Arlington Metals Corporation

368 NLRB No. 74 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Arlington Metals Corp. and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Al- lied Industrial and Service Workers Interna- tional Union, AFL–CIO (USW). Cases 13–CA– 122273, 13–CA–125255, and 13–CA–133055. September 13, 2019 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL On July 23, 2015, Administrative Law Judge Mark Carissimi issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Union each filed an answering brief, and the Respondent filed reply briefs. The Respondent also filed a motion to reopen and supplement the record, the General Counsel filed an opposition, and the Respondent filed a reply.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions, the motion to reopen and sup- plement the record, and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order. This case involves various bargaining-related allega- tions arising from the parties’ negotiating sessions in 2013. The judge found that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by (1) refusing to provide the Union with requested information; (2) engaging in surface bargaining; (3) withdrawing recognition from the Union; and (4) deny- ing the Union access, after the withdrawal, to its premis- es to conduct a health and safety inspection. As ex- 1 An individual, Brendon de la Cruz, filed a motion to intervene be- fore the hearing and subsequently filed exceptions to Administrative Law Judge David I. Goldman’s denial of that motion along with a supporting brief. The General Counsel filed an answering brief, and de la Cruz filed a reply brief. We find the judge’s denial of the motion to intervene was not an abuse of discretion, as it falls within established precedent concerning decertification petitioners’ requests to intervene in unfair labor practice proceedings. See Sec. 102.29 of the Board’s Rules and Regulations. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard 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. plained below, we reverse each of these findings and dismiss the complaint. I. BACKGROUND The Respondent processes steel at a facility in Franklin Park, Illinois, where the Union represents a unit of its employees. The parties had been bargaining for a first contract since the Union’s initial certification in 2007. From the beginning, the Union demanded increases to employee compensation, and the Respondent opposed the proposals on the ground that it has been suffering annual declines to its business. After extensive bargain- ing, the Respondent declared impasse and unilaterally implemented final offers in both mid-2009 and early 2012. The General Counsel has never alleged that those unilateral actions were unlawful. A decertification petition was filed with the Board in 2012. The Union prevailed in the resulting election and was certified again. The Respondent first resisted con- tinuing bargaining after the election because it claimed circumstances had not sufficiently changed to break the earlier impasse. After charges were filed with the Board, the Respondent entered into a unilateral informal settle- ment agreement where, without admitting the allegations, it agreed to resume bargaining. The agreement was ap- proved by the Regional Director for Region 13 on July 8, 2013. The parties thereafter had two bargaining sessions on October 31, 2013, and December 11, 2013. At the December 11 meeting, the Union presented the infor- mation request at issue in this case, and the meeting and subsequent bargaining halted when the Union required the Respondent to furnish the requested information be- fore it would continue bargaining. On July 10, 2014, the Respondent received a decertification petition purporting to bear the signatures of 16 employees from the 26- employee unit, and it withdrew recognition that day. II. THE DECEMBER 11, 2013 INFORMATION REQUEST A. Facts At the October 31, 2013 meeting, the Union presented an economic proposal that included wage increases, ex- panded overtime compensation, and improved vacation policies. There was a lengthy discussion about how the Union thought it was unfair that employees had not re- ceived raises in the past few years, and the Respondent defended that its wages fit the business environment. Specifically, William Miossi, the Respondent’s principal spokesman, provided the following reasons:  Economic conditions had not changed, but if anything, they were weaker. The Respondent was doing the best it could and had kept every- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 one employed. In fact, employee morale had been good, and there had been little turnover.  Production volume was down, and the Re- spondent faced increased costs, increased taxes, and downward pressure on pricing.  Competitors, including “the steel mills,” were attempting to take business away from the Re- spondent and business was moving to Texas and Alabama.  Although the Respondent had hoped conditions would improve following the recession, busi- ness had softened from 2010 to 2013. The Re- spondent’s revenue was dependent on the num- ber of tons processed, and business was not what it was 10, 20, or 30 years ago. Both vol- ume and price were down.  The “iceberg” the Respondent was on “is melt- ing.” The business had changed and businesses that the Respondent competes with had changed. Miossi was explicit during these discussions that the Re- spondent was not and never had claimed it was unable to pay what the Union proposed. At the parties’ December 11 meeting, the Union pre- sented the following written information request: Based on the Company’s position, representations and explanation as to why it cannot agree to the Union’s economic proposals and why the Company cannot re- scind pay cuts and grant pay increases and other eco- nomic improvements to bargaining unit employees, the Union is requesting the following financial and eco- nomic information to be provided as soon as possible: Audited financial reports for the past 4 years. These should include complete balance sheets, income state- ments, and statements of cash flow together with foot- notes and detailed supporting schedules. Supporting schedules should include cost of goods sold, including breakdowns of material costs, manufacturing over- head/burden, labor costs and supervisory, management, Company officers and other non-labor wages and bene- fits; and selling, general and administrative expenses. The above statement should be certified by an outside CPA. Provide the following financial reports: Detailed income statement. Detailed Balance Sheet Statement of Cash flows These reports should cover Actuals for 2010, 2011, 2012 and financial reports year to date 2013. Sales by customer for each of the last 4 years, current and projected for the next 3 years. A detailed explanation of the business conditions the Company is referring to and the specific changes that have occurred and the actual impact on the Company’s financial condition. Provide specific data, reports and analyses. Federal and State tax returns the Company filed for the last 4 years.3 In a December 16, 2013 email, the Respondent de- clined to produce most of the requested information be- cause it “has never asserted a financial inability to meet the Union’s wage demands.” It did provide a chart set- ting forth the tonnage of steel processed and revenue data for 2009, 2010, 2011, 2012, and the first 11 months of 2013, which showed a downward trend. In subsequent emails, the Union repeatedly insisted that it was entitled to the information requested because the Respondent was in fact claiming a financial inability to pay. The judge found that the Respondent’s statements dur- ing bargaining amounted to a claim that it was unable to pay the Union’s demands, and therefore, pursuant to NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), and Niel- sen Lithographing Co., 305 NLRB 697 (1992),4 the Un- ion was entitled to all of the requested information, and the Respondent violated Section 8(a)(5) and (1) by fail- ing to produce it. In the alternative, the judge stated that he would reach the same conclusion even if the Re- spondent had not asserted an inability to pay because the facts established that the Respondent refused to provide information that was relevant “to evaluate the accuracy of the Respondent’s assertions and to assist in preparing counterproposals” and thus must be provided under the principles in Caldwell Mfg. Co., 346 NLRB 1159 (2006). B. Analysis First, we disagree with the judge’s conclusion that, un- der Truitt and Nielsen, the Respondent claimed an inabil- ity to pay and therefore was required to open its financial records to the Union. When an employer bases its bar- gaining position on an asserted inability to pay, the union is entitled to request and review the employer’s financial records to assess the employer’s representations about its 3 The indented material above summarizes the relevant portions of the Union’s December 11, 2013 information request. It is not a verba- tim quote of the request, and certain excerpts have been omitted. 4 Affd. sub nom. GCIU Local 508 v. NLRB, 977 F.2d 1168 (7th Cir. 1992). ARLINGTON METALS CORP. 3 dire financial condition. But if an employer claims that concessions from the union are necessary for the em- ployer simply to avoid competitive disadvantage in the marketplace, the employer has no obligation to open its books and provide financial and competitor information when requested by the union. North Star Steel Co., 347 NLRB 1364, 1369–1370 (2006). Here, we find that the Respondent’s statements during bargaining amounted to an assertion of competitive dis- advantage rather than a present inability to pay. See, e.g., id. at 1370 (finding no claim of inability to pay where employer cited, as basis for its position, the poor state of the industry, diminishing future orders, and de- clining prices). In so finding, we observe that in com- municating its position, the Respondent focused primari- ly on external conditions and competitive pressures, i.e., an unfavorable economic climate, increased costs, the emergence of new competitors, and downward pressure on prices. Significantly, the Respondent never stated that it did not currently have sufficient assets to meet the Un- ion’s demands or that it would have insufficient assets to do so during the life of the contract, that it was in immi- nent danger of closing, or that acquiescence to the Un- ion’s demands would cause it to go out of business. In these circumstances, the judge’s finding that the Re- spondent asserted an inability to pay cannot stand. See, e.g., AMF Trucking & Warehousing, 342 NLRB 1125, 1126 (2004) (finding that the employer did not assert an inability to pay where it pointed to significant economic pressure but never asserted that the survival of the com- pany was at stake). In finding that the Respondent asserted an inability to pay, the judge relied in part on Miossi’s statement that the “iceberg . . . is melting.” When Miossi made this comment, however, he was speaking about how the Re- spondent’s business and competitors had changed. In this context, we find that Miossi’s statement was a char- acterization of the Respondent’s competitive environ- ment rather than a claim of a present inability to pay. Moreover, even if the Respondent’s statements could be interpreted as claiming an inability to pay, the Respond- ent clarified, explicitly and repeatedly, that it was not in fact claiming an inability to pay, which would negate any need to provide financial information. See Richmond Times-Dispatch, 345 NLRB 195, 198 (2005) (the em- ployer effectively contradicted any claim it was unable to pay when it clarified about a week later that “it was not unable to pay the bonus, but that it chose not to pay due to the economic conditions in the market”). Second, we also disagree with the judge’s alternative conclusion that the Respondent had to provide the re- quested information under the relevance standard in Caldwell. Information not pertaining to employees with- in the bargaining unit, such as the financial information requested here, is not presumptively relevant. Caldwell, 346 NLRB at 1159. But employers must still provide such requested information if the union shows relevance. Id. at 1159–1160. Information is relevant under Cald- well only if the union is seeking “specific information to evaluate the accuracy of the Respondent’s specific claims and to respond appropriately with counterpro- posals.” Id. at 1160. In response to the Respondent’s largely general state- ments about the tougher business environment, the Union here requested a broad range of detailed financial infor- mation, including an expansive report on business condi- tions and 4 years of audited financial reports, income statements, balance sheets, cash-flow statements, sales listed by customer, and Federal and State tax returns. The Union’s wide-ranging request cannot be fairly read to request specific information to validate specific claims. Cf. A-1 Door & Building Solutions, 356 NLRB 499 (2011) (requested information relevant where the union sought specific information on bidding after the respond- ent made specific claims about not being able to win bids against certain companies it had named); Caldwell, supra at 1159–1160 (requested information relevant where the union sought information such as the cost data of each of the respondent’s plants after the respondent claimed costs were lower at each of its other plants). We find, therefore, that the Union failed to show adequate rele- vance under Caldwell. Accordingly, we reverse the judge and conclude that the Respondent did not violate Section 8(a)(5) and (1) by failing to provide the requested information.5 III. ALLEGED SURFACE BARGAINING The judge found that under Mid-Continent Concrete, 336 NLRB 258 (2001),6 and related precedent, the Re- spondent violated Section 8(a)(5) and (1) by engaging in surface bargaining—bargaining in bad faith without the intention of reaching an agreement. In his assessment of the totality of the circumstances, the judge relied in large 5 The judge found, among other things, that the Respondent violated Sec. 8(a)(5) and (1) by providing the Union with “incomplete and mis- leading” tonnage production and revenue data. We disagree. Although the data the Respondent provided reflected only tonnage and revenue attributable to its “toll processing” work and did not include data for the “metal sales” portion of its business, all of the bargaining unit’s work was on the “toll processing” side of the business. The unit employees did not do any “metal sales” work, and there is no evidence that the Union’s bargaining representatives found the Respondent’s tonnage and revenue data to be misleading or incomplete. Accordingly, we reverse the judge’s finding. 6 Enfd. sub nom. NLRB v. Hardesty Co., Inc., 308 F.3d 859 (8th Cir. 2002). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 part on the Respondent’s failure to provide the infor- mation requested by the Union (which we have found lawful above), but he also cited what he viewed to be the Respondent’s refusal to consider anything more than a minor modification to its previously implemented terms and its failure to provide a reasonable explanation for its position. We again reverse the judge’s conclusion. We do not see any bad faith in the Respondent’s bargaining. Initial- ly, we question the focus of the complaint and judge’s decision on just two bargaining sessions in 2013. The parties had been in various states of deadlock for years over the course of approximately 37 bargaining sessions, and there is no basis for inferring bad faith by the Re- spondent for adhering to its prior good-faith bargaining positions. Indeed, the Union did much the same. At the first 2013 bargaining session, the Union presented the Respondent with a proposal that was very similar to what the Union had proposed before the 2012 impasse. Dur- ing the two bargaining sessions in 2013, the Respondent met with the Union for as long as it wanted, listened, and thoroughly discussed matters. Given the bargaining his- tory and that the parties were still so far apart, the fact that the Respondent made no more than a concession on unpaid time off for union business in two sessions is un- surprising and not indicative of bad faith. The Act, as Section 8(d) cautions, “does not compel either party to agree to a proposal or require the making of a concession,” and in this case it is apparent that neither side was willing to make anything more than minor con- cessions over several years of hard bargaining. Further, there is no evidence that the Respondent was unwilling to continue bargaining if the Union was willing to do so without all of the information requested on December 11, and there are no allegations of unlawful conduct by the Respondent away from the bargaining table that might color our view of its good-faith conduct at the table. As explained in the prior section, we find that the Re- spondent had no obligation to furnish the information the Union requested on December 11. Even so, the Re- spondent substantiated its claims about the tougher busi- ness environment by providing data from the last 5 years on the tonnage of steel processed and revenue received. Through this information and other discussion, the Re- spondent made good-faith attempts to explain its posi- tion. We therefore conclude that the Respondent did not violate Section 8(a)(5) and (1) by engaging in bad-faith surface bargaining. IV. WITHDRAWAL OF RECOGNITION The judge relied on two grounds in finding that the Respondent violated Section 8(a)(5) and (1) by with- drawing recognition from the Union in reliance on the decertification petition it received on July 10, 2014: (1) there was a causal relationship between the unfair labor practices he found (the unlawful failure to provide the requested information and surface bargaining) and the petition, which tainted it under Master Slack Corp., 271 NLRB 78 (1984), and (2) the Respondent failed to prove that the Union had actually lost majority support as re- quired by Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). Because we do not find the unfair labor practices the judge relied upon in his Master Slack analy- sis, we neither find the petition tainted nor the Respond- ent’s withdrawal unlawful on that basis. The judge’s Levitz Furniture rationale requires more discussion. Under Levitz Furniture, an employer may withdraw recognition from a union only if it has “objective evi- dence that the union has lost majority support—for ex- ample, a petition signed by a majority of the employees in the bargaining unit.” Id. at 725. An employer with- draws recognition “at its peril,” however, because “[i]f the union contests the withdrawal of recognition in an unfair labor practice proceeding, the employer will have to prove by a preponderance of the evidence that the un- ion had, in fact, lost majority support at the time the em- ployer withdrew recognition.” Id. “[W]here an employ- er relies on an employee petition for evidence of the un- ion’s loss of majority support, it is the Respondent’s ob- ligation to authenticate the petition signatures on which it relies.” Latino Express, Inc., 360 NLRB 911, 925 (2014) (citing Ambassador Services, 358 NLRB 1172, 1172 fn. 1, 1182 (2012), incorporated by reference in 361 NLRB 939 (2014)); see also Flying Foods, 345 NLRB 101, 103–104 (2005). The only evidence presented at the unfair labor prac- tice hearing regarding the authenticity of the 16 signa- tures on the decertification petition, upon which the Re- spondent relied, was from Executive Vice President Timothy Orlowski. Orlowski testified that the signatures appeared valid to him based on his experience seeing the signatures many times, but he conceded that he was not very familiar with the signatures of some newer employ- ees. The judge found that Orlowski’s testimony was only sufficient to confirm the validity of 10 of the signa- tures and did not prove the authenticity of the other six signatures from new employees Andres Coronel, Bren- don de la Cruz, Christopher Keiler, Michael Krasinski, Anthony Menotti, and Brandon Trezzo. The judge there- fore found that the Respondent failed to prove that a ma- jority of the 26 employees in the unit signed the decerti- fication petition, and therefore that it violated Section 8(a)(5) and (1) by withdrawing recognition when the Union had not actually lost majority support. ARLINGTON METALS CORP. 5 For the following reasons, we find it unnecessary to address the judge’s signature-authentication findings. After the issuance of the administrative law judge’s deci- sion, the United States District Court for the Northern District of Illinois issued a decision—of which we take judicial notice here—denying the Regional Director’s request for injunctive relief pursuant to Section 10(j).7 Regarding the administrative law judge’s finding that the Respondent unlawfully withdrew recognition, the district court judge found that, before and during the unfair labor practice hearing, counsel for the General Counsel had “repeatedly confirmed that [they were] not challenging the validity of the petition.” But on the second and final day of the unfair labor practice hearing, counsel for the General Counsel put the authentication of the signatures at issue. The district court judge concluded that “[coun- sel for the General Counsel’s] shifting stance toward the petition’s validity resulted in a lack of relevant evidence before the ALJ and, accordingly, deprived [the Respond- ent] of the opportunity to present further evidence.” In addition, “[t]he ALJ did not have the opportunity to ex- amine the demeanor or review the testimony of any em- ployees before ruling on the petition’s validity.” The district court judge noted also that, as part of the record in the 10(j) hearing, the Respondent elicited testimony from 10 employees who had signed the petition, 9 of whom testified that they had signed the petition of their own volition, free from input, threats or rewards from the Respondent. This included uncontroverted testimony from the six employees—Coronel, de la Cruz, Keiler, Krasinski, Menotti, and Trezzo—whose signatures Or- lowski could not verify at the unfair labor practice hear- ing.8 In light of the district court’s finding that the Respond- ent, at the unfair labor practice hearing, was deprived of a full opportunity to present evidence establishing the validity of the petition, we find it appropriate here to consider the evidence of authentication that the Re- spondent adduced at the subsequent 10(j) proceeding.9 This evidence—in tandem with the administrative law judge’s findings—establishes that the Respondent relied upon a valid petition, signed by 16 of 26 unit employees, in withdrawing recognition from the Union. We thus find that the Respondent has proven that the Union had 7 See Ohr v. Arlington Metals Corp., No. 15-CV-8885 (N.D. Ill. Dec. 1, 2015) (denying the General Counsel’s 10(j) petition). 8 Trezzo, in contrast to the other employees, could not remember the circumstances surrounding his signing of the petition, but he confirmed his signature was real and that he does not want to be represented by the Union. 9 Because we take judicial notice of the district court decision and accompanying record in the 10(j) proceeding, we find it unnecessary to pass on the Respondent’s motion to reopen and supplement the record. lost majority support when it withdrew recognition on July 10, 2014, and we reverse the judge’s conclusion that the Respondent’s withdrawal of recognition violated Sec- tion 8(a)(5) and (1).10 ORDER The complaint is dismissed. Dated, Washington, D.C. September 13, 2019 ______________________________________ John F. Ring, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ William J. Emanuel Member (SEAL) NATIONAL LABOR RELATIONS BOARD Melinda Hensel and Daniel Murphy, Esqs., for the General Counsel. William Miossi, Derek Barella, and Benjamin Ostrander, Esqs., for the Respondent. Stephen Yokich, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE MARK CARISSIMI, Administrative Law Judge. This case was tried in Chicago, Illinois, on April 27–28, 2015. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO (USW) (the Union or International Union), filed the charge in Case 13–CA–122273 on February 10, 2014, the charge in Case 13–CA–125255 on March 26, 2014, and the charge in Case 13–CA–133055 on July 18, 2014. On Septem- ber 30, 2014, the General Counsel issued an order consolidating cases, consolidated complaint, and notice of hearing (the com- plaint). On March 12, 2015, the General Counsel issued a first amended consolidated complaint and on April 23, 2015, the General Counsel issued an amendment to paragraph VIII(b) of the complaint. The Respondent filed an answer to the com- plaint, as amended, denying the substantive allegations of the complaint. The complaint alleges that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act by: since December 16, 2013, 10 The Respondent relied on the withdrawal of recognition to deny the Union’s post-withdrawal request for access to conduct a health and safety inspection. Because we find the withdrawal of recognition law- ful and thus the Union had no right of access, we also reverse the judge’s finding that the Respondent’s denial of access violated Sec. 8(a)(5) and (1). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 refusing to provide the following relevant and necessary finan- cial information to the Union: “Audited financial statements for the past 4 years certified by an outside CPA”; “Financial re- ports for 2010–2013 to date” which include “a detailed income statement, a detailed balance sheet, and a statement of cash flows”; “Sales by customer for each of the last 4 years (2009– 2012) and current (2013) and projected sales for the next 3 years (2014–2016); “An explanation of the Employer’s busi- ness conditions, including specific changes that have occurred and the actual impact on the Employer’s financial condition. Provide specific data, reports and analysis”; and “Federal and state tax returns for the last 4 years (2009–2012).” The complaint further alleges that the Respondent violated Section 8(a)(5) and (1) during the period from October 13, 2013, through December 11, 2013, by engaging in “bad faith and/or surface bargaining by, bargaining with no intent to reach agreement, insisting upon the terms of its 2012 implemented contract terms” and refusing to provide the information noted above. Finally, the complaint alleges that the Respondent vio- lated Section 8(a)(5) and (1) by withdrawing recognition from the Union on July 10, 2014, and, on the same date, refusing to allow the Union access to its facility the for the purpose of performing a health and safety inspection. On the entire record, including my observation of the de- meanor of the witnesses,1 and after considering the briefs filed by the General Counsel, the Respondent and the Union, I make the following FINDINGS OF FACT JURISDICTION The Respondent, an Illinois corporation with an office and place of business in Franklin Park, Illinois, is engaged in the business of steel slitting and blanking. Annually, the Respond- ent, in conducting its business operations described above, purchases and receives at its Franklin Park, Illinois, facility goods valued in excess of $50,000 directly from points outside the State of Illinois. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 In making my findings regarding the credibility of witnesses, I have considered their demeanor, the content of the testimony, and the inherent probabilities based on the record as a whole. In certain in- stances, I credited some, but not all, of what a witness said. I note, in this regard, that “nothing is more common in all kinds of judicial deci- sions than to believe some and not all” of the testimony of a witness. Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp. 179 F.2d 749, 754 (2d Cir. 1950) revd. on other grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC, 349 NLRB 939, 939–940 (2007). In addition, I have carefully consid- ered all the testimony in contradiction to my factual findings and have discredited such testimony. ALLEGED UNFAIR LABOR PRACTICES Background and Overview The Respondent is involved in cutting and slitting steel for customers at its two locations in Franklin Park, Illinois and Sawyer, Michigan. This proceeding involves only the Franklin Park, Illinois, facility. According to the testimony of Timothy Orlowski, the Respondent’s executive vice president, at the Franklin Park facility the Respondent’s operations fall into two categories: toll processing and metal sales. In toll processing the Respondent’s customer buys steel coils from a steel mill and the Respondent cuts the coils into specific widths and lengths as specified by the customer. The Respondent is a con- signee and does not take title to the steel; rather the Respondent charges a “tolling fee” to cut the steel to the customer’s specifi- cations. Orlowski described metal sales as a process in which the Respondent buys steel from a steel mill and cuts it to specif- ic dimensions and then sells the processed steel to customers. Toll processing comprises approximately 80 percent of the Respondent’s operations, while metal sales constitute the re- maining 20 percent. In 2007, after the Union conducted an organizing campaign at the Respondent’s Franklin Park facility, a Board election was conducted in which the Union received a majority of the valid ballots cast. On October 10, 2007, the Union was issued a certi- fication of representative as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production, maintenance, and shipping and receiving employees employed by the Em- ployer at its facility currently located at 11355 Franklin Ave- nue, Franklin Park, Illinois; but excluding office clerical em- ployees and guards, professional employees and supervisors as defined in the Act. At the time of the Union’s certification there were approxi- mately 52 employees in the bargaining unit. After the Union was certified, it assigned the bargaining unit to the United Steel Workers Amalgamated Local 7773 (the Local) as it was within the Local’s jurisdiction. Pursuant to the Union’s2 request, col- lective-bargaining negotiations between the parties began in approximately November 2007. Local president Frank Shubert and representatives from the International Union represented the Union while attorney Greg Malovance was the Respond- ent’s chief spokesperson. The parties had a number of meetings throughout 2008 that were principally focused on noneconomic items and reached tentative agreement on most of those issues. In November 2008, the parties began to discuss economic is- sues. In January 2009, Malovance retired and his partner, Wil- liam Miossi, became the Respondent’s chief spokesperson. After the Union’s certification as the bargaining representa- tive in the fall of 2007, the Respondent began to suffer a de- cline in business because of the recession. According to infor- mation provided by the Respondent to the Union in October 2011 (CP Exh. 3; Tr. 409, 453–454) the Respondent suffered 2 For the most part, I will refer to the International Union and the Local Union collectively as the Union ARLINGTON METALS CORP. 7 losses from 2007 through October 2011. This document reflects that in 2006 the Respondent processed 201,867 tons of steel with 52-unit employees and had a profit of $1229. In 2007 the Respondent processed 154,307 tons of steel with 48 employees and experienced a loss of $656,442. In 2008 the Respondent processed 143,371 tons of steel with 40-unit employees and suffered a loss of $965,403. In 2009 the Respondent processed 100,854 tons of steel with 24-unit employees and suffered a loss of $964,009. In 2010 the Respondent produced 126,912 tons with 24-unit employees and suffered a loss of $452,170. In 2011 through October 5, 2011, the Respondent had produced 64,351 tons with 24-unit employees and had incurred a loss of $361,000. The Respondent projected its annual loss that year to be $722,000. The first meeting between the parties in which Miossi served as the Respondent’s principal spokesman occurred in March 2009. William Gibbons, a retired codirector of district 7 of the International Union, also began to attend the negotiation meet- ings in 2009 pursuant to the request of Jose Gudino, the subdi- rector of district 7, subdistrict 1 of the International Union. While the Respondent had proposed a wage increase of an un- determined amount in November 2008, in March 2009, the Respondent withdrew that proposal and Miossi indicated to the Union that the Respondent had to process 180,000 tons of steel before it could give a wage increase.3 Miossi testified that during meetings held with the Union in the early part of 2009, he told the Union that the Respondent needed to process 180,000 tons a year in order to break even (Tr. 402). Miossi further testified, that prior to relying that in- formation to the Union, Timothy Orlowski had informed him that the Respondent needed to process 180,000 tons in order to break even, without explaining it in any further detail (Tr. 404). Miossi admitted that in 2009 he told the Union that the Re- spondent was losing money (Tr. 407). In May 2009, after the Union had rejected its final offer, the Respondent declared that the parties were at an impasse. The Respondent unilaterally implemented its final offer on August 3, 2009. In the final offer that was implemented (R. Exh. 3), the Respondent reduced the wages of existing employees and insti- tuted a “Tier #2 Rate” for all employees hired after the imple- mentation of its proposal. The Tier 2 rate was generally lower than the unilaterally implemented rate of pay for current em- ployees. The various rates were set forth in the implemented offer as “Appendix A, Wage and Classification schedule.” Footnote (d) of Appendix A indicates: The Company will re-store (sic) the wage rates in effect im- mediately prior to the effective date of this Agreement if in a twelve-month period immediately following the effective date of this Agreement the Company processes 180,000 tons of steel. Lump Sum: The Company will pay each employee a lump- sum bonus on or around the 30th month following the effec- tive date of this Agreement, if during the second full year of 3 I base this finding on Shubert’s uncontradicted and credited testi- mony regarding the March 2009 negotiation meeting (Tr. 134-135) and admissions made by Miossi during his testimony (Tr. 399-401). this Agreement the Company processes 180,000 tons of steel. Such lump-sum payment will be equal to 1% of the employ- ee’s previous years lowest base rate multiplied by 2080. While the record reflects that the parties met approximately 35 times in collective-bargaining negotiations between Novem- ber 2007 and January 1, 2012, there is no record evidence re- garding any meetings held in 2010. On April 7, 2011, the Re- spondent proposed a number of changes to the terms that it had unilaterally implemented in August 2009. The Union requested bargaining over the proposed changes and the parties met 9 times between April 2011 and December 7, 2011. At the meet- ing held on December 7, 2011, the Respondent declared an impasse and announced its intention to implement the terms of its final offer on January 2, 2012. This final offer amended the 2009 unilaterally implemented terms and conditions of em- ployment. In a letter to the Union dated December 9, 2011 (R. Exh. 4), Miossi summarized the changes contained in the Respondent’s November 2011 final offer. This letter indicated that the pro- posal was to be implemented on January 1, 2012, and would eliminate the 10 minute rest period for unit employees that was set forth in article 7.2 of the 2009 unilaterally implemented proposal. The letter further indicated that article 8.2 of the pro- posal to be implemented on January 1, 2012, would “amend the provisional provision for overtime after working 8 hours in a day if the employee has worked a full 40 hour schedule during that week.”4 The letter also indicated that the proposal to be implemented on January 1, 2012, would eliminate the shift differential set forth in article 10 of the 2009 implemented pro- posal. Finally, the December 9, 2011 letter indicated that, effec- tive on January 1, 2012, the Respondent would provide com- panywide only a Health Savings Account (HSA) option for health insurance. The letter further provided that in an effort to meet the Union’s concerns for calendar year 2012 only, the Respondent would continue as options that employees could also elect the existing PPO, and an added HMO option. Em- ployees opting to continue the PPO or selecting the HMO would pay the percentage of the premium stated in appendix B to the implemented terms +100 percent of the total difference between the HMO premiums and the HSA/PPO premiums. Finally, the letter noted all other 2009 implemented terms would remain unchanged. In the letter, Miossi indicated “so there is no misunderstanding, our final proposal is just that- final. We have done the best we can do to treat and reward our employees fairly, protect their job security and at the same time remain competitive in our industry.” On January 1, 2012, the Respondent implemented its final proposal as summarized in 4 Art. 8.2 of the 2009 unilaterally implemented proposal provided that: Time and one-half (1 1/2) the employee's regularly hourly rate shall be paid for all hours worked over eight (8) hours in any workday: provid- ed, however, that the employee must have worked all of his scheduled hours in the workweek. This Section shall only apply when the regu- larly scheduled workweek consists of five (5) 8 hour work days; pro- vided that an employee will be considered to have worked all of his scheduled hours if the Company decides during any such week less than forty (40) hours of work will be made available. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Miossi’s December 11, 2011 letter. The parties met on March 15, 2012, and the Union made a proposal which the Respondent rejected. In June 2012, the Un- ion again requested to meet and bargain, but the Respondent declined the request. The Respondent expressed the position that the parties were in an impasse and that the Respondent did not believe there were sufficiently changed circumstances to break the impasse. Pursuant to a petition filed in Case 13–RD–068844, an elec- tion was conducted at the Respondent’s Franklin Park facility in July 2012. The Union received a majority of the valid votes cast and on July 31, 2012, the Union was again certified as the bargaining representative for the employees in the unit de- scribed earlier in this decision. In September 2012, the Union requested that the Respondent meet and bargain but the Re- spondent again declined based on its position that the parties were still an impasse. Thereafter, the Union filed unfair labor practice charges and on July 8, 2013, Regional Director for Region 13 approved a unilateral informal settlement agreement in Cases 13–CA– 90888, 13–CA–101632 and 13–CA–105007. The settlement agreement, which contained a nonadmission clause, provided, inter alia, that the Respondent would, upon request, meet and bargain in good faith with the Union and grant access to the Union’s representatives, for a reasonable period and at a rea- sonable time, to investigate health and safety concerns. The settlement agreement also extended the Union’s certification year for 1 year from the date of the approval of the settlement agreement. The September and October 2013 Meetings In late August 2013, Gudino sent an email to Miossi asking him to indicate available dates to discuss the recent discharge of the Union’s steward at the Franklin Park facility, Frederico Ceja, and to schedule negotiation meetings. The parties agreed to meet on September 12, 2013, to discuss the discharge of Ceja and some insurance issues. The parties also agreed to start the meeting at 8:30 a.m. on September 12, because Miossi had to leave for another scheduled meeting at noon (R. Exh. 5). On September 12, 2013, the parties met at the Courtyard Marriott in Elmhurst, Illinois. Present for the Respondent were Miossi and Sharon Orlowski, who is involved in non-steel pur- chasing for the Respondent, and functioned as the Respondent’s note taker at the meeting. Present for the Union were Gibbons, Gudino, and Shubert. Ceja was also present at the meeting. The meeting was devoted principally to a discussion about the cir- cumstances surrounding Ceja’s discharge. Miossi indicated to the Union that the Respondent would not reinstate Ceja. Gib- bons requested that the Respondent agree to arbitrate Ceja’s but Miossi denied the request to arbitrate on the basis that the par- ties had not reached a collective-bargaining agreement. The parties then discussed insurance issues involving two employ- ees, Szymanski and Fudala, who were not actively working and were on some form of disability status. The parties did not re- view the status of negotiations as a whole at this meeting. After this meeting, the parties agreed to meet for collective- bargaining on October 31, 2013. The October 31, 2013 meeting took place at the same loca- tion as the September 12 meeting. Present for the Union were Shubert, Gibbons, and Gudino. Bargaining unit employees Antoni Golik, and Alfred Karas also attended. Present for the Respondent were Miossi and Sharon Orlowski.5 Gibbons was the chief spokesperson for the Union and Miossi did all the speaking for the Respondent. The meeting began by Gibbons stating that the parties had not had a collective-bargaining meeting for a long time, and that the Union wanted to negotiate a contract that would be beneficial to both parties. Gibbons stated that the Union had an eleventh proposal to make and that it represented a substantial change in its position, but before he gave it to the Respondent he wanted to share with it documents that he had prepared illustrating the significant and substantial economic losses that the Respondent’s employees had suffered in the last couple of years. At this point, Gibbons gave to the Respondent a document that he had prepared entitled “Econom- ic Adverse Impact of AMC’S Proposals on Employees” (GC Exh. 6) which contained the following: Likelihood that employees will not receive a wage increase in 8 years. Employees suffered an approximate 90 cents per hour pay cut in 2009. The economic impact on employees due to inflation-cost-of- living alone from 2006 to 2013 results in over a 13% loss in earning power. The projected estimated loss in earning due to inflation-cost- of-living will result in an additional 4% loss in earnings if the employees do not receive a wage increase. The combined economic impact due to the cost-of-living on employee’s earnings And spendable income will equal an es- timated loss of over 17% or over $2.50 an hour. When the impact of the approximate $.90 per hour pay cut is included the total earnings -income loss is over $3.40 per hour or over $7000 per employee per year on a straight time basis. When the economic adverse impacts of the group insurance premiums are considered there is an estimated loss of an aver- age of over $.30 per hour in premiums alone. This equals a combined loss of almost $4. 00 per hour. When the out-of- pocket costs of the changed Health Care plan (HSA) is con- sidered the cost could exceed $5000 per year or an additional $2.40 cents perhour. The total potential adverse impact of the Company’s proposal 5 In making my findings regarding what occurred at the bargaining session conducted on October 31, I have relied principally on the cred- ited testimony of Gibbons and Shubert and the contemporaneous notes that Shubert made of the bargaining session (GC Exh. 5). The detailed testimony of Gibbons is corroborated by Shubert’s testimony and is consistent with Shubert's notes. I have also relied on the typewritten notes that Sharon Orlowski prepared from handwritten notes that she took at the meeting (R. Exh. 15). Orlowski’s notes are generally con- sistent with the testimony of Gibbons and Shubert and the notes taken by Shubert. To the extent that the testimony of Miossi conflicts with that of Gibbons and Shubert I do not credit it. Miossi's testimony was more generalized than that of Gibbons and Shubert and I generally find their testimony to be a more reliable version of the events. ARLINGTON METALS CORP. 9 could equal an estimated $6.40 per hour loss to employees or over $13,000 per year. (Emphasis in the original.) The above numbers do not take into consideration that the Company is experiencing an hourly labor cost savings of ap- proximately $3.67 per hour as a result of the termination of the rest break periods. (Emphasis in the original.) Gibbons went through each point of the document and fur- ther explained how he had calculated the employee losses set forth in the document.6 Miossi told Gibbons that business con- ditions had not changed; if anything they were weaker and that the Respondent was doing the best it could and had kept every- one employed. Miossi added that debating these issues does not change the facts. Gibbons then gave Miossi a document entitled “Union’s Eleventh Economic Proposal October 31, 2013” (GC Exh. 8). Gibbons told Miossi that this proposal was a modification of the Union’s prior proposal. The Union’s proposal sought to change article 8, section 2 “Overtime Compensation” of the Respondent’s unilaterally implemented 2012 proposal by elim- inating the requirement that in order to be eligible for overtime pay for all hours worked on a Saturday, Sunday, or paid holi- day, an employee must have worked the required 40 hours per work week in order to qualify for the time and one-half rate. The Union’s proposal also sought to include in article 8, section 4, and time off for union business in calculating the hours worked in order to be eligible to receive overtime pay. The Union’s proposal also sought enhancements to the implemented vacation proposal in article 22. With respect to wages, para- graph 4 of the Union’s proposal provided: Wages: Re-storing wages previously in effect: a mathematical formu- la to be establish (sic) to reflect production per employee that is equal to the 180,000 ton average per year based on the av- erage per capita employee count over a more current twelve- month period based on a representative employee head count.When the equivalent tonnage per employee is reached on the average over a consecutive (12) twelve month period the wages previously in effect before theCompany reduced such wage rates to be restored-reinstated and replace those currently in effect in addition to any wage increases provided herein. (Based on the receipt of recent information we need to discuss and review whether or not this number is reasonably attainable and if not what number would be). (Emphasis in the original.) Effective upon ratification each bargaining unit employee will be given a $1000 lump sum payment within seven (7) days 6 At the hearing, Gibbons explained that the Respondent’s final of- fer that was unilaterally implemented in 2009, and unilaterally imple- mented with modifications in 2012 (GC Exh. 4), formed the basis for his assessment that employees had experienced a 90-cent-an-hour pay cut since 2009. (Tr. 189.) Gibbons further explained that according to footnote d of the Wage Appendix attached to the Respondent's unilater- ally implemented proposal, in order for the employees to return to the wage schedule in effect in 2007 and 2008, the Respondent would have to process 180,000 tons of steel in the 12-month period immediately following the effective date of the agreement. (Tr. 190.) following ratification. Effective 1/1/14: A general wage increase of 35cents per hour. Effective 1/1/15: A general wage increase of 40 cents per hour. Effective 11/1/15: A general wage increase of 3%. d. Modify the starting pay to equal an amount above the State minimum. The Union’s proposal with respect to health care insurance provided that employees have the option to select one of the following plans: a PPO plan with any cost exceeding the cost of the HSA plan to be paid by the employee; and employee HSA savings account in which the Company contributes $1000 per year; and a HMO plan with any costs that exceeds the cost of the HSA planned to be paid by the employee. With regard to the Union’s wage proposal, Gibbons told Mi- ossi that based upon the information that the Union had re- ceived from the Company regarding the tons of steel processed from 1997 until the present, it showed that the Respondent had only reached the 180,000 ton level on six occasions, with the last two occurring in 2002 and 2006 7 Gibbons indicated that he did not think the 180,000 ton trigger made any sense under the circumstances and the parties needed to come up with a reason- able number that was attainable. Gibbons pointed out that the 180,000 ton level of production was obtained with approxi- mately 54 unit employees. Gibbons indicated that on average each employee produced 3333 tons in order to arrive at the 180,000 ton level. Gibbons further indicated if the recent level of production of 116,208 tons of steel processed was divided among the present 26 unit employees, it indicated that each unit employee averaged approximately 4,469 tons of steel pro- cessed. Gibbons pointed out that those figures represent a 40 percent increase in productivity. Gibbons stated that, under the circumstances, the formula proposed by the Respondent that there must be 180,000 tons of steel processed annually in order for employees to achieve a wage increase from their present level, did not seem to be relevant and was unfair, as it appeared it would not be met in the foreseeable future. Gibbons then asked the Respondent to look at a reasonable trigger for the employees to receive a wage increase. Gibbons also stated that the Union did not know what the Respondent’s business plan was or whether it was making money or not. Miossi replied that the level of tons of steel processed was re- lated to the operating costs of the business and it was not relat- ed to profit or loss.8 Miossi said the owners of the Respondent 7 The notes of Shubert and Orlowski make reference to Gibbons stating the Respondent had exceeded that level six times during that period. Tonnage information provided by the Respondent to the Union (CP Exh. 1 and GC Exh. 12) establishes that the Respondent exceeded the 180,000 ton limit on 6 occasions from 1997 through 2013, with the last two occurring in 2002 and 2006. Accordingly, I do not credit Gib- bon’s testimony that he told Miossi that the 180,000 ton level was reached only twice, in 2002 and 2006 (Tr. 194) as it conflicts with the objective evidence and the notes taken by each party. 8 At the hearing, Timothy Orlowski testified that he considered the processing of 180,000 tons of steel to be the proper utilization of the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 were not applying the same analysis as the Union. Gibbons pointed out that the Respondent’s labor costs were reduced by approximately 50 percent because of the decrease in the number of production employees. Miossi replied that vol- ume was also down and that the Respondent was confronted with increased costs; taxes had gone up and there was down- ward pressure on pricing. Gibbons asked Miossi to explain how the employees could attain the 180,000ton threshold in order to receive a wage in- crease. Miossi did not respond to this question directly but merely said that business conditions were worse and the Re- spondent had increased costs and competition. Miossi added that competitors were attempting to take business away from the Respondent. When Gibbons asked who the competitors were, Miossi said “the steel mills” and mentioned business being moved to Texas and Alabama. Gibbons stated that the bottom line was whether the Compa- ny was making money and was profitable enough to grant a wage increase. Miossi replied that business conditions had not changed, business had softened in 2010–2013 and the Re- spondent was hopeful business would come back, but it had not. Miossi added that the Union had seen the volume of pro- duction. Miossi also stated that the Respondent was not a “wel- fare agency.” Gibbons asked whether the Respondent was mak- ing money and could afford to give a wage increase because employees had their pay cut and had not had a wage increase in 8 to 10 years. Miossi responded that the Respondent has a right to maintain its profit and loss information privately. Miossi added that Respondent was not claiming an inability to pay the Union’s demands and never had.9 Gibbons then stated that the employees were working 40 percent harder and that a basic sense of fairness would indicate a wage increase should be given unless the Respondent cannot pay one. Miossi replied that their discussion was turning into a debate and that the fundamentals had not changed since 2009. Gibbons stated the Union wanted to have an agreement with the Respondent and would be willing to waive its request for a wage increase and accept a lump-sum payment of 1000 dollars upon ratification of the contract, but that the Union would pre- fer for employees to have an hourly wage increase. Miossi re- plied that the Union is asking the Respondent to make a com- equipment (Tr. 78). Orlowski further testified that " [A]s the owner, it’s in fact my prerogative to want 180,000 tons want to my assets utilized (Tr. 80-81). In his testimony, Orlowski did not relate the processing of 180,000 tons of steel to the operating costs of the business. 9 There is no dispute in the testimony of Gibbons, Shubert and Mi- ossi and the notes of Shubert and Sharon Orlowski regarding the fact that Miossi stated at the meeting that the Respondent had a right to maintain its profit and loss information privately. Sharon Orlowski's notes specifically indicate that Miossi also stated that the Respondent was not claiming an inability to pay and never had. (R. Exh. 15, p. 2.) Her notes on this point are corroborated by Miossi's testimony (Tr. 361). Shubert's notes are not as detailed as Orlowski's on this particular point and neither Gibbons nor Shubert specifically denied that Miossi made such a statement. I find that since it is undisputed that Miossi stated that the Respondent had the right to maintain its profit and loss information privately, it is inherently plausible that he also stated, as a basis for this position, that the Respondent was not claiming an inabil- ity to pay the Union's wage demands and never had. mitment not knowing its future revenue and that the Union was not taking a look at the whole picture. Gibbons stated that the reality is whether the Respondent was making money or not and that the Union was willing to look at a profit-sharing agreement. Gibbons again stressed that the employees had not had a wage increase in 10 years. Miossi replied that the Re- spondent suffered through the recession and demand had gone down as well as pricing. Gibbons responded that if things do not change the employees will never get a raise. Miossi replied that revenue is dependent upon the number of tons processed and that business is not what it was 10, 20, or 30 years ago. Gibbons stated that the Respondent’s competitors have granted wage increases. Miossi responded that the Respondent was paying fixed wages and benefits and was making payroll every week. Miossi added that the Respondent was not going to grant a wage increase just to get an agreement. Miossi noted that morale was positive and that few employees had left and that employees had a good relationship with management. Gib- bons reiterated that the 180,000 ton threshold before a wage increase would be granted was unrealistic and asked about a profit-sharing program. Miossi told Gibbons to make a proposal as the Respondent had implemented terms that it believed was the best it could do. Gibbons then stated that the Union’s health care proposal remained the same and asked if anything had changed regard- ing the premiums. Miossi replied that he was not sure but would find out. Gibbons then noted that the Respondent had a 401(k) plan but that the Respondent did not make any contribu- tions to the plan. He asked if the Respondent would consider making matching contributions. Miossi told Gibbons to make a proposal on the issue. At that point the parties caucused. When Miossi returned to the meeting, he told Gibbons that he had discussed the Union’s proposal with the “owners” and that it had been rejected. Mios- si stated that business conditions had not changed and that the Respondent was confronted with additional downward price pressures, that competitors were going after their business and that the Union’s offer was not acceptable. When Gibbons asked Miossi how the parties were going to get the situation resolved, Miossi replied that the Union could accept the Respondent’s implemented proposal. At that point the parties discussed scheduling another bargaining meeting and agreed to meet on December 11, 2013. On November 11, 2013, Miossi sent the following email (GC Exh. 9) to Gibbons and Gudino: Arlington Metals has considered the proposal you presented at our meeting on October 31. The Company will accept your proposal for unpaid time off for union business, but with the following limitations: it would apply to only one person for a maximum of 20 hours per year. The remaining proposals are not acceptable because they are not reasonable given the state of the business. Arlington Metal stands on the current Imple- mented Terms. We are available to discuss at our next meet- ing or you can contact me sooner if you prefer. There was no further contact between the parties until the scheduled December 11, 2013, collective-bargaining meeting. ARLINGTON METALS CORP. 11 The December 11, 2013 Meeting The December 11, 2013 meeting was held at the same loca- tion. Present for the Union were Gibbons, Gudino, and Shubert and employees Golik and Karas, Miossi, and Sharon Orlowski were present for the Respondent. At the beginning of the meet- ing, Gibbons gave Miossi an information request (GC Exh. 11). The portions relevant to this case provide as follows: Based on the Company’s position, representations and expla- nation as to why it cannot agree to the Union’s economic pro- posals and why the Company cannot rescind pay cuts and grant pay increases and other economic improvements to bar- gaining unit employees, the Union is requesting the following financial and economic information to be provided as soon as possible: Audited financial reports for the past 4 years. These should include complete balance sheets, income statements, and statements of cash flow together with footnotes and detailed supporting schedules. Supporting schedules should include cost of goods sold, including breakdowns of material costs, manufacturing overhead/burden, labor costs and supervisory, management, Company officers and other non-labor wages and benefits; and selling, general and administrative expenses. The above statement should be certified by an outside CPA. Provide the following financial reports: Detailed income statement. Detailed Balance Sheet Statement of Cash flows These reports should cover Actuals for 2010, 2011 2012 and financial reports year to date 2013. Sales by customer for each of the last 4 years, current and pro- jected for the next 3 years. A detailed explanation of the business conditions the Compa- ny is referring to and the specific changes that have occurred and the actual impact on the Company’s financial condition. Provide specific data, reports and analyses. Federal and State tax returns the Company filed for the last 4 years. After Gibbons gave the Union’s information request to Mi- ossi, he replied that the Respondent would review it and re- spond as appropriate but that the Labor Board had looked at this 15 times and had agreed that the Respondent did not have to provide such information.10 Gibbons stated that the Union had pointed out at the last meeting the unreasonableness of the Respondent’s position on the wage cuts and the lack of a pay increase. Miossi replied that the Respondent had given the Un- ion a reasonable response to its proposal. Miossi stated that the 10 In making my findings regarding the December 11, 2013 meeting I have again relied on Shubert's contemporaneous handwritten notes of the meeting (GC Exh. 10) and Sharon Orlowski's typed notes of the meeting (R. Exh.16) and the credited testimony of Gibbons and Shu- bert. I credit the testimony of Gibbons and Shubert over that of Miossi to the extent it conflicts because their testimony was more detailed and consistent with the notes taken by Shubert and Orlowski. “iceberg” the Respondent was on “is melting” and that business had changed and businesses that the Respondent competes with had changed. Miossi added that the Respondent honored all its commitments regarding payroll and insurance and that there was no employee turnover. Gibbons replied that turnover was not a barometer of what is fair and that the Respondent was fortunate to have a loyal workforce. Gibbons stated that the Respondent may never employ 54 employees again but rather stay at 26. Gibbons asked if this meant that employees were not entitled to a wage increase and asked again if the Responded was making money. Gibbons urged Miossi to look at the tonnage information since the 180,000 ton level had only been met when the Respondent had twice as many employees. Gibbons stated that employees should get a raise because they were producing more per em- ployee. Gibbons asserted that the Union was not proposing an agreement that was unreasonable and again referred to the sig- nificant economic loss that the employees had suffered since 2009. Miossi replied that the Union could sign Respondent’s final offer. Miossi asserted that it was a fair deal by one meas- ure, since there has been no turnover. Gibbons asked Miossi when employees can expect to get a raise. Miossi replied that the 180,000 tons of steel processed figure was one aspect and added that the business available to process has changed in level of volume and price. Gibbons asked Miossi what was the logic of the Respond- ent’s position of limiting unpaid time for union business to 20 hours a year. Miossi replied that there has to be some limits for staffing purposes. Gibbons then asked Miossi who the Re- spondent considered its main competitors to be. Miossi replied that one competitor was the steel mills which were doing more slitting in-house. The Union then asked for a caucus. Gibbons testified that the Union decided during the caucus not to present another offer but to await a response to its information request. When the union representatives returned from the caucus, Gibbons indi- cated to Miossi that the Union would await a response to its information request before deciding whether to make another proposal. At that point the meeting ended. On December 16, 2013, Miossi sent an email to the Union containing the Respondent’s response to the information re- quest that the Union made on December 11, 2013 (GC Exh. 12). The Respondent indicated it would not produce its audited financial statements or the requested financial reports that the Union had requested in paragraphs 2 and 3 of its information request. The Respondent’s reason for not providing the request- ed financial information requested in those paragraphs was identical: “The Union is not entitled to such information as Region 13 has determined several times, each time affirmed by the General Counsel, because AMC has never asserted a finan- cial inability to meet the Union’s wage demands.” With respect to the Union’s request for sales by customer for customers for the past 4 years and projections for 3 years in the future (paragraph 5 of the information request), the Respondent replied “AMC will not provide sales information by customer as you request unless you care to explain why the Union is entitled to the information in that particular format. We provide the following tonnage and revenue data from 2009-present. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Tons Revenue 2009 100,854 $2,887,096 2010 126,912 $3,437,535 2011 121,008 $3,228, 358 2012 121,071 $3,311, 920 2013 (YTD-11 Mo.) 106,471 $3,007,02711 As noted above, the Union made a request for “A detailed explanation of the business conditions the Company is referring to and the specific changes that have occurred and the actual impact on the Company’s financial condition please provide specific data, reports and analyses.” (par. 7.) The Respondent’s responsive email indicated: The Union is not entitled to the detail and breadth of financial information requested in #7 for the reasons stated above. The business conditions to which the Company has reference (sic) are disclosed in the following data, which is responsive to your request: 2012 Tonnage 121,071 2013 Tonnage through Nov 13’-106,469 2013 Projected tonnage 113,011 With respect to the Union’s request for federal and State tax returns (par. 9) the Respondent replied, “AMC will not produce its tax returns. The Union is not entitled to such information as Region 13 has determined several times, each time affirmed by the General Counsel.” On January 7, 2014, Gibbons replied by email to Miossi. (GC Exh. 13.) With regard to the information sought in para- graph 2 of the Union’s December 11, 2013 information request, Gibbons explained: In effect AMC’s consistent basis for pay cuts and its position for not being able to provided (sic) future economic im- provements, including wage increases, are premised on what has been described by AMC as deteriorating business condi- tions and a reduction in sales and the margins of such sales. AMC has clearly expressed this position and reason for its po- sition regarding economic matters during negotiations, in ef- fect, AMC is claiming a financial inability to pay or provide economic improvements for its employees. Therefore the Un- ion request for the Company’s financial information is not on- ly appropriate but necessary for the process of good faith ne- gotiations to take place regarding economic matters. 11 Importantly, at the hearing Timothy Orlowski testified that the in- formation provided to the Union included only the revenue from toll processing and not from metal sales. (Tr. 92–93.) Orlowski further testified that the Respondent's audited financial statements reflect reve- nue from both metal sales and toll processing in two separate income statements because they constitute separate divisions. Orlowski also testified that the Respondent's profit and loss statement would "break out" the revenue by each division (Tr. 98). As noted at the outset, metal sales comprises approximately 20 percent of the Respondent's produc- tion operations. The Union represents a "wall-to-wall" production and maintenance unit in which the employees are engaged in both toll pro- cessing and metal sales operations. Orlowski's testimony clearly estab- lishes that the Respondent provided incomplete and misleading infor- mation to the Union regarding the revenue it receives from the products produced by unit employees. With respect to the Union’s request for the Respondent’s fi- nancial reports in paragraph 3 of its information request, the email stated “3. The basis for the Union request has been ad- dressed in the above paragraph.” In further clarification of its request for sales information in paragraph 5, Gibbons’ email stated, “5. Please provided (sic) itemized costs (clearly broken down for each expense) of the sales revenues for each of the periods referred to. Also, provide the same information for 2007, and 2008.” Regarding paragraph 7 of its request, Gibbons’ email indi- cated, “7. The Union restates its request based on the explana- tion stated in paragraph 2 above. The Company’s reply is not responsive and does not specifically provide the information requested.” With regard to the Union’s request for tax returns, Gibbons’ email stated, “9. The Union’s response in paragraph 2 is the basis for, and relevance for this request which is again restated.” On January 9, 2014, Miossi replied by email to Gibbons’ January 7, 2014 email (GC Exh. 13). The relevant responses are as follows:12 As you acknowledge and the NLRB has concluded multiple times, AMC has never asserted an inability to pay as reason for any of its proposals or rejection of the Union’s proposals. Volume is down and competition for business is intense. Again AMC will not produce this information because the Union is not lawfully entitled to it. Same answer as #2. We provided you responsive and relevant detailed infor- mation in response to the request you posed on December 11, 2013 on December 16, 2013. The item below appears to be a new request, but it makes no sense. We do not know what “itemized cost of sales revenues” are; AMC has never heard of such a financial concept, be that as it may, we cannot un- derstand how any data beyond tons/revenue data that we sup- plied last month and have supplied to you multiple times over the past years, would be relevant. See answers above and our response December 16, 2013. There is nothing more we can tell you. See our response December 16, 2013 and #2 above. The Un- ion is not lawfully entitled to the information requested. On January 31, 2014, Gibbons sent an email (GC Exh. 14) to Miossi in response to his January 9, 2014 email. As relevant to this proceeding, Gibbons’ email stated:13 Your argument regarding “inability to pay” is irrelevant. I have clearly stated that the Company’s position regarding economic matters was based on claimed adverse business condition(sic) that resulted in losses or reduced income that prevents the Company from making any economic improve- ments for employees and the basis for substantial economic 12 The number at the beginning of each response refers to the para- graph number in the Union's original information request. 13 The numbers at the beginning of each paragraph refer to the paragraph number in the Union's original information request. ARLINGTON METALS CORP. 13 reduction in wages and benefits imposed on employees. The Company’s position has and was actually based on “inability to pay”. While the Company has not used those specific terms, the reason and basis for the company’s position as ex- pressed during the bargaining and actions taken are the same the-“inability to pay”. Notwithstanding, the terminology, in order for the Union to perform its duties as the exclusive representative of bargain- ing unit employees our information request is relevant and necessary. Restate our request of December 11, 2013, and for the reasons expressed above. Again, I will attempt to restate our request in more expanded terms. I believe you understand our information request, (sic) they are very simple, and represented a basic principle regard- ing sales, cost of sales, revenue, specific costs, profits and losses. This information should include all documents, studies or methodology that the Company uses to calculate and eval- uate its variable costs. If such information is not available in the form requested please provide in the form that is available. The Union restates its request based on the explanation stated in paragraph 2 above. The Company’s reply is not responsive and does not specifically provide the information requested. On February 3, 2014, Miossi replied to Gibbons’ January 31, 2014, email as follows (GC Exh. 14): We have considered each of your requests, and we can detect no new justifications or plausible rationale that merit any dif- ferent response that we provided to you January 9, 2014 and December 16, 2013. With all due respect, you are simply re- peating yourself. The Union is not entitled to the private fi- nancial records of Arlington Metals, information about its credit relationships, the separate Saywer facility, the identity of its customers, “internal work documents,” more data con- cerning nonbargaining unit personnel, etc., etc., beyond what we have already provided. In addition to the repetitiveness of your request, your unsupported claim that the fact that Arling- ton has never asserted an inability to pay as a reason for any of its proposals “is irrelevant,” suggest to us that your purpos- es is more about creating mischief than engaging in purpose- ful communication. In an email dated February 5, 2014, Gibbons replied to Mi- ossi’s February 3, email as follows (GC Exh. 14): I am responding to your email reply to me on February 3, 2014. Your comments regarding my reference to the use of the terms “inability to pay” are unfortunate and represent a further effort on your part to ignore the facts and the statements made during our negotiation regarding Arlington Metals business performance and conditions and the statements expressed by you as the basis and premise for the Company’s position re- garding economic issues. In effect an “inability to pay”. While these exact terms may not have been used the reason (sic) as expressed are the same. Notwithstanding, the information requested is necessary for the Union to carry out its performance and duties as the exclu- sive bargaining representative of the bargaining unit employ- ees of Arlington Metals. On February 5, 2014, Miossi replied to Gibbons by email as follows (GC Exh. 14): Not only have we never asserted an inability to pay for any position AMC has taken since 2007, it up has never been in- ferred, despite your effort to say otherwise. You have our re- sponse to your most recent information request. We have pro- vided all the information to which the Union is lawfully enti- tled. No further information has been provided by the Respondent and there has been no further bargaining sessions held be- tween the parties. The Withdrawal of Recognition Petition Timothy Orlowski testified that on July 10, 2014, Plant Manager Ron Sowrizol contacted him on his cell phone before Orlowski had arrived at work and informed him that one of the shop employees had given Sowrizol an envelope but that Sowrizol did not know what was in it. Orlowski instructed Sowrizol to put the envelope on Orlowski’s desk and he would look at it when he arrived at work. When Orlowski arrived at work he opened the envelope and saw a document entitled “PETITION TO REMOVE UNION AS REPRESENTATIVE”(R. Exh. 1). The relevant portion of the document indicates: The undersigned employees of Arlington metals (employer name) do not want to be represented by united still worker 7773(sic) (union name), hereafter referred to as “union”. [S]hould the undersigned employees constitute 50% or more of the bargaining unit represented by the union, the under- signed employees hereby request that our employer immedi- ately withdrawing recognition from the union, as it does not enjoy the support of a majority of employees in the bargaining unit. The petition contained the handwritten printed name and the signature of 16 employees which were all dated July 9, 2014. The signatures of Harve Neace and Emil Sterczek were on the petition. Orlowski testified that Neace and Sterczek were slit- ter-operators and working supervisors. On direct examination Orlowski testified that he had known the employees for a long time and had seen their signatures on a multitude of documents, and the signatures looked valid to him. On cross-examination, however, Orlowski admitted that Brandon Trezzo and Brandon De La Cruz were newer employees and that he had not seen their signatures many times prior to July 10, 2014. (Tr. 108- 109.) Orlowski further admitted that there were other employee signatures that he had not seen very often because they were newer employees. (Tr. 110.) Orlowski did not check the signa- tures on the petition by comparing them to the signatures of employees that the Respondent maintained in its files. At the trial, the Respondent did not introduce payroll records for July 9, 2014, establishing precisely the composition of the unit on that date. Rather, the Respondent introduced an em- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 ployee census of the unit employees that it submitted to the Union as an attachment to an email on April 11, 2014. This employee census (R. Exh. 18, p. 3) contains, inter alia, the name, address, hire date, job title and pay rate for 26 employ- ees, including Neace and Sterczek. The document was prepared by Ilona Zelazowska, who maintains the Respondent’s payroll records and other employment documents. Zelazowska credibly testified that, pursuant to the instructions of Timothy Orlowski, she prepared the employee census from the payroll and benefit records she maintains for the shop employees. Orlowski testi- fied without contradiction that he asked Zelazowska to prepare the employee census shortly before it was submitted to the Union on April 11, 2014. The employee census reflects that De la Cruz was hired on February 25, 2013, and Brandon Trezzzo was hired on April 25, 2013. The employee census further reflects the additional employees were hired on various dates in 2013: Andres Coro- nel, April 8, 2013; Christopher Keiler, July 15, 2013; Michael Krasinski, August 7, 2013; and Anthony Menotti, September 9, 2013.Timothy Orlowski testified without contradiction that from April 11, 2014, through July 9, 2014, none of the employ- ees listed on the employee census submitted to the Union had voluntarily left employment with the Respondent or had been terminated. After reviewing the decertification petition on July 9, 2014, Timothy Orlowski scanned the petition to an email and sent it to Miossi. On July 10, 2014, Miossi sent the following email to Gudino with a copy of the decertification petition attached: Please find enclosed a petition dated July 9, 2014, signed by 16 members of the Arlington Metals Corp. bargaining unit, advising they no longer wish to be represented by the United Steel workers as the exclusive bargaining agent. The petition was in no way, directly or indirectly, initiated, supported or encouraged by Arlington Metals management. The 16 em- ployees constitute well more than 50% of the bargaining unit of 24; even if you count Messrs. Gofron, Fudala, and Ceja as part of the bargaining unit, 16 still represents well more than 50% of the unit. Arlington Metals will respect the desire of a majority of the bargaining unit of all, and consistent with fed- eral labor law it withdraws recognition of the United Steel- workers union as the exclusive bargaining agent of the em- ployees located in its Franklin Park plant effective immediate- ly. The Union’s Request to Conduct a Health and Safety Inspection According to Gudino’s uncontradicted testimony, in Sep- tember, October and December 2013, OSHA issued approxi- mately 80 to 100 citations against the Respondent regarding health and safety matters at the Arlington facility. The abate- ment date for those citations was sometime in the spring of 2014. In early July 2014, the Union met with some unit em- ployees who informed the Union that certain safety issues still existed at the plant. Gudino testified that the Union wanted to make sure that the Respondent had complied and had remedied the health and safety violations that OSHA had cited and decid- ed it was appropriate to have a union safety expert verify that the violations had been remedied On July 10, 2014, Gudino sent an email to Miossi requesting that the Respondent provide available dates for the Union to schedule a safety and health inspection to review “the numer- ous OSHA matters that require abatement and compliance” (GC Exh. 15).14 Gudino credibly testified that at the time that he made the request to conduct a health and safety inspection to Miossi, he had not seen Miossi’s email in which he indicated that the Respondent was withdrawing recognition from the Union. In response to Gudino’s email, Miossi again sent the decertification petition to Gudino and reiterated that the Re- spondent had withdrawn recognition on the basis of the petition and that the Union no longer had a right to conduct a health and safety inspection. Analysis Whether the Respondent Violated Section 8(a)(5) and (1) of the Act by Refusing to Provide the Union with the Requested Financial Information Because Its’ Conduct Constituted a Claim of an Inability to Pay the Union’s Demands. In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the Su- preme Court held that an employer violated Section 8(a) (5) and (1) of the Act by refusing to provide the union with finan- cial information requested by it to support the employer’s claim that it could not afford to grant employees the wage increase sought by the union. In so finding, the Court held that: Good-faith bargaining necessarily requires that claims made by either bargainer should be honest claims. This is true about an asserted inability to pay an increase in wages. If 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 accuracy. [351 US at 152–153.] . . . . We do not hold, however that in every case in which econom- ic inability is raised as an argument against increased wages it automatically follows that the employees are entitled to sub- stantiating evidence. Each case must turn on its particular facts. The inquiry must always be whether or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met. [351 US at 153-154.] In Nielsen Lithographing Co., 305 NLRB 697 (1991), and affd. sub nom. Graphic Communications Local 50B v. NLRB, 977 F.2d 1168 (7th Cir. 1992), the Board held that the duty to supply financial records applies only where an employer asserts “a present inability to pay, or a prospective inability to pay during the life of the contract being negotiated,” not where the employer “is simply saying that it does not want to pay.” 305 NLRB at 700. However, the Board was also careful to point out: 14 Art. 20 of the Respondent's 2012 implemented final offer contains a provision granting the Union access to the Respondent's premises for the purpose of participating in meetings with the Respondent that have been scheduled with prior notice and mutual consent and do not inter- fere with production. Art. 21 of that proposal provides that the Union shall cooperate with the Respondent in maintaining policies and regula- tions regarding safety and health. (GC Exh. 4.) ARLINGTON METALS CORP. 15 We do not say that claims of economic hardship or business losses with the prospect of layoffs can never amount to claim of inability to pay. Depending on the facts and circumstances of a particular case, the evidence may establish that the em- ployer is asserting that the economic problems have led to an inability to pay or will do so during the life of the contract ne- gotiated.” 305 NLRB at700 In Stella D’Oro Biscuit Co., 355 NLRB 769,770 (2010), enf. denied 711 F.3d 281 (2d Cir. 2013) the Board reiterated its policy that it “does not require that the employer recite any ‘magic words’ but only that his statements and actions be spe- cific enough to convey an inability to pay.” Accord Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984). See also, E. I. DuPont & Co., 276 NLRB 335, 336 (1985). In Lakeland Bus Lines, 335 NLRB 322, 324 (2001), enf. de- nied 347 F.3d 955 (D.C. Cir. 2003), the Board noted that in Shell Co., 313 NLRB 133 (1993), the employer’s duty to dis- close relevant financial information was established by the employer’s claims that its present circumstances were “bad” and was a matter of survival and that it was “losing business” and “faced serious regulatory and cost problems.” In Lakeland Bus Lines, the Board further noted that: Consistent with the Board’s acknowledgment in Nielsen that certain claims of economic hardship and business losses could amount to a claim of inability to pay, the Board held in Shell that the employer had effectively made such a claim. The Board noted that, unlike the claims at issue in Nielsen, there was no claim that the employer was still making a profit, and the thrust of the employer’s assertion was its present econom- ic circumstances rather than future economic competitiveness. The Board concluded that in these circumstances the employ- er’s assertions amounted “to a claim that it could not afford the most recent contract,” and thus warranted a finding that the employer had pleaded a present inability to pay. [Lakeland Bus Lines at 324] In Lakeland Bus Lines, the Board concluded that the state- ments made by the respondent’s president in a letter urging employees to accept its final offer reasonably conveyed that the Respondent was unable to pay more than that contained in the final offer. The Board noted that: Specifically, the Respondent stated that it was “trying to bring the bottom line back into the black,” that acceptance of the fi- nal offer would enable the Respondent to “retain your jobs and get back in the black short-term,” and that [t]he future of Lakeland depends on it.” In context, the statements are the equivalent of the claim in Shell Co. that circumstances were bad and were a matter of survival. In both these cases the statements reasonably conveyed a present inability to pay [Lakeland Bus Lines, at 324–325.] In Dover Hospitality Services, 358 NLRB 709 (2012), reaf- firmed, 361 NLRB 682 (2014), the Board indicated its contin- ued adherence to the principles expressed above. In the instant case, during a bargaining session 2009, Miossi informed the Union that the Respondent was losing money and that the Respondent needed to process 180,000 tons of steel a year in order to break even. In August 2009, the Respondent unilaterally implemented its final offer which reduced the wag- es of existing employees and established a “Tier 2” rate for new employees which was generally lower than the rates paid to existing employees. The unilaterally implemented offer indicat- ed that the Respondent would restore the wage cuts if the Re- spondent processed 180,000 tons of steel in a 12-month period. On December 9, 2011, the Respondent informed the Union that it would be unilaterally implementing further cuts in wages and benefits, including health insurance coverage. The Respond- ent’s letter accompanying the announced unilateral changes noted that “So there is no misunderstanding, our final proposal is just that-final. We have done the best we can do to treat and reward our employees fairly, protect their job security and at the same time remain competitive in our industry.” The (R. Exh. 4, p. 2.) At the October 31, 2013 meeting, after Gibbons gave Miossi a document detailing the economic impact on employees of the concessions that the Respondent had unilaterally implemented, Miossi told Gibbons that business conditions had not changed and that, if anything, they were weaker and that the Respondent was doing the best it could and had kept everyone employed. At this meeting, after Gibbons had given the Respondent a new economic proposal, Gibbons stated that the Respondent’s uni- laterally implemented offer requiring that the Respondent pro- cess180,000 tons of steel annually before the wage cuts could be restored did not appear to be reasonable under the circum- stances. Gibbons asked the Respondent to look at a reasonable level of production in order for employees to receive a wage increase. Gibbons also stated that the Union did not know whether the Respondent was making money or not. Miossi replied that the level of tons of steel processed was related to the operational of costs of the business and was unrelated to profit or loss. Miossi added that the owners of the Respondent were not applying the same analysis as the Union.15 When Gib- bons specifically asked Miossi whether the Respondent was making money and was profitable enough to give a wage in- crease, Miossi stated that business conditions had not changed, that business has softened in 2010-2013 and that the Respond- ent was hopeful that business would come back but that it had not. When Gibbons again asked if the Respondent was making money and could afford to give a wage increase to employees who had not had one in 8 to 10 years, Miossi replied that the Respondent had a right to maintain its profit and loss infor- mation privately and that it was not claiming it could not afford to pay the Union’s demands and never had. Later in that meet- ing Miossi stated that demand has gone down as well as pricing and that revenue was dependent on the number of tons pro- 15 I find that the Respondent has not been consistent in its explana- tion regarding the basis for the 180,000 tons of steel processed as the trigger to restore the wage cuts it had unilaterally imposed. In this re- gard, in 2013 Miossi indicated that that figure was related to the opera- tional of costs of the business. At the hearing, Timothy Orlowski did not relate the 180,000 tons per year to the operational of costs of the business but rather stated he viewed that level of production to consti- tute a proper utilization of the equipment and that it was his prerogative to want that level of production. I also note that in 2009 Miossi told the Union that the 180,000 tons of steel processed level was the Respond- ent's breakeven point based on what Timothy Orlowski had told him. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 cessed and business was not what was 10, 20, or 30 years ago. At December 11, 2013 meeting the Union requested the fi- nancial information set forth in the complaint. After receiving the information request, Miossi indicated that he would review it and respond as appropriate but that the NLRB had previously agreed that the Respondent did not have to provide such infor- mation. Miossi added that the Respondent had given the Union a reasonable response to its new proposal and that the “iceberg” the Respondent was on “is melting” and that business has changed and businesses that the Respondent competed with had changed. On December 16, 2013, Miossi replied to the Union’s infor- mation request in writing and indicated that the Respondent would not produce its audited financial statements or the other requested financial documents requested by the Union. Mios- si’s letter indicated that the Union was not entitled to such in- formation as Region 13 and the General Counsel has found that the Respondent had never asserted a financial inability to meet the Union’s demands. The Respondent’s letter did provide ton- nage and revenue data from 2009 to December 2013 but, as noted above, the information was incomplete and misleading as it did not indicate any of the revenue generated by the 20 per- cent of the Respondent’s operations that is comprised of metal sales. It is clear that in 2009, Miossi specifically told the Union that the Respondent was losing money and needed to process 180,000 tons of steel annually in order to break even. In Octo- ber 2011, the Respondent gave the Union a summary which purported to show that it had suffered substantial losses from 2007 through October 2011. When the Respondent implement- ed unilateral cuts in wages and benefits on August 3, 2009, it indicated that the wage cuts would be restored if the facility processed 180,000 tons of steel annually. In October 2013, Gibbons pointed out the difficulty that the Respondent’s unilat- erally implemented concessions had imposed on employees and that it was unlikely that it would process 180,000 tons of steel annually during the foreseeable future. Gibbons asked the Re- spondent to consider a more reasonable trigger to restore the wage cuts and specifically asked if the Respondent was profita- ble enough to grant a wage increase, Miossi replied that busi- ness conditions had not changed and that the Respondent was hopeful that business would come back but it had not. Finally, at the December 11, 2013 meeting, in defending the Respond- ent’s rejection of the Union’s latest economic proposal, Miossi stated that the “iceberg” that the Respondent was on “is melt- ing.” In my view, the statements made by the Respondent during bargaining could reasonably be construed as statements that the Respondent was currently unprofitable and unable to pay more than its unilaterally implemented offer. Under these conditions, the Union is entitled to information pertaining to the alleged losses and their impact on the employer’s business. In this re- gard, in 2009, the Respondent informed the Union that it was losing money and needed to process a total of 180,000 tons of steel annually in order to break even. In 2011 the Respondent gave the Union a summary purporting to show that it had suf- fered substantial annual losses from 2007 to 2011. In October 2013, when asked if the Respondent was profitable enough to grant a wage increase, Miossi replied that business conditions had not changed and that the Respondent was hopeful that business would come back, but it had not. Finally, at the last meeting between the parties in December 2013, Miossi indicat- ed the Respondent would not move from its implemented pro- posal because the “iceberg” that the Respondent was on “is melting.” There is clearly no evidence that in 2013 the Re- spondent indicated to the Union that it was, in fact, profitable and was merely unwilling to restore the wage cuts that it had unilaterally implemented. I find that Miossi’s statement to Gibbons at the October 2013 meeting that the Respondent had a right to maintain its profit and loss information privately as it was not claiming, and had not claimed, a financial inability to pay the Union’s requested increase in wages and benefits, to be ineffective. Miossi’s statement is unsupported by, and conflicts with, the weight of the evidence on this point. The evidence summarized above reflecting that the Respondent’s bargaining position was prem- ised on its asserted unprofitability, clearly outweighs what I view as Miossi’s attempt to preclude the Union from obtaining financial information I believe it is entitled to. For the same reasons, I do not find that Miossi’s statements in the letters he sent to the Union in December 2013 and January 2014 claiming that the Respondent has never asserted an inability to pay as a reason for its bargaining position to be an effective disclaimer. I find the instant case to be distinguishable from American Polystyrene Corp., 341 NLRB 508, 508–509 (2004), relied on by the Respondent. In that case, on one occasion, the Respond- ent’s chief negotiator, Tan, stated the employer could not afford the Union’s proposals and would “go broke” if it agreed to them. The next day Tan delivered a letter advising the union that the employer’s ability to pay for the Union’s bargaining proposal was not question. Under those circumstances, the Board found that the employer effectively disavowed any claim of an inability to pay. In the instant case, the Respondent, in effect, had asserted its allegedly poor financial condition as the basis for its bargaining position from 2009 through 2013. The Respondent also attempted to support this position by giving the Union a summary in 2011 purportedly showing substantial losses from 2007 through 2011. In December 2013, the Re- spondent also gave the Union incomplete and misleading in- formation regarding its revenues for the period from 2009 to 2013. It was only when the Union pointedly asked if the Re- spondent was profitable enough to grant a wage increase in October 2013, that Miossi claimed that the Respondent was not asserting an inability to pay the Union’s requested wage in- crease and then repeated that statement in the letter exchange following the Union’s request for financial information made in December 2013. In the instant case, the attempted disclaimer is insufficient to outweigh the Respondent’s consistently ex- pressed position that its alleged loss of money was the underly- ing reason for its unilaterally implemented concessions and its refusal to consider restoring its unilaterally imposed reductions in wages and benefits. As noted above, on October 31, 2013, the Respondent stated that its economic position had not changed since 2009 and that, if anything, was worse. Given this, I do not find that Miossi’s statements at the bargaining sessions in 2013 that the Respond- ARLINGTON METALS CORP. 17 ent believed that its position was fair because of the lack of the employee turnover are sufficient to overcome the evidence supporting my conclusion that the Respondent had consistently expressed that its loss of money and poor economic condition was the basis for its bargaining position. I also find this case to be distinguishable from other cases re- lied on by the Respondent in support of its position. In Coupled Products LLC, 359 NLRB 1443 (2013), the Board found that the employer had not claimed an inability to pay the Union’s wage and benefit demands and thus was not obligated to accede to the Union’s request to audit its financial information when the employer stated that it was profitable overall but claimed a competitive disadvantage in labor costs at the facility at issue and wish to reduce those labor costs. Clearly, in the instant case the Respondent did not assert that it was profitable and merely wished to reduce labor costs. I also find the instant case to be distinguishable from other cases relied on by the Respondent. In North Star Steel, 347 NLRB 1364 (2006), the Board found that the employer was not obligated to provide the detailed financial information sought by the union. In that case, in explaining its position regarding concessions that it sought, the employer focused on diminishing future orders and declining prices. The employer also linked its anticipated low upcoming profit figures to bad market condi- tions. The Employer downplayed to some extent its financial difficulties and drew a distinction between itself and some competitors who were in worse financial shape. Unlike the instant case, the employer relayed the message that it would not pay, as opposed to could not pay, in order to stay competitive. In AMF Trucking & Warehousing, 342 NLRB 1125 (2004), the employer stated that the company had been in distress for a year and a half and that it was “fighting to[stay] alive” and was “weaker this year” than it had been in previous years. The Board found that such statements were not synonymous with an assertion that the employer had, or would have, insufficient assets to pay the union’s demands. As set forth in detail above, in the instant case, the Respondents statements over a sustained period from 2009 to 2013 could be fairly construed as estab- lishing that its bargaining position was premised on an inability to pay the Union’s demand for a wage increase. On the basis of the foregoing, I find that the Respondent has asserted an inability to pay the Union’s wage and benefit de- mands and has therefore violated Section 8(a)(5) and (1) of the Act by refusing to provide the information requested in para- graphs 2, 3, 5, 7, and 9 of Union’s December 11, 2013 infor- mation request, as set forth in the complaint. If a Conclusion is Reached that the Respondent did not Claim an Inability to pay the Union’s Demands, Whether the Respondent violated Section 8(a)(5) and (1) of the Act by Refusing to Provide the Union with Requested Information to Verify Specific Claims the Respondent Made During Bargaining Both the General Counsel and the Union assert an alternative argument that, even if a conclusion is reached that the Re- spondent was not obligated to provide the requested infor- mation because it had not claimed an inability to pay the Un- ion’s demands, the facts of this case establish that the Respond- ent refused to provide requested relevant information support- ing its specific claims regarding its bargaining position in viola- tion of Section 8(a)(5) and (1) of the Act. I recognize that the Board’s decisions regarding the obligation to provide requested financial information under the inability to pay line of cases often draw fine distinctions and that, if exceptions are taken to my decision, the Board may disagree with my application of the principles expressed in those cases. I therefore believe that it is appropriate to consider the alternative argument advanced by the General Counsel and the Union in case that should occur. In Caldwell Mfg. Co., 346 NLRB 1159 (2006), the Board noted that under Truitt supra, an employer has a general duty to provide information to a union that is necessary and relevant to assess claims made by an employer in contract negotiations. Such information is not presumptively relevant but the burden to establish relevance is not “exceptionally heavy” and the Board uses a “broad discovery type of standard in determining relevance in information requests.” In Caldwell, the Board noted that “When there has been a showing of relevance, the Board has consistently found a duty to provide information such as competitor data, labor costs, production costs, restruc- turing studies, income statements, and wage rates for non-unit employees.” Id. at 1160 (Citations omitted.) Applying that standard, in Caldwell the Board found that the union’s request for detailed information involving costs, productivity, and competitor performance were relevant where the employer asserted that concessions were necessary in order to make a less competitive facility more competitive in the industry. In A-1 Door Building Solutions, 356 NLRB 499 (2011), an employer explained its bargaining position in seeking a substantial reduc- tion in profit sharing and a reduction in wages by claiming that its wages and benefits affected its ability to be competitive. The employer specifically discussed competitiveness in its ability to obtain jobs it had bid on. The union requested specific infor- mation regarding job bidding which the employer refused to provide. Relying on Caldwell, the Board found that the em- ployer violated Section 8(a)(5) and (1) by refusing to provide the requested information. As set forth above, Caldwell specifically indicates that an in- come statement is the type of information that an employer is obligated to produce, on request, if it is relevant to its bargain- ing position. In Litton Systems, 283 NLRB 973, 974–975 (1987), enf. denied on other grounds 868 F.2d 854 (6th Cir. 1989) the Board found that the respondent was obligated to produce requested information regarding its financial condition, including market share and profit and loss information. In that case, the respondent relocated work from one of its facilities to another and had claimed during bargaining that it was losing $3 million a year by producing the product at the plant the work and been transferred from. In finding that the Respondent had violated Section 8(a)(5) and (1) by refusing to provide the re- quested information, the Board found that the Union had demonstrated the probability that the desired information was relevant and would be useful in determining the meaning of the information that had been provided and would be of assistance in developing reasonable bargaining proposals. In the instant case, in October 2013, the Respondent rejected the Union’s proposal to increase wages and maintained its posi- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 tion that it would not move from the terms of its unilaterally implemented proposal. Miossi told the Union that he had dis- cussed the Union’s proposal with the “owners”, and that it was rejected as business conditions had not changed and that the Respondent was confronted with additional downward price pressures and that competitors were going after their business. During the meeting, Miossi told the Union that the level of tons of steel processed was related to the operating costs of business and added cryptically that the owners of the Respondent were not applying the same analysis regarding the 180,000 tons of steel processed as the level that must be met before the Re- spondent would restore the unilateral wage cuts as was the Union. At the bargaining table, Miossi did not further explain his statement. As noted above, however, at the trial, Timothy Orlowski did not specifically relate the 180,000 ton trigger to operating costs, but rather stated it was his prerogative to want that level of production from his assets. In addition, as noted above, in December 2013, the Respondent provided incomplete and misleading information regarding its revenues as it did not include the approximately 20 percent of its business that was comprised of metal sales. Timothy Orlowski further testified that the Respondent’s audited financial statements reflect reve- nue from both metal sales and toll processing in separate in- come statements. At the meeting held in October 2013, Gibbons indicated that the Union did not know if the Respondent was making money or not. Gibbons added that if the Respondent was not making money, the Union was willing to move from its position that the wages of employees should be increased by specified amounts but rather would consider a profit-sharing agreement. The financial information sought by the Union would clearly have assisted it in assessing the accuracy of the Respondent’s position and developing its own counterproposals. The finan- cial information is clearly relevant to the Respondent’s claim that business conditions had not improved since 2009. In addi- tion, the provision of this information would set forth the ton- nage and revenue information clearly and allow the Union to knowingly and intelligently assess the Respondent’s position that the restoration of wage cuts was dependent upon reaching the 180,000 tons of steel processed level. Although the financial information requested by the Union is not presumptively relevant, the General Counsel established that the requested financial information would assist the Union in assessing the accuracy of the Respondent’s position and developing counterproposals. Applying the principles ex- pressed in the Board’s decisions in Caldwell and Litton Sys- tems, I find that the Union is entitled to the financial infor- mation that it requested. With regard to the Union’s request for information regarding the Respondent’s sales to customers, during bargaining Miossi specifically indicated that business conditions had softened in 2010–2013 and that demand had gone down as well as pricing. The Union’s request for information for the Respondent’s sales by customer for the years 2009 through 2013 and its projected sales for the period of 2014 through 2016 would obviously allow it to determine the accuracy of the claims made by Miossi during bargaining. The request for such sales information would assist the Union in determining whether Respondent’s statements regarding the factors supporting its bargaining posi- tion were supported by objective evidence. Applying the principles expressed in Caldwell, I find that the Respondent is obligated to provide the requested information regarding customers to the Union. The Board has found in simi- lar situations that employers have had the obligation to provide such information. In National Extrusion & Mfg. Co., 357 NLRB 127 (2011), the Respondent proposed a 12 percent re- duction in wages over 3 years. In support of its position the employer stated it needed to make its facility more competitive. In particular, the employer asserted that it was faced with com- petition from Asia and its production costs had increased while its production levels had diminished. In addition, the Respond- ent claimed that it had lost a large customer the year prior to the negotiations. The union requested information regarding the employer’s currently customers, job quotes, outsourcing, pric- ing structure, market studies and competitors in order to evalu- ate the employer’s claims. The Board found that the union was entitled to the information sought, including the information regarding customers, in order to evaluate the Respondent’s claims regarding the necessity for concessions. Similarly, in Tom Ryan Distributors, 314 NLRB 600 (1994), the Board found that the employer violated Section 8(a)(5) and (1) by failing to provide requested information regarding, inter alia, sales to customers, where the employer was seeking to reduce labor costs by virtue of its proposal regarding presell and bulk sales to customers. In the instant case, the Union also requested information about the “business conditions” relied on by Respondent and the “specific changes that have occurred and the actual impact on the Company’s financial condition.” Finally, the Union re- quested that the Respondent provide its Federal and State tax returns for the period from 2009 through 2012. As noted above, in response to Gibbons observation that since 2009 the Re- spondent had reduced its labor costs by approximately 50 per- cent by virtue of laying off employees, Miossi supported the Respondent’s bargaining position by claiming that the Re- spondent was confronted with increased costs, taxes had gone up and there was downward pressure on pricing. Miossi also referred to competitors attempting to take business from the Respondent and, when asked who the competition was, referred only to “steel mills”, and mentioned that business was being moved to Texas and Alabama. Accordingly, by supporting its insistence that it would not move from its position regarding the continued maintenance of its unilaterally implemented con- cessions, the Respondent relied on poor business conditions, the loss of business to competitors and increased taxes. Again, the Union responded to these claims by requesting information needed to evaluate the accuracy of the Respondent’s assertions and to assisted in preparing counterproposals. By flatly refusing to provide any of the requested information, including the tax returns that the Union requested, the Respondent violated Sec- tion 8(a)(5) and (1) pursuant to the principles expressed in Caldwell, A-1 Door & Building Solutions, and National Extru- sion & Mfg. Co. supra. ARLINGTON METALS CORP. 19 Whether the Respondent Violated Section 8(a)(5) and (1) by Engaging in Surface Bargaining Without the Intention of Reaching an Agreement In Regency Service Carts, 345 NLRB 671 (2005), the Board noted the following with respect to the obligation to bargain in good faith under the Act: Under Section 8(d) of the Act, an employer and its employ- ees’ representative are mutually required to “meet at reasona- ble times and confer in good faith with respect to wages, hours and other terms and conditions of employment . . . But such obligation does not compel either party to agree to a pro- posal or require the making of a concession . . .” :Both the employer and the union have a duty to negotiate with a ‘sin- cere purpose to find a basis of agreement,”’ Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) (quoting NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir.)), But “the Board cannot force an employer to make a ‘concession’ on any specific or to adopt any particular position.” Id. (quoting NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir. 1953), cert.denied 346 U.S. 87 (1953)). The employer is, nonetheless, “obliged to make some reasonable effort in some direction to compose his differences with the union, if [Sec- tion] 8(a)(5) is to be read as imposing any substantial obliga- tion at all.” Ibid. (Emphasis in original.) Therefore, “mere pre- tense at negotiations with a completely closed mind and with- out a spirit of cooperation does not satisfy the requirements of the Act.” Mid--Continent Concrete, 336 NLRB 258, 259 2001) enfd. sub nom. NLRB v. Hardesty Co., 308 F.3d 859 (8th Cir. 2002) (quoting NLRB v. Wonder State Mfg. Co., 344 F.2d 210 (8th Cir. 1965)). A violation may be found where an employer will reach an agreement on its own terms and none other. Id.; Pease Co., 237 NLRB 1069, 1070 (1978). In Mid-Continent Concrete, supra, at 259–260, the Board noted that in determining whether a respondent has bargained in bad faith, it looks at the totality of the circumstances. In this connection, relevant factors include unreasonable bargaining demands,16 delaying tactics, efforts to bypass the bargaining representative, failing to provide relevant information, and unlawful conduct away from the table. The Board has never held, however, that a respondent must have engaged in each of those factors before concluding that bargaining has not been conducted in good faith. Rather, as noted above, the focus is on the entirety of a respondent’s conduct in determining whether the evidence establishes that it intended to avoid reaching an agreement. Regency Service Carts, supra at 671; Altorfer Ma- chinery Co., 332 NLRB 130 fn. 2 (2000). Applying these principles to the instant case, I find that the Respondent’s overall conduct during the bargaining that oc- curred in 2013 violated Section 8(a)(5) and (1) of the Act. Ex- amining the entirety of the Respondent’s conduct during this 16 The Board examines proposals when appropriate and considers whether, on the basis of objective factors, bargaining demands consti- tute evidence of bad-faith bargaining. Public Service Co. of Oklahoma, 334 NLRB 487,488 (2001), enfd. 318 F.2d 1173 (10th Cir. 2003); Reichhold Chemicals, 288 NLRB 69 (1988), affd. in relevant part 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991). period, I find that it did not have a sincere purpose to find a basis for an agreement and thus crossed the line from hard bar- gaining to bargaining without the intention of reaching an agreement. In reaching this conclusion, I rely on the fact, as explained in detail above, that the Respondent failed to provide relevant and necessary information to the Union in violation of Section 8(a)(5) and (1). As set forth above, this is an important factor to consider when determining whether a Respondent has engaged in overall bad faith bargaining. I also considered the fact that in December 2013, the only in- formation that the Respondent did provide to the Union was incomplete and misleading. As set forth in detail above, the information provided to the Union regarding the Respondent’s revenue during the period from 2009 through November 2013, included only the revenue it received from toll processing and not from metal sales. Since metal sales comprises approximate- ly 20 percent of the Respondent’s production operations, the information provided substantially underreported the Respond- ent’s revenue during that period. The Board has held that fur- nishing incomplete and misleading information to a union dur- ing bargaining is indicative of a lack of good faith. Northwest- ern Photoengraving Co., Inc., 140 NLRB 24, 49–50 (1962). With regard to the substance of the negotiations in 2013, fol- lowing the July 8, 2013 approval of a settlement agreement in which the Respondent agreed to meet and bargain in good faith, the parties met on September 12, 2013, but that meeting was devoted primarily to a discussion of the termination of the un- ion’s steward and insurance issues involving two employees. On October 31, 2013, the parties resumed their negotiations to attempt to reach a collective-bargaining agreement and focused on the economic issues on which they had not reached agree- ment. At this meeting, the Union gave the Respondent a docu- ment outlining what it viewed as the adverse economic conse- quences that unit employees had experienced by virtue of work- ing under the terms of the Respondent’s final offer that was unilaterally implemented in 2009 and unilaterally modified on January 1, 2012. The Union then gave the Respondent its elev- enth economic proposal which included a proposal to modify the Respondents unilaterally implemented 2012 terms regard- ing the ability to receive overtime pay and to include time off for union business in calculating the number of hours worked in order to be eligible to receive overtime pay. In addition, the Union’s proposal agreed to the Respondent’s implemented proposal for vacation pay for newly hired employees but want- ed to allow current employees to have up to the 4 weeks of vacation they previously could attain. With respect to wages, the Union proposed to restore the wages that were previously in effect based on a formula reflecting production per employee that was equal to the 180,000 ton average per year set forth in the Respondent’s unilaterally implemented proposal. The Un- ion’s proposal also included a $1000 payment upon ratification and general wage increases for both 2014 and 2015. In effect, the Union proposed to the Respondent that it consider a formu- la that recognized the increased productivity of employees and would enable them to meet and perhaps exceed the wage rates that were in effect before the Respondent’s unilateral imple- mentation of the cuts in 2009. Gibbons pointed out to Miossi that under the present circumstances, the formula implemented DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 by the Respondent that there must be 180,000 tons of steel processed annually in order for employees to achieve a wage increase from their present level did not seem to be relevant and was unfair as it appeared that level of production may not be met in the future. Gibbons asked the Respondent to look at a reasonable trigger for the employees to receive a wage increase and stated that the Union did not know whether the Respondent was making money or not. Miossi responded that the level of tons of steel processed was related to the operating costs of the business and was not related to profit or loss and added that the Respondent’s owners were not applying the same analysis as the Union. Miossi did not further explain the analysis applied by the Respondent’s owners.17 During the discussions that were held during this meeting the Union further indicated that it was willing to waive its request for a wage increase and accept a lump-sum payment of $1,000 dollars upon ratification of the contract but that it would prefer for employees to have an hour- ly wage increase. The Union further indicated that it was will- ing to look at a profit-sharing agreement dependent upon the Respondent’s financial condition. Miossi, indicated that Re- spondent was not going to grant a wage increase just to get an agreement and that few employees had left and that the terms the Respondent had implemented was the best it could do. In support of the Respondent’s position that its unilaterally im- plemented offer was the best it could do, Miossi indicated that the Respondent was confronted with increased costs; taxes had gone up and there was downward pressure on pricing. He also indicated that business conditions had not changed and, if any- thing, had worsened. At the conclusion of the meeting, after speaking with the Respondent’s owners, Miossi formally re- jected the Union’s proposal and indicated that the Union could obtain a contract if it accepted the terms of the Respondent’s 2012 implemented proposal. On November 11, 2013, the Respondent indicated it would accept the Union’s proposal for unpaid time off for union busi- ness but would limit it to one person for a maximum of 20 hours per year. The Respondent indicated that the Union’s re- maining proposals were not acceptable and that the Respondent stood on the currently implemented terms. At the next meeting held on December 11, 2013, Gibbons gave Miossi the Union’s request for information and that stated that the Union’s proposal was not unreasonable and that em- ployees should have the ability to obtain a raise because they were producing more per employee. Miossi again indicated that the Union could sign the Respondent’s final offer and that it was a fair deal since there had been no employee turnover. Gibbons then indicated that the Union would not present anoth- er offer at that time but would await a response to its infor- mation request. Thereafter, the Union requested information in order to verify the accuracy of the claims that Miossi had made during the October 31 meeting and to assist it in developing new proposals. The Respondent refused to provide the request- 17 As noted previously, Timothy Orlowski did not relate the pro- cessing of 180,000 tons of steel to the operating costs of the business but rather stated that he believed the processing of 180,000 tons of steel to be a proper utilization of the equipment and that it was his preroga- tive to want his assets fully utilized. ed information except for providing incomplete and misleading summary of information regarding tonnage and revenue for the 2009–2012 period. As noted above, there were no further bar- gaining meetings between the parties. The Respondent and the Union had a substantial number of meetings between 2008 and December 2013, and had reached a tentative agreement regarding the noneconomic of a contract. During the two bargaining sessions that occurred in 2013, the Union made a substantial attempt to reach an agreement with the Respondent. The Union’s proposal addressed the economic reality that the Respondent produced less processed steel with less employees than it did in 2007, but also sought to restore the wage cuts that the Respondent had unilaterally implemented in 2009 by virtue of the fact that, on a per capita basis, the remain- ing employees were more productive. The Respondent indicat- ed a complete unwillingness to consider the Union’s proposal seeking a formula that could result in employees receiving a wage increase for their increased productivity. The Respondent rejected the Union’s proposal and repeatedly indicated that if the Union wanted an agreement it could sign the Respondent’s unilaterally implemented proposal. At the same time the Re- spondent refused to provide the Union with necessary and rele- vant information that would enable the Union to understand the basis for the Respondent’s position on wages and to see if the assertions made by the Respondent as to the underlying basis for that position were substantiated. I find that during the bargaining that occurred in 2013, the Respondent’s refusal to consider making anything more than a minor modification in its unilaterally implemented terms and conditions of employment and its refusal to provide relevant information to justify and explain its position demonstrates a lack of any effort in some direction in order to reach an ac- ceptable common ground with the Union. The Respondent maintained its intransigent position despite the Union’s will- ingness to modify its proposals in order to reach an agreement. I find the conduct of the Respondent establishes that it main- tained a predetermined resolve that its unilaterally implemented offer, with the minor modification noted above, constituted the only terms upon which it would enter into a collective- bargaining agreement with the Union. In Mid-Continent Concrete, 336 NLRB 258, 260 (2001), enfd. 308 F.3d 859 (8th Cir. 2002), the Board noted, “Where the proponent of a regressive proposal fails to provide an ex- planation for it, or the reason appears dubious, the Board may weigh that factor in determining whether there has been bad- faith bargaining.” In the instant case, Miossi stated, during bargaining in 2013, that the basis for the position that 180,000 tons of steel had to be processed before the Respondent would restore the wage cuts it had unilaterally implemented was relat- ed to the operating costs of the business. In 2009, Miossi indi- cated during bargaining that the 180,000 tons of steel processed level was the Respondent’s breakeven point. Timothy Or- lowski’s testimony that it is his prerogative to want that level of production in order to fully utilize his assets, without relating that in any way to operating costs, certainly makes the reasons advanced in bargaining appear dubious. The Respondent, of course, refused to provide the information that would perhaps provide an explanation for the Respondent’s position. Under ARLINGTON METALS CORP. 21 these circumstances I find that Respondent has not provided a reasonable explanation for its unilaterally imposed wage cuts. The Board has held that it is a significant manifestation of bad faith bargaining for an employer to refuse to budge from an initial bargaining position, refuse to offer reasonable explana- tions for a proposal and refuse to make any efforts to compro- mise in order to reach common ground. Altofer Machinery Co., 332 NLRB 130, 150 (2000); John Asuaga’s Nugget, 298 NLRB 524, 527 (1990), enfd. in pertinent part 968 F.2d 991 (9th Cir. 1992). On the basis of all of the foregoing, I find that the Respond- ent violated Section 8(a)(5) and (1) of the Act by engaging in surface bargaining in 2013 with no intention of reaching an agreement. In reaching this conclusion, I have considered the fact that parties had approximately 37 collective-bargaining sessions between November 2007 and December 2013; that the parties reached a tentative agreement on the noneconomic pro- visions of a collective-bargaining agreement; and that in 2013 the Respondent made a minor compromise with respect to granting 20 hours of unpaid time annually to conduct union business and to consider those hours for purposes of calculating the number of hours worked necessary before an employee would receive overtime pay. However, when I consider the totality of the Respondent’s conduct in bargaining during 2013, it convinces me that the Respondent did not bargain in good faith in 2013 with the intention of reaching an agreement with the Union. Whether the Responded Violated Section 8(a)(5) and (1) of the Act by Withdrawing Recognition from the Union As set forth in detail above, on July 10, 2014, the Respond- ent withdrew recognition from the Union based on a petition purportedly signed by a majority of the unit employees. The General Counsel and the Union contend that the Re- spondent’s withdrawal of recognition violates Section 8(a)(5) and (1) because it occurred in the context of serious unreme- died unfair labor practices and thus the petition cannot serve as a basis for withdrawing recognition from the Union. The General Counsel and the Union also contend, pursuant to the principles expressed in Levitz Furniture Co., 333 NLRB 717 (2001), and Latino Express Inc., 360 NLRB 911 (2014),that the Respondent did not meet its burden of establish- ing that the petition demonstrated that the Union had, in fact, lost majority support among unit employees at the time it with- drew recognition from the Union. 18 The Respondent argues that the petition was sufficiently au- thenticated to establish that the Union had in fact, lost majority support of the time it withdrew recognition from the Union. The Respondent further argues that it has not committed any of the unfair labor practices alleged in the complaint, but even if it 18 At the trial, counsel for the General Counsel clearly expressed the position, consistent with the allegations of the complaint that, in addi- tion to contending that the Respondents withdrawal of recognition occurred in the context of unremedied unfair labor practices, the Gen- eral Counsel was also alleging that the Respondent had not established, by a preponderance of the evidence, that there was an actual loss of majority status at the time it withdrew recognition from the Union. (Tr. 234–235.) did, those unfair labor practices cannot reasonably be found to have caused employee disaffection from the Union sufficient to taint the withdrawal of recognition. As noted in substantial detail above, I have found that the Respondent engaged in surface bargaining without the intention of reaching an agreement in October and December 2013 in violation of Section 8(a)(5) and (1). I have also found that since December 16, 2013, the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union necessary and relevant information in order for it to perform its function as the collec- tive-bargaining representative of the unit employees. In Vincent Industrial Plastics, Inc., 328 NLRB 300 (1999), enfd. in part 209 F.3d 727 (D.C. Cir. 2000), supplemental deci- sion, 336 NLRB 697 (2001), the Board relied on its previous cases, Williams Enterprises, 312 NLRB 937, 939 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995), and Master Slack Corp., 271 NLRB 78, 84 (1984), in holding: In cases involving unfair labor practices other than a general refusal to recognize and bargain, the Board considers several factors to determine whether there is a causal relationship be- tween unremedied unfair labor practices and the subsequent employee expression of disaffection with the incumbent un- ion. These factors include: (1)The length of time between the unfair labor practices and the withdrawal of recognition (2) the nature of the illegal acts, including the possibility of det- rimental or lasting effect on employees; (3) any possible ten- dency to cause employee disaffection from the union; and (4) the effect of the unlawful conduct on employee morale, or- ganizational activities and membership in the union. 328 NLRB at 301–302. In applying those factors to the instant case, I note that re- spect to the first factor noted above, the Respondent’s bargain- ing in bad faith occurred approximately 8 months prior to the withdrawal of recognition as did its unlawful refusal to provide information. The nature of the Respondent’s unfair labor prac- tices are such, however, that they have a lasting effect and would reasonably cause employee disaffection from the Union. In this regard, in Prentice-Hall, Inc., 290 NLRB 646, 672–673 (1988), the Board clearly indicated that bad faith bargaining completely taints an employee petition relied on by an employ- er to withdraw recognition from an incumbent union. In addi- tion, the Respondent’s unlawful refusal to provide information is of a continuing nature since, without that information, the Union is greatly hindered in bargaining in a knowing and intel- ligent fashion. With respect to the second factor, as noted above, the nature of the Respondent’s unlawful conduct in bar- gaining in bad faith and refusing to provide relevant infor- mation related to the bargaining clearly has a greatly detri- mental and lasting effect on employees. With respect to the third factor, I find that that the passage of time without any real prospect of reaching a contract, has a substantial tendency to cause employee disaffection from the Union. As noted above, in Prentice Hall, Inc., supra, the Board found that the employ- er’s bad faith bargaining nullified an employee petition ex- pressing employee dissatisfaction with the union. Finally, I find, based on the principles expressed in Prentice-Hall, Inc., that it is manifest that the Respondent’s conduct in bargaining DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 in bad faith and refusing to provide relevant and necessary information would adversely affect employees’ desire to en- gage in activities on behalf of the Union, since such conduct greatly hinders the Union’s effectiveness in representing the unit. I find the cases relied on by the Respondent in support of its position that, if I should find any unfair labor practices occurred here, they are insufficient to conclude that the employee peti- tion was affected by those unfair labor practices, to be distin- guishable from the instant case. In Champion Enterprises Inc., 350 NLRB 788 (2007), the Board found that the respondent had refused to provide to the union requested information regarding company procedures regarding handling customer complaints and unilaterally laid off employees in violation of Section 8 (a)(5) and (1). The Board further found that the Respondent had also committed two independent violations of Section 8(a)(1). The Board found that the unfair labor practices that occurred were insufficient to cause employee disaffection with the union. In making this finding, the Board specifically noted that there was no evidence that the respondent had engaged in bad-faith bargaining during its negotiations with the union. Id. at 792. In the instant case, of course I have found that the Respondent has engaged in bad faith bargaining and Prentice-Hall, Inc., supra, stands for the proposition that it is a given that such conduct has a lasting and negative impact on employees I also find Bunting Bearings, Corp. 343 NLRB 479 (2004), to be distinguishable from the instant case. There, the Board found that two independent violations of Section 8(a)(1), the discharge of one employee in violation of Section 8(a)(3) and (1), and a partial lockout of nonprobationary bargaining unit employees in violation of Section 8(a)(5) and (1) were insuffi- cient to taint the employee petition that the respondent relied on to withdraw recognition from the union. Id. at 483 fn. 17. Un- like the instant case, there was no finding that the respondent engaged in a pattern of bad faith bargaining. Again, Prentice- Hall, Inc., makes it clear that an unremedied pattern of bad faith bargaining has the effect of causing employee disaffection from the union. Based on the foregoing I find that a causal relationship exist- ed between the Respondent’s unfair labor practices and the petition received by the Respondent on July 10, 2014, and therefore did the Respondent cannot rely on that petition to assert that the Union no longer enjoyed majority status as of that date. Accordingly, I find that the Respondent violated Sec- tion 8(a)(5) and (1) by refusing to recognize and bargain with the Union on and after July 10, 2014. As noted above, General Counsel and the Union also con- tend that the Respondent’s withdrawal of recognition violated Section 8(a)(5) and (1) because the Respondent did not meet its burden to establish that the Union had, in fact, lost majority support. In Levitz, supra, at 725, the Board held that: “[A]n employer may rebut the continuing presumption of an. incumbent union’s majority status, and unilaterally withdraw recognition, only on a showing that the Union has, in fact, lost the support of a majority of the employees in the bargaining unit. . . . . We emphasize that an employer with objective evidence that the union has lost majority support-for example, a petition signed by a majority of the employees in the bargaining unit- withdraws recognition at its peril. If the union contests the withdrawal of recognition in an unfair labor practice proceed- ing, the employer will have to prove by a preponderance of the evidence that the union had, in fact, lost majority support at the time the employer withdrew recognition. If he fails to do so, it will not have rebutted the presumption of majority status, and the withdrawal of recognition will violate Section 8(a)(5). (Footnote omitted.) In Latino Express, supra, at 15 the Board clearly indicated that when an employer relies on the employee petition to estab- lish the union’s loss of majority support it is the employer’s obligation to authenticate the signatures on the petition that it relies on. I find that July 10, 2014, the day the Respondent withdrew recognition, the unit was composed of 26 employees, including Neace and Sterczek. I base this finding on the employee census that was submitted to the Union on April 11, 2014, and Timo- thy Orlowski’s uncontradicted testimony that none of the em- ployees on that list had left voluntarily or been terminated prior to July 9, 2014. The petition that the Respondent relied on to withdraw recognition contained 16 signatures, including those of Neace and Sterczek. Before it withdrew recognition, the Respondent did not undertake any review of employee signa- tures on personnel records but rather relied solely on Timothy Orlowski’s assessment that the signatures appeared valid to him. In the instant case, the only evidence regarding the authentic- ity of the signatures on the petition came from the testimony of Timothy Orlowski. The Respondent did not call any employees to testify that they solicited signatures or signed the petition. The Respondent also did not introduce any personnel records with employee signatures in order for me to compare the signa- tures on the petition to signatures contained within the Re- spondent’s regular business records. On direct examination Orlowski testified that he had known the employees for a long time, had seen their signatures on a multitude of documents, and the signatures looked valid to him. On cross-examination, however, Orlowski admitted that Brandon Trezzo and Brandon de la Cruz were newer employees and that he had not seen their signatures many times prior to July 10, 2014. Orlowski also admitted that there were other employee signatures that he had not seen very often because they were newer employees. As set forth above, there were four other employees in addition to De la Cruz and Trezzo, who were hired in 2013. Coronel was hired on April 8, 2013, approximately 2 weeks before Trezzo. Keiler was hired on July 15, 2013; Krasinski was hired on August 7, 2013; and Mennotti was hired on September 5, 2013. Timothy Orlowski’s admitted at the trial that he was not very familiar with the signatures of De la Cruz and Trezzo and some of the other newer employees. Objective evidence establishes that in addition to Trezzo, four other employees were hired in 2013 after De la Cruz. I find that Timothy Orlowski’s testimo- ARLINGTON METALS CORP. 23 ny, uncorroborated by any other evidence, establishes that at most, 10 of the 16 signatures on the petition were valid. Given Orlowski’s admitted unfamiliarity with the signatures of De la Cruz, Trezzo, and the four other employees hired in 2013, and without any other evidence to establish the validity of those signatures, I find that the Respondent did not carry its burden to establish the authenticity of those six signatures. Since I find that Timothy Orlowski’s uncorroborated testimony can only establish the authenticity of 10 of the 16 signatures on the peti- tion, I find that Respondent has not established by a preponder- ance of the evidence that the Union had, in fact, lost majority status on July 10, 2014.19 Accordingly, I also rely on this basis to conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union on July 10, 2014. Whether they Respondent Violated Section 8 (a) (5) and (1) of the Act by denying the Union’s Request to Conduct a Health and Safety Inspection As set forth in greater detail above, on July 10, 2014, the Un- ion requested that the Respondent provide available dates for the union to conduct a safety and health inspection to review the “OSHA matters that require abatement and compliance.” The Respondent denied the Union’s request to conduct a health and safety inspection on the basis that it had withdrawn recog- nition. In Holyoke Water Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d 49 (1st Cir. 1985), the Board noted that health and safety matters are mandatory subjects of bargaining upon which an employer is obligated to bargain on request. The Board de- termined that in granting a union access to an employer’s prop- erty to insure the health and safety of employees, it is necessary to determine that the responsible representation of employees can only be achieved by a union having access to an employer’s premises. Under such circumstances, an employer’s property rights must yield to grant a union reasonable access to the facil- ity. Applying that test, the Board granted the union reasonable access to the employer’s facility in order to conduct a survey of potential health and safety hazards. In Standard Motor Products, 331 NLRB 1466, 1494 (2000), the Board determined that an employer violated Section 8(a)(5) and (1) when it refused to provide the union access to its facili- ty for a health and safety inspection by the union’s safety ex- pert, after the union had been presented with the number of complaints by employees regarding safety issues in the plant. 19 There is no stipulation in the record between the parties regarding the exact number of employees in the bargaining unit on July 10, 2014. At the hearing, the General Counsel and the Union appeared to suggest that Harve and Sterczek are supervisors within the meaning of Section 2(11) of the Act and thus should be excluded from the unit. There is, however, scant evidence in the record regarding the job duties and authority of Harve and Sterczek. Based on the circumstances, I find that it is unnecessary to determine the status of Neace and Sterczek. If Neace and Sterczek are included in the unit the Respondent authenti- cated 10 signatures in a unit of 26 employees. If Neace and Sterczek are excluded from the unit, the Respondent has only authenticated 8 signa- tures in a unit of 24 employees. Under either scenario, the Respondent has not established that the Union, in fact, lost majority status in the unit based on the employee petition. In the instant case, since employees had presented concerns to the Union regarding safety matters in the plant after OSHA had cited the Respondent for safety violations, I find that the Union has demonstrated it was necessary for it to have access to the Respondent’s facility in order to determine the status of the Respondent’s compliance with the OSHA citations. The fact that a fair reading of the Respondent’s implemented offer granted the Union reasonable access to the plant in order to discuss safety matters with the Respondent strengthens the Union’s position in this matter. Since the only basis for the Respondent’s refusal to grant the Union reasonable access to its facility in order to conduct a health and safety inspection was its reliance on its withdrawal of recognition on July 10, 2014, the Respondent has violated Section 8(a)(5) and (1) by summarily rejecting the Union’s request for a health and safety inspection. CONCLUSIONS OF LAW 1. The Union is now and, at all material times, has been the exclusive bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production, maintenance, and shipping and receiving employees employed by the Em- ployer at its facility currently located at 11355 Franklin Ave- nue, Franklin Park, Illinois; but excluding office clerical em- ployees and guards, professional employees and supervisors as defined in the Act. 2. By failing to bargain in good faith with the Union by en- gaging in surface bargaining without the intention of reaching an agreement, the Respondent violated Section 8(a)(5) and (1) of the Act. 3. By refusing to provide the Union with necessary and rel- evant information, the Respondent violated Section 8(a)(5) and (1) of the Act. 4. By withdrawing recognition from the Union as the collec- tive-bargaining representative of the above-noted unit on July 10, 2014, the Respondent violated Section 8(a)(5) and (1) of the Act. 5. By denying the Union access to its Franklin Park, Illinois facility to conduct a health and safety inspection, the Respond- ent has violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As part of the remedy for the Respondent’s unlawful with- drawal of recognition in violation of Section 8(a)(5) and (1) and its failure to bargain in good faith, I shall order the Respondent to on request, recognize and bargain with the Union in good faith. The General Counsel and the Union argue that, under the circumstances present in this case, it is appropriate to extend the Union’s certification year pursuant to the principles ex- pressed in Mar-Jac Poultry Co., 136 NLRB 785 (1962), and its progeny. In Dominguez Valley Hospital, 287 NLRB 149 (1987), the Board explained these principles as follows: In order to assure a reasonable time for bargaining “without DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 outside interference or pressure.” The Board has held that “ab- sent unusual circumstances, an employer will be required to honor a certification for a period of one year.” Mar-Jac Poultry Co. 136 NLRB 785, 786 (1962) (footnote omitted). As the Board there held, when an employer has, during part or all of the year immediately following the certification, refused to bargain with the elected employee representative and thereby “taken from the Union” the opportunity to bargain during the “the period when Unions are generally at their greatest strength,” the Board will take measures to assure a period of at least a year of year good-faith bargaining during which a bar- gaining representative need not fend off claims that it has lost its majority support.” Id at 149. In Dominguez Valley Hospital, at 650, the Board reiterated its policy that the certification year begins to run on the date of the parties first bargaining session. The Board has, depending on the circumstances, also extended the certification year for less than a year for what it considers to be a “reasonable period of time Latino Express, Inc., supra, fn. 6 and JD slip op at 17 fn. 21; Valley Inventory Service, 295 NLRB 1163, 1167 (1989). In the instant case, as noted above, pursuant to an election conducted in Case 13–RD–068844, the Union was again certi- fied as the representative of the bargaining unit on July 31, 2012. Pursuant to a settlement agreement approved on July 8, 2013, the Respondent agreed to an extension of the Union’s certification year for 1 year from the date of the approval of the settlement agreement. In late August 2013, the Union contacted the Respondent to discuss the discharge of the Union’s steward at the Franklin Park facility and to schedule negotiation meet- ings. On September 12, 2013, the parties met to discuss the discharge of the Union’s steward and some insurance issues involving two employees. At that meeting the parties agreed to meet for collective-bargaining on October 31, 2013. As noted above in detail, beginning on October 31, 2013, I find that the Respondent engaged in a course of conduct that established that it was engaging in surface bargaining without the intention of reaching an agreement in violation of Section 8(a)(5) and (1). Thereafter, the Respondent refused to provide the Union with relevant and necessary information in violation of Section 8(a)(5) and (1). There is no contention and no evidence to es- tablish that the Respondent engaged in any unlawful conduct at the meeting held on September 12, 2013. Under these circum- stances, I find that it is appropriate to extend the certification year for a 10-month period after the parties have commenced good-faith bargaining. The General Counsel and Union also request that the Re- spondent be ordered to post a notice to employees in both Eng- lish and Polish. When the Union was first certified as the bar- gaining representative of the unit in 2007, approximately two thirds of the bargaining unit was predominantly Polish speak- ing. At meetings the Union had to rely on the use of a translator to communicate with a substantial number of unit employees. As late as 2013 approximately two thirds of the remaining 26 unit employees were predominantly Polish speaking. In such circumstances, the Board’s policy is to post a notice in multiple languages in order to fully communicate to employees their rights under the Act. Alstyle Apparel, 351 NLRB 1287 (2007). Accordingly, I shall order the notice to be posted in both Eng- lish and Polish. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended20 ORDER The Respondent Arlington Metals Corp., Franklin Park, Illi- nois its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to bargain in good faith with the Union as the collective-bargaining representative of the employees in the following appropriate unit by engaging in surface bargaining without the intention of reaching an agreement. The appropriate unit is: All full-time and regular part-time production, maintenance, and shipping and receiving employees employed by the Employer at its facility currently located at 11355 Franklin Avenue, Franklin Park, Illinois; but excluding office clerical employees and guards, professional employees and supervi- sors as defined in the Act. (b) Refusing to provide the Union with necessary and rele- vant information contained in its December 16, 2013 infor- mation request. (c) Withdrawing recognition from the Union as the collec- tive-bargaining representative of the employees in the unit de- scribed above. (d) Denying the Union access to its Franklin Park, Illinois facility to conduct a health and safety inspection. (e) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) On request, recognize and bargain in good faith with the Union for a reasonable period as set forth in the remedy portion of this decision, as the exclusive representative of the employ- ees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time production, maintenance, and shipping and receiving employees employed by the Em- ployer at its facility currently located at 11355 Franklin Ave- nue, Franklin Park, Illinois; but excluding office clerical em- ployees and guards, professional employees and supervisors as defined in the Act. (b) Provide the Union with the following necessary and rel- evant information it requested on December 11, 2013: Audited financial statements for the past 4 years (2009–2012) certified by an outside CPA. Financial reports for 2010-2013 which include a detailed in- come statement, a detailed balance sheet, and a statement of 20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. ARLINGTON METALS CORP. 25 cash flows. Sales by customer for each of the last 4 years (2009–2012) and current (2013) and projected sales for the next 3 years (2014–2016). An explanation of the Employer’s business conditions, in- cluding specific changes that have occurred and the actual impact on the Employer’s financial condition. Provide specific data, reports and analysis. Federal and state tax returns for the last 4 years (2009-2012). (c) Provide the Union reasonable access to its Franklin Park, Illinois facility in order to conduct a health and safety inspection. (d) Within 14 days after service by the Region, post at its facility in Franklin Park, Illinois, copies of the attached notice marked “Appendix”21in both English and Polish. Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distrib- uted electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since October 31, 2013. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 23, 2015 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union 21 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail to bargain in good faith with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied, Industrial and Service Workers International Union, AFL-CIO (USW) (the Union), as the collective-bargaining representative of our employees in the following appropriate unit by engaging in surface bargaining without the intention of reaching an agreement. The appropriate unit is: All full-time and regular part-time production, maintenance, and shipping and receiving employees employed by the Em- ployer at its facility currently located at 11355 Franklin Ave- nue, Franklin Park, Illinois; but excluding office clerical em- ployees and guards, professional employees and supervisors as defined in the Act. WE WILL NOT refuse to provide the Union with necessary and relevant information contained in its December 16, 2013 infor- mation request. WE WILL NOT unlawfully withdraw recognition from the Un- ion as the collective-bargaining representative of the employees in the unit described above. WE WILL NOT deny the Union reasonable access to our Franklin Park, Illinois facility to conduct a health and safety inspection. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed them by Section 7 of the Act. WE WILL, recognize the Union as your collective-bargaining representative, and on request, bargain in good faith with the Union and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit. WE WILL provide the Union with the following necessary and relevant information it requested on December 11, 2013: Audited financial statements for the past 4 years (2009–2012) certified by an outside CPA. Financial reports for 2010-2013 which include a detailed in- come statement, a detailed balance sheet, and a statement of cash flows. Sales by customer for each of the last 4 years (2009–2012) and current (2013) and projected sales for the next 3 years (2014–2016). An explanation of the Employer’s business conditions, in- cluding specific changes that have occurred and the actual impact on the Employer’s financial condition. Provide specific data, reports and analysis. Federal and state tax returns for the last 4 years (2009–2012). WE WILL provide the Union reasonable access to our Frank- lin Park, Illinois facility in order to conduct a health and safety inspection. ARLINGTON METALS CORP. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/13-CA-122273 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.