AMF Trucking & Warehousing

National Labor Relations Board - Board Decisions

Sep 21, 2004

342 N.L.R.B. 1125 (N.L.R.B. 2004)

AMF TRUCKING & WAREHOUSING
342 NLRB No. 116
1125
AMF Trucking & Warehousing, Inc. and Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America,
AFL–CIO. Case 22–CA–25263
September 21, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND MEISBURG
On May 16, 2003, Administrative Law Judge D. Barry
Morris issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel and Charging Party filed answering briefs.
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 and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
I. INTRODUCTION
The issue in this case is whether the Respondent’s
statements during the course of negotiations effectively
communicated a claim of inability to pay, such that its
subsequent refusal to furnish the Union with requested
financial information violated Section 8(a)(5) and (1) of
the Act. For the reasons set forth below, we find, con-
trary to the judge, that the Respondent did not claim an
inability to pay and, accordingly, did not violate Section
8(a)(5) by refusing to furnish the Union with the re-
quested financial information.
II. RELEVANT FACTS
Beginning in October 2001, the Respondent and the
Union held three negotiation sessions for a successor to a
collective-bargaining agreement that had expired on June
30, 2001. The sessions focused primarily on the issues
of wages, health insurance, and pension plans. On No-
vember 20, 2001, during the second negotiation session,
the Union proposed increasing the health insurance and
pension fund benefits. The Respondent calculated the
cost of the Union’s proposal to be an additional $3 per
hour per employee. The Respondent took the position
that no changes should be made to health insurance or
pension benefits. The Respondent stated that the Union

1 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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
was asking for “pie in the sky,” that the Respondent had
purchased the Company “in distress a year and a half
earlier, and that the company was still in distress.” The
Respondent also said that it was “fighting to [stay]
alive,” and was “weaker this year” than it had been in
previous years.
On March 6, 2002, during the third negotiation ses-
sion, the parties discussed the Union’s proposal to
change the current wage increase policy. Under that pol-
icy, all wage increases were discretionary. The Union
proposed a required increase of $1 per hour for each year
of a 3-year contract. In response to the Union’s proposal,
the Respondent took the position that there be no change
to its existing wage policy, and explained that it was
“still fighting to keep the business alive,” and that “the
business was weaker than it was in previous years.”
Upon an inquiry as to its profitability, the Respondent
made no reply.
By letter dated April 9, 2002, the Union requested ac-
cess to the Respondent’s financial records. The Respon-
dent, in its April 26 reply letter to the Union, denied that
it was claiming an inability to pay and refused to grant
the Union access to its financial records.
III. THE JUDGE’S DECISION
The judge found that the Respondent’s refusal to sup-
ply the requested information violated Section 8(a)(5).
In determining that the Respondent effectively commu-
nicated an inability to pay, the judge found the Respon-
dent’s comments to be similar to those at issue in Lake-
land Bus Lines, 335 NLRB 322 (2001), enf. denied 347
F.3d 955 (D.C. Cir. 2003).
In Lakeland, supra, the Board found that an employer
effectively claimed an inability to pay by statements con-
tained in a letter to the bargaining unit employees. The
employer’s letter followed 11 negotiation sessions during
which the employer rejected the union’s bargaining pro-
posals. The letter urged the unit employees to accept the
employer’s final offer, stating that the employer was
“trying to bring the business back into the black,” that
acceptance of the employer’s final offer would enable the
employer to “retain [employee] jobs and get back into
the black short term,” and that “the future” of the em-
ployer “depends on it.” Asserting that the employer had
claimed an inability to pay, the union requested access to
the company’s financial records. In response, the em-
ployer stated that “no claim of financial inability, explicit
or implicit, was made by . . . any company official,” and
that “at no time did . . . any company official claim an
inability to pay or a prospective inability to pay during
the life of the contract being negotiated.” The employer
therefore refused to furnish the information. The Board
concluded that the employer’s refusal to furnish the re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
quested financial information violated Section 8(a)(5).
The D.C. Circuit denied enforcement of the Board’s Or-
der in Lakeland. The court concluded that the Board had
taken the employer’s statements out of context, i.e.,
without the context of the letter in which they were writ-
ten, and that the Board had not considered these state-
ments in the context of the entire course of bargaining.
Lakeland Bus Lines, 347 F.3d at 962, 963.2
Analysis
We disagree with the judge’s finding. For the reasons
set forth below, we find that the Respondent did not
communicate an inability to pay, and, thus, the Respon-
dent’s refusal to furnish the requested information did
not violate Section 8(a)(5).
At the outset we note that the phrase “inability to pay”
means, by definition, that the employer is incapable of
meeting the union’s demands. That is, the phrase means
more than the assertion that it would be difficult to pay,
or that it would cause economic problems or distress to
pay. “Inability to pay” means that the company presently
has insufficient assets to pay or that it would have insuf-
ficient assets to pay during the life of the contract that is
being negotiated. Thus, inability to pay is inextricably
linked to nonsurvival in business. Consistent with this
analysis, the Respondent here has not claimed an inabil-
ity to pay, as it has neither claimed insufficient assets nor
stated that acquiescence to the Union’s demands would
cause it to go out of business.
The Respondent said that the Company it had pur-
chased was in distress, and that the Company was still in
distress. As indicated above, this is not to say that the
Respondent now has, or will have, insufficient assets to
pay. Similarly, the Respondent said that it was “fighting
to keep the business alive.” That is what is to be ex-
pected when a company is in distress. The statement is
not synonymous with an assertion that the Respondent
currently has, or will have, insufficient assets to pay.
As stated above, the judge relied on the Board’s deci-
sion in Lakeland Bus Lines, supra, to support his finding
that the Respondent’s statement constituted a claim of
inability to pay. In Lakeland Bus Lines, the employer
said, inter alia, that “the future of Lakeland depends on”
acceptance of the company’s offer. Similarly, employee
jobs were dependent on such acceptance. In sum, the
company would fail unless the union accepted the com-
pany’s offer. That statement is distinguishable from
those made herein. Most significantly, the Respondent
never said that the survival of the Company was at stake,
i.e., that the Company would have no future if the Com-

2 The court’s decision issued after the judge’s decision in the instant
case.
pany’s demands were rejected. Thus, the Respondent’s
statements in this case present a far weaker basis upon
which to find a Section 8(a)(5) violation than did the
statements at issue in Lakeland Bus Lines. Accordingly,
even if we were to accept the Board’s interpretation of
Lakeland Bus Lines over that of the D.C. Circuit (a mat-
ter on which we do not pass), we find that that case does
not support a finding that the Respondent’s comments
conveyed a claim of inability to pay.
We also find that the statements at issue here are dis-
tinguishable from those found to constitute a claim of
inability to pay in Shell Co., 313 NLRB 133 (1993). In
Shell Co., the employer rejected the union’s bargaining
demands by characterizing its financial situation as “a
matter of survival.” That is, acceptance of the union’s
demands would have meant the nonsurvival of the com-
pany. In the present case, there are no such bleak predic-
tions about going out of business.
Our dissenting colleague contends that the Respondent
“clearly communicated that it could not afford the Un-
ion’s demands.” We disagree. The Respondent did not
use those words or any words with a similar import. The
phrase “could not afford” means that the company could
not stay in business if it met the Union’s demands. This
is not the message that the Respondent gave. Rather, as
noted above, the Respondent stated only that the business
was not doing well—that it was in “distress” and “fight-
ing to keep the business alive.” That was not to say that
the fight would be lost if the Union’s demands were met.
These statements simply do not convey that the Respon-
dent would go out of business if it were to meet the Un-
ion’s economic demands.
Our colleague seeks a new test for cases involving a
refusal to give information. He says: “[A]ll that should
be required in order to find that an employer’s statements
have triggered a duty to provide financial information is
that the employer’s words, reasonably interpreted, claim
that it is financially unable to pay the union’s bargaining
demands.” However, the very case that he cites for that
proposition (Atlanta Hilton & Tower, 217 NLRB 1600
(1984)) makes it clear that “words and conduct must be
specific enough to convey [a claim of inability to pay].”
The burden is on the General Counsel to establish that
the words and conduct are sufficiently specific. In the
instant case, the words were not of this character.
Our colleague says that we are holding that an em-
ployer can plead an inability to pay, and then retract it
and thereby avoid an obligation to supply financial in-
formation. That is not our holding. Rather, our holding
is that the General Counsel did not prove that the Re-
spondent ever pleaded an inability to pay.
AMF TRUCKING & WAREHOUSING 1127
In sum, we find that the Respondent did not claim an
inability to pay the Union’s demands. Accordingly, the
Respondent did not violate Section 8(a)(5) of the Act by
refusing to provide the Union with requested financial
information.
ORDER
The complaint is dismissed

MEMBER WALSH, dissenting.
The judge’s finding that the Respondent’s negotiation
statements effectively claimed a present inability to pay
and that the Respondent violated Section 8(a)(5) and (1)
by refusing to furnish the Union with requested financial
information is in accord with Board and court precedent,
and should be adopted. Accordingly, I dissent from my
colleagues’ failure to adopt the judge’s decision.
I have no quarrel with my colleagues’ recitation of the
facts. I disagree only with their interpretation of the
facts. The Union and the Respondent held three negotia-
tion sessions for a successor contract. These sessions
focused primarily on financial issues, such as wages,
health insurance, and pension plans. At the parties’ sec-
ond session on November 20, 2001, the Union proposed
increasing health insurance and pension fund benefits.
After a caucus during which the Respondent’s represen-
tatives calculated the cost of the Union’s health insurance
proposal, the Respondent told the union representatives
that they were asking for “pie in the sky.” The Respon-
dent followed this comment with the assertion that it
“bought the business in distress a year and a half earlier,
and the company was still in distress.”
By the time of the parties’ third negotiation session on
March 6, 2002, the Respondent’s financial health assert-
edly had become even more desperate. At this session
the Union again focused on its economic demands. The
Respondent answered these demands by informing the
Union that its business was “weaker this year than it was
in previous years.” Thus, the Respondent painted an
even bleaker economic picture by effectively asserting
that it was even worse off now than it was before, when
it was in financial “distress.” The Respondent left no
doubt that its financial circumstances were too dire to
permit any accommodation of the Union’s economic
demands when it further informed the Union that things
had deteriorated to the point that it was “fighting to keep
the business alive.”
Shortly thereafter the Union sent the Respondent a let-
ter requesting, based on the Respondent’s claims that it
was “in distress,” “weaker than last year,” and “fighting
to keep things going,” that the Union be permitted to
examine the Respondent’s financial records to determine
the validity of the Respondent’s claims. In its reply 2
weeks later, the Respondent denied the Union’s version
of what the Respondent had claimed during negotia-
tions.1 The Respondent also refused the Union’s request
to examine its financial records.
Analysis
As the Supreme Court has held, an employer is re-
quired to comply with a union’s request for financial
information to verify the employer’s claim of economic
inability to pay the union’s bargaining demands.2 There
are no magic words required to trigger this obligation;
rather, “so long as the employer’s refusal reasonably
interpreted is the result of financial inability to meet the
employees’ demand rather than simple unwillingness to
do so, the exact formulation used by the employer in
conveying the message is immaterial.” Atlanta Hilton &
Tower, 271 NLRB 1600, 1602 (1984).
The Respondent clearly communicated to the Union
that it could not afford the Union’s bargaining demands.
In response to these demands, the Respondent conveyed
an ever worsening financial picture in which the Respon-
dent’s economic health had degenerated from one of
“distress” to an even worse circumstance than being in
distress and finally to the dire economic situation of
“fighting to keep the business alive.” These were no
mere claims of general economic difficulties, business
losses or competitive disadvantage. See, e.g., Lakeland
Bus Lines v. NLRB, 347 F.3d 955, 961 (D.C. Cir. 2003);
Stroehmann Bakeries, Inc. v. NLRB, 95 F.3d 218, 222
(2d Cir. 1996). Instead, they was a claim that if the Re-
spondent had to pay the Union’s bargaining demands it
would lose its fight for economic life. It is hard to imag-
ine how the Respondent could have more clearly com-

1 The judge credited the Union’s version of what the Respondent
stated during the parties’ negotiation sessions, and neither the majority
nor I see any basis for overturning the judge’s credibility resolutions. I
also note that the Respondent makes no claim that its reply to the Un-
ion’s letter “clarified” the statements that it made during negotiations.
Rather, the Respondent merely argues that it did not make the state-
ments attributed to it. In any event, it would be unavailing for the
Respondent to attempt to avoid its obligation to provide the Union with
financial information through the simple expedient of issuing a “clari-
fying statement” that does no more than claim that it never said what it
in fact did say. If that were all it took to avoid an obligation to turn
over financial information then, as a practical matter, employers would
be excused from ever having to provide financial information. Under
such an approach, an employer could make whatever financial inability
to pay claims it wanted to and then, if the union requested financial
information to determine the validity of the employer’s claim, the em-
ployer could simply issue a “clarifying statement” saying that it never
claimed financial inability to pay and thereby avoid ever having to turn
over financial information. This approach would give the green light to
the sort of negotiation game playing that is the antithesis of good-faith
bargaining.
2 NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128
municated to the Union that it could not afford the Un-
ion’s bargaining demands.3
All that should be required in order to find that an em-
ployer’s statements have triggered a duty to provide fi-
nancial information is that the employer’s words, rea-
sonably interpreted, claim that it is financially unable to
pay the union’s bargaining demands.4 The judge found
that the Respondent’s words conveyed that message here,
a finding that is well supported by precedent. See, e.g.,
Shell Co., 313 NLRB 133 (1993) (economic conditions
had affected the company “very badly” and rejection of
the union’s economic demands was a matter of “sur-
vival”); Coast Engraving Co., 282 NLRB 1236 fn. 1
(1987) (cost savings needed in order for employer to stay
in business and recoup bad losses); Cowin & Co., 277
NLRB 802 fn. 1 (1985) (real question whether employer
will be in business at the termination of contract); Mash-
kin Freight Lines, 272 NLRB 427, 435 (1984) (employer
needed reductions in costs if it was to survive); Stamco
Division, Monarch Machine Tool Co., 227 NLRB 1265,
1266 (1977) (employer not in healthy position, projec-
tions of the future did not look great); Tony’s Meats, Inc.,
211 NLRB 625, 626 (1974) (large monthly losses during
a strike and “can’t do anything else”); Celotex Corp., 146
NLRB 48, 54 (1964), enfd. in relevant part 364 F.2d 552
(5th Cir. 1966) (plant not being operated profitably and

3 Contrary to the majority, the Board’s decision in Lakeland Bus
Lines, 335 NLRB 322 (2001), enf. denied 347 F.3d 955 (D.C. Cir.
2003), supports a finding that the Respondent here claimed a financial
inability to pay. In Lakeland Bus, supra, the employer sent its employ-
ees a letter urging them to accept the employer’s final contract offer,
stating that the employer was “trying to bring the bottom line back into
the black,” that acceptance of the offer would enable the employer to
“retain your jobs and get back in the black in the short term,” and that
the “future of Lakeland depends on it.” The Board found that these
statements effectively asserted that the company’s “circumstances were
bad and were a matter of survival,” and reasonably conveyed a present
inability to pay. 335 NLRB at 324–325. Likewise, the Respondent
here clearly represented that it would lose its fight for economic life if
it acceded to the Union’s bargaining demands, and thereby reasonably
conveyed an inability to pay the Union’s bargaining demands. Fur-
thermore, even if one were to accept the D.C. Circuit’s interpretation of
the facts in Lakeland Bus, the facts here present a much stronger case
for finding a claim of inability to pay. The court held that the em-
ployer’s statements in Lakeland Bus were vague and claimed no more
than short-term business losses, especially in light of later clarifying
statements that provided that the employer was not claiming financial
inability to pay. 347 F.3d at 963. In contrast, the Respondent here
made assertions, unaltered by clarifying statements, that suggested a
very different scenario: if it agreed to the Union’s economic demands it
could no longer stay alive financially.
4 My colleagues suggest that I am proposing a new test for determin-
ing whether an employer has claimed an inability to pay because I
would assess an employer’s claim based on a “reasonable interpreta-
tion” of the employer’s words. This is not a “new test.” See Atlanta
Hilton & Tower, supra, 271 NLRB at 1602 (“so long as the employer’s
refusal reasonably interpreted is the result of financial inability to meet
the employees’ demand”) (emphasis added).
negotiations would be conducted on the basis of what
employer could afford); Taylor Foundry Co., 141 NLRB
765, 767 (1963), enfd. 338 F.2d 1003 (5th Cir. 1964)
(employer contended that if it increased its labor costs it
would lose its margin of profit and “we can’t exist”).
Accordingly, I respectfully disagree with my col-
leagues, and would adopt the judge’s decision finding
that the Respondent’s negotiation statements effectively
claimed a present inability to pay, and that the Respon-
dent violated Section 8(a)(5) and (1) by refusing to fur-
nish the Union with requested financial information.

Saulo Santiago, Esq., for the General Counsel.
David Greenhaus, Esq. and Arthur Kaufman, Esq., for the Re-
spondent.
Jeremy Meyer, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case was
heard before me in Newark, New Jersey, on January 15, 2003.
Upon a charge filed on June 27, 2002.1 and amended on August
14, a complaint was issued an October 30, alleging that AMF
Trucking & Warehousing, Inc. (Respondent or AMF) violated
Section 8(a)(1) and (5) of the National Labor Relations Act (the
Act). Respondent filed an answer denying the commission of
the alleged unfair labor practice.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally and file briefs. The parties filed briefs on March 7, 2003.
Upon the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent has been engaged in the warehousing and truck-
ing business. It has admitted, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. In addition, it has been admitted, and I find,
that UAW (the Union) is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
AMF and the Union were parties to a collective-bargaining
agreement effective July 1, 2000, through June 30, 2001. Upon
expiration of the agreement the parties began negotiations for a
successor agreement. Negotiating sessions were held on Octo-
ber 30 and November 20, 2001, and March 6, 2002. Arthur
Kaufman, Esq. and Meyer Gross represented Respondent. Scott
Sommer was the lead negotiator for the Union.
At the November 20 session the parties discussed overtime
issues as well as the costs of the health insurance and pension
plans. Kaufman and Gross caucused, at which time Kaufman

1 All dates refer to 2002, unless otherwise specified.
AMF TRUCKING & WAREHOUSING 1129
testified that they calculated that the cost of the health insur-
ance was $3 per hour. Kaufman testified that when they re-
turned from caucus, he told the union representatives that they
were asking for “pie in the sky.” Sommer testified that besides
the remark about “pie in the sky,” Kaufman also stated that
“they bought the business in distress a year and-a-half earlier,
and the company was still in distress.”
During the third session the union representatives mentioned
that not all of the employees were receiving the 5-cent increase
that they were supposed to receive. Sommer testified that when
they were discussing the Union’s economic demands, Kaufman
stated, “[T]hey’re still fighting to keep the business alive.”
Sommer also testified that Gross stated, “[T]he business was
weaker this year than it was in previous years.” Sommer testi-
fied that he asked whether the Company was making a profit
and that “they said they would have to check into that and get
back to us, and we received no information about the com-
pany’s profit.”
On April 9, 2002, Sommer wrote to Kaufman, stating in part:

[D]uring the negotiations, the company has rejected all our
economic proposals stating that the company was “in dis-
tress” when the current owners purchased it and that “it is still
in distress”. It was further stated at negotiations . . . that the
company is “fighting to keep going” and that it is “weaker
than last year”. As you have thus refused to make any counter
offer on our economic demands and are in essence claiming
an inability to meet our economic demands we are therefore
requesting to examine the company’s books and records to
determine the validity of your claim.

On April 26, Kaufman responded to Sommer, denying Som-
mer’s version of what transpired at the negotiations. The letter
stated, “[Y]our request to examine the books and records of the
Company is denied.”
B. Conclusions and Discussion
1. Concluding findings
Sommer appeared to me to be a credible witness. I credit his
testimony that at the November 20, 2001 negotiating session
Kaufman stated, “[T]hey bought the business in distress a year
and-a-half earlier, and the company was still in distress.” It is
noteworthy that in his letter to Sommer of April 26, Kaufman
stated, “[A]t still another time, you inquired if the company was
still in distress as it was at the time of the purchase and we
responded affirmatively.”
I also credit Sommer’s testimony that during the third ses-
sion, when the Union’s economic demands were being dis-
cussed, Kaufman stated, “[W]e’re still fighting to keep the busi-
ness alive,” and that Gross stated that the “business was weaker
this year than it was in previous years.” In this regard Som-
mer’s bargaining notes indicate that Kaufman stated that the
business is “fighting to keep going” and that Gross stated that
the business was “weaker than last year.” Kaufman’s bargain-
ing notes for that session indicate that the question was asked,
“How is business doing?” and the reply was “fair, worse than
last year.”2
I, thus, conclude that at the November 20, 2001 bargaining
session Kaufman stated that when they bought the Company it
was in distress and the “company was still in distress.” At the
third session Kaufman stated that “they’re still fighting to keep
the business alive” and Gross stated that the business was
“weaker this year” than in previous years. Sommer’s question
whether the Company was showing a profit was not responded
to.
2. Discussion
If a company claims inability to pay increased wages, its
failure to substantiate the claim may result in a finding of a
failure to bargain in good faith. NLRB v.Truitt Mfg. Co., 351
U.S. 149, 152–153 (1956). Inability to pay need not be ex-
pressed with any particular “magic phrase.” Monarch Machine
Tool Co., 227 NLRB 1265, 1267 (1977); Atlanta Hilton &
Tower, 271 NLRB 1600, 1602 (1984).
In Lakeland Bus Lines, 335 NLRB 322 (2001), after the
company submitted its final offer to the union, the company’s
president sent a letter to the employees, which stated, in perti-
nent part, “[W]e are trying to bring the bottom line back into
the black.” The Board stated (supra at 323): “We find that un-
der Truitt . . . and its progeny, the Respondent’s . . . letter to
employees effectively communicated that it was unable to af-
ford to pay anything more than that contained in its final offer.”
The Board held (supra at 326) that this claim “triggered an
obligation to furnish the Union with the requested financial
information.” Failure to do so constituted a violation of Section
8(a)(5).
I believe that Respondent’s statements that the Company was
“still in distress” and that they’re still “fighting to keep the
business alive,” similar to the statement in Lakeland, supra,
communicated that the Company was unable to afford to pay
anything more than its final offer. When the Union requested
financial information to substantiate its claim, I believe that
Respondent was required to furnish the information. Under
Lakeland, supra, the failure to furnish such information is a
violation of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is the exclusive representative of the following
appropriate unit of employees:

All warehouse employees employed by Respondent at its
Carteret and Avenel, NJ locations, but excluding all office
clerical employees, drivers, helpers, sales employees, profes-
sional employees, including guards and supervisors as defined
in the Act.

2 Counsel for Respondent contends that the entire statement was a
question. A fair reading persuades me, however, that inasmuch as the
question mark appears after “How is business doing?” that that was the
question. I credit Kaufman’s testimony that the reply was “fair, worse
than last year.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130

4. By failing and refusing to furnish the Union with the fi-
nancial information requested in its letter of April 9, 2002,
Respondent has engaged in an unfair labor practice, in violation
of Section 8(a)(1) and (5) of the Act.
5. The aforesaid unfair labor practice constitutes an unfair
labor practice affecting commerce, within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an unfair labor
practice in violation of the Act, I shall order it to cease and
desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]