Caldwell Mfg. Co.

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 1159 (N.L.R.B. 2006)

CALDWELL MFG. CO.
346 NLRB No. 100
1159
Caldwell Manufacturing Company and Local 311,
IUE-CWA, AFL–CIO, CLC. Cases 3–CA–24955
and 3–CA–25076
April 28, 2006
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On June 22, 2005, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief; the
Acting General Counsel filed an answering brief; and the
Charging Party filed a brief in support of the judge’s de-
cision.
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 conclusions2
and to adopt the recommended Order.
The issues in this case turn on whether the Respondent
was obligated to provide information requested by the
Charging Party during the parties’ negotiations for a suc-
cessor collective-bargaining agreement at the Respon-
dent’s Rochester, New York plant. During negotiations,
the Respondent’s representative made certain specific
factual representations in support of its proposals. In
response, the Charging Party’s representative orally re-
quested certain information to evaluate the Respondent’s
bargaining proposals, develop counterproposals, and
explain the course of bargaining to its members. Shortly
thereafter, the Charging Party enlisted a financial con-
sultant to assist in developing a detailed, written informa-
tion request, which was sent to the Respondent.3 The
Respondent denied the request on the grounds that the
Charging Party was not entitled to the information be-
cause the Respondent had not cited an inability to pay.

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 preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
2 The judge concluded that the Respondent provided its salespersons
with brochures comparing the Respondent’s products to its competi-
tors’ products. We find that the judge misread the testimony regarding
the brochures and there is no record evidence supporting such a conclu-
sion. We also do not rely on the judge’s speculation that the Respon-
dent possessed a good deal of information on competitors that it did not
share with the Charging Party, or that it was implausible that the Re-
spondent only knew of one selling price for any of its competitors’
products.
3 The letter to the Respondent requested such information as material
costs, labor costs, manufacturing overhead, productivity calculations,
competitor data, and data on possible new production.
Afterwards, the Respondent declared impasse and im-
plemented the terms of its final bargaining offer.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to provide the re-
quested information, which precluded the existence of a
valid impasse between the parties in their negotiations
because the information was relevant to the core issues
separating the parties. Thus, the judge also found that
the Respondent violated Section 8(a)(5) and (1) by pre-
maturely declaring impasse, announcing the unilateral
implementation of its final bargaining offer, and unilater-
ally implementing the terms of that offer.
The Respondent excepts to the judge’s findings, prin-
cipally arguing that, because the Charging Party was not
entitled to the requested information, its refusal to pro-
vide the information and its subsequent declaration of
impasse and announcement/implementation of the terms
of its final offer were all lawful.4 The Respondent’s ar-
gument is based on the same assertion it originally made
to the Charging Party—that the information requested
was financial information that the Charging Party was
not entitled to receive because the Respondent had not
pled an inability to pay. For the reasons discussed be-
low, we reject the Respondent’s argument and adopt the
findings of the judge.
As correctly articulated by the judge, an employer’s
duty to bargain includes a general duty to provide infor-
mation needed by the bargaining representative to assess
claims made by the employer relevant to contract nego-
tiations.5 Generally, information pertaining to employees
within the bargaining unit is presumptively relevant.
CalMat Co., 331 NLRB 1084, 1095 (2000). However,
when the representative requests information that does
not concern the terms and conditions of employment for
the bargaining unit employees—such as data or informa-
tion pertaining to nonunit employees—there is no such
presumption of relevance, and the potential relevance
must be shown. Shoppers Food Warehouse Corp., 315
NLRB 258, 258–259 (1994). The burden to show rele-

4 The Respondent also argues that the judge erred by failing to find
that the Charging Party’s information requests were made merely to
preclude impasse. The judge rejected this argument, crediting testi-
mony that the Charging Party had legitimate motives for the requests
and noting that the Respondent failed to substantiate its argument. We
adopt the judge’s conclusion. We also note that the Respondent does
not argue that the Charging Party’s requests were unduly burdensome.
5 “Good-faith bargaining necessarily requires that claims made by
either bargainer should be honest claims. . . . If such an argument is
important enough to present in the give and take of bargaining, it is
important enough to require some sort of proof of its accuracy. And it
would certainly not be farfetched for a trier of fact to reach the conclu-
sion that bargaining lacks good faith when an employer mechanically
repeats a claim . . . without making the slightest effort to substantiate
the claim.” NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1160
vance is “not exceptionally heavy,” Leland Stanford Jun-
ior University, 262 NLRB 136, 139 (1982), enfd. 715
F.2d 473 (9th Cir. 1983), and “[t]he Board uses a broad,
discovery-type of standard in determining relevance in
information requests.” Shoppers Food Warehouse, 315
NLRB at 259. When there has been a showing of rele-
vance, the Board has consistently found a duty to provide
information such as competitor data, labor costs, produc-
tion costs, restructuring studies, income statements, and
wage rates for nonunit employees. E. I. du Pont & Co.,
276 NLRB 335 (1985); E. I. du Pont & Co., 264 NLRB
48, 51 (1982), enfd. 744 F.2d 536 (6th Cir. 1984); see
also CalMat Co., supra at 1096–1097; Litton Systems,
283 NLRB 973, 974–975 (1987), enf. denied on other
grounds 868 F.2d 854 (6th Cir. 1989).
Although the information requested by the Charging
Party was not presumptively relevant, the General Coun-
sel established that the information was relevant, because
it would have assisted the Charging Party in assessing
the accuracy of the Respondent’s proposals and develop-
ing its own counterproposals. The record evidence dem-
onstrates that the Charging Party’s requests were made
directly in response to specific factual assertions made by
the Respondent in the course of bargaining. The Re-
spondent consistently maintained that certain bargaining
concessions were necessary to make its less-competitive
Rochester facility, which had already experienced sig-
nificant reductions in force, a viable option when it came
time to locate contemplated new product lines, and the
Respondent also justified its proposals by a need to be-
come more competitive in the industry. As found by the
judge, the Charging Party requested specific information
to evaluate the accuracy of the Respondent’s specific
claims6 and to respond appropriately with counterpro-
posals, and the information requested was relevant to
those purposes. Furthermore, the Charging Party’s re-
quests were narrowly tailored in response to the Respon-
dent’s own claims—the Charging Party did not request
generalized financial information, such as the Respon-
dent’s profits, net income, tax returns, salary informa-
tion, or administrative expenses.
The Respondent’s argument—that an employer has no
duty to disclose information requested by a union where
the information is financial in nature and the employer
has not pleaded an inability to pay—was rejected by the
Board in E. I. du Pont, supra. In that case, while the
Board found merit in the respondent’s defense that it had

6 For example, the Respondent insisted its other plants were more
competitive than its Rochester plant and that its production costs were
lower elsewhere; in response, the Charging Party requested cost data
for each of the Respondent’s plants as well as the method the Respon-
dent used to track productivity.
no duty to provide some requested information because it
had not pled financial hardship, the Board found the re-
spondent had unlawfully refused to furnish the union
with other more specific financial information, such as
comparative production cost data for the respondent’s
other plants, which Respondent made relevant by its rep-
resentations during bargaining. Id. at 335.
The Respondent is correct that, generally, an employer
is not obligated to open its financial records to a union
unless the employer has claimed an inability to pay, and
that broad statements of “competitive disadvantage” do
not amount to a claim of an inability to pay. Nielsen
Lithographing Co., 305 NLRB 697, 699 (1991), review
denied 977 F.2d 1168 (7th Cir. 1992), discussed in Bur-
russ Transfer, Inc., 307 NLRB 226, 228 (1992). Here,
there is no evidence, nor any allegation, that the Respon-
dent claimed an inability to pay. However, there is also
no evidence that the Charging Party sought general ac-
cess to the Respondent’s financial records. Rather, the
evidence shows that the Respondent premised its bar-
gaining positions on specific assertions, and the Charging
Party requested information to evaluate and verify the
Respondent’s assertions and develop its own bargaining
positions. Thus, the Respondent, in the course of bar-
gaining, made the information relevant and created the
obligation to provide the requested data. See E. I. du
Pont, 276 NLRB at 335, 341 (discussing Leland Stanford
Junior University, supra at 145). As detailed above,
Board law makes it clear that the Charging Party was
entitled to the information it requested. Consequently,
we agree with the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by failing to provide the
requested information, and that the Respondent further
violated Section 8(a)(5) and (1) by prematurely declaring
impasse, announcing the unilateral implementation of its
final bargaining proposal, and unilaterally implementing
the terms of that proposal.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Caldwell Manufacturing
Company, Rochester, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.
CALDWELL MFG. CO. 1161
Aaron Sukert, Esq., for the General Counsel.
Roy R. Galewski, Esq. (Harris Beach, LLP), of Pittsford, New
York, for the Respondent.
Steven Koslow, Esq., of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Buffalo, New York, on January 25 and 26, 2005. Local 311,
IUE-CWA, AFL–CIO, CLC (the Union) filed the initial charge
on July 19, 2004, and a second charge on September 28, 2004.
The Acting Director for Region 3 of the National Labor Rela-
tions Board (the Board) issued the complaint and notice of
hearing on September 28, 2004, and the order consolidating
cases, amended complaint and notice of hearing on November
26, 2004. At the start of trial, I granted the General Counsel’s
unopposed motion to further amend the complaint. As
amended, the complaint alleges that Caldwell Manufacturing
Company (the Respondent or the Company) violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act)
by: failing and refusing to provide the Union with requested
information regarding, inter alia, the costs of production and
competitiveness of its Rochester, New York facility; and de-
claring impasse and implementing its final offer at a time when
the parties were not at a bona fide impasse. The Respondent
filed a timely answer in which it denied that it had committed
the unfair labor practices alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Rochester, New York, produces window hardware.
In conducting this business, the Respondent annually purchases
and receives at its Rochester, New York facility goods valued
in excess of $50,000 directly from points outside the State of
New York. I find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent manufactures devices—known as “window
balances”—that facilitate the raising and lowering of double-
hung windows. It has production facilities in Rochester, New
York, Jackson, Mississippi, and Williamsport, Maryland, and a
warehouse in El Paso, Texas. The Union has represented
hourly employees1 at the Respondent’s Rochester plant for over

1 The Union represents the following unit of employees at the Roch-
ester location:
All hourly rated production and maintenance employees with respect
to rates of pay, wages, hours of employment, and other conditions of
employment, excluding supervisors, foremen, time study men, ex-
30 years. Employees at the Respondent’s other facilities are
not represented by a union. The violations alleged in the com-
plaint involve the Rochester facility.
At the time of trial, the Respondent employed 39 individuals
at the Rochester facility, down from a work force of approxi-
mately 180 in the year 2000. This reduction resulted from a
sharp decrease in the demand for “spiral” window balances—
the only product the Respondent manufactures at the Rochester
facility. The Respondent also manufactures two other types of
balances—“block and tackle” and “constant force”—but does
so exclusively at the Jackson and Williamsport facilities. The
Respondent fabricates all three types of balances from steel and
plastic, but the grade of steel used varies depending on the par-
ticular product.
B. Negotiations
The most recent collective-bargaining agreement for the
Rochester facility went into effect on March 17, 2001, and had
an expiration date of March 15, 2004. In early January 2004,
the Union and the Respondent began negotiations for a succes-
sor to that agreement. From January 7 to April 19, the union
team and the Respondent’s team met 18 times. In an April 23
memorandum to employees, the Respondent declared that the
parties were at impasse and announced the unilateral imple-
mentation of the Company’s last proposal. On April 26, the
Respondent unilaterally implemented its last proposal.
The Union’s bargaining team consisted of: Joe Giffi (area
director), Michael Rusinek (staff representative), Dan Dowd
(president of the union local), Jeff Siddons (chief steward of
union local), and Dan Prince (steward of union local). Giffi
attended approximately 7 of the 18 negotiating sessions and
when present he acted as the Union’s primary spokesperson.
Rusinek was the Union’s primary spokesperson at meetings
that Giffi did not attend. The Respondent’s bargaining team
consisted of: Karen Williams (vice president of human re-
sources);2 Kevin Novak (Rochester facility plant manager);3
Peter Egbert (vice president of manufacturing); and Gerri
Eagen (human resources). Williams was the primary spokes-
person for the Respondent’s team. The record indicates that the
parties held three bargaining sessions in January, five sessions
in February, nine sessions in March, and one session in April.
At the outset of negotiations, the parties agreed that they
would attempt to resolve the noneconomic issues before turning
their attention to the economic ones. The bargaining teams
exchanged noneconomic proposals on January 8, at the second
meeting. During the ensuing discussions, the Respondent’s
team told the union negotiators that the manufacture of spiral
balances was a dying business, but that the Company wanted to

perimental assistants, office clerical, and confidential employees, and
other employees with authority to hire, promote, discharge, discipline,
or otherwise affect changes in the status of employees or effectively
recommend such action.
2 Williams is also an attorney experienced in labor law. She testified
that in her position with the Respondent she considers herself to be
practicing law.
3 At the time of the negotiations Novak was plant manager for the
Rochester facility. He subsequently became the Respondent’s program
manager.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1162
introduce several new products, including one, a “multipoint
lock” for windows, that it said it could begin producing at the
Rochester facility by the end of the year 2004. Williams told
the Union that the Respondent had not yet decided whether to
use the Rochester facility, as opposed to one of its other plants,
to manufacture the new items. The Respondent’s team also
mentioned a product, an “ultra lift” balance, that would bring
20 jobs to the Rochester plant if production was transferred
from Jackson. Given that the market for spiral balances was
disappearing, the Union was very anxious to bring the new
production to the Rochester facility.
As the expiration date of the existing contract approached,
the parties had not succeeded in resolving many of their differ-
ences regarding noneconomic issues. Nevertheless, on March
11, the Respondent presented the Union with its economic pro-
posals. The Union gave its economic proposals to the Respon-
dent at the next bargaining session, which was held on March
15, the contract’s expiration date. The differences between the
parties’ economic proposals were significant. At the close of
the March 15 meeting, the Respondent’s opined that the parties
were still far apart and unlikely to reach agreement. Williams
warned that the Respondent believed the parties were at im-
passe and that it was going to prepare to unilaterally implement
its last proposal. During bargaining, the Respondent never
claimed an inability to pay the wages and benefits sought by the
Union or asserted that its business was not profitable.
1. March 22 meeting and Respondent’s presentation
of last offer
Giffi had not been attending the bargaining sessions, but af-
ter being apprised of Williams’ March 15 statements regarding
impasse and implementation, he began to participate as the lead
negotiator on behalf of the Union. During the five meetings
from March 17 to 22, the parties resolved most of the major
outstanding issues dividing them. At the March 17 meeting,
the parties agreed on a list of the 14 most important remaining
issues and by the end of the March 22 meeting all but 3 or 4 of
those issues had been resolved. The record reflects that both
sides made compromises. The Union had, inter alia, agreed to
the elimination of one employee holiday, and to the Respon-
dent’s proposal to combine employee classifications to allow
greater flexibility in assigning work, and had also moved to-
wards the Respondent’s proposal on “second-tier” wages for
newly hired employees. The Respondent had made conces-
sions on issues involving the provision of health care benefits
to retirees. However, significant differences remained. The
Respondent’s proposal called for employees’ wages and bene-
fits to be frozen for the 3-year term of the contract, while the
Union was seeking annual increases in wages and improve-
ments in benefits. The parties also disagreed about the Re-
spondent’s proposal to have employees make contributions to
cover a portion of increases in health insurance premiums.
At the start of the March 22 meeting, Giffi commented on
how far the parties had come since March 15 when the Respon-
dent was threatening to implement its last proposal. He opined
that “[w]e’ve shown that we are willing and able and ready, to
meet to continue progressing on all the issues.” Both Giffi and
Williams testified that progress was made at the March 22
meeting. Nevertheless the parties did not reach agreement that
day on wages, pension benefits, and how health care premium
increases would be shared. Towards the end of the March 22
meeting the Respondent presented the Union with a document
that it stated was the Company’s “last, best and final offer.”
That proposal incorporated tentative agreements the parties had
already reached. It also included the Respondent’s proposal to
freeze employees’ wages and benefits during the 3-year term of
the contract.
Giffi expressed extreme dissatisfaction with the Respon-
dent’s proposal, but stated that he would speak with “people in
Washington” and “have the committee take a look.” Williams
responded, “We’ve given you everything that we can do at this
point.” Giffi answered, “That’s terrible and so have we.”
Williams told the union team that she realized they had “truly
bent over backwards and . . . come up with creative ideas,” but
that “[i]t didn’t work.” Williams explained the Respondent’s
insistence on freezing employees’ wages and benefits in part by
telling the union team that the Company wanted to “make it so
that it makes sense, financially, to bring product [to the Roches-
ter facility].” Giffi said that the Respondent’s proposal was
“really bad,” but that “[o]ur committee will look through these
items.” He stated that he needed “to confer with . . . people in
Washington.” He told Williams that “[o]ur intention is to meet
again,” and that he would contact her “tomorrow.”4
2. March 24 meeting and the Union’s oral
information request
The next meeting was held 2 days later on March 24. Prior
to the meeting, the union committee decided that they were
prepared to make concessions on the unresolved economic
issues. At the March 24 meeting, the Respondent and the Un-
ion estimated that the difference between their economic pro-
posals amounted to approximately $250,000 over the course of
the contract. Giffi stated that he would try to find a way to
bridge that gap, including by seeking certain state funding
Williams again told the Union team that it was necessary to
freeze employees’ wages and benefits for 3 years so that the
Respondent could bring new production to the Rochester facil-
ity. According to Williams, she wanted the Rochester plant to
be “top of the list” compared to the other two plants when the
Company was making “plant loading” decisions. Williams
conceded that the agreements the parties already reached had
helped by improving the Respondent’s flexibility at the Roch-
ester facility, but she said there were also financial concerns.
Williams told the union committee that the cost of doing busi-
ness at the Rochester facility was higher than the cost of doing
business at the Company’s other two plants.5 She said that the

4 R. Exh. 4 consists of audiotapes made of the March 22, 2004 nego-
tiating session. After the close of trial, the parties submitted a written
transcript of these tapes, which they had agreed to have marked and
admitted as Jt. Exh. 1. I admit Jt. Exh. 1 into evidence.
5 Both Rusinek and Giffi testified that, at the March 24 meeting,
Williams had explained the Respondent’s insistence on freezing wages
and benefits at Rochester, in part, by claiming that the Company’s other
plants were more competitive and/or less costly, than the Rochester
location. Williams initially testified she did not recall ever making
such a statement during the negotiations with the Respondent. How-
CALDWELL MFG. CO. 1163
material costs at Rochester were “different” than the material
costs at the other facilities, and that the plant was not competi-
tive in terms of labor costs, material costs, and production effi-
ciency. Williams also stated that the Respondent’s employees
in Rochester were being paid more than individuals doing simi-
lar work for other employers in the Rochester area, an assertion
that the Union disputed. Williams told the union bargaining
team that the Respondent was losing business to other compa-
nies that were able to sell competing products for less. She
named a few competitors and noted that one was offering a
product for 72 cents with free shipping that the Respondent
could not afford to sell for less than 95 cents without shipping.
Giffi responded to some of Williams’ assertions by asking
her to help him understand the ways the Rochester plant was
not competitive, and he orally requested that the Respondent
provide the Union with certain information. In particular, he
asked that the Respondent tell the Union what the costs of labor
were as a percentage of sales and what the costs of materials
were as a percentage of sales at the Rochester, Jackson, and
Williamsport facilities. He asked the Respondent to provide
wage and benefit information for the Jackson and Williamsport
facilities. Giffi also asked that the Respondent provide any
similar information it had about its competitors. He asked the
Respondent to describe its method of tracking productivity. In
his trial testimony, Giffi stated that he needed this information
to develop new proposals, evaluate whether to accept the Re-
spondent’s proposals, and explain his decisions to the union
membership. He said that, in his experience, knowing what
labor costs were as a percentage of sales volume was very use-
ful in determining whether labor costs were an area where an
employer was not competitive. Giffi testified that he hoped he
could use the productivity information to propose changes that
would pay for the wage increases that the Union was seeking.
Giffi explained that he requested the information about the
Respondent’s other facilities because he was looking for ways
to convince the Respondent to choose the Rochester facility as
the location for the manufacture of the new products Williams
had mentioned. Giffi credibly testified that he also asked for
the information because he had been expecting the Respondent
to compromise on the economic issues, and needed to under-
stand why the Respondent refused “to budge.” Depending on
what the requested information showed, the Union was pre-
pared to make a proposal “from complete agreement [with the
Respondent’s proposal], to complete disagreement and points
in between.”

ever, when confronted with the Respondent’s own record of her April
19 statements to the Union, Williams retracted that denial and admitted
that “it appears I did say” that the other plants were “more competitive
than Rochester.” Tr. 253–254; see also GC Exh. 25 at p. 25. Further-
more, in her April 7 and 13 letters responding to a union information
request, Williams did not specifically deny the Union’s assertion that
on March 24 she had claimed that production at the Respondent’s other
facilities was more competitive/less expensive than at the Rochester
facility. See GC Exhs. 8 and 11. Based on these factors, and my
evaluation of the demeanor of the witnesses, I credit Rusinek’s and
Giffi’s testimony that, on March 24, Williams stated that the Respon-
dent’s other plants were more competitive than the Rochester facility.
At the meeting on March 24, Williams responded to Giffi’s
request by stating that the information he had requested was
proprietary. Williams also stated that, in her view, the Union
was asking the Respondent to open its books, and that the Un-
ion was not entitled to such access. Giffi said that he was not
asking the Respondent to open its books. He requested that the
Respondent provide nonproprietary information that was re-
sponsive to his request. The Respondent never provided any of
the information requested by Giffi on March 24.
Before the meeting ended, Giffi told Williams that he did not
believe the parties were done negotiating. Williams responded
that on March 22, Giffi had said that the Union had already
given all that it could. Giffi denied making that statement.
3. Union’s March 29 written information request
After the meeting on March 24, the Union sought advice
from Eugene Leeb, a financial consultant who specializes in
helping companies and venture capitalists assess the truth of
assertions made by business entities. The Union asked Leeb to
help it formulate requests to the Respondent for information
that would permit an evaluation of some of the Respondent’s
assertions during bargaining. The resulting information re-
quest—a letter dated March 29 from Rusinek to Williams—
reads in part:
Concerning your assertion that the Rochester plant’s produc-
tion costs are higher than those of your other plants, please
provide the following information for the last three fiscal
years for each of the 3 plants:
1. You stated that your material costs at Rochester are
higher than at your other plants. Please provide specifics
on that as well as an explanation of how and why material
costs would be different in Rochester, NY as compared to
Jackson, MS or Williamsport, MD. Are you allocating
costs other than Freight in to the cost of Raw Material?
Are your comparing the exact same material? Was there a
large inventory shortfall? Would you please provide us
with specific examples of the differences in invoice cost
per unit or material usage that is the basis of this claim and
what percentage your examples are of total product mate-
rial cost. If the price difference is really great, isn’t the
company missing a profitable sourcing opportunity.
2. Please provide us with detailed calculations and ex-
planations of how the Company calculates productivity at
each of its 3 plants, including a line by line item breakout
of total Labor Costs at each plant including benefits and
any other costs allocated as “Labor.”
3. Please provide copies of work rules and employee
handbooks in effect at your other plants.
4. Please provide a detailed line by line summary of
manufacturing overhead across the plants.
Concerning your assertion that the Company’s Roch-
ester plant is “uncompetitive,” (You even sited [sic] a case
where a competitor was offering one of our most impor-
tant customers a 25% decrease over our current price on a
comparable item.) Would you please provide.
5. Information on the products, actual selling prices
(not list), quality differences—perceived and actual—
materials, workmanship, engineering, functionality, ser-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1164
vice, on time delivery, between our products and the com-
petitors’ whose products are putting us to this competitive
disadvantage.
Concerning your offer to locate new products and pro-
duction lines at the Rochester facility, can you please
specify the products, the competition and the annual pro-
duction you estimate and the number of new jobs that will
result.
General Counsel’s Exhibit (GC Exh. 6) (emphasis in original).
The information request did not seek direct access to the Re-
spondent’s financial books. Nor did it ask for information
showing the Company’s profits, overall financial condition, or
ability to pay for what the Union was proposing. The Union
did not ask the Respondent to state its net income, penalty ex-
penses, selling expenses, salary information, or administrative
costs.6
Leeb appeared as a witness at trial, and I found him very
credible. He was a measured and forthcoming witness and his
demeanor led me to believe that he was testifying honestly and
objectively, not at all in a biased manner. Leeb stated that he
expected the Company to have the types of information sought
in paragraphs 1, 2, and 4 of the request “readily available” and
“at their fingertips.” With respect to paragraph 5, he indicated
that he did not know whether the Respondent had that informa-
tion, but said that he requested it to see if the Respondent had
support for its assertions. Leeb explained that he required the
information for a 3-year period because uncompetitiveness is a
“dynamic process” that is “improving or deteriorating” not an
“on-off switch.” Information regarding all three plants was
necessary, he said, so that he could test the Respondent’s asser-
tion that the Rochester plant was not as cost-effective as the
other two plants.
The General Counsel’s witnesses credibly testified that the
Union needed the information sought in paragraph 1 of the
letter in order to determine whether differences that the Re-
spondent claimed existed in the material costs at the three
plants could be attributed to factors other than location—for
example, to differences in the materials themselves, the way
scrap material was used at the various facilities, inconsistencies
in the way warehousing costs were accounted for, or inventory
shortfalls that could create temporary spikes in reported mate-
rial costs. Leeb stated that he asked for the information sought
in paragraph 2 regarding productivity because there are differ-
ent ways of calculating productivity and he needed to know
what the Respondent meant by its assertions regarding that
subject. The labor cost information was needed, Leeb said, in
order to determine to what extent any apparent differences in
labor costs at the three plants might be attributable to inconsis-
tencies in how the different plants treated expenses for account-
ing purposes. Leeb used unemployment insurance costs as an
example of an expense that might be treated as a labor cost at
one plant and as an overhead expense at another. He sought the

6 The Union’s request does not mention salary information or admin-
istrative costs. While testifying, Williams initially suggested that such
information was encompassed by the Union’s request. When pressed,
however, she conceded that the Union was not requesting salary infor-
mation or administrative costs. Compare, Tr. 208–209 and 248–249.
overhead information set forth in paragraph 4 for the same
reason—to help determine if some expenses were being treated
as overhead expense at one facility and as something else at
another facility. The information in paragraph 5 regarding
competitors’ products was necessary, Leeb explained, in order
to assess whether the products that Williams claimed competi-
tors were selling for lower prices were really comparable in
terms of function and quality. The information regarding new
products, that was requested in the unnumbered paragraph fol-
lowing paragraph 5, was sought, according to Leeb and Rusi-
nek, in order to assess how many new jobs and what kind of job
security would likely be gained if the Union agreed to propos-
als that led the Respondent to bring the new products to the
Rochester facility. Rusinek credibly testified that the Union’s
“sole purpose” for the information request was “making sure
that we understood what the Company was talking about in
their various assertions of competitiveness and costs” so that
they could “work toward an amicable agreement.” Leeb and
Rusinek stated that the Respondent was the only source they
knew of from which to obtain the information.
4. Employer’s response to information request
On April 7, Williams responded in writing to the Union’s
March 29 information request. With that response, Williams
provided the Union with the employee handbooks requested in
paragraph 3 of the request, but none of the other information
sought by the Union on March 24 and 29. In her response,
Williams stated:
With regard to the information requests in your March 29 let-
ter, the Union is not legally entitled to the financial informa-
tion since the Company has not cited an inability to pay or in-
crease the existing wages or benefits. Rather, our discussions
focused solely on competitive disadvantages involving our
business. As such, the information you requested on material
costs, allocation of costs, calculations of productivity and
overhead, as well as the same information from our competi-
tors will not be supplied. In addition, much of the information
you request is readily available to the Union from sources
other than the Company.
. . . The Company has not made any “offer” to locate new
products and production lines in Rochester. Our discussion
was that our ability to do so would be based on keeping our
costs low and our flexibility high so that it made business
sense to have Rochester be the plant of choice when the
Company was looking to manufacture a new product. As
such, we cannot provide any information in response to your
request regarding which new products or production lines
would be in Rochester, or an estimate of the number of new
jobs.
(GC Exh. 8.) In the April 8 letter, Williams also stated, “[W]e
vehemently disagree with many of the assertions you have
made.” “In particular,” Williams stated that she disagreed with
Rusinek’s “assertion that the Company has somehow bargained
in bad faith.” Williams did not specifically mention, or deny,
the Union’s claim that she had asserted that the Rochester facil-
ity was more costly/less competitive than the Respondent’s
other facilities. Williams also announced that in the Respon-
CALDWELL MFG. CO. 1165
dent’s view, “an impasse in bargaining exists between the par-
ties.”
On April 13, Williams again contacted Rusinek by letter re-
garding the Union’s information requests. With that letter,
Williams provided information about wage rates in the Roches-
ter area; however, she did not provide any of the information
the Union requested on March 24 or 29. Williams asserted that
“the average wages in our Rochester facility are approximately
$3.00 to $5.00 per hour higher than the average wages for com-
parable manufacturing work in the area,” and “[t]his factor
alone justifies the position we have taken, regardless of any
other issues that may have been discussed, such as the wages,
material costs or taxes paid by others.” (GC Exh. 11.)
The bargaining teams next met on April 19. The parties
spent much of this meeting discussing the Union’s September
29 information request. They went over the request “point by
point” and the Union tried to show that the requested informa-
tion was relevant to the Respondent’s assertions during bar-
gaining. Williams, however, told the Union that the Respon-
dent was not going to provide any more information to the Un-
ion. Williams reiterated that the Respondent’s proposals were
justified by a need to make the Rochester facility a viable loca-
tion for new production. She again stated that the Respondent’s
other plants were more competitive than the Rochester facility,
and said that the Respondent had lost a customer because it
could not meet a competitor’s price of 72 cents per item. She
also contended that the Respondent’s proposals were justified
because the unit employees’ wages were higher than those of
other Rochester-area individuals doing similar work.
The Respondent does not dispute that it withheld information
responsive to much of the Union’s information request. How-
ever, with respect to paragraph 5 of the request, which sought
information on competitors and their products, the Respondent
asserts that it supplied all the information it had in its posses-
sion. (R. Br. at 13–15.) That factual assertion is contradicted
by the testimony of the Respondent’s own witness. Williams
testified that the Respondent had samples of competitors’ prod-
ucts, tested those products against its own, and then provided
brochures with the results of the testing to its salespersons so
they could use it to persuade customers of the superiority of the
Respondent’s products. (Tr. 254–256.) When responding to
the Union’s information request, however, Williams not only
refused to provide this information, but denied that the Respon-
dent even had it. (Tr. 246.) Similarly, while testifying, Wil-
liams first tried to deny that the Respondent collected informa-
tion on competitors’ selling prices, but when pressed she admit-
ted that salespersons ask customers what prices competitors are
offering, and that the resulting information on competitors’
prices is retained by the Respondent. (Tr. 254–255, 256–257.)
In response to the Union’s information requests, the Respon-
dent never revealed what information the Company had, or did
not have, that was covered by the information requests regard-
ing competitors and their products.
C. Unilateral Implementation
Subsequent to March 22, neither the Union nor the Respon-
dent made any new proposals regarding outstanding contract
issues. On April 19, after the meeting that day, Rusinek sent a
letter to Williams in which he stated that the Union wanted “to
work toward a mutually beneficial contract,” but was “stymied
due to the Company’s refusal to provide the information to
substantiate and justify the claims and assertions the Company
has made.” Giffi testified that in order to make its next pro-
posal, the Union needed the requested information showing
where the Rochester facility was “falling short in competitive-
ness.”
In a letter dated April 20, Williams stated that the Union had
“now been told on at least five separate occasions that you have
been provided with all of the information to which you are
entitled and which would allow you to make a decision on the
outstanding proposals.” She continued, “Although we have
been at impasse for some time, the Company chose to suspend
implementing its final offer to give the Union an opportunity to
assess its position and review all the information we had pro-
vided.” She invited the Respondent to sign the Respondent’s
proposal, but warned that “there is no dispute that we remain
deadlocked” and that the Respondent was “now prepared to
implement the final offer . . . provided . . . on March 22.” The
Union did not sign the Respondent’s proposal, and on April 23,
the Respondent distributed a memorandum to employees stat-
ing that the parties were deadlocked, and setting forth new
terms and conditions that the Respondent would unilaterally
implement on April 26.
Effective April 26, the Respondent unilaterally implemented
its March 22 proposal. The implemented terms included, inter
alia, freezing wages and benefits for current employees, creat-
ing a lower wage structure for newly hired employees, combin-
ing job classifications, reducing the number of employee holi-
days by one, having employees share the cost of certain health-
care premium increases, instituting mandatory overtime, au-
thorizing the use of seasonal workers, requiring employees to
inform the Respondent before the start of their shift if they were
going to be absent, and eliminating some medical plan options.
Rusinek, in a letter to Williams dated April 26, stated that the
Respondent’s declaration of impasse and proposal implementa-
tion were unlawful, and demanded that bargaining resume.
D. Complaint Allegations
The complaint alleges that the Respondent failed and refused
to bargain collectively and in good faith with the Union in vio-
lation of Section 8(a)(1) and (5) of the Act, by: failing to pro-
vide information that was requested by the Union on March 24
and March 29, 2004, and which was necessary for, and relevant
to, the Union’s performance of its duties as collective-
bargaining representative7; prematurely declaring impasse on or

7 After the trial had opened, but before any evidence was presented,
the General Counsel made an unopposed to motion to amend par. IX of
the complaint. I granted the motion. As amended at trial, par. IX of the
complaint reads:
(a) On or about March 24, 2004, at a negotiating meeting for
a successor collective bargaining agreement, the Union orally re-
quested that the Respondent furnish it with information regarding
the costs of production and competitiveness of its Rochester, New
York facility. On or about March 29, 2004, in writing, the Union
reiterated its request of March 24, 2004, and further requested that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1166
about April 20, 2004, announcing on April 23, 2004, that it
would unilaterally implement its final offer, and unilaterally
implementing terms and conditions of employment on April 26,
2004, at a time when the parties had not reached a good-faith
impasse in bargaining.
III. ANALYSIS AND DISCUSSION
A. Information Requests
It is well settled that an employer’s duty to bargain in good
faith with the bargaining representative of its employees en-
compasses the duty to provide information needed by the bar-
gaining representative to assess claims made by the employer
relevant to contract negotiations. NLRB v. Acme Industrial Co.,
385 U.S. 432, 435–436 (1967); NLRB v. Truitt Mfg. Co., 351
U.S. 149, 152–153 (1956); Saginaw General Hospital, 320
NLRB 748, 750 (1996); Public Service Electric & Gas Co., 323
NLRB 1182, 1186 (1997), enfd. 157 F.3d 222 (3d Cir. 1998);
National Broadcasting Co., 318 NLRB 1166, 1168–1169
(1995). As the Supreme Court has noted, if “an argument is
important enough to present in the give and take of bargaining,
it is important enough to require some sort of proof of its accu-
racy.” NLRB v. Truitt Mfg., 351 U.S. at 152–153. When the
information sought by the bargaining representative does not
concern the terms or conditions within the bargaining unit—for
example, when it involves financial information or information
on competitors—there is no presumption of relevancy. Dexter
Fastener Technologies, Inc., 321 NLRB 612, 612–613 and fn. 2
(1996). In such an instance, the probable or potential relevance
of the information must be shown. Id; Shoppers Food Ware-
house Corp., 315 NLRB 258, 258–259 (1994). However, the
burden to show relevance is “not exceptionally heavy.” Leland
Stanford Junior University, 262 NLRB 136, 139 (1982), enfd.
715 F.2d 473 (9th Cir. 1983). “The Board uses a broad, dis-
covery-type of standard in determining relevance in informa-
tion requests . . . and potential or probable relevance is suffi-
cient to give rise to an employer’s obligation to provide infor-
mation.” Shoppers Food Warehouse, 315 NLRB at 259; see
also Acme Industrial, 385 U.S. at 437 and fn. 6.
The question is whether there is a “probability that the de-
sired information [is] relevant, and that it would be of use to the
union in carrying out its statutory duties and responsibilities.”
Acme Industrial, 385 U.S. at 437 (emphasis added). Under
these standards, the information sought by the Union was not
presumptively relevant. However, for the reasons discussed
below, I find that the record establishes a probability that the
information at issue here was relevant and would have assisted
the Union in assessing the accuracy of the Respondent’s claims
during bargaining and in formulating the Union’s own counter-
proposals. Therefore, the Union was entitled to the informa-
tion, and the Respondent’s failure and refusal to provide it was

Respondent furnish the Union with additional information as set
forth in [the March 29, 2004, request].
(b) The information requested by the Union, as described
above in paragraph IX(a), is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collective bar-
gaining representative of the unit.
a violation of its duty under Section 8(a)(5) to bargain in good
faith.
1. Information regarding costs and productivity
at Respondent’s three plants
During negotiations for a new contract, the Respondent
claimed that it was necessary to, inter alia, freeze employees’
wages and benefits at the Rochester facility so that it would
make business sense to choose that facility, rather than the
Jackson or Williamsport plants, as the location for new produc-
tion. The credible and cogent testimony of Leeb, Giffi, and
Rusinek demonstrate that the Union requested the cost and
productivity information for the Respondent’s three plants8 in
order to evaluate the accuracy of that claim, and respond ap-
propriately. I agree that this information was relevant for that
purpose and would be of use to Union in assessing whether the
wage and benefit sacrifices that the Respondent was demanding
were actually necessary to make the Rochester plant the first
choice for new production. If the information showed that the
Rochester facility was less cost-effective/productive than the
other plants, the Union might reasonably agree to the freeze in
hopes of bringing more work, and job security, to the Rochester
facility employees. If, on the other hand, the information
showed that the Rochester facility was already the most cost-
effective choice for new production, then the Union might, on
that basis, conclude that employees should not have to make the
sacrifices sought by the Respondent.
The record shows that the information requests at issue were
well tailored to seek information relevant to the Respondent’s
claims. See Litton Systems, 283 NLRB 973, 974–975 (1987),
enf. denied on other grounds 868 F.2d 854 (6th Cir. 1989)
(employer’s claim that it was “more economical” to transfer
production to another facility justified union’s “highly specific”
request for cost analyses and information on the employer’s
financial condition, market share, and what would be necessary
to prevent the transfer). The Union did not seek direct access to
the Company’s financial books or ask that it reveal profits. Nor
did it request information from which the Union would be able
to calculate the Respondent’s profits. The requests did not seek
the Respondent’s tax returns, net income, penalty expenses,
selling expenses, salary information, or administrative costs.
The Union narrowed its request to cover only a 3-year period
and stated that it would accept a sampling of some of the cost
information in lieu of full disclosure. Rather than make a
vague or unduly broad request, the Union hired an outside fi-
nancial consultant to help it formulate specific, and reasonably
narrow, requests for the information necessary to evaluate the
Respondent’s bargaining claims.
The request for cost and productivity information is also jus-
tified by the Union’s need to evaluate the accuracy of the Re-
spondent’s bargaining claim that the Rochester plant was less
competitive than the Jackson and Williamsport plants. Wil-
liams explicitly made this claim on March 24, at the bargaining
session during which Giffi orally requested information, and

8 I refer here to pars. 1, 2, and 4 of the Union’s March 29 written in-
formation request, as well as to the Union’s oral request, on March 24,
for information regarding labor and material costs, and productivity
tracking.
CALDWELL MFG. CO. 1167
again on April 19, at the session during which the Union re-
newed its request for the information listed in the March 29
letter. The cost and productivity information was relevant and
would clearly help the Union to assess the Respondent’s claim
that its proposals were justified because the Rochester facility
was lagging behind the others in competitiveness.
Decisions of the Board confirm that the claims made by the
Respondent during bargaining created an obligation to provide
the Union with the requested information regarding costs and
productivity at the three plants. In one case, E. I. du Pont &
Co., 276 NLRB 335 (1985), the employer claimed that its pro-
posal to restructure jobs at an east Chicago plant was justified
by the need to “improve productivity” and “strengthen competi-
tiveness at the plant.” The Board held that the employer’s
claims entitled the union to, inter alia, “data on production costs
on a per unit basis at the East Chicago plant, plus known com-
parative per unit costs at other plants operated by both the [em-
ployer] and the [employer’s] competitors, and income state-
ments and supporting schedules for the ‘last 3 full years,’ show-
ing the Respondent’s labor costs.” Id. at 336. As in that case,
the Respondent’s claims regarding the need to improve com-
petitiveness at one of its plants entitled the Union not only to
information regarding the costs and productivity there, but also
to information that would permit a comparison to the competi-
tiveness of the Respondent’s other plants. If anything the link
between the Respondent’s claims and that information is
stronger here than in E. I. du Pont & Co., supra, since in this
case the Respondent explicitly claimed that the Rochester plant
was less competitive than its other facilities, and argued that the
Company’s proposals were necessary to make the Rochester
plant the most attractive of the three choices for new produc-
tion. See also Litton Systems, 283 NLRB at 974–975.
Similarly, in Frito-Lay, Inc., 333 NLRB 1296 (2001), the
Board held that a union negotiating a labor contract at one the
employer’s plants was entitled to information regarding the
average wage rate of the work forces in the respondent’s other
locations. The Board explained, “Certainly, knowing the aver-
age wage rate of the workforces at the Respondent’s other fa-
cilities would allow the Union to bargain intelligently for wages
based on comparisons within the company rather than by com-
parison to local wage rates in the geographic area.” Id. at 1296.
Similarly, the information requested by the Union here was
necessary to permit the Union to bargain intelligently for wages
and other benefits, especially in light of the Respondent’s
claims that the Rochester facility was less competitive than the
other plants, and that its employees in Rochester were receiving
wages that exceeded rates in the area.
For the reasons discussed above the Union is entitled to the
cost and production information for purposes of assessing the
Respondent’s bargaining claims and proposals. The Union is
also entitled to that information for the purpose of developing
counterproposals. In CalMat Co., 331 NLRB 1084, 1096–1097
(2002), the Board held that when an employer relies on its al-
leged noncompetitiveness to justify a proposal, the Union is
entitled to information that might permit it “to generate alterna-
tives to wage and benefit concessions through which the Re-
spondent could become more competitive, such as by increas-
ing productivity or reducing costs in other areas.” In such cir-
cumstances, a union is entitled not only to information the em-
ployer has regarding wages and benefits, but also to data on
“productivity, prices, and labor and material costs.” Id. Be-
cause the Respondent in the instant case made an allegation of
noncompetitiveness during negotiations, the Union was entitled
to information that might permit it to develop proposals to in-
crease competitiveness without freezing wages and benefits.
The record shows that one of Giffi’s purposes for requesting
the information regarding costs and productivity at the three
plants was to use the information to develop proposals that
addressed the Respondent’s stated concerns about competitive-
ness without freezing the wages and benefits of the unit em-
ployees. The information requested by the Union regarding
labor costs, material costs, overhead costs, and productivity
tracking is the same type of information that, in CalMat, supra,
the Board found relevant to a bargaining representative’s effort
to generate “alternatives to wage and benefit concessions.”
In its brief, the Respondent attempts to cast a cloud over the
Union’s information requests by asserting that the Union “de-
cided to request a massive amount of complex financial infor-
mation in an attempt to preclude the Company implementing
[its] offer.” (R. Br. at 22–23.) This assertion is made with a
notable lack of support in the record. To begin with, neither
Williams, nor any other witness, testified that information
sought by the Union was massive or complex. To the contrary,
Leeb testified that the Respondent would have most of the re-
quested information “readily available” at its “fingertips” and
the other record evidence does not contradict him. The Re-
spondent also fails to provide substantiation for its accusation
that the Union made the information request solely to forestall
impasse and unilateral implementation. Giffi, Rusinek and
Leeb all testified credibly to legitimate, and completely plausi-
ble, motives for the Union’s information request. While testify-
ing, both Giffi and Rusinek denied that the purpose of the in-
formation requests was to preclude impasse. Indeed, although
the Respondent had stated that it would not agree to wage and
benefit increases, it was not seeking the types of cuts that that
would be expected to drive a union to draw out bargaining in
order to retain the wages and benefits under an old contract. I
find that the Union requested the information because, as Giffi
and Rusinek testified, the union committee was trying to reach
a negotiated agreement. The timing of the information requests
shortly after the Respondent presented its last offer is explained
not by the sinister motive the Respondent suggests, but by the
fact that, late on March 22, Williams indicated that the Com-
pany was unwilling to make the compromises that the Union
had hoped would alleviate the need to for vigorous verification
of the Respondent’s claims through information requests.
With respect to that portion of the request that concerned
material costs, I am not persuaded by Williams’ opinion, ech-
oed in the Respondent’s brief, that the information “would not
tell [the union negotiators] what they believed they needed to
know” because the three facilities used different materials.
What the Union needed to know was precisely whether any
difference in material costs at the three plants was a reflection
of differences between the materials or procedures used at those
plants, or whether, as the Respondent had claimed, it was in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1168
herently less “competitive” or “different” to acquire materials
at the Rochester location.
Leeb credibly testified that it was possible to make efficiency
comparisons between different facilities that were manufactur-
ing non-identical products. The General Counsel and the Un-
ion have easily cleared the hurdle of showing “a probability”
that the desired information is relevant to the Respondent’s
claims and would be of use to the union in carrying out its
statutory duties and responsibilities.” Acme Industrial, supra.
In reaching my conclusion that the Respondent violated the
Act by refusing to provide the requested information regarding
costs and productivity at the company’s three plants, I consid-
ered Board precedent that an employer is not obligated to “open
its books” unless it claims a present “inability to pay.” See
Nielsen Lithographing Co., 305 NLRB 697, 700 (1991) (“an
employer’s obligation to open its books does not arise unless
the employer has predicated its bargaining stance on assertions
about its inability to pay during the term of the bargaining
agreement under negotiation”), affd. 977 F.2d 1168 (7th Cir.
1992). It is true that the Respondent did not assert a present
inability to pay, but it is also true that the Union was not asking
the Respondent to “open its books.” Moreover, I am aware of
no precedent, and the Respondent cites none, in which the
Board has applied the “claim of inability to pay” standard
where, as here, the Union is not requesting direct or unre-
stricted access to the employer’s financial books, but rather has
submitted well-tailored requests for specific financial informa-
tion that is relevant to claims the employer made to support its
bargaining proposals. To the contrary, in E. I. du Pont, supra,
Litton Systems, supra, and Frito-Lay, supra, the Board required
employers to provide financial information about costs and/or
productivity based on showings that the information was
probably relevant and of use to the unions in assessing the em-
ployers’ bargaining claims. The requests at issue in the instant
case ask for such relevant information; they do not seek direct
access to the Respondent’s books or ask the Company to di-
vulge such information as profits, net income, or tax returns.
To support extending application of the “claim of inability to
pay” requirement to the Union’s information requests, the Re-
spondent relies on cases in which that requirement was applied
where a union did not seek direct access to financial books, but
did ask for information about the employer’s financial health or
profitability. For example, the Respondent cites Burruss
Transfer, Inc., 307 NLRB 226, 227–228 (1992), in which the
Board held that the employer’s statement that its proposals
were justified by a need to remain competitive, did not give rise
to an obligation to comply with a union’s request for “full in-
formation on the company’s financial standing and profits,
including tax returns and supporting documentation.” In Niel-
sen Lithographing Co, supra, another case relied on by the
Respondent, the Board held that the employer’s claim of “com-
petitive disadvantage” did not obligate it to comply with a re-
quest for a broad range of financial information, including:
financial statements, tax returns, analyses of working capital,
information on supervisors’ compensation, expense reports
submitted by management personnel and owners, and a list of
automobiles leased or owned by the company. 305 NLRB at
698–699.9 Neither Burruss nor Nielsen represents a true depar-
ture from the simple standard, articulated by the Supreme Court
over 35 years ago in Acme Industrial, supra, and subsequently
followed by the Board,10 that an employer is required to pro-
vide information where there is a “probability that the desired
information [is] relevant, and that it would be of use to the un-
ion in carrying out its statutory duties and responsibilities.”
385 U.S. at 437. In both Burruss Transfer and Nielsen Litho-
graphing, the union requested a broad range of financial infor-
mation about the general financial health and profitability of the
companies. The Board’s decisions in those cases stand, at bot-
tom, for the proposition that information which would serve
only to expose an employer’s general financial health is not
relevant to bargaining unless the Respondent claims an inability
to pay or financial distress, or otherwise places its financial
health at issue. In the instant case, unlike Burruss and Nielsen,
the Union did not seek information about the Respondent’s
general financial health. Rather the Union, presented well-
tailored requests for specific information about costs and pro-
ductivity that was relevant to the Respondent’s claims that the
Rochester facility was less competitive than the Company’s
other plants, and that a pay and benefits freeze was necessary to
enable the Respondent to bring new production to Rochester.
As discussed above, a probability has been shown that the re-
quested information would be of use to the Union in carrying
out its duty to assess those claims, and develop counterpropos-
als. Therefore, the Respondent was obligated to provide the
requested information, and violated the Act by refusing to do
so.
During negotiations Williams contended that the information
sought by the Union was confidential. The Respondent did not
present evidence at trial showing a legitimate and substantial
confidentiality interest in the information, and did not argue the
point in its posttrial brief. At any rate, “[a]n employer is not
relieved of its obligation to turn over relevant information sim-
ply by invoking concerns about confidentiality, but must offer
to accommodate both its concern and its bargaining obligations,
as is often done by making an offer to release information con-
ditionally or by placing restrictions on the use of that informa-
tion.” International Protective Services, 339 NLRB 701, 705
(2003), quoting U.S. Testing Co. v. NLRB, 160 F.3d 14 (D.C.
Cir. 1998); see also SBC California, 344 NLRB 243 fn. 3
(2005). The Respondent never provided portions of the infor-
mation that it deemed nonconfidential, suggested the use of a

9 The Respondent also cites S-B Mfg.Co., 270 NLRB 485 (1984), for
the proposition that the “inability to pay analysis” applies to a union’s
request for a breakdown of labor costs. In that case, the Board affirmed
the administrative law judge’s ruling that an employer had claimed an
inability to pay, and, therefore, was required to provide a wide range of
financial information, including a breakdown of labor costs. That
decision in no way suggests, however, that some other showing would
not have sufficed to obligate the employer to provide the labor cost
breakdown.
10 See, e.g., Crittenton Hospital, 342 NLRB 686, 692 (2004),
Saginaw Control & Engineering, Inc., 339 NLRB 541, 544–545
(2003).
CALDWELL MFG. CO. 1169
confidentiality agreement, or otherwise offered the required
accommodation.11
I conclude that the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to supply the Union with informa-
tion regarding costs and productivity that was requested ver-
bally on March 24, 2004, and in paragraphs 1, 2, and 4 of the
March 29, 2004 written information request.
2. Information regarding the Respondent’s competitors
and their products
In addition to information about the Respondent’s opera-
tions, the Union requested information about the Respondent’s
competitors. Specifically, on March 24, Giffi orally asked the
Respondent to provide any information it had on competitors’
wages, benefits, labor costs and material costs. In paragraph 5
of the March 29 written request, the Union asked for informa-
tion on competitors’ selling prices and products, and for any
information comparing the competitors’ products to the Re-
spondent’s own. Given the Respondent’s claims that its pro-
posals were justified by a need to become more competitive,
the Union was entitled to information in the Respondent’s pos-
session regarding competitors, competitor’s products, and com-
petitor’s selling prices. See CalMat Co., 331 NLRB at 1096–
1097 (employer’s claim that proposal was justified by its non-
competitiveness entitles union to information the employer has
regarding competitors’ wages, benefits, productivity, prices,
and labor and material costs); E. I. du Pont & Co., 276 NLRB
at 335–336 (employer’s claim that proposal was justified by
need to “improve productivity” and “strengthen competitive-
ness at the plant” entitled to union to “known comparative per
unit costs at other plants operated by . . . competitors”). As the
Board has recognized, such information is “relevant and neces-
sary to the Union’s ability to evaluate and bargain with the
Respondent over its claimed need for concessions in order to
remain competitive.” CalMat, 331 NLRB at 1096. In particu-
lar, the information about prices and product quality would
permit the Union to evaluate the Respondent’s repeated asser-
tion that competitors were selling comparable products for less.
In its brief, the Respondent does not appear to claim that the
information on competitors is financial, or otherwise contest
that the Union is entitled to it. Rather the Respondent argues
that the Company has already provided the Union with every-
thing it has that is responsive to the requests. (R. Br. at 13–15.)
During negotiations, Williams made the same argument, stating
that the Respondent did not have any information on com-
petitors or their products other than some hearsay information
that it had already provided. As discussed above, however, the
record demonstrates that the Respondent, in fact, possessed a

11 Williams also refused to provide information on the grounds that
Union could discover the information through independent research.
This assertion was contradicted by both Leeb and Rusinek, who testi-
fied that they knew of no way to obtain the necessary information other
than from the Respondent. In any case, an employer’s duty to provide
relevant and necessary information in its possession is not relieved by
the fact that the union may be able to obtain the information elsewhere.
SBC California, 344 NLRB at 247 fn. 8; People Care, Inc., 327 NLRB
814, 824 (1999); Orthodox Jewish Home for the Aged, 314 NLRB
1006, 1008 (1994).
good deal of information that was responsive to the Union’s
requests, but which it decided to withhold. For example, the
Respondent tested competitor’s products, compared the per-
formance of those products to that of the Respondent’s own,
and then provided its salespersons with brochures setting forth
the results of those comparisons for use in sales presentations.
This information was collected by the Respondent and was
covered by the September 29 request, but the Respondent with-
held it from the Union. The record also shows that the Respon-
dent collected information on competitors’ selling prices. Al-
though Williams repeatedly told the union bargaining team that
competitors were selling products for less than the Respondent,
the only specific price information that the Respondent pro-
vided was one comparison regarding a competitor selling a
product for 72 cents that the Respondent said it could not price
at less than 95 cents. It is implausible to me that the Respon-
dent’s information on competitors selling prices included only
this one comparison. Not surprisingly, the Respondent does not
claim that any of its officials either approached the appropriate
individuals at the Company for the information that had been
collected regarding competitors’ selling prices, or otherwise
met the obligation to make a good-faith effort to gather the
other price information in the Company’s possession. See
Rochester Acoustical, 298 NLRB 558, 563 (1990), enfd. mem.
932 F.2d 955 (2d Cir. 1991), quoting Goodyear Atomic Corp.,
266 NLRB 890 (1983) (Employer must make a “reasonable
effort to secure” “relevant and material information,” “and, if
unavailable, explain or document the reasons for the asserted
unavailability.”).
I conclude that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to supply the Union with
information regarding competitors, competitors’ products and
selling prices, and comparisons to the Respondent’s products
and selling prices, as requested verbally on March 24, 2004,
and in the March 29, 2004 written information request.
3. Information regarding new production
As discussed above, throughout negotiations the Respondent
argued that its proposals were justified by the need to make it
feasible to bring new products and production to the Rochester
facility. This argument had particular weight given that, as the
Respondent said during negotiations, the market was disappear-
ing for the spiral window balances that were the Rochester
facility’s sole product line. In its March 29 information re-
quest, the Union sought information about the Respondent’s
“offer to locate new products and production lines at the Roch-
ester facility.” It asked that the Respondent “specify the prod-
ucts, the competition and the annual production you estimate
and the number of new jobs that will result.” The Union
wanted this information so that it could determine how much
additional work and job security would be gained at the Roch-
ester facility if employees made sacrifices to attract the new
production alluded to by the Respondent. Such an inquiry is
relevant and there is certainly a probability that the information
would be useful to the Union in deciding what proposals to
accept and make. See Acme Industrial, supra.
The Respondent did not provide the Union with information
in response to the September 29 request for information on new
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1170
production, nor did it deny that it possessed information re-
sponsive to the request. Instead, in an April 8 written response,
Williams refused to provide information on the grounds that the
Union had asked about an “offer” to bring new production to
the Rochester facility, but that the discussions on that subject
had not amounted to an offer. Williams’ hairsplitting does not
change the fact that the Union was entitled to the requested
information for purposes of evaluating, and reacting to, the
Respondent’s bargaining claims about new products and pro-
duction.
I conclude that the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to supply the Union with informa-
tion regarding possible new production and products for the
Rochester facility as requested in the March 29, 2004 letter.
B. Respondent’s Declaration of Impasse and
Unilateral Implementation
‘“Generally, an employer has a statutory obligation to con-
tinue to follow the terms and conditions . . . in an expired con-
tract until a new agreement is concluded or good-faith bargain-
ing leads to impasse.’” Made 4 Film, Inc., 337 NLRB 1152
(2002), quoting R.E.C. Corp., 296 NLRB 1293 (1989); see also
TXU Electric Co., 343 NLRB 1404, 140712 (2004) (governing
principles of collective bargaining . . . preclude unilateral im-
plementation of a bargaining proposal unless the parties have
bargained to overall impasse). The General Counsel alleges
that the Respondent violated its statutory obligation by prema-
turely declaring impasse, announcing implementation of its
final offer, and implementing its final offer, when the parties
had not reached a good-faith impasse in bargaining. The Re-
spondent contends that the parties had reached a good-faith
impasse. For the reasons discussed below, I conclude that the
parties were not at a valid impasse and that the Respondent
violated Section 8(a)(5) and (1) of the Act when it prematurely
declared impasse, announced that it would unilaterally imple-
ment its last proposal, and unilaterally implemented its last
proposal.
Respondent’s Unlawful Failure to Provide Information
Regarding Core Issues Precluded Impasse
The Board has defined bargaining impasse as the situation
where “‘good-faith negotiations have exhausted the prospects
of concluding an agreement,’ and there is no realistic possibil-
ity that continuation of discussion at that time would be fruit-
ful.” Grosvenor Resort, 336 NLRB 613, 615 (2001), quoting
CJC Holdings, Inc., 320 NLRB 1041 (1996), enfd. mem. 110
F.3d 794 (5th Cir. 1997); see also Royal Motor Sales, 329
NLRB 760, 761 (1999), enfd. sub nom. Anderson Enterprises
v. NLRB, 2 Fed. Appx. 1 (D.C. Cir. 2001), quoting Taft Broad-
casting, 163 NLRB 475 (1967), enfd. sub nom. Television Art-
ists, AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). It is “the
point in time of negotiations when the parties are warranted in
assuming that further bargaining would be futile . . . . ‘Both
parties must believe that they are at the end of their rope.’”
AMF Bowling Co., 314 NLRB 969, 978 (1994), enf. denied 63

12 The slip opinion number originally appearing on the TXU Electric
Co., decision was 343 NLRB No. 137. Subsequently, the slip opinion
number was corrected to read 343 NLRB 1404.
F.3d 1293 (4th Cir. 1995), quoting PRC Recording Co., 280
NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir. 1987);
Patrick & Co., 248 NLRB 390, 393 (1980), enfd. mem. 644
F.2d 889 (9th Cir. 1981). The employer’s “‘duty to bargain . . .
is not negated by the possibility or even the substantial prob-
ability that the Union would not agree to the [employer’s] pro-
posed economic concessions.’” Stephenson-Yost Steel, 294
NLRB 395, 396 fn. 5 (1989), quoting NLRB v. Eltec Corp., 870
F.2d 1112 (6th Cir. 1989). The Respondent, as the party assert-
ing impasse, has the burden of proof on the issue. L.W.D., Inc.,
342 NLRB 965 (2004); CalMat Co., 331 NLRB at 1097–1098;
Outboard Marine Corp., 307 NLRB 1333, 1363 (1992), enfd.
mem. 9 F.3d 113 (7th Cir. 1993); North Star Steel, 305 NLRB
45 (1991), enfd. 974 F.2d 68 (8th Cir. 1992).
In this case, the parties cannot be said to have exhausted the
prospects for reaching an agreement through good-faith nego-
tiations since the Respondent breached its obligation to bargain
in good faith by unlawfully refusing to comply with the Un-
ion’s request for information that was relevant and necessary to
negotiations. See Decker Coal Co., 301 NLRB 729, 740
(1991), quoting Pertec Computer Co., 284 NLRB 810 (1987).
Under consistent Board precedent, a finding of valid impasse is
precluded where the employer has failed to supply requested
information relevant to the core issues separating the parties.
Titan Tire Corp., 333 NLRB 1156, 1159 fn. 11 (2001); U.S.
Testing Co., 324 NLRB 854, 860 (1997), enfd. 160 F.3d 14
(D.C. Cir. 1998); Decker Coal Co., 301 NLRB at 743; Pertec
Computer, 284 NLRB at 812; compare with Sierra Bullets,
LLC, 340 NLRB 242, 243–244 (2003) (unfulfilled information
request with no relation to core issues does not preclude im-
passe); see also Royal Motor Sales, 329 NLRB at 762 (a lawful
impasse cannot be reached when there are serious unremedied
unfair labor practices that affect the negotiations). There can be
no serious dispute that the information the Respondent unlaw-
fully refused to provide was relevant to most, if not all, of the
core issues separating the parties. In particular, the information
was relevant to justifications the Respondent gave for its pro-
posals to freeze wages and benefits, and require employee con-
tributions to cover certain increases in health care insurance
premiums. As discussed above, the Union needed the informa-
tion in order to assess, and respond to, the Respondent’s claims
that unit employees should accept its proposals because the
Rochester operation was insufficiently competitive, and had to
be made a viable choice for new production. To the extent that
there is uncertainty about what, if any, new proposals the Union
would have made if it had been given an opportunity to review
the information to which it was legally entitled, that uncertainty
must be resolved against the Respondent, whose unlawful ac-
tion created the uncertainty. Dependable Maintenance, 274
NLRB 216 NLRB 219 (1985).13

13 The Respondent also asserted that employees at the Rochester
plant were being paid more than employees doing similar work for
other employers in the Rochester area. In her April 13 letter, Williams
asserted that “[t]his factor alone justifies the position we have taken,
regardless of any other issues that may have been discussed,” and re-
fused to provide the information sought by the Union. I reject the
notion that the presentation of an additional rationale lessens the Un-
ion’s need for information regarding the Respondent’s other justifica-
CALDWELL MFG. CO. 1171
The Respondent argues that even if it unlawfully refused to
provide the information sought by the Union on March 24 and
25, that does not matter because the parties had already reached
impasse on March 22. This argument is flawed, both because
the record fails to support the existence of an impasse on March
22, and because any temporary deadlock that might have ex-
isted on that day was broken before the Respondent declared
impasse and unilaterally implemented its final proposal. The
Respondent’s rests its claim that an impasse existed as of
March 22 primarily on one exchange between Williams and
Giffi. Late in the bargaining session on March 22, Williams
stated, “We’ve given you everything that we can do at this
point.” Giffi responded, “That’s terrible and so have we.”
However, the Respondent distorts the import of this exchange
by extracting it from the larger context of the conversation in
which it occurred. Immediately before the exchange, Giffi
stated that he would discuss the Respondent’s last proposal
with “people in Washington,” and would also have the Union
committee take a look at it. Shortly after the exchange, Giffi
reiterated that he had to confer with people in Washington and
that the Union committee would “look through” what the Re-
spondent had provided. He told Williams that he would call
her the next day to schedule another meeting. Earlier during
the same meeting, Giffi told the Respondent’s bargaining team
that “we are willing and able and ready, to meet to continue
progressing on all the issues.” Given Giffi’s contemporaneous
assurances that the Union would consider, and confer about, the
Respondent’s proposal, it is impossible to interpret the ex-
change relied on by the Respondent as meaning that the Union
was at the “end of its rope.” At most, Giffi was saying that the
Union had given all it could “at this point”—that is, as of that
day. The fact that parties are unable to make further movement
towards an agreement on a particular day does not constitute a
bona fide bargaining impasse. See Dust-Tex Service, 214
NLRB at 405 (employee’s comment that the parties were at
impasse “for now,” means they are “not yet in agreement” as of
that meeting, not that they had reached a bona fide impasse).
Indeed, even if Giffi’s March 22 statement that the Union had
given “everything that we can do at this point,” created a tem-
porary deadlock, that deadlock was broken just moments later
when Giffi stated that the union committee would review the
Respondent’s proposal, consult about it with officials in Wash-
ington, and contact the Respondent to set up another meeting.
See Royal Motor Sales, 329 NLRB at 762 (“As a recurring
feature in the bargaining process, impasse is only a temporary
deadlock . . . ‘which in almost all cases is eventually broken,
through either a change of mind or the application of economic
force.’”). For the reasons discussed above, the exchange be-
tween Williams and Giffi does not lend credence to the Re-
spondent’s claim that the parties reached impasse on March 22.

tions for its proposals. At any rate, subsequent to the April 13 letter,
the Respondent did not abandon the justifications about which the
Union was seeking information. At the April 19 bargaining session,
Williams continued to assert that the Rochester facility was less com-
petitive than the Respondent’s other plants, that the Respondent was
being undersold by competitors, and that the Respondent’s proposals
were necessary to make the Rochester a viable option for new produc-
tion.
The view the parties had not “exhausted the prospects of
concluding an agreement,” Grosvenor Resort, supra, on March
22 is supported not only by Giffi’s statements that day, but by
other relevant evidence regarding the state of negotiations. The
question of whether a valid impasse exists is a “matter of judg-
ment” and among the factors relevant to the determination are
“[t]he bargaining history, the good faith of the parties in nego-
tiations, the length of the negotiations, the importance of the
issue or issues as to which there is disagreement, [and] the con-
temporaneous understanding of the parties as to the state of
negotiations.” Taft Broadcasting Co., 163 NLRB at 478. The
record shows that the parties had devoted a substantial amount
of time to bargaining as of March 22 and that the pace of pro-
gress towards an agreement was accelerating, not slowing. On
March 17, the Respondent and the Union made a list of the 14
core issues dividing them. By the end of the March 22 meet-
ing, all but three or four of those issues had been resolved.
During the March 22 meeting, the Union made a number of
creative proposals to resolve the outstanding issues, and stated
its intent to continue developing such proposals and progress-
ing on all issues. According to the testimony, including that of
Williams, the parties actually made progress towards an agree-
ment at the March 22 session, the very session when the Re-
spondent now claims the parties were at impasse. The Union’s
many compromises during the last few meetings demonstrated
a willingness to make sacrifices in the interests of reaching a
new agreement. See Royal Motor Sales, 329 NLRB at 762 (no
valid impasse when the Union had made a dead-lock breaking
proposal only 2 days earlier), Towne Plaza Hotel, 258 NLRB
69, 78 (1981) (employer’s declaration of impasse invalid where
the union had significantly reduced its wage demand only 2
weeks earlier and the union never stated it was unwilling to
make further concessions). Given the clear indication of the
Union’s flexibility on significant issues, the Respondent was
“‘required to recognize that negotiating sessions might produce
other or more extended concessions.’” Royal Motor Sales, 329
NLRB at 772 quoting NLRB v. Webb Furniture Corp., 366 F.2d
314, 316 (4th Cir. 1966). That is true even where “‘a wide gap
between the parties remains because under such circumstances
there is reason to believe that further bargaining might produce
additional movement.’” Hayward Dodge, 292 NLRB 434, 468
(1989), quoting Old Man’s Home of Philadelphia v. NLRB, 719
F.2d 683 (3d Cir. 1983).
The contemporaneous understanding of the parties also sup-
ports the view that no impasse existed on March 22. Both Giffi
and Rusinek testified credibly that the Union was prepared to
make additional concessions and that the parties were not at
impasse on March 22, or anytime thereafter. I found that testi-
mony credible, based on their respective demeanors, and also
on the basis of Giffi’s contemporaneous assurances that the
Union would confer about the Respondents’ last proposal and
then meet with the Respondent again, and was “willing and
able and ready, to meet to continue progressing on all the is-
sues.” I am not persuaded by Williams’ contrary statements
opining that the parties were at impasse on March 22. Not only
does that opinion fly in the face of the relevant evidence, but
the record shows that Williams was prone to unjustified pessi-
mism regarding the state of negotiations. For example, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1172
record shows that Williams told the union committee that the
parties were at impasse on March 15—and yet over the next
week the parties went on to resolve 10 or 11 of the 14 core
issues that had divided them. Contrary to Williams’ pessimistic
view, an objective view of the evidence discussed above shows
that, as of March 22, the parties were having productive meet-
ings that were succeeding in narrowing the two sides’ differ-
ences and moving them closer to a complete agreement. The
Respondent has not met its burden of showing that a valid im-
passe existed on March 22.
The Respondent’s argument based on the alleged March 22
impasse is flawed for another reason. The argument ignores
that it is the state of negotiations at the time of unilateral im-
plementation that controls whether such implementation is a
violation of the Act, not the state of negotiations at some earlier
moment that the Respondent picks to favor its argument. The
Board recognized this in Jano Graphics, Inc., 339 NLRB 251
(2003). In that case, the employer argued that a valid impasse
had been reached well before it unilaterally implemented new
terms of employment. The Board rejected the employer’s ar-
gument and stated that the possibility that an impasse existed
on the date relied on by the employer was irrelevant because
any impasse that may have existed at that time was broken prior
to the employer’s unilateral implementation. In the instant
case, any impasse that arguably existed based on the exchange
Williams and Giffi had on March 22 was broken at the meeting
held on March 24—well before the Respondent unilaterally
implemented new terms. At the March 24 meeting, Giffi dis-
pelled whatever confusion there may have been regarding the
Union’s position, by clearly stating that the Union was not done
negotiating and denying that the Union had already given all it
could in negotiations. Indeed, the record shows that, as of the
March 24 meeting, the union team was in a position to make
concessions regarding all the unresolved issues. Depending on
what information the Respondent supplied in response to the
information requests, the Union was ready to consider all op-
tions, up to and including complete acceptance of the Respon-
dent’s last offer. Therefore, under Jano Graphics, the question
of whether there was an impasse on March 22 is irrelevant,
because any impasse that arguably existed that day was broken
prior to the Respondent’s declaration of impasse and unilateral
implementation.
For the reasons discussed above, I find that the Respondent
violated Section 8(a)(5) and (1) of the Act by prematurely de-
claring impasse, announcing the unilateral implementation of
its last proposal, and unilaterally implementing its last proposal
when the parties were not at a valid, good-faith impasse.
CONCLUSIONS OF LAW
1. The 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).
3. The Respondent violated Section 8(a)(5) and (1) by failing
and refusing to supply the Union with: information in the Re-
spondent’s possession regarding costs and productivity that the
Union requested verbally on March 24, 2004, and in paragraphs
1, 2, and 4 of the March 29, 2004 written information request;
information in the Respondent’s possession regarding competi-
tors, competitors’ products and selling prices, and comparisons
to the Respondent’s products and selling prices, requested ver-
bally on March 24, 2004, and in the March 29, 2004 written
information request; and, information in the Respondent’s pos-
session regarding possible new production and products for the
Rochester facility that was sought in the March 29, 2004 writ-
ten information request.
4. The Respondent violated Section 8(a)(5) and (1) by pre-
maturely declaring impasse, announcing the unilateral imple-
mentation of its final proposal, and unilaterally implementing
its final proposal when the parties were not at a valid, good-
faith impasse.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In particular, I recommend that the
Respondent be ordered to place in effect all terms and condi-
tions of employment provided by the contract that expired
March 15, 2004, and to maintain those terms in effect until the
parties have bargained to agreement or a valid impasse, or the
Union has agreed to changes. I will also recommend that the
Respondent be ordered to make whole the unit employees and
former unit employees for any loss of wages or other benefits
they suffered as a result of the Respondent’s implementation of
its final proposal on April 26, 2004. This includes reimbursing
unit employees for any expenses resulting from the Respon-
dent’s unlawful changes as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940 (9th Cir.
1981). Interest shall be paid as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Caldwell Manufacturing Company, Roch-
ester, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing refusing to provide the Union with requested in-
formation that is relevant and necessary to the Union’s per-
formance of its duties as collective-bargaining representative of
the Respondent’s hourly employees.
(b) Failing and refusing to bargain collectively and in good
faith with the Union as the exclusive collective-bargaining
representative of unit employees by prematurely declaring im-
passe in bargaining, announcing the unilateral implementation
of new terms and conditions of employment, and unilaterally
implementing new terms and conditions of employment, when
the parties are not at a valid, good-faith impasse in bargaining.

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
CALDWELL MFG. CO. 1173
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Provide the Union with: all information in the Respon-
dent’s possession regarding costs and productivity that the Un-
ion requested verbally on March 24, 2004, and in paragraphs 1,
2, and 4 of the March 29, 2004 written information request; all
information in the Respondent’s possession regarding competi-
tors, competitors’ products and selling prices, and comparisons
to the Respondent’s products and selling prices, that the Union
requested verbally on March 24, 2004, and in the March 29,
2004 written information request; and, all information in the
Respondent’s possession regarding possible new production
and products for the Rochester facility that the Union requested
in the March 29, 2004 written information request.
(b) Inform the Union of the efforts made by the Respondent
to locate, gather, and provide the information set forth in para-
graph 2(a).
(c) Restore, honor, and continue the terms and conditions of
employment as they existed prior to April 26, 2004, and as set
forth in the contract with the Union that was set to expire on
March 15, 2004, and maintain them until such time as the par-
ties complete a new agreement, good-faith bargaining leads to a
valid impasse, or the Union agrees to changes.
(d) Make whole employees and former employees for any
and all loss of wages and other benefits incurred as a result of
the Respondent’s unlawful alteration or discontinuance of con-
tractual benefits, with interest, as provided for in the remedy
section of this decision, and rescind any discipline that issued
as a result of any changes that were made to work rules as part
of the last contract offer and notify the affected employees in
writing of this action, and assure employees that the discipline
that is being rescinded will not be used against them in the
future.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Rochester, New York, copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 10,
2004.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail or refuse to provide Local 311, IUE-CWA,
AFL–CIO, CLC (the Union) with requested information that is
relevant and necessary to the Union’s performance of its duties
as collective-bargaining representative.
WE WILL NOT prematurely declare impasse in bargaining, an-
nounce the unilateral implementation of new terms and condi-
tions of employment, or unilaterally implement new terms and
conditions of employment, when the parties are not at a valid,
good-faith impasse in bargaining.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL provide the Union with: all information in our pos-
session regarding costs and productivity that the Union re-
quested verbally on March 24, 2004, and in paragraphs 1, 2,
and 4 of the March 29, 2004 written information request; all
information in our possession regarding competitors, competi-
tors’ products and selling prices, and comparisons to the Re-
spondent’s products and selling prices, that the Union requested
verbally on March 24, 2004, and in the March 29, 2004 written
information request; and, all information in our possession
regarding possible new production and products for the Roch-
ester facility that the Union requested in the March 29, 2004
written information request.
WE WILL inform the Union of the efforts we made to locate,
gather, and provide the information set forth in the preceding
paragraph.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1174
WE WILL restore, honor, and continue the terms and condi-
tions of the contract with the Union that was set to expire on
March 15, until the parties sign a new agreement, good-faith
bargaining lead to a valid impasse, or the Union agrees to
changes.
WE WILL make employees and former employees whole for
any and all losses incurred as a result of our unlawful discon-
tinuance of contractual benefits, with interest.
CALDWELL MANUFACTURING COMPANY