insurance. At that time, the
Union was proposing a wage increase of a dollar an hour for each of the 3 contract years.

After the Union made its eighth economic proposal and before the Company made its
final offer, Jordan had a side bar conference with Minor. Jordan told Minor that Jordan’s outside
limit on wages a four percent increase the first year and three percent for each of the two
subsequent years of the contract. Minor said he was having difficulty getting his committee to
accept the three percent increases. Minor said if Jordan could get it to four percent for each
year, Minor would take it back to the membership. Following the side bar, Jordan received a
approval from division Vice Presidents Wright and Strehle to raise Respondent’s wage offer to 4
percent for each of the contract years, which based on a weighted average was the equivalent
of increases of $.57, $.59, and $.62 for the three contract years.

Jordan delivered the four percent per year wage increase offer to the Union, which took
a caucus. Lemin testified that, following the caucus; Minor stated the Union committee was not
happy with the economics or the wage increase. Jordan testified that Minor stated the Union
committee had looked at Respondent’s final offer and felt the wage offer was too small Minor
said they would take it back to the membership but would not sign a tentative agreement and
would not recommend ratification. After Minor’s announcement there was another caucus,
during which Jordan had a side bar with Minor and Busler. Busler was wearing a shirt that said,
“In It For The Money.” Jordan credibly testified that: During the side bar, Minor said the
committee feels they have got to have more money in that the catch up to the Marble facility
was a major thing on their mind. Busler said Respondent needed to give more money and
could give more money. Busler referenced Respondent President Dave Burner stating Burner
had received a two million dollar increase. Busler also said he had to have an office.

Following the side bar with Minor and Busler, the parties reconvened at around 6 a.m.
Jordan asked if there was anything Respondent could do to prepare the Union for their
ratification meeting. Minor responded he did not think there was anything other than producing
copies of the final offer.72 The parties parted around 6:30 a.m. on May 1.

The parties reconvened at 4 p.m. on Wednesday May 1. Strehle and Wright were there
in addition to Respondent’s bargaining team. They delivered a letter from Brian Gora, the
president of the Landing Gear Division, which stated, “Attached is the Company’s last, best and
final offer for a new collective bargaining agreement. It is open for acceptance until midnight,
Sunday, May 5. If this offer is not ratified by the Sunday deadline: (a) the offer lapses; (b) any
future offer will be less generous, including increased medical cost sharing; …”. Minor
responded that Gora could not do that, and that he thought they were coming back at 4 p.m. to
negotiate further. Minor said Gora’s statement that they would remove the offer if it was not
…The specifics of coverage such as which doctors and/or drugs that will or will not be
covered under the medical plan has never been negotiated. In addition, the Medical Plan
Summary in the appendix states that: ‘In case of any discrepancy, the terms of the plan
document will apply.’
Yet, Respondent during the course of 2 years of requests, including those made during the
2002 contract negotiations at issue herein, steadfastly prior to the May 6 strike and unfair labor
practice charge refused to provide the Union with a copy of the medical plans.
72 Minor testified it was customary for Jordan to pose such a question, because Respondent
always prepares a summary of its offer for the Union’s membership meeting.

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ratified was not legal. Minor said he could have struck Respondent at the end of the earlier
bargaining session when they did not have a tentative agreement, but he did not because he
hoped they were going to come back and work out an agreement. Minor said he wanted the
members to vote on the agreement. During the meeting, Busler characterized Respondent’s
final offer as an insult and Busler stated if Respondent could pay its president two million
dollars, they ought to pay the employees more than they offered. By the end of the session on
May 1, the Union had not received any information that the Union officials had requested in the
March 15 letter, or verbally during negotiations.

As reflected in the terms of the Union’s eighth offer and Respondent’s final offer they
were apart on wages, on the pension in terms of benefit size for years of service and the start of
years for credited service; the COLA formula, on the life insurance benefit, on the size of
Respondent’s 401(k) contribution, and some other items including an office for Busler.

On May 2, Wright approached Van Almen at work. Wright said the company felt they
offered the Union a good contract. Van Almen said he was not there to negotiate. Wright said
he believed health care was an issue they had taken off the table. Van Almen said you did not
give us the health care information and the employer costs we had asked for. Wright said well
the pie is only so big and that because health care was an issue they had taken off the table,
there was nothing left for anything else that the union wanted.

The Union held its contract ratification meeting on May 5. Prior to the meeting,
Respondent had sent employees a copy of its final offer. As a result, the employees were upset
and noisy when they arrived at the meeting. Minor opened the meeting and explained
Respondent had presented their final offer. Minor read Gora’s letter. Minor said the committee
was not recommending the contract, but they had agreed to take it to a vote. Minor reviewed
Respondent’s proposal with the employees. Minor then explained he had made various
information requests that had not been provided, and that if the contract was voted down, Minor
felt it should be an unfair labor practice strike because Respondent had denied his information
requests. The vote was 53 to 5 against the contract offer. After the vote was taken, Minor
stated he was going to file an unfair labor practice charge over Respondent’s refusal to provide
requested information. Minor told the employees if there was a strike there was an advantage if
they could get the strike ruled an unfair labor practice strike in that they could not be replaced.
Minor asked the employees not to go on strike when they rejected the contract and they did not
vote to strike at that time. He advised them to keep working while Minor went to Federal
Mediation to schedule another bargaining session. During the meeting, Minor told the
employees he had requested health care plans, productivity records concerning the Plating
plant, and the pension plan, and those records were not provided. Busler’s testimony reveals
Minor told employees it was hard to answer their questions without the information he had
requested.

Minor filed an unfair labor practice charge over Respondent’s refusal to provide
information on May 6. Minor spoke to Busler by phone on the morning on of May 6 and told him
that Minor had been in touch with the federal mediator trying to get a meeting scheduled and
that Minor had filed charges with the NLRB. Busler worked the 7:00 a.m. to 3:00 p.m. shift on
May 6. Busler announced the strike on that date by word of mouth at around 2:55 p.m. Busler
spoke to Minor and Cantale before the strike that day. Busler told them the employees in the
shop were upset because they felt the should not be working because it was helping
Respondent, although Respondent was not negotiating in good faith. Busler testified he told
Minor the people were not happy with the contract, and they were not happy with Respondent’s
refusal to provide any information. Busler testified they were trying to give Respondent time to
respond to the Union’s request to meet the next day to try and work out a contract. However,

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Respondent was stonewalling and not getting back to them. Minor’s advice to delay a strike
was over ruled, “Because we told Bill Minor what the attitude of the people in the plant was, that
their attitude was that we're helping the company out by putting the product out when they're not
giving us the information that we requested, not giving us a fair contract offer in our -- in the
people's opinions. And that they wanted to be out on the street instead of in the shop, which is
what they told Bill Minor on Sunday, and 24 hours later, we were trying to get the issue
resolved, and it still hadn't been resolved by the company.”

The first bargaining session after the start of the strike was held on May 15, at the
federal mediator’s office. During the meeting, Minor told Jordan that Respondent’s final offer
had been rejected 53 to 5. Minor explained to Jordan that wages, 401k, pension, and the COLA
were major issues with the employees. Jordan told Minor that Jordan wanted to talk about the
unfair labor practice charge. Jordan asked what information Minor had not received. Minor said
they did not get any of it. Jordan told Minor that someone on Respondent’s team had misplaced
Minor’s March 15, letter. Jordan acknowledged, during the meeting, that Minor had requested
health care information, to which Minor replied that he had done so numerous times. In a
conversation with the mediator, Minor said he was not there to bargain over an unfair labor
practice strike. Minor said he would let the National Labor Relations Board handle that.
Similarly, Niebauer’s notes of the meeting reveal that Minor informed Respondent’s officials that
the employees were engaged in an unfair labor practice strike.

I find that the strike beginning on May 6, at the Plating plant was an unfair labor practice
strike in that it was motivated, at least in part by Respondent’s unfair labor practices. See,
Dorsey Trailers, Inc., 327 NLRB 835, 555 (1999). I find that the information requested by the
Union was central to the outstanding disputes leading up to the strike. The Union had
requested both copies of the health plans and Respondent’s health care plan costs by letter,
and repeatedly during the course of negotiations. In fact, the scope of health care coverage had
been a dispute between the parties since at least 2000, and since that time Respondent had
refused to provide the Union with copies of its health care plans. The dispute about the health
care plan coverage surfaced at the April 30, meeting, where a grievance filed by Busler and an
coverage dispute concerning Van Almen were cited as reasons the Union needed copies of the
health care plans, and the formulary drug lists for the plans. In fact, Busler asked Minor to
inform Respondent’s committee that he had been requesting the plans for 3 years, and it was at
Busler’s urging that Minor renewed the request during the April 30, bargaining session. While
the parties, prior to the start of the strike reached agreement to return to health care co pay as it
was in the 1999 agreement, this did not resolve health care as an issue as Jordan in a
conversation with Minor, and Wright in a conversation with Van Almen had linked Respondent’s
position on health care costs to limiting the size of the employee wage increases as well as the
size of Respondent’s overall economic package. Yet, Respondent failed to honor the Union’s
repeated requests for health care costs and a copy of the plans, a request that Van Almen, a
striker, and a member of the Union’s negotiating committee had renewed with Wright on May 2.
Moreover, it was Van Almen who requested the productivity information from Respondent in
response to Respondent’s creating that issue during the April 5, session in an effort to persuade
the Union of the financial and performance problems of the company in an effort to convince the
Union to temper its proposals. Van Almen’s April 5 request was ignored, and when Minor
renewed that request on April 15, at Van Almen’s urging, the request was again ignored. Minor
had requested a copy of the 401(k) plan and pension plan and costs for each in his March 15
letter, and he renewed the request for pension information during the April 29, meeting. Yet,
this request was also ignored. Minor testified that the Union had previously requested a copy of
the pension plan during the 1999, agreement to verify agreed upon changes in the plan,
however, a copy was never provided. At the time of the May 6 strike, the size of Respondent’s
contributions to the pension plan and 401(k) plans were in dispute. In other words the

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requested information, which Respondent refused to provide the Union was at the heart of the
issues in dispute between the parties, and Respondent’s refusal to provide that information
undercut the Union’s ability to evaluate Respondent’s proposal and was a major contributing
factor to the cause of the strike. See, Orthodox Jewish Home for the Aged, 314 NLRB 1006,
1006 (1994); C-Line Express, 292 NLRB 638, 638-639 (1989); and Gas Spring Co., 296 NLRB
84, 100 (1989), enfd. 908 F.2d 966 (4th cir. 1990).

There are other factors leading to the conclusion that Respondent’s unlawful refusal to
provide the Union requested information contributed to the strike. During the May 5 contract
ratification meeting, in front of the whole bargaining unit, Minor informed the employees that
Respondent had refused to provide the Union with requested health care, pension, and
productivity information, that Minor thought Respondent’s actions were an unfair labor practice,
and that Minor was going to file an unfair labor practice charge the next day. Thus, the unit
employees were informed of the information dispute, and that the Union’s lead negotiator
thought Respondent was engaging in unfair labor practices shortly before they voted to reject
the contract, and the day before they went out on strike clearly signifying that Respondent’s
unfair labor practices in the circumstances here played a role in the employee decision making.
See, Orthodox Jewish Home for the Aged, supra at 1006. I also note that Busler, whose
decision it was to start the strike was on the Union’s negotiating committee and had received a
copy of Minor’s March 15, letter requesting information prior to the start of negotiations.
Similarly, both Busler and Van Almen, as members of the negotiating committee were present
when Respondent ignored the Union’s repeated verbal requests for productivity, health care,
and pension information. Thus, I have credited Busler’s testimony that Respondent’s refusal to
provide the requested information was one of the factors that lead him to call and participate in
the strike.73 I also have credited the testimony of strikers Van Almen, McGuire, and Mosnja’s
that they were informed of Respondent’s refusal to provide information and the nature of the
requested information on May 5, and that Respondent’s actions had a causal effect on their
decision to engage in the May 6, strike.74

73 In crediting Busler’s testimony that the information requests played a role in his decision
to strike I have considered his demeanor and the content of his testimony. It is clear from the
credited testimony that Busler placed great import on the size of Respondent’s wage increase.
However, it was also at Busler’s urging, and part of an ongoing dispute that he had with
Respondent, that Minor requested a copy of the health care plans on April 30. Busler was also
present during the repeated requests for information made during the course of negotiations,
and Respondent’s ignoring those requests. Busler was informed that Minor intended to file an
unfair labor practice charge on May 5 and he was a aware that the lack of the requested
information caused difficulty in the Union’s answering questions raised by the employees during
the May 5, ratification meeting. Minor also informed Busler that he had filed the charge on May
6, and Busler credibly testified that he, as well as other employees, grew impatient with
Respondent’s proposals and the failure to provide information and went on strike that afternoon.
In sum, I found Busler to be a proud individual, who was concerned that the Plating plant’s
wages were behind the Marble Ave. facility, that as a the top Union official at the Plating plant
he wanted an office to conduct union business, and that he found Respondent’s repeated
unlawful refusals to provide the Union with requested information to be an affront to the Union
and to undermine the bargaining process, all of which went into his decision to call the strike.
74 Van Almen was one of the individuals whose information requests had been ignored, and
McGuire testified in credible detail as to how he was concerned about health care and pension
coverage and that Respondent’s failure to provide the Union with the requested plans played a
direct role in his decision to strike.

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Given the sequence of events leading up to the strike, I do not find Minor’s efforts to
reach a contract without the requested information to undermine the Union’s claim that it was
relevant and necessary. Minor could reasonably conclude that the advantages of a contract in
hand outweighed the possible gains, which might be later obtained by acquiring the requested
information. See, NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 266 (2d Cir. 1963); cert denied,
375 U.S. 834, and NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir. 1941).
Moreover, here the parties failed to reach an agreement and the provision of the requested
information may have helped the parties break the dead lock that lead to the strike. I have
considered the Union’s failure to list the strike as a unfair labor practice strike on its picket signs,
and Busler’s failure to mention the issue to a reporter during an interview during the strike.
However, I do not find these omissions to be determinative of the cause of the strike in the
circumstances here when the Union repeated certain information requests to Respondent
towards the end of negotiations before the strike, the requested information was necessary to
evaluate issues that were central to the dispute, Minor informed the membership the day before
the strike that he was going to file an unfair labor practice charge, filed said charge the morning
of the strike before the strike started, and informed Busler that the charge had been filed before
the strike had started. Moreover, Minor informed Respondent’s officials during the first meeting
after the start of the strike on May 15 that the employees were engaged in an unfair labor
practice strike.75 Accordingly, I find that the strike beginning on May 6, was caused, in
substantial part by Respondent’s unfair labor practice strikers, and that the individuals named in
paragraph 6(b) and (c) of the complaint with the exception of William Jones, whose name was
withdrawn by counsel for the General Counsel, were unfair labor practice strikers.

3. The unfair labor practice strike did not convert to an economic strike

In order for an unfair labor practice strike to revert to an economic strike, the employer’s
efforts at repudiation of its unlawful conduct must either cure the unfair labor practice, or
otherwise succeed in removing it as a factor in prolonging the strike. See, Outdoor Venture
Corp., 327 NLRB 706, 709 (1999); F.L. Thorpe & Co., 315 NLRB 147, 151, fn. 11 enf. denied on
other grounds 71 F.3d 282 (8th Cir. 1995); and Chicago Beef Co., 298 NLRB 1039 (1990), enfd.
Mem. 944 F.2d 905 (6th Cir. 1991).76
Continued
75 See, Gas Spring Co., supra. at 100; Lifetime Door Co., 179 NLRB 518, 522-523 (1969);
and Head Division, AMF, 228 NLRB 1406 (1978), enfd. 593 F.2d 972, 979-982(10th Cir. 1979),
where similar omissions from picket signs were not held to preclude unfair labor practice strike
findings. I find cases cited by Respondent such as California Acrylic Industries v. NLRB, 150 F.
3d 1095 (9th Cir. 1998), to be distinguishable from situation here. There the strike occurred two
weeks after an unlawful video taping incident, which a union official mentioned during a pre-
strike meeting. The court, in reversing the Board, concluded given statements on the picket
signs and to a reporter, as well as other factors, that the circumstances there failed to establish
that the videotaping had a causal relationship to the strike. In the instant case, Union officials
repeated long standing information requests to Respondent’s officials shortly before the May 5,
ratification meeting, the requested information went to the heart of the issues in dispute, failure
to provide the information was discussed during the contract ratification meeting, and
Respondent set a deadline for acceptance of its offer on penalty of withdrawal of said offer
without providing the requested information to allow the Union to better explain the offer to its
membership. The timing of the events, and the close relationship between the requested
information and the matters in dispute, as well as the credited testimony of the General
Counsel’s witnesses establish a causal relationship between Respondent’s unfair labor
practices and the strike.
76 There is no contention here that Respondent cured the unfair labor practice under the

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I do not find that Respondent’s provision of most of the requested information after the
Union filed its unfair labor practice charge on May 6, to have converted the strike to an
economic strike. On March 15, Minor sent to Respondent an letter requesting information,
including “a copy of the contract on hospitalization and medical coverage and the monthly
premiums for single and family coverage;” and “a copy of the pension/401(k) contract and the
cost contribution for the same.” On April 5, Minor informed Respondent’s committee that he had
requested information on medical costs, and stated that it was not provided. On April 5, Van
Almen verbally requested quality, scrap, and productivity numbers for the Plating plant. On April
15, Minor renewed the Union’s request for productivity information. On April 29, Minor informed
Respondent’s committee that he had requested information on the pension plan, during the term
of the last contract, and that he had renewed his request last month and it was not provided.
On the evening of April 30, Minor citing coverage disputes involving union committee members
Busler and Van Almen requested copies of Respondent’s medical plans, and the formulary drug
lists for those plans. Lemin acknowledged the Union had been requesting copies of the health
care plans since 2000, with no contention that they had ever been provided. Niebauer
acknowledged that Minor stated several times in reference to a grievance that Minor had been
requesting the health care plans for a long time. Lemin’s notes for the evening of April 30,
reveal that Minor stated he had asked for the cost of health insurance and not received it. On
the afternoon of May 1, Respondent read Gora’s letter to the Union stating the Respondent’s
final offer was attached, and that if it was not accepted by May 5, it would be withdrawn and
replaced by less favorable offers. On May 2, Van Almen told Wright that Respondent had not
given the Union the health care information and costs the Union had asked for. Thus, when the
Union conducted its contract ratification meeting, on May 5, it had not been provided with any of
its requested information, although some of it went to the heart of some of the principle matters
in dispute. For the reasons set forth above, I have concluded that the May 6, strike was an
unfair labor practice strike.

During the parties’ May 15, negotiation session, Jordan asked Minor what information he
had received from his March 15 letter. Minor said none of it. By letter dated May 17, Lemin
sent Minor some of the information requested in the March 15 letter. Included in the attached
items is a document entitled, “Kaiser Foundation Health Plan of Ohio”. Thus, while Respondent
provided the Kaiser plan, it failed to provide the Aetna plan, although all of its witnesses who
attended the April 30 meeting testified Minor requested both the master medical plans on that
date.77 Minor responded by letter of May 23, stating Lemin’s May 17, response had omitted
certain requested information. Minor described the information as: a copy of the Aetna
Managed Choice Plan, the pension and 401(k) plans, and production records requested on April
5, and the ISO 9000 form requested on April 15. It was also represented in the letter that on
April 30, the Union had requested information concerning emergency and non-emergency visits
to Kaiser, and this was not provided. The parties met on May 28, at which point Respondent
Board’s Passavant Memorial Area Hospital, 237 NLRB 138 (1978) standards. There was no
repudiation by the Respondent of its unlawful conduct, no notification to the striking employees
that the requested information had been provided, and no assurances given against future
unlawful conduct.
77 I reject Respondent’s argument in its brief that Minor’s request for the health care plan
contract as set forth in his March 15, letter was ambiguous, as it was abundantly clear by
Minor’s pronouncements during the April 30, meeting that he wanted both the insurance plans
and medical costs. Moreover, Respondent provided the Kaiser plan in response to Minor’s
request, but failed to provide the Aetna plan further undermining its contention that it did not
understand Minor’s request.

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altered its proposal concerning among other things wages and medical co-pay. The requested
information in Minor’s May 23, letter, aside from the productivity information was provided to
Minor on May 31. Minor left town the next day on June 1 for a planned convention, and did not
return until June 10. By letter dated June 12, and received by the Union on June 14, Gora
notified the Union that Respondent had begun to hire permanent replacements. Gora stated in
the letter, “I want to make clear that so far as the Company is concerned there are no offers
outstanding or, if that is contrary to your understanding, all prior offers are hereby withdrawn.

In sum, the parties had 12 bargaining sessions prior to the start of the May 6, strike, with
two sessions on May 1, one in the morning and one in the afternoon. The May 1, session
culminated with the Respondent’s presentation of its final offer to the Union. However, on the
afternoon of May 1, Respondent informed the Union the offer would be withdrawn on May 5, if it
was not accepted at that time, and would replaced with less favorable offers. Thus, after
attending numerous bargaining sessions with the Union, Respondent presented the Union with
the Hobson’s choice of accepting Respondent’s offer without providing the Union with
information going to the core of the dispute with which to evaluate the offer, or reject the offer
and suffer the consequences of less favorable offers in the future. Respondent’s actions here
clearly impeded the bargaining process. For although, Respondent’s May 1, offer raised
significant issues with the Union’s bargaining committee, Minor was committed to take the offer
to the membership. The membership was informed Respondent had not provided requested
information, that the Union committee could not answer certain questions about the offer due to
lack of information, and that the Union committee was not recommending the offer. The
following day the employees went on strike. Respondent only began to respond to the Union’s
information requests after the Union filed its unfair labor practice charge and even then it
provided the information in a piece meal fashion by ignoring verbal requests for information
made during negotiations, although some of the requests were made late in the bargaining. I do
not find Respondent’s provision of the requested information following the filing of the unfair
labor practice charge and only after the withdrawal of its outstanding offer converted the strike
to an economic strike. It is clear, Respondent had in large part burdened and undermined the
bargaining process by after numerous bargaining sessions presenting the Union its final offer
with a deadline for that offer, without providing the Union the requested information necessary to
evaluate that offer or to fully explain the offer to employees before they voted on the contract.78
Accordingly, I find Respondent’s belated provision of requested information did not convert the
strike back to an economic strike.

The case Mohawk Liqueur Co., 300 NLRB 1075 (1990), affd. 951 F.2d 1308 (D.C. Cir.
1991), cited by Respondent, is inapposite to the situation presented herein. There the
respondent employer unlawfully withheld a COLA payment from its employees resulting in a
finding that an ensuing strike was an unfair labor practice strike. However, during the course of
the strike the employer tendered the withheld check directly to the employees. Shortly
thereafter, a union membership meeting was held during which the initial withholding of the
check was not mentioned as a reason for continuing the strike, and the minutes of the meeting
failed to show that the initial withholding of the check played any role in the vote to continue the
strike. As a result, it was determined that there was no nexus between Respondent’s failure to
78 In analogous situations the Board had found the unlawful declaration of impasse where a
respondent employer has failed to provide requested information in time for a union fairly
evaluate the employer’s final offer. See, Royal Motor Sales, 329 NLRB 760, 764, fn. 14; and
Pertec Computer, 284 NLRB 810, 812 (1987). Here, Respondent refused to provide requested
information until after it withdrew its offer, supplied it in a piece meal fashion, and only did so
after the Union filed an unfair labor practice charge.

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completely remedy its unfair labor practice of initially withholding the check and the employees’
decision to continue the strike. Thus, the strike was found to have converted to an economic
strike. Unlike in Mohawk Liqueur Co., there was no showing in the present case that the Union
held a meeting with employees to discuss Respondent’s belated provision of certain
information, or that the employees were otherwise apprised that the Respondent had provided
the Union with said information. Thus, Respondent has failed to show that its belated tendering
of the information removed its unfair labor practice as a reason that the employees continued
the strike. Particularly here, when it withdrew its offer prior to providing the requested
information.79 As Busler credibly testified, he viewed Respondent as having bargained in bad
faith.

CONCLUSIONS OF LAW

1. The Respondent, Goodrich Corporation, Landing Gear Division, Cleveland Plating Operation,
is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union of United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), and its Local 2333, (referred to jointly as the Union) are a labor organizations
within the meaning of Section 2(5) of the Act, and are the exclusive representative within the
meaning of Section 9(a) of the Act of the following unit appropriate for the purposes of collective
bargaining:
All factory hourly-rated employees presently employed by the Respondent, in both
production and maintenance categories, presently located at 2800 East 33rd Street,
Cleveland, Ohio, excluding all office clerical employees and professional employees,
guards and supervisors as defined in the Act.
3. By failing to bargain in good faith with the Union by failing and refusing to turn over to the
Union, on request, in a timely fashion documents requested in the Union’s March 15, 2002,
written request for information, as well as information requested by the Union by verbal requests
made during bargaining, which are necessary and relevant to collective bargaining, the
Respondent has violated Section 8(a)(5) and (1) of the Act.
4. The strike, which commenced on May 6, 2002, was caused at least in part by the
Respondent's unfair labor practices described above.
5. An unconditional offer to return to work was made by the Union on June 14, 2002, on behalf
of all the unfair labor practice strikers.
6. By failing and refusing to reinstate of some and by delaying the reinstatement of other unfair
labor practice strikers following their unconditional offer to return to work, Respondent has
violated Section 8(a)(1) and (3) of the Act.
7. The unfair labor practices found above affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY

Having found that Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease
and desist therefrom, post an appropriate notice, and take certain affirmative action designed to
effectuate the purposes and policies of the Act.

I shall recommend that Respondent be ordered to offer all striking employees
reinstatement to their former positions or, if those positions no longer exist, to similar positions,
79 See Outdoor Venture Corp., supra at 709, fn. 16; and F.L. Thorpe, & Co., supra., at 151,
fn. 11, where the Board distinguished Mohawk Liqueur Co., supra., holding there was no
evidence that other issues replaced the unfair labor practices as motivation for the strike.

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without prejudice to their seniority and other rights and privileges previously enjoyed, dismissing
if necessary replacement employees hired on or after May 6, 2002, and make whole all such
striking employees for any loss of earnings they may have suffered from June 14, 2002, to the
dates upon which Respondent unconditionally offers or has offered them reinstatement. The
make whole remedy and interest shall be computed by paying all those striking employees
whose reinstatement has been unlawfully delayed following the June 14, 2002, offer to return to
work, or those who are initially reinstated as a result of this Order the sum of money equal to
that which they normally would have earned had they been rehired on June 14, 2002,80 less
earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest therein, in accord with New Horizons for the Retarded, 283
NLRB 1173 (1987).

If after dismissing replacement employees there are insufficient positions available for all
the remaining former strikers, those positions that are available shall be distributed among the
strikers without discrimination because of their union membership or activities or participation in
the strike, in accordance with seniority or other non-discriminatory practice used by
Respondent. The Respondent will place any strikers for whom there are no positions available
following the discharge of the replacement employees on a preferential hire list in accord with
seniority or other non-discriminatory practice used by Respondent and they shall be reinstated
before any other persons are hired. This latter group of strikers who are placed on a
preferential hire list, should they exist, will not be entitled to back pay or otherwise be made
whole upon their reinstatement, but their seniority rights will be restored upon their acceptance
of an offer of reinstatement.81

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended82

ORDER

The Respondent, Goodrich Corporation, Landing Gear Division, Cleveland Plating
Operation, its officers, agents, successors, and assigns, shall

1. Cease and desist from:
(a) Refusing to bargain collectively with the International Union of United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), and its Local 2333, (referred
to jointly as the Union) as the collective bargaining representative of its factory hourly-rated
80 This make whole remedy only applies to those strikers who were not initially reinstated
within the 5-day period following the Union’s June 14, 2002 unconditional offer to return to work.
Since Respondent unlawfully rejected this group of strikers’ unconditional offer to return to work,
the 5-day period during which back pay is tolled, usually granted to employers is inapplicable.
See, Gas Spring Co., supra. at 101, fn. 48 (1989); Drug Package Co., 228 NLRB 108, 114
(1977), enfd. in part 570 f.2d 1340 (8th Cir. 1978); Newport News Shipbuilding, 236 NLRB 1637,
1638 (1977), enfd. 602 F.2d 73 (4th Cir. 1979).
81 The parties stipulated that any issues concerning an individual striker’s right to
reinstatement, back pay, and related items, under the terms of this order will be resolved in a
compliance proceeding, absent settlement.
82 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.

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employees employed in both production and maintenance categories at Cleveland Plating plant,
by failing and refusing to turn over to the Union, on request, in a timely fashion documents
requested in the Union’s March 15, 2002, written request for information, as well as information
requested by the Union by verbal requests during bargaining, and failing to comply in a timely
fashion to any other information requests by the Union which are necessary and relevant to the
performance of its statutory functions.
(b) Discouraging membership in the Union or any other labor organization by failing and
refusing to reinstate and by delaying the reinstatement of unfair labor practice strikers upon their
unconditional offer to return to work, and otherwise discriminating against its employees with
regard to their hire, tenure, or other terms and conditions of employment.
(c) In any like or related manner interfering with, restraining, or coercing its employees in the
exercise of rights guaranteed them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Provide the Union, on request, the following information relating to the Cleveland Plating
plant: utilization information for 2001 and the formulary drug lists for the health insurance plans
in effect and at the Cleveland Plating plant.
(b) Within 14 days from the date of this Order offer immediate and full reinstatement to all
employees who participated in the unfair labor practice strike that commenced on May 6, 2002,
and for whom an unconditional offer to return to work was made on June 14, 2002, 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, discharging if
necessary any replacements hired during that strike. If after such dismissals there are
insufficient positions available for the remaining former strikers, those positions that are
available shall be distributed among them without discrimination because of their union
membership or activities or participation in the strike, in accordance with seniority or other non-
discriminatory practice used by the Respondent, with any remaining strikers for whom no
employment is immediately available, following the discharge of all strike replacements, being
placed on a preferential hiring list in accordance with seniority or other non-discriminatory
practice used by the Respondent and those on that list shall be reinstated before any other
persons are hired in positions for which they are qualified.
(c) Make whole, with interest, those unfair labor practice strikers, including those for whom
Respondent delayed reinstatement, for any losses of earnings or benefits suffered as a result of
Respondents conduct from the date(s) on which it is determined they should have been
reinstated in the manner set forth in the remedy section of this decision.
(d) 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 to be designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of back pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its Plating facility in Cleveland, Ohio,
copies of the attached notice marked “Appendix.”83 Copies of the notice, on forms provided by
the Regional Director for Region 8, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily 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
83 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since April 5, 2002.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. September 21, 2004

_______________________
Eric M. Fine
Administrative Law Judge
JD–92–04
Cleveland, OH
APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT refuse to bargain collectively with the International Union of United
Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and its Local
2333, (referred to jointly as the Union) as the collective bargaining representative of the factory
hourly-rated employees employed in both production and maintenance categories at Cleveland
Plating plant, by failing and refusing to turn over to the Union, on request, in a timely fashion
documents requested in the Union’s March 14, 2002, written request for information, as well as
information requested by the Union made by verbal requests made during bargaining, or by
failing to comply in a timely fashion to any other information requests by the Union which are
necessary and relevant to the performance of its statutory functions.
WE WILL NOT discourage membership in the Union or any other labor organization by
failing and refusing to reinstate and by delaying the reinstatement of unfair labor practice
strikers upon their unconditional offer to return to work, and otherwise discriminating against
employees with regard to their hire, tenure, or other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act.
WE WILL, on request, provide the Union with the following information relating to the
Cleveland Plating plant: utilization information for 2001 and the formulary drug lists for the
health insurance plans in effect at the Cleveland Plating plant.
WE WILL within 14 days from the date of the Board’s Order offer immediate,
unconditional and full reinstatement to all employees who participated in the unfair labor practice
strike that commenced on May 6, 2002, and for whom an unconditional offer to return to work
was made on June 14, 2002, 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, discharging if necessary any replacements hired during that strike.
If after such dismissals there are insufficient positions available for the remaining former
strikers, those positions that are available shall be distributed among them without
discrimination because of their union membership or activities or participation in the strike, in
accordance with seniority or other non-discriminatory practice used at the Cleveland Plating
plant.
WE WILL make whole, with interest, those unfair labor practice strikers, including those
for whom reinstatement was unlawfully delayed reinstatement, for any losses of earnings or
benefits suffered as a result of our conduct from the date(s) on which it is determined they
should have been reinstated in the manner set forth in the remedy section of the Board’s
decision.
WE WILL, within 14 days from the date of the Board’s Order place any remaining strikers
for whom no employment is immediately available, following the discharge of all replacements,

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on a preferential hiring list in accordance with seniority or other non-discriminatory practice used
at the Cleveland Plating plant and those on that list shall be reinstated before any other persons
are hired in positions for which they are qualified. Those placed on the preferential hire list shall
not be entitled to back pay, if and when they returned to employment, but upon reinstatement
they shall be given full seniority rights.

GOODRICH CORPORATION LANDING GEAR
DIVISION, CLEVELAND PLATING OPERATION
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Federal Building, Room 1695, Cleveland, OH 44199-2086
(216) 522-3716, Hours: 8:15 a.m. to 4:45 p.m.
58

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THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (216) 522-3723.

59
JD–92–04
Cleveland, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

GOODRICH CORPORATION, LANDING
GEAR DIVISION, CLEVELAND
PLATING OPERATIONS

and Case No. 8-CA-33598-1

INTERNATIONAL UNION, UNITED
AUTOMOBILE AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, UAW

TABLE OF CONTENTS

Page

DECISION....................................................................................................................1
Statement of the Case..................................................................................................1
Findings of Fact ...........................................................................................................2

I. Jurisdiction.................................................................................................................2

II. Alleged Unfair Labor Practices ............................................................................ 2

A. Respondent’s operations ................................................................................... 2

B. Minor’s March 15 letter....................................................................................... 3

C. The April 5 bargaining session........................................................................... 4

D. The April 15 bargaining session ........................................................................ 9

E. The April 29 to May 1 bargaining sessions....................................................... 10

F. The May 2 conversation between Van Almen and Wright................................ 17

G. The May 5 contract ratification meeting........................................................... 18

H. The May 6 strike and the Union’s initial Unfair Labor Practice charge............. 21

I. The May 15 bargaining session....................................................................... 22

1. The General Counsel’s witnesses.............................................................22
2. Respondent’s witnesses............................................................................23
3. Credibility...................................................................................................24

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J. Lemin’s May 17 letter and Minor’s May 23 response.........................................27

K. The May 23 Newspaper article..........................................................................28

L. The May 28 bargaining session.........................................................................28

M. The May 31 correspondence............................................................................ 29

N. Respondent hires permanent replacements......................................................30

O. Remaining correspondence...............................................................................30

P. Analysis and conclusions...................................................................................32
2. The information requests.................................................................................32
a. Legal principles............................................................................................32
b. The Union’s request for productivity information..........................................34
c. Minor’s March 15 letter and related information requests.............................39
2. The May 6 strike was an unfair labor practice strike........................................41
a. Legal principles............................................................................................41
b. Analysis…………………………………………………………........................44
3. The unfair labor practice strike did not convert to an economic ........................50

61

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CONCLUSIONS OF LAW............................................................................................53

THE REMEDY.............................................................................................................53
ORDER........................................................................................................................54

APPENDIX

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