Richmond Times-Dispatch

National Labor Relations Board - Board Decisions

Aug 26, 2005

345 N.L.R.B. 195 (N.L.R.B. 2005)

RICHMOND TIMES-DISPATCH
345 NLRB No. 11
195
Media General Operations, Inc., d/b/a Richmond
Times-Dispatch and Graphic Communications
International Union, Local 40-N, AFL–CIO.
Case 5–CA–29907
August 26, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 4, 2002, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The General
Counsel and the Charging Party each filed exceptions, a
supporting brief, and an answering brief. The Respon-
dent filed cross-exceptions, a supporting brief, and a re-
ply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions, as further explained below, and to
adopt the recommended Order.
I. INTRODUCTION
The issues presented in this case are whether the judge
correctly found that the Respondent did not violate Sec-
tion 8(a)(5) of the Act by unilaterally terminating an
annual Christmas/holiday bonus and by refusing the Un-
ion’s requests for financial information relating to the
proposed termination. Contrary to our dissenting col-
league, we find the judge’s findings are well supported
by the facts of this case and by Board precedent.
II. FACTS
On July 31, 2001,1 Frank McDonald (vice president of
human resources) and Karen Larsen (director of human
resources) notified Valerie Irvin (the Union’s president) by
teleconference call that the Christmas bonus—which the
Respondent has paid to employees, including those in the
pressroom unit represented by the Union, since 1960—
would not be paid to any employees in 2001 because of
poor economic conditions. McDonald and Larsen also
informed Irvin of other cost-saving measures the Respon-
dent was instituting. During that call, McDonald ac-
knowledged the bonus cancellation was a bargainable is-
sue, and that the Respondent was willing to negotiate with
the Union. Irvin informed McDonald that she would get
back to him after checking with her constituents.
On the same day as that telephone call, the Respon-
dent’s chief executive officer, J. Stewart Bryan, sent a
letter to all employees regarding the bonus cancellation.
The letter read as follows:
Dear Fellow Employees:

1 All dates are in 2001, unless otherwise noted.
As we all well know, we are in the midst of the
worst advertising downturn in a decade, caused by a
weak economy. This is having a devastating effect
on the financial performance of all media compa-
nies. In response to weak business conditions, the
companies in our industry are implementing aggres-
sive cost-cutting measures in order to maintain cash
flow during this difficult time. Many have had sig-
nificant employee layoffs.
Thus far, this has not been the case at Media
General, and we hope to continue to avoid a major
layoff. We must, however, find other ways to re-
duce costs further.
Unfortunately, the revenue outlook for the rest of
this year is bleak. Opinion in our industry is divided
on whether the advertising downturn is at bottom,
but there certainly is no evidence of an upturn. Our
company faces a very difficult second half of the
year. The broadcast division will not have the reve-
nues it had last year from political campaigns and
the Olympics, and our newspaper side is also weak.
In the absence of new revenue possibilities, we are
driven to look at the cost side of the business to im-
prove overall performance.
We have already instituted strict hiring con-
straints and reduced overtime. We have restricted
travel and entertainment and the use of outside con-
sultants. We have eliminated many marketing and
promotion expenditures. Capital expenditures have
been restricted to those that produce quick positive
cash impact.
Many of the initiatives focused on the cost side
of the business have been in place for several
months. These initiatives have been helpful in ad-
dressing the business requirement to maintain a
strong cash flow. However, as we look to the re-
maining part of the year we find that our current ini-
tiatives will not be enough to offset the projected de-
cline in advertising revenues. As a result of the poor
economic climate, we are unable to pay a Christmas
or Holiday bonus this year to employees who may
have been eligible for one. We will also implement
a new Voluntary Unpaid Leave Policy for non-
represented employees, and your Human Resources
Department will announce the details shortly.
Our entire management team very much regrets
having to take these actions, but we have no choice
based on the business environment. While this may
appear drastic within the culture of our company, it
is far less severe than measures already taken by
many of our peer companies.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD196
I know each one of you is working hard and try-
ing to help the company all you can during this diffi-
cult time. I appreciate and thank you for your sup-
port and dedication and ask you to keep up the good
work so that we may emerge from this difficult pe-
riod with the strength and resiliency we need to deal
well with our very bright future.
Yours Sincerely,
/s/ Stewart Bryan
The Union responded by letter on August 3 that it was
willing to bargain, but the Union made it clear that it
needed some financial information to verify that the Re-
spondent’s revenues were weak before meeting with the
Respondent. On August 8, the Respondent informed the
Union that it would not provide the requested informa-
tion and clarified that it was not unable to pay the bonus,
but that it chose not to pay it due to the economic condi-
tions in the market. The Respondent reiterated that it
was willing to bargain. The Union did not contact the
Respondent about bargaining.2
III. THE JUDGE’S DECISION
The judge found the Respondent did not violate Sec-
tion 8(a)(5) by refusing to provide requested financial
information, nor did the Respondent violate Section
8(a)(5) by unilaterally discontinuing the bonus. Relying
on Nielsen Lithographing, 305 NLRB 697 (1991), affd.
sub nom., Graphic Communications Workers Local 508
v. NLRB, 977 F.2d 1168 (7th Cir. 1992), the judge rec-
ognized that the Respondent would have incurred a duty
to provide requested financial information if it asserted
an inability to pay, but not if the Respondent only
claimed economic difficulties or business losses.
Acknowledging that CEO Bryan’s July 31 letter in-
cluded the phrase “unable to pay,” the judge concluded
that the phrase had to be considered in context and found it
did not express an inability to pay. Rather, the judge
found the letter as a whole conveyed that the Respondent

2 On October 5, the Respondent sent another letter to all employees,
announcing the bonus would not be paid in 2001 nor in future years,
although employees who had been receiving the bonus would have its
value added to their paychecks throughout 2002; the Respondent also
invited represented employees to participate in the Respondent’s pro-
posal to include the value of the bonus in their paychecks through 2002.
That same day, McDonald and Larsen called Irvin to discuss the letter,
and McDonald again acknowledged that the bonus issue was a negotia-
ble item. As on July 31, Irvin told McDonald she would speak to him
after consulting her constituents; Irvin did not contact McDonald there-
after. However, on December 21, McDonald called Irvin to inform her
that unit employees could have the value of the bonus check added to
their paychecks through the upcoming year; McDonald also offered to
negotiate with the Charging Party regarding the matter. Irvin again
informed McDonald that she would get in touch with him, but again,
she did not do so.
was losing money, not that it had insufficient assets to pay
the bonus. Relying on Central Management Co., 314
NLRB 763, 768–769 (1994), the judge further held that,
even assuming the initial letter claimed an inability to pay,
the Respondent subsequently made it clear in its August 8
letter that it had not been and was not asserting such a
claim. Thus, the judge held the Respondent did not violate
Section 8(a)(5) by refusing to provide the requested infor-
mation. Likewise, the judge held the Respondent did not
violate the Act when it discontinued the bonus after notify-
ing the Charging Party and expressing its willingness to
bargain because the Charging Party “sat on its rights” by
conditioning bargaining on receiving the information. See
Haddon Craftsmen, 300 NLRB 789 (1990), affd. mem.
sub nom. Graphic Communications Workers Local 97B v.
NLRB, 937 F.2d 597 (3d Cir. 1991).
IV. THE EXCEPTIONS AND DISSENT
The General Counsel, the Union, and our dissenting
colleague make three principal arguments against the
judge’s decision. With respect to the Respondent’s re-
fusal to provide requested financial information, they
argue that the judge erred in failing to find the Respon-
dent’s letter claimed a present inability to pay the bonus.
They also contest the judge’s conclusion that the Re-
spondent’s August 8 letter made clear that it had not and
was not claiming a present inability to pay. Finally, irre-
spective of the Respondent’s alleged obligation to pro-
vide the requested financial information, they assert that
the judge erred in failing to find that the Respondent’s
cancellation of the 2001 bonus was announced as a fait
accompli and did not allow for meaningful decision bar-
gaining.
V. ANALYSIS
We agree with the judge’s conclusion that the Respon-
dent did not violate Section 8(a)(5) by refusing to pro-
vide the financial information requested by the Union3 or
by unilaterally implementing its cancellation of the holi-
day bonus.
A. The Information Request
The Supreme Court held in NLRB v. Truitt Mfg. Co.,
351 U.S. 149 (1956), that a union is entitled to examine
an employer’s financial records when that employer
bases its bargaining position on an asserted inability to
pay. Since the Nielsen Lithographing decision in 1991,

3 We find it unnecessary to rely on the judge’s finding at fn. 7 of his
decision that the Union knew or should have known the Respondent
was not claiming a present inability to pay because the Union had been
given the Respondent’s annual and 10-K reports for 1998–2000, show-
ing the Respondent had sufficient assets to pay the Christmas bonus,
and because the Union, as a stockholder in the Respondent, was aware
the Respondent declared a quarterly dividend.
RICHMOND TIMES-DISPATCH 197
the Board’s application of this holding has emphasized
“a distinction between asserting an inability to pay,
which triggers the duty to disclose, and asserting a mere
unwillingness to pay, which does not.” Lakeland Bus
Lines, Inc. v. NLRB, 347 F.3d 955, 960–961 (D.C. Cir.
2003), denying enf. Lakeland Bus Lines, 335 NLRB 322
(2001).4
The Board recently applied this distinction in AMF
Trucking & Warehousing, 342 NLRB 1125 (2004).
Responding to proposals made during bargaining ses-
sions, the employer stated it had purchased the company
“in distress a year and a half earlier, and that the com-
pany was still in distress,” ‘‘fighting to [stay] alive,” and
“weaker this year” than in previous years. Id. at 1125.
The employer reiterated these statements at a later bar-
gaining session. However, the employer refused the un-
ion’s subsequent request of access to the employer’s fi-
nancial records and denied that it claimed an inability to
pay. Id. at 1125. The Board began its analysis by stat-
ing:
[T]he phrase “inability to pay” means, by definition,
that the employer is incapable of meeting the union’s
demands. That is, the phrase means more than the as-
sertion that it would be difficult to pay, or that it would
cause economic problems or distress to pay. “Inability
to pay” means that the company presently has insuffi-
cient assets to pay or that it would have insufficient as-
sets to pay during the life of the contract that is being
negotiated. Thus, inability to pay is inextricably linked
to nonsurvival in business.
Id. at 1126. The Board found that the employer’s state-
ments did not establish a present “inability to pay” claim,
emphasizing that the employer never stated that its survival
was at stake or that it would have no future if it acceded to
the union’s demands. . . . The Board stressed that a state-
ment that an employer was in distress “is not synonymous
with an assertion that the [employer] currently has, or will
have, insufficient assets to pay,” and concluded in that case
there were “no such bleak predictions about going out of
business.” Id.5

4 Our colleague says that Nielsen has been much-criticized. In re-
sponse, we note that Nielsen was affirmed by the Seventh Circuit, and
no party here seeks to overrule it. We believe that our colleague’s
position is a reasonable one, but that our position is more reasonable
and well within the bounds of the Act.
5 The dissent maintains that our reliance on AMF is unsound because
the employer in AMF never expressly said it was unable to pay, so the
Board was interpreting the employer’s representations to decide if they
implied such a claim. Although the dissent insists we are extending
AMF to include cases where the employer expressly claims an inability
to pay, the Board has consistently held there are no “magic words” that
convey an inability to pay, but instead the Board examines statements
Similarly, there were no such bleak predictions or pro-
nouncements in the Respondent’s July 31 letter. The
letter began by detailing an industrywide downturn
caused by a weak economy and describing the industry-
wide reactions, such as cost-cutting measures and layoffs
(which the Respondent noted it had not done). The letter
mentions the savings initiatives the Respondent had al-
ready enacted to improve its overall performance—and
that the initiatives had been “helpful” to a point. Nota-
bly, the letter does not say that the initiatives were neces-
sary because the Respondent had insufficient assets to
pay the bonus, or that the Respondent would not survive
were it to do so. While the letter includes the words “un-
able to pay,” that phrase, when taken in context, de-
scribes the bonus cancellation as an effort designed “to
maintain a strong cash flow” and “to offset the projected
decline in advertising revenues,” not as a measure upon
which the Respondent’s survival was based.
Our dissenting colleague does not read the letter in its
proper context. Instead, the dissent takes certain phrases
and focuses on them in isolation from the text in which
they appear to extrapolate a present “inability to pay”
claim.6 This is the same artificial reading of language the
administrative law judge properly rejected when he said,
“[the letter] must be considered together and in context . . .
its content reflects and conveys to employees that the Re-
spondent was losing money. However, there is a clear
distinction between ‘losing money’ and ‘an inability to
pay.’’’ We agree with this analysis.
Shell Co., 313 NLRB 133 (1993), cited by the dissent,
is a factually distinct case. In Shell Co., the employer
informed the union that “economic conditions had af-
fected them ‘very badly, very seriously,’ that present
circumstances . . . were ‘bad’ and a matter of “survival,”
and that it needed the union’s help because of its condi-
tion. Id. at 133. The Board found the employer claimed
a present inability to pay because the employer’s posture
was grounded in assertions that it could not survive if it
continued meeting its obligations under its most recent
collective-bargaining agreement with the union. Id. at
133–134. In contrast, the Respondent never even sug-
gested that its existence was at stake, let alone said that
cancellation of the bonus was a “matter of survival.”
Instead of presenting a clear claim of insufficient assets,
as our dissenting colleague argues, the Respondent’s
letter depicts an industrywide revenue down-cycle and

in their overall context. See Burruss Transfer, Inc., 307 NLRB 226,
228 (1992) (finding the employer had not claimed an inability to pay).
6 We note that the Union specifically referred to two phrases in the
July 31 letter in support of its August 3 request for financial informa-
tion. Neither of these phrases is among the three cited by the dissent as
the basis for interpreting the letter as stating a claim of inability to pay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD198
the measures enacted in response. Finally, the letter
closed with a reference to the Respondent’s “very bright
future,” hardly an indication that the Respondent’s de-
mise was imminent.
Assuming for the sake of argument only that the July
31 letter made out a present “inability to pay” claim, the
Respondent’s August 8 letter made it clear that the Re-
spondent was not asserting such an inability to pay. The
Board recently dealt with a similar issue in American
Polystyrene Corp., 341 NLRB 508 (2004). There, the
statements alleged to amount to an “inability to pay”
claim were made by the employer’s general manager and
chief negotiator, Carolyn Tan, during a bargaining ses-
sion for a successor agreement. Id. at 508. The union’s
chief negotiator asked Tan if ‘‘things were really that
bad.” Id. Tan replied that things were “tough.” The
negotiator then asked if Tan “was saying that she could
not afford the union’s proposal.” Id. Tan replied, “No, I
can’t. I’d go broke.” Id. At the end of that day’s bar-
gaining session, the union’s negotiator gave Tan a letter
claiming the employer said it could not afford the un-
ion’s proposal and requesting review of the employer’s
books. Tan responded by letter the next day, rejecting
the request: “While I have told you that we are a small
company and times are tough, at no time have I ever told
you we cannot afford your proposals. Rather, in these
uncertain economic times, we believe that we need to
take a more cautious approach than what you propose.”
Id. There was a similar exchange of letters 2 weeks later.
The Board found that, even assuming the employer ini-
tially claimed a present inability to pay, the employer
“effectively retracted any such claim simultaneously with
its denial of the Union’s request.” Id. at 509.
The Respondent’s letter denying it was claiming an in-
ability to pay is nearly identical to the letter in American
Polystyrene. As in American Polystyrene, the Respon-
dent, upon receiving the information request, responded
by denying it had made an “inability to pay” claim and
explaining the reasons for its statements. Contrary to our
dissenting colleague, we find the difference in the
amount of time that elapsed between the alleged “inabil-
ity to pay” claim and the purported retraction in this case
does not warrant a different result from American Poly-
styrene. The Respondent’s retraction letter was sent 8
days after its initial letter, and 5 days after the Charging
Party’s request for financial information. Furthermore,
the retraction preceded any negotiations about the cancel-
lation of the bonus, thus, making clear from the start of
the intended bargaining process (which the Union de-
clined to participate in) the true meaning of the Respon-
dent’s financial claims in support of the proposed bonus
cancellation.
The dissent also attempts to distinguish Central Man-
agement, upon which the judge relied, based on the fact
that the union admitted the employer was not claiming an
inability to pay. 314 NLRB at 769. In that case, the em-
ployer said during its second bargaining session that it
“was losing money and could not afford to pay what they
were paying.” Id. at 764. In response and during the
next session, the union asked to examine the employer’s
financial records; the records were never produced, how-
ever. Id. at 764. Instead, during the fourth bargaining
session, the employer handed the union a statement
which said it did not claim a present inability to pay. Id.
at 765. At the fifth bargaining session, the union’s chief
negotiator asked the employer why it was still insisting
on a proposal “when it no longer claimed inability to
pay.” Id. at 765. The Board found the employer made
an “inability to pay” claim during the second and third
bargaining sessions, obligating the employer to provide
the union with its financial records. Id. at 769. It con-
cluded, however, the employer effectively retracted that
claim during the fourth bargaining session. Id. at 769.
Although the Board pointed to the union’s admission
during the fifth bargaining session that the employer no
longer claimed inability to pay as evidence that the em-
ployer effectively retracted its claim, the absence of such
an admission cannot hardly be relied upon to defeat an
effective retraction.
Thus, the dissent has not pointed to a meaningful dis-
tinction between the facts of this case and the facts of
American Polystyrene7 and Central Management. It
appears that our colleague believes that an employer
cannot effectively retract a purported claim of inability to
pay unless it expressly admits to having made such a
claim. We reject that view. It may well be that an em-
ployer cannot make a clear claim of inability to pay and
then say “disingenuously or in bad faith” that it never
made such a claim. See Lakeland Bus Lines v. NLRB,
347 F.3d at 964. However, the Respondent here made a
claim that, at worst, could be interpreted as claim of in-
ability to pay and then clarified that this was not its
claim.
For the reasons discussed above, we agree with the
judge that the Respondent had no duty to provide the
requested financial information. We therefore adopt his

7 Consistent with our footnote from American Polystyrene, 341
NLRB at 509 fn. 7, Chairman Battista and Member Schaumber find
that it is unnecessary to pass in this case on the validity of the Board’s
decision in Lakeland Bus Lines. As noted, that decision was reversed
on appeal. Further, although the dissent argues Lakeland Bus Lines is
directly on point, we find the present case more akin to American Poly-
styrene.
RICHMOND TIMES-DISPATCH 199
recommendation to dismiss the complaint allegation of
an 8(a)(5) violation.
B. Respondent’s Obligation to Bargain About
the Bonus Cancellation
We also reject the assertion that the Respondent
unlawfully failed to bargain over the decision to cancel
the Christmas bonus because the change was presented to
the Union as a fait accompli. The Respondent made its
announcement several months before the change would
be implemented, and it told the Union that it was willing
to bargain over the change. Contrary to the dissent, we
do not find that CEO Bryan’s July 31 letter conveyed the
finality of a bonus cancellation decision as to bargaining
unit employees. It must be remembered that this letter
was sent to all of the Respondent’s employees. The can-
cellation decision was final, or at least nonnegotiable, as
to unrepresented employees. However, McDonald and
Larsen notified the Union of the proposed change in ad-
vance of Bryan’s letter and acknowledged that the bonus
cancellation was a bargainable issue. Nothing in the
Bryan letter can reasonably be construed as negating this
prior communication. Indeed, the Union did not treat it
as such in its August 3 letter, which expressed the avail-
ability of union representatives to meet in response to
McDonald and Larsen’s statement that the cancellation
“was a bargaining issue.”
The dissent cites a portion of McDonald’s testimony as
post hoc evidence that Respondent never intended to
bargain about the cancellation decision, only about its
effects. There is no evidence that any of the Respon-
dent’s officials suggested they would not bargain over
the decision to cancel the bonus when they expressed to
the Union their willingness to bargain about the bonus
cancellation in the summer of 2001.8 Under the circum-
stances, it was incumbent on the Union to test the Re-
spondent’s intent to bargain about the cancellation deci-

8 The dissent argues we are erroneously reading the Respondent’s
letter, contending that there was contemporaneous evidence that the
Respondent would not bargain over the decision to cancel the bonus.
However, the dissent ignores the fact that the Respondent acknowl-
edged the decision was a bargainable issue, as well as the fact that the
Union treated that acknowledgement as such, and that there was no
contemporaneous evidence that either party suggested that bargaining
would be circumscribed to only the effects of the cancellation. Simi-
larly, the dissent is mistaken that there is only one interpretation for the
Respondent’s statements—that the Respondent was only willing to
engage in effects bargaining. There is, of course, another interpreta-
tion—that it was consistent for the Respondent to acknowledge to the
Union that it had a bargaining obligation over the cancellation decision
at the same time the Respondent informed the Union about the letter
that was sent to all of the Respondent’s employees. We find, consistent
with our finding that the General Counsel failed to prove that the Union
was presented with a fait accompli, that this interpretation has a
stronger basis in the record evidence.
sion by engaging in negotiations. Instead, the Union
chose to request financial information, which we have
found Respondent was not legally required to provide,
and the Union would not negotiate without it.
Based on the foregoing, we find the General Counsel
failed to prove that the Union was presented with a fait
accompli. See Haddon Craftsmen, supra at 790–791
(finding evidence insufficient to establish fait accompli
in light of lack of objective evidence indicating that bar-
gaining was futile).
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER LIEBMAN, dissenting.
Since 1960, the Respondent had paid its employees an
annual bonus. It canceled the bonus unilaterally in 2001.
In a letter to employees announcing this decision as a fait
accompli, the Respondent claimed that it was “unable to
pay” the bonus and had “no choice” but to cancel it.
When the Union asked for financial information substan-
tiating this inability-to-pay claim, the Respondent re-
fused to supply it, denied it had said it was unable to pay
the bonus, and claimed it had said it had chosen not to
pay it. On these facts, the judge and the majority dismiss
the complaint in its entirety.
I would find the violations as alleged. The Respondent
violated Section 8(a)(5) by unilaterally canceling the
bonus. Contrary to the judge’s finding, the Union did not
waive its right to bargain by conditioning bargaining on
receipt of financial information. The Respondent never
gave the Union an opportunity to bargain about the bo-
nus cancellation, so it violated the Act whether or not the
Union was entitled to the requested information. In any
case, the Union was entitled to the information, and the
Respondent violated Section 8(a)(5) by refusing to fur-
nish it. The Respondent expressly claimed inability to
pay, and it did not retract that claim. Remarkably, the
majority concludes that “unable to pay” does not mean
“unable to pay,” and “no choice” but to cancel the bonus
means “has chosen to cancel” it. If Nielsen1—a much-
criticized decision—leads to this result, then it should be
overruled. But in fact, as explained below, under Nielsen
the Respondent’s violation is clear.
I. FACTS
Frank McDonald Jr. is the Respondent’s vice president
of human resources; Karen Larsen is its director of hu-
man resources; and J. Stewart Bryan III is its chairman

1 Nielsen Lithographing Co., 305 NLRB 697 (1991), petition for re-
view denied sub nom. Graphic Communications Workers Local 508 v.
NLRB, 977 F.2d 1168 (7th Cir. 1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD200
and chief executive officer. Graphic Communications
International Union, Local 40-N, AFL–CIO (Local 40-N
or the Union) represents a bargaining unit consisting of
the Respondent’s pressroom employees. The president
of Local 40-N is Valerie Irvin.
The Respondent’s past practice, dating back to 1960,
was to pay its employees an annual Christmas/Holiday
bonus equal to 1 week’s pay, typically in the second
week of December. On July 31, 2001,2 McDonald and
Larsen telephoned Irvin to tell her that the 2001 bonus
would not be paid to unit employees. McDonald in-
formed Irvin that all employees would be receiving a
letter from CEO Bryan explaining why the bonus was
being cancelled. After reviewing with Irvin the contents
of Bryan’s letter, McDonald told Irvin he recognized that
the cancellation of the bonus was “a bargainable issue.”
McDonald did not mean, however, that the cancellation
decision was bargainable. Rather, he testified that he
placed the call to Irvin to “give her the opportunity to . . .
bargain[ ] over the effects” of that decision. (Tr. 116.)
Bryan’s letter to employees announcing the bonus can-
cellation was dated July 31, the same day McDonald
phoned Irvin, and stated in pertinent part as follows:
As we all well know, we are in the midst of the
worst advertising downturn in a decade, caused by a
weak economy. This is having a devastating effect
on the financial performance of all media compa-
nies. In response to weak business conditions, the
companies in our industry are implementing aggres-
sive cost-cutting measures in order to maintain cash
flow during this difficult time. Many have had sig-
nificant employee layoffs.
Thus far, this has not been the case at Media
General, and we hope to continue to avoid a major
layoff. We must, however, find other ways to re-
duce costs further.
Unfortunately, the revenue outlook for the rest of
this year is bleak. Opinion in our industry is divided
on whether the advertising downturn is at bottom,
but there certainly is no evidence of an upturn. Our
company faces a very difficult second half of the
year. The broadcast division will not have the reve-
nues it had last year from political campaigns and
the Olympics, and our newspaper side is also weak.
In the absence of new revenue possibilities, we are
driven to look at the cost side of the business to im-
prove overall performance.
We have already instituted strict hiring con-
straints and reduced overtime. We have restricted
travel and entertainment and the use of outside con-

2 All dates are 2001, unless otherwise indicated.
sultants. We have eliminated many marketing and
promotion expenditures. Capital expenditures have
been restricted to those that produce quick positive
cash impact.
Many of the initiatives focused on the cost side
of the business have been in place for several
months. These initiatives have been helpful in ad-
dressing the business requirement to maintain a
strong cash flow. However, as we look to the re-
maining part of the year we find that our current ini-
tiatives will not be enough to offset the projected de-
cline in advertising revenues. As a result of the poor
economic climate, we are unable to pay a Christmas
or Holiday bonus this year to employees who may
have been eligible for one. We will also implement
a new Voluntary Unpaid Leave Policy for nonrepre-
sented employees, and your Human Resources De-
partment will announce the details shortly.
Our entire management team very much regrets
having to take these actions, but we have no choice
based on the business environment. [Emphasis
added.]
By letter dated August 3, the Union requested certain
items of financial information necessary to assess the
claims made in Bryan’s letter. The August 3 letter com-
municated the Union’s desire to bargain over the bonus
issue once it had examined the requested information.
The Respondent denied the information request on Au-
gust 8 with this explanation:
Your request for this financial information is apparently
based on your belief that Media General is financially
unable to pay the Christmas bonuses. However, Media
General has not indicated that it is unable to pay the
bonuses from a financial standpoint but rather that it
has chosen not to pay at this time due to the economic
situation in the marketplace.
II. ANALYSIS
A. The Respondent’s Cancellation of the 2001
Bonus Violated Section 8(a)(5)
A union cannot be held to have waived bargaining
over a change that is presented to it as a fait accompli.
See, e.g., Pontiac Osteopathic Hospital, 336 NLRB
1021, 1023 (2001). Yet that is what the majority does,
and that is how the Respondent presented the bonus can-
cellation to the Union. Although McDonald told Irvin on
July 31 that the bonus cancellation was a “bargainable
issue,” the judge found (and there were no exceptions to
the finding) that McDonald and Larsen also told Irvin, in
the same July 31 conversation, that the 2001 bonus
would not be paid to members of the bargaining unit.
RICHMOND TIMES-DISPATCH 201
Bryan’s July 31 letter promptly reiterated that message
by informing all employees, including unit employees,
that the bonus would not be paid. Only one interpreta-
tion of McDonald’s statement that the cancellation was
“bargainable” harmonizes that statement with the other
two, and McDonald confirmed that interpretation when
he admitted—in response to friendly questioning on di-
rect examination—that he contacted Irvin to give the
Union an opportunity to bargain over the effects of the
cancellation. Concededly, some months remained before
the implementation of the cancellation decision. How-
ever, where implementation is not imminent, an em-
ployer’s announcement of a change concerning a manda-
tory subject of bargaining is still nothing more than no-
tice of a fait accompli if the employer has no intention of
changing its mind. Ciba-Geigy Pharmaceuticals Divi-
sion, 264 NLRB 1013, 1017 (1982), enfd. 722 F.2d 1120
(3d Cir. 1983). That was the case here. By telling Irvin
that the 2001 bonus would not be paid to unit employees,
and by announcing to employees that it was “unable” to
pay the bonus and had “no choice” but to cancel it, the
Respondent clearly communicated that it had made up its
mind with finality. McDonald’s admission that the Re-
spondent was willing to engage only in effects bargain-
ing concerning the cancellation confirmed the finality of
that decision.
The judge dismissed the allegation that the bonus was
unilaterally changed without notice to or bargaining with
the Union, erroneously linking it to whether the Respon-
dent had incurred a duty to furnish requested financial
information. Finding that the Respondent did not incur
that duty (because it did not claim inability to pay the
bonus), the judge reasoned that the Union waived bar-
gaining by conditioning its willingness to bargain on
receipt of information to which, in the judge’s view (em-
braced by the majority), it was not entitled. As explained
below, the judge’s and my colleagues’ predicate finding
is wrong: the Union was entitled to the financial infor-
mation it asked for, and therefore the Union did not
waive bargaining. However, even assuming the Union
was not entitled to that information, the unilateral cancel-
lation of the bonus was still unlawful. The Respondent
had already decided to cancel the bonus by the time it
gave notice to the Union, and it communicated the final-
ity of its decision both when it gave that notice and when
it announced the cancellation to employees later the same
day. The Respondent consigned the Union to bargaining
merely over the effects of that decision. Thus, the only
bargaining the Union could possibly have waived by
refusing to negotiate without the requested information
was effects bargaining, not decisional bargaining. Ac-
cordingly, the Respondent’s unilateral decision to cancel
the bonus violated Section 8(a)(5) regardless of whether
its subsequent refusal to furnish financial information
was also unlawful.
In finding, erroneously, that the Respondent’s unilat-
eral change did not violate Section 8(a)(5), the judge and
the majority cite Haddon Craftsmen.3 Haddon Crafts-
men is distinguishable. In that case, the union received
notice of an impending change at least 5, and possibly as
many as 11, days before the employer announced the
change to employees. The union did not request bargain-
ing because it believed that the employer had already
made up its mind about the change. As it turned out, the
union was right: the employer’s plant manager testified
that he had already decided on the change before the un-
ion was ever notified. However, that fact had not been
communicated to the union. Under those circumstances,
the Board found no fait accompli in the absence of objec-
tive evidence that a request for bargaining would have
been futile. 300 NLRB at 790 fn. 8.
Here, by contrast, the Respondent did furnish objective
evidence that a request to bargain over the cancellation of
the bonus would have been futile. McDonald told Irvin
that the bonus would not be paid to unit employees.
Bryan’s letter announced the cancellation of the bonus to
all employees, including unit employees. McDonald’s
additional statement that the bonus cancellation was
“bargainable” did not negate this objective evidence that
a request to bargain over the decision would have been
futile. In context, that statement could only have meant
that the Respondent was willing to engage in effects bar-
gaining. Otherwise, McDonald would have been contra-
dicting himself saying first that the bonus would not be
paid and then, practically in the next breath, saying that
the issue was “bargainable.” At the hearing, McDonald
confirmed that effects bargaining was all he meant.
The majority erroneously reads Bryan’s July 31 letter
as communicating that the cancellation decision was fi-
nal only as to unrepresented employees. Nothing in the
letter itself, which was addressed to all employees, sug-
gested that the decision was final only as to some of
them; and my colleagues do not contend otherwise.
Rather, they derive their interpretation of Bryan’s letter
from McDonald’s prior statement that the cancellation
was bargainable, together with a purported absence of
evidence of any contemporaneous statement suggesting
that the Respondent would not bargain over the cancella-
tion. But, as explained, there is such contemporaneous
evidence: McDonald’s statement that the bonus would

3 300 NLRB 789 (1990), review denied mem. sub nom. Graphic
Communications Workers Local 97B v. NLRB, 937 F.2d 597 (3d Cir.
1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD202
not be paid to unit employees. Read in light of that
statement, Bryan’s letter means just what it says.
In finding no fait accompli, the majority relies in part
on the fact that the Union’s August 3 letter expressed a
willingness to meet in response to McDonald’s statement
that the cancellation was bargainable. In context, how-
ever, McDonald’s statement was equivocal at best. Be-
cause McDonald did not clearly express a willingness to
bargain over the bonus decision (as opposed to its ef-
fects), the Union’s willingness to meet cannot preclude a
finding that the decision was presented as a fait accompli
(which indeed, it was).
B. The Respondent’s Refusal to Furnish Requested
Financial Information Violated Section 8(a)(5)
The Board’s test for determining whether an employer
has incurred an obligation to furnish requested financial
information is set forth in Nielsen Lithographing Co.,
305 NLRB 697 (1991).4 Under Nielsen, that obligation
arises when an employer claims it is presently unable to
meet the union’s current bargaining demands or will be-
come unable to meet them during the life of the contract
under negotiation. 305 NLRB at 700. Here, the Re-
spondent supported its cancellation of the 2001 bonus by
expressly stating that it was “unable to pay” the bonus
and had “no choice” but to cancel it. And yet, the judge
and the majority find that under Nielsen, the Respondent
did not claim inability to pay. That the majority, apply-
ing Nielsen, can reach that result suggests a flaw in Niel-
sen itself.5 Nevertheless, even under Nielsen the viola-
tion is clear here.

4 Nielsen Lithographing Co., 279 NLRB 877 (1986), enf. denied and
remanded 854 F.2d 1063 (7th Cir. 1988), on remand 305 NLRB 697
(1991), petition for review denied sub nom. Graphic Communications
Workers Local 508 v. NLRB, 977 F.2d 1168 (7th Cir. 1992).
5 This is far from the first case in which the Nielsen rule has revealed
its flaws. In previous cases, it has given rise to opposite conclusions on
facts that cannot be persuasively distinguished. For example, in Bur-
russ Transfer, 307 NLRB 226 (1992), the Board found that the em-
ployer did not claim inability to pay where it said it would “not be able
to survive” if it increased wages or benefits. The following year, in
Shell Co., 313 NLRB 133 (1993), the Board found that the employer
did claim inability to pay where it characterized its financial situation
as “a matter of survival.” But then, in AMF Trucking & Warehousing,
342 NLRB 1125 (2004), the Board found no inability-to-pay claim
where the employer said it was “fighting to keep the business alive.”
These results cannot be squared. In addition, under Nielsen the Board
has declined to find an inability-to-pay claim on stronger facts for such
a finding than those in another case where an inability-to-pay claim has
been found. For example, in Lakeland Bus Lines, 335 NLRB 322
(2001), enf. denied 347 F.3d 955 (D.C. Cir. 2003), the employer told its
employees that acceptance of its offer would enable it to “retain your
jobs and get back in the black in the short term,” and that the “future of
Lakeland depends on it.” Interpreting those statements as equivalent to
the claim that “circumstances were bad and a matter of survival,” the
Board found a claim of inability to pay. 335 NLRB at 324–325. By
contrast, in AMF Trucking & Warehousing, supra, no such act of inter-
C. The Respondent Claimed Inability to Pay
In determining whether an employer has incurred a
duty to open its books, the Board examines whether the
employer’s communication, reasonably interpreted,
communicates “financial inability to meet the employ-
ees’ demand rather than simple unwillingness to do so.”
Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984).
“[N]o magic words are required to express an inability to
pay,” so long as the employer’s “words and conduct [are]
specific enough to convey such a meaning.” Id.
When McDonald telephoned Irvin on July 31, he re-
viewed with her the contents of Bryan’s letter to employ-
ees. That letter categorically stated that the Respondent
(a) was “unable to pay” the 2001 bonus “as a result of the
poor economic climate,” (b) regretted “having to” cancel
the bonus, and (c) had “no choice” but to cancel the bo-
nus “based on the business environment.” Reasonably
interpreting these statements by giving them their plain
meaning, it is apparent that the Respondent claimed fi-
nancial inability, not simple unwillingness, to pay the
2001 bonus.6

pretation was needed because the employer asserted outright that it was
“in distress” and “fighting to keep the business alive.” And yet, despite
these more compelling facts, the Board in AMF found no inability-to-
pay claim.
The majority characterizes the Board’s post-Nielsen precedent as
applications of the Supreme Court’s decision in NLRB v. Truitt Mfg.
Co., 351 U.S. 149 (1956), and observes that Nielsen was “affirmed” by
the Seventh Circuit. However, that court made plain that the Board’s
pre-Nielsen doctrine, under which an employer’s claim of competitive
disadvantage sufficed to trigger the duty to furnish requested financial
information, was “within the analytical framework established in
Truitt.” Nielsen Lithographing Co. v. NLRB, 854 F.2d 1063, 1065 (7th
Cir. 1988). When the Board abandoned that doctrine anyway, the
Seventh Circuit reiterated that it was certainly not incumbent on the
Board to do so. Graphic Communications Workers Local 508 v. NLRB,
977 F.2d 1168, 1169 (7th Cir. 1992). Thus, Nielsen is arguably permis-
sible under Truitt, but not compelled by it.
In her concurring opinion in ConAgra, Inc. v. NLRB, 117 F.3d 1435,
1447–1450 (D.C. Cir. 1997), Judge Wald expressed her view that
“there are sufficiently serious theoretical and practical fissures in the
Nielsen reasoning itself” that the rule should be revisited. I find her
views persuasive, particularly because Nielsen permits such inconsis-
tencies, and because it often sanctions “hide-the-ball” conduct at the
bargaining table contrary to the obligation to bargain in good faith as
explicated by the Supreme Court in Truitt, supra. A better and more
practical rule would place on employers “the obligation to supply the
union, upon request, with financial information necessary to substanti-
ate the employers’ objectively verifiable . . . claims” concerning their
financial condition. ConAgra, supra at 1448 (Wald, J., concurring). In
the absence of a Board majority to revisit the Nielsen rule, however, I
accept it as current Board law. And in any event, as I explain below, it
is easily met in this case.
6 The majority observes that the Union, in its August 3 letter request-
ing financial information, referred to two phrases in Bryan’s July 31
letter, neither of which were among the three phrases I rely on as show-
ing that the Respondent claimed inability to pay. That signifies noth-
ing. The purpose of the August 3 letter was to request financial infor-
RICHMOND TIMES-DISPATCH 203
This finding gains force from the rest of Bryan’s letter.
Sounding a dismal note from the very outset, the letter
declared that the Respondent was “in the midst of the
worst advertising downturn in a decade,” which was hav-
ing a “devastating effect on the financial performance of
all media companies.” The letter asserted an “absence of
new revenue possibilities,” which was “driv[ing]” the
Respondent “to look at the cost side of the business.”
The letter then informed employees that, in fact, the Re-
spondent was not just beginning “to look at the cost side
of the business,” but on the contrary had been cutting
costs in a variety of ways “for several months,” only to
find that these cuts would “not be enough to offset the
projected decline in advertising revenues.” See Shell
Co., supra, 313 NLRB at 133 (finding the employer
claimed inability to pay where, inter alia, it referred to
steps it had already taken to address its financial situa-
tion). Having thus set the stage, the letter then an-
nounced, in so many words, the Respondent’s inability to
pay the 2001 bonus. Viewing Bryan’s letter as a whole,
the Respondent’s message was one of financial inability,
not simple unwillingness.
Finding to the contrary, the majority agrees with the
judge’s characterization of Bryan’s letter as claiming that
the Respondent was “losing money.” Nowhere in the
letter does Bryan use those words. The judge and the
majority also reason that Bryan’s letter does not state that
the Respondent has “insufficient assets” to pay the bo-
nus. But that is not the proper analysis. As stated above,
there are no magic words required for an inability-to-pay
claim. In any event, the Respondent said it was “unable
to pay” and therefore had “no choice” but to cancel the
bonus. It is hard to imagine a more literal claim of insuf-
ficient assets, not to mention inability to pay.
In finding that the Respondent did not claim inability
to pay, the majority principally relies on AMF Trucking
& Warehousing, supra. Its reliance on AMF is unsound
for two reasons.
First, unlike the Respondent, the employer in AMF
never expressly stated that it was unable to pay. Thus, in
AMF the Board had the task of interpreting the em-
ployer’s statements to determine whether they implied an
inability-to-pay claim. In that context, the AMF majority
considered the meaning of the phrase “inability to pay,”
and concluded that “inability to pay is inextricably linked

mation because the Respondent had claimed inability to pay, not to
make the case that the Respondent had so claimed. Naturally, there-
fore, Irvin focused on financial assertions in Bryan’s letter that she
wanted the Respondent to document. Since Bryan had expressly said
that the Respondent was “unable to pay,” it would not have occurred to
Irvin to think that she had to inform the Respondent why the Union was
entitled to financial information.
to nonsurvival in business.” 342 NLRB at 1126. That
conclusion was mistaken, as I explain below. Setting
that aside, however, AMF stands for the proposition that
where an employer has not expressly claimed inability to
pay (employers rarely do), the Board will not find it has
implied such a claim unless it has intimated the prospect
of nonsurvival in business. Today’s decision now ex-
tends AMF to hold that where an employer expressly
claims inability to pay, the Board will not take it at its
word unless it also declares that its survival is at stake.
Second, the majority’s reliance on AMF is unsound
because its “nonsurvival” rationale is itself flawed. From
the premise that “‘[i]nability to pay’ means that the com-
pany presently has insufficient assets to pay or that it
would have insufficient assets to pay during the life of
the contract that is being negotiated,” the AMF majority
jumped to the conclusion that “inability to pay is inextri-
cably linked to nonsurvival in business.” 342 NLRB at
1126. That conclusion simply does not follow. A com-
pany in financial trouble may believe that it will survive
its present crisis, and yet nevertheless presently have
insufficient assets to pay. Indeed, that was the case here.
Bryan observed that “the revenue outlook for the rest of
this year is bleak,” but concluded his July 31 letter by
predicting that the Respondent would “emerge from this
difficult period” into a “very bright future.” Neverthe-
less, because of present economic conditions, Bryan de-
clared the Respondent “unable to pay” a bonus for 2001.7
The majority cited no authority in AMF, and cites none
here, for the proposition that a claim of present inability
to pay, which is based on an employer’s assertion that it
currently does not have sufficient assets to meet the Un-
ion’s demands, or will not have such assets during the
term of a proposed collective-bargaining agreement, is
not sufficient to trigger the employer’s duty to furnish
financial information to back up that claim. There is no
reason in law or logic why an employer’s duty to furnish
such information should not be triggered in such a situa-
tion, even if the employer is not claiming that its very
survival is at stake. By interpreting Truitt and Nielsen to
require that showing, the majority continues to move the
goalposts even further in these cases., Its approach frus-
trates good-faith bargaining and seriously undercuts the
Truitt principle.
D. The Respondent Did Not Retract Its
Inability-To-Pay Claim
The judge and the majority find that even if Bryan’s
July 31 letter claimed inability to pay, the Respondent
retracted that claim in its letter of August 8. The Re-

7 The majority is mistaken then in assertions that there were no
“bleak predictions or pronouncements” in the letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD204
spondent did nothing of the kind. Its August 8 letter
simply rewrote history. Bryan’s letter stated that “[a]s a
result of poor economic climate, we are unable to pay”
the bonus; the August 8 letter falsely claimed that the
Respondent “has not indicated that it is unable to pay the
bonuses from a financial standpoint.” Bryan’s letter
stated that “we have no choice” but to cancel the bonus;
the August 8 letter falsely claimed that the Respondent
had indicated “that it has chosen not to pay.” These
transparently false assertions were not a retraction of
Bryan’s statements because “a retraction of a particular
statement, by its very nature, implies an acknowledgment
that the statement was made.” Lakeland Bus Lines, su-
pra, 335 NLRB at 326.
In finding a retraction of Bryan’s inability-to-pay
claim, the judge cited Central Management Co., 314
NLRB 763 (1994). Central Management is distinguish-
able. In that case, the employer clarified its bargaining
position by stating that “[t]he Company does not claim
inability to pay,” and the union’s negotiator admitted that
“it was ‘obvious’ to the [u]nion that the [r]espondent was
no longer claiming poverty.” 314 NLRB at 769 (empha-
sis omitted). The Board found that the employer had
effectively withdrawn its earlier claim of inability to pay
“[i]n light of the [u]nion’s admission.” Id. Here, by con-
trast, the Union never accepted the Respondent’s August
8 denial as a withdrawal or retraction of its July 31 in-
ability-to-pay claim. Moreover, in Central Management,
the employer did not falsely assert—as did the employer
in Lakeland and the Respondent here—that it had never
claimed inability to pay. Rather, it made a present-tense
statement that it “does” not so claim, which the Board
accepted, in light of the union’s admission, as a valid
retraction of its earlier claim. Thus, Central Manage-
ment is unavailing.8
To find a valid retraction, the majority relies on
American Polystyrene Corp., 341 NLRB 508 (2004). In
American Polystyrene, the union negotiator, during bar-
gaining, asked the employer’s negotiator, Carolyn Tan, if
Tan was saying she could not afford the union’s propos-
als. Tan replied: “No, I can’t. I’d go broke.” At the end
of the bargaining session, the union requested financial
information substantiating Tan’s claim. Tan denied the
request the next day, stating that “at no time have I ever

8 The majority says that I have not pointed to a meaningful distinc-
tion between the facts of this case and those of Central Management.
However, the distinctions I draw above are exactly those relied upon by
a three-member majority in Lakeland Bus Lines in finding no valid
retraction of an inability-to-pay claim in that case. 335 NLRB at 326
fn. 14. Lakeland Bus Lines has not been overruled. Thus, with the
majority’s decision in this case, Board precedent holds that Central
Management both is and is not distinguishable on the grounds I have
relied on here.
told you we cannot afford your proposals.” 341 NLRB
at 508. A Board majority found that Tan had retracted
her inability-to-pay claim. Id. at 509. In so finding,
however, the Board did not reject its retraction analysis
in Lakeland Bus Lines, supra. Rather, it distinguished
Lakeland on two grounds. First, in Lakeland, the em-
ployer’s claim of inability to pay “was made in a letter to
unit employees at the end of negotiations,” whereas
Tan’s inability-to-pay claim was made “orally, during the
heat of a negotiating session, not reflectively in a letter.”
Id. Second, in Lakeland, the employer’s pseudo-
retraction came two weeks after the union’s information
request, whereas Tan’s denial was made “immediately,
within a day” of her inability-to-pay claim. Id. What-
ever one thinks of these distinctions,9 the present case is
not similarly distinguishable from Lakeland. Here, as in
Lakeland, the inability-to-pay claim was made reflec-
tively in a letter to unit employees, and the subsequent
denial of that claim was not immediate. Here, as in
Lakeland, the inability-to-pay claim stands unretracted.10
CONCLUSION
Even under the flawed Nielsen rule, the outcome of
this case should not be in doubt. After all, this is the
truly rare case in which the employer actually claims, in
so many words, that it is “unable to pay” and has “no
choice” other than not to pay. And yet, the majority
finds that not even “unable to pay” really means “unable
to pay.” In so finding, the majority countenances dou-
ble-talk that is the antithesis of good-faith bargaining. I
dissent.

9 I find these distinctions unpersuasive. Tan did not retract her claim
of inability to pay, she simply denied it. I agree with the views ex-
pressed by Member Walsh in his American Polystyrene dissent. See
341 NLRB at 510–512.
10 As I have just shown, the very grounds upon which the majority
relied in American Polystyrene to distinguish Lakeland demonstrate
that Lakeland is indistinguishable from this case. My colleagues do not
dispute this. They believe, of course, that it was Lakeland that was
wrongly decided: they found it “unnecessary to pass on the validity” of
Lakeland in AMF, and they reiterate that point here. The fact remains,
however, that Lakeland Bus Lines remains good law; and based on the
rationale of American Polystyrene itself, Lakeland is directly on point.
Because Lakeland cannot be distinguished, it must be followed absent
its being overruled. See, e.g., Daimler Chrysler Corp., 344 NLRB No.
94, slip op. at 1 fn. 1 (2005); Williams Energy Services, 340 NLRB
764, 765 fn. 6 (2003).
RICHMOND TIMES-DISPATCH 205
Thomas P. McCarthy, Esq., for the General Counsel.
L. Michael Zinser, Esq. and Michael A. Betts, Esq., of Nash-
ville, Tennessee, for the Respondent-Employer.
Jay J. Levit, Esq., of Richmond, Virginia, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on March 25 and 26, 2002, in Richmond,
Virginia, pursuant to a consolidated complaint and notice of
hearing (the complaint) issued by the Regional Director for
Region 5 of the National Labor Relations Board (the Board) on
October 31, 2001.1 The complaint, based upon charges in Cases
5–CA–298032 and 5–CA–29907 filed by the Graphic Commu-
nications International Union, Local 40-N, AFL–CIO (the
Charging Party or the Union), alleges that Richmond Newspa-
pers, Inc., Richmond Times-Dispatch, a Media General Inc.
Company (the Respondent or the Employer),3 has engaged in
certain violations of Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act). The Respondent filed a timely
answer to the complaint denying that it had committed any
violations of the Act.
The complaint alleges a violation of Section 8(a)(1) and (5)
of the Act by Respondent’s conduct in unilaterally discontinuing
the practice of paying the Christmas or holiday bonus to its em-
ployees and by refusing to provide financial information to the
Union requested by it to substantiate the Respondent’s inability
to pay the bonus.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, the Charging Party, and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the publication of
the Richmond Times-Dispatch, a daily newspaper, with an office
and place of business located in Richmond, Virginia, where it
annually derives gross revenues in excess of $200,000 and has
purchased and received products, goods, and materials, valued in
excess of $5000 directly from points located outside the State of
Virginia. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.

1 All dates are in 2001, unless otherwise indicated.
2 On the first day of the hearing, after opening the record, Respon-
dent and the Union entered into an all-party informal Board settlement
with the posting of a notice (ALJ Exh. 1). The agreement was submit-
ted to me for approval under Sec. 101.9(3)(d)(1) of the Board’s Rules
and Regulations. I approved the settlement agreement and also ap-
proved the General Counsel’s motion to sever Case 5–CA–29803 from
the consolidated complaint and notice of hearing. Thus, the subject
decision only involves Case 5–CA–29907.
3 The true and correct name of the Respondent appears in the caption
as amended at the hearing.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union represents all pressroom employees at the Re-
spondent and has been the designated exclusive collective-
bargaining representative of the unit at all material times. This
recognition has been embodied in successive collective-
bargaining agreements, the most recent of which is effective
from January 4 through February 1, 2004.
At all material times J. Stewart Bryan III, held the position of
chairman and chief executive officer of Respondent, Frank A.
McDonald Jr. serves as vice president of human resources,
Karen Larson is director of human resources, and Joel Cox
holds the position of production administrator. The primary
official of the Union is President Valerie Irvin.
B. The 8(a)(1) and (5) Violations
1. Facts
The General Counsel alleges in paragraph 13 of the com-
plaint that on or about July 31, Respondent unilaterally discon-
tinued the practice of paying the Christmas or holiday bonus to
employees in the Charging Party’s bargaining unit. The General
Counsel further alleges in paragraphs 9 and 10 of the complaint
that the Union requested certain financial information to verify
the Respondent’s position that it was unable to pay a Christmas
or holiday bonus in 2001, but Respondent refused to provide
such information.
The Respondent stipulated that it has paid a Christmas or
holiday bonus to employees represented by the Union from
1960 through 2000. However, the Respondent concedes that it
did not pay a Christmas or holiday bonus to employees repre-
sented by the Union in December 2001. The record confirms
that the Christmas or holiday bonus is normally paid in the
second week of December, and Federal, State, and social secu-
rity taxes are withheld from each employee’s check. The bonus
is the equivalent of 1 week’s pay and increases proportionately
with employee increases in salary. The Christmas or holiday
bonus is a budgeted item and is reported on the employee’s W-
2 form for income tax purposes. Thus, I conclude that the
Christmas or holiday bonus relates to wages, hours, and other
terms and conditions of employment for employees in the
Charging Party’s collective-bargaining unit and is a mandatory
subject for the purposes of collective bargaining. Radio Electric
Service Co., 78 NLRB 531 (1986).
On July 31, McDonald along with Larsen notified Union
President Irvin by a telephone conference call that the 2001
Christmas or holiday bonus would not be paid to members of
the Union’s bargaining unit because of poor economic condi-
tions.4 Additionally, McDonald apprised Irvin that restrictions
on earning overtime pay, travel, and hiring would be imposed
during the remainder of 2001. During the telephone conversa-
tion, McDonald acknowledged that the cancellation of the bo-
nus was a bargainable issue and the Respondent was willing to
meet and negotiate. Irvin said, “[W]e will get back to you after
checking with the membership.” Bryan, in a letter that was sent

4 The Christmas of holiday bonus cancellation for 2001 applied to all
union and nonunion employees of Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD206
to all employees on July 31, explained that due to “the worst
advertising downturn in a decade, the Employer would be un-
able to pay a Christmas or Holiday bonus this year” (GC Exh.
3).5 On August 3, the Union responded to Bryan’s letter agree-
ing that the Christmas bonus was a bargainable matter and indi-
cating a willingness to meet with the Respondent on this issue
(GC Exh. 4). In that letter, the Union requested that before such
a meeting took place, it was necessary to obtain specific finan-
cial information from Respondent. Such information requested
included books and records so it could determine whether there
is a “cash flow” problem and to verify that the newspaper is
“weak” when it comes to revenues. The Union reiterated that
after it examines the information, it would meet with the Re-
spondent to engage in meaningful discussions over the elimina-
tion of the Christmas or holiday bonus.
By letter dated August 8, Respondent replied to the Union’s
request for information (GC Exh. 5). The Respondent stated
that since the Union relied on statements in the Bryan July 31
letter and assumed that the Employer was unable to pay the
Christmas or holiday bonus, the Respondent was officially

5 The July 31 letter states in pertinent part:
As we all well know, we are in the midst of the worst adver-
tising downturn in a decade, caused by a weak economy. This is
having a devastating effect on the financial performance of all
media companies. In response to weak business conditions, the
companies in our industry are implementing aggressive cost-
cutting measures in order to maintain cash flow during this diffi-
cult time. Many have had significant employee layoffs.
Thus far, this has not been the case at Media General, and we
hope to continue to avoid a major layoff. We must, however, find
other ways to reduce costs further.
Unfortunately, the revenue outlook for the rest of this year is
bleak. Opinion in our industry is divided on whether the advertis-
ing downturn is at bottom, but there certainly is no evidence of an
upturn. Our company faces a very difficult second half of the
year. The broadcast division will not have the revenues it had last
year from political campaigns and the Olympics, and our newspa-
per side is also weak. In the absence of new revenue possibilities,
we are driven to look at the cost side of the business to improve
overall performance.
We have already instituted strict hiring constraints and re-
duced overtime. We have restricted travel and entertainment and
the use of outside consultants. We have eliminated many market-
ing and promotion expenditures. Capital expenditures have been
restricted to those that produce quick positive cash impact.
Many of the initiatives focused on the cost side of the busi-
ness have been in place for several months. These initiatives have
been helpful in addressing the business requirement to maintain a
strong cash flow. However, as we look to the remaining part of
the year we find that our current initiatives will not be enough to
offset the projected decline in advertising revenues. As a result of
the poor economic climate, we are unable to pay a Christmas or
Holiday bonus this year to employees who may have been eligible
for one. We will also implement a new Voluntary Unpaid Leave
Policy for non-represented employees, and your Human Re-
sources Department will announce the details shortly.
Our entire management team very much regrets having to
take these actions, but we have no choice based on the business
environment. While this may appear drastic within the culture of
our company, it is far less severe than measures already taken by
many of our peer companies.
retracting that statement. The Respondent informed the Union
that it is not unable to pay the bonuses from a financial stand-
point but rather that it has chosen not to pay at this time due to
the economic situation in the marketplace. While the Respon-
dent informed the Union that it had no legal obligation to pro-
vide the requested information, it reiterated its willingness to
bargain over the elimination of the Christmas or holiday bonus.
The Respondent, while not providing any financial books or
records responsive to the information request, did give the Un-
ion copies of the 1998, 1999, and 2000 annual reports and 10-K
reports provided to the Securities and Exchange Commission
on or about September 24.
By letter dated October 5, to all employees including those
represented by the Union, Bryan confirmed that the Christmas
or holiday bonus would not be paid this year nor in future years
(GC Exh. 6). Bryan indicated, however, that employees who
have been receiving the bonus would have their value added to
their paychecks throughout calendar year 2002. He invited
those employees covered by union contracts to participate in
this proposal. On the same date, McDonald and Larsen partici-
pated in a second conference call with Irvin. The parties dis-
cussed the substance of the October 5 letter, with McDonald
acknowledging it was a negotiable item. Irvin apprised
McDonald that she would get back to him after checking with
the membership.
On December 21, McDonald along with Cox participated in
a third telephone conference call with Irvin. McDonald raised
the issue that members of the unit could have the value of the
Christmas bonus added to their paychecks throughout the cal-
endar year and offered to negotiate the matter with the Union.
McDonald apprised Irvin that two other unions at Respondent
representing the paperhandling employees and the drivers
reached agreement to resolve the Christmas bonus issue. Irvin
informed McDonald that the Union would get back to him.6
2. Analysis
It is well settled that an employer must disclose financial in-
formation only when the employer has indicated an inability to
pay. In determining whether an employer is claiming an inabil-
ity to pay, the Board and the US Courts of Appeals distinguish
an employer’s claim that it “can not pay” from an employer’s
claims that it “will not pay.” When an employer states that it
can not pay, it must furnish information to substantiate the
claim, if asked to do so by the union. Where an employer states
that it will not pay, the union must take other avenues to gather
the information.
The Board has held that information about the financial con-
dition of the employer is not presumptively relevant. Nielsen
Lithographing, 305 NLRB 697 (1991), affd. sub nom. Graphic
Communications Workers Local 50B v. NLRB, 977 F.2d 1169

6 By letter dated January 4, 2002, to union member Curtis Rickard,
President and General Manager Albert T. August III, confirmed that the
Respondent had discussed the issue of adding the value of the Christ-
mas bonus to employee’s paychecks with Irvin. The letter further
stated, “to date, however, the Union has not contacted the Respondent
to discuss the matter” (GC Exh. 7). The Union responded to August by
a letter dated January 8, 2002 (GC Exh. 8). August replied on January
10, 2002 (GC Exh. 9).
RICHMOND TIMES-DISPATCH 207
(7th Cir. 1992). As stated in ConAgra, Inc. v. NLRB, 117 F.3d
1435, 1438 (D.C. Cir. 1997):
Although the relevance of information concerning the terms
and conditions of employment is presumed, see Ohio Power
Co., 216 NLRB 987 (1975), no such presumption applies to
an employer’s information regarding its financial structure
and condition, and a union must demonstrate that any re-
quested financial information Is relevant to the negotiations in
order to require the employer to turn it over. See International
Woodworkers v. NLRB, 263 F. 2d 483, 485 (D.C. Cir. 1959).
In order to meet its burden of proving relevance, the union
must establish that the employer has claimed that it is finan-
cially unable to pay the amounts proposed by the union in ne-
gotiations. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
In Nielsen Lithographing, the Board defined the “inability to
pay,” which triggers the employer’s obligation to provide re-
quested financial information. The Board said:
[A] n employer’s obligation to open its books does not
arise unless the employer has predicated its bargaining
stance on assertions about its inability to pay during the
term of the bargaining agreement under negotiation.
[Footnote omitted.]
. . . .
By contrast, the employer who claims only economic
difficulties or business losses or the prospect of layoffs is
simply saying that it does not want to pay. [305 NLRB at
700.]
In enforcing the Board’s Nielsen decision, the Seventh Cir-
cuit elaborated on the term “inability to pay.” The court noted
that Nielsen sought concessions in bargaining to reduce its
labor costs. However, the court said that:
[Nielsen] did not base the demand on any claim that it
was in financial jeopardy, strapped for cash, broke or
about to go broke, unprofitable, or otherwise unable to pay
the existing level of wages and fringe benefits. . . .
. . . .
If the employer claims that it cannot afford to pay a
higher wage or, as here, the existing wage, the union is en-
titled to demand substantiation in the employer’s financial
records. . . . But there isn’t a hint of that here. . . . All that
Nielsen was claiming was that if it didn’t do anything
about its labor costs it would continue to lose business and
lay off workers. It didn’t claim that it was in any financial
trouble.
In subsequent cases, the Board and courts have made clear that
only when a present inability to pay has been asserted will the
union be entitled to requested financial information from the
employer. For example, in Shell Co., 313 NLRB 133 (1993),
the Board found that an employer’s claims that conditions were
“very bad [ ],” “critical,” a “matter of survival,” and that “we
need your help, your assistance, because of this condition,”
were tantamount to a claim of present inability to pay, and trig-
gered the obligation to provide requested financial information.
Conversely, where the employer merely states that it is “having
trouble staying afloat,” the “well has run dry,” or claims only
general economic difficulties or business losses” as the reason
for its position, the employer may lawfully refuse to hand over
financial information.” Nielsen, 305 NLRB at 700, supra. Nor
will an employer be required to open its books to the union on
the basis of the employer’s contentions that “its financial condi-
tion is bleak, or that it is suffering losses, or encountering eco-
nomic difficulties.” Wisconsin Steel Industries, 318 NLRB 212,
224 (1995).
When determining whether an employer is claiming a pre-
sent inability to pay in bargaining, the Board looks not at iso-
lated words, but at the record as a whole. Finally, even where
an employer initially claims an inability to pay, if it subse-
quently makes clear that it is neither claiming poverty nor a
present inability to pay, the Board will not require the employer
to open its books to the union. See Central Management Co.,
314 NLRB 763, 768–769 (1994).
In the subject case, the Union bases its argument that the Re-
spondent is obligated to provide financial data on a portion of
the Bryan July 31 letter. In this regard, the Union’s focus is on
the statement, “As a result of the poor economic climate, we are
unable to pay a Christmas or Holiday bonus this year to em-
ployees who may have been eligible for one.”
While there is no question that the words “unable to pay” are
contained in the letter, it must be considered together and in
context. In examining the July 31 letter in its totality, it specifi-
cally points out that the weak economy is having a devastating
effect on the financial performance of all media companies and
those employers are implementing aggressive cost-cutting
measures to maintain cash flow during this difficult time. Re-
spondent notes that while competitors have been forced to lay
off employees, this has not been the case here and it hopes to
avoid a major layoff. In order to avoid such layoffs, it states it
must find other ways to reduce costs further. The Respondent,
in order to reduce costs, informed all employees including
those represented by the Union that it must improve overall
performance and it has already instituted strict hiring con-
straints, reduced overtime, restricted travel and entertainment,
and the use of outside consultants.
Based on my evaluation of the July 31 letter in its entirety, I
find that its content reflects and conveys to employees that the
Respondent was losing money. However, there is a clear dis-
tinction between “losing money” and “an inability to pay.” An
employer can be losing money and yet have sufficient assets to
weather the storm. In the subject case, the Respondent may
well have been “losing money,” but it never claimed that it had
insufficient assets to meet the Union’s7 demands for the pay-
ment of the Christmas or holiday bonus.

7 In this regard, the Union knew or should have known that Respon-
dent was not pleading poverty nor was it on the verge of filing bank-
ruptcy. Indeed, the Union was provided the 1998, 1999, and 2000 an-
nual and 10-K reports on or about September 24 that shows that the
Respondent had sufficient assets to pay the Christmas or holiday bonus.
Likewise, the Union, as a stockholder along with its individual em-
ployee members, was aware that the Respondent on July 26 declared a
quarterly dividend of 17 cents per share payable on September 15 (R
Exh. 5).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD208
Under these circumstances, I find that the Respondent did
not violate Section 8(a)(1) and (5) of the Act by refusing to
provide the requested information.
Even assuming, arguendo, that certain conduct by the Re-
spondent could be construed as an implicit claim of “inability
to pay,” the Respondent subsequently made it clear, in its Au-
gust 8 letter to the Union, that it had not been and was not as-
serting such a claim. Thus, the Respondent expressly stated that
“Media General has not indicated that it is unable to pay the
bonuses from a financial standpoint but rather that it has chosen
not to pay at this time due to the economic situation in the mar-
ketplace. Because the revenue outlook for the rest of the year is
bleak, Media General has chosen as a discretionary matter to
introduce some institutional belt-tightening.”
Based on the forgoing, I find that this represents an addi-
tional reason that the Respondent did not violate Section 8(a)(1)
and (5) of the Act by refusing to provide the requested informa-
tion.
In regard to the General Counsel’s additional assertion that
the Respondent violated Section 8(a)(1) and (5) when it unilat-
erally discontinued the practice of paying the Christmas or
holiday bonus, I find that the Respondent did not violate the
Act for the following reasons.
The Union admits that McDonald during their telephone
conversation on July 31, agreed that the discontinuance of the
Christmas bonus was a negotiable issue and Respondent
wanted to meet with the Union. By letter dated August 3, and
admitted by Irvin, the Union agreed to meet but conditioned the
meeting on the receipt of specific financial information. The
Union stated, “After our examination, we will then be able to
meet with you so that we can have meaningful discussions of
these financial matters and their impact, if any” (GC Exh. 4).
Because the Union conditioned any meeting to discuss the
discontinuance of the Christmas bonus on the receipt of infor-
mation, no separate negotiation sessions took place between the
parties on this issue. Likewise, the Union never responded to
the Respondent’s offer to negotiate over the proposal to add to
employee’s paychecks the value of the Christmas bonus as two
other unions at Respondent had done.
Since the Union sat on its rights and conditioned bargaining
on the receipt of financial information that I have determined
was not necessary to provide to the Union, I find that the Re-
spondent did not violate the Act. Therefore, when the Respon-
dent discontinued the practice of paying the Christmas or holi-
day bonus in December 2001, and the Union did not engage in
negotiations after Respondent’s prior notification and willing-
ness to negotiate, Section 8(a)(1) and (5) of the Act has not
been violated. See Haddon Craftsmen, 300 NLRB 789, 790
(1990).
Based on the forgoing, I recommend that paragraphs 9, 10,
and 13 of the complaint be dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed.

8 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 pur-
poses.