The Nielsen Lithographing Co.

National Labor Relations Board - Board Decisions

May 8, 1986

279 N.L.R.B. 877 (N.L.R.B. 1986)

NIELSEN LITHOGRAPHING CO.
The Nielsen Lithographing Co, and Graphic Commu-
nications International Union , Local 508, O-K-
I, AFL-CIO. Cases 9-CA-20474 and 9-CA-
21292
8 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 12 June 1985 Administrative Law Judge
Martin J. Linsky issued the attached decision.' The
Respondent filed exceptions and a supporting brief,
the General Counsel and the Charging Party filed
briefs answering the Respondent's exceptions, and
the Charging Party filed cross-exceptions to the de-
cision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs2 and
has decided to affirm the judge's rulings, findings,3
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Nielsen
' On 28 June 1985 the judge issued an amendment of his recommended
Order The amendment , which does not affect our disposition of the case,
has been incorporated in the judge 's decision herein
2 The Respondent and the Charging Party have each requested oral
argument These requests are denied as the record, the exceptions, the
cross-exceptions, and the briefs adequately present the issues and the posi-
tions of the parties
The Respondent moved to strike from the Charging Party 's brief vari-
ous references to three affidavits on the ground that the affidavits were
not admitted into evidence at the hearing and are not otherwise part of
the record of this case We agree that the affidavits are not part of the
record and thus we grant the Respondent 's motion to strike the Charging
Party's references to them See Sec 102 45(b) of the Board 's Rules and
Regulations , S Freedman Electric, 256 NLRB 432 fn. 1 (1981), Southern
Florida Hotel Assn , 245 NLRB 561 fn 6 (1979 ) The sinking of the refer-
ences does not affect our decision
3 The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products , 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
in its exceptions the Respondent has cited Atlanta Hilton & Tower, 271
NLRB 1600 ( 1984), in support of its contention that it had no obligation
to disclose financial information to the Union We find that the Respond-
ent went beyond the expression of a mere unwillingness to continue
paying the costs of its collective-bargaining agreement - by its words and
conduct the Respondent conveyed to the Union an inability to pay
within the meaning of Atlanta Hilton , and thus triggered a duty to dis-
close financial information under NLRB v Truitt Mfg Co., 351 U S 149
(1956) In this regard we specifically rely on the judge 's findings, in fn, 5
of his decision , that the Respondent told the Union that jobs would be
lost and that the Company would go out of business unless economic
concessions were made See Cowin A Co, 277 NLRB 802 (1985)
877
Lithographing Co., Cincinnati, Ohio, its officers,
agents, successors , and assigns , shall take the action
set forth in the Order.
James R. Schwartz, Esq. and Janette Johnson, Esq., for the
General Counsel.
Robert E. Kaplan, Esq., of Cincinnati, Ohio, for the Re-
spondent.
Thomas F. Phalen Jr., Esq., of Cincinnati, Ohio, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On 16
and 23 December 1983 a charge and amended charge
were filed against The Nielsen Lithographing Co. in
Case 9-CA-20474 by Graphic Communications Interna-
tional Union, Local 508, O-K-I, AFL-CIO, the Charg-
ing Party or the Union. Thereafter, on 24 September
1984 a charge was filed against Nielsen Lithographing
Co. in Case 9-CA-21292 by the same Charging Party.
On 2 November 1984 the National Labor Relations
Board , by the Regional Director for Region 9, issued a
consolidated complaint alleging that Nielsen Lithograph-
ing Co ., Respondent , violated Section 8(a)(1), (3), and (5)
of the National Relations Act (the Act). Respondent
filed an answer in which it denied that it violated the
Act in any way. A hearing was held in Cincinnati, Ohio,
on 5, 6, and 7 March 1985.
On the entire record in this case , including posthearing
briefs submitted by the General Counsel, the Charging
Party, and Respondent, and on my observation of the de-
meanor of the witness, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent Nielsen Lithographing Co. is an Ohio cor-
poration with a facility at Cincinnati, Ohio, where it is
engaged in the business of commerical printing. Re-
spondent admits and I find that it is now , and has been at
all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Charging Party,
Graphic Communications International Union, Local
508, O-K-I, AFL-CIO is now , and has been at all times
material herein , a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Union has for over 30 years represented the em-
ployees in the lithography department at Respondent's
facility in Cincinnati. The Union and Respondent had en-
tered into a number of collective-bargaining agreements
over the years, the most recent of which was effective
279 NLRB No. 118
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by its terms for the period 1 August 1980 through 31
July 1983.
On 28 June 1983 the Union and Respondent began ne-
gotiations with a view toward reaching an agreement for
a collective-bargaining agreement to replace the one due
to expire 31 July 1983.
Early in the negotiations Respondent made its position
clear that economic concessions from its employees were
necessary. The Union requested certain financial and
economic data, which Respondent refused to disclose.
Eventually on 19 December 1983 (after approximately 20
negotiating sessions), Respondent unilaterally implement-
ed a number of economic proposals it had on the table
on the theory that impasse had been reched after good-
faith bargaining. The employees went on strike 26 Janu-
ary 1984, which they claim was an unfair labor practice
strike to protest Respondent's refusal to turn over the fi-
nancial data requested by the Union to support Respond-
ent's demand for economic concessions.
On 25 July 1984 the Union made an unconditional
offer to return to work on behalf of the 26 stiking em-
ployees. The offer was rejected by Respondent. It was
stipulated at the hearing that the 26 striking employees
had been permanently replaced.
The General Counsel and the Union contend that Re-
spondent violated Section 8(a)(1) and (5) of the Act, i.e.,
it failed to bargain in good faith when it refused to turn
over financial data requested by the Union and, there-
fore, since Respondent failed to bargain in good faith no
legitimate impasse existed when Respondent unilaterally
implemented its last offer. Further they contend Re-
spondent's employees went on strike because of Re-
spondent's unfair labor practice of failing and refusing to
turn over requested financial data. The employees were
therefore unfair labor practice strikers and entitled to re-
instatement on their unconditional offer to return to
work even if Respondent had "permanently replaced"
them.
Respondent, on the other hand, contends that because
they were not pleading poverty or inability to pay, their
refusal to turn over requested financial data to support
their demand for economic concessions was not an unfair
labor practice Further, Respondent had bargained in
good faith to impasse before unilaterally implementing its
last offer. Accordingly, the strikers were at most eco-
nomic strikers who had been permanently replaced and
were not entitled to reinstatement on their unconditional
offer to return to work. I
1 Respondent , in its brief, raises an argument it did not raise at hearing
It contends that the employees struck for an unlawful objective and
should be denied reinstatement and backpay Even assuming that the va-
cation clause in question is illegal and neither during negotiations nor at
the hearing did Respondent suggest it was, and that it clearly and with-
out question was but a very small part of the total package under discus-
sion by the parties Further, there is no evidence it was one of particular
concern to the employees The vacation clause, which had been in prior
agreements, provided that employees with no prior membership in the
Union and no prior employment with Respondent had to work for Re-
spondent for 5 years before becoming eligible for 3 weeks' annual vaca-
tion and had to work for Respondent for 10 years to be eligible for 4
weeks' annual vacation The vacation clause permitted individuals who
worked in another capacity for Respondent or who were memebers of
the Union to count those years' in determining if they had 5 or 10 years
service for vacation purposes Respondent argues that this clause is illegal
It is clear to me that this case comes down to one
issue and that is whether or not in the context of the
facts developed at hearing was Respondent required to
turn over the requested financial data or not . If yes, then
the General Counsel and the Union prevail . If no, then
Respondent prevails.
B. Respondent 's Refusal to Disclose Financial
Information Violated Section 8(a)(1) and (5) of the
Act
The Act makes it an unfair labor practice for an em-
ployer to refuse to bargain in good faith with the repre-
sentative of its employees. If an employer claims "pover-
ty" or "inablility to pay" then, on request from the
union , the employer is required to produce or disclose fi-
nancial datat to support its claim of "poverty" or "inabil-
ity to pay." NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956). All parties to this case have cited in their briefs
the Supreme Court's landmark decision in Truitt Mfg.
Co., supra, and recognize its continued validity. All par-
ties also appear to concede, as they should, that if an em-
ployer does not plead "poverty" or "inability to pay,"
but rather states that it is making money and simply does
not want to pay any more in the nature of wages or
fringe benefits to its employees, then the employer need
not disclose its financial records or "open its books" on a
union's demand or request that the employer do so.
Common sense says that an inspection of financial
records in the first scenario, when an employer pleads
"poverty" or "inability to pay," will enable a union to
gauge the truthfulness or accuracy of the employer's
claims and take such action as it deems appropriate and
in the best of its members, e.g., the employer really is
unable to pay therefore employees should make some
concessions or the employer is making money hand over
fist and the employees should consider resorting to the
use of economic weapons such as a strike If access to
financial data in this situation is denied, a union is forced
to make a recommendation to its membership in a
vacuum. Common sense also indicates that inspection of
financial records in the second scenario where the em-
ployer says it is profitable and simply chosen not to
accede to the union's demands will not enable a union to
more meaningfully advise its membership as to whether
to scale back its demands, make concessions, or hold out
because it discriminates in favor of union members applying the logic of
the Board in Gulton Electro-Voice, Inc, 266 NLRB 406 (1983) The
record reflects that the unit employees in this case all had many years of
experience in Respondent's employ (4 or 5 had more than 30 years of
seniority, and 20 exceeded 17 or 18 years of service) It is obvious in the
extreme that the issues of extra hours, wage cuts , and loss of health bene-
fits for retired employees would have been and were the major concerns
of the Union and the striking employees I fully credit the testimony of
Theordore E Murphy and Edwin Story that when the employees voted
26-2 for strike sanction from the International on 4 December 1983,
when they voted 27-1 to strike on 18 December 1983, and when they
went on strike on 26 January 1984 they did so because Respondent re-
fused to turn over financial data to support its claimed need for economic
concessions from its employees During the strike the strikers carried
pickets which clearly stated on their face that the strike was an unfair
labor practice strike In short, whether the vacation clause in issue is ille-
gal or not is irrelevant because the strike was not prompted by Respond-
ent's rejection of that clause but because of its failure and refusal to turn
over requested financial data
NIELSEN LITHOGRAPHING CO. 879
for a better package because in this second scenario the
financial data is irrelevant. The employer is not asking
the union to take a position based on the employer's fi-
nancial situation . Accordingly, the rule that in the ordi-
nary case the union has no right to inspect the employ-
er's financial records would apply.
In the instant case we have a somewhat different situa-
tion. The record is clear that Respondent took the posi-
tion in negotiations that it was profitable and specifically
said that it was not pleading "poverty" or "inability to
pay" but was asking the Union to make a number of eco-
nomic concessions to bring the wages and fringe benefits
of its employees more in line with the wages and fringe
benefits of its competitors. If Respondent's position had
been and remained as follows, i.e., that Respondent, al-
though profitable, wanted to scale back the wages and
fringe benefits of its employees to make them more like
that of its competitors because Respondent did not want
to spend any more in this area than its competitors did,
then Respondent, I would conclude applying the reason-
ing of Truitt Mfg. Co., supra, and its progeny would not
be obligated to turn over or disclose its financial records
or "open its books." In this situation nothing in the finan-
cial books or records of Respondent would support or
negate its position at the negotiating table. The relevant
records for the Union to inspect would be wages and
fringe benefit data of the employees it represents and
wages and fringe benefit data of Respondent's competi-
tors' employees.
However, in the instant case, Respondent's position
was different. In the instant case Respondent, although
maintaining steadfastly that it was profitable and specifi-
cally stating that it was not pleading poverty or inability
to pay, wanted concessions from the Union to be able to
compete, to remain competitive, and to reverse the trend
of losing business to its competitors. I fully credit the tes-
timony of Theordore E Murphy, executive vice presi-
dent of the Union, who was a member of the Union's ne-
gotiating team.2 Murphy testified, inter alia:
1. That Harold Freeman, chief negotiator for Re-
spondent, said during negotiations and in response
to why economic concessions were needed that "we
need these changes to compete." [Tr. 321.]
2. Freeman from the company said that the com-
pany needed these concessions because of their
competition; that the costs in our contract were
prohibitive, and that they needed to have conces-
sions so that they could compete with the competi-
tors. [Tr. 46.]
3. . . . we need them [concessions] to compete.
Your costs are too high in this contract. [Tr. 65.]
4. The competitive edge . . . was changing, and
that there was a problem with competition now that
they hadn't had in the past. [Tr. 66.]
5. . . . they could not compete. [Tr. 80.]
2 I credit Murphy because of his demeanor , the reasonableness of his
testimony , and the fact that he was corroborated Like any witness close-
ly associated with one side in a case, he may have had a motive to fabri-
cate but if he was going to fabricate why not go all the way and say
Respondent claimed inability to pay or poverty in just those words
6. He [Freeman] said that the company was
making a profit. They couldn't compete. The trends
showed them that they would have a worse prob-
lem in the future. [Tr. 85.]
Murphy is corroborated by Joint Exhibit 7, a 2-1/2-
page letter from Respondent's president, Simon C. Niel-
sen, to the Union's bargaining committee , dated 8 De-
cember 1983. In this letter President Nielsen referred to
Respondent 's competitors paying substantially less to its
employees than Respondent did and that Respondent's
equipment advantage3 was dissipating as more of its
competitors got newer and better equipment. President
Nielsen stated in his letter:
1. Try as we may, we simply cannot compete
with them ...
2. . . . to protect the jobs of our employees we
must protect our ability to compete.
3. To survive we must be able to compete. Our
business and our employees' jobs are at stake if we
cannot!
4. It is your job that is on the line. Please make
certain that you know all the facts and that you
think this through before you reject the company's
offer and call for a strike.4
5. We are buying the best, the latest and the most
productive equipment in order to be able to com-
pete equipment-wise-and without these invest-
ments our employees' ,lobs would be in even greater
jeopardy! But we have to be able to compete
people-wise also. If we don't the recent trend of
losing even greater amounts of work to other com-
panies will continue and the jobs our employees
now have will also be lost.
6. We must regain the ability to compete effec-
tively to attract and retain work.
At the hearing on 7 March 1985 Harold Freeman,
when asked about Respondent 's position at negotiations,
replied , "Our position was, we wanted to reverse the
trend ." (Tr. 799.)5
3 It was uncontested that Respondent at one point had an equipment
advantage over its competitors , i e, it had "half-web" presses at a present
time when its competition did not
In order to know "all the facts" as Respondent urges in its letter,
inspection of Respondent's financial records seems to be in order
6 Freeman's statements during negotiations and Nielsen's statements in
his letter were telling the Union that jobs would be be lost and the Com-
pany would go out of business unless the employees went along with the
economic concessions proposed by Respondent This is the functional
equivalent of claiming an inability to pay and triggers Respondent's duty
to turn over financial data to support its claim Even if an employer
avoids the magic words of "poverty" or "inability to pay" but claims
profitability with the ominous threat that if no concessions are forthcom-
ing, it will mean a loss of jobs or the company may go out of business,
then financial data to support this claim must be supplied if requested
Harvstone Mfg Corp, 272 NLRB 939 (1984), S-B Mfg Co, 270 NLRB
485 (1984), Hiney Printing Co, 262 NLRB 157 (1982), enfd on other
grounds 733 F 2d 1170 (6th Cir 1984), Stanley Building Specialities Co,
166 NLRB 984 (1967), Western Wirebound Box Co, 145 NLRB 1539
(1964), enfd 356 F 2d 88 (9th Cir 1966), Cincinnati Cordage Co, 141
NLRB 72 (1963), and Taylor Foundry Co, 141 NLRB 765 (1963), enfd
378 F 2d 1003 (5th Cir 1964), cited by the General Counsel and the
Continued
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the instant case, Respondent went further then
merely expressing an unwillingness to pay. A mere ex-
pression of unwillingness to pay clearly and without
question will not trigger any duty to disclose financial
records. Advertisers Mfg. Co., 275 NLRB 100 (1985).
With respect to the specifics of Respondent's proposal
and the Union's request for information, it is noted that
on 5 July 1983 at the second negotiating session Re-
spondent presented data supporting its position that Re-
spondent's manned hours and chargeable hours had de-
clined and that there were more half-web presses in the
area which Respondent competed for business than
before and even more half-web presses might be intro-
duced into the area in the future. Respondent's proposal
for the new collective-bargaining agreement contained
approximately 76 proposed changes to the old agree-
ment. While some of the changes admittedly reflect non-
economic language changes , Respondent 's proposal
sought an immediate 5-hour increase in the workweek,
thereby reducing the employees' potentially lucrative
overtime opportunities. Respondent sought to have em-
ployees, in essence, work that additional 5 hours for free,
i.e., Respondent's proposed new wage rates were derived
by dividing the present 35-hour weekly salary by 40, the
number of proposed straight-time work hours. Respond-
ent's proposal further sought the reduction of health ben-
efits. And, in a plant where most employees were rapidly
reaching retirement age, Respondent sought the exclu-
sion of health coverage for future retirees. Respondent's
proposal further sought economic reductions in the fol-
lowing areas: Saturday overtime provisions; pay provi-
sions for layoff; severance pay provisions; shift premium
rates ; holiday pay; and job retraining benefits . In addi-
tion, the proposals sought the complete elimination of
contractual cost-of-living (COLA) provisions. Respond-
ent further sought the elimination of the contract's geo-
graphic jurisdiction clause , raising fear among the union
negotiating team that Respondent might attempt to re-
lieve itself of all contractual obligations by moving its
plant. See Otis Elevator II, 269 NLRB 891 (1984); and
Milwaukee Spring II, 268 NLRB 601 (1984).
At subsequent meetings on 18 and 20 July 1983 Re-
spondent made it clear that it was quite serious about its
need for concessions. The Union mentioned inspecting
Respondent's financial records, which Respondent
claimed it would not permit.
Eventually on 31 August 1983, the Union submitted a
written request to Respondent for a number of items.
(See A. Exh. 2.) Some of the information requested was
turned over to the Union, but much was not. The infor-
mation which Respondent failed and refused to turn over
to the Union was financial in nature. More specifically, it
was as follows:
Charging Party are the cases most on point and all support the proposi-
tion that if an employer threatens loss of jobs or that the company will
go out of business, then financial data to support that claims , if requested
by the Union , must be disclosed . Because they appear to me to be more
recent or better reasoned or both , I chose to follow the above-cited cases
rather than contrary authority cited by Respondent which would suggest
a result different from that which I reach here In particular I refer to
Empire Terminal Warehouse, 151 NLRB 1359 (1965), enfd 355 F 2d 842
(D C Cir 1966)
1. Documents by the Employer to banks for the
purpose of obtaining loans , including projected bal-
ance sheets and income statements.
2. Financial statement for 3 years prior, as well as
tax returns and current financial statements.
3. Analyses of working capital for the last 3
years.
4. Chart of all supervisory employees and total
compensation.
5. Expense reports submitted by management per-
sonnel and owners.
6. List of automobiles leased or owned by the
company.6
7. List of how many of the non-union employees
have been laid off and how long, please list.
Considering the totality of the circumstances, e.g., Re-
spondent's proposals, the statements of Respondent's
chief negotiator, Harold Freeman, and the statements
contained in President Nielsen's letter to the Union's bar-
gaining committee, it seems clear to me that Respondent
violated Section 8(a)(5) of the Act by failing and refusing
to disclose the economic information requested by the
Union. This economic information was necessary for and
relevant to the Union's performance of its function as ex-
clusive collective-bargaining representation of the em-
ployees in Respondent's lithography department.
At no time did the Union withdraw its request for the
information and it was only with access to this informa-
tion that the Union could objectively test Respondent's
claims that it was not competitive, that it was losing
business , that if the trend continued matters would get
worse, and that its employees' jobs were in jeopardy if
concessions were not forthcoming
The mechanics of disclosing the data was never dis-
cussed by the parties because it never got that far. How-
ever, during negotiations the Union said it wanted its
auditor to look at the records. At the hearing the auditor
testified why he would need certain information. He fur-
ther testified that he would have been most cognizant of
Respondent's need to keep its financial records confiden-
tial and that he would not have unduly burdened Re-
spondent when inspecting its records. The union auditor
is Dr. Dale Keifer, a CPA, who has been auditor for the
Union for the last 25 years and a professor of accounting
at the University of Cincinnati for the last 32 years. He
testified in the General Counsel's case over objection
from Respondent. He testified that the information
turned over to the Union at the 5 July 1983 meeting was
inadequate to determine if Respondent was really non-
competitive. Keifer testified that he has inspected the fi-
nancial records of several businesses whose employees
are represented by the Union and, based on his report to
the Union, economic concesssions were made. He gener-
ally would meet with the Company's accountant and his
audit usually takes a couple of days (15 or 16 hours) For
the most part he works alone and does not take up the
time of Respondent's personnel. He does not take any
6 The Union had been advised by some of its members that Respond-
ent had a number of company cars which did not appear to be used for
business purposes
NIELSEN LITHOGRAPHING CO 881
records from Respondent's offices or Respondent's ac-
countant's office depending on where the records are
kept and he reports to the Union only in generalities
(e.g., whether management officials have taken pay cuts
or not or that their compensation package is and is not
out of line without ever telling the Union how much any
particular official in the Company is making). Dr. Keifer
explained that a 3-year history is necesssary in order for
him to make future projections in the area of competi-
tiveness and that certain accounting procedures may
make 1 year's financial data deceiving whereas financial
records for 3 years will enable him to see if there is a
trend which, if not reversed, will jeopardize the exist-
ence of the Company and the jobs of its employees.
Because Respondent violated Section 8(a)(1) and (5)
by failing and refusing to turn over the requested finan-
cial data7 it had not bargained in good faith to impasse
as of 9 December 1983 when it unilaterally implemented
changes in the terms and conditions of employment of its
employees in the following areas : severance pay policy,
recall rights of nontemporary employees who have been
laid off, layoff pay provisions, classification and starting
time of second-shift employees, shift differentials for
second- and third-shift employees, definition of employ-
ees' workweek, Saturday overtime pay, holiday pay
qualifications, payments by Respondent into the "OKI
Graphic Arts Institute Education Fund," and hourly pay
rates. This unilateral implementation of changes consti-
tute a separate violation of Section 8(a)(1) and (5) of the
Act. See NLRB v. Katz, 369 U.S. 736 (1962).
REMEDY
I credit the testimony of Theodore E. Murphy and
Edwin J. Story that the employees went on strike on 26
January 1984 to protest Respondent's unfair labor prac-
tice of failing and refusing to disclose the financial data
discussed above. The striking employees wore picket
signs that stated that the strike was an unfair labor prac-
tice strike and the Union had filed an unfair labor prac-
tice charge with the Board.
Because the 26 employees who went on strike were
unfair labor practice strikers, they were entitled to rein-
statement as of 25 July 1984 when Respondent admits
they made an unconditional offer to return to work.
Respondent's failure to reinstate these unfair labor
practice strikers as of 25 July 1984 is a separate unfair
labor practice in violation of Section 8(a)(1) and (3) of
the Act
The remedy in this case should be as follows: Re-
spondent should be ordered to cease and desist from en-
gaging in its unlawful practices; it should be ordered to
bargain in good faith with the Union, to include making
suitable arrangements to turn over the requested financial
and economic data which was the subject of this case;
r Atlanta Hilton & Tower, 271 NLRB 1600 (1984), and Craig & Hamil-
ton Meat Co, 271 NLRB 853 (1984), cited by Respondent , are not con-
trolling In the latter , the data requested by the union were irrelevant be-
cause the employer in that case really was seeking to change the scope
and direction of its business In the former case , while the employer
talked about competition in general and the economy in general, it never
led the union to believe as Respondent did in this case that there was a
downward trend which if not reversed could cost employees their jobs
and to reinstate the employees to their former positions
and pay them backpay with interest from 25 July 1984 to
date.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to turn over necessary and
relevant financial data on request by the Union, by uni-
laterally implementing changes in the terms and condi-
tions of employment of its employees without having
first bargained in good faith to impasse , and by failing
and refusing to reinstate unfair labor practice strikers to
their former positions on their unconditional offer to
return to work, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1), (3), and
(5) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Nielsen Lithographing Co., Cincin-
nati, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith
with Graphic Communications International Union,
Local 508, O-K-I, AFL-CIO, as the exclusive bargain-
ing representative of its lithography department employ-
ees by failing and refusing to disclose necessary and rele-
vant requested financial and economic information, by
unilaterally implementing changes in the terms and con-
ditions of employment of its employees without first bar-
gining in good faith to impasse.
(b) Failing and refusing to reinstate unfair labor prac-
tice strikers on their unconditional offer to return to
work.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Turn over to the Union the financial and economic
information requested by it on 31 August 1983, which
has not over turned over to it.
(b) Reinstate and make whole those striking employees
on whose behalf the Union made an unconditional offer
to return to work on 25 July 1984 for any loss of pay
and other benefits suffered by them commencing on 25
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
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 1984. Backpay to be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as set forth in Florida Steel Corp., 231 NLRB 651 (1977)
(see generally Isis Plumbing Co., 138 NLRB 716 (1962)).
(c) Bargain collectively and in good faith with Local
508 as the exclusive representative of the lithography de-
partment employees with respect to wages, hours, and
other terms and conditions of employment.
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facility in Cincinnati, Ohio, copies of the
attached notice marked "Appendix."9 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively with
Graphic Communications International Union, Local
508, O-K-I, AFL-CIO, as the exclusive bargaining rep-
resentative of our lithography department employees by
failing and refusing to disclose necessary and relevant
economic and financial data and by unilaterally imple-
menting changes in the terms and conditions of employ-
ment without first bargaining in good faith to impasse.
WE WILL NOT refuse to reinstate unfair labor practice
strikers who make an unconditional offer to return to
work.
We will not in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed to them under Section 7 of the Act.
WE WILL turn over to the Union the financial and eco-
nomic information it requested on 31 August 1983 which
has not previously been turned over to it.
WE WILL offer reinstatement to all those employees on
whose behalf the Union on 25 July 1984 make an uncon-
ditional offer to return to work.
We will give the aforementioned lithography depart-
ment employees on whose behalf an unconditional offer
to return to work was made backpay with interest from
25 July 1984.
WE WILL bargain collectively and in good faith with
the Union as the exclusive representative of our lithogra-
phy department employees.
THE NIELSEN LITHOGRAPHING CO.