278 N.L.R.B. 293 (N.L.R.B. 1986)

Coalite, Inc.

National Labor Relations Board - Board DecisionsJan 30, 1986

278 N.L.R.B. 293 (N.L.R.B. 1986)

COALITE, INC. Coalite, Inc. and United Mine Workers of America. Case 10-CA--20797 30 January 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 5 September 1985 Administrative Law Judge William N. Cates issued the attached decision. The Respondent filed exceptions, a brief in support thereof, and a motion to reopen the record. The General Counsel filed an opposition to the motion.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions2 and brief and has decided to affirm the judge's rulings, findings, 3 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Coalite, Inc., Brilliant, Alabama, its officers, agents, succes- sors, ' and assigns, shall take the action set forth in the Order, except that the attached notice is substi- tuted for that of the administrative law judge. I After the-period for filing exceptions to the judge's decision had ex- pired, the Respondent filed the motion to reopen the record The Re- spondent seeks to introduce evidence that since the close of the hearing it has sent letters to the Union requesting that contract negotiations be re- sumed, offering to provide information to the Union, and making various contract proposals In addition, the Respondent represents to the Board that, after an initial response, the Union has not responded to its offer to meet and bargain or to its proposed contract. The General Counsel has filed an opposition to the motion. After carefully reviewing the Respond- ent's submissions, we conclude that this evidence, even if establishing the Respondent's assertions, would not require reversing the judge's findings of 8(a)(5) and (1) violations which we site affirming. The Respondent's motion is denied 2 In its exceptions to the Board, the Respondent argues for the first time, citing United Technologies Corp., 268 NLRB 557 (1984), that the issue regarding its alleged unlawful unilateral changes in employees' in- surance benefits should be deferred to the parties' gnevance-arbitration procedure Since a defense based on deferral to arbitration was never suggested or litigated at the hearing in this case, we reject the Respond- ent's deferral argument as being untimely raised See MacDonald Engi- neering Co, 202 NLRB 748 (1973). 3 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enf 1. 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 293 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid'or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT unilaterally and without bargain- ing to impasse with the United Mine Workers of America discontinue the, insurance coverage pro- vided for in the Benefit Plan of the 1981 BCWA agreement for our employees on layoff status. WE WILL NOT refuse to timely furnish and make available to the Union, for its use in collective bar- gaining, specifically requested relevant and neces- sary information. ' WE WILL NOT refuse to furnish and make avail- able to the Union, for its use in collective bargain- ing, all books and records used by us to support our claim that we needed wage and benefit conces- sions from the Union in order to operate profitably. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights, guaranteed you by Section 7 of the Act. WE WILL furnish to, the Union, for its use in col- lective bargaining, all books and records used by us to support our claim that we needed wage and ben- efit concessions from the Union in order to operate properly. WE WILL make whole any qualified employee on layoff status who incurred any expense that would have been covered by the insurance provided for in the Benefit Plan of the 1981 BCWA agreement, absent our unlawful unilateral discontinuance of that provided coverage. COALITE, INC. Steven K. Leibel. Esq., for the General Counsel. Harry L. Hopkins, Esq. (Lange, Simpson, Robinson & Somerville), of Birmingham, Alabama, for the Re- spondent. 278 NLRB No. 40 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John L. Quinn, Esq., of Birmingham, Alabama, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. The hearing in this case held 3 June is based on an unfiar labor practice charge filed by United Mine Workers of America (Union) on 8 March 1985 and a complaint issued on 25 April 1985 on behalf of the General Counsel of the National Labor Relations Board (Board) by the Regional Director for Region 10 alleging that Coalite, Inc. (Respondent) has engaged in unfair -labor practices within the meaning of Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. Respondent in an answer dated 6 May 1985 admitted various allegations of the complaint but denied the commission of any of the al- leged unfair labor practices. On the entire record made in this proceeding, includ- ing my observation of each witness who testified, and after due consideration of briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is, and has been at all material times, an Alabama corporation with an office and place of business located at Brilliant, Alabama, where it is engaged in strip mine ' operations. During the ' 12 months preceding issu- ance of the complaint, a representative period, Respond- ent, in the course and conduct of its business operations, sold and shipped from it Brilliant, Alabama facility coal valued in excess of $50,000 directly to a nonretail cus- tomer, Ideal Basic Industries, a Denver corporation, with an office and place of business located in Theordore, Alabama, which customers in turn sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of Alabama. Based on the above stipulated facts,' the parties admit and I find that Respondent is, and has been at all material times, an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the' Act. H. LABOR ORGANIZATION The parties admit and I find the Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The essential issues presented for decision are general- ly summarized for purpose of discussion as follows: 1. Whether the complaint should be dismissed pursuant to Section 102.9 of the Board's Rules and Regulations. 2. Whether Respondent unlawfully refused to provide the Union certain information for its use in collective bargaining. 3. Whether Respondent unilaterally and unlawfully discontinued insurance coverage for its employees on layoff status. 4. Whether Respondent unlawfully refused to open for the Union its financial books and records. I find for the General Counsel on each of the above issues. B. Background The following brief background is not disputed. Re- spondent and the Union have had, since 1976, a bargain- ing relationship.' Respondent and the Union have been parties to successive collective -bargaining agreements for the production and maintenance employees since 1976. The most recent agreement was effective from 1 October 1981 until 30 September 1984.2 The Union gave an 8(d) notice to Respondent in a letter dated 15 July and signed by International Union President Richard L. Trumka. In its 15 July letter to Respondent, the Union requested that it be provided certain specific information which it stated was necessary in order for it to adequately prepare for collective bargaining.s On 25 September the Union sent a mailgram to Respondent requesting immediate bargain- ing toward a new collective-bargaining agreement. Respondent, in a letter dated 28 August and signed by Manager of Accounting James R. Johnson, notified all its employees that Respondent would no longer provide in- surance coverage for union employees after 30 Septem- ber.4 After the most recent collective-bargaining agreement expired on 30 September the parties held two formal ne- gotiating sessions. The first negotiating session was held 1 October and the ' second on 24 October. Both negotiat- ing sessions 'were held at a motel in Birmingham, Ala- bama, and each session lasted approximately 2 hours. Re- spondent's attorney, Harry L. Hopkins, and Respond- ent's vice president, Erskine Massey, represented Re- spondent at the first bargaining session and Attorney John L. Quinn, Union District Representative Gene Hyche, and Local Union President Jerry Fewell repre- sented the Union. The Union utilized those same repre- sentatives at the second bargaining session but added one additional representative, namely, International Execu- tive Board Member Frank Clements. Respondent was represented at the second negotiating session by Hopkins and Manager of Accounting Johnson. It appears that Hopkins and Hyche acted as chief spokespersons for the parties during negotiations. All production and maintenance employeees had been laid off prior to the commencement of negotiations on 1 October. ' On 21 May 1976 the Board certified the Union as the exclusive col- lective-bargaining representative of Respondent's production and mainte- nance employees 2 All dates are 1984 unless otherwise indicated 3 The Union's eight page itemized information request is referenced in pars. 11, 16, 18, and 19 of the complaint and the entire eight-page request is included as an attachment to the complaint 4 As will be discussed elsewhere in this decision, Respondent extended the termination date for insurance coverage from 30 September until 30 October. COALITE, INC 295 C. Certain Relevant Contract Provisions Inasmuch as certain provisions of the most recent col- lective-bargaining agreement between the parties were referred to in negotiations and inasmuch as the parties rely on certain of those provisions to support their posi- tions, I shall at this poiht set forth some of the provisions of the most recent 1981 National Bituminous Coal Wage Agreement (BCWA):5 Article XX-HEALTH AND RETIREMENT BENEFITS Section (a) General Purpose This Article makes provision for . . . health . . . benefits for Employees covered by this Agreement, and for former Employees who were covered under the United Mine Workers of America Welfare and Retirement Fund of 1950 ("1950 Fund"), and for the spouses and dependents of such Employees. The benefits to be provided are as set forth under sepa- rate plans and trusts referred to in Sections (b) and (c) of this Article. Section (c) 1974 Plans and Trusts (3)(i) Each signatory Employer shall establish and maintain an Employee benefit plan to provide, im- plemented through an insurance carrier(s), health and other non-pension benefits for its Employees covered by this Agreement as well as pensioners, under the 1974 Pension Plan and Trust, whose last signatory classified employment was with such Em- ployer. The benefits provided by the Employer to its eligible Participants pursuant to such plans shall be guaranteed during the term of this agreement by that Employer at levels set forth in such plans. .. . The plans established pursuant to this subsection are incorported by reference and made a part of this Agreement, and the terms and conditions under which the health and other non-pension benefits will be provided under ,such plans are as to be set forth in such plans. Section (e) Responsibilities and Duties of Trustees (6) Disputes arising under this Agreement with regard to the Employer benefit plan established in (c)(3) above shall be resolved by the Trustees. The Trustees shall develop procedures for the resolution of such disputes. Decisions of the Trustees shall be final and binding on the parties. Such disputes shall not be processed under the provisions of Article XXIII (Settlement of Disputes). Explanatory Note on Employer Provided Health Plans Active miners and their surviving spouses and de- pendents, and pensioners, their dependents, and sur- viving spouses receiving pensions from the 1974 Pension Plan, will receive health care provided by their Employer through insurance carriers. A health service card identifying the" Participant's eligibility for benefits under the health plan shall be provided by the Employer The Trustees of the UMWA Health and Retirement Funds shall resolve any disputes to assure consistent application of the health plan provisions which are identical to the benefit provisions of the 1950 Bene- fit Plan and Trust. Article XXIX-RATIFICATION AND TERMINATION OF THIS AGREEMENT In the event of an economic strike at the expiration of this Agreement, Employers will advance the pre- miums for the Employees' health and life insurance coverage for the first 30 ' days `of such strike. Such advance premiums shall be repaid to the Employers by the Employees' through check-off deduction upon their return to 'work. Should such a strike continue beyond 30 days, the Union or the Employ- ees may elect to continue coverage by paying the premiums themselves. This paragraph shall survive the termination of the remainder of this Agreement and shall continue in effect until the purpose, for which it was established is satisfied. [G.C. Exh. 6, National Bituminous Coal Wage Agreement of 1981.] A sample of a benefit plan established pursuant to the provisions of article XX of the 1981 BCWA agreement was received in evidence (G.C. Exh. 7). Certain relevant provisions of the plant have been carefully considered and noted. For example, article II of the benefit plan is captioned "Eligibility" and sets forth a listing of those el- igible to receive benefits as "Active Employees" under the plan. In addition to covering employees "actively at work," the plan also covers, among others, those em- ployees on layoff status (article II, (a), (2); G,C. Exh. 7). The benefit plan also sets forth the eligibility for cover- age of "Pensioners and Surviving Spouse and Dependant of Deceased Employees or Pensioners." Article III, item (d) provides that coverage for any employee in layoff status will continue for up to a period of 1 year after the employee is laid off, depending on the number of hours the employee has worked for the employer during the previous 24 months. The, benefit plan also provides, for conversion privileges within a specified period of time if coverage is terminated. 5 To fully evaluate the relevant provisions of the 1981 BCWA agree- ment, reference must be made to certain earlier BCWA agreements be- tween the parties. Although I have fully considered any agreement, I shall not attempt to set forth in this decision any relevant provisions of any earlier BCWA agreements between the parties Additionally, I note I have not attempted to set forth every possible provision of the most recent BCWA agreement that might shed light on the instant case D. The Negotiations Union District Representative Hyche testified he did not have any conversations with anyone from manage- ment at Respondent concerning Respondent's decision to terminate insurance benefits for the employees prior to the employees 'receiving Respondent's letter of 28 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August notifying them that there insurance benefits were going to be terminated . Hyche stated he first learned sometime between 10 and 14 September that Respondent was going to terminate insurance coverage for employ- ees in layoff status. Hyche testified he then called Re- spondent 's vice president , Massey , and informed him he did not have the right to terminate the employees ' insur- ance coverage . Hyche testified , he also spoke with Man- ager of Accounting Johnson and asked him who had made the decision to terminate the insurance benefits. Hyche testified Johnson told him that he and- others at upper levels of management made the decision. Hyche asked Johnson what part or provision of the collective- bargaining agreement was Respondent relying on, and Johnson told him article XX of the 1981 BCWA agreee- ment. Massey testified he discussed the insurance situation with Hyche on the telephone two or three times prior to the start of negotiations and prior to Respondent sending its 28 August letter to its employees notifying them of the termination of their insurance coverage effective 30 September. Massey also testified he told Hyche that Re- spondent has conducted a poll of other employers to see what they were doing regarding insurance coverage for their employees. Massey was uncertain when he spoke with Hyche but stated he "would presume" it was some- time prior to September ; however , he was not exactly sure. Johnson testified 'he spoke with Hyche and an individ- ual associated with the Union by the name of Bill Qui- senberry about insurance coverage for employees in layoff status as well as coverage for retired employees prior to the termination (30 September) of the 1981 BCWA agreement . Johnson testified Hyche and Quisen- berry told him it was their position that Respondent needed to pay for the insurance coverage for the em- ployees in layoff status as well as the retired employees. Johnson testified he asked for something in writing to that effect but never received anything . Johnson testified they also discussed the possibility of obtaining a resolu- tion of the insurance dispute pursuant to provisions of the 1981 BCWA agreement. I credit Hyche 's version of what transpired prior to the first negotiating session . In so doing, I specifically credit Hyche's testimony that no one from Respondent's management ever discussed the insurance situation with him or the Union prior to Respondent 's 28 August letter in which it notified the employees that insurance cover- age for the union employees was going to be terminated. Massey was far too uncertain about the dates he spoke with Hyche about the insurance situation for any reli- ance to be placed on his testimony . I note that Massey could only presume he spoke with Hyche prior to Sep- tember . Johnson's testimony does not appear to directly contradict Hyche and, additionally , Johnson readily ad- mitted that the events of the instant case took place so long ago that he could not remember a lot of the details. 1. The I October negotiating session In setting forth what took place at the two formal ne- gotiating sessions , I have credited and relied on the testi- mony of Attorney Quinn. Quinn was the most knowl- where in this decision edgeable of those who were present at and testified about the two negotiating sessions . Quinn testified in a forthright and candid manner and his testimony was plausible and reasonable . The fact that Quinn did not take lightly his responsibility in testifying was, in my opinion , demonstrated by the fact that at one point in his testimony , based on a certain question that was asked of him, he was concerned that he might be about to testify regarding a conversation he believed had been intended to be an "off the record" type discussion between law- yers. Therefore, he wanted to clear up that concern before he testified about that particular conversation. After Quinn was released by the other party from any real or perceived restrictions that might have been placed on that conversation , he testified about it and his testimony about that particular conversation was uncon- tradicted . Additionally, Quinn's testimony was generally, although not totally, supported by that of Union District Representative Hyche who also impressed me as a wit- ness who was making every reasonable effort to accu- rately state the pertinent facts about which he had knowledge . On the other hand , the two witnesses (Massey and Johnson) called by Respondent regarding the negotiating sessions were unable to testify with the degree of certainty that Quinn did. For example , Massey, rather than testifying with certainty, presumed that something took place during a certain time frame. John- son had to be cautioned during his testimony to state what was actually said in the negotiating session he at- tended rather than candidly acknowledge that, "just to be honest with you, it has been a long time and these de- tails of conversations are hard to bring back." For all the above reasons, I credit Quinn's account of the 1 October negotiating session. Quinn stated the first negotiating session opened with the usual greetings . According to Quinn, Hyche indicat- ed he would serve as chief spokesperson for the Union and Attorney Hopkins responded that he would be the spokesperson for Respondent.6 Hopkins announced to the group that the mine was closed and that a day or two before 1 October, the last employee had been laid off. Quinn testified Hopkins said that in order for the mine to continue to operate Respondent would have to have a concession contract from the Union that it could not operate with a standard contract. Hopkins stated that if Respondent could get a concessionary contract it per- haps could open the mines back up . Quinn testified the Union informed Hopkins they would certainly discuss such a contract with Respondent. According to Quinn, Hopkins had a copy of the 1984 BCWA agreement and stated he knew the Union would not settle for anything other than that agreement . Quinn testified the Union re- sponded that was not so, that it would bargain in good faith, and if Respondent needed concessions , the Union would talk about concessions . Quinn specifically recalled Hyche saying the Union would consider concessions if that was what it took. Hopkins stated Respondent was actively seeking a buyer for the mines but it had no par- 6 Participants at the first negotiating session have been identified else- COALITE, INC. 297 ticular buyer in mind. According to, Quinn, Massey said Respondent was planning to place the mines with a broker with a view toward selling them. Quinn testified Hopkins said that a successor agreement might make it more difficult for Respondent to sell its operations. Ac- cording to Quinn, Hopkins was concerned that any buyer for the mines would be discouraged because of the potential of having to either assume a collective-bargain- ing agreement with the Union or at least assume a bar- gaming relationship with the Union.' Quinn testified Hopkins stated an amount Respondent was losing on a majority basis and mentioned the fact that the Respond- ent was having to mine coal where there was a heavy overburdens thus causing the mining of the coal in that area to be expensive. Quinn testified Hyche asked Attorney Hopkins if Re- spondent was prepared to respond to the Union's earlier written request for information. Hopkins wanted to know if the Union's information request was the same type that had been submitted to other companies. Hyche told Hopkins it was essentially the same request that had been submitted to other employers. Hopkins at that point asked Massey if Respondent had gotten the requested in- formation together and if it had provided the information to the Union. Massey told Hopkins Respondent had not gotten all the information together and it had not given any of the information to the Union. Hopkins told Massey he should try to get the information and then told the Union 'Respondent would provide the informa- tion it had requested, Quinn testified he also made a comment to Hopkins about production of the requested information.9 Quinn testified the parties next discussed insurance . Hyche asked about insurance coverage for three categories of individuals, namely, employees in layoff status, surviving spouses, and pensioners.' 0 Hop- kins responded that Respondent had decided to extend insurance coverage for union employees for an additional 30 days (until 30 October) and remarked that it would give the negotiators at least 30 additional days to discuss the insurance issue and try to resolve it." Hopkins made Z Hyche testified that the 1984 BCWA agreement contained a succes- sor,clause which made the seller liable for securing any buyer 's signatiue on the labor agreement or the seller was liable to the Union if it faded to do so 8 Overburden is the dirt or other material that must first be removed before coal can be mined 9 Vice President Massey could not recall anything being said about the Union ' s prior information request However, Massey testified Respondent had been working toward compiling the requested information but did not have it fully assembled at the time of the first negotiating session I am fully persuaded the requested information was discussed at the first negotiating session . Both Quinn and Hyche contend it was, and it is very probable that since the Union prepared an eight-page detailed request for specific information that it asked about that information at the first nego- tiating session Also, for Massey to recall that it was not fully assembled at the time of the first negotiating session suggests to me , and I find, that the subject matter was raised at the first negotiating session , notwith- standing Massey 's failure to recall it being discussed. 10 Quinn testified the Union had been made aware by its members that Respondent had announced that it was going to terminate insurance cov- erage for union employees on 30 September i i Quinn stated there had been no discussions prior to 28 August about termination of the insurance benefits a'distinetion between Respondent's obligations to its em- ployees in layoff status and its obligations to surviving spouses and pensioners . Quinn stated Hopkins contended that whatever the surviving spouses and pensioners were entitled to was "a creature of contract " and that Re- spondent's obligations to those categories of beneficiaries ceased at the expiration of the contract. Quinn stated Hopkins said employees in layoff status might well have "vested benefit [s]" and , as such , were in a different cate- gory than surviving spouses and pensioners.' 2 Hopkins told Quinn he knew about a resolution of dispute (gener- ally referred to by the parties as a ROD) that he felt might resolve the insurance situation . Hopkins added, however, that the resolution of dispute that he referred to dealt with a situation where employees were in layoff status following contract expiration during an economic strike. Hyche told Hopkins he was familiar with that same resolution of dispute but stated he did not believe it would-be applicable because the employees were not on strike at Respondent. Quinn testified the Union informed Hopkins it was not on strike at Respondent and the em- ployees were prepared to continue to work under the terms of the 1981 BCWA agreement. Hopkins stated he was not really sure they were not on strike because he had never known the Union to not be on strike at the expiration of a contract. t 3 Quinn testified that in essence the first negotiating session ended with he and Attorney Hopkins agreeing to get back with each other for the purpose of scheduling another negotiating session and that thereafter 14 October was agreed to as a date for another negotiating session.24 I note that Vice President Massey, the only witness called by Respondent to testify about the first negotiat- ing session , acknowledged the negotiations discussed matters pertaining to insurance, the financial status of Respondent , selling the 'business , placing the business with a broker for the purpose of securing a purchaser, and the fact that a successor clause made it more diffi- cult for Respondent to sell its business. Attorney Quinn testified he received a letter from At- torney Hopkins dated 10 October. Quinn stated he was surprised when he received Hopkins' letter because the parties had already tentatively agreed to have another negotiating session on 14 October.15 Quinn testified the 12 Quinn testified the Union never took a position that Respondent could not eliminate insurance benefits for surviving spouses and pension- ers 13 Hyche acknowledged on cross-examination that in past years, the battle cry of the Union had been "no 'contract , no work." He stated, however, that since 1983 the Union had utilized a selective strike policy and pursuant to that policy had not engaged in a strike against Respond- ent. 14 Hyche corroborated Quinn's testimony regarding the subjects of in- surance, information , and the scheduling of further negotiating sessions Hyche's recollection, however, was that insurance coverage was the first subject mater discussed at the 1 October meeting. I note Hyche was not certain that the successor issue came up at the first negotiating session. Hyche stated that at least twice ' in both negotiating sessions the Union refuted Attorney Hopkins' contention that the Union was on strike against Respondent. Hyche testified the Union's selective strike policy was specifically explained to the Respondent at the first negotiating ses- sion is Hopkins' letter arrived on the Friday before the parties were sched- uled to meet on Monday, 14 October 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substance of Hopkins ' letter was that the parties were at impasse. He did not agree with Hopkins ' assessment of the negotiatings and he drafted a reply letter to Hopkins in which he expressed his disagreement. 116 He spoke with Attorney Hopkins on either 11 or 12 October and told him of his disagreement with his written assessment of the status of negotiations. 17 He specifically told Hopkins he did not believe the parties were at impasse and he fur- ther told Hopkins the Union had not received the infor- mation it had requested from Respondent. Quinn testified he told Hopkins the Union was hardly in a position to negotiate in earnest without the information it had re- quested. The following is a portion of Attorney Hopkins' 10 October letter to Attorney Quinn. During negotiations we discussed insurance bene- fits under the 1981 BCOA Agreement, specifically as they relate to laid off miners, pensioners , and sur- viving spouses. Because the contract expired on September 30, 1984 , and we were unable to meet prior to October 1, 1984, I advised Coalite to pay the October premium . We discussed this during ne- gotiations and it was agreed that you and I should communicate on this subject. As both parties candidly discussed during our session , Coalite is not now in a posture to sign the 1984 renewal agreement and the UMWA is likewise unwilling to grant concessions . We accept this as a fact and do not seek thereby to claim a refusal of the UMWA to engage in good faith bargaining, but believe further negotiations at this point would be futile . Should the market change, those negotiations would be appropriate should we resume mining. There may be a problem regarding canceling the laid off employees ' insurance benefits in the absence of a bargaining impasse. I believe we are at an im- passe since Coalite is unwilling to agree to the re- newal agreement and the UMWA, we believe, is unwilling to agree to a concession contract. An im- proved market would cause this position to change, and we are probably better off to hold the negotia- tions in abeyance until that occurs. [G.C. Exh. 9.] A portion of Attorney Quinn's 16 October reply to Attorney Hopkins is as follows: I am in receipt of your October 10, 1984, letter which may in part have been prompted by my tele- phone message of that same date . I wish to note my disagreement with many of the assertions contained in your letter . . . . I do not agree that further ne- gotiations at this point would be futile. Further, I do not believe the insurance benefits issue has been -bargained to impasse or that any other issue has 16 Quinn was somewhat uncertain when testifying whether he had ac- tually mailed his reply letter to Hopkins because he could not locate his file copy of the letter Respondent , however, produced the original of Quinn's letter and it was received in evidence. 17 Quinn testified he essentially covered with Hopkins the same things that were contained in his reply letter to Hopkins. been bargained to impasse . I think that further ne- gotiations are warranted and that such further nego- tiations would be productive. Accordingly, I would tentatively propose that further negotiations com- mence the afternoon of Friday, October 19, 1984. [G.C. Exh. 10.] 2. The 24 October negotiating session Attorney Quinn's credited account of the 24 October negotiating session follows.18 Quinn testified that recla- mation work was the first subject matter discussed at this negotiating session. Quinn stated the Union wanted to know if Respondent planned to do the required reclama- tion work. Attorney Hopkins said Respondent would do the reclamation work , that it took its reclamation obliga- tions seriously. Hopkins added, however, that it might not be done right away since Respondent was seeking additional time before it had to fulfill its obligations with respect to any required reclamation work. Quinn testified it was his understanding that Respondent would need three to four employees to do the reclamation work and that the work would be done pursuant to the terms and conditions of the 1981 BCWA agreement. Quinn testified the parties next discussed the cost of providing insurance benefits for the three categories of individuals in issue, namely, those in lay offstatus, pensioners, and surviving spouses. There was a discussion regarding the total cost of insurance benefits as well as a discussion about the cost for insurance benefits for the individual miners who were on layoff status. Quinn testified the parties dis- cussed a resolution of dispute that dealt with insurance benefits that Attorney Hopkins contended might estab- lish that Respondent had no obligation to pay insurance benefits for miners on layoff status.19 Quinn asked Hop- kins to get him a copy of the resolution of dispute that he was referring to, however, Hyche added he did not think that it would apply to the situation at hand because the Union was not on strike. Attorney Hopkins promised to provide the Union with a copy of the resolution of dispute he referred to. Respondent stated the insurance benefits were scheduled to be terminated on 1 Novem- ber. Quinn testified the Union told Respondent it was considering filing a resolution of dispute to resolve the conflict regarding insurance benefits and it also wanted to ascertain if group rates could be preserved in any manner for the employees. Quinn testified Respondent agreed to attempt to find out if group rates could be pre- served for the employees, the Union again asked Re- spondent for the information it had previously requested and that it was his understanding that Respondent was going to furnish the requested information and that the parties would be able to again meet in a negotiating ses- sion before 1 November, the date Respondent had set for terminating insurance benefits. Quinn testified the Union never received the information it had asked for, nor was 18 Those present at the 24 October negotiating session have been iden- tified elsewhere in this decision 19 Quinn testified Respondent made a distinction in negotiations be- tween its obligations to employees on layoff status and its obligations to pensioners and surviving spouses COALITE, =1NC. it ever notified of any future meetings.20 Quinn testified Respondent made it clear at' the second negotiating ses- sion that for it to operate pursuant to a contract it needed concessions , that it could not live with a "stand- ard contract " Quinn testified the Union stated that if Re- spondent was saying it could not afford to pay, the Union wanted to see its books, and if Respondent could document its financial needs, the Union would attempt to tailor some proposals to respond to Respondent 's finan- cial difficulties. Quinn testified Hopkins responded: "If it cost more money to mine coal than you can sell it for, you can 't make any., money. It's as simple as that; they really didn't need to turn the books over to us to estab- lish that fact."2 i Hopkins told the Union that Respond- ent was not pleading poverty and said it might be more fruitful to suspend negotiations until Respondent located a purchaser. Quinn testified Hopkins waved the 1984 BCWA agree- ment at the Union's negotiators and stated , "I'll make a proposal f'or you; I'll sign the 1984 BCOA Agreement without the irrelevant and illegal provisions in it ." Quinn stated Hyche responded that the Union had not placed the 1984 BCWA agreement on the table but if Respond- ent wanted to in some form the Union would consider it. Quinn testified a number of central issues were identified at this bargaining session. Three of the central issues were a successorship agreement , insurance benefits, and reclamation work. 22 Quinn testified that the second ne- gotiating session ended with a discussion of the possibili- ty of submitting the insurance issue to a resolution of dis- pute arrangement and with a discussion on the possibility of trying to preserve the group policy rates for the em- ployees in such ' a manner where the employees could pay premiums to Respondent and Respondent would in turn pay those premiums to the insurance carrier. Ac- cording to Quinn, Respondent was going to look into that latter possibility and get back with the Union on it. The meeting ended with the understanding that Re- spondent would provide the Union with the information it had earlier requested and that Respondent would pro- vide the Union, Quinn in particular, with a copy of the resolution of dispute that Attorney Hopkins had referred 20 Respondent 's witness Johnson testified the matter of the requested information did come up at the second negotiating session and that Attor- ney Hopkins asked him if the information was ready Johnson stated he told Hopkins it was Johnson testified that someone from the Union's side asked if they could see the information Johnson testified the Union was told they could see th e information Johnson testified the information was not physically at the bargaining table Johnson ' said he expected the Union to make an, appointment and come to Respondent 's offices to see or obtain the requested information . Quinn denied it was ever mentioned in either negotiating session that the information was available for the Union at Respondent 's offices As indicated elsewhere in this decision, I credit Quinn's testimony and in so doing 11 specifically find in either bar- gaining session Respondent never indicated to the Union or, to Quinn in particular , that the requested information was readily available at Re- spondent 's offices I am fully persuaded that if the information had been readily available and the Union had been so notified , it would have gone to Respondent 's offices and have obtained the requested information 21 Quinn testified the Union never disputed that Respondent was having substantial financial difficulties , that the Union simply wanted to know how great and to what extent those difficulties were, 22 Respondents witness , Johnson, acknowledged that the subjects of in- surance and reclamation work were discussed at the second negotiating session 299 to and then the Union would get back with Respondent on the possibility of filing a resolution of dispute on the insurance situation . Quinn stated that near the end of the second negotiating session the Union informed Respond- ent that it wanted to look at Respondent 's books so it could come to the next negotiating session with some specific written proposals which it hoped would meet Respondent's concerns about its financial difficulties, Quinn testified that once the Union received the various information it had requested , the attorneys were going to get back together and make arrangements for a third bar- gaining session. Quinn testified the Union never received the informa- tion it requested and it never filed a resolution of dispute regarding insurance benefits because before the Union could intelligently consider the matter Respondent acted in that within 6 or 7 days after the second negotiating session it terminated all insurance benefits for its employ- ees-23 3. Events after the second negotiating session Quinn testified , without contradiction , that he had a telephone conversation with Attorney Hopkins about 5 November regarding negotiations between the parties herein . 24 Quinn testified his conversation with Hopkins was for the purpose of seeing if "something " could be worked out between the parties. Quinn testified he told Hopkins he did not have "specific" authorization from the Union but he wanted to "float" some ideas to see if it would perhaps bring about a resolution of the differences between the parties . Quinn testified he made four propos- als to Hopkins for consideration , namely, whether (1) Respondent would pay for insurance benefits for the em- ployees in layoff status, (2) Respondent would agree to submit the issue of insurance benefits for the pensioners and surviving spouses to the resolution of disputes mech- anism, (3 ) the Respondent would agree that any reclama- tion work would be performed pursuant to the terms of the 1981 BCWA agreement, and (4 ) there could be some sort of successorship agreement worked out between the parties. Quinn testified Hopkins agreed to present his proposals to Respondent and see if those proposals would bring about a resolution of the parties' differences. The matter was not pursued thereafter until the Union filed an unfair labor practice charge with the Board in February 1985. Vice President Massey testified he telephoned Union District Representative Hyche on 6 November and pro- posed a possible solution to the "dilemma" between the parties. Massey testified he proposed that Respondent would continue to pay insurance benefits for the employ- ees in layoff status until all the requirements of the 1981 BCWA agreement had been met , but Respondent would 23 Quinn testified the Union understood it would get the information it had requested and that the parties would be able to meet again before I November He stated neither of those things happened Respondent's wit- ness Johnson testified that the second session `just sort of tailed off' with the Union going to look at Respondent 's answers to the Union's informa- tion requests and submit proposals to Respondent at a later date 24 This is the conversation , alluded to elsewhere in this decision, that Quinn perceived had been an "off the record " discussion 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not pay insurance benefits for the pensioners or surviving spouses. Massey stated he proposed that Respondent would pay the 1981 BCWA agreement wage rates for any reclamation work and Respondent would pay the in- surance benefits for any employees performing that work under the terms of the 1981 BCWA agreement provided his proposals were a solution to their problems. Massey testified he told Hyche he wanted a final resolution of the matter and that such a final solution would be for the Union to walk away. Massey said Hyche rejected his offer. Massey stated no mention was made in their con- versation about any information that the Union had re- quested. Hyche testified he did not have a telephone conversa- tion with Massey on 6 November and further stated he had never had a conversation at any time with Massey in which Massey proposed to pay insurance benefits for the employees in layoff status but not for the pensioners and surviving spouses. My observations related to credibility have been set forth elsewhere in this decision and I shall only add at this point that after observing Hyche testify as a rebuttal witness on this particular point, I am persuaded he did so truthfully and, as such, I credit his testimony that no conversation took place between him and Massey, as de- scribed by Massey. E. Analysis, Discussion, and Conclusions 1. Whether the complaint should be dismissed pursuant to Section 102.9 of the Board's Rules and Regulations Respondent, in its answer to the complaint, at trial, and in its posttrial brief asserts that the instant complaint should be dismissed pursuant to Section 102.9 of the Board's Rules and Regulations. The applicable portion of Section 102.9 of the Board's Rules, and Regulations reads as follows: Upon withdrawal of any charge, any complaint based thereon shall be dismissed by the regional di- rector issuing the complaint, the administrative law judge designated to conduct the hearing, or the Board. Respondent correctly notes that the charge in Case 10-CA-20797 that gives rise to the instant complaint was filed on 8 March 1985 . Respondent correctly asserts that an identical charge containing identical allegations was filed on 5 February 1985 in Case 10-CA-20734 by the same attorney on behalf of the same charging party as in the instant case (G .C. Exh. 1(e)). Respondent correctly asserts that on 13 March 1985 the Acting Regional Di- rector for Region 10 of the Board approved , without any stated reason , a withdrawal of the charge in Case 10- CA-20734 (G.C. Exh. 1(e), attachment B). Respondent asserts that inasmuch as the approval of the withdrawal of the earlier identical charge in Case 10-CA-20734 oc- curred after the instant charge in Case 10-CA-20797 was filed, the, complaint must be dismissed pursuant to Sec- tion 102 .9 of the Board 's Rules and Regulations. Re- spondent's counsel at trial alluded to what he perceived to be an abuse of the Agency's discretion, not contem- plated by the Board's Rules and Regulations, in that he perceives the Agency has from time to time sought with- drawal of charges at times when the Agency was allow- ing charging parties to accompany their withdrawal of charge requests with identical new later dated charges. For a number of reasons I reject the Respondent's asser- tion that the complaint must be dismissed. There is no showing on this record that the Agency (via its Regional Office) sought the withdrawal of the earlier charge in Case 10-CA-20734, which was identical to the later filed charge in Case 10-CA-20797. Respondent's argument that Section 102.9 of the Board's Rules and Regulations is controlling is specious because the charge in Case 10- CA-20797, which forms the basis for the complaint before me has never been withdrawn. Therefore, there is no basis pursuant to Section 102.9 of the Board's Rules and Regulations to dismiss the instant complaint. Fur- thermore, Respondent did not establish that it had been prejudiced by any actions of the Agency. Accordingly, I find Respondent's contention that the instant case should be dismissed on procedural grounds to be totally without merit. 2. Whether Respondent unlawfully refused to provide the Union certain information for its use in collective bargaining The applicable legal principles governing this issue are clear. It is well established that an employer must pro- vide a union with requested information "if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties and responsi- bilities as the employees' exclusive bargaining representa- tive." Associated General Contractors of California, 242 NLRB 891, 893 (1979), enfd. 633 F.2d 766 (9th Cir. 1980); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Bohemia Inc., 272 NLRB 1128 (1984). See also Clinch- field Coal Co., 275 NLRB 1384 (1985). A broad discov- ery-type standard is applicable to requests for informa- tion relevant to a union's function of negotiating a col- lective-bargaining agreement. See W-L Molding Co., 272 NLRB 1239 at 1240 (1984), and the cases cited therein. Under the Board's liberal discovery-type standard re- garding the production of requested information, the in- formation need only be potentially relevant to trigger a requirement that it be produced. The Board noted in Bo- hemia Inc., supra, that "[i]nformation about terms and conditions of employment of employees actually repre- sented by a union is presumptively relevant and neces- sary and is required to be produced. Ohio Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976)." I shall consider the facts of the instant case and apply the legal principles highlighted above. The Union's initial request for information was directed to Respondent in a letter dated 15 July. The eight-page written request clearly identified the information the Union sought in order for it to prepare for negotiations with the Re- spondent. In its eight-page request the union sought in- formation concerning such items as- the number of em- ployees employed in the bargaining unit on specific dates by grade, classification, age, sex, and years of service COALITE, INC. 301 with Respondent; the name and location of all _lninesand other facilities covered by the agreement; the number of hours of straight time and overtime as well as the number of holidays and weekends worked by unit em- ployees; the gross earnings of unit employees; the identi- fication by job title of all supervisory employees; the identity of any mines or facilities covered by the agree- ment that had been sold or transferred to other owner- ship; the identity of any mines for which there were cur- rent plans to sell; the identity of any new mines opened during the term of the agreement ; the identity of any work subcontracted out during the term of the agree- ment; the identity of all employees performing unit work at any nonunion operations; the remaining life of each of the mines currently operated; a record of all coal pro- duction for specified times by type of mining; copies of all health and life insurance benefit summaries for unit employees; the average monthly premiums for the vari- ous categories of insurance coverage for unit employees; and safety information.25 Not only did the Union make a written request for information such as highlighted above, but it orally renewed that request at the 1 and 24 October negotiating sessions. The Union informed Re- spondent at the second negotiating session that it would prepare certain written contract proposals as soon as it had the requested information . Respondent promised to timely furnish the requested information but it never did so. There is no credible, evidence that the Union ever abandoned its pursuit of the information in question, in fact, quite the opposite is true in that the Union contin- ued in the negotiating sessions to request that it be pro- vided the information. The information sought by the Union is, as a matter of law, presumptively relevant and necessary and Respondent is obligated to provide it to the Union. Not only is the requested information pre- sumptively relevant, but under the broad discovery-type standard for relevancy utilized by the Board, it is in fact relevant. Accordingly, I find Respondent was obligated in a tiruely fashion to provide the requested information. I find by its failure to timely provide the requested rele- vant and necessary information Respondent violated Sec- tion 8(a)(5) and (1) of the Act. I reject as having no basis in fact Respondent's conten- tion the Union was told as early as the second negotiat- ing session that the information it requested was avail- able at Respondent's offices. Further, it is no defense to a finding of a violation of the Act in the instant case for Respondent to have on 19 April 1985 furnished the Union with the requested information. See Dayton Light Co., 267 NLRB 202 (1983). 3. Whether Respondent unilaterally and unlawfully discontinued insurance coverage for employees on layoff status There are several related concerns or issues that will be addressed in deciding this overall issue. The other 25 The detailed eight-page written information request is set forth in full as an attachment to the complaint herein (G.C Exh 1(c)). There was no contention that the request was not specific about the information sought, although the Respondent appears to contend that certain portions of the request did not apply to its operations concerns or issues are:- whether insurance benefits are a mandatory subject of bargaining particularly when the insurance coverage includes pensioners and surviving spouses in addition to employees on layoff status; wheth- er there was a valid impasse in negotiations at the time Respondent admittedly ceased making insurance pay- ments for its employees ; and, whether the Union in any manner waived the right to bargain about insurance ben- efits by failing to file a resolution of disputes request. I shall briefly set forth certain legal principles, which are applicable to the above concerns and issues. An employer has an obligation to continue applying the terms and conditions of an expired collective-bar- gaining agreement unless it reaches a bargaining impasse with the union on a mandatory subject of bargaining. Stone Boat Yard, 264 NLRB 981 (1983). The Supreme Court has made it clear that an employer may not unilat- erally institute changes in matters which are mandatory subjects of bargaining . NLRB v. Katz, 369 U.S. 736 (1962), and First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). Section 8(d) of the Act defines man- datory bargaining subjects as "wages, hours, and other terms and conditions of employment ." The Board in Community Electric Service of Los Angeles, 271 NLRB 598 (1984), citing NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958), noted it has interpreted Section 8 (d) of the Act as follows: While the language is broad, parameters have been established, although not quantified. The touchstone is whether or not the proposed clause sets a term or condition of employment or regulates the relation- ship between the employer and its employees. The Board also noted in Community Electric Service, supra, that consistent with its broad interpretation of Section 8(d) it is well settled Board law that the term "wages" in that section of the Act includes "emoluments of value which accrue to the employees out of their em- ployment relationship in addition to the actual rate of pay earned." The Board has held that health, welfare, and pension fund plans which are part of an expired col- lective-bargaining agreement constitute an aspect of em- ployee wages and as such are terms and conditions of employment that survive the expiration of a collective- bargaining agreement absent a bargaining impasse or a waiver by the union to bargain on the matter. Cauthorne Trucking, 256 NLRB 721 (1981). The Board in Hamady Bros. Food Markets, 275 NLRB 1335 (1985), quoting Taft Broadcasting Co., 163 NLRB 475, 478 (1967), petition for review denied 395 F.2d 622 (D.C. Cir. 1968), set forth certain factors to be considered in determining whether an impasse exists or not. The factors the Board quoted are as follows: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of the negotiations are all relevant factors to be considered 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in deciding whether an impasse in bargaining exist- ed. Having set forth the above principles for guidance, I shall now examine the facts pertaining to this issue, and in doing so, I shall restate some of the more pertinent facts even though such facts have been detailed else- where in this decision. Certain of the facts that relate to this issue are not in dispute . The 1981 BCWA agreement expired on 30 September. That agreement provided for a benefit plan that included insurance coverage for Re- spondent's employees including those in layoff status as well as pensioners and surviving spouses. The benefit plan of the 1981 BCWA agreement stated that employees in layoff status might be entitled to 1 year's insurance coverage after the expiration of the 1981 BCWA agree- ment. The credited evidence establishes that Respondent did not discuss with the Union the contents of its 28 August letter prior to the time it sent a copy of the letter to all its employees in layoff status. Respondent's 28 August letter informed all unit employees that it would no longer provide insurance benefits to any union em- ployee after 30 September. It is undisputed that Re- spondent continued insurance coverage for the unit em- ployees until 30 October. As of 28 August, Respondent had laid off all unit employees. I shall first consider whether the insurance coverage in issue was a mandatory subject of bargaining. In doing so, I note there is no real dispute that certain provisions of a collective-bargaining agreement survive the expiration of the agreement. Therefore, the real issue is whether the insurance coverage provided for in the benefit plan of the 1981 BCWA agreement constituted a mandatory sub- ject of bargaining. Respondent contends that it must be decided whether the employee benefit plan as a whole survived the expiration of the agreement and not wheth- er a component part of that benefit plan survived the ex- piration of the agreement. Respondent urges that the em- ployee benefit plan in question is more than just an em- ployee benefit plan in that it provides coverage for pen- sioners and surviving spouses. Respondent contends that insurance coverage for pensioners and surviving spouses is a nonmandatory subject of bargaining and, as such, benefits for the pensioners and surviving spouses do' not survive the expiration of the contract. Respondent con- tends that in the instant case mandatory (insurance cov- erage for employees in layoff status) and nonmandatory subjects (coverage for pensioners and'surviving spouses) of bargaining have been inextricably melted together and that an interpretation of provisions of the expired 1981 BCWA agreement would be necessary in order to sepa- rate them. The General Counsel contends the Union did not condition insurance benefits for employees in layoff status on whether there was an agreement on the non- mandatory subject of insurance coverage for pensioners and surviving spouses. The credited evidence fully supports the General Counsel's position. The record establishes that the Union at the first negotiating session inquired about insurance coverage for three groups of individuals, namely, em- ployees in layoff status, pensioners, and surviving spouses . There is no indication that the Union specifical- ly desired to have the three groups of individuals tied to- gether so that a resolution of one of the categories of in- dividuals could not be brought about without a resolu- tion for all three of the categories of individuals covered by the employee benefit plan. During both negotiating sessions, Respondent viewed insurance benefits for the three groups of individuals as separate matters in that Respondent's attorney stated during the negotiations that Respondent viewed its obligations to the three groups differently in that it viewed benefits for the pensioners and surviving spouses as having terminated with the ex- piration of the 1981 BCWA agreement, but that its obli- gation to employees in laid-off status might well be dif- ferent in that the employees in layoff status might have "vested benefits." The manner in which employee bene- fits are outlined in article XX(c)(3)(i) of the 1981 BCWA agreement and the sample benefit plan clearly suggests, and I find that benefits for employees in layoff status are not to be considered as being inextricably intertwined with benefits for pensioners and surviving spouses. Ac- cordingly, I find that bargaining over continued insur- ance benefits for employees in layoff status was a manda- tory subject of bargaining and, as such, Respondent had an obligation to bargain to impasse on that subject before it could lawfully implement any change in insurance ben- efits for that group of employees. I am fully persuaded the parties never arrived. at an impasse in negotiations regarding insurance benefits for employees in layoff status. Clearly, there was no impasse at the 1 October negotiating session because Respondent stated it had extended the insurance benefits for 30 addi- tional days (until 30 October) in order to allow more time for the negotiations to try to resolve the insurance matter. The first negotiation session ended with an agree- ment that the two attorneys would get together and make arrangements for a second negotiating session so the parties could further explore the issues that separated them. Respondent, in its 10 October letter to the Union, indicated it believed the parties were at impasse on the subject of insurance benefits. However, the Union quick- ly disavowed that claim of Respondent and the actions of the parties, prior and subsequent to Respondent's 10 October letter, substantiate the Union's assessment of the negotiations. At the 24 October negotiating session, the parties dis- cussed the cost of insurance benefits for the three catego- ries, of individuals in question, and how the parties might resolve their differences by following the resolution of disputes procedure. Respondent agreed to provide the Union with an already decided resolution of dispute so that the Union could see if that resolution would be ap- plicable to the dispute between the parties. Respondent also agreed to find out, and report back to the Union with its findings, whether group rates could be main- tained for the employees that were in layoff status. Re- spondent further agreed to provide the Union with the information it had previously requested in July. Further- more, it was the understanding of the parties, as testified to by Attorney Quinn, that they would meet again before the 1 November deadline for the expiration of the insurance benefits for the unit employees. Additionally, COALITE, INC. the Union pledged to make specific contract proposals once Respondent provided the requested information. Clearly, the parties had an understanding that Respond- ent would provide the Union certain information and, based on that information, the Union would make specif- ic proposals for Respondent to consider, and the parties would meet prior to 1 November. It is likewise clear Re- spondent never timely provided the requested informa- tion, but instead acted unilaterally to alter insurance ben- efits for its employees. The parties only met twice in ne- gotiating sessions and although the number of negotiat- ing sessions is not controlling , it may be considered as an element in determining whether there has been an im- passe in negotiations. In the instant case, there not only were just two negotiating sessions, but each session was left open in that the parties were to take additional spe- cific actions and then meet again. Respondent, however, failed to do as it'had agreed to with respect to furnishing the Union information on, among other items, insurance coverage. The evidence also establishes that Respondent had not acted fully in good fiath in that it unlawfully re- fused to timely provide the Union with the other earlier requested information. Accordingly, when the Taft Broadcasting, supra, factors concerning whether parties are at impasse are applied to the instant case, it is clear the parties herein were not at impasse. Therefore, I find, absent a waiver by the Union of its right to bargain on the subject matter, Respondent vio- lated Section 8(a)(5) and (1) of the Act by unilaterally changing the terms and conditions of employment of unit employees by discontinuing the insurance benefits pro- vided for in the benefit plan of the 1981 BCWA agree- ment for employees on layoff status. Respondent's contention that the Union waived its right to bargain over the insurance issue by not filing a resolution of dispute on the matter is totally without merit. Respondent never provided the Union with the al- ready decided resolution of 'dispute which it contended might apply to the instant Case. At the same time that it failed to provide the Union with that information for the Union's use in making an informed decision on whether to file a resolution of dispute, Respondent acted unilater- ally by discontinuing insurance coverage for its employ- ees on layoff status. Any actual or perceived failure on the part of the Union to act with respect to filing a reso- lution 'of dispute on the insurance issue was as a direct result of Respondent's failure to provide the Union with certain information on that subject matter. Therefore, I find the Union never waived its right to bargain about insurance' benefits for employees on layoff status. IV. WHETHER RESPONDENT UNLAWFULLY REFUSED TO OPEN FOR THE UNION ITS FINANCIAL BOOKS AND RECORDS It is alleged at paragraph 17 of the complaint that about 24 October and at all times thereafter, the Union orally requested that Respondent furnish and make avail- able to the Union for its use in collective bargaining all books and records used by Respondent to support its claim that it needed wage and benefit concessions from the Union in order to operate profitably. 303 Respondent, contrary to the Union and the General Counsel , contends it never , in negotiations , advanced a plea of poverty and, as such, it had no obligation to fur- nish financial data to the Union. The Board, in Atlanta Hilton & Tower, 271 NLRB 1600 (1984), outlined certain principles related to an employ- er's obligation to provide requested data on its financial condition. The Board in that case held that a union needed to demonstrate a specific need for financial infor- mation before an employer would be required to furnish such information, but the Board also held that an em- ployer may provide the necessary justification for requir- ing profit data to be furnished by claiming financial in- ability to meet a union's demands. The Board, in Atlanta Hilton & Tower, supra, went on to note that a claim of inability to pay need not be expressed with any particu- lar magic words but the words and conduct of an em- ployer must be specific enough to convey such a mean- ing. The key to whether or not an employer will be re- quired to provide requested financial information will be whether, under all the circumstances, the employer has expressed an inability as opposed to an unwillingness to meet the demands of a union. A mere expression of an unwillingness to meet a union 's demands will not trigger a requirement on the part of an employer to provide finan- cial data on its operations. Advertisers Mfg. Co., 275 NLRB 100 (1985). At the 1 October negotiating session , Respondent an- nounced it had closed its mine and that a day or two ear- lier, its last unit employee had been laid off. Respond- ent's attorney Hopkins stated, at the first of the two ne- gotiating sessions, that in order to continue to operate, Respondent would have to have a concession contract from the Union. The credited testimony reflects that Hopkins said that with a concessionary contract, Re- spondent might be able to reopen its operations. At the first negotiating session, Hopkins mentioned the amount of money Respondent was losing on a monthly basis, and at the second and final negotiating session on 24 Octo- ber, the parties discussed, among other matters, the cost of insurance benefits for the various categories of indi- viduals being discussed. Attorney Hopkins, at the second bargaining session , stated Respondent had to have con- cessions in any collective-bargaining agreement with the Union because it could not live with a standard agree- ment . The Union told Respondent, at the 24 October ses- sion, that if it was saying it could not afford to pay, then the Union wanted to see its books and records, and if Respondent could document its financial needs, the Union would attempt to tailor some proposals in order to respond to Respondent's f nancial difficulties. Attorney Hopkins responded to the Union's request for financial data by stating "if it cost more money to mine coal than you can sell it for, you can't make any money," and then told the Union it did not need to turn its books over to the Union to establish the fact that it cost' more to mine the coal than Respondent could sell it for. Hopkins stated, however, that Respondent was not pleading pov- erty. I am persuaded the words and conduct of Respondent establishes that it expressed, in negoiations, an inability as 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opposed to an unwillingness to pay, notwithstanding At- torney Hopkins' protestations during negotiations to the contrary. The evidence is overwhelming that the mean- ing of Respondent's various comments in negotiations was that it could not meet the demands of the Union and it needed concessions in order to make a profit from its operations. Respondent also announced, in negotiations, that it had closed its operations and only with conces- sions from the Union could it conceivably reopen. Re- spondent also announced, in negotiations, its monthly losses at its operations. Respondent contended it cost more to mine its coal than it could sell it for. Respondent stated it could not live with a standard contract, that it had to have concessions from the Union. Thus, I am per- suaded that the above comments of and actions by Re- spondent demonstrate that it pled financial inability to meet the Union's demands, and, as such, it was obligated to make available to the Union all information pertaining to its financial condition. Accordingly, I find, as alleged in the complaint, that Respondent violated Section 8(a)(5) and (1) of the Act by its refusal since about 24 October to provide the Union the financial data it re- quested. CONCLUSIONS OF LAW 1. Coalite, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. The following unit is appropriate for the purposes of collective bargaining: All production and maintenance employees em- ployed by the Respondent at its three strip mine op- erations in Winston and Marion counties, and its coal preparation plants located at Glen Allen and Brilliant, Alabama, but excluding all office clerical employees, professional employees, guards, and su- pervisors as defined in the Act. 4. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act when about 1 November it unilaterally, and without bargaining to an impasse with the Union, discontinued the insurance coverage provided for in the benefit plan of the 1981 BCWA agreement for its employees on layoff status. 5. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by, since about 8 September and more specifically since about 1 and 24 October, refusing to timely furnish and make available to the Union, for its use in collective bar- gaining, the specifically requested information listed in Appendix A of the complaint and notice. 6. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, by since about 24 October, refusing to furnish and make available to the Union for its use in collective bargaining all books and records used by Respondent to support its claim that it needed wage and benefit concessions from the Union in order to operate profitably. 7. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Having found that on 19 April 1985 Respondent provided the in- formation that the Union had requested in July 1984, I shall recommend no further action with respect to that issue. However, because Respondent never provided the Union any of requested financial data to support its claim of a need for concessions from the Union in order to op- erate profitably, I shall recommend that Respondent be ordered to timely provide to the Union any and all data it relied on in support of its claim of any inability to pay and its need for concessions. Inasmuch as the time has lapsed for all benefits under the benefit plan of the 1981 BCWA agreement, I shall recommend that Respondent be ordered to make whole any qualified employee in layoff status who incurred any expenses that would have been covered by the insurance provided for in the bene- fit plan of the 1981 BCWA agreement absent Respond- ent's unlawful unilateral discontinuance of those benefits. Because Respondent's operations are closed and all its employees are in layoff status, I shall recommend that it be ordered to mail a copy of the attached notice to all its employees employed during the calendar year 1984, in order that its employees may be apprised of their rights under the Act and Respondent's obligation to remedy its unfair labor practices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed26 ORDER The Respondent, Coalite, Inc., Brilliant, Alabama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally, and without bargaining to impasse with the Union, discontinuing the insurance coverage provided for in the benefit plan of the 1981 BCWA agreement for employees on layoff status. (b) Refusing to timely furnish and make available to the Union for its use in collective bargaining specifically requested relevant and necessary information. (c) Refusing to furnish and make available to the Union for its use in collective bargaining all books and records used by the Respondent to support its claim that it needed wage and benefit concessions from-the Union in order to operate profitably. zs If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses COALITE, INC. (d) In any like or related manner interfering with, re- straining , 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 effectuate the purposes of the Act. (a) Furnish to the Union, for its use in collective bar- gaining, all books and records utilized to support its claim that it needed wage and benefit concessions -from the Union in order to operate profitably. (b) Make whole any qualified employee on layoff status who incurred any, expenses that would have been covered by the insurance provided for in the benefit plan of the 1981 BCWA agreement, absent the unlawful uni- lateral discontinuance of that insurance coverage. 305 (c) Mail to each of its employees employed during the calendar year 1984 a copy of the attached notice marked "Appendix ." 24 Copies of the notice shall be on forms provided by the Regional Director for Region 10 and shall be signed by an authorized representative of the Respondent. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 27 If this Order- is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "