Labor Relations and NLRB Decisions: 1996 - Present, NORTH STAR STEEL COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA (UAW), AFL-CIO., 2006-07 CCH NLRB ¶17,207, National Labor Relations Board, (Aug 31, 2006)

From Text of Board's Decision

On June 11, 2002, Administrative Law Judge Paul Bogas issued the attached decision. The General Counsel and the Charging Party filed separate exceptions and supporting briefs, and the Respondent filed cross-exceptions and a supporting brief. The Respondent also filed a brief in opposition to the other parties' exceptions. The Charging Party filed an answering brief to the cross-exceptions.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rulings, findings, [1] and conclusions, except as modified below, and to adopt the recommended Order as modified and set forth in full below. [2]

The Respondent operates several steel mills through-out the United States, including a facility in Monroe, Michigan. In an election held on September 21, 2000, [3] the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO won a majority of the valid votes cast by the Respondent's Monroe plant employees. On September 29, the Union was certified as the exclusive representative of a production and maintenance employees unit at the Monroe facility. [4]

The judge found that the Respondent committed several unfair labor practices affecting the Monroe plant employees. He found violations based on several pre-election statements by David Lewis in mid-September and the Respondent's failure to supply the Union with information about a transfer of unit work from the Monroe facility that took place in December. As more fully described below, we adopt these violations. The judge also found unlawful a transfer of 175 tons of steel production from the Monroe plant in December and the withholding of financial and competitor information that the Union first requested in late October. As indicated below, we reverse the judge, find no violations, and dismiss these complaint allegations. [5]

I. DAVID LEWIS' PREELECTION STATEMENTS

David Lewis, acting as an agent for the Respondent, discussed the union campaign with Monroe plant employees at a series of a dozen or more mandatory meetings. These meetings took place over the course of several days, approximately 1 week before the election. The judge found that certain statements by Lewis at those meetings violated Section 8(a)(1) of the Act.

A. Statements Implying Futility of Union Representation

At the preelection employee meetings, Lewis identified himself as the Respondent's lead contract negotiator if the Monroe facility became unionized. The credited evidence reveals that Lewis told the employees that he would not allow the Union to “succeed” and that if employees “were to get the Union in and get a contract, if you have what you have right now, we would consider that … succeeding and we do not want that to happen because we're afraid of the domino effect [on] other nonunion plants.” The judge found that Lewis had implied to employees that collective bargaining would be futile because such bargaining would not result in the employees obtaining benefits other than what the Respondent chose to give them and that unionization would necessarily lead the Respondent to choose to give fewer benefits to employees. The judge concluded that Lewis' statement violated Section 8(a)(1) because employees could reasonably infer futility of union representation. We adopt these findings and conclusion. [6]

B. Statements About Reduced Hours and Layoff

Lewis also told the assembled employees that he was proud that there had been no layoffs at the Monroe facility in the past. According to the credited evidence, he explained that the Respondent had been able to avoid layoffs at its union-free facilities, but it had been forced to lay off employees at its unionized facilities, because the union-free arrangements allowed the Respondent the flexibility necessary to keep employees busy during economic downturns. Lewis asked employees: “Who here would like to work 32 hours or get laid off? How do you like 32 hours? We can do that.”

The judge found that Lewis' assertion about no layoffs at the Monroe facility was incorrect. The judge specifically determined that the Respondent had at least two layoffs before the Union's campaign in 2000. [7] Thus, the judge concluded that Lewis did not have a basis in objective fact to tell employees that the Monroe facility had never had a layoff in the past and that the reason for no layoffs was the union-free arrangement that existed at the Monroe facility. The judge concluded that Lewis' statements about reduced hours and layoffs, described above, constituted an unlawful threat in violation of Section 8(a)(1) of the Act. We agree that the Respondent unlawfully threatened employees, as explained below. [8]

To clarify, the evidence establishes that the Respondent did not actually threaten to reduce hours if the Union got in, but threatened that it would not have the flexibility to reduce hours during economic downtimes if the Union got in, and that it would be forced instead to lay off some employees under such circumstances. The underlying premise for Lewis' comments is a prediction that the Respondent would not be able to have flexibility to implement reduced work hours in place of economic layoffs for its employees if the Monroe facility became unionized. However, Lewis failed to support this prediction with concrete examples and information, as the credited testimony of employees Mike Carmody and Willie R. Hall revealed. By crediting their testimony, the judge rejected the testimony of the Respondent's witness, James Jonasen, about Lewis' statements.

Lewis did not testify at the hearing, and the Respondent's witnesses did not indicate that Lewis based his comments on “the strictures of Union contracts,” as suggested by our dissenting colleague. In Tri-Cast, Inc., [ 1984-85 CCH NLRB ¶17,201] 274 NLRB 377, 378 (1985), cited by our dissenting colleague, the employer indicated to employees that it could lose its ability to successfully conduct its operations because of “union restrictions.” But, in the instant case, there is no credited evidence that Lewis ever referred to any “union restrictions” in support of statements during his meetings with the employees. Specifically, Carmody credibly testified:

Lewis started off the meeting with a little history of North Star and what had happened during the tough times in the past and he had some index cards so he, you know, he read his cues from that and he said that in the past when times were tough at the Monroe division that they had not laid anybody off because the management team at the Monroe division would go to corporate and say hey, we can keep our people busy, we don't need to lay ‘em off, and he said that the reason that we were able to do that is we were non-union and the union plants didn't have to do that they had to go to their layoff policy, that's how they dealt with it.

During the preelection meetings, Lewis related no specific incidents where the Respondent, in trying to cope in depressed economic times, had less flexibility at its unionized facilities. Instead, Lewis misstated the past history at the Monroe plant before the Union came on the scene. [9] The Respondent furnished no objective basis for claiming that unionization would adversely affect its ability to be flexible during economic downtimes. Furthermore, Lewis' remarks about reduced hours and lay-offs were made in the course of the same speech in which Lewis unlawfully threatened futility of union representation and unlawfully compared the selection of union representation to a “bad divorce.”

Given all these circumstances, the Respondent failed to satisfy its burden to justify Lewis' statement equating inflexibility with unionization. [10] Thus, we find a violation of Section 8(a)(1).

C. “Bad Divorce” Threat

At these same preelection meetings, Lewis also commented on the employer-employee relationship that existed at the Monroe facility. The credited evidence shows that Lewis said that there was a 22-year relationship between management and hourly workers at the Monroe facility and that a third party was now trying to interfere with that relationship. He compared the relationship to a “marriage,” and said that if the employees selected the Union to represent them, it would be a “bad divorce.” The judge found that Lewis' remark constituted an unprotected threat of different, unfavorable treatment if the employees select the Union as their representative. For the reasons stated by the judge and as explained further below, we find that Lewis' “bad divorce” statement violated Section 8(a)(1). [11]

In determining whether a statement by an employer violates Section 8(a)(1), or is protected by Section 8(c), the Board considers the totality of the relevant circumstances. [12] Applying that standard, we observe that Lewis gave his “bad divorce” statement in the same preelection meetings where he made the unlawful threat of futility of union representation and the unlawful threat about reduced hours and layoff. These threats would reasonably inform an employee's interpretation of Lewis' “bad divorce” comment. Heard in the context of these other threats, Lewis' “bad divorce” statement would reasonably suggest a similar negative, retaliatory message to employees. An employee would reasonably understand that Lewis was intimating that not only would there be changes in the Respondent's relationship with them (as in a divorce) if they selected the Union as their bargaining representative but also they could anticipate repercussion and difficulties (because the situation would be “bad”) if the Union was their representative. To that extent, the “bad divorce” statement goes beyond a permissible negative view of union intervention. [13] In our view, employees could reasonably equate Lewis' “bad divorce” comparison with an implicit threat of reprisal if employees supported the union. [14] Thus, considering the totality of the circumstances, we find that Lewis' “bad divorce” statement reasonably had the tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.

II. TRANSFER OF 175 TONS OF STEEL PRODUCTION

A. Refusal to Bargain

On one occasion in December, the Respondent transferred the production of 175 tons of steel from its Monroe facility to its St. Paul facility. As the judge recognized, the December transfer constituted less than 1 percent of a single month's production for the Respondent. More precisely, it represented 0.006 percent of the December's production. The Respondent never notified the Union or gave it an opportunity to bargain about this transfer. [15] Acknowledging that this work transferred in December constituted a small fraction of the Monroe facility's overall production, the judge concluded, none-theless, that the Respondent violated Section 8(a)(5) and (1) by failing to bargain over its decision to transfer the processing of the 175 tons of steel. The Respondent argues that it had no bargaining obligation because the transfer was an isolated incident that caused a minimal loss of work. We reverse the judge. We find, for the reasons stated below, that the Respondent had no duty to bargain with the Union about this transfer of work.

Generally, an employer has a duty to bargain with the exclusive representative of a unit of its employees before making a change in wages, hours, or other working conditions, but that duty arises only if the change is a “ ‘material, substantial, and a significant' one affecting the terms and conditions of employment of bargaining unit employees.” [16] The General Counsel bears the burden of establishing that the change was material, substantial, and significant. We conclude that the General Counsel has not carried this burden of proof here.

The General Counsel offered no evidence that the December transfer of 175 tons of steel production adversely affected any employee. The judge noted that the timing “coincided” with reduction in employee hours and contemplated layoffs due to business downturn affecting the steel industry. There is no dispute that the steel industry was suffering depressed business conditions that affected the Respondent. [17] But, there is no evidence in the record that demonstrated a causal connection between this minimal transfer of unit work in December and the reduction in the employee hours in November and the layoffs in January 2001. In fact, the General Counsel offered no evidence concerning the number of employees or the number of work hours involved in processing the 175 tons at either the Monroe or St. Paul facilities. [18]

In order to transform the 175 tons transfer into a “material, substantial, and significant” change, the judge coupled the transfer with a separate incident of increased contracting out of the “stacking of squares” and found that the two incidents together “dealt an appreciable blow to the jobs and hours.” [19] We find that there is no reasoned basis for lumping these two incidents together because the two incidents were not shown to be sufficiently related or similar to justify treating them, in effect, as one event. The transfer of this one hot metal production order for 175 tons in December from one facility's melt shop to another facility's melt shop was done by the Respondent's sales department located in Edina, Minnesota. On the other hand, the increased contracting out of the “stacking of squares” for a completed order rolled in November was done by the Monroe facility management. It is undisputed that the Respondent had previously contracted out, up to 40 percent, of the stacking work for a rolling. The Respondent conceded, however, that it wrongly contracted out more stacking for the November rolling than had been contracted out in the past. The December transfer of 175 tons and the November stacking of squares project are factually dissimilar, involving different management, different operations, different unit employees, and with no evidence connecting them. Adding these two incidents together is, thus, not justified.

Furthermore, the judge found that the stacking of squares itself constituted a significant portion of the shipping department inspectors' work, representing about 25 percent of their work. The increased amount of stacking work contracted out in November was, therefore, itself significant. Lumping the small December transfer with this independently significant change to the stacking work in November to find the December transfer was a “material, substantial, and a significant” change is untenable in our view.

We find that the Respondent had no duty to bargain about this insubstantial amount of steel production transferred in December. Accordingly, we shall dismiss the 8(a)(5) and (1) allegations pertaining to the Respondent's failure to notify the Union or bargain with it over the December transfer of 175 tons of steel production.

B. Information Request

At a meeting held on February 13, 2001, the Union asked the Respondent's works manager, Mike Roper, why some Monroe unit work was being sent to the Respondent's St. Paul facility. The judge found that Roper was aware of the December transfer of 175 tons of steel production from the Monroe facility to the St. Paul facility at the time of the February 13 meeting. However, Roper never told the Union about the December transfer of the processing of the 175 tons of steel production from the Monroe facility to the St. Paul facility. In March 2001, the Union again requested, first verbally and then in writing “any and all information regarding work and orders being sent, transferred to, or reassigned from the Monroe facility to the St. Paul facility.” In a memorandum dated July 5, 2001, the Respondent responded to the Union's requests and refused to provide the requested information about the transfer of unit work. The judge concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the Union with information regarding steel production that was being transferred or reassigned from the Monroe facility to the St. Paul facility. We adopt the judge's conclusion for the reasons set forth below.

It is well settled that an employer, on request, must provide a union with information that is relevant to its carrying out its statutory duties and responsibilities in representing employees. Information relating to wages, hours, and working conditions of employees in the bargaining unit is presumptively relevant. The Board uses a broad, discovery-type standard in determining relevance. The standard for determining relevance of the requested information is a liberal one, and it is necessary only to establish the probability that the desired information is relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities. [20]

We find that the Respondent refused to provide such relevant information when it refused to provide the requested information regarding the transfer of unit steel production work from the Monroe facility. We find that the Respondent had an obligation to furnish this information even though it had no obligation to bargain in particular about the December transfer of 175 tons of steel production (which, as found above, did not involve a material, substantial, and significant change). As the record shows and the judge found, the Union requested in March 2001 “any and all information” about any unit production work that the Respondent was transferring from Monroe to St. Paul.

The transfer of unit work is a mandatory subject of bargaining, [21] and contrary to our dissenting colleague, an employer's obligation to provide a union with requested information about it does not depend on whether the employer is also found to have had an obligation to bargain about the transfer of particular unit work. [22] Thus, we agree with the judge and adopt his ultimate finding of the violation.

III. FINANCIAL AND COMPETITOR INFORMATION REQUEST

Before the Union's certification as bargaining representative in late September, the Respondent began to see a drop in its business at its Monroe facility. The Respondent experienced a decline in the selling price for its product, a decrease in sales and backlog of outstanding orders, an increase in the cost of raw materials, and an increase in its inventory of finished product.

The Respondent tried to address this problem in several ways. For example, the Respondent curtailed production at the Monroe facility and sought concessions from the Union to reduce employee work schedules and to implement layoffs at the plant. In a letter dated October 24, the Union requested financial and competitor information from the Respondent to “help the UAW formulate contract proposals” and “enable the union to pursue productive negotiations” concerning the concessions sought by the Respondent. [23] The Respondent furnished some information, but it did not completely comply with the Union's request.

During bargaining sessions held on November 1, December 6, and January 4, 2001, the Respondent gave a considerable amount of financial information to the Union. [24] At the first session, the Respondent made a presentation about the poor market conditions troubling the Monroe facility at that time. The Respondent distributed documents indicating that the “extremely low” future orders were “a cause of great concern”; explaining that “prices [we]re falling as our competitors struggle for volume”; and describing new orders as “looking bleak.” The Respondent told the Union that several competitors were “effectively bankrupt” and trying to sell off product to raise cash, while other facilities operated by the Respondent might face reductions due to the downturn in the steel industry. At the second of these bargaining sessions, the Respondent told the Union that Monroe's business had further deteriorated, adding that it might be in the “red” in December. The Respondent also stated that “business was really going south in a hurry.” At the subsequent January bargaining session, the Respondent told the Union that business continued to be bleak.

The judge correctly found that the Union's request for financial and competitor information from the Respondent was not presumptively relevant to the Union's bargaining representative duties. [25] The requested information did not concern terms or conditions of employment for bargaining unit employees. The judge also properly found that the Respondent had no obligation to furnish the financial and competitor information to the Union unless the relevancy of such information to the Union's bargaining representative duties could be demonstrated. To resolve this question of relevancy, the judge focused on the November 1, December 6, and January 4 statements made by the Respondent, which are described above, to determine if the Respondent had claimed an inability to pay during negotiations with the Union. In the judge's view, the Respondent's statements “were not merely descriptions of ‘market conditions,' but rather conveyed that the Respondent itself was financially in critical condition.” Based on this interpretation, the judge found that the Respondent's statements constituted “a claim that actions such as the reduced work schedule and layoff were necessary because of the Respondent's financial inability to pay.” For the reasons that follow, we reverse the judge. [26] We reject the judge's flawed interpretation of the Respondent's statements and his erroneous finding of an inability-to-pay claim that is premised on it.

When an employer bases its bargaining position on an asserted inability to pay, the union is entitled to request and review the employer's financial records to assess the employer's representations about its dire financial condition. [27] But, if an employer claims concessions from the union are necessary for the employer simply to avoid competitive disadvantage in the marketplace, the employer has no obligation to open its books and provide financial and competitor information that may be requested by the union. [28] As the Board has pointed out, the distinction between “inability to pay” and “competitive disadvantage” is the difference between claims of “can not” and “will not.” [29] In applying this distinction in AMF Trucking & Warehousing, 342 NLRB 1125, 1126 (2004), the Board stated:

[T]he phrase “inability to pay” means, by definition, that the employer is incapable of meeting the union's demands. That is, the phrase means more than the assertion that it would be difficult to pay, or that it would cause economic problems or distress to pay. “Inability to pay” means that the company presently has insufficient assets to pay or that it would have insufficient assets to pay during the life of the contract that is being negotiated. Thus, inability to pay is inextricably linked to nonsurvival in business.

Further, a claim based on the employer's projections of future inability to compete, whether or not linked to job loss, “is not synonymous with an assertion that the [employer] currently has, or will have, insufficient assets to pay.” Id. Therefore, a mere unwillingness to pay does not trigger an employer's obligation to provide financial and competitor information to the union. [30]

Our review of the bargaining sessions held on November 1, December 6, and January 4 reveals that the Respondent identified two contributing factors for the decline in its business—diminishing future orders and declining prices—and traced the cause of these factors to the poor state of the steel industry at that time. The Respondent also linked its anticipated low December profit figures and depressed business to bad market conditions. Interestingly, the Respondent seemed to downplay the extent of its own financial predicament when it carefully drew a distinction between itself and some competitors who were in worse financial shape. In emphasizing that those competitors had serious cash flow problems and were “effectively bankrupt,” the Respondent clarified that it had the advantage over its competitors and it still could pay employees.

The substance of these bargaining statements shows that the Respondent stayed completely clear of the subject of company assets and its ability to pay employees. The Respondent never stated, explicitly or implicitly, that it did not have sufficient assets on hand to operate the Monroe facility. The Respondent never suggested that it was financially incapable of operating the Monroe facility without implementing reduced work schedules and layoffs or that its business would not survive without agreement on the concessions for the Monroe facility. [31] We find that the Respondent relayed the message that it was losing money and would not pay, as opposed to could not pay, in order to stay competitive.

In the absence of evidence of a present “inability to pay” claim, we find that the requested financial and competitor information is not relevant to the Union's bargaining representative duties. We, therefore, find that the Respondent had no duty to furnish the requested information. Thus, we reverse the judge and find that the Respondent's failure to furnish the requested information to the Union did not violate Section 8(a)(5) and (1) of the Act. Accordingly, we shall dismiss the complaint allegations pertaining to items 4 through 7 of the Union's October 24 letter.

AMENDED CONCLUSIONS OF LAW

Substitute the following for Conclusions of Law 6 and 7.

“6. The Respondent violated Section 8(a)(1) and (5) of the Act by failing to give the Union a reasonable opportunity to bargain before taking the following actions: eliminating three yard operator positions and displacing Cheryl Hoffman, Troy Daniels, and Scott Lambrix; and significantly increasing the percentage of squares it used outside contractors to stack.

7. The Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to supply information requested by the Union on March 6 and 16, 2001 regarding steel production being transferred or reassigned from the Monroe, Michigan facility to the St. Paul, Minnesota facility.”

AMENDED REMEDY

Before the election that resulted in the Union's certification as the employees' bargaining representative, the Respondent decided, in February, to implement a new scrap-handling system using front-end loaders at its Monroe facility. As a consequence of this decision, the Respondent decided, in October, to eliminate three scrapyard operator positions and displace three scrap-yard operators at the Monroe facility. The judge found that the Respondent unlawfully failed to bargain over the decision to eliminate three scrap-yard operator positions and the displacement of three employees at the Monroe facility. To remedy this violation, the judge recommended that the Respondent not only be required to bargain but also that the status quo ante be restored and that the employees be made whole for any lost pay or benefits.

We agree with the judge that the Respondent had a bargaining obligation and that it violated Section 8(a)(5) and (1) of the Act. However, the obligation was an effects bargaining obligation because the decision to eliminate three scrap-yard operator positions and displace three scrap-yard operators flowed from the earlier decision to implement a new scrap-handling system using front-end loaders. See Fast Food Merchandisers, Inc., [ 1988-89 CCH NLRB ¶15,262] 291 NLRB 897, 899-902 (1988) (make-whole relief inappropriate to remedy a bargaining violation where the layoff decision is an effect of an earlier management decision that is not a mandatory subject of bargaining). See also Litton Business Systems, [ 1987-88 CCH NLRB ¶19,123] 286 NLRB 817, 821-822 (1987), enfd. in relevant part [ 114 LC ¶11,842] 893 F.2d 1128 (9th Cir. 1990) (a restoration order was not appropriate to remedy an effects bargaining violation involving layoffs flowing from an earlier decision to convert the plant's machinery). Thus, the judge erred in recommending a “makewhole” remedy and restoration remedy for this violation.

The record shows that the Respondent's scrap-handling system in existence prior to 2000 required three employees per shift to operate two yard cranes and a locomotive that pulled freight cars along tracks. When it first informed employees in 1999 that it was examining new systems for its scrap-yard operation, the Respondent explained its objective as wanting to eliminate the highmaintenance scrap crane and reduce manpower by four persons (i.e., one employee per shift). The following year, when the Respondent decided to make a substantial change, it replaced the old yard crane/locomotive system with two front-end loaders. This new system allowed the Respondent the ability to reduce its overall manpower needs per shift. By design, each loader required only one person to operate it. Less equipment obviated the need for a third employee on the shift. [32] The fact that the Respondent retained the third employee on some of the shifts for a short while during the period of transition from the old system to the new system does not negate the fact that the decision to implement the new system with equipment for only two operators per shift produced the unlawful decision to select the three displaced employees by seniority, without bargaining with the Union. Thus, unlike Member Walsh, we find that the October selection process for displacement was but a “direct effect” of the earlier decision to utilize a scrap-handling system of two loaders manned by two operators.

Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union over the effects of its decision to change scrap-yard equipment at its Monroe, Michigan facility in August 2000, we shall order the Respondent, on request, to bargain with the Union concerning the effects of its decision. As a result of the Respondent's unlawful failure to bargain in good faith with the Union about the effects of its decision, three employees, Cheryl Hoffman, Troy Daniels, and Scott Lambrix, were displaced from yard-operator positions in the yard and the affected employees have been denied an opportunity to bargain through their collective-bargaining representative. Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed.

Accordingly, we deem it necessary, in order to effectuate the purposes of the Act, to require the Respondent to bargain with the Union concerning the effects of changing scrap-yard equipment in August 2000 on the affected employees, and shall accompany our Order with a limited backpay requirement designed both to make whole the displaced employees for losses suffered as a result of the violation and to recreate in some practicable manner a situation in which the parties' bargaining position is not entirely devoid of economic consequences for the Respondent. We shall do so by ordering the Respondent to pay backpay to the displaced employees in a manner similar to that required in Transmarine Navigation Corp., [ 1968-1 CCH NLRB ¶22,250] 170 NLRB 389 (1968).

Thus, the Respondent shall pay the three displaced employees backpay at the rate of their normal wages when last working in their yard-operator positions from 5 days after the date of this Decision and Order until occurrence of the earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the decision to change scrap-yard equipment on its employees; (2) a bona fide impasse in bargaining; (3) the Union's failure to request bargaining within 5 business days after receipt of this Decision and Order, or to commence negotiations within 5 business days after receipt of the Respondent's notice of its desire to bargain with the Union; and (4) the Union's subsequent failure to bargain in good faith, but in no event shall the sum paid to these employees exceed the amount they would have earned as wages from the date on which they were displaced from the Yard Operator position to the time they secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever occurs sooner; provided, however, that in no event shall this sum be less than the employees would have earned for a 2-week period at the rate of their normal wages when last employed as yard operators on or about October 18, 2000. Backpay shall be based on earnings which the displaced employees would normally have received during the applicable period, less any net interim earnings, and shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, [ 1986-87 CCH NLRB ¶18,750] 283 NLRB 1173 (1987).

[Partial Dissent]

Chairman Battista, dissenting in part: Contrary to my colleagues and the judge, I do not find that the Respondent violated Section 8(a)(1) of the Act by threatening employees with different, unfavorable, treatment or by threatening them with reduced hours and layoffs. I also do not find that the Respondent violated Section 8(a)(5) because it did not provide information to the Union about the transfer of an order for 175 tons of steel production in December 2000 from its Monroe, Michigan facility to its St. Paul, Minnesota facility.

David Lewis' Statements at Employee Meetings

The judge concluded that, in meetings during the organizing campaign, vice president of human resources, David Lewis threatened employees with different and unfavorable, treatment when he compared the 22-year relationship between management and hourly employees to a “marriage” and said that it would be a “bad divorce” if employees allowed a “third party” to come between them. The judge separately concluded that Lewis unlawfully threatened employees with reduced hours and layoffs. Lewis stated that there never had been layoffs at the Monroe facility. He asked employees “who here would like to work 32 hours or get laid off?” “[H]ow do you like 32 hours? We can do that.”

Section 8(c) of the Act provides that the expression of opinion, unaccompanied by threats or promises, does not violate the Act. Lewis' statements here amount to the mere expression of his opinion protected by Section 8(c) of the Act and could not reasonably be understood as threatening reprisal.

The judge found that Lewis' “bad divorce” analogy was a threat because it suggested that the Respondent would develop a hostile posture toward employees. The statement does not imply retaliation against the employees. The “bad divorce” analogy was merely an emphatic way of expressing his view that after a 22-year “marriage” between management and employees, the presence of a Union would come between them, to the detriment of the marriage. Emphatically expressing one's negative view of union intervention does not convert that view into a threat. [33] The fundamental purpose of Section 8(c) is to protect employers' right to do precisely what Lewis did: oppose a union organizational campaign vigorously and strenuously. See John W. Hancock Jr., Inc., 337 NLRB 1223, 1224 fn. 7 (2002) (referring to employees who solicit union cards as the “enemy within” entirely consistent with the proposition that employers are entitled to oppose, vigorously and strenuously, union organizational campaigns and not an implicit threat of reprisals.) Optica Lee Borinquen, Inc., [ 1992-93 CCH NLRB ¶17,302] 307 NLRB 705, 708 (1992), enfd. 991 F.2d 786 (1st Cir. 1993) (“Section 8(c) does not require fairness or accuracy, and does not seek to censor nastiness.”)

Similarly, Lewis' remarks about layoffs and working “32 hours” are not reasonably construed as a threat of retaliation for selecting the Union. As to the layoffs, Lewis told employees that, during past economic downturns, its union facilities experienced layoffs under the provisions of the collective-bargaining agreements, but that the Respondent had been able to avoid layoffs at its nonunion facilities. But there had been prior layoffs at the Monroe facility. Indeed, the employees themselves pointed out that there had been a layoff at the Monroe facility. Thus, the Monroe employees were aware of the facilities past layoff history so that the initial Lewis statement could not have been perceived by them as coercive or threatening. At worst, Lewis' initial statement was mistaken, and the error was quickly pointed out. Further, to the extent that that the Respondent was saying that layoffs occur at unionized facilities, and not at non-Union facilities, the Respondent was expressing its view that this was because of the strictures of union contracts, rather than unionization per se, i.e., there were lawful reasons for these layoffs. [34]

As to the alleged threat to reduce hours, my colleagues concede that there was no such threat. To the contrary, they say that the Respondent was taking the position that, with a union, the Respondent would not have the flexibility to reduce hours. Hence, in lieu of a reduction of hours, the Respondent would have to layoff employees in the event of an economic difficulty. However, an alleged threat of layoff is not the same as an alleged threat to reduce hours. Simply stated, there was no threat to reduce hours.

Nor was there an unlawful threat to lay off. The Respondent was experiencing economic difficulty, and was explaining possible responses to economic difficulties. As set forth above, the Respondent expressed its opinion that, under a union, there would not be enough flexibility to have a reduction in hours. The alternative would be to have a layoff. Thus, the layoff, rather than a reduction in hours, would be the response to economic difficulties. It would not be a reprisal for union activity. It is neither objectionable nor threatening to tell employees about those possible consequences. Tri-Cast, Inc., [ 1984-85 CCH NLRB ¶17,201] 274 NLRB 377, 378 (1985) (employer statement that union restrictions would lessen its flexibility and competitiveness can only refer to possible restrictions that unions may seek in future bargaining and is not objectionable conduct or a retaliatory threat). Such statements, moreover, are permissible expressions of opinion protected by Section 8(c) of the Act. [35]

Steel Production Transfer Information

The judge found that the Respondent was obligated to bargain about the transfer of 175 tons of steel production from the Monroe facility to the St. Paul facility in December 2000. Based on his finding that the Respondent was obligated to bargain about that transfer, he concluded that, the Respondent further unlawfully refused to provide information about the transfer of steel production requested by the union. Contrary to the judge, the Board has found that the Respondent had no duty to bargain about the transfer of an insubstantial amount of steel production and, thus, did not violate Section 8(a)(1) and (5) of the Act. Because the Respondent was not obligated to bargain about the inconsequential transfer of 175 tons, it follows that the Respondent was not obligated to furnish information regarding steel production that was transferred or reassigned from the Monroe facility to the St. Paul facility. See Cowles Communications, [ 1968-2 CCH NLRB ¶20,161] 172 NLRB 1909 (1968) (duty to furnish information stems from the underlying statutory duty to bargain with respect to mandatory subjects of bargaining).

My colleagues nevertheless, find that the Respondent was required to provide the steel production transfer information.

My colleagues' position is simple, and it is wrong. They reason as follows: a transfer of unit work is a mandatory subject; the information concerned a transfer of work; therefore information must be supplied. However, the information here was not about some theoretical or hypothetical transfer; it was triggered by an actual and concrete transfer, and that transfer was not a mandatory subject. Therefore, there was no obligation to supply information about the steel production transfers.

I do not disagree that a transfer of bargaining unit work to nonunit individuals may be a mandatory subject of bargaining if it has an impact on unit work. Regal Cinemas, Inc., [ 2001-02 CCH NLRB ¶15,887] 334 NLRB 304 (2001). But to trigger an employer's statutory bargaining obligation, it is not enough that a change involves a mandatory subject of bargaining; it also must be a material, substantial, and significant change in the terms and conditions of employment. United Technologies Corp., [ 1985-86 CCH NLRB ¶17,530] 278 NLRB 306 (1986). In the cases cited by the majority, unlike here, the transfer of unit work was a “material, substantial, and significant” change that affected most, if not all unit employees and triggered the employer's bargaining obligation. Dallas & Mavis Specialized Carrier Co., 346 NLRB No. 27 (2006) (employer terminated all unit drivers and transferred unit work to owner-operators); Geiger Ready-Mix of Kansas City, [ 1995-96 CCH NLRB ¶15,633] 315 NLRB 1021 (1994) (employer closed plant, laid off unit employees, and reassigned unit work to other plants); St. George Warehouse, Inc., 341 NLRB 904 (2004) (after representation election, employer stopped hiring employees and assigned unit work to temporary employees so that the bargaining unit decreased from 42 to 8 employees). Similarly, unlike the present case, in the cited cases which find that the employer was obligated to provide the information, the union had established that the requested information was relevant to a union grievance asserting that the employer's conduct violated the terms of the collective-bargaining agreement. Certco Food Distribution Centers, 346 NLRB No. 102 (2006) (information relevant to union grievance that employer's newly opened facility was an accretion and that the existing labor contract applied to the new facility); Clear Channel Outdoor, Inc., 347 NLRB No. 47 (2006) (information relevant to union grievance that employer was subcontracting work in derogation of the collective-bargaining agreement). [36]

In these circumstances, I would not find that the Respondent violated Section 8(a)(5) by failing to provide information about the transfer of the steel production.

MEMBER WALSH, dissenting in part.

I disagree with my colleagues on three points: (1) their finding that the Respondent's unlawful failure to bargain about its decision to eliminate three unit jobs and displace three unit employees from the scrap yard was only an effects bargaining violation, requiring only a Transmarine [37] remedy; (2) their adoption of the judge's finding that the Respondent did not unlawfully fail to bargain with the Union about the Respondent's decision not to grant a wage increase in 2001; and (3) their finding that the Respondent did not unlawfully fail to provide the Union with requested information about the Respondent's financial situation and competitors.

I. THE SCRAP YARD

Just 2 weeks after the employees elected the Union to represent them in collective bargaining with the Respondent, the latter ignored its obligation to bargain with the Union and, without giving the Union any advance notice or opportunity to bargain, unilaterally decided to eliminate three unit jobs from the scrap-yard department and correspondingly to displace three scrap-yard unit employees into the Respondent's general labor pool.

A.

Historically, the Respondent moved steel in its scrap yard by using two cranes and a locomotive. There were four scrap-yard shifts, with three employees working each shift: two operated the cranes, and the third operated the locomotive. In a May 1999 memorandum, the Respondent informed employees that it was considering eliminating the cranes, and reducing manpower by one employee per shift. The memorandum also stated, however, that the Respondent would publish and communicate the results of its feasibility study of these possible changes as they developed, “well before any decisions would be made which affected the total number of individuals” in the scrap yard.

About a year later, in April 2000, [38] the Respondent ordered two front-end loaders for a new system of handling scrap that would replace the cranes-and-locomotive system. By August, the Respondent was operating the scrap yard under its new method, with front-end loaders.

At some point during the transition period in scrap-yard operations, Supervisor Toni Hallam spoke with scrap-yard employees about rumors that the scrap-yard positions were not secure because of the change to the new scrap-handling system. Hallam told the employees that all they had to go on was the Respondent's past practice, under which the Respondent only eliminated jobs through attrition of the employees.

At the time of the Union's election and certification in late September, there were still three scrap-yard unit positions on three of its shifts, but just two on the fourth. And the Respondent was still essentially using three scrap-yard employees per shift: two to operate the front-end loaders and (on three of the four shifts) a third to help relocate scrap within the yard to accommodate the new system. [39]

In October, however, shortly after the Union's election as bargaining representative, Superintendent Barbara Nocella told Hallam that the Respondent was going to eliminate three positions in the scrap yard. On October 18, Nocella and Hallam gave written notification to the three most junior scrap-yard employees, Cheryl Hoffman, Troy Daniels, and Scott Lambrix, that they were being displaced from the yard. [40] Nocella told them that the action was the result of the downturn in the Respondent's business and the new, more efficient, scrap-handling system. Hoffman said “I thought you said our jobs were secure,” and Hallam responded that “things have changed.” The Respondent did not give the Union advance notice or an opportunity to bargain prior to eliminating the positions and displacing the incumbents.

B.

The judge found that although by the time of the Union's election in September the Respondent was operating the scrap yard under its new method with new equipment, the status quo in terms of unit positions and employees at that time was still 11 unit positions and 11 employees, and did not include the elimination of the three positions and the displacement of the three employees. Thus, the judge found that the Respondent's implementation of the equipment and operational changes in the scrap yard prior to the Union's election did not relieve the Respondent of its obligation to bargain with the Union before deciding to make the manpower and personnel reductions in question after the election.

I agree with the judge's analysis. The record establishes that while the Respondent's decision to change scrap-yard equipment and operations was made before unionization, its decision to eliminate three scrap-yard positions and displace three employees was not made until after unionization. The Respondent told the employees prior to unionization that it would communicate and publish the results of its scrap-yard feasibility study well before making any decision that would affect the number of employees in the scrap yard. But no such results were published or communicated prior to unionization, and, presumably then, no such resulting decision had been made by that time. Later, but still prior to unionization, Supervisor Hallam reassured the scrap-yard employees that under the Respondent's established practice, scrap-yard positions would only be eliminated as a result of the attrition of scrap-yard employees. But only one employee had left the scrap yard prior to unionization, and only that one scrap-yard position had been eliminated by that time. The Respondent did not eliminate the three positions in question and displace the three employees until after the Union's election, by which time, of course, the Respondent had an obligation to bargain with the Union about changes in unit employees' terms and conditions of employment. Thus, the 8(a)(5) and (1) violation here was the Respondent's failure to bargain with the Union about this post-unionization decision affecting the bargaining unit. [41] Accordingly, the judge correctly recommended that the Respondent be required to (1) restore the status quo ante by rescinding the elimination of the unit positions and the displacement of the employees, (2) offer the displaced employees full and immediate reinstatement to their former positions in the scrap yard, (3) make them whole for any lost pay and benefits resulting from the Respondent's unlawful actions, and (4) bargain in good faith with the Union about the elimination of the positions and displacement of the employees. [42]

While my colleagues agree that the Respondent violated Section 8(a)(5) and (1) by failing to bargain about eliminating the unit positions and displacing the unit employees, they disagree with the judge and me about the nature of the Respondent's bargaining obligation, and thus about the appropriate remedy for the Respondent's failure to meet it. They find that the Respondent's postunionization elimination of the unit positions and displacement of the unit employees were actually only effects of the Respondent's preunionization change in scrap-yard equipment and operations. Accordingly, they find that the Respondent had only an effects bargaining obligation. Consequently, they find that the judge erred in recommending a make-whole remedy, and they impose a Transmarine remedy instead. But as seen above, while the Respondent was operating the scrap yard with new equipment and methods as early as August 2000, prior to unionization, the record does not show that the Respondent had already also decided by then to eliminate three unit positions and displace three unit employees. On the contrary, as shown above, the record establishes that the Respondent did not make that decision until later, in October, by which time the Union had been elected and the Respondent had a corresponding obligation to bargain. Under the above-cited precedent, the judge has correctly recommended a status quo ante and make-whole remedy for the Respondent's failure to bargain about this decision.

In ordering only a Transmarine effects-bargaining, limited backpay remedy, my colleagues cite Fast Food Merchandisers, Inc., [ 1988-89 CCH NLRB ¶15,262] 291 NLRB 897, 899-902 (1988), and Litton Business Systems, [ 1987-88 CCH NLRB ¶19,123] 286 NLRB 817, 821-822 (1987), enfd. in relevant part [ 114 LC ¶11,842] 893 F.2d 1128 (9th Cir. 1980). Fast Food, however, is distinguishable and Litton is inapposite.

In Fast Food, the union represented the employer's warehouse employees at its LaGrange, Georgia food distribution facility. LaGrange serviced most of the Florida restaurants of the employer's parent company, Hardee's Food Systems. In December 1980, the employer decided to (1) open a new food distribution center in Jacksonville, Florida, to take over servicing most of Hardee's Florida restaurants from LaGrange, and (2) discontinue the third shift at LaGrange. Within the next few weeks, by the end of the month, the employer (1) started operating at Jacksonville, (2) transferred the servicing of most of the Florida restaurants from LaGrange to Jacksonville, (3) hired three warehouse employees at Jacksonville, and (4) unlawfully unilaterally discontinued the third shift and discharged three third-shift warehouse employees at LaGrange.

Although the Board found that the employer unlawfully failed to bargain about its decision to discontinue the third shift and discharge the third-shift employees at LaGrange, the Board did not adopt the judge's remedial recommendation that the employer be ordered to reestablish the third shift and reinstate and make whole the discharged employees. Instead, it found that the employer's decision to start up Jacksonville and transfer LaGrange work there (the Jacksonville decision) was “the clearly defined management decision” that produced the unlawful decision to eliminate the third shift and discharge the three warehouse employees at LaGrange (the LaGrange decision). Thus, the Board found that the unlawful LaGrange decision was but a “direct effect” of the contemporaneous Jacksonville decision. [43] Consequently, the Board found that only a Transmarine remedy for the unlawful LaGrange decision was appropriate “under the circumstances.” [44]

Here, however, unlike in Fast Food and contrary to my colleagues, the Respondent's April decision to change equipment and methods of operation in the scrap yard [45] cannot reasonably be found to have been a “clearly defined management decision” that produced the Respondent's unlawful October decision 6 months later (or, under my colleagues' view, 8 months later) to eliminate the three scrap-yard positions and displace the incumbents. Indeed, the Respondent had been operating the scrap yard with the new equipment and methods since August, while keeping the same number of positions and employees as before. The Respondent did not ultimately decide to eliminate the three scrap-yard positions and displace the incumbents until 6 months after it decided to change the equipment and method of operation in the scrap yard, and 2 months after it actually started to operate the scrap yard with this new equipment under these new methods. Under these circumstances, the Respondent's unlawful October decision to eliminate scrap-yard jobs and displace incumbents was not a “direct effect” of its decision 6 months earlier to change scrap-yard equipment and methods, and the Respondent's unlawful failure to bargain about its October decision warrants the reinstatement and make-whole remedy recommended by the judge. [46]

II. THE DECISION NOT TO GRANT A WAGE INCREASE

A.

In the 12 years (1989-2000) prior to the Union's election as collective-bargaining representative in September 2000, the Respondent granted 11 annual wage increases, at the beginning of each calendar year. [47] Following the Union's election, however, the Respondent unilaterally decided not to grant a wage increase in 2001, without giving the Union advance notice and an opportunity to bargain about that decision.

B.

The judge concluded that the Respondent did not violate Section 8(a)(5) and (1) of the Act by failing to bargain with the Union about the decision not to grant a wage increase in 2001. He found that the record did not establish that an annual wage increase was the status quo for the 18 years (1983-2000) prior to unionization. Because the Respondent had not granted wage increases when it was assertedly experiencing economic difficulty in the earlier years, 1983-1984 and 1986-1988, the judge found that annual wage increases were “certainly not” the status quo during periods when the Respondent's business was poor. The judge found that the Respondent's business was poor in 2000 and 2001 (although, as seen, the Respondent in any event did grant a wage increase at the beginning of 2000). Thus the judge found that the Respondent's failure to bargain about its decision not to grant a wage increase in 2001, following unionization, did not violate the Act because it did not constitute a unilateral change to the status quo. For the reasons set forth below, I disagree with the judge and find that the Respondent violated the Act.

C.

Once a union has been selected to represent an appropriate unit of employees, the employer may not make decisions regarding any term and condition of employment without first notifying the union and providing it with the opportunity to bargain. E.g., Britt Metal Processing, Inc., [ 1997-98 CCH NLRB ¶16,172] 322 NLRB 421 (1996), affd. 134 F.3d 385 (11th Cir. 1997) (Table). The Respondent granted annual wage increases in 11 of the 12 years (92 percent of the time) immediately preceding the Union's election in September 2000. Thus, by the time the Union became the collective-bargaining representative, these annual wage increases had become an established pattern and practice over many years and therefore constituted a condition of employment which the Respondent was not free to change unilaterally. [48] Lee's Summit Hospital & Health Midwest, 338 NLRB 841 (2003); Keeler Die Cast, 327 NLRB 585, 588 (1999) (8(a)(5) violation). [49] Given the consistency of the Respondent's practice, the employees were entitled to regard an annual wage increase as an established part of their wage structure. (Indeed, that is precisely what the Respondent wanted the employees to understand.) [50] And this is so even though there may have been discretion in the amount of the annual increases, Lee's Summit, supra, 338 NLRB at 843, [51] and even though a $1000 bonus was granted in lieu of an increase in 1998, assertedly due to economic conditions. Id. Consequently, I find that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union about the decision not to grant a wage increase in 2001.

III. THE REFUSAL TO PROVIDE INFORMATION

The judge correctly found that the Respondent's negotiation statements effectively claimed a present inability to pay and also put information about its competitors in issue, and that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish the Union with requested financial and competitor information. I disagree with the majority's reversal of these findings.

A.

In October 2000, [52] shortly after the employees elected the Union to represent them in collective bargaining, the Respondent unilaterally reduced weekly production from 21 work shifts to 15, and announced to the employees that it was cutting their weekly hours from 40 to 32. The Respondent did not give the Union advance notice or an opportunity to bargain about the decisions to impose these reductions. [53] The last time the Respondent had taken such steps was 14 years earlier, in response to financial difficulties.

Thereafter, on October 24, the Union asked the Respondent to provide it with, inter alia, income statements for the last 3 full years; general and administrative expenses, including details on management salaries and benefits; operating plans, budgets, forecasts or other documents dealing with projected costs and operating results; and a list of all the Respondent's competitors, including company name, address, and whether they are unionized, and also any wage and benefit information that the Respondent had about them.

A week later, on November 1, the Respondent and the Union had a meeting about the reduction in work hours. The Respondent told the Union that there was a downturn in the steel industry, and that the Respondent's sales orders were “extremely low,” “looking bleak,” and “a cause for great concern.” The Respondent also told the Union that sales prices were falling because of increased competition from several “effectively bankrupt” competitors who needed cash quickly and were struggling to get some cash by lowering their prices to increase their sales volume. At this meeting, the Respondent gave the Union manufacturing and financial data for the years 1999 and 2000. [54]

At a meeting on December 6, the Respondent told the Union that the Respondent's business had deteriorated further since the previous meeting, that it was continuing to deteriorate quickly (“really going south in a hurry”), that the Respondent might show a loss (“in the red”) for that month, and that there was going to be a layoff.

On December 23, in response to the Union's October 24 request for information about the Respondent's competitors, the Respondent provided only a copy of the commercially published 2000 edition of “The Directory of Iron and Steel Plants.” The directory listed over 100 facilities, but the Respondent did not identify which companies were the Respondent's competitors. [55] The Respondent did not provide anything in response to the request for income statements for the last 3 years or the request for information about management salaries and benefits. The Respondent took the position that information about management salaries and benefits was not relevant to the Union's bargaining obligation in the contract negotiations.

Finally, at a meeting on January 4, 3 days before the start of the layoff, the Respondent told the Union that the Respondent's business outlook continued to be bleak.

B.

Contrary to my colleagues, I agree with the judge that during the Respondent's above meetings with the Union the Respondent effectively raised a claim of inability to pay for wages and benefits that the Union might seek for the employees, and to justify concessions from the Union.

An employer is required to comply with a union's request for financial information to verify the employer's claim of economic inability to pay the union's bargaining demands. [56] There are no magic words required to trigger this obligation; rather, “so long as the employer's refusal reasonably interpreted is the result of financial inability to meet the employees' demand rather than simple unwillingness to do so, the exact formulation used by the employer in conveying the message is immaterial.” [57]

Here, the Respondent clearly communicated to the Union that it could not afford the Union's bargaining demands. It conveyed to the Union that it was caught in a rapidly, downwardly spiraling financial trap (i.e., extremely low sales orders that were looking bleak and were a cause for great concern, coupled with falling sales prices caused by increased competition from cashstarved, virtually bankrupt competitors who were dragging down market prices to increase their volume). The Respondent made alarming statements to the Union about the Respondent's increasingly desperate current and future operational and financial condition. These statements were coupled with thinly veiled predictions of unprofitability and even bankruptcy and were made in the context of the Respondent's substantial reductions in work shifts and work hours, and ultimately, a layoff. They therefore constituted, en toto, a claim of inability to pay, and in turn triggered an obligation on the part of the Respondent to provide the Union with the requested financial and competitor information. In sum, the reasonable interpretation of the Respondent's above statements and conduct is that it was financially unable—not just unwilling—to acquiesce in the Union's negotiating demands. [58] The Respondent's failure to provide the requested information thus violated Section 8(a)(5) and (1) of the Act.

In reversing the judge and dismissing this allegation, my colleagues rely on the recent majority opinions in AMF Trucking & Warehousing, 342 NLRB 1125 (2004), and Richmond Times-Dispatch, [ 2004-05 CCH NLRB ¶16,958] 345 NLRB No. 11 (2005). Both of those cases were wrongly decided, as fully explained in Member Liebman's and my separate dissenting opinions in Richmond Times-Dispatch and AMF, respectively. Like the Board majorities in those cases, the majority seems to be bending over backwards in this case to reinterpret and recast the Respondent's clear claim of inability to pay. Thus, the majority finds that the Respondent's above statements and predictions amounted to just a claim by the Respondent that it needed concessions from the Union only in order to avoid being placed at a competitive disadvantage in the marketplace. But that clearly understates the import of the Respondent's statements and conduct, which just as clearly conveyed to the Union that the Respondent needed concessions from the Union just to survive. My colleagues' spinning and recasting of the Respondent's comments, while arguably adroit, [59] cannot defuse those comments into merely a composite claim of unwillingness to pay, based on a desire only to avoid being placed at a competitive disadvantage. And contrary to my colleagues' implication, the fact that the Respondent pinned its assertedly precarious financial condition on low sales volume and low sales prices caused by a decline in the steel industry in general, not only does not change the message conveyed to the Union, it underlines it—the Respondent would no longer be able to afford to operate at pre-Union levels and would not be able to continue to survive in the weakened marketplace without concessions from the Union.

Accordingly, I respectfully disagree with my colleagues, and would adopt the judge's finding that the Respondent's negotiation statements effectively claimed a present inability to pay, and that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish the Union with requested financial information. [60]