AK Steel Corporation

National Labor Relations Board - Administrative Judge Opinions

Jul 10, 2012

06-CA-062501 (N.L.R.B. Jul. 10, 2012)

JD–37–12
Butler. PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AK STEEL CORPORATION
and Case 6–CA–062501
UNITED AUTO WORKERS LOCAL 3303
a/w/ UNITED AUTOMOBILE, AEROSPACE,
AGRICULTURAL AND IMPLEMENT WORKERS
OF AMERICA
JoAnn Dempler, Esq. (NLRB Region 6),
for the Acting General Counsel
G. Randall Ayers, Esq. (AK Steel Corporation),
of Cincinnati, Ohio, for the Respondent
Marianne Oliver, Esq. (Gilardi Oliver and Lomupo),
of Pittsburgh, Pennsylvania, for the Charging Party
DECISION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves the contention that
an employer unlawfully delayed furnishing a union with requested and relevant information. The
union requested accounting and financial information from the employer about the collectively-
bargained profit-sharing plan and the calculation of payments to employees under the plan. For
the reasons explained herein, I conclude that the employer unlawfully delayed furnishing the
requested information to the union.
STATEMENT OF THE CASE
On August 11, 2011, the United Auto Workers Local 3303 a/w United Automobile,
Aerospace, Agricultural and Implement Workers of America (Union) filed an unfair labor practice
charge against AK Steel Corporation (AK Steel), docketed by Region 6 of the National Labor
Relations Board (Board) as Case 6–CA–062501.
On November 28, 2011, based on an investigation into the charge filed by the Union, the
Acting General Counsel (General Counsel), by the Acting Regional Director for Region 6 of the
Board, issued a complaint and notice of hearing against AK Steel alleging a violation of Section
8(a)(1) and (5) of the National Labor Relations Act (Act). AK Steel filed an answer denying all
violations of the Act.
2
A trial in this case was conducted before me on March 1 and 7, 2012, in Pittsburgh,
Pennsylvania.
The complaint originally alleged an unlawful delay in furnishing the Union requested and
relevant information from on or about June 13, 2011, to on or about September 6, 2011 5
(¶12(b)), and further, an unlawful failure to provide other requested information (¶12(c)(1)-(4)).
At the beginning of the hearing on March 1, 2012, the General Counsel moved,
consistent with pretrial discussions, to amend ¶12(c)—the subparagraph alleging the failure to
provide certain requested information. The General Counsel moved to amend ¶12(c)(1) to 10
allege a delay in furnishing information from on or about June 13, 2011 to December 1, 2011.
Subsequently, in light of witness testimony, the General Counsel made a similar motion to
amend ¶12(c)(4) to allege a delay in furnishing information from on or about June 13, 2011 to
December 1, 2011. The General Counsel further moved to add ¶12(c)(5) and (6), alleging the
failure to furnish certain additional requested information to the Union. I granted the motions to 15
amend. The Respondent opposed the motions only to the extent of the amendment to add
12(c)(6). Subsequently, the morning of the second day of hearing, March 7, 2012, the General
Counsel moved further amendments to reflect the receipt that morning by the Union of the
remaining items allegedly not provided to the Union. Thus, with my permission, and without
objection by the Respondent, complaint ¶¶12(c)(4), (5) and (6) were amended to allege a delay 20
in furnishing the requested information to the Union from on or about June 13, 2011, to on or
about March 7, 2012. With these amendments to the complaint, the General Counsel agreed
that all requested information (or the parties’ agreed to modifications of the requested
information) had been provided, and that the allegations in this case were now wholly ones of
unlawful delay and no longer of unlawful refusal to provide information.25
Counsel for the General Counsel and for AK Steel filed briefs in support of their positions
by April 11, 2012. On the entire record, I make the following findings, conclusions of law, and
recommendations.
30
JURISDICTION
AK Steel is a corporation with an office and steel-making facility in Butler, Pennsylvania,
among other locations. It manufactures and sells steel and steel products at its Butler,
Pennsylvania facility. During the 12-month period ending July 31, 2011, AK Steel, in conducting 35
its business operations, sold and shipped from its Butler, Pennsylvania facility products, goods,
and materials valued in excess of $50,000 directly to points outside the Commonwealth of
Pennsylvania. The General Counsel alleges, and AK Steel admits, that at all material times it
has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union has been a labor organization within the meaning of Section 2(5) of the 40
Act. Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
45
A. Background facts
AK Steel is an integrated steelmaker producing a wide-range of nonretail steel and steel
products at facilities in Ohio, Pennsylvania, Kentucky, and Indiana. It employed approximately
6,600 employees at the end of 2011. It is the corporate successor to the American Rolling Mill 50
Company (ARMCO) which traces its roots to the late 19th century and the first wave of
3
integrated steel production in America. Production began at what is now AK Steel’s Butler
Pennsylvania plant in the early years of the 20th century. The Butler plant employees have
been represented by UAW Local 3303 since 1933.
AK Steel and the Union are parties to a collective-bargaining agreement, effective 5
October 1, 2006, and scheduled to expire no earlier than September 30, 2012, which covers the
terms and conditions of employment for the hourly production, maintenance, and service
employees of the Butler plant. This labor agreement provides (at Exhibit 1 to Appendix B) for a
profit-sharing plan that pays quarterly payments to employees based on quarterly and annual
10
[p]retax operating profit as reported in the Financial and Operating Results for the
Butler and Zanesville Works. The cumulative profit sharing accrual is an item in
the general ledger.

The “Zanesville Works,” referenced in Appendix B refers to the Employer’s Zanesville, 15
Ohio plant. While the profit-sharing calculation is based on the profits earned at both the
Zanesville and Butler plants, currently only Butler employees receive profit-sharing payments.
Some years ago Zanesville employees accepted a one time “buy out” from the plan and no
longer receive payments from the plan.
20
Individual payments are made to an employee as a percentage of the employee’s base
wage. The first three payments for the year are made to employees on approximately the
middle of the month following the completion of the quarter. The fourth payment, according to
witness testimony, is a “true up type of a calculation, where any adjustments and so forth, that
would impact the profit sharing plan for the year, are determined and put through that fourth 25
quarter. And that is . . . paid somewhere around February 15th or February 20th each year.”
According to the profit-sharing plan’s terms:
F. Information Confidentiality30
In order to protect the confidential nature of AK Steel's financial results, certain
restrictions must be recognized. Specific financial information will be shared with
union personnel who are bound by secrecy agreements (and their CPA, if
requested). Payment results will be communicated, as available, to all 35
employees.
G. Changes in the Plan
It is not anticipated that any change will need to be made in any features of the 40
plan. However, changes in accounting procedures may be prescribed by the
Internal Revenue Service, Securities and Exchange Commission, Financial
Standards Board, the Vice President of Corporate Finance, or others. Also, major
changes in capital facilities or product processing could also have some major
impact on financial results. All such changes will be reviewed and mutually 45
agreed to by the appropriate union personnel, along with the necessary
adjustments to the plan to enable it to continue to provide results equitable to
those that would have otherwise been obtained.
In addition to the profit-sharing plan, Appendix B of the labor agreement also provides 50
for two “add on” plans to the profit-sharing payment. One (at Exhibit 2) is a “Customer
4
Assurance Plan” which provides for an add on of ten percent of the profit-sharing payout based
on “[o]utstanding performance for customer assurance,” calculated pursuant to a formula that
reflects low sales returns or credits. The second (at Exhibit 3) is a “Safety Performance Plan”
that provides for another “add on” of ten percent for “outstanding safety performance,”
measured as “zero major injuries for the Butler Works for 750,000 safe man-hours attained in a 5
quarter.”1
B. The 2010 information request and profit-sharing dispute
The allegations of this case involve the Employer’s delay in providing information10
requested in 2011 regarding 2010 profit sharing (and the related Appendix B plans). However,
the events in this case overlap and to some extent are intertwined with the parties’ dispute
regarding the 2009 profit-sharing calculations.
The profit-sharing payment to employees in 2009 declined from 2008. In April 2010, the 15
Union contacted and then engaged a certified public account, Larry Barger, and his firm Alpern
Rosenthal, to work with the Union to verify the profit-sharing payments made by the Employer in
2009 and then, later, for 2010 as well.
With the assistance of Barger, on May 3, 2010, the Union sent the Employer an 20
extensive information request, with approximately 27 numbered items, seeking an array of
financial and accounting information regarding the profit-sharing payment and the calculations
on which the 2009 profit sharing was based.
In addition, on May 24, 2010, the Union filed the first of four grievances under the labor 25
agreement challenging the profit-sharing calculation and payments and alleging that unilateral
changes had been made to the plan in 2009. The May 24 grievance challenged the first quarter
2010 payout, 2009 payouts, and alleged changes to the plan in 2009. Subsequent grievances
filed August 3, and November 2, 2010, and then on March 11, 2011, challenged the remaining
profit-sharing calculations and payments for the 2010 financial year. These grievances were 30
ultimately scheduled for arbitration on September 12, 2011, after a continuance related to
witness availability. As discussed below, the arbitration was then postponed until October 25,
2011, when the dispute was heard by an arbitrator.
The Union filed an unfair labor practice charge over the Employer’s response to the May 35
2010 information request (seeking 2009 financial information). The Acting General Counsel
issued a complaint and the matter was set for trial on March 16, 2011. Just days prior to the
trial, the parties reached a partial settlement agreement in which, inter alia, the Employer
agreed to furnish the Union with many (approximately 20) of the requests from the May 2010
information request, some as modified by the parties’ through discussion. This left seven items 40
from the information request unresolved, and an unfair labor practice hearing regarding the
Employer’s duty to provide those items went forward on March 16, 2011, conducted by
Administrative Law Judge Eric Fine. On May 27, 2011, Judge Fine issued a decision and
recommended order requiring the Employer to provide six of the items from the letter (with some
customer and supplier information redacted) and dismissing the General Counsel’s allegations45
as to one item (item 7).

1The full text of Appendix B of the labor agreement containing the profit sharing and two add
on plans is found in the record at GC Exh. 2, at pages 151–157. It is unnecessary to reproduce
the lengthy text of Appendix B as part of this decision.
5
In early May 2011, the Employer provided 2009 information that was covered by the
March 2011 pretrial settlement.
On June 13, 2011, the Union sent a letter to the Employer seeking clarification and
additional information related to some of the 2009 information that had been provided. 5
According to email correspondence from the Union, the Employer was going to provide this
follow-up information by July 8. However, an attorney for the Employer, Stephanie Bisselberg,
responded that due to a “significant incident at the Butler plant on July 1”—later identified in the
record as a breakout that damaged the Butler works new electric arc furnace—the furnishing of
the information would be delayed 11 days until July 19. 10
On July 8, the Regional Director for Region 6 of the Board approved a settlement
reached by the parties in response to Judge Fine’s decision. This settlement ended the
litigation over the 2009 financial documents, provided for the Respondent’s furnishing of the
remainder of the documents that Judge Fine found should be provided, and provided measures 15
for protecting the confidentiality of the furnished documents.
On or about July 20, the Employer provided responses to the Union’s June 13, follow-up
request. On July 28, 2011, the Employer provided the additional 2009 information pursuant to
the settlement approved by the Regional Director on July 8. 20
On August 30, 2011, the Union’s accountant, Barger, participated in a phone call with
Bisselberg, during which they went through the 2010 request (for 2009 financial information),
discussing remaining items he needed and follow-up questions he had about what had been
provided. During this meeting Barger requested some additional information and the parties 25
discussed Barger’s request to have someone from his firm visit the Butler works to review
additional information. This visit ultimately occurred on September 9. Barger’s additional
questions, completion of the information request and the additional information requested for
2009 financials occurred over the course of fall 2010. Most of the additional information and/or
answers to questions were provided either by October 12, November 15, or December 8, 2011,30
in correspondence from the Employer. A final piece of 2009 financial information was provided
in January 2012.
C. The Union’s initial request for 2010 profit-sharing information
35
The Union’s initial request for 2010 profit-sharing information was made January 27,
2011. The local union’s financial secretary treasurer, Daniel Green, sent a letter to AK’s
manager of labor relations, Patrick Bennett, stating:
In order to insure that the Appendix B [the profit sharing provision of the 40
labor agreement] 2010 profit sharing calculations are correct, the Union is
requesting to do a financial audit of the company’s 2010 financial records when
they are finalized. Enclosed please find a list of the financial information our
accountants need to have in order to make the review of the financial records.
Nationally, the Union is willing to execute an appropriate confidentiality 45
agreement in order to obtain this information.
Enclosed with this letter was a 27-item information request list developed by the Union’s
accountant, Larry Barger, based on the very similar information request Barger had used
seeking 2009 financial information on the profit sharing. 50
6
There was no response to the letter and no discussion between the parties regarding the
information requested in Green’s January 27, 2011 letter. As discussed above, in March the
parties engaged in unfair labor practice litigation over the 2010 request for information, and in
May, Judge Fine issued his decision. As of June 13, 2011, there was no discussion between
the parties, and no response from the Employer regarding the January 27, 2011 request for 5
2010 financial information.
D. The June 13, 2011 information request for 2010 financial information
On June 13, 2011, a follow-up request for information, largely duplicative of the January 10
request for information, but adding a couple of additional items, and dropping one, was sent to
Bennett by Green. The letter stated:
Dear Mr. Bennett:
15
I sent you a letter on January 27, 2011 a copy of which I have attached. The
letter was to inform the Company that the Union wished to review the relevant
2010 financial information, as it pertains to the 2010 profit-sharing payouts, when
the records were finalized. I have never received a response but I am assuming
that financial information has certainly been finalized by this time. If I am wrong in 20
that regard, please advise me promptly.
I am now making my information request based upon the finalized financial
records and I am asking that the Union's auditor be provided the necessary
information, as indicated, as soon as possible. Naturally, the Union is willing to 25
execute an appropriate confidentiality agreement in order to obtain this
information.
I have also attached a revised information request. Item number (7) from the
original request has been eliminated and we are asking for an updated Exhibit C 30
from the NLRB partial Settlement Agreement to include all of the 2010 and 1st
quarter 2011 quarterly profit sharing payments (item 28). In addition we have
added two more items as additional clarification to the previously requested
information, they are items: 29 and 30.
35
The list of the 30 requested items was attached to this letter. The Union’s CPA, Barger, testified
about the relevance to the Union of each of the items sought in the June 13, 2011 information
request. Below, his testimony as to each item is reviewed:
40
Item 1
Provide internal financial statements for Butler/Zanesville and Consolidated AK
Steel internal financial statements.
45
Barger testified that internal financial statements would typically include a balance sheet,
a statement of income or statement of operations, and statement of cash flows. Barger testified
that in simplest form, the profit-sharing calculation under the contract is based on the revenues
and costs of the Butler and Zanesville facilities. Accordingly, Barger testified that the
50
7
income statement is definitely necessary and relevant from the standpoint of
inputs to the profit sharing calculation.
The balance sheet has relevancy from the perspective specifically of
inventory and of property, plant and equipment numbers. Again, related to as 5
they flow -- as inventory becomes cost, if its sold, expenses flow in to income
statement.
If property, plant and equipment is depreciated, that flows in to the income
statement. And that also flows to the profit sharing calculation. . . . 10
[T]he initial request was for Butler Zanesville and a consolidated schedule, which
showed all other entities and consolidation to AK Holdings, to make sure that the
information was rolling in to the consolidated financial statements for AK, that
was then included in the company's public filing of the FCC and 10K report. . . .15
[This item] No. 1 would be integral to the overall engagement.
Item 2
20
Provide the Butler/Zanesville Quarterly Profit Sharing Computation for quarters
ended March 31, 2010, June 30, 2010, September 30, 2010 and December 31,
2010.
Barger testified:25
That represents the actual calculation of the amount of the profit sharing and the
amount payable to the employees. . . . [T]hat is substantially the source
document of the engagement. Without that, I don't even know what the profit
sharing calculation is or represents.30
Item 3
Provide the Butler/Zanesville Profit Sharing Plan document.
35
Barger testified that this request was originally requested in 2009, but through that
process the Union learned that profit-sharing plan is the plan set forth in the collective-
bargaining agreement. The Union requested it again in 2010
to ensure that there were not any modifications or amendments to the plan, 40
which for a profit sharing plan or any kind of employee benefit plan from time to
time, there can be amendments made. In this case, they were the same. Based
on what we were told by the company.
Item 445
Provide the 2010 quarterly payroll registers (supporting total quarterly hourly
wages).
Barger testified that this request allowed the Union to see the money spent by AK on 50
payroll, which is “an integral part of the profit sharing calculation [in] determining . . . [the] pro
8
rata allocation of the payment” as each employee receives his or her amount of profit-sharing
based on his or her actual wages. It was also a way of measuring labor costs, which is “[o]ne of
the key expenses” deducted from the calculations to arrive at the amount of profit on which
payouts were based under the profit-sharing plan.
5
Item 5
Provide the general ledger detail of 2010 profit sharing contribution expense.
Barger testified that the general ledger would constitute AK’s “summary accounting 10
records” and would reveal the “journal entries and postings to that general ledger” which could
be compared to AK’s profit-sharing calculations to make sure the same amounts were posted to
the general ledger. It also enabled the Union to ensure that cumulative profit-sharing accruals
were accurately added back to previous quarters in order to ensure that operating income
before taxes—which was the calculation on which profit sharing was based—was accurately 15
stated.
Item 6
Provide the 2010 sales journal and reconciliation of net sales from sales journal 20
to the general ledger.
Barger testified that “the first component of operating income before taxes would be the
sales or revenue number for the Butler Zanesville facility. So these sales journals would
represent some underlying detail[ed] sales information . . . probably prepared on a monthly 25
basis for their financial statements.” Barger explained, that “[i]f you look at statement of income
or operations, the top one is generally sales number[s].”
So that if we obtain those for each month of the year, first of all, we can
summarize them and total them to make sure the sales agrees to the Butler 30
Zanesville statement of operations.
Secondly, from time to time, any employer can have reconciling items
between the sales journal and the general ledger.
If there were reconciling items, that we could determine through the
reconciliation process what they were and were they what they were and were 35
they significant, do they impact the profit sharing plan at all or not.
Item 7
Provide a 2010 schedule of average gross margin by product.40
In his May 27, 2011 decision, Judge Fine did not uphold the Union’s right to obtain this
item, which was requested for 2009 profit-sharing calculations. As a result, the Union did not
continue to seek this item for the 2010 profit-sharing calculations. Green’s June 13, 2011 cover
letter indicated the Union was not seeking this information and the item was listed but marked 45
through to indicate it was being struck from the 30-item list.
Item 8
As part of the March 16, 2011 pretrial settlement over the 2010 financial information, the 50
Union agreed to modify this request upon the Employer’s agreement to provide the following:
9
The Employer will provide a schedule showing results (sales and cost) of product
transferred from Butler to Mansfield books.
The Union also treated its outstanding request for item 8 for 2010 financial information 5
as subject to this modification.
Barger explained that the Union understood that historically there have been transfers of
product from the Butler and Zanesville facility to the Employer’s Mansfield, Ohio. For a variety
of reasons, certain steps in the manufacturing process of other AK plants might be performed at 10
Zanesville or Butler and the subsequent product transferred to the Mansfield facility (which is
not subject to this collective-bargaining agreement or the profit-sharing calculations). The
objective of this request, according to Barger, was to ensure that “expenses were properly
charged with expenses related to those things transferred” and that the Butler and Zanesville
facilities “were give credit for ultimate sales revenue.” In terms of profit sharing, “[w[ho gets 15
credit for the revenue and who bears the cost would be the two key questions.”
Item 9
Provide gross margin by plant for plants under AK Steel.20
The Union was told that this information did not exist, and at trial, Barger did not explain
the reason the Union requested it.
Item 1025
Provide the December 31, 2010 perpetual inventory report. We will provide a
listing of inventory items selected for testing from the December 31, 2010
inventory report and request that the most recent invoices/purchase orders for
the items selected for testing be provided to us.30
Barger testified that this request was for an inventory report to enable the Union to make
a sample selection of inventory items to ensure that they were properly recorded as inventory
because “ultimately, they flow from inventory in the balance sheet to the statement of income or
operation.” In other words, this was a way of checking that the correct figures were being 35
included and excluded in the cost of goods sold, which, according to Barger, is one of the
largest single expense items on the statement of operations. If the inventory was not accounted
for accurately the error would work its way into the profit-sharing calculation.
Item 1140
As part of the March 16, 2011 pretrial settlement over the 2010 financial information, the Union
agreed to modify this request upon the Employer’s agreement to provide the following:
The Employer will provide the information and calculations based upon the 45
Employer’s 10(k) report.
The Union also treated its outstanding request for item 11 for 2010 financial information
as subject to this modification.
50
10
Barger explained that in the Butler Zanesville statement of operations, there is a
reference to base cost:
The objective of request this was because . . . these expenses are part of the
profit sharing calculation [and] we wanted to be able to perform an analytical 5
procedure from a reasonableness test basis to verify again the interrelationships,
the approximations, if these amounts were reasonable that were flowing in to the
statement of operations and ultimately profit sharing plan.
Item 1210
As part of the March 16, 2011 pretrial settlement over the 2010 financial information, the Union
agreed to modify this request upon the Employer’s agreement to provide the following:
Payroll information—Employer will provide payroll information as calculated at 15
the corporate headquarters related to Butler/Zanesville to reflect the transfer to
the Butler/Zanesville ledger.
The Union also treated its outstanding request for item 12 for 2010 financial information
as subject to this modification.20
Barger explained that this request was a complement to the request for item 4. While
item 4 sought the more detailed payroll register, that information would ultimately be entered as
part of a general ledger item for the payroll. Barger explained that “the quarterlies [from item 4]
then roll up in to the general ledger to make sure the postings to the general ledger are 25
complete and accurate from the detail and flow up.”
Items 13-16
Item 1330
Provide accounting policy for allocating shared corporate expenses from
management including accounting, human resources, information systems and
executive compensation (including stock options), payroll benefits (e.g.,
postretirement benefits), and legal expenses.35
Item 14
As part of the March 16, 2011 pre-trial settlement over the 2010 financial information, the Union
agreed to modify this request upon the Employer’s agreement to provide the following: 40
Administrative Expenses—Employer will provide Butler/Zanesville and 10k
consolidated statement regarding administrative expenses.
The Union also treated its outstanding request for item 14 for 2010 financial information 45
as subject to this modification.
Item 15
As part of the March 16, 2011 pre-trial settlement over the 2010 financial information, the 50
Union agreed to modify this request upon the Employer’s agreement to provide the following:
11
Taxes and Insurance allocations—Employer will provide, if it exists, a
policy that describes how each insurance policy is divided according to
insurable values and how it was allocated to Butler/Zanesville. With
regard to tax bills, the Company will make these available..5
The Union also treated its outstanding request for item 15 for 2010 financial information
as subject to this modification.
Item 1610
As part of the March 16, 2011 pre-trial settlement over the 2010 financial information, the
Union agreed to modify this request upon the Employer’s agreement to provide the following:
Building and Equipment allocations - The Employer will provide15
documents showing assets bought and charged to Butler. Additionally, it
will provide its policy relating to the approval policy regarding how assets
are bought, and the corporate policy for approval of new assets.
The Union also treated its outstanding request for item 16 for 2010 financial information 20
as subject to this modification.
As to all these requests, Barger explained that knowing these expenses and allocations
for shared corporate expense, administrative expense, tax, insurance, building, and equipment
allocations were important for validating the items that went into, or potentially could go into the 25
expense portion of the profit sharing calculation, and therefore, such expenses could directly
affect the profit-sharing calculation and payout to employees. Barger testified that these
expenses were deducted from revenues and therefore affected the profit-sharing calculation.
Item 1730
Provide a schedule of depreciation expense as a percentage of total property,
plant and equipment by plant and on a consolidated level.
Barger testified that this request was “an analytical testing step to gain some comfort 35
over the relative percentage of depreciation being allocated to the Butler Zanesville operations
versus other companies in the consolidated AK.”
Item 18
40
Provide the general ledger detail of 2010 repairs and maintenance. We will make
a sample selection of repair and maintenance expenditures and request that the
invoice and related documentation be provided to us.
Barger testified that this request would help to validate the expense category in the 45
profit-sharing calculation, so the Union could more clearly see and assess the items being
charged as an expense against the profit-sharing calculation. Barger testified that the Union
would use the information to make a sample selection to verify that they are in fact repairs and
maintenance items and not expenses that should have been capitalized and depreciated as part
of the facility.50
12
Item 19
Provide policy for allocating selling cost to the Butler/Zanesville plants.
Barger testified that there is a category in the operations statement called Selling 5
and Administrative cost that is deducted from profit sharing. This request was an
attempt to follow that expense and see how it is part of the statement of operations for
Butler/Zanesville plants.
Item 2010
Provide policy for allocating research and development costs to the Butler/Zanesville
plants.
Barger explained that, 15
as with most manufacturing companies, there are research and development . . .
costs incurred, so this item is requesting the company's policy for allocating or
charging research and development cost to the Butler Zanesville operations.
20
These costs, again, would typically be counted as an expense that ultimately reduces the profit-
sharing calculation.
Items 21 and 22
25
As part of the March 16, 2011 pre-trial settlement over the 2010 financial information, the
Union agreed to modify these requests upon the Employer’s agreement to provide the following
information described herein:
LIFO calculations for Butler/Zanesville are done only for their inventory. No 30
information on a plant by plant basis is available for comparison.
LIFO reserve adjustments are only available for Butler/Zanesville. No
information on a plant by plant basis is available.
35
The Union also treated the outstanding requests for items 21 and 22 for 2010 financial
information as subject to this modification.
Barger explained that LIFO is a methodology of accounting for inventory and cost of
goods sold. Barger testified that a LIFO calculation is prepared and then a “LIFO [reserve] 40
adjustment is recorded on the company’s books, in this case it is also part of the profit sharing
calculation.” According to Barger, there would be an “adjustment [to the] company records on a
monthly or quarterly basis to mark the change from period to period in the [ ] inventory” as
recorded by LIFO calculations.
45
Item 23
As part of the March 16, 2011 pretrial settlement over the 2010 financial information, the
Union agreed to modify this request upon the Employer’s agreement to provide the following:
50
13
Policy for Allocating Costs—Employer will provide its CFI’s (company financial
instructions, if one exists), and employer will provide the Butler P&L statement.
The Union also treated its outstanding request for items 23 for 2010 financial information
as subject to this modification.5
This would illuminate expenses that are ultimately taken out of the profit calculation.
Item 24
10
Provide 2010 schedule of expenses as a percentage of tonnage sold and
revenues for the Butler/Zanesville plants on a consolidated basis.
Barger explained that this was “an analytical type of a procedure or request to look at
their expense information as a percentage of tonnage sold and revenues. Again, from a 15
comparative perspective” it would give an indication of whether the level of expenses was
reasonable compared to sales and revenues. Barger would assess whether the level of
expenses “looks reasonable compared to other plants. Not a perfect science given. There are
differences from plant to plant to plant.”
20
Item 25
Provide a 2010 schedule [f]or total man hours, safe man hours and major injuries
on a quarterly basis for the Butler/Zanesville plants.
25
As referenced above, the profit sharing includes a component (Exhibit 3 to Appendix B) that
pays ten percent of the quarterly profit-sharing payout for “outstanding safety performance in a
quarter.” “Outstanding safety performance” is based on safety statistics for the period in
question.
30
Item 26
Provide a 2010 schedule of quarterly injuries reclassified as lost work day injuries
and supporting documentation for the Butler/Zanesville plants.
35
Barger testified that this request is also related to the safety “add on” component to profit
sharing. Section C of this component describes a process for reclassifying these types of
injuries.
Item 2740
Provide a 2010 schedule of quarterly net manufacturing claims as a percentage
of net sales plus net manufacturing claims for the Butler/Zanesville plants.
Barger testified that this request is related to the customer assurance “add on” to the 45
profit sharing. This information would provide evidence for whether or not the ten percent
customer assurance add on was correctly calculated.
50
14
Item 28
Provide an updated Exhibit C from the NLRB partial Settlement Agreement to
include all of 2010 and 1st quarter 2011 quarterly profit sharing payments.
5
This was an updated request for a written account of any changes to the Employer’s
profit-sharing plan, the date of changes, and the impact of these changes. In Exhibit C to the
NLRB partial settlement agreement the Employer had agreed to provide this information through
the first quarter of 2010. Barger testified that changes the Employer made in the methodology
for calculating overhead allocation, first adopted in the second quarter of 2009, and learned 10
about in detail by the Union for first time in February 2011, was, in the Union’s view, a breach of
the labor agreement, and this provided the basis for the argument to this effect made by the
Union in an October 2011 arbitration over the profit sharing.
Item 2915
The information provided in response to request #8 was a summary of transfers
between Butler and Mansfield which included total tons transferred, total sales
dollars, etc. Please provide a detail listing of the transfers to Mansfield so that we
could make selections of items transferred to ensure the appropriate costs were20
recorded and Butler received credit for the sale if it performed the necessary
critical processes in accordance with the Company's policy.
Barger testified that the request for item 29 was a detailed request of the documents in
item 8. As part of the settlement regarding item 8, the Employer provided a one page summary 25
of transfers. Item 29 requested detail for those transfers that, together would be rolled into the
summary provided by item 8. This enabled Barger to make a sample selection and test those
transfers on an individual basis to make sure that cost and expenses were being properly
charged to Butler or Mansfield.
30
Item 30
Please provide the corporate overhead allocations for each quarter of 2010
which agrees to the summary profit sharing payout history provided by AK Steel
under both the old and new corporate allocation methods.35
Barger testified that this request was related to item 28. Item 28 requested summaries
by quarter and for 2010 the Union received a one page summary from the Employer. This item
30 sought more detailed allocations that would support the summary. Overhead is an expense
item and therefore affects profit sharing. 40
E. August 11, 2011: the Union files unfair labor practice charges over its
request for 2010 records and serves an arbitral subpoena for the documents
45
The arbitration over the profit-sharing grievances filed in 2010 and 2011 was scheduled
to be heard September 12, 2011. The Union’s grievances alleged that the profit-sharing
payments in 2009, and in subsequent years, had been adversely affected by changes the
Employer had made in the plan without consultation with the Union.
50
15
According to the testimony of Union Attorney Marianne Oliver, settlement of the 2009
financial information issues in Judge Fine’s case in July 2011, was motivated by the Union’s
desire to expeditiously obtain the documents in time to use them in the upcoming arbitration on
profit sharing.
5
As to the 2010 financial information request, submitted in January and then again on
June 13, 2011, as of August 11, 2011, the Union had not received any information responsive to
this request, nor any response at all. While there had been discussions about furnishing the
2009 information, there had been no discussions between the parties regarding the Union’s
request for 2010 information. 10
On August 11, 2011, the Union filed the unfair labor practice charge at issue in this case,
alleging the Employer’s unlawful failure to provide the requested 2010 profit-sharing information.
That same day, the Union procured an arbitration subpoena, which was served on the Employer
August 15, requiring the production by September 1, 2011, of most of the same 2010 financial 15
information requested by the Union in its June 13, 2011 request.
The Employer responded to the Union’s subpoena on September 2, 2011, moving to
quash the subpoena or, in the alternative to reschedule the arbitration hearing. In its motion it
argued that the subpoena should be quashed as an unwarranted effort at arbitral discovery. 20
However, the thrust of the Employer’s argument was that it was willing to provide the
information but could not do so in time for the arbitration hearing scheduled for September 12,
2011. Accordingly, the Employer requested that either the subpoena be quashed, or, in the
alternative, that the arbitration hearing be continued to a later date, which it suggested be 60
days later. During a September 6, 2011 conference call with the arbitrator to discuss the matter,25
the Employer’s representative (Attorney G. Randall Ayers) told the Union representative
(Attorney Marianne Oliver) that it would take several weeks for the Employer to gather the
information for 2010 and it wanted to postpone the arbitration for that reason. During this call
Ayers agreed to provide the documents by October 14, 2011. The hearing was then
rescheduled to October 25 and 26, 2011.30
F. The Employer’s furnishing of 2010 information
The Union received a significant amount of the requested 2010 financial information
October 12, and then some additional information October 13-14, 2011. Some of this 35
information related to the 2009 information request but it also encompassed information
requested for 2010, as the Employer had agreed in discussions with the arbitrator. This was the
first 2010 financial information received by the Union. Barger testified that he and the Union
worked with the 2010 information that was received in the (less than) two weeks before the
arbitration, which went forward October 25, but knew there was further requested information 40
that the Employer had not provided.
Union Attorney Oliver testified that the Union went forward with the arbitration even
though it had not received all of the requested information. “We decided to cut and run. Go with
what we had. Because we had a series of grievances we had filed. We were going on the first 45
grievance we had filed.” Oliver testified: “our thought process was well, if we got more of the
information we believed would tell the tale and was relevant, we would just do another
grievance with whatever additional information we would get.” Oliver explained that the
“members were anxious. They wanted this done.” In fact, in August, the Union had opposed the
Employer’s motion to reschedule the arbitration, arguing that even without the 2010 financial 50
information the arbitration could go forward as scheduled September 12, as the requested
16
“financial information requested goes primarily to remedy” and, therefore, “is no basis for the
Company’s request to delay this hearing again.”
This material sent to the Union by the Employer between October 12-14, satisfied the
following items from the 30-item 2011 request for 2010 financial information:5
1-5, 8, 10-20, 23-26, 28.
Of the outstanding requests, the parties agreed, in accordance with Judge Fine’s ruling
regarding the same 2010 request, that item 7 did not need to be provided. The Employer had 10
indicated that there were no documents responsive to item 9.
Thus, after October 14, 2011, the items yet to be provided were items 62, 21, 22, 273,
294, and 305.
15
On December 1, 2011, the Union received further information satisfying the 2011
request for items 6, 22, and 29.
On March 7, 2012, item 21 and the remainder of items 27 and 30 were furnished to the
Union.20
25

2As to item 6, on October 12, the Union received from the Employer the requested 2010
sales journals and reconciliations for the third quarter of the year. The remainder of the
requested information (covering the other three quarters of the year) was received December 1.
3As to item 27, on October 12, the Union received responsive information listing the
schedule of quarterly net manufacturing claims as a percentage of net sales plus net
manufacturing for Butler/Zanesville for the third quarter only. But, not until March 7, 2010, was
the information pertaining to the remainder of the 2010 quarters provided.
4On October 12, the Union received detailed transfer information responsive to item 29 for
one month only, September 2010. On December 1, the information pertaining to the remaining
months of 2010 was provided.
5As to item 30 (which was a request for quarterly corporate overhead allocations, which
agrees with the summary profit-sharing payout history provided by the Employer), the
Employer’s October 12 response on this item referred the Union to its response to item 28,
which covered changes in the Employer’s profit-sharing plan. Barger contacted the Employer’s
representative, in-house attorney Stephanie Bisselberg, and after email correspondence, on
December 8, 2011, Bisselberg asked Barger to choose 3-5 additional months, and the Employer
would provide the data for those months only. Barger acceded to this and requested certain
months in January 6, 2012 email correspondence. Bisselberg replied the day before the
hearing in this matter, on February 29, 2012, indicating that the request was almost compiled
and that the information would be provided the following week. It was provided March 7, 2012.
17
Analysis
The General Counsel alleges that the Employer was statutorily obligated to furnish the
Union the information it requested June 13, 2011, and that it unlawfully failed to do so in a timely
manner. 5
A. The duty to provide information
Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer “to
refuse to bargain collectively with the representatives of its employees.” 29 U.S.C. § 158(a)(5). 10
"An employer's duty to bargain includes a general duty to provide information needed by the
bargaining representative in contract negotiations and administration." A–1 Door & Building
Solutions, 356 NLRB No. 76, slip op. at 2 (2011). See NLRB v. Truitt Mfg. Co., 351 U.S. 149,
152-153 (1956). As the Board explained in A–1 Door & Building Solutions, supra:
15
An employer's duty to bargain includes a general duty to provide
information needed by the bargaining representative in contract negotiations and
administration. See NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956)
[parallel citations omitted]. Generally, information concerning wages, hours, and
other terms and conditions of employment for unit employees is presumptively 20
relevant to the union's role as exclusive collective-bargaining representative. See
Southern California Gas Co., 344 NLRB 231, 235 (2005). By contrast,
information concerning extra unit employees is not presumptively relevant;
rather, relevance must be shown. Shoppers Food Warehouse Corp., 315 NLRB
257, 259 (1994). The burden to show relevance, however, is "not exceptionally 25
heavy," Leland Stanford Junior University, 262 NLRB 136, 139 (1982) enfd. 715
F.2d 473 (9th Cir. 1983); "[t]he Board uses a broad, discovery-type standard in
determining relevance in information requests." Shoppers Food Warehouse,
supra at 259.
30
Where the information is requested in connection with a grievance, the Board's test for
relevance remains a liberal one. In NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), the
Supreme Court endorsed the Board's view that a "liberal" broad "discovery type" standard must
apply to union information requests related to the evaluation of grievances. Analogizing the
grievance procedure to the pretrial discovery phase of litigation, the Court quoted approvingly 35
from the recognition in Moore's Federal Practice that
it must be borne in mind that the standard for determining relevancy at a
discovery examination is not as well defined as at the trial. . . . Since the matters
in dispute between the parties are not as well determined at discovery 40
examinations as at the trial, courts of necessity must follow a more liberal
standard as to relevancy.
4 Moore, Federal Practice P26.16[1], 1175–1176 (2d ed.), quoted in Acme Industrial Co., 385
U.S. at 437 fn. 6.45
Notably, when dealing with nonunit information where relevance must be established,
once the burden of showing the relevance of nonunit information is satisfied, the duty to provide
the information is the same as it is with presumptively relevant unit information. Depending on
the circumstances and reasons for the union’s interest, information that is not presumptively 50
relevant may have “an even more fundamental relevance than that considered presumptively
18
relevant.” Prudential Insurance Co. of America v. NLRB, 412 F.2d 77, 84 (2d Cir.), cert. denied
396 U.S. 928 (1969).
“An unreasonable delay in furnishing such information is as much of a violation of
Section 8(a)(5) of the Act as a refusal to furnish the information at all.” Monmouth Care Center, 5
354 NLRB 11, 51 (2009) (citations omitted), reaffirmed and incorporated by reference, 356
NLRB No. 29 (2010), enfd. 672 F.3d 1085 (D.C. Cir. 2012). "[I]t is well established that the duty
to furnish requested information cannot be defined in terms of a per se rule. What is required is
a reasonable good faith effort to respond to the request as promptly as circumstances allow."
Good Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). "In evaluating the promptness of 10
the employer's response, 'the Board will consider the complexity and extent of information
sought, its availability, and the difficulty in retrieving the information.'" West Penn Power Co.,
339 NLRB 585, 587 (2003) (quoting Samaritan Medical Center, 319 NLRB 392, 398 (1995)),
enfd. in relevant part 394 F.2d 233 (4th Cir. 2005).
15
Like a flat refusal to bargain, "[t]he refusal of an employer to provide a bargaining agent
with information relevant to the Union's task of representing its constituency is a per se violation
of the Act" without regard to the employer’s subjective good or bad faith. Brooklyn Union Gas
Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd.
603 F.2d 1310 (8th Cir. 1979). 20
B. Relevance
In this case the Union sought information to verify and understand the profit-sharing (and
related “add on” plans) calculations and payments made by the Employer to unit employees. 25
This profit sharing was a term and condition of employment for unit employees, and, as such,
information about it is presumptively relevant. See, A–1 Door & Building Solutions, 356 NLRB
No. 76, slip op. at 2. I recognize that the type of information sought by the Union—in depth
financial information that goes into the Employer’s calculation of profit—is the type that is
usually not considered presumptively relevant. But the introduction of profit sharing as a term 30
and condition of employment makes the financial data presumptively relevant—as the profit-
sharing calculation is a direct determinant of income paid to each bargaining unit employee.
In any event, the issue need not be a cause for extensive analysis in this case. Even
assuming, arguendo that the information was not presumptively relevant, the Union’s 35
accountant, Barger, testified credibly as to the usefulness to the union of each requested item,
as set forth above. His testimony was uncontradicted on this score. Under the liberal standard
of relevance utilized by the Board, the relevance of the Union’s information request has been
demonstrated. NLRB v. Acme Industrial Co., supra at 437 (question is only whether there is a
"probability that the desired information [is] relevant, and that it would be of use to the union in 40
carrying out its statutory duties and responsibilities").
Notably, the Employer’s challenge to the relevance of the Union’s request is narrowly
drawn. Indeed, it does not claim that the type of information requested by the Union is without
relevance. Rather, the Employer contends that the Union’s relevance interest in the information 45
ended after the Union went forward with the arbitration with only some of the requested
documents in hand. (R. Br. at 21-22.) The Employer points out that as early as September 6,
2011, the Union was opposing a delay in the arbitration hearing on account of the Employer’s
failure to provide the 2010 financial information, telling the arbitrator that the information went
“primarily to remedy” and, therefore, argues the Employer, evidently unnecessary for the 50
arbitration. On this basis, the Employer contends that the Union’s relevance interest was limited
19
to receiving information prior to the arbitration proceeding and that the information provided to
the Union on or before October 14—before the arbitration—“satisfied the Union’s desire for
‘relevant and reasonably necessary information” (R. Br. at 21). According to the Employer, the
information provided to the Union after the arbitration, in December 2011 and March 2012, was
not relevant and necessary for the Union. 5

Given my resolution of the delay issue for these later-furnished documents (see, below),
it would be possible to skip over the Employer’s argument. However, I believe it seriously
misconstrues the Board’s relevance standard. I reject the Employer’s claim that the Union’s
request was relevant only to the extent it could have (or did) form the basis for specific 10
arguments the Union chose to make at the arbitration hearing. More generally, I reject the
contention that the relevance of the Union’s information request narrowly turns on its relevance
to the profit-sharing grievances or profit-sharing arbitration. This is far too constricted a view of
the Union’s right to receive requested information that is relevant—as this information is—to
monitoring, verifying, and understanding collectively-bargained income paid by the employer to 15
unit employees. Des Moines Cold Storage, Inc., 358 NLRB No. 58, slip op. at 2 fn. 7 (2012)
(information about unit employees’ benefits “is presumptively relevant (even in the absence of a
grievance)”).
In determining whether an employer is obligated to supply particular information, the 20
question is only whether there is a "probability that the desired information [is] relevant, and that
it would be of use to the union in carrying out its statutory duties and responsibilities." NLRB v.
Acme Industrial Co., 385 U.S. 432, 437 (1967). Quite apart from the grievances the Union filed,
profit sharing is an important part of unit employees’ pay and part of the collectively-bargained
terms and condition of employment. The Union’s desire to monitor, verify, and familiarize itself 25
with the calculations and information comprising the profit-sharing calculation is relevant as a
matter of the Union’s right and duty to administer the labor agreement. A–1 Door & Building
Solutions, supra, slip op. 2 fn. 7. The usefulness of the information to the Union is not limited by
its decision to move forward with a grievance or pursue the matter in arbitration prior to
receiving all of the information. Notably, the Union never indicated that the only reasons it 30
sought the information was to prepare for the arbitration hearing. Its more general desire and
right to verify and understand this important source of employee income stands apart from
whether it was able to use the information in the arbitration proceeding. Des Moines Cold
Storage, supra at slip op. 2 fn. 7.6
35
I would add that, even as to the profit-sharing arbitration, the fact that the 2010
information primarily went to remedy does not render the information not relevant until the
parties reach the remedy stage of the arbitration. Less critical, perhaps, but not irrelevant.
Information on remedy obviously can be of value and import to a party’s strategy and decisions
about which claims to pursue on the merits in litigation or in an arbitral proceeding. Moreover, 40
the Union is entitled to start considering and preparing its arguments on remedy at any stage of
the grievance procedure. The Employer does not get to dictate when the Union is entitled to
requested information based on the Employer’s contentions about which phase of the arbitration
proceeding the information will be of must use to the Union.

6The Union’s broad right to request and receive information related to the employees’
contractually-negotiated terms and conditions justifies the relevance of the Union’s request on
its own terms. In any event, I note the perverse incentive to delay that would be created by
adoption of the Employer’s suggestion that the information loses its relevance if the Union
proceeds to arbitration without having received information requested long before the arbitration
hearing.
20
Accordingly, I find that the Union’s information request was relevant and necessary and
that the Employer was under a statutory obligation to provide the information requested (or the
compromise agreement reached between the parties on particular items).
C. Delay5
The gravamen of this case is the allegations of delay. The General Counsel alleges that
the Employer violated the Act by delaying the furnishing of information to the Union in response
to the Union’s June 13, 2011 information request
10
The request was first made (although much of the information was not yet prepared) in
January 2011. It was reiterated, with a couple of additional items requested on June 13, 2011.
However, the General Counsel’s claim of delay is not quite as straightforward as a claim that the
information was requested June 13, none provided until October 12-14, and the rest provided
December 1, and finally, March 7, 2012. 15
The complaint first alleges (¶12(a)) that on or about September 6, 2011, “the
Respondent and the Union agreed that the Respondent would furnish the Union’s auditor with
the information requested by . . . . no later than October 14, 2011.” This former date,
September 6, was the date on which, in a conference with the arbitrator called in response to 20
motion filed regarding the Union’s subpoena for the documents, the Employer agreed to provide
the 2010 financial information by October 14, 2011.
The General Counsel then alleges (taking into account the oral amendments to the
complaint at trial), that the Respondent unlawfully delayed furnishing the bulk of the items (items 25
1-5, 8, 10-20, 23-26, 28) from June 13, 2011 to September 6, 2011. However, these items
were not actually furnished until October 14, or on the day or two before October 14. In other
words, for these items, which were ultimately furnished by October 14, 2011, the General
Counsel does not allege that the Employer unlawfully delayed furnishing the items from
September 6 to October 14. Presumably, the General Counsel views the agreement reached 30
with the arbitrator to turn over the documents October 14, as satisfactory.
However, the Government further claims that the information that was supposed to be
but was not furnished by October 14, but by December 1 (most of items 6 and 29 and item 22),
was unlawfully delayed from June 14, 2011, straight through until its December 1, 2011 receipt. 35
Similarly, as to items 21, 27, and 30, provided March 7, 2012, the Government alleges that the
furnishing of these items was unlawfully delayed from June 14, 2011 to March 7, 2012.
The General Counsel’s approach is not with justification, but it limits the initial threshold
inquiry to whether AK unlawfully delayed furnishing any of the information in the request from 40
June 13 to September 6—not to October 14, when much of it was furnished.
The Employer’s defense is, essentially, “we provided what we could when we could.” Its
witness, manager of finance John Vichich, discussed the long hours that the limited number of
employees assigned to respond the information request were working on tasks unrelated to the 45
information request, as well as the fact that they were already responding to the 2010
information request.
In assessing the reasonableness of the Respondent’s response, several factors stand
out.50
21
First, the request, while extensive, is standard accounting and financial information that
is routine grist for the mill for accountants, auditors, and corporate finance departments.
Notably, the Respondent does not claim otherwise, and putting aside for the moment the claims
of the time it would take to provide this information, there is no claim by the Respondent that the
request sought unusually complex information or that it made incomprehensible demands for 5
information. This is standard accounting and finance “stuff.”
Second, the request (or nearly all of it) was first made in January 2011. As the
Respondent points out, the General Counsel does not allege that there was an unlawful delay
until after the Union repeated its request June 13, 2011. That is true, but the January request 10
stands as an almost perfect illustration of relevant and probative background evidence. When
the Respondent received the June 13, 2011 information request, as a matter of the Act’s
precedents, it had already been under a duty to provide the requested information, and as a
matter of fact, it had been on notice for many months that the Union was seeking the
information. Thus, the January 2011 information request informs and shapes our understanding 15
of the “reasonableness” of the 12 weeks after June 13 that it took the Respondent—not to
furnish—but to agree to furnish the requested information. The request was extensive but it
was not unexpected—indeed, for the most part, it had already been pending as of June13.
Third, the 2011 requests (January and June) were almost identical to the requests made 20
in 2010, but sought updated data. Thus, in June 2011, not only did the Respondent already
know that these requests were pending, but it had provided (as a result of the March 2011
pretrial settlement) or was providing (because of negotiations resulting from Judge Fine’s May
2011 decision) precisely the same type of information for the previous year’s financial data.
Based on the Respondent’s witness’s description of the information gathering process, there 25
were obviously huge economies of time and effort available as a result of the contemporaneous
obligation to provide the Union with the same information for 2009 and 2010 over the course of
the same summer. Moreover, by July 8, 2011, the Union and the Respondent had reached a
settlement on the confidential treatment of the 2009 financial information. This removed the
only potential dispute between the parties that could reasonably have delayed production of the 30
2010 financial information. Notably, there is no evidence of any problems relating to the
confidential treatment of the documents peculiar to the 2010 financial information. This issue
had been ironed out between the parties.
I recognize that the Respondent argues that its obligation to provide both the 2009 and 35
2010 information at the same time, even conceding some economies of scale, added to its
burden and increased the “reasonable” time for supplying the information. But it is notable that
the Respondent provided none of the June 13, 2011 request prior to October 12, 2012. Thus,
while the Respondent claims that certain of the requests (items 4, 8, 10, and 17) required
significant man hours to retrieve and calculate, many of the items clearly did not, and the 40
Respondent does not claim otherwise.7 The Respondent offers no justification for providing
none of the requested information prior to the September 6 agreement with the arbitrator.

7Vichich’s testimony on the estimated amount of time involved in producing the information
for items 4, 8, 10, and 17, (120 hours for item 4, 36 hours for item 8, 10 hours for item 10, and
10 hours for item 17) included significant amounts of time to create a computer program for
each of these items. On cross-examination it became clear that for some or all of these items
he was not involved in the writing of these programs and did not appear to have firsthand
knowledge of how much time was spent creating them to respond to the 2011 information
request. He agreed that it would be “relatively easy” to update the programs used to provide the
2009 financial information (produced between May and July 2011) to acquire the 2010 financial
22
Fourth, given that the governing standard is “a good faith effort to respond to the request
as promptly as circumstances allow" (Good Life Beverage Co., supra), it is probative that AK did
not respond at all until an arbitral subpoena for the same information at issue here focused its
attention on the June 13 information request. Thus, putting aside the time it might have 5
reasonably taken the Respondent to furnish the information—it did not respond in any fashion to
the June 13 information request until the Union forced the matter 12 weeks later through the
arbitral subpoena process.
Of course, the Respondent stresses that the Union did not follow up its June 13, 2011 10
request with further requests for the information, and, instead, worked with the Employer on
receiving the information requested in 2010. In the Respondent’s view, if the Union wondered
where the requested information was “all the Union had to do was ask.” (R. Br. at 25).
However, the Union had requested the information in January 2011, and in the June 13 request
asked that the information be provided “as soon as possible.” The Respondent’s silence on the 15
issue of providing the 2011 information cannot be equated with the Union’s failure to request it
(a third time) again. It is well-settled that a party requesting relevant information to which it is
entitled does not need to repeat the request. De Palma Printing Co., 204 NLRB 31, 33 (1973);
Aero-Motive Mfg., 195 NLRB 790, 792 (1972), enfd. 475 F.2d 27 (6th Cir. 1973); Bundy Corp.,
292 NLRB 671, 672 (1989) (rejecting employer’s defense to unlawful delay of “the Union's own 20
failure to repeat its requests for information during the numerous telephone conversations with
the Respondent during that period”).
It was the Respondent’s obligation to respond to the information request. U.S. Postal
Service, 332 NLRB 635, 639 (2000) (“The Respondent could not simply remain silent in the face 25
of the Union's request for information”); Pennco. Inc., 212 NLRB 677, 678 (1974) (part of
unlawful delay analysis includes the employer’s initial failure to respond to the Union’s
requests).
Thus, all of this might look different had AK Steel promptly responded to the June 2011 30
information request. If it had said to the Union: “we have these two requests, what is the priority
and how can we best get this information to you.”
Instead, there was silence. It undercuts the after-the-fact claims of the Respondent that
it was too busy to respond and is probative of unlawful delay.35
As referenced above, the Respondent’s primary defense, based on the testimony of its
manager of finance, John Vichich, was that in the summer of 2011, the Respondent was
working as hard as it could, given its normal workload, and a few unexpected events, to provide
the requested information. According to Vichich, the economic downtown of 2009, some two 40
years before, left the finance groups at Butler “shorthanded” and with a limited number of
employees available to collect the requested information. Vichich estimated the number of
________________
information. It also became clear that some of this information, such as “perpetual inventory”
“total sales out of Butler” and “payroll register, payroll data” is already included in the Butler-
Zanesville statement of operations, created as part of standard accounting practices. I do not
doubt that these four requests took more time than others, but Vichich’s estimates appeared to
be “hypothetical,” as if starting from scratch. Given that the Employer had only recently or was
in the process of providing the same information for 2009 at the time the request for 2010
information was pending, Vichich’s estimates overstate the actual burden on the Respondent
posed by these items.
23
people working on the request as two at the Butler plant, and two at the corporate headquarters.
They already were working 60-70 hours a week to meet the regular requirements of their job,
which included the filing of annual, quarterly, and monthly reports, along with “forecasting” that
became a daily obligation in July of 2011. In addition, a fire in the Respondent’s new electric
arc furnace added 15-20 hours a week to employees’ workload beginning in July 2011. To this 5
workload, potential corporate mergers and acquisitions, and a property audit further burdened
the group responsible for responding to the information requests. Respondent’s counsel asked
Vichich how he attended to the Union’s information request given the schedule of tasks Vichich
described. Vichich answered:
10
We kind of put it in the priority of things that had to be done. And when we
had availability. We worked on them as diligently as we did. . . .
We prioritize what had to be done.
We had to get the normal month end forecasting and that stuff done.
15
The “prioritizing” did not did not include making a response to the Union’s 2011
information request. As referenced above, no documents were provided, and no response to
the Union offered, even as Vichich admitted that he talked with AK’s corporate controller about
the “timing problems” he was having with the Union’s requests. However, according to Vichich,
the Respondent unilaterally decided they were not “using unreasonable amount of time to 20
answer this request.”
With the exception of the breakout at the electric arc furnace—which was the basis for
the Respondent’s contemporaneous explanation to the Union in July of why there would be an
11-day delay in furnishing information—none of the duties described by Vichich are unusual, or 25
even avoidable by a major corporate publicly-held entity. The General Counsel stresses, and it
cannot be overlooked, that AK Steel is not a “mom and pop” operation: it employs 6,600
employees, operates seven facilities, and had net sales of approximately $6.4 billion in 2010.
Given that nearly every duty Vichich described may be called standard duties for a company of
this size and complexity, it is fair to conclude that AK Steel had the time for the Union’s 30
information requests that it decided it would give them. They obviously were not prioritized, and
Vichich’s testimony is an implicit admission of this.
In any event, the defense of “too busy with other pressing matters” is a nonstarter under
Board precedent. “An employer cannot justify delays in supplying information on the basis of 35
other, unrelated, demands on the responder's time.” Comar, Inc., 349 NLRB 342, 352 (2007)
(rejecting employer argument that it was busy responding to information requests from the
Board’s regional office); Samaritan Medical Center, 319 NLRB 392, 398 (1995) (employer’s
busyness with other matters that it considered more important or urgent does not justify delay in
responding to union information request); Bundy Corp., 292 NLRB 671, 672 (1989) (rejecting 40
employer’s reliance, in part, for delay in providing information on its officials’ preoccupation with
an impending acquisition).
By all evidence, the Respondent took no action on the 2011 request (both June and
January’s) until receiving an arbitral subpoena for the information in August. Then it argued to 45
the arbitrator that it could provide the 2011-requested materials within 60 days and agreed to
provide it within 38 days, by October 14.
These considerations lead me to conclude that the Respondent did not respond to the
Union’s June 13 request “as promptly as circumstances allow." Good Life Beverage Co., 312 50
NLRB 1060, 1062 fn. 9 (1993). At a minimum, the Respondent could have responded—in
24
some fashion—and could have attempted to arrange a mutually acceptable schedule with the
Union for furnishing the documents. Instead, the Respondent’s response to the June 2011
information request was silence. Nothing. Until the Union forced the issue through the arbitral
process. But the Union was not required to do that. The Union should not be and is not
dependent on a private contractually-based process of arbitration to obtain the relevant and 5
requested documents it needs. The Act promises the Union the right to a prompt response to
its information request. The failure to provide it is a violation of the Act.
I accept the Respondent’s admission that it was a question of the “priority” placed on
responding to the information request, and clearly, it was given low priority among the many 10
competing demands placed on the limited staff allotted to this task. I also note the
Respondent’s admission to the arbitrator on September 6 that it could supply the requested
information within 60 days, and its agreement to provide it within 38 days. At that time it was
still engaged in the non-information related work projects referenced by its witness to explain
how busy the staff had been. It was still actively working with the Union to supply the 15
information requested in 2010. Thus, it seems justifiable, indeed, it gives the benefit of the
doubt to the Respondent, to conclude that the Respondent reasonably could have supplied the
2011-requested information within 60 days of the June 13, 2011 request, had it prioritized the
matter and sought to comply as soon as reasonably possible with the Union’s request. I find
that the Respondent violated the Act by unlawfully delaying the furnishing of information to the 20
Respondent.8
Given my findings, it is unnecessary to reach the General Counsel’s further allegations
that failure to provide item 22 and the bulk of items 6 and 29 until December 1, and the failure to
provide items 21, 27, and 30 until March 7, 2012, was violative of the Act. Such further findings 25
would be cumulative and would not affect the remedy. DaimlerChrysler Corp., 344 NLRB 1324,
1324 (2005).
CONCLUSIONS OF LAW
30
1. Respondent AK Steel Corporation is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Charging Party United Auto Workers Local 3303 a/w United Automobile, Aerospace,
Agricultural and Implement Workers of America (Union) is a labor organization within the 35
meaning of Section 2(5) of the Act.
3. At all material times the Union has been the recognized exclusive collective-bargaining
representative of the Respondent’s bargaining unit employees employed at its Butler,
Pennsylvania facility.40

8In reaching this conclusion I do not rely on the testimony of the Union’s CPA Barger (or the
similar information in summary exhibits) regarding the estimated amount of time he believed it
would have reasonably taken the Respondent to produce individual items of the 2011 request.
This testimony was akin to expert testimony—offered on the basis of his experience in the field
and his work auditing a variety of companies—but not based on first hand knowledge of AK
Steel’s financial or data storage systems.

25
4. The Respondent violated Section 8(a)(1) and (5) of the Act by delaying the furnishing of
requested information to the Union that is relevant and necessary to the Union’s
performance of its representational duties.
5. The unfair labor practices committed by Respondent affect commerce within the5
meaning of Section 2(6) and (7) of the Act.
10
REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist there from and to take certain affirmative action designed
to effectuate the policies of the Act. 15
The Respondent shall further be ordered to refrain from in any like or related manner
abridging any of the rights guaranteed to employees by Section 7 of the Act.
The Respondent shall post an appropriate informational notice, as described in the 20
attached appendix. This notice shall be posted in the Employer’s facility or wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the 25
event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since June 13, 2011. When the notice is
issued to the Employer, it shall sign it or otherwise notify Region 6 of the Board what action it 30
will take with respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
35
ORDER
The Respondent AK Steel Corporation, Butler, Pennsylvania, its officers, agents,
successors, and assigns, shall40
1. Cease and desist from:
a. Failing and refusing to bargain with the Union as the representative of its
employees in an appropriate bargaining unit by delaying the furnishing of 45

9If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
26
requested information that is relevant and necessary to the Union’s
performance of its duties as collective-bargaining representative of the
Respondent’s employees.
b. In any like or related manner interfering with, restraining, or coercing 5
employees in the exercise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which is necessary to effectuate the10
purposes of the Act:
a. Within 14 days after service by the Region, post at its Butler, Pennsylvania facility
the attached notice marked "Appendix."10 Copies of the notice, on forms provided by 15
the Regional Director for Region 6, after being signed by the Respondent’s
authorized representative, 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 the physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an 20
intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondents 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 any facility 25
involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since June 13, 2011.
b. Within 21 days after service by the Region, file with the Regional Director a sworn 30
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 10, 2012
35
____________________
David I. Goldman
U.S. Administrative Law Judge40

10If 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT delay furnishing the Union with requested information that is relevant and
necessary to the Union’s performance of its duties as your collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of rights guaranteed you by Section 7 of the Act.
AK STEEL CORPORATION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1000 Liberty Avenue, Federal Building, Room 904, Pittsburgh, PA 15222-4111
(412) 395-4400, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (412) 395-6899.