Graymont PA, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 2016

364 NLRB No. 37 (N.L.R.B. 2016)

364 NLRB No. 37
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Graymont PA, Inc. and Local Lodge D92, United
Cement, Lime, Gypsum and Allied Workers, A
Division of International Brotherhood of Boil-
ermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, AFL–CIO. Case 06–CA–
126251
June 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, AND MCFERRAN
On December 30, 2014, Administrative Law Judge
David I. Goldman issued the attached decision. The Re-
spondent filed exceptions, the General Counsel filed lim-
ited cross-exceptions, and each filed a supporting brief,
answering brief, and reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.1
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing its
work rules, absenteeism policy, and progressive disci-
pline schedule on March 1, 2014. The judge also found,
however, that the Respondent did not violate Section
8(a)(5) and (1) by its failure to timely inform the Union
that requested information about these changes did not
exist. Applying the Board’s decision in Raley’s Super-
markets & Drug Centers, 349 NLRB 26 (2007), and not-
ing that the complaint did not mention the nonexistence
of the requested information, the judge found that the
8(a)(5) violation could not be found.
As explained below, we agree with the judge that the
Respondent violated Section 8(a)(5) and (1) by unilater-
ally implementing the changes at issue here. However,
and also as explained below, we reverse the judge’s find-
ing that the Respondent did not violate the Act by failing
to timely inform the Union that it did not possess the
requested information. Specifically, we find that Raley’s
Supermarkets should be overruled to the extent that it
precludes the Board from considering an unalleged fail-

1 We shall amend the judge’s conclusions of law consistent with our
findings herein, and modify the judge’s recommended Order to con-
form to our findings and the Board’s standard remedial language, and
in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016). We shall substitute a new notice to conform to the Order as
modified.
ure to timely disclose that the requested information does
not exist when, as here, the unalleged issue is closely
connected to the subject matter of the complaint and has
been fully litigated.
I. THE UNILATERAL CHANGE TO WORK RULES,
ABSENTEEISM POLICY, AND PROGRESSIVE
DISCIPLINE SCHEDULE
A. Facts
The Respondent mines lime and produces lime prod-
ucts at its Pleasant Gap and Bellefonte facilities in Penn-
sylvania. The Union has represented a unit of employees
at both facilities since the 1960s.
The collective-bargaining agreement in effect from
June 1, 2011, through May 31, 2014, contains a man-
agement-rights clause, which has remained unchanged
since 2006. It states in relevant part that the Respondent:
[R]etains the sole and exclusive rights to manage; to di-
rect its employees; … to evaluate performance, … to
discipline and discharge for just cause, to adopt and en-
force rules and regulations and policies and procedures;
[and] to set and establish standards of performance for
employees … .
On February 14, 2014, the Respondent announced that
it would implement changes to its work rules, absentee-
ism policy, and progressive discipline schedule on March
1.2 These rules and policies are maintained in separate
documents that are not part of the collective-bargaining
agreement, and they had not been changed since Febru-
ary 14, 2005.3 After the announcement, the Union in-
formed the Respondent that it wished to discuss the
changes. The parties agreed to meet on February 25 to
discuss the matter.
In a letter dated February 17, 2014,4 the Union re-
quested that the Respondent furnish it with information
relevant to the Respondent’s decision to change the exist-
ing work rules, absenteeism policy, and progressive dis-

2 The changes at issue here include a consolidation of the work rules
and the absenteeism policy as one policy; a reduction in the number of
absences that an employee may have before the Respondent issues
discipline; a progressive discipline schedule that combines violations of
different categories of rules instead of following separate schedules for
each category; a reclassification of “sleeping on the job” and “failure to
follow proper lock-out procedures” to a different category in the work
rules; and a requirement that employees work 12 months without a
rules violation before the Respondent removed previous violations from
their progressive discipline records.
3 In late 2006, the Respondent approached the Union about making
changes to the work rules but abandoned the matter after the Union
protested the change and demanded bargaining.
4 All dates hereafter are in 2014.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cipline schedule.5 Plant Manager Martin Turecky pro-
vided the Union a written response at the beginning of
the February 25 meeting. The Respondent’s letter stated
in relevant part:
Under our collective bargaining agreement, the Com-
pany retains the sole and exclusive right to manage,
which expressly includes the right “. . . to adopt and en-
force rules and regulations and policies and procedures
… .” Therefore, the Company has no obligation to
bargain over any of the changes to which your request
refers. Since there is no obligation to bargain over the
decision to adopt the policies to which your [sic] refer,
there is, likewise, no obligation to furnish any infor-
mation regarding such decision.
Turecky also referenced “management rights” when he told
the Union’s representatives that, although the Respondent
had no obligation to bargain over the upcoming changes or
to provide the requested information, it was willing to listen
to the Union’s concerns about the changes. The Union’s
representatives expressed their desire to keep the current
rules and policies, and shared a number of their specific
concerns about the proposed changes. Based on the Un-
ion’s comments, the Respondent made only a few revisions
to the previously announced rule and policy changes. The
parties did not meet again to discuss the changes before the
Respondent implemented them on March 1.
B. The Judge’s Decision6
Rejecting the Respondent’s contention that the Union
waived its right to bargain over the Respondent’s chang-
es to its work rules, absenteeism policy, and progressive

5 The Union requested “any memos, data of any kind, or any other
Information or Materials which the company relied upon for making
the decision to change the work rules, discipline policy, and why
changes are being made to the absenteeism policy.” The Union also
requested “minutes of policy meeting[s] over the past five years in
which these topics were discussed, and any decisions, or agreement that
were arrived at, between the company, and the bargaining unit for
Local D92 employees.”
6 The judge found, and we agree, that deferral to arbitration of the
unilateral-change allegation is not warranted, as it is inextricably relat-
ed to the allegation that the Respondent failed to timely furnish the
Union with relevant requested information. See Arvinmeritor, Inc., 340
NLRB 1035, 1035 fn. 1 (2003) (where “an allegation for which deferral
is sought is inextricably related to other complaint allegations that are
either inappropriate for deferral or for which deferral is not sought, a
party’s request for deferral must be denied” (quoting American Com-
mercial Lines, 291 NLRB 1066, 1069 (1988)). Further, and contrary to
the Respondent’s contention, the judge’s recommended dismissal of the
related information-request allegation does not provide a basis for
deferring the fully litigated unilateral-change allegation at this stage in
the proceeding. See Hospital San Cristobal, 356 NLRB 699, 699 fn. 3
(2011) (fully litigated unilateral-change allegation not deferred to arbi-
tration after a related information-request allegation was settled at the
conclusion of the hearing).
discipline schedule, the judge found that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
implementing the changes on March 1, 2014. The judge
found that the contractual management-rights provi-
sions—reserving the Respondent’s right “to adopt and
enforce rules and regulations and policies and proce-
dures” and “to discipline and discharge for just cause”—
did not waive the Union’s right to bargain over the
changes at issue. He found that the former provision was
too vague to waive the Union’s statutory right to bargain
over any particular term of employment, and that the
latter phrase authorized the Respondent to discipline em-
ployees under existing rules and policies but not to uni-
laterally change them. In addition, the judge found that
these provisions, when read together, did not authorize
the Respondent to act unilaterally.
We agree that the Union did not waive its right to bar-
gain over these matters, and therefore the unilateral
changes were unlawful.
C. Discussion
In evaluating an employer’s claim that the collective-
bargaining agreement permits it to make unilateral
changes in terms and conditions of employment, the
Board applies the long-established “clear and unmistaka-
ble waiver” standard. Provena St. Joseph Medical Cen-
ter, 350 NLRB 808, 811 (2007). That standard—
endorsed by the Supreme Court in NLRB v. C & C Ply-
wood, 385 U.S. 421 (1967)—“requires bargaining part-
ners to unequivocally and specifically express their mu-
tual intention to permit unilateral employer action with
respect to a particular employment term, notwithstanding
the statutory duty to bargain that would otherwise ap-
ply.” Provena, supra at 811. In order to find a waiver
based on contractual language, that language must be
“sufficiently specific.” Johnson-Bateman Co., 295
NLRB 180, 189 (1989). Further, while “[w]aiver of a
statutory right may be evidenced by bargaining history, [
] the Board requires the matter at issue to have been fully
discussed and consciously explored during negotiations
and the union to have consciously yielded or clearly and
unmistakably waived its interest in the matter.” Id. at
185. As the Board explained in Provena, supra:
The waiver standard … effectively requires the parties
to focus on particular subjects over which the employer
seeks the right to act unilaterally. Such a narrow focus
has two clear benefits. First, it encourages the parties
to bargain only over subjects of importance at the time
and to leave other subjects to future bargaining. Sec-
ond, if a waiver is won--in clear and unmistakable
GRAYMONT PA, INC. 3
Language--the employer’s right to take future unilateral
action should be apparent to all concerned.
350 NLRB at 813.
Here, none of the contractual management-rights pro-
visions specifically reference work rules, absenteeism, or
progressive discipline.7 Further, there is no evidence that
the parties discussed these subjects during negotiations,
let alone “fully discussed and consciously explored”
them during bargaining over the current contract lan-
guage. See, e.g., Merillat Industries, Inc., 252 NLRB
784, 785 (1980) (union did not waive its right to bargain
over new absentee rules where “neither the wording of
the clause itself, nor any other evidence, suggest[ed] that
by agreeing to the management rights clause . . . the
[u]nion waived its right to bargain” about the subject).8
Accordingly, the Respondent has failed to establish a
clear and unmistakable waiver of the right to bargain
over these changes.
We find no merit in the contention of the Respondent
and dissent that the contractual provision referencing the
Respondent’s right “to set and establish standards of per-
formance for employees” clearly and unmistakably
waives the Union’s right to bargain over the changes at
issue, especially when read together with the other provi-
sions discussed above. Like the other provisions, this
provision does not specifically reference the Respond-
ent’s extra-contractual work rules, absenteeism policy, or
progressive discipline schedule. Further, there is no evi-
dence that those subjects were fully discussed and con-
sciously explored during negotiations over the contract
language. Nor is there evidence indicating whether the
contractual reference to “standards of performance” in-
cluded the extra-contractual rules and policies at issue in
this case, or only included standards relating to the quali-

7 Although the management-rights clause broadly states that the Re-
spondent has the right to adopt and enforce rules, as discussed below, it
lacks the required specificity to cover the types of work rules at issue
here. See Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013,
1017 (1982) (management-rights clause, which made no reference to
rules on absences or tardiness, did not establish a waiver of the union’s
right to bargain over the employer’s implementation of an attendance
control procedure), enfd. 722 F.2d 1120 (3d Cir. 1983); Murphy Diesel
Co., 184 NLRB 757, 763 (1970) (collective-bargaining agreement,
which made no mention of absentee rules or progressive discipline, did
not establish a waiver of the union’s right to bargain over those sub-
jects), enfd. 454 F.2d 303 (7th Cir. 1971).
8 See also Southern Florida Hotel & Motel Assn., 245 NLRB 561,
568 (1979) (contractual provision stating that the employer may “make,
continue and change” rules and regulations in the conduct of its busi-
ness did not waive union’s right to bargain over changes affecting
employment and rates of pay, where such matters were neither reflected
in the terms of the parties’ contract nor discussed during contract nego-
tiations), enf. granted in part, denied in part on other grounds 751 F.2d
1571 (11th Cir. 1985).
ty of work performed.9 Moreover, the Respondent’s
February 25 letter to the Union made no mention of this
provision. Rather, the letter justified its waiver conten-
tion solely on the provision referencing the Respondent’s
right “to adopt and enforce rules and regulations and
policies and procedures.” Thus, the Respondent’s subse-
quent reliance, in this proceeding, on additional provi-
sions amounts to a post hoc rationalization for its con-
duct.10 See generally Youngstown Steel Door Co., 288
NLRB 949, 950 (1988) (rejecting respondent’s contrac-
tual interpretation where there was “no contemporaneous
reference to a contract interpretation” when it engaged in
the conduct at issue).
Our dissenting colleague, like the Respondent, con-
tends that the management-rights language in the parties’
collective-bargaining agreement, especially the provision
referencing the Respondent’s right to “adopt and enforce
rules and regulations and policies and procedures,” estab-
lishes a clear and unmistakable waiver. He states that
this language is “strikingly similar” to the contract lan-
guage at issue in United Technologies Corp., 287 NLRB
198, 198 (1987), enfd. 884 F.2d 1569 (2d Cir. 1989),
where the Board found a waiver of the union’s right to
bargain over changes to the employer’s progressive dis-
cipline procedure. Like the judge, we disagree.11
In United Technologies, the Board found that, by
agreeing to contract provisions stating that the respond-
ent had “the sole right and responsibility to direct the
operations of the company and in this connection . . . to
select, hire, and demote employees, including the right to
make and apply rules and regulations for production,
discipline, efficiency, and safety[,]” the union waived its
right to bargain over the employer’s change in its pro-

9 See generally Johnson-Bateman Co., supra at 186–187 (declining
to infer that the union intended to waive its right to bargain over chang-
es to an extra-contractual policy regarding drug and alcohol testing,
where the record lacked evidence that the parties fully discussed and
consciously explored the meaning and potential implications of a man-
agement-rights clause which included only a general reference to the
employer’s right “to issue, enforce and change company rules”).
10 Our dissenting colleague also relies on contractual management-
rights provisions that reserve to the Respondent the right “to direct its
employees” and “to evaluate performance.” This too is a post hoc
rationalization for the Respondent’s conduct, and one raised solely by
the dissent, and not by the Respondent in support of its waiver defense.
11 We similarly disagree with the Respondent and the dissent that the
Union waived its right to bargain over the Respondent’s changes to its
rules and policies under the “contract coverage” standard. This alterna-
tive theory, first raised by the Respondent on exception, is untimely.
See, e.g., United States Service Industries, Inc., 315 NLRB 285, 285
(1994) (finding that a respondent’s defense not raised to, and thus not
considered by, the judge was untimely raised on exception), enfd. mem.
72 F.3d 920 (D.C. Cir. 1995). Moreover, even had it been timely
raised, we reject it and adhere to Board’s long-established “clear and
unmistakable waiver” standard, for the reasons set forth in Provena,
350 NLRB at 812–815.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gressive discipline procedure. United Technologies, su-
pra at 198 (emphasis in original). Here, the parties’ col-
lective-bargaining agreement includes a management-
rights provision reserving to the Respondent the right to
“adopt and enforce rules and regulations and policies and
procedures,” but, unlike United Technologies, that provi-
sion does not specifically reference “discipline.” Nor
does it specify any other type of rule that the Respondent
is authorized to unilaterally adopt and enforce. Without
such an unequivocal and specific expression of the par-
ties’ mutual intent to permit unilateral employer action
concerning the matter at issue, there is no basis for find-
ing waiver. See Dorsey Trailers, Inc., 327 NLRB 835,
836 (1999) (management-rights clause referencing “rea-
sonable rules, not in conflict with this agreement” was
too vague to waive union’s right to bargain over changes
to attendance policy), enfd. in relevant part 233 F.3d 831
(4th Cir. 2000).12
Our colleague’s reliance on Provena, supra, is similar-
ly misplaced. In Provena, the management-rights clause
in the parties’ collective-bargaining agreement included
provisions giving the respondent the right to “change
reporting practices and procedures and/or to introduce
new or improved ones”; “to make and enforce rules of
conduct”; and “to suspend, discipline, and discharge em-
ployees.” Id. at 815. The Board concluded that “[b]y
agreeing to that combination of provisions, the [u]nion
relinquished its right to demand bargaining over the im-
plementation of a policy prescribing attendance require-
ments and the consequences for failing to adhere to those
requirements.” Id. Here, the management-rights clause
does not include language specifically referencing the
matters at issue. For example, it lacks language pertain-
ing to attendance, like the provision in Provena reserving
to management the right to “change reporting practices
and procedures,” or language authorizing the Respondent
to unilaterally set forth the consequences for failing to
report to work as scheduled. Thus, contrary to our dis-

12 See also Murtis Taylor Human Services Systems, 360 NLRB No.
66, slip op. at 3–4 (2014) (management-rights clause referencing em-
ployer’s right “to make and alter from time to time reasonable rules and
regulations . . . to be observed by employees” was too vague to waive
union’s right to bargain over new requirement that employees sign
notes of administrative interviews to attest to the notes’ veracity);
Windstream Corp., 352 NLRB 44, 50 (2008), affd. and incorporated by
reference 355 NLRB 406 (2010) (management-rights clause referenc-
ing employer’s right “to establish reasonable rules and regulations” did
not amount to a waiver of the union’s right to bargain over changes in
the level of discipline the employer could impose for work rule viola-
tions); Hi-Tech Cable Corp., 309 NLRB 3, 4 (1992) (management-
rights clause referencing employer’s right to make, change, and enforce
reasonable rules lacked the requisite specificity to constitute a waiver of
the union’s right to bargain over the employer’s implementation of a
no-tobacco rule), enfd. per curiam 25 F.3d 1044 (5th Cir. 1994).
senting colleague’s suggestion, the contract provisions
here, even when read together, lack the specificity that
the Board found sufficient in Provena.13
In sum, the judge correctly found that the Union did
not clearly and unmistakably waive its right to bargain
over changes to the Respondent’s work rules, absentee-
ism policy, and progressive discipline schedule.14 Ac-
cordingly, we adopt his finding that the Respondent vio-
lated Section 8(a)(5) and (1) by its unilateral implemen-
tation of changes to those rules and policies on March 1,
2014.
II. THE UNION’S REQUEST FOR INFORMATION
A. Facts
On February 25, 2014, the Respondent, invoking the
management-rights clause in the parties’ collective-
bargaining agreement, refused to furnish the Union with
requested information about its decision to change its
work rules, absenteeism policy, and progressive disci-
pline schedule. The complaint, issued June 27, alleges
that the Respondent, “by Martin Turecky, in writing, has
failed and refused to furnish the Union with the infor-
mation” it requested on February 17. The Respondent
filed an answer to the complaint on July 11, and an
amended answer on August 26. In response to the in-

13 Our dissenting colleague’s reliance on Continental Telephone Co.,
274 NLRB 1452, 1452–1453 (1985), enfd. 786 F.2d 1174 (9th Cir.
1986), and Emery Industries, Inc., 268 NLRB 824, 824 (1984), is simi-
larly misplaced. In each case, the Board found that a union waived its
right to bargain over a particular term of employment based on the
language in the parties’ contract and the union’s repeated acquiescence
to the employer’s action pursuant to its interpretation of that language.
See Continental Telephone, supra at 1453 (finding “[u]nion’s acquies-
cence in numerous unilateral changes, coupled with the language of the
contract’s management-rights section, establishes that the parties
agreed that management had the right unilaterally to revise work rules
such as the attendance policy”); Emery Industries, supra at 824 (union
waived right to bargain over changes to employer’s absenteeism policy
by agreeing to a contract provision reserving the employer’s right to
discipline employees for “neglect of duty” and acquiescing to the re-
spondent’s numerous revisions to that policy). Conversely, there is no
evidence here that the Union previously acquiesced to any rule or poli-
cy change that the Respondent implemented pursuant to any provision
in the management-rights clause. On the contrary, as found by the
judge, the Union demanded bargaining over the changes at issue here.
Moreover, as noted above, in 2006 the Respondent abandoned a pro-
posed change to its work rules after the Union protested and demanded
bargaining over the matter.
14 The dissent concedes that his interpretation of the Board’s “clear
and unmistakable waiver” standard in the context of management rights
provisions is contrary to Board precedent, but argues that generalized
management rights provisions should suffice to meet this high standard.
We disagree. As management rights provisions involve the consensual
surrender of a fundamental statutory bargaining right, it is imperative
that the parties “unequivocally and specifically express their mutual
intention to permit unilateral employer action with respect to a particu-
lar employment term.” Provena, 350 NLRB at 811.
GRAYMONT PA, INC. 5
formation-request allegation, and in a separate affirma-
tive-defense paragraph, the amended answer asserts that
the Respondent has no information responsive to the Un-
ion’s request. Also in late August, the Respondent noti-
fied the Union that the Respondent had no information
responsive to the Union’s request.
At the beginning of the hearing, the General Counsel
argued that “the evidence will show that the [Respond-
ent] refused to provide relevant and necessary infor-
mation to the Union citing its lack of obligation to do
so,” and that “[a]t the 11th hour, the [Respondent]
changed its assertion and indicated to the Union that it
had no information in its possession responsive to the
Union’s request.” The Respondent asserted in its open-
ing statement that “the evidence will show that the [Re-
spondent] does not have information responsive to the
request that was made by the Union[.]”
After the hearing, in the absence of any opposition to
the General Counsel’s motion, the complaint was
amended to allege that the Respondent unreasonably
delayed in providing the Union with relevant information
regarding the Respondent’s decision to change its work
rules, absenteeism policy, and progressive discipline
schedule. The complaint did not specifically allege, nor
was it amended to allege, that the Respondent violated
the Act by its failure to inform the Union that it had no
information responsive to its request.
B. The Judge’s Decision
The judge observed that in Raley’s Supermarkets, 349
NLRB 26, the Board declined to find that an employer
violated Section 8(a)(5) and (1) by failing to inform the
union that certain requested information did not exist
because the complaint alleged only that the employer
unlawfully failed and refused to furnish the information.
Applying Raley’s Supermarkets, the judge declined to
find that the Respondent violated Section 8(a)(5) and (1)
by its 6-month delay in informing the Union that the re-
quested information did not exist, because the amended
complaint alleged only that the Respondent unreasonably
delayed furnishing the requested information. As ex-
plained below, we find that Raley’s Supermarkets was
wrongly decided, and that it should not preclude a find-
ing of a violation in the circumstances of this case.
C. Discussion
i. Due Process and the Absence of a Specific
Complaint Allegation
The issue here is one of procedural due process, the
fundamental elements of which are “notice and an oppor-
tunity to be heard.” Earthgrains Co., 351 NLRB 733,
735 (2007). Sufficient notice is that which “afford[s]
[the] respondent an opportunity to prepare a defense by
investigating the basis of the complaint and fashioning an
explanation of events that refutes the charge of unlawful
behavior.” Pergament United Sales, Inc. v. NLRB, 920
F.2d 130, 135 (2d Cir. 1990), enfg. 296 NLRB 333
(1989). As stated in Sunshine Piping, Inc., 351 NLRB
1371, 1378 (2007), “[t]he precise procedural protections
of due process vary, depending on the circumstances,
because due process is a flexible concept unrestricted by
any bright-line rules.”
Section 102.15(b) of the Board’s Rules and Regula-
tions provides that the complaint shall contain “a clear
and concise description of the acts which are claimed to
constitute unfair labor practices, including, where
known, the approximate dates and places of such acts
and the names of respondent’s agents or other representa-
tives by whom committed.” The complaint, however, is
not the exclusive source of notice of the material issues
to be addressed in a Board proceeding. Depending on
the circumstances, notice may also be provided by the
General Counsel’s representations at the hearing,15 or it
might be evident from the respondent’s conduct in the
proceeding.16 “It is well settled that the Board may find
and remedy a violation even in the absence of a specified
allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated.” Pergament, 296 NLRB at 334.
The determination whether a matter has been fully liti-
gated “rests in part on ‘whether the respondent would
have altered the conduct of its case at the hearing, had
the specific allegation been made.’” Piggly Wiggly Mid-
west, LLC, 357 NLRB 2344, 2345 (2012) (quoting Per-
gament, supra at 335).
In Pergament, the General Counsel issued a complaint
alleging that the respondents violated Section 8(a)(3) and
(1) by failing to hire certain individuals because they
were members of a union. Id. at 333–334. The com-
plaint did not allege that the respondents discriminated
against those individuals for filing an unfair labor prac-
tice charge, but the Board nevertheless adopted the
judge’s finding that the respondents violated Section
8(a)(4) by failing to hire them for that reason. Id. at 333.

15 See, e.g., Victoria Packing Corp., 332 NLRB 597, 598 (2000)
(“the General Counsel’s opening statement at the hearing reasonably
put the [r]espondent on notice that the denial of plant access to [the
union’s business agent] was being alleged as an unlawful breach of the
contractual visitation clause”).
16 See generally NLRB v. Mackay Radio & Telegraph Co., 304 U.S.
333, 350 (1938) (rejecting the respondent’s contention that it was de-
nied a full and adequate hearing where “the record show[ed] that at no
time during the hearings was there any misunderstanding as to what
was the basis of the Board’s complaint,” and that the respondent “un-
derstood the issue and was afforded full opportunity to justify the ac-
tion of its officers as innocent rather than discriminatory”).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In doing so, the Board found that the unalleged violation
was closely connected to the subject matter of the com-
plaint’s 8(a)(3) allegation, noting that both allegations
focused on the same set of facts and the same ultimate
issue, and “that no party objected to the introduction of
any of the relevant evidence.” Id. at 335. The Board
further found that the unalleged issue was fully litigated,
noting that witnesses for the General Counsel and the
respondents had testified about the issue, and rejecting
the respondents’ contention that the absence of a specific
allegation either precluded them from presenting excul-
patory evidence or altered the conduct of their case at the
hearing. Id. at 335 & fn. 8.
The Board has applied these Pergament principles in
information-request cases. For example, in Castle Hill
Health Care Center, 355 NLRB 1156, 1181–1182
(2010), the Board adopted the judge’s finding of a viola-
tion where the judge found, under Pergament, that the
respondent’s “continued failure” to provide requested
information was fully litigated and rejected the respond-
ent’s claim that the alleged violation was limited to the
union’s initial information requests. See also Piggly
Wiggly Midwest, supra at 2344, 2356 (Board adopted the
judge’s finding, under Pergament, of an unalleged viola-
tion pertaining to the failure to furnish certain sales and
franchise information);17 Gloversville Embossing, Corp.,
314 NLRB 1258, 1263 (1994) (Board found the respond-
ent failed to timely provide information and also failed to
provide it in a complete manner, even though the com-
plaint did not specifically allege the latter).
Notwithstanding the Board’s broad application of the
Pergament principles, in Raley’s Supermarkets, 349
NLRB 26, the Board majority, without explanation, did
not apply (or even reference) Pergament in declining to
find an information request violation. There, the General
Counsel issued a complaint alleging that the respondent
failed and refused to provide the union with a copy of an
investigator’s report regarding specific allegations of
inappropriate behavior. Id. at 28. The Board stated that
the complaint “implicitly alleges that the report exists
and that the [r]espondent refuses to furnish it,” and that
“it is an unreasonable stretch to convert this allegation
into its opposite, i.e., that the report does not exist, and
that the [r]espondent failed to inform the [u]nion of this
fact.” Id. Noting the absence of an amendment to the
complaint regarding the failure to inform the union no

17 With respect to another unalleged issue, regarding the union’s re-
quest for information concerning employees’ vacation and holiday pay,
the Board found that the “fully litigated” prong of the Pergament test
was not satisfied because the respondent was not on notice that this
specific information request was at issue. Id. at 2345.
such reports existed, the Board concluded that finding a
violation for this conduct was not warranted. Id.
Thereafter, in Albertson’s, Inc., 351 NLRB 254
(2007), the Board applied Raley’s Supermarkets and,
again not referencing Pergament, held that the “General
Counsel must specifically allege that the failure to inform
the union that requested documents do not exist (or the
delayed communication of that fact) was unlawful. The
instant complaint, which does not even mention the non-
existence of the documents, plainly fails to satisfy this
pleading requirement.” Id. at 255. The Board according-
ly declined to find a violation for the failure to inform the
union of the nonexistence of certain requested docu-
ments.
The Albertson’s decision demonstrates that Raley’s
Supermarkets precludes a finding of an unalleged viola-
tion pertaining to the “nonexistence of information,” re-
gardless of whether the issue is closely connected to the
subject matter of the complaint and is fully litigated. The
Board has not, however, articulated a rationale for im-
plicitly carving out this exception to the Pergament test.
Having carefully considered this issue and the due
process considerations that are implicated, we can find
no reasonable basis for maintaining this exception to
Pergament and mandating a strict pleading requirement
solely for the failure to timely inform a union that there
is no information responsive to its request. We find it
inimical to the duty to bargain in good faith as required
by the Act. Under the duty to bargain, “[t]here can be no
question of the general obligation of an employer to pro-
vide information that is needed by the bargaining repre-
sentative for the proper performance of its duties.”
NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967) (citing NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956)). This obligation includes the duty “to timely
disclose that requested information does not exist.” En-
do Painting Service, Inc., 360 NLRB No. 61, slip op. at 2
(2014).18 Contrary to Raley’s Supermarkets, we find that
the policies of the Act are best served by a single test
applicable to all unalleged issues that may arise. Accord-
ingly, we overrule Raley’s Supermarkets and its progeny
to the extent they hold, contrary to Pergament, that for
issues involving a failure to timely disclose that request-
ed information does not exist, a finding of a violation is
necessarily precluded by the absence of a specific com-
plaint allegation. Instead, we hold that the Pergament
test is applicable to all such circumstances in determining
whether an unalleged violation may be considered.

18 When a respondent does not respond, or fully respond, to an in-
formation request, the requesting party would have no basis for know-
ing that the information does not exist.
GRAYMONT PA, INC. 7
ii. Application of Pergament and Consideration of
the Merits
As we have explained, under Pergament, “the Board
may find and remedy a violation even in the absence of a
specified allegation in the complaint if the issue is close-
ly connected to the subject matter of the complaint and
has been fully litigated.” Pergament, 296 NLRB at 334.
Both prongs of this test are satisfied here.
First, the Respondent’s failure to timely disclose that
the Union requested information that did not exist is a
fact “closely connected” to the amended complaint’s
allegation that the Respondent failed to timely furnish the
Union with relevant requested information, as they both
involve the same evidentiary facts (the Union’s request
for information and the Respondent’s response to that
request) and present the same ultimate issue: whether
the Respondent, by its August 2014 response to the Un-
ion’s February 17 request for information, satisfied its
statutory obligation to bargain collectively and in good
faith with the Union. Indeed, the Respondent demon-
strated the close connection between these issues by stat-
ing, in its answer to the complaint and again in its open-
ing statement, that it had no information responsive to
the Union’s request.
Second, the issue was fully litigated. From the outset,
the General Counsel asserted that, by its response to the
Union’s information request, the Respondent violated
Section 8(a)(5) of the Act. The Respondent asserted, as
an affirmative defense to the complaint allegation, that it
had no information responsive to the Union’s request.
Notably, each party called a witness to testify that the
Respondent delayed its disclosure that it lacked respon-
sive information.19 These circumstances demonstrate

19 The Respondent contends in its answering brief that it had no rea-
son to question witnesses about the cause of its delayed response be-
cause “it had no reason to know that the failure to notify the Union of
the nonexistence of information would be alleged as a separate viola-
tion of the Act.” The Respondent, however, demonstrated its under-
standing that the “nonexistence of information” was an issue in this
case by raising it as an affirmative defense. The Respondent, therefore,
cannot argue that it was denied due process because it realizes now that
its evidence might establish a violation of the Act. See generally NLRB
v. Mackay Radio & Telegraph Co., 304 U.S. at 350; Jones Dairy Farm
v. NLRB, 909 F.2d 1021, 1028–1029 (7th Cir. 1990) (finding no viola-
tion of due process where the Board found an unfair labor practice
based on evidence that was “a principal component of [the employer’s]
defense in the administrative proceedings”), enfg. 295 NLRB 113
(1989). Moreover, there is no factual dispute pertaining to the infor-
mation request or the Respondent’s response to that request, and the
Respondent does not assert that additional testimony on this subject
would warrant dismissal of the information-request allegation. See,
e.g., Park ‘N Fly, Inc., 349 NLRB 132, 133–134 (2007) (unalleged
issue fully and fairly litigated where there was no objection to relevant
testimony and the respondent chose not to take the opportunity to ques-
tion its own witness about the issue).
that (a) the absence of the specific allegation did not pre-
clude the Respondent from presenting exculpatory evi-
dence, and (b) the Respondent would not have altered the
conduct of its case at the hearing had the more specific
allegation been made. See Pergament, supra at 335.
In sum, we find that the issue of the Respondent’s 6-
month delay in disclosing that the requested information
does not exist is closely connected to the complaint alle-
gations and was fully litigated. Accordingly, we find
that the Respondent was afforded due process, that it was
not prejudiced by the absence of a complaint allegation
pertaining to the “nonexistence of information,” and that
it is appropriate for the Board to reach the merits of the
issue.
Turning to the merits, we find that the record evidence
establishes the violation. In a letter dated February 17,
2014, the Union requested that the Respondent furnish
information relevant to its decision to change its work
rules, absenteeism policy, and progressive discipline
schedule. The Respondent initially stated that the Union
had waived its right to the requested information, and
waited until August to disclose that the information did
not exist. Plainly, the delay of this disclosure was unlaw-
ful, as it is well established that the Respondent was “ob-
ligat[ed] to timely disclose that requested information
does not exist” as part of the duty to timely provide in-
formation. Endo Painting Service, 360 NLRB No. 61,
slip op. at 2. See also Dover Hospitality Services, 359
NLRB No. 126 (2013) (respondent unlawfully waited 13
months to provide the union with certain requested in-
formation and to tell the union that the remainder of the
requested information did not exist), affd. and incorpo-
rated by reference 361 NLRB No. 90 (2014), enfd. 636
Fed. Appx. 826 (2d Cir. 2016); Tennessee Steel Proces-
sors, 287 NLRB 1132, 1132–1133 (1988) (respondent
unlawfully waited 6 months to inform the union that cer-
tain requested information did not exist). Therefore, as-
suming that it is proper to apply our decision to the fore-
going conduct retroactively, we find that the Respondent
violated Section 8(a)(5) and (1) by failing to disclose in a
timely manner that it had no information responsive to
the Union’s request for information regarding the Re-
spondent’s decision to change its work rules, absentee-
ism policy, and progressive discipline schedule. For the
reasons set out in the following section, we find it appro-
priate to apply our decision retroactively.
iii. Retroactive Application
“The Board’s usual practice is to apply new policies
and standards ‘to all pending cases in whatever stage.’”
Aramark School Services, Inc., 337 NLRB 1063, 1063
fn. 1 (2002) (quoting Deluxe Metal Furniture Co., 121
NLRB 995, 1006–1007 (1958)). “[T]he propriety of
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
retroactive application is determined by balancing any ill
effects of retroactivity against ‘the mischief of producing
a result which is contrary to a statutory design or to legal
and equitable principles.’” Id. (quoting SEC v. Chenery
Corp., 332 U.S. 194, 203 (1947)). Thus, the Board ap-
plies new rules and standards retroactively to the parties
in a case in which the rules and standards are announced,
unless retroactive application would work a “manifest
injustice.” Pattern Makers (Michigan Model Mfrs.), 310
NLRB 929, 931 (1993). In determining whether retroac-
tive application of a Board decision will cause manifest
injustice, the Board balances three factors: (1) the reli-
ance of the parties on preexisting law; (2) the effect of
retroactivity on accomplishment of the purpose of the
Act; and (3) any particular injustice arising from retroac-
tive application. Id.
We find that retroactive application of the standard an-
nounced today is warranted here. With respect to the
first factor, reliance on existing law, there is no evidence
that the Respondent relied on Raley’s Supermarkets, ei-
ther in deciding how to respond to the Union’s infor-
mation request, or in preparing for this proceeding. Re-
garding the second factor, retroactivity aids in accom-
plishing the Act’s purpose of “encouraging the practice
and procedure of collective bargaining”20 by allowing the
Board to apply the Pergament test to determine whether
due process considerations preclude us from addressing
the Respondent’s failure to timely inform the Union that
it had no information responsive to its request. In our
view, no statutory purpose is served by declining to con-
sider the issue if it is determined that such consideration
would not be a denial of due process. Regarding the
third factor, no particular injustice would arise from ret-
roactive application here, because the Pergament test
ensures that due process principles are considered and
satisfied. Accordingly, we find all three factors weigh in
favor of retroactive application of the new standard in
this case.
AMENDED CONCLUSIONS OF LAW
Insert the following paragraph after the judge’s Con-
clusions of Law 4 and renumber the subsequent para-
graph.
“5. By failing to disclose in a timely manner that it
had no information responsive to the Union’s request for
information regarding the Respondent’s decision to
change its work rules, absenteeism policy, and progres-
sive discipline schedule, the Respondent violated Section
8(a)(5) and (1) of the Act.”

20 Sec. 1 of the National Labor Relations Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Graymont PA, Inc., Pleasant Gap and Belle-
fonte, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local Lodge
D92, United Cement, Lime, Gypsum and Allied Work-
ers, a Division of International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers and
Helpers, AFL–CIO, by failing to disclose in a timely
manner that it has no information responsive to the Un-
ion’s request for information that is relevant and neces-
sary to the Union’s performance of its functions as the
collective-bargaining representative of the Respondent’s
unit employees.
(b) Unilaterally changing the terms and conditions of
employment of its unit employees.
(c) 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 policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All full-time and regular part-time production and
maintenance employees employed by Respondent at its
North Thomas Street, Bellefonte, Pennsylvania plant
and its Airport Road, Pleasant Gap, Pennsylvania fa-
cility, excluding salaried foremen, office employees,
guards, managers, and supervisors as defined in the
Act.
(b) Rescind the changes to the work rules, absentee-
ism policy, and progressive discipline schedule that were
unilaterally implemented on March 1, 2014.
(c) Remove from its files any references to discipline
issued pursuant to the Respondent’s changes to the work
rules, absenteeism policy, and progressive discipline
schedule that the Respondent unilaterally implemented
March 1, 2014, and within 3 days thereafter notify the
employees in writing that this has been done and that the
unlawful discipline will not be used against them in any
way.
(d) Offer any unit employees who were discharged
pursuant to the changes to the work rules, absenteeism
policy, and progressive discipline schedule full rein-
statement to their former positions, or, if those positions
no longer exist, to substantially equivalent positions,
GRAYMONT PA, INC. 9
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(e) Make whole all employees in the bargaining unit
who were disciplined under the work rules, absenteeism
policy, and progressive discipline schedule that the Re-
spondent unilaterally implemented March 1, 2014, in the
manner set forth in the remedy section of the judge’s
decision.
(f) Compensate the unit employees for the adverse in-
come tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for
Region 6, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Pleasant Gap and Bellefonte, Pennsylvania facilities,
copies of the attached notice marked “Appendix.”21
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 17,
2014.

21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 6 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
My colleagues find that Respondent Graymont PA,
Inc. (Graymont or the Respondent) violated Section
8(a)(5) and (1) of the Act by unilaterally implementing
changes to its work rules, absenteeism policy, and pro-
gressive discipline policy and by failing to disclose in a
timely manner that it had nothing responsive to the Un-
ion’s request for information regarding those changes. I
respectfully disagree with both of these findings.
I believe the management-rights clause of the parties’
collective-bargaining agreement (CBA) clearly and un-
ambiguously granted Graymont the right to make the
changes at issue here unilaterally, i.e., without giving the
Union notice and an opportunity to bargain concerning
the planned changes. Alternatively, under the “contract
coverage” standard applied by the D.C. and Seventh Cir-
cuits, I believe that same management-rights language
demonstrates that the parties had already bargained and
had agreed that Graymont had the right to make the
changes at issue here unilaterally. In addition, because
Graymont had the right to make these changes without
bargaining over them, it had no obligation to provide the
Union with requested information relating to its decision
to implement the changes.1 Accordingly, unlike my col-

1 Because I would find that the Respondent had no duty to furnish
any information related to the changes at issue, I would also find that it
had no duty to timely inform the Union that no such information exist-
ed. Accordingly, I do not reach or pass on whether Raley’s Supermar-
kets & Drug Centers, 349 NLRB 26 (2007), should be overruled to the
limited extent my colleagues overrule that decision today.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leagues, I believe the Board should dismiss the complaint
in its entirety.
Facts
For more than 20 years, Graymont and the Union have
been parties to successive collective-bargaining agree-
ments, including the CBA, which was effective June 1,
2011, through May 31, 2014. The CBA contained a
management-rights clause, which stated in relevant part
as follows:
The Employer retains the sole and exclusive rights to
manage; to direct its employees; . . . to evaluate per-
formance, . . . to discipline and discharge for just cause,
to adopt and enforce rules and regulations and policies
and procedures; [and] to set and establish standards of
performance for employees . . . .
(Emphasis added.)
Prior to March 2014, when it implemented the changes
in dispute here, Graymont maintained three “groups” of
work rules and progressive discipline policies linked to
two of the three groups. For violations of Group A
rules,2 Graymont applied a four-step progressive disci-
pline policy: written warning, one-day suspension, two-
day suspension, and discharge. For violations of Group
B rules,3 a three-step progressive discipline policy ap-
plied: 2-day suspension, 4-day suspension, and dis-
charge. No progressive discipline policy applied to vio-
lations of Group C rules;4 rather, a single violation of a
Group C rule warranted discharge. When imposing pro-
gressive discipline, Graymont did not combine work rule
infractions from different groups, and a rolling 12-month
“reset period” was observed—i.e., each infraction was
removed from the record after 12 months. Graymont
also maintained an absenteeism policy. Under that poli-
cy, after six “incidents”—i.e., unexcused absences—
within a rolling year, the employee was required to at-
tend a meeting with management and the Union, where
the employee received a verbal warning; a seventh inci-
dent within a rolling year resulted in a written warning;
an eighth incident within a rolling year resulted in 2 days
off without pay; and a ninth incident within a rolling year

2 Group A rules prohibited, among other things, carelessness or reck-
lessness, continued tardiness, poor work habits, loafing, infractions of
Federal and State rules, and failing to follow instructions.
3 Group B rules prohibited, among other things, verbal abuse of cus-
tomers and employees, carelessness or recklessness resulting in injuries
to persons or damage to equipment, and punching a timeclock for an-
other employee.
4 Group C rules prohibited, among other things, deliberate disobedi-
ence and insubordination, willful falsification of Company records,
intoxication on the job, sleeping on the job, fighting on Company prem-
ises, theft, possession of firearms on Company property, threats or
threatening behavior, and failing to follow lockout procedures.
resulted in 1 week off without pay and a “last chance”
notice.
On February 14, 2014,5 Graymont announced its intent
to implement the following changes to its work rules and
its attendance and progressive discipline policies:
• Eliminate the Group A rule prohibiting “continued
tardiness”;
• Replace it with a more specific “Policy on Tardi-
ness,” under which more than three instances of tar-
diness in any 12-month period will be deemed a vio-
lation of the Group A rule prohibiting “poor work
habits”;
• Classify absenteeism as a Group A rule, thus reduc-
ing from six to one the number of unexcused absenc-
es an employee may have before the Respondent first
issues discipline;
• Reclassify two Group C rules as Group B rules
(“sleeping on the job” and “failure to follow proper
lock-out procedures”);
• Establish a new “pyramiding” matrix, under which
Group A and B rule violations are combined for pur-
poses of progressive discipline; and
• Change the “reset period” from a rolling 12-month
system to one where violations remain on an em-
ployee’s progressive discipline record until the em-
ployee has worked a full year without any violations.
Initially, the Union greeted the February 14 an-
nouncement by stating it would file a grievance. Later
that day, however, the Union retracted its threat to file a
grievance and asked to discuss the planned changes.
Graymont agreed to meet with the Union. On February
17, the Union requested “any memos, data of any kind or
any other [i]information or [m]aterials which the compa-
ny relied upon for making the decision to change the
work rules, discipline policy, and why changes are being
made to the absenteeism policy.” The Union also re-
quested any minutes of “policy meetings” between itself
and Graymont “over the past five years in which these
topics were discussed” as well as any decisions or
agreements that were reached. The parties met on Feb-
ruary 25. Graymont began by handing the Union a writ-
ten response to the February 17 information request.
This letter stated that “[u]nder our collective-bargaining
agreement, the Company retains the sole and exclusive
right to manage, which includes the right ‘. . . to adopt
and enforce rules and regulations and policies and proce-

5 All dates are in 2014 unless otherwise specified.
GRAYMONT PA, INC. 11
dures . . . .’” The letter further stated that Graymont had
“no obligation to bargain over any of the changes to
which your request refers” or to furnish any information
regarding its decision to make those changes. Orally,
Graymont stated that it had no obligation to bargain over
the changes to the work rules, but it was willing to talk to
the Union and listen to its concerns.6 The Union raised a
number of concerns, and Graymont modified its planned
changes in a few respects. Graymont implemented the
changes on March 1.
Discussion
It is well established that work rules and attendance
and disciplinary policies are among the terms and condi-
tions of employment that constitute mandatory subjects
of bargaining. Thus, absent a meritorious defense, an
employer violates Section 8(a)(5) of the National Labor
Relations Act (NLRA or the Act) if it unilaterally chang-
es its work rules, attendance policy or disciplinary policy
covering represented employees without giving the union
that represents them reasonable notice and an opportuni-
ty to bargain concerning those changes. See NLRB v.
Katz, 369 U.S. 736, 743 (1962); Litton Financial Print-
ing Division v. NLRB, 501 U.S. 190, 198 (1991). How-
ever, the union may waive its right to bargain, and the
Board has found a “clear and unmistakable waiver” of
that right where “bargaining partners . . . unequivocally
and specifically express their mutual intention to permit
unilateral employer action with respect to a particular
employment term, notwithstanding the statutory duty to
bargain that would otherwise apply.” Provena St. Joseph
Medical Center, 350 NLRB 808, 811 (2007). A waiver
of bargaining rights may also be inferred from the par-
ties’ past practice or from a combination of the express
provisions of the collective-bargaining agreement and the
parties’ past practice. American Diamond Tool, Inc., 306
NLRB 570, 570 (1992).7

6 The judge cited Union Representative Ralph Houser’s testimony
that Plant Manager Turecky specifically told the Union “that referring
to the management rights . . . he didn’t have to give us any information
and he had no obligation to bargain over it.”
7 Additionally, a bargaining waiver may result from a union’s failure
to request bargaining after receiving notice or learning of a particular
change or proposal. See, e.g., Finch, Pruyn & Co., 349 NLRB 270
(2007) (finding that union waived its right to bargain by failing to re-
quest bargaining over poststrike continuation of subcontracting), enfd.
mem. 296 Fed. Appx. 83 (D.C. Cir. 2008) (per curiam); AT & T Corp.,
337 NLRB 689, 692–693 (2002) (finding that union waived bargaining
over closure of employer’s Tucson facility, despite initially discussing
closure with employer, when it “‘dropped the ball’ by failing to pursue
the matter”). A bargaining waiver may also result from bargaining
conduct itself. See U.S. Lingerie Corp., 170 NLRB 750, 751–752
(1968) (finding that union waived bargaining over shutdown of New
York plant when it insisted on holding employer to results of multiem-
Some courts of appeals have disagreed with the
Board’s use of a waiver analysis when the collective-
bargaining agreement contains language covering the
matter in dispute that reveals the parties have already
bargained over it. As the D.C. Circuit reasoned in De-
partment of Navy v. FLRA, 962 F.2d 48, 57 (D.C. Cir.
1992), “[a] waiver occurs when a union knowingly and
voluntarily relinquishes its right to bargain about a mat-
ter; but where the matter is covered by the collective
bargaining agreement, the union has exercised its bar-
gaining right and the question of waiver is irrelevant”
(emphasis in original). See also NLRB v. Postal Service,
8 F.3d 832 (D.C. Cir. 1993) (same); Chicago Tribune
Co. v. NLRB, 974 F.2d 933, 936–937 (7th Cir. 1992)
(“[W]e wonder what the exact force of the ‘clear and
unmistakable’ principle can be when the parties have an
express written contract and the issue is what it means
. . . .”). This alternative approach is often referred to as a
“contract coverage” analysis.
In this case, the Respondent adopted rules regarding
matters that were among the Respondent’s “sole and ex-
clusive rights” under the CBA. As noted above, these
“sole and exclusive rights” expressly included the right
to “manage” and “direct” employees, “evaluate perfor-
mance,” “adopt and enforce rules and regulations and
policies and procedures,” and “set and establish stand-
ards of performance.” In these circumstances, I believe
the Board cannot fairly conclude that the Respondent
violated Section 8(a)(5) of the Act when it implemented
the changes at issue. I believe such a conclusion is un-
supported by the record, regardless of whether we apply
a “clear and unmistakable waiver” analysis or a “contract
coverage” analysis.8 Viewed under the “clear and unmis-
takable waiver” standard, the management-rights lan-
guage, and especially the provision granting the Re-
spondent the sole and exclusive right to “adopt and en-
force rules and regulations and policies and procedures,”
plainly expressed a “mutual intention . . . to permit uni-
lateral employer action” regarding work rules and attend-
ance and progressive discipline policies. Provena, 350
NLRB at 811. Alternatively, applying a “contract cover-
age” analysis, the same language demonstrated that the
Union had “exercised its bargaining right” and agreed
that Graymont had the sole and exclusive right to “set
and establish standards of performance for employees,”

ployer bargaining then underway, where employer had lawfully with-
drawn from multiemployer association).
8 Because I would dismiss the “unilateral change” allegation under
the “clear and unmistakable waiver” standard, I find it unnecessary to
pass on whether the Board should continue applying that standard or
instead adopt the “contract coverage” standard embraced by the D.C.
Circuit and at least one other court.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to “discipline and discharge for just cause,” and to “adopt
and enforce rules and regulations and policies and proce-
dures”—including work rules and attendance and pro-
gressive discipline policies.
Board precedent supports this analysis. In United
Technologies Corp., a management-rights clause gave
the employer “the sole right and responsibility to direct
the operations of the company and in this connection . . .
to select, hire, and demote employees, including the right
to make and apply rules and regulations for production,
discipline, efficiency, and safety.” 287 NLRB 198, 198
(1987) (emphasis in original), enfd. 884 F.2d 1569 (2d
Cir. 1989). The employer had an attendance policy un-
der which it applied progressive discipline for poor at-
tendance: verbal warning, written warning, suspension,
and discharge. 287 NLRB at 205. The employer unilat-
erally eliminated suspension as the penultimate step in
that progressive discipline policy. Id. The Board found
that the Union had waived its right to bargain over this
change, explaining that “the contract language plainly
grant[ed] the [r]espondent the right to unilaterally make
and apply rules for discipline” and that there was nothing
in the parties’ bargaining history to indicate that the lan-
guage “was intended to mean something other than that
which it plainly state[d].” Id. at 198. Here, the man-
agement-rights language in the parties’ CBA—especially
the language granting the Respondent sole and exclusive
right to “adopt and enforce rules and regulations and
policies and procedures”—is strikingly similar to the
language the Board found dispositive in United Technol-
ogies. Indeed, the management-rights language in the
parties’ CBA presents an even stronger case for waiver
than United Technologies because it includes a more
specific reference to the matters at issue. In addition to
granting the Respondent the sole and exclusive right to
“discipline and discharge,” the management-rights lan-
guage also grants the Respondent the sole and exclusive
right to “set and establish standards of performance.”
The Respondent’s disputed changes—concerning tardi-
ness, absenteeism, and progressive disciplinary proce-
dures—involve the setting and establishing of standards
of performance.9

9 Unlike my colleagues, I do not fault Graymont’s February 25 letter
to the Union for failing to explicitly reference the contractual right to
“set and establish standards of performance,” nor was Graymont’s
reliance on that provision in support of its waiver argument “a post hoc
rationalization for its conduct,” as my colleagues assert. In its February
25 letter, Graymont referred to its right to “manage” under “our collec-
tive-bargaining agreement,” and in a subsequent oral communication
with the Union, it again referred to “the management rights.” In my
view, these broad, contemporaneous references were sufficient to put
the Union on notice that Graymont was relying on the management-
rights clause as a whole and was not limiting its waiver argument to
The very case in which the Board reaffirmed the “clear
and unmistakable waiver” standard—Provena St. Joseph
Medical Center, supra—also supports my analysis here.
In Provena, a management-rights clause gave the em-
ployer the right to “change . . . reporting practices and
procedures and/or to introduce new or improved ones,”
“to make and enforce rules of conduct,” and “to suspend,
discipline, and discharge employees,” 350 NLRB at 808,
and the parties’ contract “contained no express provi-
sions outside the management-rights clause regarding
disciplinary processes,” id. at 809. The employer unilat-
erally implemented a new disciplinary policy on attend-
ance and tardiness. Id. The Board found that the above
provisions, “taken together, explicitly authorized” the
employer’s unilateral action. Id. The Board explained
that by “agreeing to that combination of provisions, the
[u]nion relinquished its right to demand bargaining over
the implementation of a policy prescribing attendance
requirements and the consequences for failing to adhere
to those requirements.” Id. The management-rights lan-
guage in the instant case makes at least as compelling a
case for clear and unmistakable waiver as the language
the Board relied on Provena.10
My colleagues cite a number of cases they say contra-
dict a waiver finding here. To the extent this is so, I be-
lieve the fault lies in those cases because the insistence
on more detailed language referencing a particular
change fails to account for the reality that many provi-
sions in collective-bargaining agreements “must be ex-
pressed in general and flexible terms” because “[o]ne
cannot spell out every detail of life in an industrial estab-
lishment.”11 Management-rights language may be gen-
eral and, at the same time, clear and unmistakable. Here,
the parties agreed that Graymont reserved the right,
without exception, “to adopt and enforce rules and regu-
lations and policies and procedures.” No reasonable per-
son reading this language could conclude that Gray-
mont’s right of unilateral action extended to rules, regu-
lations, policies and procedures concerning some matters
but not others. The language reflects an agreement to

any one part of that clause. Moreover, the case my colleagues rely on
is distinguishable. In Youngstown Steel Door Co., the Board rejected
an employer’s contractually based waiver argument where it made “no
contemporaneous reference to a contract interpretation” at the time it
refused to bargain over a change. See 288 NLRB 949, 950 (1988)
(emphasis added).
10 My colleagues fault the management-rights clause for failing to
explicitly state that the Respondent’s right “to adopt and enforce rules
and regulations and policies and procedures” included the right to adopt
and enforce rules regarding discipline. Neither did the management-
rights clause in Provena, yet the Board found a clear and unmistakable
waiver of the right to bargain regarding a new disciplinary policy.
11 Archibald Cox, Reflections Upon Labor Arbitration, 72 Harv. L.
Rev. 1482, 1491–1492 (1959).
GRAYMONT PA, INC. 13
reserve to Graymont the right “to adopt and enforce rules
and regulations and policies and procedures” concerning
all matters—including, as relevant here, punctuality,
attendance, and discipline. And the Union’s bargaining
waiver is made even clearer by other provisions in the
management-rights clause reserving to Graymont the
right to “manage” and “direct” employees, “evaluate
performance,” and “set and establish standards of per-
formance.”
In sum, I believe the management-rights language in
the parties’ CBA plainly authorized Graymont to make
the changes at issue here without giving the Union notice
and an opportunity to bargain regarding those changes.
By agreeing to that language, the Union clearly and un-
mistakably waived its right to bargain over the changes.12
Alternatively, under a “contract coverage” standard, I
would find that the Union had already bargained and
agreed that Graymont had the right to make these chang-
es unilaterally. Accordingly, I would dismiss the com-
plaint allegation that the Respondent violated Section
8(a)(5) and (1) when it unilaterally implemented changes
to its work rules and its attendance and progressive dis-
cipline policies.13

12 See also Emery Industries, Inc., 268 NLRB 824, 824 (1984) (con-
tract language under which employer retained the right to discipline
employees for neglect of duty, coupled with union’s past acquiescence
in employer’s unilateral changes to its policies, constituted waiver of
the union’s right to bargain over the employer’s implementation of new
absenteeism policy); Continental Telephone Co., 274 NLRB 1452,
1452–1453 (1985) (clause granting employer the “right and power” to
“promulgate and from time to change the rules and regulations . . .
governing the conduct of employees,” coupled with union’s past acqui-
escence in similar unilateral changes, constituted waiver of the union’s
right to bargain over employer’s changes to attendance policy), enfd.
mem. sub nom. International Brotherhood of Electrical Workers, Local
543 v. NLRB, 786 F.2d 1174 (9th Cir. 1986).
My colleagues note that there is no evidence concerning the extent
to which the parties, during contract negotiations, “fully discussed and
consciously explored” the issues here. That is correct but immaterial.
The language of the contract itself demonstrates the Union’s clear and
unmistakable bargaining waiver, and that ends the analysis. See, e.g.,
Georgia Power Co., 325 NLRB 420, 420–421 (1998) (holding that
either contract language must clearly demonstrate waiver or “the em-
ployer must show that the issue was fully discussed and consciously
explored and that the union consciously yielded or clearly and unmis-
takably waived its interest in the matter”), enfd. mem. 176 F.3d 494
(11th Cir. 1999).
13 As noted above in the statement of facts, the Union requested to
“discuss” the changes Graymont had announced, and I believe that in
most circumstances, the word discuss would be intended to mean and
understood as meaning “bargain.” See Champaign Builders Supply
Co., 361 NLRB No. 153, slip op. at 1 fn. 1 (2014) (Member Miscimar-
ra, concurring); see also Armour & Co., 280 NLRB 824, 828 (1986).
Graymont agreed to meet and discuss the planned changes, but it stated
at the outset of the parties’ February 25 meeting that it would not bar-
gain. Moreover, in addition to alleging that Graymont violated Sec.
8(a)(5) by unilaterally implementing changes to its work rules and
attendance and discipline policies, the complaint separately alleged that
For similar reasons, I believe the Board should find
that Graymont did not violate the Act by failing to pro-
vide or unreasonably delaying in providing the Union
with requested information concerning its reasons for
implementing the disputed changes, or by unreasonably
delaying in informing the Union that it had no infor-
mation responsive to its request. When bargaining is not
required regarding a particular matter, either because the
matter is a nonmandatory bargaining subject or because
parties have waived any bargaining rights, the union has
no right under Section 8(a)(5) to request and receive in-
formation regarding the matter. See American Stores
Packing Co., 277 NLRB 1656, 1658–1659 (1986); Em-
ery Industries, 268 NLRB at 824–825; Otis Elevator Co.
(Otis II), 269 NLRB 891, 894 (1984), overruled on other
grounds Dubuque Packing Co., 303 NLRB 386, 390 fn.
8 (1991), enfd. sub. nom. UFCW Local 150-A v. NLRB, 1
F.3d 24 (D.C. Cir. 1993), cert. granted 511 U.S. 1016
(1994), cert. dismissed 511 U.S. 1138 (1994).
Accordingly, for the reasons set forth above, I respect-
fully dissent.
Dated, Washington, D.C. June 29, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

Graymont violated Sec. 8(a)(5) by failing and refusing to bargain with
the Union on request. Even if, as is the case here, an employer has the
right to act unilaterally to change a term or condition of employment
that constitutes a mandatory subject of bargaining, it remains obligated
to bargain upon request. See Katz, supra, 369 NLRB at 743 (“A refusal
to negotiate in fact as to any [mandatory] subject . . . about which the
union seeks to negotiate, violates section 8(a)(5) . . . .”); J. H. Allison &
Co., 70 NLRB 377, 378 (1946) (employer violates the Act by refusing
to engage in bargaining over a mandatory subject as to which the union
requests bargaining), enfd. 165 F.2d 766 (6th Cir. 1948), cert. denied
335 U.S. 814 (1948). However, the judge did not address the separate
“refusal to bargain on request” allegation, and no exceptions were filed
to the judge’s failure to do so. Accordingly, I do not reach or pass on
whether—separate from whether or not Graymont violated the Act
when it unilaterally implemented changes to its work rules and attend-
ance and progressive discipline policies—Graymont may have unlaw-
fully refused to bargain upon request.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with Local
Lodge D92, United Cement, Lime, Gypsum and Allied
Workers, a Division of International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers, AFL–CIO, by failing to disclose in a timely
manner that the company has no information responsive
to the Union’s request for information that is relevant
and necessary to the Union’s performance of its func-
tions as the bargaining representative of our unit employ-
ees.
WE WILL NOT change your terms and conditions of
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain with the Union as
the exclusive bargaining representative of employees in
the following unit:
All full-time and regular part-time production and
maintenance employees employed by Respondent at its
North Thomas Street, Bellefonte, Pennsylvania plant
and its Airport Road, Pleasant Gap, Pennsylvania fa-
cility, excluding salaried foremen, office employees,
guards, managers, and supervisors as defined in the
Act.
WE WILL rescind the changes to the work rules, absen-
teeism policy, and progressive discipline schedule that
were unilaterally implemented on March 1, 2014.
WE WILL remove from our files any reference to disci-
pline issued pursuant to the changes to our work rules,
absenteeism policy, and progressive discipline schedule
that the company unilaterally implemented on March 1,
2014, and WE WILL, within 3 days thereafter, notify af-
fected employees in writing that this has been done and
that the unlawful discipline will not be used against them
in any way.
WE WILL offer any unit employees who were dis-
charged pursuant to the changes to the work rules, absen-
teeism policy, or progressive discipline schedule full
reinstatement to their former positions, or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make whole any unit employees who were
disciplined under the changes to the work rules, absen-
teeism policy, and progressive discipline schedule that
the company unilaterally implemented March 1, 2014.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 6, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year.
GRAYMONT PA, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/06–CA–126251 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Dalia Belinkoff, Esq. (NLRB Region 6), for the General Coun-
sel.
Eugene A. Boyle Esq. (Neal, Gerber & Eisenberg LLP) of Chi-
cago, Illinois, for the Respondent.
DECISION
DAVID I. GOLDMAN, Administrative Law Judge. This case
involves an employer that changed its work rules during the
term of the labor agreement it had entered into with the union
representing its employees. The General Counsel of the Na-
tional Labor Relations Board (Board) alleges that the employer
had a duty to notify the union and provide an opportunity for
collective bargaining before making the changes and that it
violated the National Labor Relations Act (Act) by failing to do
so. The General Counsel further alleges that the employer vio-
lated the Act by, in response to a union information request,
delaying telling the union for 6 months that it possessed no
GRAYMONT PA, INC. 15
information requested by the union regarding the employer’s
decision to make these changes.
The employer disputes that it violated the Act in any manner.
It contends that the unilateral implementation dispute should be
deferred to arbitration pursuant to the parties’ contractual dis-
pute resolution mechanism. Alternatively, it contends that it
was not required to bargain before implementing the changes
for three independent reasons: because the changes were not
material, because the union waived the opportunity to bargain
when the employer announced its intent to make the changes,
and, finally, because the union waived the right to bargain
based on the management-rights clause in the parties’ collec-
tive-bargaining agreement. As discussed herein, I reject each
of the employer’s contentions and find that by implementing
the unilateral changes the employer violated the Act, as alleged.
As to the delay in providing information, I reject the em-
ployer’s “derivative” argument that it had no duty to provide
information about the changes because it had no duty to bargain
about the changes. However, as discussed herein, I am con-
strained to dismiss this allegation. The information the em-
ployer delayed providing was notification that it had no infor-
mation responsive to the request. Under the rule announced in
Raley’s Supermarkets, 349 NLRB 26 (2007), in order for a
violation to be found in such circumstances the complaint alle-
gation must specifically allege that the employer failed to pro-
vide or delayed in providing notification that it had no infor-
mation responsive to the union’s request. At least where the
General Counsel is aware of the situation prior to trial, a com-
plaint allegation, such as that here, of a general refusal to pro-
vide or delay in providing information, must be dismissed.
This technical and unsatisfying rule is one I must follow unless
and until it is overruled by the Board.
STATEMENT OF THE CASE
On April 9, 2014, the Local Lodge D92, United Cement,
Lime, Gypsum and Allied Workers, a Division of International
Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, AFL–CIO (Union) filed an unfair labor
practice charge alleging violations of the Act by Graymont PA,
Inc. (Graymont), docketed by Region 6 of the Board as Case
06–CA–126251. The Union filed an amended charge in the
case on June 20, 2014. Based on an investigation into the
charge, on June 27, 2014, the Board’s General Counsel, by the
Acting Regional Director for Region 6 of the Board, issued a
complaint alleging that Graymont violated the Act. Graymont
filed an answer, and then an amended answer denying all al-
leged violations of the Act.
A trial was conducted in this matter on September 16, 2014,
in State College, Pennsylvania.1
Counsel for the General Counsel and counsel for Graymont
filed posttrial briefs in support of their positions by October 21,

1 At the close of the hearing counsel for the General Counsel moved
to amend the amended charge filed June 20, 2014, to state as the basis
of the charge modifications in policy since on or about March 1, 2014,
instead of, as stated in the amended charge (GC Exh. 1(c)), since on or
about March 31, 2014. Counsel for the Respondent stated that he did
not object (Tr. 131). I indicated a willingness to grant the amendment
(Tr. 130) but never, in fact, did. I grant it now.
2014.2 On the entire record, I make the following findings,
conclusions of law, and recommendations.
JURISDICTION
Graymont is and at all material times has been a corporation
with offices and facilities in Pleasant Gap and Bellefonte,
Pennsylvania, where it is engaged in the mining and production
of lime and lime products. In conducting its operations during
the 12-month period ending March 31, 2014, Graymont sold
and shipped from these Pennsylvania facilities goods valued in
excess of $50,000 directly to points outside the Commonwealth
of Pennsylvania. Graymont is and at all material times has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The Union is and at all
material times has been a labor organization within the meaning
of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
Graymont mines limestone and produces lime products for
industrial and environmental application at approximately 19
facilities across the United States and Canada. It operates two
facilities—one in Pleasant Gap, Pennsylvania, and the other in
Bellefonte, Pennsylvania—at which approximately 150 em-
ployees work under a collective-bargaining agreement between
Graymont and the Union. The Union has represented employ-
ees in this bargaining unit for more than 20 years (the current
plant manager testified that he had been told that the Union had
represented employees at these facilities since the 1960s).
The current collective-bargaining agreement was effective
June 1, 2014, and will continue in effect until at least May 31,
2017. The previous agreement was in effect from June 1, 2011,
to May 31, 2014 (the 2011 Agreement). Before that there were
successive labor agreements in 2001 and 2006.3
The management-rights clause of the labor agreements
The 2001 collective-bargaining agreement contained a short
management-rights clause (Art. 1 para. 8) that stated:
All of the usual and customary rights of management not spe-
cifically abridged or modified by this Agreement shall remain
in effect.
In the negotiations for the 2006 Agreement, Graymont pro-

2 On October 21, 2014, with the submission of her brief, counsel for
the General Counsel moved to amend the complaint—essentially to
change the allegation that the Respondent refused to provide the Union
with requested information to an allegation that the Respondent unrea-
sonably delayed providing the same requested information. The Re-
spondent did not file an opposition to the motion to amend. I grant the
amendment.
3 The 2011 labor agreement contains the following provision, recog-
nizing the Union as the bargaining agent for the following unit of em-
ployees:
Employees in the Bellefonte Plant located on North Thomas Street
and the Pleasant Gap plant located on Airport Road . . . The term
“employees” as used in this Agreement will not include salaried fore-
man and office employees.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posed a longer management-rights clause. The resulting 2006
Agreement contained the following management-rights clause
at Art.1 par. 8 of the contract:
The Employer retains the sole and exclusive rights to manage;
direct its employees; to hire, to assign work, to transfer, to
promote, to demote, to layoff, to recall, to evaluate perfor-
mance, to determine qualifications, to discipline and discharge
for just cause, to adopt and enforce rules and regulations and
policies and procedures; to set and establish standards of per-
formance for employees; to determine the number of employ-
ees, their duties and the hours and location of their work; to
establish, change, or abolish positions; to create and imple-
ment training and development programs for employees; to
implement drug and alcohol testing rules and procedures that
are consistent with applicable law; to create any new process-
es; to make technological changes; to determine shifts; to in-
stall or remove any equipment. The rights expressly reserved
by this Article are merely illustrations of and are not inclusive
of all of the rights retained by the Employer. The rights ex-
pressly reserved by this Article are subject to the terms and
conditions of the Agreement, and to the extent there is a con-
flict the terms and conditions of this Agreement shall prevail.
All of the usual and customary rights of management not spe-
cifically abridged or modified by this Agreement shall remain
exclusively vested in the Company.
Graymont’s office coordinator, Shawn Miller, who handles
human resources’ duties and was involved in negotiations for
the 2006 Agreement, testified that there was significant discus-
sion on the clause in 2006 negotiations. During her testimony
she reviewed (and the Respondent offered into evidence) notes
of an employer-maintained bargaining file from 2006, which
corroborated (and informed) her testimony. Miller testified that
in the 2006 negotiations the Union raised concerns about lan-
guage in the Employer’s original proposal regarding the use of
outside contractors and about the Employer’s ability to change
shifts from 8 to 12 hours and back. According to Miller these
items were removed by the Employer through the negotiating
process. Based on her demeanor and the corroborating force of
the notes, I credit Miller’s testimony on this score.4 Notably,
neither the Union’s President Dan Ripka, Miller, nor any other
witness or evidence suggests that discipline or absenteeism
and/or attendance were discussed in reference or regard to the
management-rights clause.5
The foregoing management-rights clause, which was includ-
ed in the 2006 Agreement, was retained unchanged in the suc-
cessor 2011 Agreement, and the 2014 Agreement.

4 The Union’s President, Dan Ripka, testified that in 2006 the Union
accepted Graymont’s proposal as proposed, although he also testified
that he did not remember whether the Union made proposals with re-
gard to this clause or what discussion the parties had at the table. Ripka
was generally a good witness, and, I believe, an honest one, but in this
instance he was uncertain, did not have the same sharpness of memory
as Miller on this issue, and had no notes to review. Accordingly, I
credit Miller as to this issue.
5 Throughout this decision I refer to attendance and absenteeism pol-
icy interchangeably, which is in accordance with the parties’ under-
standing. See Tr. 7.
In June 2014, during negotiations for the 2014 Agreement,
the Union proposed changes to the language of the manage-
ment-rights clause that included placing the work rules in the
labor agreement, and other proposed changes. None of these
changes were adopted and the 2014 Agreement, which was
effective June 1, 2014, retained the same management-rights
provision as was in the 2006 and 2011 Agreements.
The Work Rules and Absenteeism Policy
Until the change in work rules on March 1, 2014 (during the
term of the 2011 Agreement), that is the subject of the instant
dispute, Graymont maintained the same work rules for over 20
years. The pre-March 1, 2014 work rules set forth three catego-
ries (Group A, B, and C) of infractions with penalties estab-
lished for each category. Penalties for successive violations of
Group A (which included the statement that “Continued tardi-
ness will not be permitted”) progressed from a first time warn-
ing to discharge upon the fourth violation within a year. Group
B violations begin with a 2-day suspension for the first viola-
tion with discharge the prescribed penalty for a third violation
within a year. The more serious infractions listed in Group C
prescribed discharge for a first offense. For purposes of impos-
ing progressive discipline, violations of different classifications
(for instance, single violation of Group A and a single violation
of Group B) were not combined.
The work rules also contained a Policy on Absenteeism that
stated:
POLICY ON ABSENTEEISM
When an[ ] employee is habitually absent from his/her
job, the Company will notify the employee, in writing,
with a copy to the Union that the employee’s attendance is
unsatisfactory and unacceptable.
If attendance does not immediately improve to the full
satisfaction of the Company, a strongly worded letter will
be sent to the employee, with a copy to the Union, telling
the employee he is on probation and if attendance does not
improve immediately he is subject to discharge. At some
point during this time period a meeting will be held be-
tween the affected employee, Union committeeman and
Company Representative to impress upon the employee
the seriousness of the situation and to warn the employee
that he/she will be discharged the first time he/she is ab-
sent without good and sufficient reason within one year, or
for continued habitual absence for any reason.
Ripka testified that as early as 2003, the Union requested that
a new absenteeism policy be created that would provide more
certainty and consistency about attendance expectations. For
her part, Miller recalled that the matter was raised at the Em-
ployer’s initiative, but in any event, she agreed that when
Graymont talked to the Union it agreed “that we needed to do
something about it.”
The issue was discussed in “policy meetings”—meetings be-
tween the Union and Graymont that could be requested by ei-
ther party to discuss ongoing issues or concerns. Typically,
four to six people were present at the meetings for each side.
After each policy meeting, Graymont’s Miller would type up
“minutes” of the meeting, which, more accurately, were notes
GRAYMONT PA, INC. 17
summarizing the discussions, and distribute copies to all meet-
ing participants from both management and the union side.
A new absenteeism policy was discussed in a policy meeting
on May 29, 2003, but no change was made to the absentee poli-
cy in 2003. The matter was raised again in 2004, and it was
discussed by the parties in October and December 2004, and in
January 2005. The Employer advanced new absenteeism pro-
posals during these meetings. According to Miller, “[W]e
wanted to put a little more teeth into the absenteeism policy.”
On February 14, 2005, a new absenteeism policy was im-
plemented. It stated:
The Company and the Union Committee have agreed to the
following terms:
1. Six (6) incidents within a rolling year will warrant:
A. A letter from Shawn, which will include the date of the
last incident
B. Management and the union will meet with the employee
which will be considered a Verbal warning and placed into
the employee’s file
2. Seventh (7th) incident within a rolling year will warrant:
A. A Written Warning from Management which will be
placed into the employee’s file
3. Eighth (8th incident within a rolling year will warrant:
A. Two days off without pay which will be noted in the
employee’s file
4. Ninth (91h) incident within a rolling year will warrant:
A. One week off without pay which will be noted in the
employee’s file, plus
B. Last Chance Notice, which will cover the next 24
months
Note: A doctor’s excuse will be considered an excused ab-
sence.
The foregoing absenteeism policy, and work rules generally,
remained in effect from 2005 until March 1, 2014.
At one point in late 2006, Graymont approached the Union
with a proposal to change the work rules and discipline to make
them much stricter. The Union protested in letters sent to
Graymont that “these are mandatory subjects of bargaining”
and demanded that Graymont “suspend any plan[n]ed imple-
mentation of these new rules until after the union and the com-
pany ha[ve] had the opportunity to bargain over them,” con-
tending that “labor law forbids any implementation of a new
policy until the bargaining process is complete.” Ripka dis-
cussed the matter with then Plant Superintendent Rich Fenush,
who explained some problems the Employer was having with
employee conduct. Ripka suggested that the Employer’s issues
could be addressed and resolved by application of the current
work rules. The new work rules were not implemented.
The February 14, 2014 announcement of intent to change
the work rules and absenteeism policy
In February 2014, during the term of the 2011 Agreement,
Miller informed the Union that Graymont had scheduled a poli-
cy meeting for February 14.
At the meeting, Plant Manager Martin Turecky began by
discussing safety issues and then, according to Union President
Ripka, “proceeded to tell us that they were changing the work
rules,” effective March 1. Miller passed out copies of new
work rules, which included new rules on absenteeism and tar-
diness. This was the first mention to the Union of Graymont’s
interest in and intent to change the work rules.
The new work rules distributed at this meeting incorporated
policies on absenteeism and tardiness at the conclusion of the
work rules and read as follows:
Work Rules
The following is a set of work rules for the employees of
Graymont (PA) Inc. This set of work rules is in no way con-
clusive. For example, the Code of Business Conduct and Eth-
ics applies as well. In cases where infractions against the
Company or its employees are not specifically listed, common
sense will apply.
Group A
1. Carelessness or recklessness, including horseplay, is not
permitted.
2. When an employee is absent, for any reason, he must call
the report off phone number assigned by his supervisor, prior
to the start of his shift, stating the reason why he must be ab-
sent and, if possible, when he will return.
3. Every accident must be reported to your supervisor before
the end of the shift upon which the accident occurs.
4. Employees must limit all lunch periods to the length of
time specified.
5. No employee is permitted to leave the Company premises
during working hours without permission,
6. Poor work habits will not be permitted.
7. Failure to promote efficient operation of the plant or
equipment will not be permitted.
8. Infractions of Federal, state and general or specific depart-
mental safety rules will not be permitted.
9. Hard hats, safety glasses and safety shoes must be worn in
the plant area at all times.
10. Failure to follow instructions is not permitted.
11. Failure to cooperate with inspection or attempt to prevent
inspection of tool boxes, lockers, parcels or other containers
on or within Company property.
12. Unauthorized use of Company phone will not be permit-
ted.
The discipline progression will normally only be reset after an
employee works twelve (12) consecutive months free of any
work rule violations. The following are the penalties for in-
fractions of Group A rules:
First – Written warning
Second – One (1) day off
Third – Two (2) days off
Fourth – Discharge
NOTE: Group A and Group B violations will be combined in
discipline progression. Please reference the chart in this doc-
ument.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Group B
1. Verbal abuse of customers, truck drivers, suppliers, or any
other outsiders who are conducting authorized business on
Company property will not be permitted.
2. Carelessness, recklessness or failure to follow instructions
which results in injuries to persons or damage to equipment or
property will not be permitted.
3. Punching of time clock for any other person is not permit-
ted.
4. Verbal abuse or harassment of other employees or any in-
terference with Company operations will not be permitted.
5.Sleeping on the job is not permitted.
6. Failure to follow proper lock-out/tag-out procedures.
The discipline progression will normally only be reset after an
employee works twelve (12) consecutive months free of any
work rule violations. The following are the penalties for in-
fractions of Group B rules:
First – Two (2) days off
Second – Four (4) days off
Third – Discharge
NOTE: Group A and Group B violations will be combined in
discipline progression. Please reference the chart in this doc-
ument.
Group C
1. Deliberate disobedience of supervisor’s instructions, or any
form of insubordination will not be permitted.
2. Willful falsification on any Company record will not be
permitted.
3. Intoxication on the job and/or use of or possession of alco-
holic beverages or illegal drug at work is prohibited. Posses-
sion includes having them in your vehicle on Company prop-
erty.
4. Fighting, disorderly conduct, or any form of physical vio-
lence on Company premises is not permitted.
5. Stealing or deliberate damage to Company or employee’s
property is not permitted, and shall be prosecuted as pre-
scribed by law.
6. An employee must not absent himself/herself from work
for more than three (3) days without proper notice.
7. Possession of firearms, explosives or other weapons on
Company property is prohibited.
8. Threats or threatening behavior against Company property,
or anyone on Company property, or any Company employee,
whether or not on Company property, is prohibited. All
threats will be assumed to have been made with the intent to
carry them out.
The following are the penalties for infractions of Group C
rules:
DISCHARGE
Policy on Absenteeism
When, all personal days are used, each employee will be al-
lowed one (1) unexcused absence. After that one (1) unex-
cused absence has been used, the employee will be considered
in violation of Group A–6 (Poor work habits will not be per-
mitted) with each proceeding unexcused absence.
NOTE: Supervisors will define the vacation scheduling policy
for each department. For example, the supervisors will define
how many employees are permitted to be on vacation for any
given shift and/or day to ensure efficient operation of their
First Second Third Fourth
A A A A Written Warning One Day Off Two Days Off Discharge
AAAB Written Warning One Day Off Two Days Off Discharge
AABA Written Warning One Day Off Four Days Off Discharge
AABB Written Warning One Day Off Four Days Off Discharge
ABAA Written Warning Two Days Off Four Days Off Discharge
ABAB Written Warning Two Days Off Four Days Off Discharge
ABBA Written Warning Two Days Off Four Days Off Discharge
ABBB Written Warning Two Days Off Four Days Off Discharge
BAAA Two Days Off Two Days Off Four Days Off Discharge
BAAB Two Days Off Two Days Off Four Days Off Discharge
BABA Two Days Off Two Days Off Four Days Off Discharge
BABB Two Days Off Two Days Off Four Days Off Discharge
BBAA Two Days Off Four Days Off Four Days Off Discharge
BBAB Two Days Off Four Days Off Four Days Off Discharge
GRAYMONT PA, INC. 19
department.
Policy on Tardiness
If you are tardy more than three (3) times in any twelve (12)
month period, each proceeding occurrence will be considered
a violation of Group A–6 ( (Poor work habits will not be per-
mitted).
In his testimony at the hearing, Turecky referred to this as a
“proposal” and contended that much of it was “clarification” of
the old policy. However, he recognized that the Employer was
changing the absenteeism policy, by any definition.
The record does not contain a comprehensive summary of
the changes, but some of the major ones include:
including absenteeism within the definition of violations cov-
ered by Group A;
shortening the number of unexcused absences (after use of
personal days) before beginning progressive discipline from
six to one;
the quantifying of the number of instances of tardiness neces-
sary to begin progressive discipline (a change from a penaliz-
ing of “continued tardiness”);
the change from violations of more than one year not counting
towards progressive discipline (i.e., old violations automati-
cally “fell off” after one year), to a system where older viola-
tions remained on the employees’ progressive discipline rec-
ord unless and until an employee worked one year without
any violations at all;
the “pyramiding,” i.e., combining of Group A and B viola-
tions for purposes of applying progressive discipline steps.
According to Graymont’s notes of the meeting, Turecky
“highlighted some of the points which were changed, such as
the rolling 12 months, combining of A’s and B’s, Policy on
Absenteeism.” Turecky asked the Union if it had any com-
ments. The parties took a break while the Union caucused.
When the Union returned, its representatives said “[W]e had no
comments at this time about the changes.” Turecky said that
the changes were going to be implemented and Ripka told him
that the Union would “file a grievance on the implementation.”
Turecky said that the Union “couldn’t file a grievance because
[the work rules and absenteeism policy] were not in the con-
tract anywhere.” The Union responded that “we were filing a
grievance at that time anyway.” The meeting ended.
Later that day, Ripka and fellow union negotiating commit-
tee member Bill McElwain approached Turecky at his office
and told him “[T]hey would like to discuss the rules and they
will withdraw the grievance.” Ripka testified that he told Tu-
recky, “[W]e wanted to talk about the work rules.” Turecky
“said that would be fine and we would have a meeting.”
The Union’s information request; the Employer’s response,
and the February 25 meeting
By letter from the union’s recording secretary to Turecky,
dated February 17, the Union presented Graymont with the
following request for information:
Dear Martin,
Enclosed is a request from the President of Local D92, and
Chairman Ralph Houser.
This is a formal information request for any memos, data of
any kind or any other Information or Materials which the
company relied upon for making the decision to change the
work rules, discipline policy, and why changes are being
made to the absenteeism policy.
Please include any minutes of policy meeting[s] over the past
five years in which these topics were discussed, and any deci-
sions, or agreement that were arrived at, between the compa-
ny, and the bargaining unit for Local D92 employees.
Your attention to this matter, as soon as you can would be
greatly appreciated. Please forward all copies of this infor-
mation to President Dan Ripka, and Ralph Houser, Commit-
tees Chairman.
The parties met February 25. At this meeting, Turecky be-
gan by handing the Union a written response to the Union’s
information request. The response, in the form of a letter from
Turecky to Union Committee Chairman Ralph Houser, stated:
This is in response to your February 19, 2014, information re-
quest regarding the revised rules and policies.
Under our collective-bargaining agreement, the Company re-
tains the sole and exclusive right to manage, which expressly
includes the right “. . . to adopt and enforce rules and regula-
tions and policies and procedures. . . [.”] Therefore, the Com-
pany has no obligation to bargain over any of the changes to
which your request refers. Since there is no obligation to bar-
gain over the decision to adopt the policies to which you refer,
there is, likewise, no obligation to furnish any information re-
garding such decision. In any event, there is no obligation to
provide any information regarding internal management dis-
cussions leading to such a decision.
Regarding your request for minutes of policy meetings, the
Union already has copies of all such minutes. In addition, if
the Union contends that there is any agreement between the
Company and the Union that prevents or limits the Compa-
ny’s right to adopt the changes in policies to which you refer,
the Company hereby formally requests that you furnish us
with a copy of any such agreement.
There was discussion about the Union’s information request,
with Turecky essentially reiterating what was stated in the Em-
ployer’s letter. According to Graymont’s notes of the meeting,
although Turecky told the Union that Graymont “had no obliga-
tion to bargain over any of the changes made to the work rules”
it was “willing to talk to the union and listen to their concerns
about any changes.” Union Representative Ralph Houser testi-
fied that Turecky “said he received the . . . request of infor-
mation from the Union regarding the work rules, and he said
that referring to the management rights that he didn’t have to
give us any information and he had no obligation to bargain
over it.”
Turecky asked the Union for comments on the changes. The
union representatives objected to the new policies on a number
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of grounds: generally, the Union was concerned about the low-
er number of absences that would lead to the commencement of
a disciplinary progression under the new rules. The Union also
complained about the absenteeism policy being added into the
work rules as a Group A violation—the Union wanted the ab-
senteeism policy kept separate. The Union raised an issue with
the fact that the under the new policy employees would have to
use personal holidays as part of the new absenteeism policy,
and that three times tardy was now a violation of Group A
rules. The Union objected to Group A and B violations being
combined for purposes of progressive discipline (i.e., “pyra-
mided”). The Union raised concern with the change from the
current rules, under which older discipline “fell off” after a
calendar year, to the new rules in which older discipline fell off
only after there were no violations of any kind for a 1-year
period. The Union objected to the inclusion of the word “nor-
mally” as a modifier to the policy’s statement that discipline
would be “reset” after 12 months of no violations. The Union
objected to the work rule for insubordination, as it was con-
cerned that an employee refusing to undertake a task that he/she
deemed unsafe would be found insubordinate. Finally, the
Union wanted clarification on what the rule meant by its prohi-
bition of “unauthorized” use of the company telephone.
More generally, the Union told the Graymont representatives
that it wanted to keep the current policy. However, the Union
said it would entertain shortening the number of days of ab-
sence permitted before discipline was initiated.
In response, and after a caucus, Graymont agreed to remove
the word “normally” from the rule’s statement that progressive
discipline reset after 12 months of no violations. In response to
the Union’s concern about an employee being charged with
insubordination if the refusal to obey involved a safety issue,
Graymont pledged not to apply the rule in that manner. This
oral pledge was satisfactory to the Union. Finally, Graymont
removed from the rules the prohibition on unauthorized use of
the company telephone. Turecky told the Union that Graymont
could not agree to some of the other changes sought by the
Union.
The parties dispute the plan going forward at the end of the
meeting. Union President Ripka and testified that “Turecky
said we would have another meeting before the implementa-
tion.” Houser echoed this, somewhat less definitively, testify-
ing that “Turecky told us that we would probably have another
meeting for the work rules before March 1st.” Turecky testi-
fied that he believed he told the Union that “we’ll plan to go
ahead with the implementation as of March 1st.” Turecky testi-
fied that he did not recall saying that there would be another
meeting before March 1.6
On February 27, by email, the Union received the final ver-
sion of the rules to be implemented. The only changes from the
original revisions provided to the Union on February 14, were
the removal of the rule prohibiting unauthorized use of the
phones, and the removal of the word “normally” from the ex-
planation following the listing of Group A and Group B viola-
tions, which now stated: “The discipline progression will be

6 I do not believe it necessary to resolve this dispute. It makes no
difference to the outcome.
reset after an employee works (12) consecutive months free of
any work rule violations.” (In the original version it stated that
“The progression will normally only be reset after an employee
works (12) consecutive months free of any work rule viola-
tions.”)
The March 1, 2014 implementation, and the August 2014
explanation by the Employer that it had no information
responsive to the Union’s information request
There was no follow-up meeting. The Employer did not ar-
range one. The Union did not request one. The new revised
rules were implemented March 1, 2014.
In August 2014, a Graymont representative, filling in for Tu-
recky, told Ripka and Houser that with regard to the Union’s
February information request, “[T]here wasn’t any written in-
formation that we asked for, that they just . . . met and changed
the work rules and absenteeism policy because they thought
that there was a better way to run the business.”
On or about August 26, 2014, the Respondent filed an
amended answer to the complaint in this case. The only sub-
stantive difference in the amended answer was the Respond-
ent’s response to allegations relating to the refusal to provide
information. It reiterated its answer but added “affirmatively,
that, other than the meeting minutes already in the Union’s
possession, Respondent has no information responsive to the
Union’s request.” (GC Exh. 1(k) at ¶12.) This affirmation that
“the Respondent has no information responsive to the Union’s
information request” was reiterated in a newly added affirma-
tive defense set forth in the list of affirmative defenses append-
ed to the Respondent’s amended answer (See GC Exh. 1(k) at
the fourth affirmative defense).
At the hearing, Turecky testified that Graymont did not rely
on any data or documents in deciding to make the work rule
and absenteeism changes. According to Turecky, the decision
to make the changes emerged from internal discussions Gray-
mont management had beginning in November or December
2013. According to Turecky, the outlook for 2014 was that the
plant would be operating at full capacity and that anticipation,
plus goals for a recently implemented preventative maintenance
management program, led management to the “common sense”
conclusion that with the “lenient” absenteeism policy in place
Graymont could not achieve its goals.
Analysis
The General Counsel alleges that the Respondent violated
Section 8(a)(5) of the Act by unilaterally implementing changes
to its disciplinary policy for work rules and to its absenteeism
policy without affording the Union an opportunity to collective-
ly bargain with the Respondent.7
The General Counsel further alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unreasonably delay-
ing furnishing the Union with information requested February

7 The General Counsel also alleges a derivative violation of Sec.
8(a)(1) of the Act. It is settled that an employer’s violation of Sec.
8(a)(5) of the Act is also a derivative violation of Sec. 8(a)(1) of the
Act. Tennessee Coach Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d
907 (6th Cir. 1956). See ABF Freight System, 325 NLRB 546 fn. 3
(1998).
GRAYMONT PA, INC. 21
17, 2014, regarding the memos, data, or other information or
materials that the Respondent relied upon in making the deci-
sion to change the disciplinary and absenteeism policies. Spe-
cifically, the Respondent waited until August 2014, to inform
the Union that it had no information responsive to the Union’s
request (other than information previously provided in the
course of the parties’ meetings over the years). The General
Counsel alleges that this delay was unlawful.
Below, I consider, in turn, each of these allegations. How-
ever, before analyzing the General Counsel’s claims, I consider
the Respondent’s defense that, in accordance with Collyer Insu-
lated Wire, 192 NLRB 837 (1971), the Board should defer
resolution of the alleged unilateral change portion of this dis-
pute to the parties’ contractual grievance-arbitration procedure.
I. Deferral
The Respondent contends that the Board should defer the
unilateral change portion of this case—but not the information-
request portion of this case—to the grievance-arbitration proce-
dures in the parties’ labor agreement. (R. Br. at 29.)
In Collyer Insulated Wire, supra, the Board set forth the
standard for determining the circumstances in which an unfair
labor practice dispute should be resolved by the contractual
dispute-resolution mechanism contained in a union-employer
collective-bargaining agreement. The Board held that in certain
circumstances, where a “dispute in its entirety arises from the
contract between the parties, and from the parties’ relationship
under the contract, it ought to be resolved in the manner which
that contract prescribes.” Collyer, 197 NLRB at 839.
The instant dispute involves allegations that the Employer
violated the Act by unilaterally changing terms and conditions
without bargaining, and allegations that it unlawfully delayed
responding to the Union’s information request about the chang-
es. Without regard to whether the instant dispute would be
suitable for deferral if the issue concerned only the unilateral
changes to the discipline and absenteeism policy, “[t]he Board
has long held that deferral is inappropriate in 8(a)(5) infor-
mation request cases.” Chapin Hill at Red Bank, 360 NLRB
No. 27, slip op. at 1 fn. 2 (2014) (and cases cited therein).
This ends the Respondent’s deferral defense, as “established
Board policy also disfavors bifurcation of proceedings that
entail related contractual and statutory questions, in view of the
inefficiency and overlap that may occur from the consideration
of certain issues by an arbitrator and others by the Board.”
Avery Dennison, 330 NLRB 389, 390 (1999).
While the Respondent (R. Br. at 29) “recognizes that the
Board generally does not defer information request cases to
arbitration,” it points out, citing Clarkson Industries, 312
NLRB 349, 353 (1993), that there are instances where the
Board has granted partial deferral—deferring to one issue in a
case while retaining for resolution another. But this exception
to the Board’s “non-bifurcation” policy requires, as the Board
found in Clarkson Industries, that the “deferrable issues are not
in any way factually or legally interrelated with the [non-
deferrable] issues.” Id.
Here, that is manifestly not the case. Indeed, the Respond-
ent’s chief defense to the information issue allegation is its
claim—made to the Union on February 25, 2014, and in its
brief (R. Br. at 24)—that there was no duty to provide the Un-
ion information about its decisionmaking with regard to the
absenteeism and disciplinary policy because there was no duty
to bargain over these decisions. In other words, its defense to
the information-request allegations is “derivative” of its defense
to the unilateral-change allegations. As the Respondent puts it
(R. Br. at 24):
An employer’s duty to provide information is derivative of its
duty to bargain under Sections 8(a)(5) and 8(d) of the Act.
Where a Union has waived its right to bargain over a particu-
lar topic or change to a term or condition of employment, it no
longer is entitled to receive information for this purpose. . . .
The Union unequivocally waived its right to bargain over
those particular subjects by agreeing to the expanded man-
agement-rights clause in 2006. As such, the Union had no
right to information for that purpose. (Citations omitted.)
Thus, were the Board to defer the unilateral change issue but
resolve the information issue, it moots the prospect that the
arbitrator and the Board would each be considering an overlap-
ping and related question. The Board might have to decide
whether the management-rights clause constituted a waiver of
the Respondent’s duty to bargain over the decision to change
the absenteeism and discipline policy, and thus, as the Re-
spondent claimed, freed it from its “derivative” duty to provide
information to the Union on the subject. The arbitrator would
be deciding whether the management-rights clause created a
contractual right by the Respondent to make the change in ab-
senteeism and discipline without bargaining. The risk of incon-
sistent results and analysis would be pointed were the Board to
defer the unilateral change issue.
On these grounds, I reject the Respondent’s contention that
the Board should defer the unilateral change allegations to the
parties’ contractual dispute resolution mechanism.8

8 I note that the Board’s recent decision in Babcock & Wilcox Con-
struction, Co., 361 NLRB No. 132, (2014), modified postarbitral defer-
ral standards and, to some extent, prearbitral deferral standards. Slip
op. at 12–13. However, by its terms, the standards articulated in Bab-
cock & Wilcox do not apply to cases, such as this one, pending at the
time of the issuance of the decision in Babcock & Wilcox. Slip op. at
13–14. In any event, nothing in Babcock & Wilcox, were it applied to
the instant case, would render deferral appropriate.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
With regard to the Respondent’s deferral argument, I add
one final observation. At trial the Respondent introduced evi-
dence showing that a December 2011 unilateral implementation
on maximum overtime hours, objected to by the Union, was
upheld by an arbitrator who relied upon the management-rights
clause as privileging the Employer to make this change. Wit-
ness testimony established that the Regional Office of the
Board deferred to the arbitrator’s decision, and on appeal the
General Counsel’s office upheld this action. (Tr. 122.) I note
that on brief, while the Respondent recites the facts regarding
the overtime arbitration (R. Br. at 13–14), the matter forms no
part of its argument in support of deferral (or its right to unilat-
erally implement).9
II. The Unilateral Changes
The General Counsel alleges that the Respondent had a duty
to notify and provide the Union with an opportunity to collec-
tively bargain before implementing changes to the work rule
disciplinary policies and absenteeism policy.
An employer violates Section 8(a)(5) of the Act if it makes a
material unilateral change during the course of a collective-
bargaining relationship on matters that are a mandatory subject
of bargaining. “[F]or it is a circumvention of the duty to negoti-
ate which frustrates the objectives of § 8(a)(5) much as does a
flat refusal.” NLRB v. Katz, 369 U.S. 736, 743 (1962). “Uni-
lateral action by an employer without prior discussion with the
union does amount to a refusal to negotiate about the affected
conditions of employment under negotiation, and must of ne-
cessity obstruct bargaining, contrary to the congressional poli-
cy.” Katz, supra at 747. “‘The vice involved in [a unilateral
change] is that the employer has changed the existing condi-
tions of employment. It is this change which is prohibited and
which forms the basis of the unfair labor practice charge.’”
Daily News of Los Angeles, 315 NLRB 1236, 1237 (1994)
(bracketing added) (quoting NLRB v. Dothan Eagle, Inc., 434
F.2d 93, 98 (5th Cir. 1970) (court’s emphasis)), enfd. 73 F.3d
406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997).
Here, there is no dispute, nor could there be, over the Gen-
eral Counsel’s allegation that employee absenteeism and disci-

9 At the hearing, I refused to receive the Respondent’s proffer of
documentary evidence regarding the deferral decision, as I did not and
do not believe the rejected documentary evidence (or even the admitted
testimony) relevant to the Respondent’s request for deferral in this case.
The reasons for my view include: (1) the overtime dispute raised a
question of postarbitration deferral, here we have an issue of prearbitra-
tion deferral inextricably linked with a clearly nondeferrable issue; and
(2) the General Counsel’s decisions to not issue complaints are acts of
prosecutorial discretion that carry no precedential weight for the Board,
and, indeed, are not even binding on the General Counsel in future
cases. Steelworkers (Cequent Towing Prods.), 357 NLRB 516, 518
(2011) (rejecting respondent’s assertion that it was justified in main-
taining a challenged rule “because the requirement was consistent with
the . . . guidelines issued by the NLRB General Counsel prior to his
issuance of the complaint in this case. . . . [T]he General Counsel’s
earlier exercise of prosecutorial discretion in declining to issue com-
plaint does not insulate the requirement from subsequent Board scruti-
ny upon the issuance of complaint”); Machinists, Local Lodge 2777 (L-
3 Communications), 355 NLRB 1062, 1066 (2010) (rejecting respond-
ent’s reliance on the General Counsel’s “exercise of prosecutorial
discretion” in not previously issuing complaint).
pline are mandatory subjects of bargaining.10
In addition, the Respondent does not assert that its pre-
implementation meetings and discussion with the Union satisfy
its statutory duty to collectively bargain. The Respondent does
not advance any such argument, and it would fail if it did, as its
meetings with the Union over this issue were at all times con-
ducted on the basis of the Respondent’s position that it “had no
obligation to bargain over any of the changes,” and with a pre-
announced and unilaterally determined intention to change the
work rules March 1, notwithstanding any discussions. This is
antithetical to the most basic precepts of the statutory duty to
bargain to impasse before unilaterally implementing a change
in a mandatory subject of bargaining. San Diego Cabinets, 183
NLRB 1014, 1020 (1970) (rejecting employer’s contention that
because it informed union of its willingness to meet and discuss
matters it had not refused to bargain, where employer consist-
ently maintained that it had no duty to bargain: “its professed
willingness to discuss this unlawful position does not excuse
the violation”), enfd. 453 F.2d 215 (9th Cir. 1971).
The Respondent’s defense to the unilateral change allega-
tions is three-fold. First, in a partial argument, the Respondent
contends that the General Counsel has failed to prove that the
changes—other than changes to the absenteeism/attendance
policy, as to which the Respondent does not advance this argu-
ment—were “material, substantial and significant,” and thus,
not changes rising to significance requiring bargaining. Sec-
ond, the Respondent argues that the Union waived any right to
bargain over the changes to the absenteeism and disciplinary
policies by not demanding bargaining when it learned of the
Respondent’s intention to make the changes in the work rules.
Finally, the Respondent argues that the Union waived the right
to bargain in a different way: the Respondent contends that the
management-rights clause in the parties’ collective-bargaining
agreement privileges the Respondent’s right to make the unilat-
eral changes without the necessity of bargaining. I consider
each argument below.
a. The materiality of the unilateral changes to the work rules
and disciplinary rules
As the Respondent correctly points out (R. Br. at 21), and the
General Counsel agrees (GC Br. at 14), for a unilateral change
in mandatory subject of bargaining to be unlawful it must be a
“material, substantial and significant change.” Berkshire Nurs-
ing Home, LLC, 345 NLRB 220, 221 (2005) (finding that a
“difference between a 1-minute walk and a 3 to 5-minute walk
[for employees] from the parking lot to the entrance is . . . a
relatively minor inconvenience and not “sufficiently significant

10 Peerless Publications, 283 NLRB 334, 335 (1987) (“rules or
codes of conduct governing employee behavior with constituent penalty
provisions for breach necessarily fall well within the definitional
boundaries of “terms and conditions” of employment. . . . [W]e begin
with the principle that labor law presumes that a matter which affects
the terms and conditions of employment will be a subject of mandatory
bargaining”) (internal quotes omitted); Ciba-Geigy Pharmaceuticals,
264 NLRB 1013, 1016 (1982) (attendance rules are “unquestionably
mandatory subjects of bargaining”), enf’d. 722 F.2d 1120 (3d Cir.
1983); Dorsey Trailers, 327 NLRB 835, 853 fn. 26 (1999) (“An em-
ployer’s attendance policy has long been held to be a mandatory subject
of bargaining”), enfd. in relevant part, 233 F.3d 831 (4th Cir. 2000).
GRAYMONT PA, INC. 23
difference to warrant imposing a bargaining obligation on the
Respondent before making this change”).
As to the changes implemented to the absentee-
ism/attendance policy, the Respondent stipulated (Tr. 6–7) and
agrees on brief (R. Br. at 23 fn. 14) that the changes it made
were material and substantial.
However, it contends that the remaining changes to the dis-
cipline under the work rules were not significant enough to
trigger a duty to bargain. I do not accept this argument. In-
deed, given the patent significance of the changes it made to the
work rules, it is a frivolous argument.
Self-evidently material changes, in addition to the admitted
material changes to absenteeism include the following:
–The rules for absenteeism are not only materially changed,
but violations of the new absenteeism rules are now incorpo-
rated into the progressive discipline scheme as a Group A vio-
lation. In other words, not only are the changes to the absen-
teeism policy admitted by the Respondent to be material, but
those changes are incorporated and made a constituent part of
the work rules, specifically Group A, and thus, one or two vi-
olations of the (new) absenteeism rules can be combined with
other violations to permit more serious disciplinary action
than would have been permitted for the same violations under
the old policy.
–Tardiness has gone from a Group A violation that states that
“Continued Tardiness will not be permitted,” to a policy on
tardiness incorporated into Group A that states that “If you are
tardy more than three (3) times in any twelve (12) month pe-
riod, each proceeding occurrence will be considered a viola-
tion of Group A–6 (Poor work habits will not be permitted).”
–Under the old work rules, discipline that was more than a
year old would not count toward progressive discipline: the
rule read, “The following penalties for infractions of Group A
rules [or Group B rules] will be imposed in one year’s time
from the last violation.” Thus, for purposes of progressive
discipline, old violations “fell off” after one year. The new
implemented work rules changed this so that old violations do
not “fall off” unless and until an employee works one year
without any violations at all. The new rule reads, “The pro-
gressive discipline will be reset after an employee works
twelve (12) consecutive months fee of any work rule viola-
tions.” The materiality of this change to an employee who
committed two Group A violations in September, one in Oc-
tober, and one the following August would not be in doubt.
Under the old rule, the employee would start the next No-
vember with only one violation on his record for purposes of
progressive discipline, and for the next 12 months would face
a one-day suspension should he violate Group A again.
However, under the old rule, from November through August
of the next year the employee would face discharge for a new
violation of Group A.11

11 The Respondent asserts (R. Br. at 22) that this revision “clarified”
but did not change “the period within which the progressive discipline
steps will be applied (one year).” As a matter of logic and the English
language, that is not the case. Moreover, the argument is inconsistent
with the evidence, specifically the Respondent’s own notes of the Feb-
–The new policy provides that “Group A and Group B viola-
tions will be combined in discipline progression” and adds a
“matrix” to the rules to show how an employee who commits
violations of both Group A and Group B violations during the
year will be penalized. Under the old policy, there is no indi-
cation that Group A and B violations were combined, and in-
deed, it would not seem possible as each group had distinct
discipline progressions. The matrix in the new policy melds
the two and this is a significant change that would result in a
significant change in circumstances under the old and the new
policies for an employee with, for instance, two Group A vio-
lations and two Group B violations.12
–Under the old rules, “Sleeping on the job” and “Failure to
follow proper lock-out” procedures were each a Group C vio-
lation, subjecting an employee to discharge for one offense.
Under the new rules these are Group B violations, which re-
quire three B violations for discharge. While “favorable” (to
the sleepy and careless) employee, the change puts other em-
ployees at risk, and is, in any event, whether favorable or un-
favorable, a material change in the disciplinary policy.13
Finally, I note that the Respondent’s contention (R. Br. at
23–24) that it doesn’t matter how the rules are written, because
the rules state that “common sense will prevail” and because
the Respondent has “discretion” under the rules, is an argument
that has been rejected by the Board:
There is no merit to the argument that employees were not
held to a standard because of the discretion and flexibility af-
forded supervisors in the imposition of discipline for non-
compliance. In the first place, whether or not discipline ever
is imposed does not in any way detract from the existence of
the standard. Employees who are told they are expected to

ruary 14, 2014 policy meeting, at which Turecky “explained why we
need to change the Work Rules” [and h]e also highlighted some of the
points which were changed, such as the rolling 12 months.” (Emphasis
added.) The notes then state: “We explained that those currently in the
progressive discipline system will be notified of the changes individu-
ally.” (Emphasis added.) These are admissions, albeit unnecessary
ones, as anyone reading the rules can see there are significant changes
from the old rules.
12 Again, the Respondent argues that this is not a change—but rather
a “clarification.” Its argument on this score is particularly tortured. It
claims that the General Counsel failed to prove that this constituted a
change—but, as stated above, there is no question that a reasonable
reading of the old rule set out a separate track of progressive discipline
for Group A and Group B violations. The new rules change this. Thus,
the rule has changed in a significant way. And indeed, in the Respond-
ent’s own notes of the February 14, 2014 policy meeting, Turecky
“explained why we need to change the Work Rules” [and h]e also
highlighted some of the points which were changed, such as the . . .
combining of A’s and B’s.” This is an admission.
13 I reject the Respondent’s contention that the change in disciplinary
penalty for sleeping at work or failing to observe certain safety proce-
dures is a nonmaterial change because it lessens rather than increases
the penalty for these offenses. The argument misconceives the statuto-
ry command. Goya Foods of Florida, 351 NLRB 94, 102 fn. 4 (2007)
(“The fact that a unilateral change may be favorable toward employ-
ees is of no consequence so long as it has an impact on bargaining unit
employees”).
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
produce at a certain clearly defined rate thereby are subjected
to a term and condition of employment of no less an impact
than any other instruction relating to their hours of work or
quality of work. That an employer may be lenient in requir-
ing adherence to the rule results in the creation of a flexible
rule, but a rule nonetheless. Secondly, the Respondent in fact
has enforced the new rules, albeit on a selective basis. That
very selectivity itself, rather than nullifying the standard,
serves to highlight its existence. Exposing employees to a
sword of Damocles depending upon a supervisor’s discretion
and good judgment, or lack thereof, makes the weapon of dis-
cipline part and parcel of the performance standard. Re-
spondent’s decision to make that weapon an uncertain one has
relationship only to the effectiveness of the rule and not to its
existence.
Tenneco Chemicals, 249 NLRB 1176, 1179–1180 (1980).
In similar vein, the Respondent’s claim that we cannot de-
termine if or how the rule changed until an arbitrator rules on
whether it satisfies just cause is a specious claim. The changes
the Respondent made to the rules reflect material and signifi-
cant changes from the old rules, and notwithstanding a future
arbitral ruling that effectively amends the rule, for now the
changes are in place. The rules are mandatory subjects. The
rules are bargainable.
Each of the foregoing rule changes are significant and these
are changes that, as written, have a direct impact on employees’
reasonable understanding of their terms and conditions of em-
ployment. On their face, and self-evidently, they are not “de
minimis” or “immaterial” changes.
Absent acceptance of the waiver arguments advanced by the
Respondent, to which I now turn, the changes to the work rules
are of the type that fall squarely within the ambit of the matters
as to which the Act contemplates and imposes a duty of collec-
tive bargaining.
b. Waiver based on the Union’s alleged refusal to
request bargaining
The Respondent contends that the Union waived the right to
bargain by failing to demand bargaining when presented with
the Respondent’s plan to implement the new work rules. This
argument is meritless.
The Union did make an effective demand to bargain. When
the Union was presented for the first time with news of the rule
changes at the February 14 policy meeting, Ripka initially an-
nounced that the Union was filing a grievance, but later that
day approached Turecky and retracted this and asked to meet to
discuss the work rules. Thus, the same day that the work rules
were presented to the Union (after months of secret preparation
by the Respondent), the Union told the Respondent that it
wanted to meet to discuss the work rules. This is a request for
bargaining. Armour & Co., 280 NLRB 824, 828 (1986) (“want
to discuss your position” is a request to bargain).
And the Union followed this up with a request for infor-
mation about the Employer’s decision to change the work rules,
action consistent with an effort bargain, and then again, it came
to the February 25 meeting.
There was no waiver for failure to request bargaining. The
obstacle to bargaining was not that the Union waived bargain-
ing through its conduct, but rather, that the Employer was re-
fusing to bargain.14
Given that the Union requested to bargain, there is no need
to reach the General Counsel’s argument that the Respondent
presented the decision to implement work rule changes March
1, as a fait accompli, a finding that would preclude a finding
that the Union waived its right to bargain because a “Union
cannot be held to have waived bargaining by failing to pursue
negotiations over changes that were presented as a fait accom-
pli.” Tesoro Refining & Marketing Co., 360 NLRB No. 46, slip
op. at 3 fn. 10 (2014) (“the Respondent repeatedly told the Un-
ion that it did not have to bargain concerning the benefit chang-
es, that it had the right to make those changes unilaterally, and
that the changes would be implemented on a date certain. In
other words, the Respondent presented the changes to the Un-
ion as a fait accompli”).
c. Waiver through the management-rights provision of the
collective-bargaining agreement
The Respondent’s chief defense is rooted in the contention
that in the collective-bargaining agreement the Union waived
the right to bargain over the change in work rule discipline and
absenteeism policy. Graymont contends that the parties’ col-
lective-bargaining agreement—specifically, the management-
rights clause, art. 1 Sec. 8—establishes the Union’s waiver of
the right to bargain over such changes. To this, the Respondent
adds an argument that the negotiation of the management-rights
clause in 2006, as well as the Union’s effort to change it in
2014 negotiations after the Employer’s unilateral actions, pro-
vides evidence that the clause constitutes a waiver of the Un-
ion’s right to bargain over the unilateral changes at issue here.
The outcome of this dispute is determined by the Board’s
“clear and unmistakable waiver” rule. The Board applies the
“the clear and unmistakable waiver standard in determining
whether an employer has the right to make unilateral changes in
unit employees’ terms and conditions of employment during
the life of the collective-bargaining agreement.” Provena St.
Joseph Medical Center, 350 NLRB 808, 810 (2007). Accord:
Baptist Hospital of East Tennessee, 351 NLRB 71, 71–72
(2007) (applying clear and unmistakable waiver standard to
find unilateral change lawful based on contractual provision);
Verizon North, Inc., 352 NLRB 1022 (2008) (applying “clear
and unmistakable waiver” standard to employer’s claim that
contract language regarding Family and Medical Leave Act

14 The Union’s request to meet must be contrasted with the Employ-
er’s actions. At the February 14 meeting, Turecky made himself clear:
he “proceeded to tell [the Union] that they were changing the work
rules” effective March 1. While willing to discuss the matter, the Re-
spondent’s meeting with the Union on February 25 was explicitly
premised on the position that “the Company has no obligation to bar-
gain over any of the changes to which your request refers.” It main-
tained the position that it had the “sole and exclusive right” to manage
the work force, which in its view included the right to adopt the rules it
presented without bargaining. Contrary to the claims of the Respond-
ent, this is a refusal to bargain. San Diego Cabinets, supra at 1020. A
willingness to meet to talk, but only on a basis on which the Respond-
ent declares itself free from the strictures and obligations of statutory
bargaining, constitutes a refusal to bargain.
GRAYMONT PA, INC. 25
was defense to 8(a)(5) unilateral change allegation).
Notably, the Respondent does not dispute that this is the cor-
rect rule to apply. (See R. Br. at 15–17.)
Under this rule, waivers of statutory rights are not to be
lightly inferred, but instead, must be “clear and unmistakable.”
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
This means, as the Supreme Court has explained, “we will not
infer from a general contractual provision that the parties in-
tended to waive a statutorily protected right unless the under-
taking is ‘explicitly stated.’” Metropolitan Edison, supra at
708. In the words of the Board:
To meet the “clear and unmistakable” standard, the contract
language must be specific, or it must be shown that the matter
claimed to have been waived was fully discussed by the par-
ties and that the party alleged to have waived its rights con-
sciously yielded its interest in the matter.
Allison Corp., 330 NLRB 1363, 1365 (2000).
Thus, in a unilateral-change case, a collectively-bargained
provision may be deemed to constitute a waiver by the union of
the employer’s duty to bargain over the conduct, but only if the
contract’s text, or the parties’ practices and bargaining history
“unequivocally and specifically express their mutual intention
to permit unilateral employer action with respect to a particular
employment term, notwithstanding the statutory duty to bargain
that would otherwise apply.” Provena, supra at 811. This is a
standard that is purposely tilted in favor of requiring collective
bargaining: “The standard reflects the Board’s policy choice,
grounded in the Act, in favor of collective bargaining concern-
ing changes in working conditions that might precipitate labor
disputes.” Provena, supra at 811.
In conducting its analysis, the Board looks to the precise
wording of the relevant contract provisions in determining
whether there has been a clear and unmistakable waiver. Id.
Proof of a contractual waiver is an affirmative defense and it is
the Respondent’s burden to show that the contractual waiver is
explicitly stated, clear and unmistakable. AlliedSignal Aero-
space, 330 NLRB 1216, 1228 (2000), review denied, 253 F.3d
125 (D.C. Cir. 2001); General Electric, 296 NLRB 844, 857
(1989), enf’d. w/o op. 915 F.2d 738 (D.C. Cir. 1990).
With this standard in mind, we turn to the language of the
management-rights provision. In support of its claim of waiver,
the Respondent (R. Br. at 16) relies upon the portion of the
management-rights clause that states:
The Employer retains the sole and exclusive rights . . . to dis-
cipline and discharge for just cause, to adopt and enforce rules
and regulations and policies and procedures; [and] to set and
establish standards of performance for employees[.]
The question is whether this language supports the view that
the parties specifically and unequivocally expressed a mutual
intention to permit unilateral employer action with respect to
the particular employment terms at issue here: changes to ab-
senteeism, and changes to the level of discipline and progres-
sive discipline meted out for violation of company-imposed
rules.
Given the standard, the answer is, quite clearly, no. There is
no reference in the management-rights clause to attendance, or
absenteeism, or changing the standards or progression for dis-
cipline. What is in the management-rights clause is a general
right “to discipline and discharge for cause” and a general right
“to adopt and enforce rules and regulations and policies and
procedures.”
As the Board has explained with regard to a similar man-
agement right “to establish and enforce shop rules,” this is a
“general contractual provision similar to a broadly worded
management-rights clause, from which we will not infer clear
and unmistakable waiver.” California Offset Printers, 349
NLRB 732, 733 (2007) (reversing judge for relying on “general
authority” of employer under contract to “establish and enforce
shop rules” to “discipline or discharge for cause” and “to estab-
lish work schedules and make changes therein,” to find waiver
of right to bargain over establishment of rule requiring employ-
ees to be on call for sudden schedule changes). Indeed, the
Board has held that a general right to make rules or policies
does not waive the right to bargain over the specific subject of
rules on attendance. Ciba-Geigy Pharmaceuticals, 264 NLRB
1013, 1016 (1982) (employer’s authority under management-
rights clause to continue and change reasonable rules and regu-
lations as it may deem necessary and proper does not evidence
“that the Union waived its right to bargain about absentee
rules” as the management-rights clause makes no reference to
rules on absenteeism or tardiness).
As to the right to discipline and discharge, it is just that—it
“allows the employer to function in accordance with existing
contractually agreed-upon procedures, not to change them.”
California Offset Printers, supra at 734. Indeed, the limitation
in a contract, such as this one, of the employer’s right to disci-
pline “for cause” has been held by the Board as evidence con-
trary to the waiver of bargaining on the subject. Windstream
Corp., 355 NLRB 406 (2010), incorporating 352 NLRB 44, 50
(2008) (“If anything, such language shows the unions interest
in the fairness of the Respondent’s application of discipline”).
Notably, I agree with the reasoning of the Board in Ken-
nametal, Inc., 358 NLRB 553 (2012), a case cited by both the
Respondent and the General Counsel, but which is non-
precedential in light of NLRB v. Noel Canning, __ U.S. __, 134
S.Ct. 2550 (2014). Although not precedential, the reasoning of
Kennametal is persuasive and I adopt it. In Kennametal, supra,
the collective-bargaining agreement explicitly gave the em-
ployer the right “to continue to make reasonable provisions for
the safety and health of its employees” as well as “establish”
“reasonable safety and health rules.” The Board found that this
constituted a waiver of the right to bargain over safety rules.
However, notwithstanding this waiver, the Board found that
discipline regarding safety rules had not been waived. In other
words, a contractual waiver as to safety rules, premised on the
employer’s explicit and unambiguous right in the contract to
make safety rules, did not extend to the right to alter the pro-
gressive disciplinary rules for safety violations as nothing “in
the collective-bargaining agreement permits the Respondent to
unilaterally change the disciplinary consequences for employ-
ees engaging in [violation of safety rule] conduct.” 358 NLRB
553, 555.
The reasoning is instructive for our case. And it demon-
strates that the instant case is even less suitable for finding
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
waiver than Kennametal. In Kennametal, the contract gave the
employer the specific and express right to establish rules re-
garding the specific employment term at issue—in that case,
safety rules. Still, even that specific predicate contractual right
to establish safety rules in Kennametal did not demonstrate
waiver of the right to bargain over the establishment or chang-
ing of discipline regarding the very safety rules that the em-
ployer was free to establish unilaterally. In our case, there is
also no explicit right in the contract for the employer to make
disciplinary rules or, even more to the point, to “unilaterally
change the disciplinary consequences for employees engaging
in” any specific type of conduct. And indeed, in our case, there
is not even an explicit and specific predicate right to establish
the employment terms at issue (e.g., absenteeism, attendance,
or progressive discipline). Accordingly, if no waiver of the
right to bargain about changing discipline for safety issues can
be found in Kennametal, none can be found here to change
discipline based on a contract that provides neither for an ex-
plicit right to make disciplinary rules, or even (unlike in Ken-
nametal) for establishing the specific employment terms at
issue in the case.
The cases relied upon by the Respondent support the General
Counsel’s case. The Respondent relies upon United Technolo-
gies Corp., 287 NLRB 198 (1987), calling it “nearly identical”
to the instant case. However, it is not. The management-rights
clause in that case explicitly gave the employer “the right to
make and apply rules and regulations for production, discipline
efficiency, and safety.” The management-rights clause in this
case does not grant that right (much less waive bargaining
about) making and applying disciplinary rules. As stated
above, it is well settled that a general right “to discipline” does
not constitute a waiver of the right to bargain over the making
or changing of disciplinary rules. In a related argument (R. Br.
at 17), the Respondent argues that in the management-rights
clause
[t]he references to the Company’s exclusive right to “disci-
pline and discharge for just cause” and to “adopt and enforce
rules and regulations and policies and procedures” are con-
tained within the same clause of the management-rights pro-
vision, set off by semi-colons, which indicates that they are
intended to be read together.
In fact, it is the semi-colons that separate the general right to
make rules and the general right to discipline and thereby
demonstrate that these are separate enumerated management
rights. By contrast, the management-rights clause in United
Technologies, supra, expressly provided for “the right to make
and apply rules and regulations for . . . discipline.” (Emphasis
added). The Respondent simply cannot fit this case within the
pigeon hole marked United Technologies.
Provena Hospital also does not support the Respondent’s ar-
gument. In that case, the Board agreed with the part of the
employer’s argument that claimed that the union had waived
the right to bargain about a new attendance/tardiness procedure
where the contract gave the employer the right—along with the
right to make rules of conduct and to discipline/discharge—to
“change reporting practices and procedures and/or to introduce
new or improved ones.” However, in this case there is no spe-
cific right in the management-rights clause to “change reporting
practices and procedures” or any other reference to attendance
or tardiness. No such specific right pertaining to attendance
rules is provided for in the management-rights clause.15
At the same time, the parties’ bargaining history provides
absolutely no support for the Respondent’s waiver argument.
The existing management-rights provision was introduced dur-
ing 2006 negotiations and it was far more detailed and exten-
sive in its setting forth of management rights than the predeces-
sor clause. However, by no witness’ account was there any
discussion of discipline, absenteeism, or the right under the
management-rights clause (or under any clause) to change such
rules. This precludes a finding that “the matter claimed to have
been waived was fully discussed by the parties and that the
party alleged to have waived its rights consciously yielded its
interest in the matter.” Allison Corp., 330 NLRB 1363, 1365
(2000).16
Notably, with specific regard to the attendance/absenteeism
policy, the bargaining history is directly in opposition to the
Respondent’s waiver claim. The absenteeism policy in effect
before the March 2014 implementation was not only the prod-
uct of extensive bargaining between the parties, but was enact-
ed in 2005 based on an explicit written agreement between the
Union and the Respondent. The 2005 Absenteeism policy be-
gins with the preface: “The Company and the Union Committee
have agreed to the following terms:”—This is the opposite of a
history of waiver of bargaining rights. Rather, the history is of
the collective bargaining of issues related to attendance rules
and discipline for violation of them. And, consistent with this,
in late 2006 when Graymont approached the Union with a pro-
posal to change the discipline for work rules to make them
stricter, the Union objected on grounds that labor law required
bargaining before there could be any change. The proposals
were not implemented.

15 The Respondent also relies on Quebecor World Mt. Morris II, 353
NLRB 1 (2008), a two-member Board case that was never adopted by
the Board after New Process Steel, 560 U.S. 674 (2010). Thus, the case
is of no precedential force. However, it too is easily distinguishable:
the Board Members found a waiver of the union’s right to bargain over
implementation of a “performance improvement procedure (PIP) pro-
cedure where the management right to discipline was combined with a
right on the employer’s part to “establish and apply reasonable stand-
ards of performance and rules of conduct.” The Board Members found
that this language authorized the unilateral establishment and applica-
tion of disciplinary procedures for work-performance issues, which
they found the PIP to be. But in the instant case, the unilateral changes
involve attendance, tardiness, and their place in and the progressive
discipline scheme generally. The contract’s language does not clearly
and unmistakably endorse any unilateral right of action on these sub-
jects.
16 The Respondent proposes (R. Br. at 18–19) to turn the “clear and
unmistakable” standard on its head when it argues that because during
the 2006 negotiations the Union succeeded in having the Employer
remove certain express rights from the proposed management-rights
clause (i.e., the right to change shift duration and the right to hire sub-
contractors), this means that the Union has waived the right to bargain
over every other alleged management right—whether or not discussed
and whether or not explicitly and specifically stated. This is essentially
the reasoning of the judge that the Board rejected and reversed in Cali-
fornia Offset Printers, supra.
GRAYMONT PA, INC. 27
Finally, the Respondent advances the specious argument that
the Union’s effort in June 2014 negotiations to negotiate
changes to the management-rights clause evidences that the
Respondent had the right to make the unilateral changes all
along. In these negotiations, occurring in the aftermath of the
Respondent’s unilateral action, the Union (unsuccessfully)
proposed changing the management-rights clause to explicitly
prohibit unilateral action with regard to work rules.
The Respondent reasons: “These changes would be wholly
unnecessary if, as the Union and the General Counsel now con-
tend, the Company did not possess the right to make such
changes in the first place.” But it is also the case that the Un-
ion’s proposed contract revisions would have been wholly un-
necessary if the Respondent had not relied upon the existing
contract language to make unlawful unilateral changes.
The Respondent’s argument assumes what it must prove. In
other words, the Respondent’s argument works only if you first
assume that under the existing management-rights clause the
Union had no right to bargain about the unilateral changes un-
dertaken by the Respondent. But I have found that this is not
the case. And in the context of unlawful unilateral action by
the Respondent, the Union’s subsequent effort to amend the
management-rights clause reasonably cannot be understood as
an admission but, rather, as an effort to adapt to the Respond-
ent’s unremedied unlawful conduct.
A final note about the complaint: The complaint suggests
that the Respondent’s violation began on or about February 25,
2014, which is the date that the Respondent announced that it
was refusing to bargain about the changes in policy it planned
to implement March 1, 2014. However, on brief, counsel for
the General Counsel contends that the violation was the unilat-
eral implementation, which occurred on March 1, 2014. I think
the brief is right. Absent the implementation, there was no
statutory duty to bargain. These events occurred during the
term of an existing labor agreement. Had the Respondent not
implemented changes to the attendance and disciplinary poli-
cies, there was no separate duty to bargain over these issues at
this time. Had the Employer threatened but in the end not im-
plemented changes to the policies (see, e.g., events in late
2006), there would have been no bargaining violation. The
violation in this case was the unilateral implementation without
affording the Union an opportunity to collectively bargain.
III. The delay in providing information
As referenced above, counsel for the General Counsel has
moved to amend the complaint to allege that the Respondent
unlawfully delayed providing requested information to the Un-
ion. The Respondent has not objected to the amendment,
which I have granted, and which, in any event, is not required
under Board precedent with regard to such closely-related alle-
gations. Care Manor of Farmington, 318 NLRB 330 (1995).
In August 2014, the Respondent announced that it had noth-
ing responsive to the Union’s request (other than the policy
meeting notes that the Union already had in its possession).
Before this, since the Union’s February 25, 2014 information
request, the Respondent had maintained a refusal to provide the
Union information on grounds that, having no obligation to
bargain over the decision to implement changes to the absentee-
ism and disciplinary policies, it similarly had no obligation to
furnish information regarding the decision.17
But for a complication I will arrive at shortly, all of this
seems like a straightforward violation of the Act.
An employer, on request must provide a union with infor-
mation that is relevant to its carrying out its statutory duties and
responsibilities in representing employees. NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967); Dodger Theatricals, 347
NLRB 953, 867 (2006). The duty to provide information in-
cludes information relevant to contract administration and ne-
gotiation. Pulaski Construction Co., 345 NLRB 931, 935
(2005).
The duty to furnish information requires a reasonable good-
faith effort to respond to the request as promptly as circum-
stances allow. Good Life Beverage Co., 312 NLRB 1060, 1062
fn. 9 (1993). “An unreasonable delay in furnishing such infor-
mation is as much of a violation of Section 8(a)(5) of the Act as
a refusal to furnish the information at all.” Valley Inventory
Service, 295 NLRB 1163, 1166 (1989). “Absent evidence jus-
tifying an employer’s delay in furnishing a union with relevant
information, such a delay will constitute a violation of Section
8(a)(5) inasmuch ‘as the Union was entitled to the information
at the time it made its initial request, [and] it was Respondent’s
duty to furnish it as promptly as possible.’” Woodland Clinic,
331 NLRB 735, 737 (2000) (Board’s brackets), quoting, Penn-
co, Inc., 212 NLRB 677, 678 (1974).
I have rejected the Respondent’s defense that it had no duty
to bargain over the decision to change the absenteeism and
disciplinary policy. Its “derivative” defense—that it had no
obligation to provide information on these decisions because it
had no obligation to bargain—is, accordingly, also rejected as
baseless. There is no reasonable grounds identifiable in the
record for the delay in telling the Union that it had no respon-
sive information. The Respondent could have determined, and
likely did determine within days that it had no documents re-
sponsive to the Union’s request. The Union was entitled to
know this forthwith.18
There is, however, a problem. Somewhat remarkably, in my
estimation, in Raley’s Supermarkets & Drug Centers, 349
NLRB 26, 28 (2007), a Board majority held that the failure to
inform the union that requested information does not exist is
not a violation that can be found based on a complaint allega-
tion that generally states that the respondent has unlawfully

17 The Respondent’s February 25, 2014 response to the Union also
contained the independent (but unexplained) claim that “in any event,
there is no obligation to provide any information regarding internal
management discussions leading to such a discussion.” However,
neither at trial nor on brief does the Respondent advance this argument
as a rationale for noncompliance. In addition, the Respondent took the
position that as to Union’s request for minutes of policy meetings, it did
not need to provide such documents because the Union already had
copies of them. The General Counsel does not argue that the failure to
provide the Union with (additional copies) of policy meeting minutes
forms a part of the violation.
18 I note that the General Counsel does not claim that the Respond-
ent, in fact, has documents responsive to the Union’s request. In other
words, the General Counsel accepts the Respondent’s contention that
the Respondent did not rely on any responsive information in making
the decisions at issue.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
failed to provide (or delayed in providing) requested infor-
mation.
According to the Board in Raley’s, at least where the General
Counsel is on notice before trial that the respondent is claiming
that the requested information does not exist, the General
Counsel must amend the complaint to reflect this, or face dis-
missal of the complaint.
In Raley’s, the complaint alleged that since a certain date, the
employer had failed and refused to provide the union with in-
formation allegedly in an investigator’s report. The Board
majority, in response to the arguments of their dissenting col-
league, explained that
At no time, even after learning that such a report did not exist,
did the General Counsel amend the complaint to allege that
the Respondent violated the Act by failing to timely inform
the Union that there were no such reports. Accordingly, we
do not find a violation on that basis.
Our colleague would construe the complaint to allege precise-
ly the opposite of what it does allege. As noted above, the
complaint alleges that the Respondent failed to furnish a doc-
ument, viz., a copy of the investigator’s report. The complaint
therefore implicitly alleges that the report exists and that the
Respondent refuses to furnish it. Further, we assume arguen-
do that the allegation can be broadly construed to cover an un-
timely furnishing of the report or an incomplete furnishing of
the report. However, it is an unreasonable stretch to convert
this allegation into its opposite, i.e., that the report does not
exist, and that the Respondent failed to inform the Union of
this fact. If the General Counsel wanted to allege this as an al-
ternative pleading, he could have done so. He did not. We
therefore decline to find a violation on this basis.
349 NLRB at 28.
The unavoidable holding of Raley’s is that where the General
Counsel learns prior to the hearing that the Respondent is tak-
ing the position that it did not possess anything responsive to
the information request, the complaint must be amended to
explicitly allege a refusal (or delay) in conveying to the Union
the fact of the lack of existence of responsive information.
The situation here is essentially indistinguishable from that
in Raley’s. One might entertain the argument that here, unlike
in Raley’s, the complaint allegation did not refer to a specific
identifiable document that the Respondent had failed to pro-
vide. This might be said to make less apposite the Board’s
conclusion in Raley’s that the complaint “therefore implicitly
alleges that [the specific information] exists and that the Re-
spondent refuses to furnish it.” However, this is a thin and
unsatisfying reed of a distinction.
Under the reasoning of Raley’s, at least where the facts are
known to the General Counsel before trial, the respondent’s
unlawful failure to provide, or the delay in providing, the news
that information does not exist must be based on a complaint
allegation specifically asserting a failure to inform (or delay in
informing) the union that the requested documents do not exist.
See Albertson’s, Inc., 351 NLRB 254, 255 (2007) (reversing
judge’s finding of violation because “[u]nder the standard set
forth in Raley’s Supermarkets, the General Counsel must spe-
cifically allege that the failure to inform the union that the re-
quested documents do not exist (or the delayed communication
of that fact) was unlawful. The instant complaint, which does
not even mention the nonexistence of the documents, plainly
fails to satisfy this pleading requirement”) (citation omitted).
While I may agree that the dissent in Raley’s has the better
of the argument,19 the reasoning of the Board’s decision in
Raley’s must be followed until overruled. Waco, Inc., 273
NLRB 746, 749 fn. 14 (1984) (“We emphasize that it is a
judge’s duty to apply established Board precedent which the
Supreme Court has not reversed. It is for the Board, not the
judge, to determine whether that precedent should be varied.”)
(citation omitted). Here, the complaint allegation, as amended,
alleges only a delay in providing information—notwithstanding
the Respondent’s pretrial declaration that it had no information
responsive to the Union’s request. Accordingly, I find no vio-
lation as to the delay in providing information, as alleged.
CONCLUSIONS OF LAW
1. The Respondent Graymont PA, Inc., is an employer with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Local Lodge D92, United Cement,
Lime, Gypsum and Allied Workers, a Division of International
Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, AFL–CIO (Union) is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Union is the designated collective-bargaining repre-
sentative of the following bargaining unit of the Respondent’s
employees:
Employees in the Bellefonte Plant located on North Thomas
Street and the Pleasant Gap plant located on Airport Road. . . .
The term “employees” as used in this Agreement will not in-
clude salaried foreman and office employees.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally implementing changes to its work rule dis-
ciplinary policies and absenteeism policies without affording
the Union an opportunity to collectively bargain.
5. The unfair labor practices committed by the Respondent
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
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 there from and to take certain affirmative action designed

19 In Raley’s, the dissent explained:
[t]he notion that an employer’s failure timely to indicate that it lacks
requested information is somehow distinguishable from a failure to
provide available information does a disservice to the Act. The pur-
pose of the Act’s requirement that parties provide each other with rel-
evant information is to maximize communication between them and
so minimize industrial strife. For this purpose, it is elementary that
parties must not only provide requested information, but also timely
inform each other when they have none to provide. The failure to do
either is obviously a violation of the duty to provide relevant infor-
mation.
349 NLRB at 30 (original emphasis).
GRAYMONT PA, INC. 29
to effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally implementing changes to its
work rule disciplinary and absenteeism policies without afford-
ing the Union an opportunity to bargain, the Respondent shall
be ordered, to rescind those changes encompassed within the
implementation and restore the status quo ante. The Respond-
ent shall be required to rescind all discipline issued based in
any way upon the unilaterally changed portions of the work
rules or attendance policy and shall make any employees ad-
versely affected by the unlawful changes whole for any loss of
earnings and other benefits suffered as a result of the unlawful
changes. The make-whole remedy shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest, as prescribed in New Horizons, 283 NLRB 1173
(1987), and compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with Tor-
tillas Dan Chavas, 361 NLRB No. 10 (2014), the Respondent
shall compensate any employees adversely affected by the un-
lawfully changed policies for the adverse tax consequences, if
any, of receiving lump sum backpay awards, and file a report
with the Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each employee.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted at the Respondent’s facilities wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. In the
event that, during the pendency of these proceedings the Re-
spondent has gone out of business or closed a facility involved
in these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time
since March 1, 2014. When the notice is issued to the Re-
spondent, it shall sign it or otherwise notify Region 6 of the
Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, Graymont PA, Inc., Pleasant Gap, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the terms of conditions of employment of its
unit employees, including, but not limited to, unilaterally im-
plementing changes to its absenteeism and/or work rules disci-
plinary policies without first notifying the Union and giving it
an opportunity to collectively bargain.
(b) In any like or related manner interfering with, restrain-

20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) At the request of the Union, rescind the unilateral chang-
es to the absenteeism and work rules disciplinary policies
and/or the enforcement of those changed policies, and restore
the status quo ante with regard to these changes.
(b) Rescind all discipline issued to employees based in any
way upon the unilaterally changed portions of the policies and
make any employees adversely affected by the unlawful chang-
es whole for loss of earnings and other benefits suffered as a
result of the unlawfully imposed changes to policies, in the
manner described in the decision.
(c) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, collectively bargain with the Union as
the exclusive collective-bargaining representative of employees
in the following bargaining unit:
Employees in the Bellefonte Plant located on North Thomas
Street and the Pleasant Gap plant located on Airport Road. . . .
The term “employees” as used in this Agreement will not in-
clude salaried foreman and office employees.
(d) 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 rec-
ords, 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.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Pleasant Gap, and Bellefonte, Pennsylvania copies of
the attached notice marked “Appendix.” 21 Copies of the no-
tice, on forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since March 1, 2014.

21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 6 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. December 30, 2014
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 change the terms of conditions of your em-
ployment, including the absenteeism and the work rules disci-
plinary policies, without first notifying the Union and giving it
an opportunity to collectively bargain.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the unilateral changes we made to the ab-
senteeism and work rules disciplinary policies.
WE WILL rescind any discipline issued to employees based in
any way upon the unilaterally changed portions of the absentee-
ism and/or work rules disciplinary policies and make any em-
ployees adversely affected by the unlawful changes whole for
any loss of earnings and other benefits suffered as a result of
the unlawful unilateral changes.
WE WILL notify, and upon request collectively bargain with
the Union before implementing any changes in wages, hours, or
other terms and conditions of your employment.
GRAYMONT PA, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/06–CA–126251 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.