Gas Spring Co.

84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gas Spring Company and International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and its Local Union No. 1612. Cases 4-CA-16038 and 4-CA-16157 August 14, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 30, 1987, Administrative Law Judge Benjamin Schlesinger issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief,' and the General Counsel filed ex- ceptions. The Respondent filed a brief in response to the General Counsel's exceptions, and the Gen- eral Counsel and the Charging Party each filed briefs in opposition to the Respondent 's excep- tions.2 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 briefs and has decided to affirm the judge' s rulings, findings,3 and conclusions4 and to adopt the recommended Order. 5 CONCLUSIONS OF LAW 1. The Respondent, Gas Spring Company, is an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. International Union of United Automobile, Aerospace and Agricultural Implement Workers of ' The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent filed a motion to strike portions of the General Counsel's answering brief The General Counsel filed a response to the Respondent's motion . We deny the Respondent's motion The Respondent also filed a motion to add documents omitted from the official record We grant this motion a 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 adopting the judge's finding that the Respondent was claiming an inability to pay , we find it unnecessary to rely on his finding at In 35 of his decision that the word "from" in an affidavit given by Hannings, a union official , should read "at " We note that Nielsen Lithographing Co, 279 NLRB 877 (1986), which the judge cites, was remanded to the Board by the Seventh Circuit, 854 F 2d 1063 (7th Cir. 1988). 4 The judge inadvertently failed to include a "Conclusions of Law" section in his decision . Accordingly, we shall add a "Conclusions of Law" section. 5 The General Counsel has requested that the Order include a visitator- ial clause Under the circumstances of this case, we find it unnecessary to include such a clause. Cherokee Marine Terminal, 287 NLRB 1080 (1988) America (UAW), Local Union No. 1612, is a labor organization within the meaning of Section 2(5) of the Act, and is the exclusive representative within the meaning of Section 9(a) of the Act of the fol- lowing unit appropriate for the purposes of collec- tive bargaining: All production and maintenance employees of Gas Spring Company at its Colmar, Pennsyl- vania plant, excluding office clerical personnel, lab technicians, engineers, guards, and supervi- sors. 3. By failing to bargain in good faith with the Union by failing and refusing to turn over to the Union, on request, financial records necessary and relevant to collective bargaining, the Respondent has violated Section 8(a)(5) and (1) of the Act. 4. The strike which commenced on July 1, 1986, was caused at least in part by the Respondent's unfair labor practices described above. 5. An unconditional offer to return to work was made by the Union on October 6, 1986, on behalf of all the unfair labor practice strikers. 6. By failing and refusing to reinstate, and by de- laying the reinstatement of, unfair labor practice strikers on their unconditional offer to return to work, the Respondent has violated Section 8(a)(3) and (1) of the Act. 7. The unfair labor practices found above affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Gas Spring Company, Colmar, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. William E. Slack Jr., Esq., for the General Counsel. Thomas G. Greaves III, Esq. and James Miles, Esq. (Haynesworth, Baldwin, Miles, Johnson, Greaves & Ed- wards, P.A.; Vereen A. Dennis, Esq., on the brief), of Greenville, South Carolina, for the Respondent. William T. Josem, Esq. (Markowitz & Richman), of Phila- delphia, Pennsylvania, for the Charging Party. DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW BENJAMIN SCHLESINGER , Administrative Law Judge. On 1 July 1986,' the employees of Respondent Gas Spring Company commenced a strike . The issues pre- sented are whether the strike was caused by Respond- ' All dates refer to the year 1986, unless otherwise stated 296 NLRB No. 14 GAS SPRING CO. 85 ent's alleged unfair labor practice and whether, on the employees' notification on 6 October that they would discontinue the strike and their request for immediate re- instatement, Respondent was obligated to rehire them, replacing any employees it hired in the interim . Respond- ent denies that it violated the National Labor Relations Act, 29 U.S.C. § 151 et seq., in any manner, insisting that the strike was economic, that it had the right to re- place its employees, and that it had no duty to reinstate them until there were vacancies in its complement of current employees.2 Jurisdiction is conceded. Respondent admitted that it is a New York corporation engaged in the manufacture of hydraulic springs at plants located in Colmar, Pennsylva- nia, which is the location of the instant dispute, and Gas- tonia, North Carolina. During the year preceding 5 De- cember, Respondent sold and shipped goods and materi- als valued in excess of $50,000 from its Colmar plant di- rectly to points outside Pennsylvania . The testimony of James Zerby, Respondent's vice president of finance and administration , muddled the waters somewhat; he testi- fied that Respondent was not a separate corporation but was a division of Fichtel & Sachs Industries, Inc., a New York corporation. In any event, I conclude, as Respond- ent admits, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. I also conclude, as Respondent admits, that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. An affiliate of the UAW has since 19753 represented and been recognized by Respondent as the exclusive bar- gaining representative of Respondent's employees in the following unit which is appropriate for bargaining within the meaning of Section 9(b) of the Act and, by virtue of Section 9(a) of the Act, the Union has been and is the exclusive representative of the following unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees of Gas Spring Company at its Colmar, Pennsylvania plant, excluding office clerical personnel, lab technicians, engineers, guards, and supervisors. The latest collective-bargaining agreement was effec- tive from 1 July 1983 to 30 June 1986 . The Union and Respondent commenced negotiations for a new agree- ment on 6 June 1986 and, prior to the strike, met on 8 other days in June. Respondent engaged in hard bargaining, making more than 30 demands which, overall, would have reduced its 2 The relevant docket entries are as follows - International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and its Local Union No 1612 (Union) filed an unfair labor practice charge in Case 4-CA-16038 on 19 August and a complaint issued thereon on 8 October On 23 October the Union filed its charge in Case 4-CA-16157 , and on 5 December the Regional Director for Region 4 issued an order consolidating that case with Case 4-CA-16038 and a consolidated complaint . The hearing was held in Philadelphia, Pennsylva- nia, on 28-30 January and 9-10 February 1987 9 A different local of the UAW represented the employees prior to Oc- tober or November 1983, when that local merged into the Union Re- spondent voluntarily recognized the Union following the merger labor costs. Its initial proposals included not only no wage increase but also the reduction of wages by elimi- nating a previously granted cost-of-living increase for employees hired before 1 July 1983.4 It also proposed to reduce wages by eliminating a 10-cent-per-hour payment to set up employees and its obligation to pay for 2 days when an employee was sick. Respondent sought to shift the burden for health benefits to its employees by requir- ing them to pay a share of the insurance premium;5 and, in addition, it sought to increase the deductible for which no benefits would be paid. It proposed that the amount and length of disability benefits be reduced. It proposed to increase the eligibility requirements for va- cations and holidays to penalize those employees who had poor attendance records . As might be expected, the Union's position was quite different : it proposed a 3-year agreement, yearly increases of wages, and a variety of better benefits and protective provisions in over 30 cate- gories of terms of employment. The instant dispute centers not on the substance of the parties' proposals but whether Respondent based its pro- posals upon a claim of an inability to pay:-if so, Respond- ent would be required to comply with the Union's al- leged demands that Respondent open its books so that the Union could ascertain whether Respondent 's claim was legitimate. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). Clearly, near the beginning of negotiations, Re- spondent did not make such a claim . On 13 June, Bob Liney, Respondent's director of human resources for its Colmar plant and principal spokesman at the negotia- tions, was reviewing Respondent's proposals . Frank Han- nings, then the Union's principal spokesman, asked Liney whether he was claiming that Respondent was in dire fi- nancial straits. Liney replied that, although Respondent's health was not particularly good, Respondent was not claiming that it was in dire financial straits or claiming an inability to pay, although it had a bad year in 1985 and the first 5 months of 1986 had been worse than 1985.6 Hannings then stated that , if Respondent were claiming dire financial straits, the Union would have access to Respondent's books and records. Liney said that "we are not claiming an inability to pay .... [W]e are proposing not to pay. We choose not to pay." John Ruane, a member of the employee negotiating commit- tee,' then commented to his fellow negotiators that Liney was saying that Respondent can pay, but it just did not want to. At the next negotiating session, on 17 June, Liney told the Union that it would not make sense8 for Respondent 4 In prior negotiations, cost-of-living increases were not granted to em- ployees hired after 1 July 1983. Employees were to pay monthly $6 foi iidivi al"and $16 for family coverage. 6 Curtis Langdon, Respondent 's operations manager of the 3-11 p in shift, who was present at all negotiations, confirmed that Liney stated that the health of Respondent was not good and had not been good throughout 1985 and the first half of 1986, but Respondent was not claiming a financial inability to pay. 7In addition to the Union's officers who participated in the negotia- tions, five employees, members of the "employee negotiating committee," also attended the negotiations, but their participation was minimal. 8 Liney's notes state "good business sense," but Liney did not testify to those words. 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to increase its employees' wages, explaining that Re- spondent's sales had dropped from $60 million in 1984 to $52 million in 1985 and were projected at $48 million in 1986. Thus, what began on 13 June as Respondent 's posi- tion that it could afford increases but did not wish to grant them slowly evolved into a discussion of the rea- sons why it offered no increases and proposed conces- sions, and the principal factual issue is how far Respond- ent went in its exposition of its reasons and whether it crossed the line from "we choose not to" to "we can't." This proceeding is particularly difficult because no witness' recollection of a particular negotiating session wholly jibed with another's . In my recital of the facts, I have given primary credence to statements and admis- sions against interest. Those would appear to be truthful on their face because the witness would not have related them if they were not in the interest of the party whom the witness represented . I have particularly credited nar- rations of statements made at negotiations when there was corroboration from one of the negotiators on the other side of the table . However, when the testimony was clearly self-serving or beneficial to the party whom the witness represented, I have taken a harder look. It appears, for example, that Joe Sinni, the Union's financial secretary-treasurer and business agent, related too many occasions when he or other union representatives recited to Respondent UAW's policy on bargaining for conces- sions, which policy provided that the Union would bar- gain only when the employer produced proof of its fi- nancial distress. Liney and Zerby, on the other hand, were expansive in their recitals of the number of times that they advised the Union that Respondent was not claiming an inability to pay. With some qualifications, I have credited witnesses who related their own participation in the negotiations, particularly when their comments led to discussions with others; they would have recalled best what they said and the responses given to them . Sometimes, other partici- pants related matters omitted from the presentations of those who were speaking; where probable, I have added the material which the speaker forgot he said. There are specific findings of fact which vary from the testimony of one or more witnesses . I have not discussed the specif- ic reasons for all those findings because many were caused merely by the witnesses' inaccurate recollections or understandings, rather than purposeful misstatements. I found no witness utterly without fault and have weighed each witness' demeanor carefully . In addition, I have thoroughly reviewed the notes of the negotiations kept by the various participants. These notes have been helpful, but not necessarily determinative, in ascertaining the content of the negotiators' comments, because even the notes are inconsistent. Finally, although the nature of collective bargaining is often unpredictable and some- times improbable, probabilities form the basis of these factual findings, and I have been guided by the principles set forth in NLRB v. Walton Mfg. Co., 369 U.S. 404 (1961). On 20 June, Sinni entered negotiations and soon became the Union's principal spokesman . At one point on 20 June, Sinni mentioned that the employees were concerned that Respondent intended to shut the Colmar facility and move all operations to Gastonia . Liney as- sured Sinni that Respondent intended to maintain both plants, although he added that the Colmar and Gastonia plants were "to some extent" in competition and that it was important to make Colmar as competitive as possi- ble.9 In an attempt to understand whether Respondent was serious about its demand for concessions , Sinni asked Liney to meet later for dinner . Then, according to Liney, Sinni asked whether Respondent was, indeed, se- rious and Liney said yes, that Respondent was doing "badly" and that "we felt it was not practical to make any increases." Sinni's version of the dinner conference was different and more detailed. In answer to his ques- tion, Liney said that Respondent's demands for conces- sions were "real." Sinni told Liney that he did not be- lieve that the membership would accept concessions and asked whether Respondent would extend the agreement and continue to bargain. Liney said that that was not possible, that Respondent needed concessions and con- cessions were required , and that the demands for conces- sions would be on the table at the end of negotiations. Sinni then explained that the UAW had a procedure to follow when employers asked for concessions: the Union needed proof that a company was losing money and, once there was proof, the Union would then bargain for a survival agreement.' 0 Liney responded by repeating that Respondent needed the concessions and that the de- mands would be "on the table at the end." Sinni's reaction to this dinner meeting prompts me to believe that his narration of Liney's harder position-that Respondent "had to have" the concessions rather than the "impracticality" of granting increases-was more credible;"' and I accept Sinni's narration . He testified that, as a result of this conversation, he believed that the situation was very dangerous, that Respondent's demands for concessions were real, and that Liney was not bluff- ing. He told Union President Joe Ashton as much, and Ashton asked that they meet with Liney . As a result, prior to the scheduled 24 June full bargaining session, Sinni and Ashton met with Liney for breakfast . Ashton asked Liney to relax Respondent's demands for the 30- cent cost-of-living take back, elimination of the addition- 9 Respondent's brief emphasizes that one of the principal reasons for some of its many demands for concessions was that its plant in Gastonia operated under rules and practices which made its Gastonia facility more productive and efficient than Colmar's. Although there is unrebutted tes- timony that Liney discussed Respondent 's feelings with Smm in early May, this statement on 20 June and one at the 24 June breakfast meeting appear to be the only occasions in June when Liney indicated that Re- spondent was merely attempting to obtain some parity of efficiency in its two facilities Otherwise, the reasons expressed by Liney and primarily Zerby on the economic proposals were wholly financial , based solely on Colmar's needs 19 Liney and Zerby denied that the term -'survival," in the context of bargaining or an agreement , was used, but I am convinced that, among the Union's numerous demands for Respondent's books and requests for Respondent's help in order to convince the Union 's membership of Re- spondent's reasons or need for concessions, mention was made of a sur- vival agreement. ' I I also agree with the argument of counsel for the General Counsel that, even crediting Liney's recollections, he linked Respondent's de- mands for concessions with its poor financial condition It would have been equally consistent for Liney to have continued with his argument that the concessions were required GAS SPRING CO. al 10-cent-per-hour payment to set up employees, and certain concessions regarding medical benefits . Liney re- plied that there was no relief; that Respondent was seri- ous about concessions which were required and neces- sary; and that Respondent lost money in 1985 and, in 1986, it was "heading in the red ," and Respondent felt it was necessary for the Colmar plant to be as economical- ly efficient as Respondent's facility in Gastonia. Ashton said that the Union did not desire to strike , but wanted to do everything possible to reach an agreement. He thought it strange that Respondent would wait until just 2 weeks before the expiration of the contract to demand such major concessions, he believed that the membership would not accept concessions, and he asked Liney, as Sinni had done 4 days before, about the possibility of Re- spondent's extending the agreement and continuing with negotiations. Again, Liney rejected the proposal. It was not possible and concessions were necessary , giving two reasons : first, Respondent was losing money and, second, Respondent was not making as much money as it should. Ashton told Liney that , if Respondent was losing money and if it needed help, the UAW had a procedure for survival bargaining, told him what that procedure was, and said that survival bargaining had been conduct- ed with two companies in the area, as well as Chrys- ler.12 Liney did not respond directly, but merely said that he needed the concessions and that the concessions were real. At the bargaining session which followed on 24 June, Sinni stated that the Union would not accept substantial reductions in wages and benefits and wanted substantial increases because Respondent was a profit-making entity. Liney replied that Respondent was not in good shape, that 1985 had been a bad year and 1986 was worse, and that it was important that "everyone see the problem the company was in money wise [or] understand this." Liney also stated that the automotive industry was not having good times and that the union negotiators should not delude themselves, that conditions were bad and were getting worse. Sinni then countered that the Union had received no indication or documentation that Respondent was in financial difficulty, although the Union under- stood that Respondent's position in the market was not good. 13 Sinni added that if Respondent was losing money, Respondent should show its books so that the Union could help Respondent. 14 Liney did not respond. 'E Sanna said that it was he who mentioned the UAW procedures, but I found Ashton's recollection particularly detailed, rational , and credible In any event, Laney did not deny that the UAW procedures were men- tioned as Langdon could not recall that Sinni made the second part of this statement However, considering Laney 's earlier response , which Lang- don admitted and are in Langdon's notes, it is probable that the entire statement was made, and I credit Sanni s testimony i4 Strangely, Sunni did not testify to this, but Laney conceded that Sanna said it (Langdon recalled that on three occasions , Hannings or Sanna stated that if Respondent was in dire straits , it should produce its books and the Union would bargain for concessions It is clear that the Union frequently asked for Respondent 's books to prove its financial con- dition-dire straits or lack of profitability-and Respondent never favor- ably replied ) Zerby also recalled that Laney answered Sanna that "busi- ness conditions were not good," but he had not said and was not then saying that Respondent could not afford increases , but was saying only that he felt that the grant of increases was not a prudent business move 87 On 25 June, Liney and Sinni met privately in the hall of the motel where negotiations were being held. Liney recalled that he talked with Sinni after negotiations had finished for the day and that Sinni said that he did not want the employees to lose their jobs . Liney agreed with Sinni, adding that that was the reason for Respondent's overall stance in negotiations . Liney pointed out the situ- ations at some other companies in the area, particularly Budd, Mack Truck, and FMC, where plants had either recently closed or curtailed their operations as a result of their financial condition; and Liney did not want Re- spondent ultimately to be in a situation similar to those companies "that had over a course of years developed some problems." Sinni's version of this conversation was quite different as to both the timing and the content . He recalled that the morning session of negotiations consisted of Liney's recital of Respondent's position on its and the Union's demands, to wit, rejections, modifications, and resubmis- sions, with appropriate comments . Sinni then asked for a recess, because he felt that the Union needed to prepare a comprehensive modification of its proposals. The recess lasted for 3-1/2 hours, and towards the end of the recess, Liney telephoned Sinni and asked him to meet. They did, and they discussed the advisability of bringing in a Federal mediator. Sinni said that the Union was pre- pared to make major modifications and "some unprece- dented moves on economics" and restated the Union's lack of information indicating that Respondent was losing money and that, if it was, the Union needed proof to justify Respondent's proposals. Sinni and Liney then discussed certain of Respondent's proposals, and Sinni asked for relief. Liney declined, stating that the conces- sions were necessary and that the Union was not paying attention to what was going on-FMC, located around the corner from Respondent, had gone out of business when its concessions were not granted-and Mack Truck and Budd Company had taken on the UAW for concessions and wanted them. Liney insisted : "[L]et's face it, the time is right. We're going to take you on. Now is the time." The parties then returned to the bargaining table, and Sinni presented the Union's new proposal which, he said, represented a "major modification " as a show of "good faith" to get Respondent to move . 15 He said that the Laney testified that he again stated that Respondent was not pleading an inability to pay, which is noticeably absent from anyone's notes of the negotiations, except Liney's, where it appears to be squeezed in immedi- ately before the meeting adjourned. (I note "squeezed " because most of the rest of the colloquy written by Laney was double spaced , and this note was inserted between two lines) No one corroborated Zerby's recollection of "prudent business move ," and Langdon's notes , which are much more complete than Lineys , not only omit this alleged statement but also indicate that, if Laney had made the statement , it would have been completely out of context, because the parties were discussing the fact that they had agreed to reserve the discussion of economic issues until later in negotiations, only after they had agreed upon noneconomic items, and time was growing close. As a result , I do not credit either Zerby or Laney 15 Because this "major modification" was presented after the break and because Laney agreed during the later session to consider the involve- ment of a Federal mediator (he indicated that he had talked with Ed McMahon, the mediator who ultimately intervened), Sinni's recollection of the timing of his discussion with Laney is more probable and I credit it, being convinced by Sinni's more detailed testimony 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD major issues on the table were Respondent's demands for concessions, that the Union had no indication that Re- spondent was losing money, and that the Union would help, but it needed proof "because our membership just would not accept the fact that they were losing money. They just would not believe that." Otherwise, the Union would not concede the loss of $1 .50 per hour in wages and benefits. Sinni could not remember what Respond- ent's response was, but recalled that he told Liney that Respondent was not in dire financial straits and Liney re- plied that Sinni was correct and "we are going to run this company in a prudent way."18 Early in the bargaining session of 27 June, Sinni made an extended speech, in which he said that the Union had checked out Respondent and ascertained that it had sales of $58 million in 1984 and profits of $42 million in 1985 (undoubtedly a slip of the tongue) and was viable, profit- able, and able to grant increases and that the Union wanted a "piece"; that unless Respondent came up with a decent package, the Union would recommend a strike to its membership; and that Respondent should show the Union its records so that the Union could determine if Respondent was in financial difficulty. Liney responded, according to Sinni, that he did not agree with Sinni's numbers; according to Liney, that he heard what Sinni said and that just because Liney did not object, that did not mean that he agreed. At this point, the parties took a lengthy break, after which Zerby delivered some lengthy comments, about which there are only few, but critical, differences in the recollections of the negotiators. Zerby rejected Sinni's claim that Respondent was trying to bust the Union, stat- ing that Respondent's principal negotiators and president had bargained with the UAW for many years, there had been no management change that would suggest that their views had changed, and the German owner of Re- spondent was used to working closely with unions. Zerby said that Respondent's negotiating position was caused by its "financial condition" or by economic "con- siderations" or "conditions." He agreed with Sinni's comments that Respondent's profits had been at an all- time high in 1984, with sales of a little less than $60 mil- lion, but 1984 was the only year that Respondent had en- joyed profits which were above the average for manu- facturing companies. That resulted frcm a onetime retro- fit program (the production of a kit to fix the gas springs which aid in the opening and closing of trunks of cars) which Respondent contracted with General Motors in mid-1983 . The program lasted through the end of the first quarter of 1985. In 1985 Respondent's business had taken a downturn, ' 7 1985 sales were down 15 percent 19 See fn. 14 above This may be the meeting to which Zerby referred when Liney used the word "prudent" Indeed, I have grave reservations that Zerby heard very much of what transpired on 24 June Langdon's notes indicate that that session ended at 3.30 p m . Zerby's one-page notes indicate a time, "15.20 on 24 June 86," and nothing written above it agrees with any of the negotiating notes. (It was stipulated that the nota- tions at the top of R Exh. 3-A were not notes of the negotiations.) 17 Zerby testified that he told the union negotiators that Respondent had made a profit in the first quarter of 1985 and had broken even the last 9 months Although Sinni's recollections were inconsistent, Sinni confirmed this at one point during his testimony, but maintained that from 1984 and profits were down 70 percent, 1986 had been worse than 1985, and Respondent had been losing money throughout 1986, emphasizing that "there were no profits" and "the bottom line is red." According to Langdon, Zerby added that the bottom line would remain red, that Respondent was determined to take action to reverse its losses, that Respondent was liquid and was able to meet its obligations, and that Respondent "cannot contend with the continued downward trend in business or jobs will be lost." Sinni's and Zerby's testi- mony differed somewhat from Langdon's. Sinni conced- ed that Zerby had said that Respondent was not in dire financial straits . 18 Zerby recalled saying that 1986 had started even worse than 1985, that sales would be down again in 1986, that there are no profits in 1986, that Re- spondent started the year losing money and continued to lose money, that a loss was projected for the year, 19 that losing money was not a tolerable situation and had to be addressed, that losing money was the reason for Re- spondent's position at the negotiating table, that Re- spondent did not presently have a liquidity problem and could meet its obligations to its employees and vendors, but Respondent was in a situation where it had to con- trol and reduce its costs, and that Respondent was deter- mined to achieve those reductions.zo Zerby then proceeded to criticize the Union 's negotiat- ing committee for not properly representing the best in- terests of the employees, for being amateurs and irre- sponsible, and for not really understanding what was going on. If the committee really wanted to, it could, Zerby argued, sell Respondent's proposal to the member- ship. On 28 June, the Union held a membership meeting at which Ashton spoke, telling the assembled 200 employ- ees that negotiations were going poorly, that Respondent had made many proposals for concessions, that the Union felt that Respondent was a profitable facility, but Respondent's controller (Zerby) insisted that Respondent was losing money and needed concessions, and that Re- Zerby had explained that 1985 was "at best " a break-even year. Liney had said earlier that 1985 was a "bad " year and 1986 was "worse " 18 Sinni's notes so indicate, and Sinni recollected this statement after being confronted with his notes. No other witness corroborated this testi- mony, but the notes of employees negotiating committee member Sylvia Plant state- "dire straits NO liquidity downhill losses can't continue " But see fn 19 below. 19 Plant's notes regarding this statement of Zerby reflect "No profit 86 looking worse sales low " Hannings' notes state - "85 downturn 86 sub- stantial downturn-lower than last year profits Red all year have liquidi- ty-meet payroll-bills customers lose money-going downhill-lose jobs-I want to do my job " 80 Liney claimed that Zerby specifically disavowed , in those words, any "inability to pay" and never mentioned the possible loss of jobs. I discredit the latter testimony, finding no corroboration in the record for this apparently self-motivated statement Indeed , Zerby admitted offering a "basic truism," that if any entity, Respondent included , losses money indefinitely, the result would be a loss of jobs and deterioration of its about Zerby's specific disavowal, which Zerby never testified to or men- tioned in his investigatory affidavit , which Liney had read and indicated in a letter to the Board's Regional Office that he agreed with Zerby's recollections However, Liney could have construed Zerby's comments about Respondent's liquidity and not being in dire financial straits as having the same effect as a claim of an ability to pay In any event, both Liney and Zerby agreed that Zerby said on 30 June that Respondent "was not in a position to commit to a pay increase " GAS SPRING CO. spondent was doing everything to thwart the making of an agreement by putting advertisements in the paper to hire employees . He said that Zerby had stated that Re- spondent had lost money in 1985 and that it was losing more in 1986 and there was a downward trend in the automotive industry . Employees questioned who Zerby was, complained that he was never in the plant and knew nothing , called him obscenities, and said that they could not believe that Respondent was not profitable, waving copies of a newspaper article in which it was re- ported that respondent had an 80-percent share of the market and enormous increases in revenues. Sinni then read and explained Respondent 's proposals for concessions, as well as the Union's proposals. He re- peated that Zerby had said that Respondent was losing money, that 1985 had been a bad year and 1986 was worse, that it was running in the red the entire year, and that Respondent was willing to agree to a contract only with no wage increase and with "take aways." There was a big outburst, Sinni testified, of people yelling ob- scenities, that the Company was lying, and that it was profitable and would not share its profits with its em- ployees. Whether and in what context the Union's demands for Respondent's books and records were mentioned was the subject of diverse recollections. Ashton testified that Sinni mentioned that , on several occasions, he requested that Respondent, if it was losing money, should show the Union its books and the Union would discuss conces- sions. Sinni recalled that Ashton made some mention of Respondent's books being opened . Ruane, admitting that he did not recall all that Ashton said, recalled that Ashton stated that he felt that Respondent was making money and thought that it could afford increases, but Zerby said that Respondent was losing money, and that the Union was willing to negotiate concessions, if the Union could see Respondent's books . Employee Karen Walker did not recall that Ashton spoke on 28 June, re- called that Hannings spoke (Hannings denied it), and re- called that Sinni suggested that the employees turn down the contract because he thought Respondent could do better than what they were offering. Sinni, she recalled, believed that Respondent should show the Union its books, so that the employees could see for themselves; he did not believe that Respondent was telling the truth; and he stated that the Union wanted to see the bcoks. Walker also remembered that she commented that she could not understand why Respondent could not grant any increases, when it had purchased new machinery for the Colmar facility and had commenced operations of Gastonia. Walker, despite numerous attempts to refresh her recollection, could recall little else, including the reason why it was necessary for the Union to see Re- spondent's books. Thomas Desko, the Union's shop chairman, recalled that, because Sinni was late, Ashton explained Respondent's position in some detail , to wit, that Respondent was losing money and needed conces- sions. When Sinni arrived, he repeated Respondent's claim of losing money and needing concessions, but 89 Desko mentioned nothing about any union demand for Respondent's bcoks and Respondent's refusal.21 The meeting continued, according to Sinni, with Frank Redmiles, UAW assistant area director, who ex- plained the UAW procedure that, in order for the Union to grant concessions , Respondent should share with the Union proof that it was losing money, and the Union would then substantiate that and grant concessions or a survival agreement. He said that the employees would decide on 1 July whether to accept or reject whatever Respondent's proposal was then. Ashton's recollections were different . He testified that Redmiles felt that Re- spondent was a profitable company, but Zerby said it was not. Redmiles continued that a strike was difficult, that neither he nor Joseph Ferrara, UAW area director, sought strikes, but the UAW would back up the mem- bers and use whatever influence it had with its Ford, General Motors, and Chrysler departments . 22 Individual members of the employee negotiating committee then spoke, ending with Harry Yoo, who read in Korean the parties' proposals which were still pending.23 Prior to the 30 June negotiating session , the Federal mediator asked the principal negotiators , Liney, Zerby, and Langdon, for Respondent, and Sinni and Ashton, for the Union, to confer separately. Sinni reported that the Union had held its 28 June meeting, that he had indicat- ed Respondent's feeling that they would accept conces- sions, but the members were unwilling to accept them. Ashton said that the Union's information suggested that Respondent was profitable and it was unfair for it to re- quire its employees to accept wage and benefit reduc- tions. Zerby was upset with the results of the Union's meeting, stating that the Union was misleading its mem- bers by continuing to represent that Respondent was profitable, when it actually broke even in the last three quarters of 1985 and was in the red in 1986 and, because there was a downward trend in the automobile industry, Respondent would continue to lose money. He believed that the employees would accept austerity for 1 year and added that Respondent "had to" or "must" have cost containment and "could not commit to a pay increase." That Zerby also used the word "afford"-both Sinni and Ashton testified that Zerby said that Respondent could not afford to give increases to the employees-was uniformly denied by Respondent's witnesses. In resolving this issue, I note Langdon's implausible denial that Zerby said (as Zerby admitted in essence, he said), that Re- spondent "could not commit any money to increases." Langdon's notes indicate almost that very quote,24 21 Credibility resolutions will be discussed below 22 Sinm recalled, however, that Redmiles or someone else said that the Union would go to UAW President Owen Bieber or Douglas Fraser to influence Chrysler 23 Respondent employed about 30 employees who spoke only Korean 24 Langdon's notes state that , in response to Ashton's argument that it was unfair to propose "take aways" when Respondent was "profitable," Zerby stated "We cannot commit $ inc We are losing $ " Langdon did not believe that Zerby used the word "commit," but admitted that Zerby said, as Langdon's notes indicate , that Respondent "must have cost con- tainment." 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which Langdon attempted to explain away by stating that he was taking notes of the comments made by not only Zerby but also Ashton, Sinni, and Liney, and "it was quite difficult to keep with the flow of the conversa- tion." I found Langdon unpersuasive; indeed, he conced- ed that Zerby is "very, very slow and deliberate in the way he talks," which would make it much easier for Langdon to take accurate notes of at least Zerby's com- ments. However, Langdon tried to imply that there was a rapid and heated exchange of statements made, but that was inconsistent with his further explanation that Zerby spoke so slowly that Langdon wrote the word "afford" because he "got ahead of [Zerby] and put words into his mouth . . . I was anticipating what was going to be said."25 The following is the portion of Langdon's notes of the comments which he attributed to Zerby: al Ad 1- Ir r_1 -A/ rJd, & .,it Gr 4W Again, Langdon insisted that he "got ahead of' Zerby, who, Langdon testified, did not say "afford," but said only that Respondent "would not commit to a long term contract." I do not believe Langdon, who, although ad- mitting that various statements relied upon by General Counsel were made (indeed, he could hardly deny them when his notes so clearly indicated that the statements had been made), appeared hesitant in his admissions and reluctant to commit himself to positions that might be harmful to Respondent's cause. I find that Langdon heard the word "afford" but was not able to keep up with the statement that was connected to the word. He then crossed it out and made other revisions to replace it with a later statement that was being made by Zerby. I, therefore, find that the word "afford" was used by Zerby and discredit all testimony to the contrary. In what context the word was used creates a different question. Again, the recall of the Union's witnesses was not uniform. Sinni stated that Zerby said that Respond- ent had to have cost containment and "couldn't afford to give increases to us." I do not believe that Zerby stated his position that openly. Rather, I find that, in answer to Zerby's statements about Respondent's need to contain costs, Ashton suggested that, if Respondent were talking about economics alone, it ought to at least give its em- ployees some job security by agreeing to a 3-year agree- ment. Zerby responded: "[H]ow could we go back with a three year agreement, when the company can't afford to give people raises in the first year [of an] agreement, 25 Respondent's brief argues that Langdon's anticipation was caused by his inexperience as a "first-time bargaining participant ," a contention which I find unpersuasive GAS SPRING CO. 91 they surely couldn't give them raises in the second and third year of the agreement."26 The remainder of the morning session included Sinni's request to Respondent to open its books "if the company was losing money" and Ashton's plea that neither side needed a strike, that it was "a no-win situation for both of us," and that "it's a war" and, if there were a strike, Ashton would do everything possible with the UAW's Chrysler, General Motors, and Ford departments to in- fluence those companies' dealings with Respondent. The parties then recessed for private caucuses. The parties later returned to the bargaining table, the Union modified its proposals, and Respondent presented its "final offer" of, among other things, a 1-year agree- ment with no wage increase . A recess was taken for the Union to consider it, and negotiations then resumed with the Union having added Redmiles and Ferrara to its ne- gotiating team. Sinni rejected Respondent's final offer in its entirety and said that the Union would recommend to the membership that they do likewise . Sinni said that the Union was willing to sit at the table and continue bar- gaining into the next week, if necessary, to reach an agreement. Ferrara said to Liney that if he thought the Union was a weak group, it was not, it was strong, and accused Respondent 's negotiators of not having "moved from day one on your package." Liney said that Re- spondent had moved significantly, and Ferrara replied that, "[I]f you are losing money, show us your books and we will bargain concessions." Otherwise, the Union was going to give Respondent "a war, a legal war." Redmiles added that Respondent was not being fair with the em- ployees and that the Union's information was that Re- spondent was profitable. Zerby responded that Respondent was losing money and that the automotive industry was in a downward trend . Redmiles thought that the expenses of the Gasto- nia facility was draining the Colmar facility . One of Re- spondent's negotiators (probably Zerby) assured that that was not the case, that there was a downward trend in the entire auto industry . Ferrara took exception with Liney's having raised with Sinni the problems of Mack Truck and Budd, which had nothing to do with Re- spondent; and he said that he had been involved in the union movement for 45 years, he had negotiated many contracts, and if a company was in serious need and re- quired concessions, he would bring in actuaries to check the bcoks in order to justify those concessions, which he said he had done on numerous occasions . Sinni said that he had repeatedly requested Respondent to open its 26 In making this finding, I have not credited Zerby's assertion that he read from written notes (R. Exh 2). 1 found his testimony about reading the notes contradictory and inconsistent , whether he read them, as he originally testified, or used them as reminders of what to say I do, how- ever, find that he said that Respondent could not commit to pay a wage increase because it was losing money and it intended to control its costs and that Respondent intended to maintain its production facilities at both Colmar and Gastonia , as his notes reflect I also note Langdon's incon- sistent testimony in which he first stated that Zerby had linked Respond- ent's failure to consider a long-term contract because of money losses and a downward trend in respondent 's profitability and then he denied this linkage. Then, Langdon agreed that Zerby gave the perception of basing Respondent's demand for a 1-year contract on the loss of money and un- predictability of profits. books, and his pleas had been ignored . Ferrara added that Respondent's demand for a 1-year contract was most difficult to sell to the employees, because if you can sell concessions, there is no job security with that short a term. Liney said that Respondent might be able to move some things around in its offer as long as the total pack- age was not changed . Ferrara was furious, stating that there was no way Liney could move things around in a 1-year contract with no wage increase, because there was nothing there to rearrange. Zerby then made a comment about a 3-year agree- ment, about which there was much conflict. Langdon re- called that Zerby asked the committee whether the em- ployees would accept a 3 -year agreement without an in- crease, adding that Respondent was losing money and "could not consider any wage increases as part of a three year contract because it did not expect its financial situa- tion to improve." Sinni testified that Zerby asked Ferra- ra: "[W]ould your people accept a three year contract with no increases. We've already informed you that we can't afford to give raises," which Ruane corroborated in essence. Ashton recalled that Zerby said substantially the same thing that he said that morning , that if Respondent could not afford an increase in a 1-year agreement, it could not afford an increase in a 3 -year agreement. Ac- cording to Langdon, Sinni responded that Respondent had not shown the Union that it was losing money27 and accused Respondent of not being truthful. According to Sinni, Ferrara responded to Zerby: "Show us the books"; and Zerby said "We're losing money." Zerby re- plied, in answer to qualms expressed in earlier statements by the Union's negotiators, that Respondent had no in- tention of moving south (to Gastonia and closing its Colmar facility) and that Respondent wanted "to remain viable." Zerby denied that he ever said that Respondent could not afford to grant increases . It was his and Liney's con- tention that the Union's request for a 3-year contract prompted him to argue that if the Union 's membership would not accept a 1-year agreement with no wage in- crease, in no way would the people accept a-3-year agreement with no increase, a position substantiated by Desko. That appears to be a logical position and more probable than the testimony of the various other union negotiators. 28 In light of the fact that no one's negotiat- ing notes indicate that the word "afford" was uttered in this later session, the inconsistency of the testimony, and Desko's support of Respondent's position, I find that none of the statements attributed to Zerby linking the denial of increases to affordability should be credited. The Union held a ratification meeting of about 250 employees on 1 July. Ashton testified that he again opened the meeting and explained that Respondent's pro- posal that had been discussed on 28 June remained the same; that Respondent had told the union negotiators that it was losing money , that it had lost money in 27 Langdon testified that Smm made this statement several times. 28 The notes of the negotiations lean to this finding. Hammngs' notes attribute to Zerby "3 Yr Agrm No W Inc-Your Peopl. Accpt ." Lang- don's notes state - "Would your ppl have accepted 3 year-0-money." 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198529 and was in the red all of 1986; but the Union had information that conflicted with Respondent' s position, that Respondent was profitable in 1984 and 1985, and that, when Respondent was asked to open its books to substantiate its claim that it was losing money, it refused. Sinni testified that, when Respondent's claim that it was losing money was announced, there was "[a] lot of cat calling; there was a lot of screaming . . . like that's not true; that's bullshit; they' re making money and we know it." Sinni testified that Ashton proceeded to speak about some of the outstanding proposals, but Ashton said that he did not get into real details about the proposals, leav- ing them to Sinni . Redmiles then spoke, telling the em- ployees that it was a sad day, that Respondent had made little or no movement from the beginning of negotiations, and that, although he thought that Respondent was prof- itable, it refused to show its books. The ultimate outcome was in the hands of the employees, and, whatever the outcome, the UAW would support them. Sinni then read Respondent's last offer, copies of which had been handed to all the employees, explaining each issue after reading the proposal. 90 He said that it was tough bringing an agreement with so many conces- sions for only 1 year, but Respondent still refused to offer any proof that it lost money in 1985 and 1986. The floor was opened for questions, among which were: "Why no wage increase?" "Why can't they afford it?" "We know they're making money." "Why are they re- ducing our benefits?" Some employees expressed disbe- lief that Respondent was losing money and was propos- ing no increases and, instead, concessions. Following this, Yoo translated Respondent's final proposals into Korean, the employee committee members spoke briefly, and then a vote was taken. The employees rejected the final offer, which was apparently a strike vote, by 235 to 12. The parties' briefs raise serious questions about what occurred at the two union meetings. General Counsel's witnesses were by no means mutually corroborative. Re- spondent called no witnesses to testify about the 28 June meeting and two witnesses, James Shaw and Joseph Herrschaft, to testify about the 1 July meeting. Although both denied recalling that anyone from the Union ccmmented about Respondent's books and records or fi- nancial information, neither recalled much else about the meeting. Herrschaft, when asked about what comments were made by union officials about the different propos- als, answered: "I don't recall anything too much about it." While admitting that various union officials spoke, he candidly conceded that: "I didn't pay too much attention to really what was going on. I was interested in what they're going to do about the contract." Shaw's memory was equally dim, relating in only a few pages of testimo- 29 Although I find that this representation was made to the member- ship, I find that it was not accurate, but probably indicated what the union negotiators thought that Respondent was arguing, derived from Liney's statements that 1985 was a bad year. 30 By the end of negotiations , Respondent had reduced its proposals to about 18 Still remaining to be resolved were , among others, its demand for a 1 -year agreement with a wage freeze, elimination of progression in- creases, higher insurance deductibles (although reduced from its initial proposal), employee contributions for health insurance, and modifications in the amounts of disability benefits ny what he recalled about a 2-hour meeting. Specifically, all he could recall was that Sinni went through the pro- posals and said that the 1-year contract was a problem and that Respondent was going to move south. Like Walker, Shaw recalled that Hannings spoke at the meet- ing, but Hannings specifically denied that he did. On the other hand, the testimony of the employees called by counsel for the General Counsel was no model of consistency or total recall. Perhaps, the lack of recol- lections was caused by the nature of the event . Purpose- fully putting oneself out of a job and on strike, with the hardship of loss of income and lack of support of one's family, is a wrenching decision and undoubtedly causes the mind to wander. The reading of contractual propos- als and how they would affect the individual employees may have diverted their attention from some other mat- ters. There is a temptation, when so many different narra- tions are given about the same events, to disregard all the testimony as purely fiction , perhaps even purposeful fabrication. However, although the witnesses had either a personal or institutional reason for fabrication, I did not view the employee witnesses as malevolent or pur- posefully attempting to mislead . Rather, they were sin- cere in trying to remember what happened as best as they could, although their individual recollections were as diverse as they could be. Nonetheless, there is a theme that pervades all their testimony. I have no doubt that the Union spelled out in some detail why Respondent was demanding no increases and concessions and, from the response of the members, either from the newspaper article or simply because they believed that Respondent was a viable entity, that the members did not believe that Respondent had good cause to press its demands . Furthermore, the Union's leadership recommended rejection of Respondent's final proposal and a strike, as even Herrschaft recalled; and I thus find it probable that someone made known why the Union took that position . Ruane, who impressed me as a thoroughly sincere and thoughtful witness, testified that Ashton reported on 1 July only that Respondent claimed it was losing money and that the Union would be willing to bargain concessions if the Union could see Respond- ent's books. That was, in substantial part, what he re- called Ashton saying on 28 June. Omitted from that testi- mony was that the Union demanded that Respondent show its books and that Respondent refused, although it could be reasonably inferred that the Union had made a demand and Respondent did not comply. Walker con- curred in some of Ruane's recollections about the 28 June meeting, and recalled, only after some leading ques- tions, that the members were advised on 1 July that Re- spondent would not open its books, and members became upset because they "wanted to know . . . what we should do." (Walker explained that Respondent was claiming that it could not "afford things" and she wanted to have proof for herself.) Employee Henda Twyman testified only about the 1 July meeting; and she essential- ly corroborated Ruane's recollections . However, she re- called that it was Sinni who stated that, if Respondent put its books on the table and let the Union see its prob- GAS SPRING CO. lems (or losses), he would bring it back to the members and let them know what was happening and try to work something out. Desko, who recalled that both Ashton and Sinni related on 28 June Respondent's rationale for its offer but said nothing about a demand for Respond- ent's bcoks and Respondent's refusal, testified that both Ashton and Sinni related the demand and refusal on 1 July.31 The final wrinkle comes from Sinni, who testified that on 1 July Ashton "told the membership that he asked the company to open the books to substantiate that they were losing money, and they refused "; and, on cross-examination, without explication, testified : "In the July 1 meeting I recall no mention of the [company's] books [being opened]. . . . In the June 28th meeting, I believe there was same mention of the books by Mr. Ashton." However, on direct examination, Sinni testified that he came late to the 28 June meeting (corroborated by Desko) and that, when he arrived, "Mr. Ashton was concluding his presentation ." Sinni did not testify on direct examination that he or Ashton mentioned Re- spondent's refusal to show its books at the 28 June meet- ing. It is impossible to reconcile all of these recollections but, again, there was clearly a common thread among all the credited witnesses that the reason for Respondent's proposals was that it was losing entity, that the Union and its members did not believe that that was truthful, and that the Union might be willing to reach a different judgment if Respondent demonstrated proof of its finan- cial status. I find that this was expressed on 28 June, but I do not find that, although it might be inferred that the Union had demanded Respondent 's books and Respond- ent had refused , that the demand and refusal were men- tioned. The only testimony which supports that comes from Ashton, who said that Sinni said it, and Sinni, who said on cross-examination that Ashton did. However, Sinni was late in arriving at the 28 June meeting , so late that Ashton was just completing his remarks. Further- more, Sinni never stated on direct that Ashton stated this on 28 June; he originally testified that that happened on 1 July. I thus find accurate Ruane's and Desko's testimo- ny that there was no mention of the Union's demand and Respondent's refusal at the 28 June meeting. I also find that Sinni's answer that Ashton made this statement on 28 June was merely an inadvertent mixup of the two meetings, and I credit his original testimony, which was corroborated by Desko, Walker (who did not mention anyone's name), and Twyman (who inaccurately named Sinni as the person who said it). I was especially persuaded by Desko, whom I have previously credited in another hotly disputed factual difference, who recalled that some 5 to 10 employees questioned the Union's lead- ership about why Respondent would not open the books. Those questions, I find, were prompted by a statement that a demand had been made by the Union and that Re- spondent had rejected the Union's request. Accordingly, I find that all of the components of the unfair labor prac- a' Desko, however, did not report in his investigatory affidavit given to the Regional Office that Smm said anything The affidavit was not in- troduced in evidence, and it is impossible to make a credibility finding based on what may be (or may not be) an inconsistency between his testi- mony and his affidavit. 93 tice were explained to the membership and that the membership reacted unfavorably to Respondent's failure to prove its claim that it was unable to pay increases and needed concessions. The strike commenced that afternoon, 1 July, and no unit employee reported to work that day. However, be- ginning on 2 July, some employees returned to work; and by 6 October, 72 employees had returned to work and, in addition, Respondent had hired 119 permanent replacements, all of whom worked under the terms of Respondent's final offer which was unilaterally imple- mented following the 30 June bargaining session. On 6 October, the Union made an unconditional offer to return to work on behalf of all Respondent's unit em- ployees and notified Respondent that the strike was ter- minated and that all employees were prepared to imme- diately report for work. As noted earlier, Respondent re- plied to this offer that the strikers were economic strikers only, that their names would be placed on a preferential hiring list, and that they would be "offered future posi- tions according to legal requirements of the law." The Union thereafter denied Respondent 's claim that the strikers were economic strikers. In the meantime, the parties met on 25 July and 15 August, but there was no progress and no discussion of the Union's request for financial records. The only event of note at the August session was that Sinni read a prew- ritten letter advising Respondent that the employees were willing to return to work under the terms of the 1983-1986 agreement as long as negotiations for a new agreement continued for a reasonable length of time. Liney rejected the proposal . Indeed, Respondent had al- ready hired replacements who were working under the terms of Respondent's last offer, so that acceptance of the Union's proposal to work under the terms of the ex- pired agreement would have resulted in an increase of Respondent's labor costs. The subject of Respondent's financial condition arose at the bargaining session of 18 September. By then, the Union had filed its unfair labor practice charge alleging that its strike had been caused by Respondent 's failure to produce proof of its claimed "inability to pay"; so it is probable, and I find, that many of Respondent's state- ments were actually attempts to support its legal posi- tion, rather than indications of what had earlier tran- spired. At the beginning, Sinni said that the Union had asked Respondent many times to allow the Union to review Respondent's books so that the Union could actu- ally determine if Respondent was actually losing money and that the Union needed this information so that it could convince the employees, who did not believe that Respondent was losing money, to accept concessions and so that the Union could determine what its position in the negotiations should be . Liney responded that Re- spondent had refused to show its books because it was not claiming an inability to pay, to which Sinni said that if Respondent was not claiming an inability to pay, it must be making money and asked Respondent "to put the proof on the table that [it was] losing money." Zerby denied that Respondent was making money and said that Respondent had told the Union that it was not making 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD money. Liney stated that Respondent was merely making a prudent business decision in deciding not to give in- creases and denied that Zerby had ever said that Re- spondent was losing money,32 while conceding that Re- spondent "was not particularly profitable, was not healthy." Zerby then compared Respondent's position with Gen- eral Motors, which was losing money but remained liquid; and General Motors asked for concessions and got them. Zerby said that Respondent was losing money and making a prudent business decision. Sinni contended that Respondent should "put proof . . . on the table" that it was losing money and the Union would bargain for concessions. Ruane interjected that he was not a busi- ness administration major, but he could not understand how Liney could be saying that Respondent could afford increases, but not willing to grant them, while Zerby was contending that Respondent was losing money. Liney said that Zerby's explanation about General Motors ex- plained it. Zerby explained that Respondent was able to meet its financial obligations by using its liquidity, that is, that Respondent's assets exceeded its liabilities. Ruane then asked how Zerby determined that Respondent was losing money, and Zerby answered that Respondent's ex- penditures were greater than its income. A week later, on 25 September, Liney wrote to Sinni, reaffirming his position stated in the 18 September nego- tiations and accusing the Union of attempting to put Re- spondent in the position of saying that it "was not able or could not afford to meet the Union's economic de- mands." Liney stated that Respondent had told the Union "many times and in many different ways that we are unwilling, not unable, to pay, and that our position is purely a matter of business judgment and choice, rather than one of inability to afford," adding: From your comments, I gather you feel that "writ- ten proof" (as you call it) of what we have told you about our economic position could be helpful to you. That is not the test. The mere fact that such documentation might be helpful does not impose a legal obligation to present it. Along this same line, your request to have your "actuary" come in to review our books is once again denied. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), is the guiding decision involving a request for information to substantiate an employer's claim of an inability to pay. There, the union proposed a wage increase of 10 cents per hour; and the employer answered that it could not afford to pay such an increase, it was undercapitalized, it had never paid dividends, and an increase of more than 2-1/2 cents per hour would put it out of business. The union's request for evidence substantiating the employ- er's statements was rejected, despite the union's insist- ence, as here, that "such information was pertinent and 32 Langdon's notes reflect this latter statement , but Langdon nonethe- less testified , without adequate explanation why his notes should so state, that he was sure that Liney did not deny Zerby' s statement. According to Sinni, Liney's reply was. "[W]e told you that we're not in [dire straits] It's not that we can't afford It's not that we're losing money. It's just that we don't choose to pay " essential for the employees to determine whether or not they should continue to press their demand for a wage increase." Id. at 150. The Court stated that, although the Act does not compel agreement between employers and bargaining representatives, it does require collective bargaining in the hope that agreements will be reached; and the issue of the employer's ability to pay increased wages was re- garded by both parties as "highly relevant." Id. at 152. The Court wrote: The ability of an employer to increase wages with- out injury to his business is a commonly considered factor in wage negotiations. Claims for increased wages have sometimes been abandoned because of an employer's unsatisfactory business condition; em- ployees have even voted to accept wage decreases because of such conditions. [Ibid.; footnotes omit- ted.] The Court held that "[g]ood-faith bargaining necessari- ly requires that claims made by either bargainer should be honest claims," and, if an argument about asserted in- ability to pay a wage increase is "important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy." Id. at 152-153. Thus, it would "certainly not be far- fetched [to conclude] that bargaining lacks good faith when an employer mechanically repeats a claim of in- ability to pay without making the slightest effort to sub- stantiate the claim." Id. at 153. The Court agreed with a series of Board cases holding that if an employer "does no more than take refuge in the assertion" of poor finan- cial conditions, refusing either to prove its statement or permit independent verification, "[t]his is not collective bargaining," but tempered its holding, as follows: We do not hold, however, that in every case in which economic inability is raised as an argument against increased wages it automatically follows that the employees are entitled to substantiating evi- dence. Each case must turn upon its particular facts. The inquiry must always be whether or not under the circumstances of the particular case the statuto- ry obligation to bargain in good faith has been met. [Id. at 153-154; footnote omitted.] The Board has since considered numerous types of claims of inability to pay that will justify a union's demand for substantiation. In Cincinnati Cordage & Paper Co., 141 NLRB 72 (1963), the Board held that an em- ployer's claim that it could not remain competitive with comparable employers in the industry constituted a plea of poverty, even though the employer was not pleading a literal "inability to pay," as in Truitt, "because the em- ployer expressed the view that the wage increases would lead to impoverishment." Id. at 77. In Taylor Foundry Co., 141 NIRB 765 (1963), enfd. 338 F.2d 1003 (5th Cir. 1964), the Board found a plea of inability to pay when the employer contended that, if it increased its labor costs, it would lose its margin of profit and "we can't exist." Id. at 767; emphasis in original. In Stockton Dis- GAS SPRING CO. trict Kidney Bean Growers, 165 NLRB 223 (1967), the em- ployer's statement that it was in "no mood" to increase costs because prices for beans had dropped was deemed tantamount to a plea of inability to pay. In NLRB v. Western Wirebound Box Co., 356 F.2d 88 (9th Cir. 1966), enfg. 145 NLRB 1539 (1964), the employer justified its refusal to grant increases on the ground that price com- petition dicated its position . The court ordered the em- ployer to produce supporting data , noting that Truitt was "not confined to cases where the employer's claim is that he is unable to pay the wages demanded by the Union," id. at 90, and that bargaining "is hampered and rendered ineffectual when an employer mechanically repeats his claim but makes no effort to produce substantiating data." Id. at 91. In Stanley Building Specialties Co., 166 NLRB 984 (1967), enfd. sub nom. Steelworkers Local 5571 v. NLRB, 401 F.2d 434 (D.C. Cir. 1968), cert. denied sub nom. Stanley-Artex Windows v. NLRB, 395 U.S. 946 (1969), the employer argued that its cost of business had increased alarmingly, its earnings had not increased in proportion to its sales increase, and its divi- sion was not making money so that it could not pay more than it was offering and remain competitive. The Board, considering all the circumstances , found a plea of an inability to pay. "[N]o magic words are necessary to express such a [plea of financial hardship] within the meaning of Truitt, but the words and conduct must be sufficiently specific to link its bargaining position to economic hardship." E. I. du Pont & Co., 276 NLRB 335, 336 (1985). The Board in Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984), quoted with approval New York Printing Pressmen Local 51 v. NLRB, 538 F.2d 496, 500 (2d Cir. 1976), that: "So long as the Employer's refusal reasonably interpret- ed is the result of financial inability to meet the employ- ees' demand rather than simple unwillingness to do so, the exact formulation used by the Employer in convey- ing this message is immaterial ." In Atlanta Hilton, the Board found no "words and conduct . . . specific enough to convey [a claim of an inability to pay]." (At 1602.) There, the Board found only that the employer had characterized the union 's wage proposal as exces- sive; generally discussed the economy , noting that unions in other industries were making financial concessions; denied and later refused to deny or confirm that the em- ployer had made a profit ; and stated that it was not nec- essarily true that the hotel was making money or that it was full or would stay full and that the future was uncer- tain. The Board found that the employer "stopped short of asserting that its own financial situation rendered it unable to afford any increase the Union proposed." Ibid. Advertisers Mfg. Co., 275 NLRB 100 (1985), followed the rationale of Atlanta Hilton. The employer advised the union that it desired to discontinue payment of an end- of-the-year bonus for several reasons, including its asser- tion that "the level of business in the industry and for the Company has very poor for an extended period of time, going back to at least 1980, and the expenditure under that circumstance is not warranted," its belief that more value for the dollar would be gained by investing in em- ployee benefits or other operational expenses , and its statements that it had been considering discontinuance of 95 the bonus for several years and, because of a recent strike, it "would rather not" confront the question of whether the bonus should be distributed to all employ- ees. The union demanded financial information to sup- port the employer's "level of business" contention, and the employer promptly replied that it was not pleading financial inability; and the employer made the same reply 2 months later when confronted with a new union demand. The Board found that the explicit disavowals evidenced that the employer was expressing merely its unwillingness to pay rather than an inability to pay, rely- ing on the reasons in the employer's response, other than the "level of business" justification. As to that, the Board perceived no meaningful distinction between the employ- er's general reference to its "level of business" and the employer's vague references in Atlanta Hilton to its occu- pancy rate and the economy in general, neither of which were specific enough to convey a plea of an inability to pay. Buffalo Concrete, 276 NLRB 839 (198S), enfd. in relevant part sub nom. Washington Materials v. NLRB, 803 F.2d 1333 (4th Cir. 1986), also followed the rationale of Atlanta Hilton . There, the Board found that an em- ployer's claim that it needed to be more competitive was not a claim of an inability to pay, even though it was ac- companied with demands for concessions." The Board refused to assume that an employer who no longer wishes to pay wages and benefits it once agreed to is unable to make such payments . Id. at 841. Here, there is some evidence that Respondent was claiming an unwillingness to pay, particularly on 13 June, when Liney clearly announced that it was not Re- spondent's position that it was unable to pay but that it had made the business judgment that it did not desire to pay. Not so clear, but indicative of an "unwillingness" rather than a "can't" rationale, were Ashton's under- standing that Liney said on 24 June that the reason for not granting increases was that Respondent was not only losing money, but also not making as much as it should; Liney's denial on 25 June that Respondent was in dire financial straits and statement that Respondent was going to be run prudently; Liney's repetition of his denial on 27 June, the next to last negotiating session , that Respond- ent was in dire financial straits; and Zerby's assertion on the same date that Respondent was liquid. Respondent contends that these statements , made in the space of less than 3 weeks, merely expressed a judg- ment that it would not grant increases and would seek concessions, not because it required them due to its in- ability to pay but because it was exercising prudence and being practical in the management of its affairs. But, as stated above, magic words of a professed unwillingness to pay do not necessarily lead to the conclusion, in the context of the entire negotiations, that no inability to pay is being claimed. For example, in S.-B. Mfg. Co., 270 sa Although this appears to be inconsistent with some of the Board's earlier decisions, the Board noted in Taylor Foundry Co , 141 NLRB at 765, that "it is readily understandable that an increase in operating costs may place an employer in a disadvantageous position with respect to his competitiors and that a mere assertion thereof is not necessarily a claim of inability to pay calling for some substantiating proof under NLRB v. Truitt Mfg. Co" 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB 485, 491-492 (1984), although the employer re- peatedly stated that it was not pleading poverty, the Board upheld the administrative law judge's conclusion that the employer's reasons for refusing all the union's demands and for proposing certain economic concessions were based on its plea of financial inability to pay or its equivalent, to wit: "Costs were increasing, inventory was increasing, sales were decreasing, orders were decreas- ing, the Company was in a recession, employees were working a short workweek , and the Company was in no position to agree to the Union's economic demands." Similarly, in Celotex Corp., 146 NLRB 48 (1964), enfd. in relevant part 364 F.2d 552 (5th Cir. 1966), the employer told the union that it "was not pleading an inability to pay" and that it could pay "whatever we think is right to pay," id. at 53; but the employer's statements were evaluated by the administrative law judge, who found a plea of inability to pay on the basis of the employer's ad- ditional claims that the plant was not being operated profitably and that negotiations would be conducted on the basis of the labor costs that the plant could afford. Id. at 54. In Nielsen Lithographing Co., 279 NLRB 877 (1986), despite the employer's stated position that it was profitable and not pleading poverty and inability to pay and that it merely wanted to bring its wages and fringe benefits more in line with those of its competitors, the Board found a violation, relying particularly upon the employer's statements that jobs would be lost and the employer would go out of business unless the employees went along with the employer's proposed economic con- cessions. Here, even though Respondent contended once that it was merely unwilling to pay and denied that it was in "dire financial straits," each discussion of the reasons that Respondent would not pay led to factual allegations that it could not pay as a result of its own compelling financial considerations . From the beginning, Respondent supported its alleged "unwillingness" with the claim of decreasing profits . That Respondent was profitable in 1984, that it made money through the first quarter of 1985, that it broke even through the remainder of 1985, and that it was losing money in 1986 , that 1985 was a bad year and 1986 was even worse , were reasons related throughout the parties' discussions and were accompa- nied with Respondent's representations of declining sales. Zerby said at various times that the bottom line is red, Respondent had to have cost containment, could not commit money to increases, could not commit to a long- term contract, and could not afford increases-all clear indications that there was a financial basis that impelled and dictated Respondent's decision into an intractability demonstrated by Liney's comments that Respondent had a problem, concessions were necessary , and Respondent's proposals for concessions would still be on the table at the very end of negotiations. So serious was Respond- ent's financial condition that Zerby even threatened that if Respondent did not succeed in its proposals, jobs would be lost. When the matter of a 3-year agreement was discussed, Zerby contended that that would be im- possible because Respondent could not afford any in- crease in a 1-year agreement, so it certainly could not agree to an increase in a longer contract. 34 All these ar- guments were pleas that Respondent could not pay in- creases and could not continue operating under the terms of its expiring agreement, in the words of the Supreme Court, "without injury to [its] business." Truitt, 351 U.S. at 152. The Board, with judicial approval, has found pleas of an inability to pay in similar circumstances. Palomar Corp., 192 NLRB 592 (1971), enfd. 465 F.2d 731 (5th Cir. 1972) (losing money, later changed to not making sufficient profits, still later to preserve the employers' competitive position); Celotex Corp., 146 NLRB 48 (1960), enfd. in relevant part 364 F.2d 552 (5th Cir. 1966) (plant not being operated profitably and negotiations would be conducted on the basis of what employer could afford); Tony's Meats, 211 NLRB 625 (1974) (large monthly losses during a strike and "can't do anything else"); Stamco Division, 272 NLRB 1265 (1977) (employ- er not in healthy position, earnings lowest of any division of parent corporation, projections of the future did not look great, employer cannot afford an increase); Mashkin Freight Lines, 272 NLRB 427 ( 1984) (business was dete- riorating and employer was losing money); and Nielsen Lithographing Co., supra (jobs would be lost and employ- er would go out of business unless employer 's conces- sions granted). Respondent nonetheless argues that it never claimed that it was wholly unable to pay.35 Rather, it had liquid- ity and, although it was unprofitable at present, it was able to draw upon its reservers to pay its employees and vendors. Of course, no employer can continue to draw upon its reserves indefinitely . Those reserves will run out, and at that point it will surely reach a position of being unable to pay . But, even at an earlier point, in June 1986, it had reached 'the state of being unable to pay be- cause it had made the decision that it could not continue to operate by drawing upon its reserves "without injury to [its] business." Truitt, 351 U.S. at 152. Besides, Zerby's statement about liquidity was merely that Respondent then had sufficient assets to pay its current debts to its vendors and employees-a far cry from stating that Re- spondent could well afford not only to maintain its cur- 34 Even if I did not credit Zerby's use of the word "afford," Langdon admitted that Zerby said that Respondent "could not consider any wage increases as part of a three year contract because it did not expect its financial situation to improve," a statement which clearly implied that Respondent could not afford an increase In addition, Langdon conceded that the reason why he "incorrectly" wrote the word "afford" in his bar- gaining notes was that he was anticipating what Zerby would say. I find that Zerby, under all the circumstances, was arguing exactly that 95 Respondent relies on an affidavit Hannings signed during investiga- tion of an earluer surface bargaining charge, in which he stated "From the outset of the negotiations, [Respondent] took the position that it would not pay the employees any increases despite the fact that it had the ability to do so." Respondent relies on this statement in its brief to prove that "Respondent's position on 'economics' had been consistent throughout the bargaining session " I am persuaded that the word "from" should read "at," "because there is no credible proof that from 13 June until 18 September, Respondent ever used its "ability to pay argument," in haec verba. Rather, although Respondent indicated that it had the wherewithal to meet its bills, its principal contentions were that it was unable to grant what the Union wanted and it needed concessions. In ad- dition, Hannings' first affidavit was incorporated in a second affidavit which he gave in support of that charge in which he referred to Zerby's claims on 27 and 30 June of Respondent 's unprofitability GAS SPRING CO. rent labor costs, without concessions, but also to grant the Union all the increases that it wanted . Even if Re- spondent was sufficiently liquid on 30 June to pay its then current obligations , in light of Respondent's projec- tion of continuing and greater losses, there was no assur- ance that its liquidity would continue. The duty to bargain in good faith is at the heart of the Act, and Truitt recognizes that the "ability of an employ- er to increase wages without injury to his business is a commonly considered factor in wage negotiations." 351 U.S. at 152. If conditions were such in 1956, when the Court decided Truitt, they are even more relevant in the 1980's, when employers in many industries, in the face of foreign and internal nonunion competition and rising costs, have felt it necessary not only to hold back on wage increases but also to seek concessions in order to limit their labor costs . The Court's finding that claims for increased wages have sometimes been abandoned, while not necessarily the rule, is clearly more factually sup- ported now than in the history of collective bargaining since the enactment of the Act. The Court held that "[g]ood-faith bargaining necessari- ly requires that claims made by either bargainer should be honest claims [and] [i]f such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its ac- curacy." 351 U.S. at page 153. Liney, on 13 June, while claiming that Respondent was unwilling to grant in- creases, immediately supported his claim with facts of Respondent's unprofitability. While it may be argued that those facts constituted the reasons why Respondent was unwilling to grant increases rather than was unable to grant increases, Respondent's contentions evolved into a claim of its inability to pay based on its judgment that its losses could not continue. Once it began to talk about its reasons for its decision , not in terms of "we simply don't want to" or competition or what was being granted gen- erally in labor negotiations , but in terms of Respondent's specific needs and requirements, that is, the possibility of injury to its business, Respondent opened the door to the Union's equal participation in that discussion. Collective bargaining is not supposed to be a game. It is supposed to be a struggle of give and take, forceful presentations of opposing and informed viewpoints, and (if it works) informed consensus and agreement. To permit Respondent to repeatedly urge that it had to have concessions and could not commit to increases, while stubbornly refusing to supply to the Union the relevant information so that the Union could study it and make a cogent and reasoned judgment about the direction it should take, removes or at least diminishes the hope and expectation that an agreement may be reached and im- pedes the process of collective bargaining. Here, the evi- dence amply demonstrates that critical to the resolution of the deep breach between the parties' respective de- mands was the underlying doubt that what Respondent was saying was true. The failure of Respondent to sub- stantiate its position, that its claims were honest ones- especially when Respondent felt that its position was, in the words of Truitt, "important enough to present in the give and take of bargaining"-inevitably led to the fail- ure of the parties to reach an agreement. 97 An analysis of the relevant decisions cited above dem- onstrates that no matter what particular words have been said, when an employer has steadfastly relied on its own poor financial condition and projected injury to its busi- ness, it has been required to produce information to sup- port its claim. To the contrary, where the employer has made no statements about its own finances , and merely talked about the general economy or its relationship with its competitors, no unfair labor practice has been found. The decisions relied on by Respondent fall within this category. In neither Atlanta Hilton & Tower, supra, nor Advertis- ers Mfg. Co., supra, did the employer assert specifically that its own financial situation rendered it unable to afford any increase that the union proposed .36 Although not entirely clear, Rochester Institute of Technology, 264 NLRB 1020 (1982), enf. denied 724 F.2d 9 (2d Cir. 1983), reading it most favorably to Respondent, held only that the employer's claim that it could not pay an increase because it had already budgeted for its wage in- crease did not constitute a claim that it was not other- wise able to pay an increase . But my understanding of the administrative law judge's decision is that he found no violation of the Act because the employer never stated that it could not afford an increase and the union never made demand for financial information. 37 Respondent argues that Zerby's comment that Re- spondent could not contend with the continued down- ward trend in its business or jobs would be lost does not constitute a claim of an inability to pay, relying upon NLRB v. Harvstone Mfg. Corp., 785 F.2d 570 (7th Cir. 1986), cert. denied 479 U.S. 821 (1986). There are a number of difficulties with Respondent's argument, not the least of which is that the court's decision does not reflect Board law. The court refused to enforce the Board's conclusion that a threat of potential loss of jobs is sufficient to impose an obligation to produce financial data. Harvstone Mfg. Corp., 272 NLRB 939 (1984). The Board has instructed its administrative law judges that Board precedents, not court of appeals law, are to be fol- lowed unless overruled by the United States Supreme Court. Insurance Agents (Prudential Insurance Co.), 119 NLRB 768, 773 (1957), revd. 260 F.2d 736 (D.C. Cir. 36I noted above my reluctance to find meaningful any of the state- ments made by the parties at the 18 September negotiating session and Liney's followup letter. I find that Respondent's position was specifically tailored to conform with Board and court decisions reviewed as a result of the Union's unfair labor practice charge, about which , according to Liney's notes, Liney stated. "[w]e know and believe you know that your positions are totally wrong " I note, particularly , Liney's unsuccessful at- tempt to deny that Zerby had ever said that Respondent was losing money, his denial that Respondent had ever claimed an inability to pay, and his reference in his 25 September letter to the test set forth in Atlanta Hilton, 271 NLRB at 1602, that "profit data will not be required merely because it would be 'helpful' to the union." 97 With due respect , I disagree with the judge's blanket assertion, 264 NLRB at 1024, that "I do not believe that 'could not pay' is the equiva- lent to a plea of economic inability " Whether such a statement is the equivalent depends on the facts in their entirety, and the Board refused to adopt that dicta, for in answer to the judge's conclusion that , even had he credited the union's witnesses, he would find only a technical violation of Truitt, the Board wrote, at p 1020 in 3. "we find it unnecessary to rely on his further conclusion that Respondent committed 'at best . . a tech- nical violation of the Act' 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1958), affd. 361 U.S. 477 (1960); Fred Jones Mfg. Co., 239 NLRB 54 fn. 4 and text (1978). In addition, the court's decision in Harvstone Mfg. is distinguishable. There, the three employersS8 had claimed a competitive disadvantage and in one statement argued that if they did not make a reasonable profit so that they could be viable, competitive businesses, they could not stay in business and no one would have jobs. This single statement, the court held , was nothing more than a truism, finding that, at 577: [I]f an employer operates at a competitive disadvan- tage for a long enough time, its profit margin, as a matter of pure economics, will decline eventually forcing it out of business . There would then come a time when these three companies could be expected to plead an inability to pay, but that time has not yet arrived. . . . The relevant time period we must concern ourselves with is that of the term of the new collective bargaining agreement. It is quite conceivable that an employer, already operating at a competitive disadvantage with respect to employ- ee compensation, could afford to pay increased wages during the course of a new agreement. While it is axiomatic that this scenario cannot be played out indefinitely, it does not preclude a finding that, at least for the term of the new collective bargain- ing agreement, the employer operating at a com- petitive disadvantage is financially able, although perhaps unwilling, to pay increased wages . In such a case, we think that the employer 's claim of com- petitive disadvantage is not a plea of inability to pay. With the exception of two very brief references to its Gastonia facility, Respondent never claimed a competi- tive disadvantage prior to the strike. 39 Rather, its claim was based upon its own financial projections of a present, continuing, and worsening loss of money and a downward trend of its business. Those claims were not presented by the employers in Harvstone, which were profitable businesses and merely anticipating future losses. Here, with Respondent's present losses and dismal view of its prospects, the anticipated job loss was a real one, and not based upon a truism . Furthermore, by link- ing Respondent's losses to its refusal to commit to a longer term contract and by its insistence on a 1-year contract, Zerby's claim was directly related to the term of the new agreement; and the court's decision in Harv- stone does not apply. Accordingly, Zerby's threat of a loss of jobs represents one more indication that Respond- ent was pleading an inability to pay. Finally, Respondent relies upon Yore Cinema Corp., 254 NLRB 1288 (1981), which involved the employer's 38 A fourth employer which , the court noted , claimed that it was losing money , admitted that it had claimed an inability to pay 39 On 18 September, according to Langdon's notes, Liney stated that Respondent had never said that it could not afford to pay and that Re- spondent's approach was to make it profitable, "competitive"-the latter word uttered, I find, to announce Respondent's newly found defense in accord with Harvstone See fn. 36 above. Similarly , Zerby's description at the hearing of his statement as merely a "truism" was not a coincidental reference to Hormone. request to eliminate or reduce the contractual guarantee of 5-hour shifts for its projectionists in order to facilitate elimination of a second showing of a film on weekday evenings, when business was slow . The administrative law judge found, at 1292, that, although the employer's proposal may have been economically advantageous, it was not equivalent of a statement that it could not afford to pay. Furthermore, the judge specifically discounted what Respondent relies on herein-the employer's state- ment that "he had lost money in the theater 'and did not want to do this next year... (at 1289)-first, because the statement had been made 6 months prior to the com- mencement of negotiations and, second, because it was "uttered in a different context" (at 1292), a dispute over pay for the performance of certain routine chores.40 I conclude that none of the authorities relied on by Respondent sustain its contention that it was not plead- ing an inability to pay. In addition, also reject its defense that the complaint is, in essence, a sham, because the Union did not file its unfair labor practice charge in this proceeding until after it did not succeed with its earlier surface bargaining charge against Respondent (Case 4- CA-15954), filed on 11 July, alleging that Respondent had entered into negotiations with no sincere desire to reach an agreement.41 It was not until 19 August that the Union filed its first charge in this proceeding alleging that Respondent refused to turn over its books and prove its "inability to pay" contentions . Respondent contends that the late filing of that charge indicates that it was a fabrication,42 because if a factual basis for it truly exist- ed, it would have been filed earlier, relying on Industrial Waste Service, 268 NLRB 1180, 1183 (1984), in which there was a factual issue presented as to what caused a union's strike. One witness testified that the union's mem- bership authorized the strike based on four specific rea- sons which were to constitute the basis of an unfair labor practice charge, to be filed immediately by the union's 40 I reject Respondent's contention that its statement that it could not pay what the Union was seeking and that it had to have concessions were isolated remarks ; rather, they constituted the basis of Respondent's rationale Thus, Respondent's reliance on fn I in Washington Materials Y. NLRB, 803 F 2d at 1339, is misplaced. 41 Respondent moves that I reconsider my rejection of R. Exh. 5B and 5C, which are, respectively, the dismissal by the Regional Director for Region 5 of that charge and the affirmance of the dismissal by the Gener- al Counsel's Office of Appeals Respondent contends that the dismissal is "particularly relevant in view of the Union's admission . . [in two exhibits which I received in evidence] that the strike of July I was caused solely by the bargaining conduct of Respondent which was the exact subject of the dismissal charge A reading of these two documents [the two received exhibits] clearly shows that they contain this admission that the strike was not caused by Respondent 's refusal to produce financial infor- mation (Emphasis in original ) Respondent continues to fail to demon- strate that the rejected dismissal letters, which are not (and could not be) relied on as admissions by a party, are relevant to its position, and I adhere to my original ruling Industrial Waste Service, 268 NLRB 1180 (1984), is inapposite The dismissal letters were admitted there only to limit the scope and intent of the complaint in that proceeding Counsel for the General Counsel conceded in this proceeding that the instant complaint does not allege that Respondent engaged in surface bargaining, and I have not treated the complaint as so alleging 42 Respondent also notes that no request for Respondent '- books was made by the Union in the two negotiating sessions of 25 July and 15 August However , "[e]mployees are not required to request the substanti- ating data on more than one occasion or hound the employer when the information is not produced " Harvstone Mfg, 785 F 2d at 1368 GAS SPRING CO. 99 attorney who attended the membership meeting. Because the charge that was filed did not mention certain of the specific reasons, I utilized the charge, as well as many other inconsistencies and contradictions in the testimony, to make a credibility finding that not all the four reasons were mentioned. In this proceeding, to the contrary, there is sufficient proof, much from admissions of Re- spondent's negotiators, that various statements were made at the bargaining table; and there is clearly no simi- larity between the direct authorization to the union's counsel in Industrial Waste to file an unfair labor practice charge and the filing of the charge herein . Furthermore, Section 10(b) of the Act permits a charging party to file a charge within 6 months of the occurrence of the al- leged illegal act. It would be folly to rely upon some delay, permitted by the Act, as the reason, without more, for finding that the event alleged in the charge did not occur. Finally, Respondent contends, however, that it had no duty to supply its financial information because it was confidential information that could easily be misused. I reject that defense, which is a mere afterthought never expressed during the negotiations as the reason why Re- spondent would not produce the requested material. Ad- mittedly, if Respondent had raised this issue during nego- tiations, the question might have been a closer one, pri- marily because 80 percent of the Respondent's sales were generated from the "Big 3" automakers, including Chrys- ler, on whose board of directors sits UAW's president. Zerby testified that the "possibility of harm [and] misin- terpretation of data given [represented] a very genuine concern on our part," especially that a disclosure of Re- spondent's profit figures could affect its customers' atti- tudes in future price negotiations. However, Respondent first raised the issue of confidentiality on 22 October, after the Union had ended its strike; and the Union read- ily assured Respondent that any information that Re- spondent supplied would be kept confidential. As a result, on 5 December Respondent mailed certain materi- al to the Union. Clearly, such an arrangement could have been discussed earlier and an accommodation sought from the Union. In the absence of any effort by Respondent to ensure such an accommodation and in the absence of any legal authority cited by Respondent for its position, I can find no justification for its defense. Compare E. W. Buschman Co., 277 NLRB 189 (1985), enf. denied 820 F.2d 206 (6th Cir. 1987).43 Having found that Respondent claimed that its finan- cial distress caused it to reject the Union's proposals for wage increases and other benefits and to maintain its own demands for concessions, I conclude that the proof of Respondent's financial condition requested by the Union was relevant to the performance of the Union's collective-bargaining responsibilities . Truitt, 351 U.S. at 152-154 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Accordingly, I conclude that Respondent 43 In support of its "confidentiality" exception, Respondent relies upon the Truitt limitation, previously quoted above, that - "Each case must turn upon its particular facts " However, in Atlanta Hilton , supra, 271 NLRB at 1602 fn. 7, the Board noted. "Although the Court limited its holding, the case has become widely accepted as establishing for all practical pur- poses . . an 'automatic' rule." (Citations omitted ) violated Section 8(a)(5) and (1) of the Act by refusing the Union's requests44 to produce its books and records prove its claimed inability to pay. I turn, then, to the second issue presented-whether the Union's strike which commenced on 1 July was an unfair labor practice strike. An unfair labor practice strike is activity initiated in whole or in part in response to an unfair labor practice committed by the employer. NLRB v. Cast Optics Corp., 458 F.2d 398 (3d Cir. 1972), cert. denied 409 U.S. 850 (1972). The fact that an unfair labor practice is commit- ted before the strike does not establish the requisite causal connection, Latrobe Steel Co. v. NLRB, 630 F.2d 171, 181 (3d Cir. 1980), cert. denied 454 U.S. 821 ( 1981); nor is such a connection established by the fact that the unlawful conduct was coincident with the commence- ment of the strike. Tufts Bros., 235 NLRB 808, 810 (1978). On the other hand, as long as an unfair labor practice had "anything to do with" causing the strike, it will be considered an unfair labor practice strike. Cast Optics Corp., supra. Thus, even if the strike in this pro- ceeding were prompted in part or even primarily by the Union's dissatisfaction with Respondent's proposals, if the Union's strike was also caused in some part by Re- spondent's refusal to provide information in support of its economic claims, the strike would be an unfair labor practice strike and the burden would be upon Respond- ent to prove that the strike would have occurred even if it had not committed an unfair labor practice. Larand Leisurelies v. NLRB, 523 F.2d 814, 820-821 (6th Cir. 1975). At the 1 July union meeting, the employees were ad- vised that the reasons that Respondent was asking them to accept no wage or other increases and make conces- sions were that it was unprofitable, that the Union's in- formation was different, that the Union had requested Respondent to show its books, and that Respondent would not show its books. Furthermore , the employees indicated their displeasure with and disbelief of Respond- ent's rationale at both union meetings held on 28 June and 1 July, because they thought that Respondent was profitable and able to pay, as indicated in the newspaper article that many carried with them. Their dissatisfaction stemmed directly from the unfair labor practice found herein, that they could not understand why they were being asked to give back economic gains they had made to a company which they thought was solvent and could well afford to grant them even better terms and condi- tions of employment. Respondent's unproven claim of fi- nancial distress, which supplied the rationale for almost all of Respondent's proposals, was the reason for the re- 44 While Desko testified that all of the Union 's requests for Respond- ent's proof were made conditionally, that is, "if you are claiming an in- ability to pay, would you please show us your books," I do not credit him. In any event , I am persuaded that Respondent was claiming an in- ability to pay; and the Union's demands, if stated as Desko testified, merely acknowledged the existence of Respondent 's claim Such phrasing of the demand does not appear to have caused the Board any concern. C- B Buick, Inc, 206 NLRB 6 (1973), enfd as modified 506 F2d 1086 (3d Cir 1974) ("Bold therefore advised Respondent 's representatives that if they were 'pleading poverty' the Union should have an opportunity to examine the Respondent's profit and loss statement") 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD jection of those proposals and the ensuing strike because the employees obviously did not believe that Respond- ent's claim had any factual basis; otherwise, Respondent would have willingly shown its financial records. Respondent relies principally on Burner Systems Inter- national, 273 NLRB 954 (1984), in which the Board found that the union's strike was motivated only by the employees' dissatisfaction with the employer's contract proposal. The Board relied on two grounds: (1) there was only "the briefest mention" of the employer's claim of inability to pay and refusal to permit the union to ex- amine its records, which "prompted no questions or dis- cussion;" and (2) the members voted solely on whether or not to accept the employer's last contract proposal, and the vote was followed with a strike protesting the employer's failure to pay "fair wages." There are some similarities here . There was only one vote, to accept Respondent's last proposal. From 1 July until sometime in September, the picket signs did not refer to an unfair labor practice, but only that the UAW was on strike or on strike for, among other things, job security, working conditions, and equality. In addition, Sinni and Hannings signed documents (Hannings under oath), stating that the sole cause of the strike was that Respondent bargained with no sincere desire to reach agreement ; Plant commented at the 25 July bargaining session that the Union was on strike either because of what Respondent had offered or because of the conces- sions which Respondent had asked the Union to agree to; and a union report on negotiations , dated 28 July, made no mention of the strike being caused by Respond- ent's withholding of its financial data or the strike being an unfair labor practice strike. The Board has frequently held that the connection be- tween the unfair labor practice and the strike may be in- ferred from the record as a whole . See, e.g., Automatic Plastic Molding Co., 234 NLRB 681 (1978), enfd. mem. 106 LRRM 2869 (9th Cir. 1979); Brooks, Inc., 228 NLRB 1365, 1367 fn . 12 and text (1977), enfd. in relevant part 593 F.2d 936 (10th Cir. 1979). Although the reaction to the announcement that Respondent would not show its books, according to Ashton, was relatively minor, there was a significant outburst of employee sentiment which cannot be ignored. There was a greater reaction to Re- spondent's unproved and unbelieved contention that it could not afford increases and needed concessions. And it was the employees' underlying distrust of Respondent, which they did not believe, and which they might be- lieved, had Respondent not violated the Act, that prompted their even greater reaction to all the conces- sions which Respondent proposed. Unlike Burner Systems, there was more than a mere passing reference to Respondent's claim of financial in- ability. It was discussed at both union meetings and evoked a vociferous, and sometimes obscene, reaction from the employees. Furthermore, whereas in Burner Systems the union demanded to see the employer's books only once in three meetings and its demand appeared to have little meaning in the overall context of the negotia- tions, here, to the contrary , Respondent's claim and the Union's reluctance to believe that claim constituted the essence of the dispute and the primary cause of the strike. I find no important inconsistency between the other facts relied upon by Respondent and the conclusion that the strike was caused , at least in part, by Respondent's unfair labor practice. The written statements that Re- spondent bargained "with no sincere desire to reach an agreement" were submitted in support of the Union's earlier surface bargaining charge, which alleged a viola- tion of Section 8(a)(5) of the Act in those very words, relying, I assume, on Herman Sausage Co., 122 NLRB 168, 171 (1958), enfd. 275 F.2d 229 (5th Cir. 1960). Ac- cordingly, I find the statements were self-serving conclu- sions to support the charge in that proceeding. Plant's statement was nothing more than an expression of dissat- isfaction with what Respondent had offered to the Union, an offer which may have been more satisfactory, had Respondent shown its books . I do not find that her statement excluded the unfair labor practice herein. The Union's report on negotiations, rather than evidence of the employees' motivation, is almost exclusively a report on what Respondent and the Union proposed . Finally, like Plant's statement, the picket signs were not inconsist- ent with an expression of the employees ' discontent with Respondent's proposals, caused by their belief that Re- spondent was a profitable company which could afford to give them what they wanted and their knowledge that Respondent refused to prove its claim of an inability to pay. In any event, the Board has held that picket sign language is not necessarily determinative of the purpose of the strike and that the absence of any reference to the strike being a protest against an unfair labor practice does not exclude such a practice being the cause of the strike. Lifetime Door Co., 179 NLRB 518, 522-523 (1969); Head Division, AMF, 228 NLRB 1406 (1978), enfd. 593 F.2d 972, 979-981 (10th Cir. 1979). Accordingly, I find that Respondent's position of in- ability to pay and failure to produce proof that it was unable to grant increases and needed concessions consti- tuted a substantial cause of the strike. Buffalo Concrete, 276 NLRB 839, 841-842 (1985), enfd. in relevant part sub nom . Washington Materials v. NLRB, 803 F.2d 1333 (4th Cir. 1986); Stanley Building Specialties Co., 166 NLRB 984, 986 (1967), enfd . sub nom. Steelworkers Local 5571 v. NLRB, 401 F.2d 434 (D.C. Cir. 1968), cert. denied sub nom. Stanley-Artex Windows v. NLRB, 395 U.S. 946 (1969); Stafford Trucking, Inc., 166 NLRB 894, 897-899 (1967); Flowers Baking Co., 169 NLRB 738, 749 (1968), enfd. 418 F.2d 244 (5th Cir. 1969). Respondent also contends that the Union would have conducted a strike in any event, citing NLRB v. Stack- pole Carbon, 105 F.2d 167 (3d Cir. 1939), cert. denied 308 U.S. 605 (1939). The parties presented much evidence of the conduct of negotiations; and, although the testimony by no means reflects what happened during every minute, there was testimony of some discussion of sub- stantive matters, and the notes of the negotiations clearly demonstrate what the numerous proposals by both par- ties were discussed . There is no question that at some stage some very difficult issues had to be resolved, not the least of which was Respondent 's demand for the GAS SPRING CO. elimination of the union security and checkoff provisions, about which Hannings commented that those were "an absolute necessity," that the Union would never accept their removal, and that he would be fired if he agreed to their elimination. Hannings also referred to strict seniori- ty, which Respondent sought to alter, as the "Union pil- lars of the foundation." Furthermore, Sinni referred to many of Respondent's proposals as "beyond my accept- ance" and presenting "serious" and "strike" issues, only a few of which did not involve money.45 Threats of strike and contentions that certain proposals are "musts" are commonplace in collective -bargaining negotiations. They constitute no proof that the parties are at an impasse. I am unimpressed with the notion that various disputes at the negotiating table had no chance of resolution merely because statements were made indi- cating that the Union would not compromise. Rather, I find that what prevented progress in the negotiations was the dispute regarding the affordability of the Union's proposals and the need for Respondent 's concessions. If the Union became satisfied with validity of Respondent's financial dilemma, it promised to bargain about conces- sions; and it cannot be predicted that bargaining would have failed or that the noneconomic items would not have been resolved.46 Accordingly, I find that there is no sufficient proof that the Union would have conducted a strike had there been no unfair labor practice and conclude that the Union's strike was, from its inception on 1 July, an unfair labor practice strike. When the Union, on 6 October, made an unconditional offer on behalf of Respondent's employees for them to return to work, Respondent was legally required to reinstate all strikers within 5 days of the offer, discharging replacement employees, if neces- sary. Mastro Plastics Corp. Y. NLRB, 350 U.S. 270 (1956); Drug Package Co., 228 NLRB 108, 113 (1977), enfd. in part 570 F.2d 1340 (8th Cir. 1978). It is uncontested that Respondent did not reinstate the unfair labor practice strikers whose names are set forth in Appendix A, at- tached to this decision; and its failure to do so constitutes a violation of Section 8(a)(3) and (1) of the Act. Respondent, did, however, offer reinstatement to some of the strikers after 6 October, but the complaint alleges that Respondent inordinately delayed offers of reinstate- ment to five of its employees and that, although they were reinstated, they are entitled to be made whole for the period from 6 October, the date of the Union's un- conditional offer, until the date they were reinstated. Re- spondent admitted that the following employees were not reinstated until the following dates : Joseph Rascion- ato and Patricia Barnes, 27 October; Anna Mae Mich- 4S Among them were Respondent's proposals to retain employees in the event of layoff without regard to seniority , to increase its use of tem- porary employees outside the coverage of the agreement , to reduce the number of shop stewards, and to share the cost of arbitrations Even as to some of these proposals , the Union had offered compromises. 48 The UAW has entered into one contract with its largest employer in its Pennsylvania, southern New Jersey, and portion of Delaware district which does not have a "full union security agreement " The UAW's con- stitution requires that members have the right to vote on an employer's last and final offer, so that the members could have approved anything they desired In addition , the Union entered into concessionary agree- ments with two employers in 1980 101 ener, 3 November; James White, 5 November; and Walter Bryan, 10 November. Accordingly, I conclude that the delay in reinstating these five employees violated Section 8(a)(3) and (1) of the Act. Harris-Teeter Super Markets, 242 NLRB 132 fn. 2 (1979), enfd. 644 F.2d 39 (D.C. Cir. 1981). THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recom- mend that it cease and desist therefrom, post an appro- priate notice, and take certain affirmative action designed to effectuate the purposes and policies of the Act. Al- though Respondent argues that it has turned over to the union financial records sufficient to satisfy its legal obli- gation under Section 8(a)(5), an analysis of the document reveals that it is impossible to ascertain from it the accu- racy of precisely what Respondent was claiming , that is, whether the Colmar facility made a profit in the first quarter of 1985, whether it was only breaking even in the last three quarters of 1985, and whether it sustained a loss in 1986, all not due to a diversion of assets to or an investment of assets in the Gastonia, North Carolina fa- cility.47 Accordingly, I shall recommend that Respond- ent be ordered to produce financial documents sufficient to satisfy the Union of the precise nature of Respondent's claim of inability to pay increases or to maintain the level of wages and benefits provided for in its last sub- sisting collective-bargaining agreement, and its claim that it needs the concessions which it proposed. I shall also recommend that Respondent be ordered to make whole Joseph Rascionato, Patricia Barnes, Anna Mae Michener, James White, and Walter Bryan for any loss of earnings they may have suffered by reason of Re- spondent's failure to rehire them timely, by paying them a sum of money equal to that which they normally would have earned had they been rehired on 6 October 1986,48 less earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest therein, in accord with New Horizons for the Retarded, 283 NLRB 1173 (1987).4° 4' Respondent argues that, when it forwarded financial material to the Union in December, the Union never materially and meaningfully changed its proposals . However, as I found, the material forwarded by Respondent did not satisfy the Union's demand In any event , what actu- ally occurred in December is irrelevant to determine whether Respond- ent committed a violation of the Act in June . Certainly, Respondent cannot prove that , as of June, the production of its financial information would not have led to the Union 's change of its bargaining position Fur- thermore, even if Respondent had delivered in December some material which substantiated its claim of an inability to pay, that would not relieve it of its unfair labor practice or of the remainder of the relief recommend- ed herein Unoco Apparel, Inc., 208 NLRB 601, 610 (1974), enfd. 508 F 2d 1368 (5th Cir 1975) 48 In view Respondent's unlawful rejection of the strikers' uncondition- al offer to return to work, the 5 -day period during which backpay is tolled, usually granted to employers in situations where no unconditional offer has been made, is inapplicable Drug Package Co, supra at 114, Newport News Shipbuilding, 236 NLRB 1637, 1638 (1977), enfd. 602 F 2d 73 (4th Cir 1979) 49 In accordance therewith , interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of Continued 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Additionally, I shall recommend that Respondent be ordered to offer all employees whose names are listed in the attached Appendix A60 reinstatement to their former positions or, if those positions no longer exist, to similar positions, without prejudice to their seniority and other rights and privileges previously enjoyed, dismissing if necessary replacement employees hired on or after 1 July 1986, and make whole all such named employees for any loss of earnings they may have suffered from 6 October 1986 to the dates upon which Respondent unconditional- ly offers them reinstatement. The make-whole remedy and interest shall be computed as set forth above. Counsel for the General Counsel also requests that the order include a visitatorial clause authorizing the Board to engage in discovery in the manner provided by the Federal Rules of Civil Procedure under the supervision of a court of appeals, should one enforce my recom- mended order. This relief has been requested as a matter of course for more than a year, and the Board has uni- formly denied it in individual cases, without explana- tion.51 The relief granted herein is the normal relief granted in an unfair labor practice case, requiring in es- sence offers of reinstatement and payment of backpay. But for the number of discriminatees involved and possi- bly the total monetary exposure of Respondent , there is nothing unusual about the relief which I have recom- mended. I am persuaded, until the Board instructs me to the contrary, that the relief that the Board has tradition- ally granted is sufficient to ensure that Respondent will comply herewith; and I deny the requested relief. On these findings of fact and conclusions of law, and on the entire record in this proceeding ,52 including my observation of the demeanor of the witnesses as they tes- tified and my consideration of the briefs filed by counsel for the General Counsel, Respondent,53 and the Union, I issue the following recommended54 taxes as provided in the 1987 amendment to 26 U.S.C. § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S.C. § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). SO Counsel for the General Counsel was requested to and did submit a proposed order setting forth the relief he requested herein I have, in ad- dition to making some typographical corrections , added to the list of dis- criminatees the names of Charolette Cardillo and Nouran Riad, whose names appear to have been omitted . The names of "Althea Ann Hersh" seems to be an inadvertent combination of "Althea Lawrence" and "Deborah Ann Hersh", I have included both names in Appendix A. 51 The Board heard oral argument on the general issue in September 1986, but has not yet ruled. 52 The transcript on p 399 of the record is confused and badly tran- scribed and, unfortunately, my notes and precise recollection are not thorough enough to sufficiently complete the page I believe that I mis- stated "sustained" on line 9 and that thereafter, I corrected myself, so that line 12 should read "Pardon me. Overruled." as Respondent submitted a reply brief, which counsel for the General Counsel moved that I not consider on the ground that reply briefs are not provided for in the Board 's Rules and Regulations Respondent did not oppose the motion, which is granted . J. E. Cote, 101 NLRB 1486 fn. 4(1951). 54 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. ORDER The Respondent, Gas Spring Company, Colmar, Penn- sylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with International Union of United Automobile, Aerospace and Agricultur- al Implement Workers of America (UAW) and its Local Union No. 1612 as the collective-bargaining representa- tive of the production and maintenance employees at its Colmar, Pennsylvania facility by failing and refusing to turn over to the Union, on request, financial records rele- vant to collective bargaining. (b) Discouraging membership in the Union or any other labor organization by failing and refusing to rein- state and by delaying the reinstatement of unfair labor practice strikers upon their unconditional offer to return to work, and otherwise discriminating against its employ- ees with regard to their hire, tenure, or other terms and conditions of employment. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Provide the Union, on request, with all books and records containing information relevant to the substantia- tion of Respondent's claims that it is financially unable to meet the Union's economic demands and that it needs concessions. (b) Make whole its employees Joseph Rascionato, Pa- tricia Barnes, Anna Mae Michener, James White, and Walter Bryan for any loss of earnings and benefits they may have suffered, with interest, from 6 October 1986, until the date on which they were reinstated by Re- spondent, in the manner set forth in the remedy section of this decision. (c) Offer to each of the employees listed in Appendix A attached hereto immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions , without preju- dice to their seniority or other rights and privileges pre- viously enjoyed, discharging if necessary replacement employees hired on or after 1 July 1986, and make them whole for any loss of earnings and other benefits result- ing from Respondent's failure to reinstate them, in the manner set forth in the remedy section of this decision. (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 Colmar, Pennsylvania facility copies of the attached notice marked "Appendix B."65 Copies of ss 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." GAS SPRING CO 103 the notice, on forms provided by the Regional Director for Region 4, after being signed by Respondent 's author- ized representative , shall be posted by Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the no- tices 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 Respondent has taken to comply. APPENDIX A Katherine Herman Antoinette Staffieri Betty Marquis Charolette Cardillo William Cavanaugh Linda Fitzgerald Sandra Nolen Teresa Wisniewski Nancy Eroh Bernard Alston Henda Twyman Anne Thompson Jeanne Hoff Leon Campbell Kenneth Longfellow Vanessa Hamaday Indu Kasat Ronald Weidemoyer Sung Doo Lee Stewart Warburton Dale Fichter Mark Wiater F. Wayne Goshen Wilmer Rothrock Maryanne Wisniewski Delores Bunch Choong Keun Yoo Garth Patterson Raeann Deily Michael DeCicco Raymond Erb Donna Tipton Mary Kuhn Winnifred Johnston Bong Soon Jun Mahendra Patel Joseph Mascucchini Mary Veneziale William Leslie Constance Hamaday Elaine Werkiser Thomas Markert Theodore Guinther Bohdan Marchuk Anthony Giovinazzo Dale Childress Thomas Leonard Virginia Lawrence Luci Jones Jong Eun Moon Cindy Seok Evelyn Byrd Ruth Carr Timothy Morselander Sung Soo Park Michael Todorow, Jr. Ricardo Parkins Karen Walker Margaret Giovinazzo Kathleen Hein Patricia Detwiler Ethel Fritz Mattie Bookard John Ruane June Dasconio Nancy Schnable Lucille Elwood Phyllis Plant Cary Jarrett Tae Im Chun Judith Emenhizer L. Margaret Cressman Mary Lou Mull Helen Beauvais Sandra Todorow Owen Urquhart Dominic Paone Joseph Emenhizer Mark Daley Willard Worthington Thomas Desko Albert Hersh, Jr. James Lindsay Miriam Bussetti Sylvia Cichon Renee Kramer James Miller William Schumaker Carol Rims Dorothy Dasconio Ronald Smith Nancy Balch Sco Im Kye Soon Im Yeon Jaishri Patel Constance Quesada Lucy Boyd Nouran Riad Althea Lawrence Soon Myong Moon Deborah Ann Hersh Soon Ja Cho Chung Hwa Kim Hye Sun Yang Soon Yong Kim Han Kyoo Lee Dok Im Pak Kathleen Fretz Sheila Ferguson Connie Gahman Sue Madison Eva McKine Marilyn Gage Jay Mahan Rose Bergen Ramgopal Asopa Sung Soon Park Rose Rossi Doris Snyder Robert Taylor Mary Reichwein Dorothy Klinedinst Susan Gettler Devita Gohel Doris Ritty Clarence Runkle Sharda Dadhich Michael O'Malley Louis Verdeur Se Hyeon Kim Gap Sohn Yang Bruce Myers Sallie Shisler Gregory O'Sullivan Theresa Dusza Joon Ok Sim Joan Schaller Samuel Wright III Patricia Rivera Chris Randall Jean Malachowski Michael Ferguson Sylvia Kim Helen Bonanni William Grant Hyung Jin Kim Brenda Foster Kamal Riad William Balliet Renate Burkey Rose Bosco Sherry Wilson Elizabeth Devine Jae Choon Choi Charlene Hill Gertrude Evanson Teresa Araco Samuel Wright Ross Herstine APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and its Local Union No . 1612 as the collective- bargaining representative for our production and mainte- nance employees at our Colmar, Pennsylvania facility by failing and refusing to turn over to the Union, on re- quest, financial records relevant to collective bargaining. WE WILL NOT discourage membership in the Union or any other labor organization by failing and refusing to reinstate and by delaying reinstatement of unfair labor practice strikers upon their unconditional offer to return to work, and otherwise discriminate against our employ- ees with regard to their hire, tenure , or other terms and conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them under Section 7 of the National Labor Relations Act. WE WILL provide the Union , on request, with all books and records containing financial information rele- vant to the substantiation of our claims that we are finan- 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cially unable to meet the Union 's economic demands and that we need concessions. WE WILL make whole our employees Joseph Rascion- ato, Patricia Barnes, Anna Mae Michener, James White, and Walter Bryan for any loss of earnings they may have suffered, with interest, from 6 October 1986 until the date on which they were reinstated by us. WE WILL offer to each of the employees listed in Ap- pendix A immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions , without prejudice to their seniority or other rights and privileges previously enjoyed, discharging if necessary replacement employees hired on or after 1 July 1986, and make them whole for any loss of earnings and other benefits resulting from our failure to reinstate them, with interest. GAS SPRING COMPANY