Lakeland Bus Lines

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 322 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
Lakeland Bus Lines, Inc. and Amalgamated Transit
Union, Local 1614, AFL–CIO. Case 22–CA–
21950
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN, TRUESDALE, AND WALSH
On February 22, 1999, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order. 1
The judge found that the Respondent’s failure to pro-
vide the Union with certain requested financial informa-
tion did not violate Section 8(a)(5) and (1) of the Act. In
its exceptions, the General Counsel argues inter alia that
under NLRB v. Truitt Mfg. Co.,2 and its progeny, the Re-
spondent’s conduct constituted a claim of an inability to
pay, and that accordingly the Respondent was required to
provide the Union with the requested financial informa-
tion necessary to support such a claim. We agree.3
Background
The relevant facts are not in dispute. The Respondent,
an operator of a private bus service, has had a collective-
bargaining relationship with the Union for over 20 years.
Its most recent collective-bargaining agreement with the
Union expired on January 31, 1997.4 Negotiations for a
successor agreement began in November 1996. The
main focus of these negotiations concerned the Respon-
dent’s desire for an extended wage freeze and for a modi-
fication of the “spread time” rules that would decrease
the amount of overtime that the employees could earn on
their shift.5 The Respondent argued that these provisions
were needed because the Respondent had lost a signifi-
cant amount of ridership and revenue.6

1 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
2 351 U.S. 149 (1956).
3 In view of our finding, set forth below, that this case is distinguish-
able from Nielsen Lithographing Co., 305 NLRB 697 (1991), affd. sub
nom. Graphic Communications Local 50B v. NLRB, 977 F.2d 1169 (7th
Cir. 1992), we find it unnecessary to pass on the contentions of the
General Counsel and Charging Party that Nielsen should be overruled.
4 All dates hereafter are in 1997 unless stated otherwise.
5 The spread time rules relate to the calculation of the number of
hours during the workday for which point the employee is entitled to
receive overtime pay. As explained in the judge’s decision, if an em-
ployee works from 6–9 a.m. and from 4–7 p.m., his total time is 13
hours. If the agreed-upon spread time is 11 hours, his overtime begins
after the 11th hour. The Respondent wanted to modify the spread time
in order to reduce the amount of overtime pay employees received.
At the parties’ final bargaining session on February 21,
the Respondent adhered to its positions concerning the
extended wage freeze and the spread time modification,
but offered a one-time payment of $500 per employee in
exchange for the Union’s agreement on the spread time
modification. The Union agreed to the wage freeze pro-
posal and the $500 payment, but would not agree to the
spread time modification.
On February 25, the Respondent submitted its final of-
fer to the Union, which included the extended wage
freeze, the Respondent’s spread time proposal, and the
$500-per-employee payment. The Respondent’s presi-
dent sent a letter that day to employees detailing the Re-
spondent’s position. The letter stated in relevant part:

[A]s you know, we have lost 7500 riders per
week to New Jersey Transit Rail. However, we are
attempting to do it with minimal impact on each of
the members of our family, i.e., YOU.
. . . .
[As] those of you who have been around for a
while know, I am not one to “cry wolf.” I believe in
being honest, and that is just what I am trying to do.
Simply stated, we are trying to bring the bottom line
back into the black and we are doing this by increas-
ing charters, reducing liability insurance costs and
negotiating with NJT for additional lines to utilize
our manpower and equipment.
We are simply all doing what must be done, and
now, we are asking for help from our LAKELAND
FAMILY so we may retain your jobs and get back in
the black in the short term and continue to share our
good fortune as we have in the past.
Therefore, I ask you to give the enclosed Final
Offer your serious consideration and vote YES to
ratify it. The future of Lakeland depends on it.

Thereafter, by letter dated February 26, the Union’s at-
torney, John Craner, requested the Respondent to provide
financial information. The letter explained that in light
of the Respondent’s claims that it was losing money, the
Union needed to have its accountant inspect the Respon-
dent’s books and records. The letter added that the Un-
ion was prepared to sign any confidentiality agreements

6 The loss of ridership was due to the fact that the State of New Jer-
sey had instituted a rail service that overlapped some of the Respon-
dent’s routes. Because that rail service was highly subsidized and
quicker than the Respondent’s bus service, the loss of ridership was
considered to be permanent.
335 NLRB No. 29
LAKELAND BUS LINES 323
that the Respondent required in connection with this in-
formation.
By letter dated March 11, the Respondent’s attorney,
Desmond Massey, responded to Craner’s letter, stating
that the Respondent never took the position that its fi-
nancial position precluded it from agreeing to the Un-
ion’s proposal. Massey asserted that “[n]o claim of fi-
nancial inability” to pay was made by the Respondent,
and that under NLRB v. Truitt Mfg. Co., supra, the Union
was not entitled to view the Respondent’s books. Citing
Nielsen Lithographing Co., supra, Massey noted that a
claim of sustaining “substantial losses” does not require
the Respondent to furnish financial information to the
Union.
Craner and Massey exchanged additional letters, dated
March 20 and 27 respectively, which repeated their pre-
viously asserted positions concerning the Respondent’s
obligation to furnish financial information to the Union.
In addition, during this period the Respondent’s employ-
ees voted to reject the Respondent’s final offer, and on
March 28 the Respondent implemented that offer.
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing to provide
the Union with the requested financial information. The
judge principally relied on Nielsen Lithographing Co.,
supra, where the Board held that a claim of competitive
disadvantage was not the equivalent of a claim of a pre-
sent inability to pay and thus did not trigger an obligation
to provide the union with requested financial informa-
tion. The judge found that although the Respondent re-
ferred during the negotiations to a loss of ridership and
corresponding revenue, it never claimed that it was un-
able to pay anything more than what it had finally of-
fered. Therefore, the judge found it was not obligated to
supply the Union with information to substantiate its
claim.
The judge distinguished several cases, issued after
Nielsen, where the Board found an employer obligated to
furnish financial information because its comments dur-
ing negotiations amounted to a claim of an inability to
pay. The judge found that Shell Co., 313 NLRB 133
(1993), was not controlling because the employer in that
case told the union that its circumstances were bad and a
matter of survival. Acknowledging that a claim that cir-
cumstances are a matter of survival is tantamount to a
claim of a present inability to pay, the judge found this
case distinguishable because the Respondent had not
claimed that its survival was at stake.
The judge similarly distinguished the Board’s deci-
sions in Stroehmann Bakeries Inc., 318 NLRB 1069
(1995), enf. denied 95 F.3d 218 (2d Cir. 1996), and Con-
Agra, Inc., 321 NLRB 944 (1996), enf. denied 117 F.3d
F.3d 1435 (D.C. Cir. 1997), on the basis that the employ-
ers in those cases claimed greater financial difficulties
than the Respondent here. The judge noted that Stroeh-
mann involved an employer’s claim that it suffered huge
losses that were projected to continue and that it re-
mained in business only due to the deep pockets of its
parent company, and ConAgra involved an employer’s
claims that “the situation is serious and fragile,” that “if
we are not competitive we cannot survive,” and that “we
must do something to be able to survive.” The judge
found that there were no similar claims made by the Re-
spondent.
In sum, the judge found that the Respondent had not
said anything that could be construed as tantamount to a
claim of inability to pay, and thus was not obligated to
furnish the requested financial information. Alterna-
tively, to the extent that the Respondent’s words could be
construed as a claim of an inability to pay, the judge
found that any such claim was retracted by the Respon-
dent’s response to the Union’s request for financial in-
formation. Accordingly, the judge found that the Re-
spondent’s refusal to provide the financial information
was not unlawful. Further, the judge found that the re-
fusal to provide the financial information did not pre-
clude a valid impasse, and thus the Respondent’s unilat-
eral implementation of its final offer was not violative of
the Act.
Analysis
Contrary to the judge, and in agreement with the Gen-
eral Counsel, we find that the Respondent was obligated
to furnish the requested financial information to the Un-
ion. For the reasons set forth below, we find that under
Truitt, supra, and its progeny, the Respondent's February
25 letter to employees effectively communicated that it
was unable to afford to pay anything more than that con-
tained in its final offer. 7
In Truitt, the Supreme Court held that an employer
violated Section 8(a)(5) of the Act by refusing to provide
the union with information requested to substantiate the

7 We reject the Respondent’s contention that under Burrus Transfer,
307 NLRB 226 (1992), the Respondent’s statements cannot trigger an
obligation to furnish financial information because they were made
away from the bargaining table. In Burrus, the Board found that an
informal statement by the respondent’s vice president to an employee
that he could not afford to pay employees any more than they were
already making—made 4 to 6 months prior to the commencement of
contract negotiations—did not undercut the respondent’s claim during
negotiations of a competitive disadvantage. The Board’s finding was
based on the fact that the comment was not linked to any economic
proposal, not that the comment was made away from the bargaining
table. Conversely, the Respondent’s comments in its February 25 letter
to employees were solely linked to its final offer, and were made in an
attempt to persuade employees to accept that offer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324
employer’s claim that it could not afford to grant its em-
ployees a wage increase of 10 cents an hour sought by
the union, claiming that an increase of more than 2-1/2
cents an hour would put the employer out of business. In
holding that its refusal to provide the information neces-
sary to substantiate the claim of inability to pay was
unlawful, the Court explained that

Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims. This is true about an asserted inability to
pay an increase in wages. If such an argument is
important enough to present in the give and take of
bargaining, it is important enough to require some
sort of proof of accuracy. [351 U.S. at 152–153.]
. . . .
We do not hold, however, that in every case in which
economic inability is raised as an argument against in-
creased wages it automatically follows that the em-
ployees are entitled to substantiating evidence. Each
case must turn on its particular facts. The inquiry must
always be whether or not under the circumstances of
the particular case the statutory obligation to bargain in
good faith has been met. [351 U.S. at 153–154.]

In Nielsen Lithographing Co., supra, the Board held
that Truitt’s requirement that an employer furnish finan-
cial information necessary to verify a claim of inability
to pay did not apply to an employer’s claim that main-
taining existing employee benefits was necessary to
avoid placing the employer at a competitive disadvan-
tage. In that case, the employer acknowledged that it
was still making a profit, and thus it was not pleading
poverty or an inability to pay, but maintained that con-
cessions were necessary in order to be competitive in the
future. The union requested certain information it
deemed necessary to evaluate the claim that the employer
was losing its ability to compete. The employer refused
to supply this information.
Following the Seventh Circuit’s opinion in NLRB v.
Harvstone Mfg. Corp.,8 the Board found that the em-
ployer’s claim of competitive disadvantage was not the
same as a claim of financial inability to pay. The Board
reasoned as follows:

The difference between the two types of claims is
critical. The employer who claims a present inabil-
ity to pay, or a prospective inability to pay during

8 785 F.2d 570 (1986), denied enf. 272 NLRB 939 (1984). In that
case the Seventh Circuit denied enforcement of the Board’s order and
found that the employers’ request for concessions based on a claim of
competitive disadvantage was not a plea of an inability to pay and thus
the employers’ refusal to furnish the requested financial records was
not unlawful.
the life of the contract being negotiated, is claiming
essentially that it cannot pay. By contrast, the em-
ployer who claims only economic difficulties or
business losses or the prospect of layoffs is simply
saying that it does not want to pay. . . . The distinc-
tion [of Truitt] has always been between claims of
“can not” and “will not.” [305 NLRB at 700.]

The Board cautioned, however, that an employer’s
claims must be evaluated in the context of the particular
circumstances in that case. The Board stated:

We do not say that claims of economic hardship
or business losses or the prospect of layoffs can
never amount to a claim of inability to pay. Depend-
ing on the facts and circumstances of a particular
case, the evidence may establish that the employer is
asserting that the economic problems have led to an
inability to pay or will do so during the life of the
contract negotiated. [Id.]

Applying this reasoning, the Board held in Shell Co.,
313 NLRB 133 (1993), that an employer’s duty to dis-
close relevant financial information was triggered by its
claims that its present circumstances were “bad” and a
matter of survival, that it was “losing business,” and
“faced serious regulatory and cost problems.” Consistent
with the Board’s acknowledgement in Nielsen that cer-
tain claims of economic hardship and business losses
could amount to a claim of inability to pay, the Board
held in Shell that the employer had effectively made such
a claim. The Board noted that, unlike the claims at issue
in Nielsen, there was no claim that the employer was still
making a profit, and the thrust of the employer’s asser-
tions was its present economic circumstances rather than
future economic competitiveness. The Board concluded
that in these circumstances the employer’s assertions
amounted “to a claim that it could not afford the most
recent contract,” and thus warranted a finding that the
employer had pleaded a present inability to pay. Id. at
133–134.
We find, contrary to the judge, that the Respondent’s
remarks, specifically those contained in its President’s
February 25 letter to employees urging them to accept
the final offer, are essentially equivalent to those that
were at issue in Shell Co. Consistent with the Board’s
finding in Nielsen that certain claims of economic hard-
ship can indeed amount to a claim of inability to pay, the
statements in the letter reasonably convey that the Re-
spondent was unable to pay more than that contained in
the final offer. Specifically, the Respondent stated that it
was “trying to bring the bottom line back into the black,”
that acceptance of the final offer would enable the Re-
spondent to “retain your jobs and get back in the black in
LAKELAND BUS LINES 325
the short term,” and that “[t]he future of Lakeland de-
pends on it.” In context, these statements are the equiva-
lent of the claim in Shell Co. that circumstances were bad
and were a matter of survival. In both cases, the state-
ments reasonably conveyed a present inability to pay.
We find especially significant the Respondent’s refer-
ence in its letter to the need to “get back into the black in
the short term.” That statement, when considered to-
gether with the Respondent’s repeated assertions that it
was losing money because of the lost ridership, is rea-
sonably construed as a statement that the Respondent
was presently unprofitable and as such was unable to pay
more than that contained in its final offer. Further, by
combining that statement with the references to “re-
tain[ing] your jobs” and the Company’s “future” being
dependent upon acceptance of the final offer, the Re-
spondent emphasized in no uncertain terms that, like the
employer in Shell Co., its short-term economic survival
rested upon acceptance of its proposal. Also as in Shell
Co., and unlike Nielsen, the Respondent did not qualify
any of its claims with statements suggesting that it con-
tinued to be profitable or that despite the loss of revenue
there existed some alternative means of paying more than
its final offer. Accordingly, the Respondent’s statements
in its February 25 letter could only be construed as a
claim of an inability to pay, which triggered a duty to
disclose relevant financial information under Truitt.9
We also disagree with the judge’s reasoning that the
statements of the employers in Stroehmann Bakeries,
Inc. supra, and ConAgra, Inc., supra, amounted to claims
of greater financial difficulties than those made by the
Respondent here. By asserting its need to get “back into
the black in the short term,” and that its “future” de-
pended upon the acceptance of its final offer, the Re-
spondent conveyed a sense of immediacy to its economic
concerns. Its claims thus constituted an expression of a
present inability to pay that was equally as alarming as, if
not more so than, the statements in Stroehmann Bakeries

9 Our dissenting colleague contends that the instant case is distin-
guishable from Shell Co. because the Respondent’s reference to the
need to “get back in the black in the short term” carries a far different
message than the employer’s claim in Shell Co. that conditions were
“critical” and a “matter of survival.” While agreeing that the claims in
Shell Co. are tantamount to a claim of inability to pay, the dissent
claims the Respondent’s statements are ones that “reassured employ-
ees.” In making this claim, the dissent ignores the fact that any sense of
reassurance was solely contingent upon acceptance of the final offer,
and fails to consider that the Respondent’s references to getting “back
in the black” were made together with statements linking acceptance of
the final offer to the retention of employees’ jobs and the “future” of
the Company. When considered together and in context, the statements
in the February 25 letter create the clear impression that not only is the
Respondent unprofitable, but things are indeed critical and a matter of
survival. Nothing in that letter suggests a contrary message.
concerning the huge losses and the inability to go on ab-
sent the deep pockets of the parent company, or the claim
in ConAgra that the situation was “serious and fragile”
and that “we must do something to be able to survive.”10
We recognize that the courts of appeal did not enforce
the Board’s orders in those two cases. The courts’ deci-
sions, however, raised concerns that are not present here.
In Stroehmann Bakeries, Inc. v. NLRB, 95 F.3d 218
(2d Cir. 1996), the Second Circuit disagreed with the
Board that a claim of inability to pay was made by the
employer’s statements that it had suffered huge financial
losses and that the parent company’s “deep pockets”
would not continue to fund the employer’s operations
absent deep concessions from the union. The Second
Circuit specifically took issue with the Board’s finding
that the employer’s reference to the “deep pockets” of the
parent company could reasonably be construed as an
inability to pay. Rather, the court found that the state-
ment showed that the employer had access to capital suf-
ficient to continue its operations, and thus the employer’s
statements communicated its view that it would not, as
opposed to could not, pay the present contractual rates.
95 F.3d at 223. In this case, there is no evidence similar
to that in Stroehmann that could be construed as a claim
by the Respondent that it had other means, such as the
deep pockets of a parent company, to cover the loss of
revenue. To the contrary, the Respondent’s statements,
as mentioned above, clearly conveyed that it had no al-
ternative to get back in the black. These statements thus
express a present inability to pay anything greater than
its final offer. Accordingly, the concerns raised by the
Second Circuit’s decision are not present in the instant
case.
Similarly, in ConAgra, Inc. v. NLRB, 117 F.3d 1435
(D.C. Cir. 1997), the District of Columbia Circuit held
that the employer’s comments in support of its demand
for a wage and benefit reduction did not amount to a
claim of inability to pay because the employer’s com-
ments were made as part of an expression of its concerns
about its continued ability to be competitive, which un-
der Nielsen does not trigger an obligation to furnish fi-
nancial information. Id. at 1443. Significantly, the court
found the circumstances in ConAgra to be more like that
in Nielsen than in Shell Co. because the employer repeat-
edly stated that it remained profitable. Id. The court
10 We disagree with our dissenting colleague’s suggestion that Con-
Agra is distinguishable, in part, because the employer in that case an-
nounced the layoff of 40 employees and warned that the employer
could ship its product directly to Puerto Rico. These statements, in
essence, communicate the same message as the Respondent’s reference
to its future ability to “retain” employees’ jobs and that the “future” of
the Respondent was at stake, i.e., that acceptance of the final offer was
necessary for the Company’s economic survival.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 326
thus found that the employer’s claims about its need for
concessions, when considered in context, were not ex-
pressions about the immediacy of a present inability to
pay, but rather were merely expressions about its concern
for its ability to remain competitive in the future. Id.11
In contrast, here the Respondent’s February 25 letter did
convey a sense of immediacy to its claim that its eco-
nomic circumstances precluded it from paying anything
more than its final offer. The letter explained that accep-
tance of the final offer was one of several immediate
changes that had to be made because of the lost ridership
and revenue. And unlike the employer in ConAgra, the
Respondent never qualified its concerns with statements
suggesting that it remained profitable despite the loss of
revenue.12 To the contrary, it strongly suggested that it
was not profitable by repeatedly stressing the need to
“bring the bottom line back into the black.” Moreover,
the Respondent’s comments about the loss of revenue
were not raised in the context of any concerns about re-
maining competitive in the future, as in ConAgra.
Rather, the Respondent’s loss of revenue was portrayed
as permanent, and its proposals were premised on its
immediate need to make up for this permanent loss.
We also find no merit to the judge’s finding that even
if the Respondent’s words were tantamount to a claim of
inability to pay, the Respondent retracted that claim
when its attorney responded to the Union’s request for
information.13 In its letter responding to the Union’s
information request, the Respondent’s attorney, Des-
mond Massey, denied that the Respondent had made
either an “explicit or implicit” claim of financial inability
to pay. He did not make any reference to the statements
contained in the February 25 letter, let alone offer a re-

11 The D.C. Circuit also alluded to the issue of whether Shell Co.
could be reconciled with Nielsen, but then proceeded to resolve that
issue by noting that the Board explicitly reconciled the two decisions in
Shell Co. by finding that the statements in Nielsen referring to the fact
that the respondent was still making a profit were not present in Shell
Co., 117 F.3d at 1443.
12 We note that even the judge acknowledged that these repeated as-
sertions of a loss of revenue in these circumstances could reasonably be
construed as meaning that the Respondent was not profitable.
13 We find no merit to the dissent’s contention that there are no ex-
ceptions to the judge’s finding that the Respondent retracted its claim
of inability to pay. The General Counsel excepted to the judge’s find-
ing that the Respondent did not violate Sec. 8(a)(5) by failing to pro-
vide the Union with the requested financial information. Clearly, this
exception includes the issue of whether the claim was retracted. It
defies logic to construe the General Counsel’s exceptions as applicable
only to the issue of whether a claim of inability to pay was made, but
not to the finding that one was withdrawn. Because any reasonable
construction of this exception leaves no doubt that it encompasses the
judge’s finding that the claim was retracted, we do not agree with the
dissent that the exception is so lacking in specificity that it warrants a
finding, under Sec. 102.46 of the Board’s Rules, that there are no ex-
ceptions applicable to this issue.
traction of those statements. Indeed, a retraction of a
particular statement, by its very nature, implies an ac-
knowledgement that the statement was made. Massey’s
letter completely ignores the claims made in the February
25 letter and instead merely denies that the Respondent
has ever claimed an inability to pay. It does not commu-
nicate a retraction of any such claim.14
In sum, we find that the statements made in the Re-
spondent’s February 25 letter to employees, when con-
sidered in the context of the Respondent’s repeated asser-
tions during negotiations about its loss of ridership and
revenue, effectively communicated a claim of a present
inability to pay anything more than that contained in its
final offer, and that this claim triggered an obligation to
furnish the Union with the requested financial informa-
tion. Accordingly, the Respondent’s refusal to furnish
the requested financial information violated Section
8(a)(5) of the Act. It is uncontested that the Respon-
dent’s financial condition was a central issue in the nego-
tiations, as it related to the economic proposals on which
the parties could not agree. Accordingly, the Respon-
dent’s implementation of its final offer was likewise
unlawful because the failure to furnish the requested in-
formation precluded the parties from reaching a valid
impasse.
ORDER
The National Labor Relations Board orders that the
Respondent, Lakeland Bus Lines, Inc., Dover, New Jer-
sey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to provide Amalgamated Transit Union,
Local 1614, AFL–CIO with financial information re-
quested in its letter dated February 26, 1997.
(b) Refusing to bargain in good faith with the Union
by implementing unilateral changes in employees’ terms
and conditions of employment without first having
reached a valid impasse in bargaining with the Union.
14 We thus find that Central Management Co., 314 NLRB 763
(1994), cited by the judge, is distinguishable. Unlike the Respondent’s
attorney, the employer there did not deny having made a claim of in-
ability to pay. Rather, the employer clearly stated that it “does not
claim inability to pay.” The union, in turn, admitted that the employer
was no longer claiming inability to pay. Citing this admission, the
Board found that the employer’s “withdrawal of its claim was effec-
tive.” Here, there was neither a clear retraction by the Respondent, nor
a corresponding acknowledgement by the Union. In any case,
Massey’s letter is better understood less as a change in the Respon-
dent’s bargaining position—which we have found was based on a claim
of inability to pay—than as an attempt to justify its refusal to provide
financial information to the Union. On the record as a whole, we be-
lieve that Respondent clearly failed to bargain in good faith.
LAKELAND BUS LINES 327
(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 necessary to effec-
tuate the policies of the Act.
(a) Provide the Union with the financial information
requested by its letter dated February 26, 1997.
(b) On request of the Union, rescind all unilateral
changes in terms and conditions of employment imple-
mented on March 28, 1997, and restore all terms and
conditions of employment as they existed prior to the
March 28, 1997 implementation, making whole employ-
ees adversely affected pursuant to Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(c) 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 re-
cords 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.
(d) Within 14 days after service by the Region, post at
its facility in Dover, New Jersey, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. 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 proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 11, 1997.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certificate of a re-
sponsible official on a form provided by the Region at-

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
testing to the steps that the Respondent has taken to com-
ply.

CHAIRMAN HURTGEN, dissenting.
The judge found that the Respondent did not violate
Section 8(a)(5) of the Act by refusing the Union’s re-
quest for financial information.1 Relying on Nielsen
Lithographing Co., 305 NLRB 697 (1991), affd. sub
nom. Graphic Communications Local 50B v. NLRB, 977
F.2d 1169 (7th Cir. 1992), the judge found that inas-
much as the Respondent did not claim that—either dur-
ing negotiations, or during the term of the contract being
negotiated—it was unable to pay the wage increase
sought by the Union, the Respondent was not required to
provide the requested information. My colleagues re-
verse. They do not reach the central argument raised by
the General Counsel and Charging Party, i.e. that the
Board should overrule Nielsen. However, the majority
seeks to achieve that result by purporting to distinguish
the instant case from Nielsen. I reject their efforts and
find that Nielsen governs. Applying Nielsen, I find that,
because the Respondent never expressly or implicitly
pled an inability to pay the wage increase that the Union
sought in negotiations, the Union was not entitled to the
requested financial information. Accordingly, I would
dismiss the 8(a)(5) information allegation. Further, as
the General Counsel concedes that absent this 8(a)(5)
violation, the subsequent impasse was lawful, I would
additionally dismiss allegations that the Respondent
made unlawful unilateral changes when implementing its
bargaining proposals after impasse.
Legal Principles
It is well settled that an employer is required to pro-
vide the exclusive bargaining representative of its em-
ployees with requested information that is relevant to that
representative’s proper performance of its duties. NLRB
v. ACME Industrial Co., 385 U.S. 432, 435–436 (1967).
It is equally well established, however, that information
about the financial condition of the employer is not pre-
sumptively relevant. Nielsen Lithographing, 305 NLRB
at 699. As stated in ConAgra, Inc. v. NLRB, 117 F.3d
1435, 1438 (D.C. Cir. 1997):

Although the relevance of information concerning the
terms and conditions of employment is presumed, see
Ohio Power Co., 216 NLRB 987 (1975), no such pre-
sumption applies to an employer’s information regard-
ing its financial structure and condition, and a union
1 Because he found that the Respondent did not violate the Act in
this regard, the judge additionally recommended dismissing allegations
that the Respondent violated Sec. 8(a)(5) by thereafter implementing its
final bargaining proposal after impasse.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 328
must demonstrate that any requested financial informa-
tion is relevant to the negotiations in order to require
the employer to turn it over. See International Wood-
workers v. NLRB, 263 F.2d 483, 485 (D.C. Cir. 1959).

See also Steelworkers Local 14534 v. NLRB, 983 F.2d 240,
243 (D.C. Cir. 1993).
In order to meet its burden of proving relevance, the
union must establish that the employer has claimed that it
is financially unable to pay the amounts proposed by the
union in negotiations. NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956).
In Nielsen Lithographing, the Board defined the “in-
ability to pay,” which triggers the employer’s obligation
to provide requested financial information. The Board
said:

[A]n employer’s obligation to open its books does not
arise unless the employer has predicated its bargaining
stance on assertions about its inability to pay during the
term of the bargaining agreement under negotiation.
[Footnote omitted.]
. . . .
By contrast, the employer who claims only economic
difficulties or business losses or the prospect of layoffs
is simply saying that it does not want to pay.

305 NLRB at 700.
In enforcing the Board’s Nielsen decision, the Seventh
Circuit elaborated on the term “inability to pay.” The
court noted that Nielsen sought concessions in bargain-
ing to reduce its labor costs. However, the court said
that:

[Nielsen] did not base the demand on any claim that it
was in financial jeopardy, strapped for cash, broke or
about to go broke, unprofitable, or otherwise unable to
pay the existing level of wages and fringe benefits.
. . . .
If the employer claims that it cannot afford to pay a
higher wage or, as here, the existing wage, the union is
entitled to demand substantiation in the employer’s fi-
nancial records . . . But there isn’t a hint of that
here . . . All that Nielsen was claiming was that if it
didn’t do anything about its labor costs it would con-
tinue to lose business and lay off workers. It didn’t
claim that it was in any financial trouble.

Graphic Communications Local 508 v. NLRB, 977 F.2d
1168, 1170 (7th Cir. 1992). Because Nielsen was not claim-
ing a financial inability to pay, the court concluded that the
union knew everything it needed to know for purposes of
bargaining, and to decide whether to pursue economic ac-
tion (i.e., call a strike). Id. at 1171.
In subsequent cases, the Board and courts have made
clear that only when a present inability to pay has been
asserted will the union be entitled to requested financial
information from the employer. For example, in Shell
Co., 313 NLRB 133 (1993), the Board found that an em-
ployer’s claims that conditions were “very bad[],” “criti-
cal,” a “matter of ‘“survival,”’ and that “we need your
help, your assistance, because of this condition,” were
tantamount to a claim of present inability to pay, and
triggered the obligation to provide requested financial
information. Conversely, where the employer merely
states that it is “having trouble staying afloat,”2 the “well
has run dry,”3 or “claims only general economic difficul-
ties or business losses” as the reason for its position, the
employer may lawfully refuse to hand over financial in-
formation.” Nielsen, 305 NLRB at 700, discussed in
Stroehmann Bakeries, Inc. v. NLRB, 95 F.3d 218, 222
(2d Cir. 1996). Nor will an employer be required to open
its books to the union on the basis of the employer’s con-
tentions that “its financial condition is bleak, or that it is
suffering losses, or encountering economic difficulties.”
Wisconsin Steel Industries, 318 NLRB 212, 224 (1995).
When determining whether an employer is claiming a
present inability to pay in bargaining, the Board looks
not at isolated words, but at the record as a whole. In
Burruss Transfer, 307 NLRB 226 (1992), the employer
had informed the union, months before negotiations
commenced, that it could not afford to pay employees
more than they currently were making. And, during ne-
gotiations, the employer informed the union that: it did
not feel it could pay the Union’s health care proposal; its
Dun & Bradstreet report “paint[ed] an entirely different
picture” than the union’s claim that the employer could
meet its economic demands; and, if it paid what the un-
ion had proposed, it “would not be able to survive.” De-
spite these broad statements, the Board held that Burruss
was not required to provide the requested financial in-
formation because the overall tenor of its statements in
bargaining was only that it would be competitively dis-
advantaged by the union’s bargaining proposal, and not
that it was presently unable to meet the union’s bargain-
ing demands.
The Board has further held that where—in conjunction
with its claims of financial difficulties—the employer
makes clear that it is not pleading poverty or an inability
to pay, no obligation to provide information will be
found. See, e.g., Genstar Stone Products, supra. Finally,

2 Torrington Extend-A-Care Employee Assn. v. NLRB, 17 F.3d 580,
587 (2d Cir. 1994).
3 Genstar Stone Products Co., 317 NLRB 1293, 1298 (1995).
LAKELAND BUS LINES 329
even where an employer initially claims an inability to
pay, if it subsequently makes clear that it is neither
claiming poverty nor a present inability to pay, the Board
will not require the employer to open its books to the
union. Central Management Co., 314 NLRB 763, 768–
769 (1994).4
Instant Case
Preliminarily, it is important to note what is not in is-
sue in this case. As stipulated by the General Counsel,
this is not a case where the Respondent—at any time
during contract negotiations—specifically claimed an
inability to pay what the Union proposed in contract ne-
gotiations. Nor is it a case where the Respondent ever
claimed that it was unprofitable. Rather, the General
Counsel alleges, and my colleagues find, that the Re-
spondent effectively pled poverty. Like the judge, I
strongly disagree.
The parties’ contract was set to expire in January 1997.
Before negotiations commenced in November 1996 for a
successor agreement, the Respondent lost 500 daily
round trip bus fares to a competitor—a newly created,
subsidized rail line service. This competition and loss of
revenues was known to the Respondent, the Union, and
employees prior to negotiations. Indeed, the Union con-
ceded that it knew that the Respondent had been hurt
competitively by the new rail line.
In negotiations for a new agreement, the Union ini-
tially proposed a wage increase. The Respondent, citing
lost revenues attributable to the rail line competition,
conversely sought, among other things, a wage freeze
and a change in the “spread time rules.”5 The parties
engaged in 11 bargaining sessions, including a final
meeting on February 21, 1997. During these sessions,
the Respondent frequently referred to its lost ridership.
However, as credited by the judge, at no time during bar-
gaining did the Respondent claim that it was unable to
meet the Union’s bargaining demands. Neither did the

4 In two cases where the Board found that the employers’ comments
in bargaining were tantamount to claims of present inability to pay
under Nielsen, reviewing courts disagreed. Stroehmann Bakeries, Inc.,
318 NLRB 1069 (1995), enf. denied 95 F.3d 218 (2d Cir. 1996); Con-
Agra, Inc., 321 NLRB 944 (1996), enf. denied 117 F.3d 1435 (D.C.
Cir. 1997). As discussed below, I agree with the judge that those cases
are factually distinguishable from this one. Thus, it is unnecessary for
me to pass on the courts’ views, other than to note a judicial hostility to
the Board’s attempts to distinguish Nielsen.
5 About half of the Respondent’s busdriver employees worked split
shifts, where their working hours sandwiched several nonwork hours.
“Spread time rules” refer to the amount of total hours—work and non-
work—after which a split-shift driver would be entitled to overtime
pay. Under the expiring contract, overtime was available after 11 hours.
The Respondent sought in negotiations to increase the amount of time
before overtime would be paid.
Union request financial information from the Respondent
during these bargaining sessions.
By the February 21 bargaining session, agreement had
been reached on many issues. The major remaining
sticking point was the Respondent’s proposal to increase
the spread time from 11 to 11-1/2 hours before overtime
would be paid.6 In the face of the Union’s opposition,
the Respondent submitted a proposal which included an
11-1/2 hour spread-time provision, but also provided a
$500 one-time payment to the affected drivers, to offset
their loss of overtime pay.7 At the February 21 session,
the Union agreed to the Respondent’s proposed wage
freeze and the $500 payment, but continued to insist on
the 11-hour spread-time provision.
On February 25, the Respondent submitted its final of-
fer to the Union. On the same date, the Respondent’s
president wrote the unit employees, stating that:

I am sure that at some time in your personal lives
you have had setbacks that have forced you to re-
evaluate your manner of running your household, re-
adjust you expenses and cut back on your day to day
expenses as well as ask for the cooperation of each
member of your family.
Well, here at your Lakeland family, MIDTOWN
DIRECT has made us do just that. As you know, we
have lost 7,500 riders per week to New Jersey Tran-
sit Rail. However, we are attempting to do it with
minimal impact on each of the members of our fam-
ily, i.e. YOU.
I know there are many skeptics among us who
feel the job could be done better and, if this is so, we
ask that you come to us personally rather than send
anonymous suggestions and criticisms so that all of
us may see why and where such ideas are coming
from and how much weight these communications
carry.
In today’s environment, it seems all we hear
about the large corporations are “DOWNSIZING”
and most of them do not take into consideration em-
ployee seniority and loyalty. Their only objective is
to eliminate jobs so their bottom line gets fatter, at
the expense of all the employees who should matter
most.
Well, this is not my style nor was it ever Bernie’s
way of doing things. In all of the years of operation,
even the ones that were not so good, we always
6 The Respondent previously had proposed that drivers work longer
periods of time before overtime would be paid, but it reduced its pro-
posal in the course of bargaining.
7 The $500-per-driver figure (or roughly $50,000 total) reflected the
Respondent’s estimate of the cost differential, over a year’s time, be-
tween an 11 and 11-1/2-hour spread-time provision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 330
managed to give what we could to our employees. If
we had not had this philosophy, you would not be
the highest paid private sector busdrivers in the
United States, or have the outstanding pension,
health plan and many of the fringe benefits, that we
all enjoy today.
[As] those of you who have been around for a
while know, I am not one to “cry wolf.” I believe in
being honest, and this is just what I am trying to do.
Simply stated, we are trying to bring the bottom line
back into the black and we are doing this by increas-
ing charters, reducing liability insurance costs, and
negotiating with NJT for additional lines to utilize
our manpower and equipment. Please do not think
the whole burden rests on your shoulders.
We are simply all doing what must be done, and
now, we are asking for help from our LAKELAND
FAMILY so we may retain your jobs and get back in
the black in the short term and continue to share our
good fortunes as we have in the past.
Therefore, I ask you to give the enclosed Final
Offer your serious consideration and vote YES to rat-
ify it. The future of Lakeland depends on it.

On February 26, the Union wrote the Respondent, stat-
ing that it could not understand Respondent’s claim that
it was losing money due to rival rail line transportation
while simultaneously offering $500 to employees af-
fected by the contractual spread-time provision. The
Union requested that the Respondent provide it with
company books and records so that the Union could as-
certain the extent of loss, if any, that the Respondent had
sustained.
On March 11, the Respondent wrote the Union, deny-
ing its request for information. The Respondent stated
that

No claim of financial inability, explicit or im-
plicit, was made by [Respondent’s counsel] or any
company official, nor does your letter, on its face,
assert that any Lakeland official/spokesperson made
such a representation. Indeed, if the Company was
positing that it “could not pay,” it would have hardly
offered the $500 per man lump sum bonus in ex-
change for the Union’s agreement on the 11.5 hour
“spread.”

Accordingly, the Respondent wrote that, under Truitt and
Nielsen Lithographing, the Union was not entitled to the
requested financial information.
On March 20, the Union renewed its request for the fi-
nancial information stating:

[We] feel that we have every right to inspect the Com-
pany books and records since you are, in reality, taking
the position that [Respondent] is losing money and that
is the reason why it seeks a twenty-one month wage
freeze and a reduction in wages through the increase in
spread time.

In its March 27 reply, the Respondent reiterated that at no
time had it claimed a present inability to pay or an inability
to pay during the life of the contract under negotiation. The
Respondent further stated that because the Union’s sole
claim of entitlement to company records was based on the
Respondent’s assertion that it was “losing money,” the Un-
ion had no legal right to examine its books.
Following employee rejection of its final offer, the Re-
spondent implemented the offer about March 28, 1997.
Analysis
Based on these facts, and the applicable legal prece-
dent, I agree with the judge that the Respondent did not
violate Section 8(a)(5) when it refused the Union’s re-
quest for financial information. The Respondent never
claimed that it could not pay employees what the Union
had proposed in negotiations. The Respondent merely
stated that it had sustained loses in ridership due to a new
rail transportation line. As in Nielsen, such claim of
“business losses” did not trigger the Respondent’s obli-
gation to provide information. Further, the fact that the
Respondent offered, as part of its February 21 bargaining
proposal, a $500 one-time payment to its split-shift driv-
ers made clear that it was not claiming an inability to
pay. My colleagues rely particularly on the Respon-
dent’s articulated desire to “get back into the black in the
short term.” Concededly the phrase implies that the Re-
spondent was losing money. However, there is a clear
distinction between “losing money” and “an inability to
pay.” A company can be losing money and yet have
sufficient assets to weather the storm for several years.
In the instant case, the Respondent may well have been
“losing money,” and it clearly wanted to reverse this as
soon as possible, but it never claimed that it had insuffi-
cient assets to meet the Union’s demands for the term of
a contract. To the contrary, its statements and actions
(e.g., the $500 offer) were precisely the other way.
Nor is this a case like Shell Co. where the employer
claimed that conditions were “critical” or a “matter of
survival.” On the contrary, the Respondent reassured
employees in its February 25 letter that it was taking
concrete steps to make up for revenues lost to rail rider-
ship, that it was not eliminating jobs, and that it was
striving “to get back in the black in the short term” so
that it could “continue to share our good fortunes as we
LAKELAND BUS LINES 331
have in the past.” These statements, unlike those in Shell
Co., were not tantamount to a claim of inability to pay.
Moreover, while my colleagues pay lip service to the
claim that the statements in the February 25 letter should
be “considered together and in context,” they fail to do
so. Honing in on references to “get[ting] back in the
black,” and the “future” of the company, they ignore the
overall tenor of the letter which demonstrates the Re-
spondent’s efforts to recoup lost revenues with minimal
impact on employees, so that the employees could con-
tinue to share in the Company’s historic good fortunes.
The fact that the Respondent exhorts employees in the
letter to accept its bargaining proposal as a means of fa-
cilitating this result in no way signals that conditions are
either “critical” or “a matter of survival,” as was claimed
in Shell Co. Further, as indicated above, there is a differ-
ence between a need to get “back in the black” and an
inability to pay. The former indicates current losses. The
latter indicates a lack of assets.
My colleagues also argue that the text of the Respon-
dent’s February 25 letter constituted a claim of inability
to pay “equally as alarming . . . if not more so” than the
employer statements in Stroehmann Bakeries, Inc., supra,
and ConAgra, Inc., supra. I find no support for the con-
tention. Thus, nothing in the February 25 letter is com-
parable to Stroehmann’s claims that: it has suffered
“huge” projected losses that were “disastrous” for its
“profitability;” “the Company could have gone out of
business.” Nor does this letter convey the message of the
employer in ConAgra that: “the situation is serious and
fragile,” “if we are not competitive we cannot survive,”
“we must do something to be able to survive,” and that if
immediate steps were not taken it was probable that the
respondent would not be there in the future.8
I additionally agree with the judge that even assuming,
arguendo, that certain conduct by the Respondent could
be construed as an implicit claim of “inability to pay,”
the Respondent subsequently made it clear, in its March
11 letter to the Union, that it had not been and was not
asserting such a claim. See Central Management Co.,
supra. Thus, the Respondent expressly stated that “I ad-
vised that the Company was losing money, not that the
Company’s financial condition precluded it from agree-
ing to the Union wage proposal. No claim of financial
inability, explicit or implicit was made.” The Respon-

8 Moreover, concurrent with these dire predictions in ConAgra, the
employer announced that it would permanently lay off 40 employees,
and informed the union that it was considering shipping its product to
Puerto Rico (which would render the facility at issue extraneous).
Contrary to the contention of my colleagues, there is a large distinction
between an actual layoff (in ConAgra) and the prospect of possible
layoff (instant case). The former obviously connotes a more dire pre-
sent situation.
dent reiterated this position on March 27 when it wrote
the Union that “[a]t no time did I or any Company offi-
cial claim a present inability to pay or a prospective in-
ability to pay during the life of the contract being negoti-
ated.”
My colleagues seek to distinguish Central Manage-
ment Co. They say that the employer there did not deny
making a prior claim of inability to pay. Rather, accord-
ing to my colleagues, the employer acknowledged mak-
ing that claim and then withdrew the claim. My col-
leagues argue that the Respondent here did not change its
position, i.e., it always claimed an inability to pay. In my
view, as discussed above, the Respondent never claimed
an inability to pay. In order to eliminate any possible
confusion on the point, the Respondent subsequently
reiterated the point even more clearly. Further, even if
the Respondent is now considered by my colleagues as
previously claiming an inability to pay, the Respondent,
(as in Central Management) withdrew from that position.
Finally, no exceptions were filed to the judge’s finding
that the Respondent’s March 11 and March 27 letters
constituted retractions of any Respondent claim of “in-
ability to pay.”9 Thus, the Respondent was not required
to provide the requested financial information. Accord-
ingly, I find no merit to my colleagues’ decision and or-
der to require the Respondent to provide the Union with
financial information.
Based on the foregoing, I find that the Respondent did
not violate Section 8(a)(5) by refusing to provide the
requested information. Accordingly, I would dismiss the
complaint.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
9 My colleagues say that the General Counsel did file exceptions as
to this finding. They infer this from the General Counsel’s exception to
the judge’s ultimate conclusion that there was no 8(a)(5) violation in
the failure to provide the information. However, under Section 102.46
of the Board’s Rules, exceptions must be specific. Thus, an exception
as to the ultimate legal conclusion is no substitute for an exception as to
a specific fact-finding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to provide Amalgamated Tran-
sit Union, Local 1614, AFL–CIO with financial informa-
tion requested in its letter dated February 26, 1997.
WE WILL NOT refuse to bargain in good faith with
the Union by changing employees’ terms and conditions
of employment without first having reached a valid im-
passe in bargaining with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL provide the Union with the financial infor-
mation requested by its letter dated February 26, 1997.
WE WILL on request of the Union, rescind all changes
in terms and conditions of employment implemented on
March 28, 1997 and restore all terms and conditions of
employment as they existed prior to the March 28, 1997
implementation, and WE WILL make whole employees
adversely affected by the March 28, 1997 implementa-
tion, with interest.
LAKELAND BUS LINES, INC.

Chevella Brown-Mayer, Esq., for the General Counsel.
Mark E. Tabakman, Esq., for the Respondent.
John Craner, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case was tried in Newark, New
Jersey, on December 1, 1998. The charge was filed by the Union on March 27, 1997, and the
complaint was issued on May 26, 1998. In substance, the complaint alleged
1. That since February 26 1997, the Respondent has failed and refused to provide to the
Union requested financial information.
2. That on or about March 28, 1997, the employer implemented its last offer notwithstand-
ing that there was no valid impasse because of the Respondent’s refusal to furnish the aforesaid
financial information.
It should be noted that the General Counsel concedes that at no time did the Respondent, by
any of its representatives, in haec verba, make a claim of inability to pay. The General Counsel
asserts that by virtue of the Employer’s demand for concessions from existing terms, (regres-
sive demands), statements that it was losing revenue because of competition from New Jersey
Transit and statements that it was operating in the red, that such statements in the aggregate,
constitute the equivalent of a claim of inability to pay.
The General Counsel concedes that but for the alleged refusal to furnish the financial in-
formation, a valid impasse was reached and therefore the Company would have been within its
rights in implementing its last offer.
The Respondent asserts that it was entitled, under prevailing law, to deny the Union’s re-
quest for financial information as it never claimed that it was unable to pay. It asserts that
although it did claim that the loss of ridership did result in a loss of money, it never claimed
that its overall operations were not profitable or that it was unable to meet the Union’s de-
mands.
The Respondent also asserts that the parties reached an impasse over an issue involving
spread time (related to overtime) and that the impasse had nothing to do with the request for
and refusal to furnish financial information. In this regard, the Respondent notes that the
impasse was reached before the information request was even made.
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Company operates a private bus services in New Jersey and has had a collective-
bargaining relationship with the Union for more than 20 years. The most recent contract,
covering about 87 drivers, expired on January 31, 1997. Since then, the Company has operated
without a contract, having put into effect the terms of its last offer.
Prior to the commencement of negotiations, the State of New Jersey instituted rail service
which overlapped some of the routes operated by Lakeland. As a consequence, the Company
lost about 500 round trip fares per day. As New Jersey’s rail service is highly subsidized and
quicker, it is unlikely that the Company could regain these riders. This loss of ridership was
known to the Company, the union, and the drivers as the parties entered into negotiations.
Negotiations for a new contract commenced in November 1996. The Union’s spokesman
was attorney John Craner and the Company’s spokesman was attorney Desmond Massey.
(Both of these individuals have long and extensive experience in labor relations.) There were a
total of 11 bargaining sessions. The final bargaining session took place on February 21, 1997,
and although the parties came close, they did not come to an agreement. It should be pointed
out that the General Counsel concedes that but for her allegation that the Company illegally
refused to furnish certain financial information, there would have been a valid impasse which
would have allowed the Company to implement all or part of its final offer. It should also be
noted that if an impasse was reached by February 21, 1997, this occurred before the Union
requested the information in dispute.
The Union proposed wage increases for the drivers, but this was rejected by the Company
which insisted on a wage freeze for an extended period of time. The demand for a wage
increase was thereafter dropped and the negotiations focused on the length of time that a wage
freeze would be imposed and on other company give-back demands. Thus, the entire focus of
the bargaining, from the Union’s perspective, was not on an attempt to get more for its mem-
bers, but on an attempt to defend its current benefits from erosion. One of the crucial give-
backs that the Company demanded was a change in the expired contract’s spread-time rules
which affected the amount of overtime that drivers could earn. The Company wanted to
modify these rules in order to reduce overtime and the Union wanted to retain the rules. This
was a critical issue between the parties.1
There is no dispute that at every opportunity, the Company’s counsel stressed that the
Company had lost ridership and was therefore losing money as a consequence. There is,
however, a dispute as to the exact nature of this claim. The Union’s witnesses testified that at
virtually every meeting, Massey said that the Company had lost riders and that the Company
was losing money in the sense that it was not profitable. On the other hand, Massey testified
that he said that the Company had lost ridership, had lost revenue, but that he never claimed
that the Company, as a whole, was losing money or was unprofitable. My sense is that Massey,

1 Under the old contract, spread time relates to the fact that many
drivers work in the morning and the evening and have a substantial
break in between. If an employee works from 6–9 a.m. and then works
from 4–7 p.m. his total worktime is 6 hours but his total time is 13
hours. If the agreed-upon spread time is 11 hours, his overtime begins
after the 11th hour and would result in 1 hour at premium pay. But if
the spread time was 12 hours, then his overtime would start after the
12th hour and he would receive zero hours of premium pay.
LAKELAND BUS LINES 333
who impressed me as a credible and careful person, continually referenced the loss of riders and
loss of revenue but steered clear of any claim that the Company was not profitable or that it was
operating at a loss. On the other hand, given what he did say at almost every meeting, I can
understand how the union negotiators would take his remarks as meaning that the Company
was not profitable.
As noted above the final bargaining session was held on February 21, 1997. At this meet-
ing, the parties were sequestered in separate rooms and John Tesauro, the executive director of
the New Jersey State Board of Mediation was there to assist in the negotiations and to transmit
offers from one side to the other. By this time, many issues had been agreed to although the
spread-time issue remained open and sticky.
John McHale, the Union’s president, testified that at the February 21 meeting, the Company
unexpectedly came up with an offer of a $500 bonus per man if the Union agreed to, what in
effect would be an additional 90-day extension of the already agreed-upon 16-month wage
freeze. He and Craner testified that the union negotiators were baffled as to where the Com-
pany was coming up with this money, as it had claimed throughout the negotiations that it was
losing riders and money. According to them, this put into question their assumption that the
Company was being entirely forthright in its lost money claims. The problem that they foresaw
was that given the offer of additional money made for the first time on February 21, they would
have difficulty facing their membership and convincing them that they did the right thing by
making so many concessions based on their acceptance of the Company’s lost money claims.
Massey’s version of this meeting, although generally consistent with the above, is different
in only one small detail. He asserts that at one point, Mediator Tesauro suggested that the
Company make a concession on the spread-time issue. Massey testified that the employer
representatives calculated that the daily cost of the existing spread-time provision was about $4
per day per driver, which resulted in a 1-year cost of about $50,000. Therefore, according to
Massey, he told Tesauro that the Company would offer that amount of money, equal to about
$500 per employee, as a one-time payment in exchange for the Union’s agreement to the
Company’s spread-time proposal. He states that he did not offer that money in consideration
for a further extension of the wage freeze. According to Massey, when Tesauro returned to the
company caucus, he said that Union Representative Mike Siano said that the Union would take
the money in exchange for an extension of the wage freeze, but would not agree to any change
in the existing spread-time rules.
The February 21 meeting was the last bargaining session and it is clear to me that the big-
gest sticking point was the spread-time issue. That is, had the parties been able to reach an
agreement on spread time, there is no doubt in my mind that an agreement would have been
reached on that date.
On February 25, 1997, Massey transmitted a letter to the Union enclosing a final offer. On
that same day, the Company by its president, sent a letter to its drivers detailing its position.
This stated:

[A]s you know, we have lost 7500 riders per week to
New Jersey Transit Rail. However, we are attempting to
do it with minimal impact on each of the members of our
family, i.e. YOU.
. . . .
For those of you who have been around for a while
know, I am not one to “cry wolf.” I believe in being hon-
est, and that is just what I am trying to do. Simply stated,
we are trying to bring the bottom line back into the black
and we are doing this by increasing charters, reducing li-
ability insurance costs and negotiating with NJT for addi-
tional lines to utilize our manpower and equipment….
We are simply all doing what must be done, and now,
we are asking for help from our LAKELAND FAMILY so
we may retain your jobs and get back in the black in the
short term and continue to share our good fortune as we
have in the past.
Therefore, I ask you to give the enclosed Final Offer
your serious consideration and vote YES to ratify it. The
future of Lakeland depends on it.

By letter dated February 26, 1997, union attorney Craner set forth his understanding of
what had taken place at the February 21 meeting and asked Massey to provide financial infor-
mation. The letter stated:

Despite the marathon negotiating session on Friday,
February 21, 1997, the parties came close to but did not
reach agreement on a new collective bargaining agree-
ment. The stumbling block appears to be the Company’s
desire for an increase in the spread to 11 ½ hours from the
present 11 hours.
The parties had agreed tentatively to a contract expira-
tion date of May 31, 1998. The company wanted the Un-
ion to agree to a no-strike—no lock-out clause for an addi-
tional 90 days and also was prepared to give each em-
ployee a $500 “bonus.” It turned out that the $500 was
tied to a spread increase and the parties could not agree at
that point and the negotiation session terminated.
The Union is having a great deal of difficulty in under-
standing the position of the company. On the one hand it
talks about its financial woes and looks for all types of
give-backs and at the same time offers the employees a
$500 bonus amounting to approximately $40,000. To the
Union, none of this makes sense. And, the reason it
doesn’t make sense is because the Union has been accept-
ing the representations of the Company as to the extent of
the losses it claims are due to the loss of passengers as a
result of the rail line which now competes with Lakeland
on its 24 line.
Accordingly, since the one-half hour spread seems so
critical and the company contends it is sustaining substan-
tial losses, the Union now feels it imperative to ascertain
the extent of this loss, if any and wants to have its ac-
countant inspect the company books and records before
any further negotiations take place or any “final offers” are
put on the table. The Union is prepared to sign whatever
confidentiality agreements are necessary and to have its
accounting representative sign off as well. Any refusal to
allow the Union to see the company financial records will
be considered to be an unfair labor practice.

On March 11, 1997, Massey responded to Craner’s letter and stated:

[T]o set the record straight, I advised that the Com-
pany was losing money, not that the company’s financial
condition precluded it from agreeing to the Union wage
proposal. No claim of financial inability, explicit or im-
plicit, was made by myself or any company official, nor
does your letter, on its face, assert that any Lakeland offi-
cial/spokesperson made such a representation. Indeed, if
the company was positing that it “could not pay,” it would
have hardly offered the $500 per man lump sum bonus in
exchange for the Union’s agreement on the 11.5 hour
“spread”. Your only assertions are that the company
claimed it had suffered business losses and those represen-
tations entitled the Union to examine the company’s
books.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334
Accordingly, under Truitt, the Union is not entitled to
examine the Company’s books. Moreover, the National
Labor Relations Board has recently held that an employer
who “claims only economic difficulties or business losses
or the prospect of layoffs is simply saying that it does not
want to pay,” as opposed to claiming that it cannot pay,
Nielsen Lithographing Company, 305 NLRB No. 90
(1991). Thus, as all you claim is that the Company made
representations of “substantial losses,” you are not entitled
to examination of the Company’s books even under your
jaundiced interpretation of the applicable precedent.

By letter dated March 20, 1997, Craner wrote to Massey as follows:

In light of your recent letter to me indicating that the
Company is not claiming a financial inability to pay, I am
at a total loss to understand the present position of the
company. On the one hand, Lakeland claims that it is los-
ing money and needs relief, and on the other hand does not
claim a financial inability to negotiate a wage increase.
I think the Company owes the Union an explanation as
to why it wants a twenty-one month contract with no wage
increase and an increase in the spread time, which would
reduce wages, if it has the financial ability to pay a wage
increase (which you proposed). If the reason is, as I sus-
pect that the company is losing money, then we have every
right to inspect the Company books and records to verify
that is the case.
I know that you have a tendency to get all excited
when anyone questions “management’s motives”, but the
fact is that your client is, in my view, negotiating in bad
faith. I therefore, feel that we have every right to inspect
the company books and records since you are, in reality,
taking the position that your client claims it is losing
money and that is the reason why it seeks a twenty-one
month wage freeze and a reduction in wages through the
increase of spread time. You are simply trying to disguise
this fact with a lot of verbiage that simply makes no sense.
In short, if Lakeland is losing money, as they have said to
the Union all along, then admit it and let us see the books
and records so we can convince our client’s members and
hopefully conclude the negotiations. The way things are
now, we have no evidence to support that alleged financial
inability and to the contrary, your letter seems to say just
the opposite. We need to know the reasons for the twenty
one month contract are and why the need for the increased
spread time.

In response, Massey wrote to Craner on March 27, 1997, as follows:

You evidently neither read my earlier letter nor the
NLRB holding in Nielsen. . . . At no time did I or any
Company official claim a present inability to pay or a pro-
spective inability to pay during the life of the contract be-
ing negotiated. The Board specifically held in Nielsen that
employer claims of business losses are not equivalent to a
claim of inability to pay and therefore do not trigger an
employer obligation to allow examination of its books. As
the only assertions you make in your March 20 letter are
that the Company claimed it was “losing money,” your
own statement of the facts supports the Company’s posi-
tion that it has no legal obligation to allow examination of
its books.

At some point, the employees of Lakeland voted to reject the Company’s final offer and the
Company, on or about March 28, 1997, implemented its last offer including the change in the
spread-time rules that it had proposed. It also included the one time $500 per employee pay-
ment.
Thereafter on October 27, 1997, the Union engaged in a strike and in a leaflet dated Octo-
ber 28, 1997, and distributed to commuters, stated:

During the course of negotiations, the company
claimed that they were losing revenue and needed relief.
The union offered to freeze wages for 16 months with a
wage increase in the last 2 years of the contract. Lakeland
rejected the offer and implemented a 21 month contract
with no increase and wage and charter rate cuts.
When A.T.U. Local 1614 requested an audit of their
books, Lakeland refused, admitting that they were not, in
fact, under any hardship from a loss of revenue, but in-
stead, chose not to offer any increases in wages.
The company has shown contempt for both its em-
ployees and passengers. Wage freezes and insensitive and
unnecessary cuts in service have taken their toll on the rid-
ership and employee morale.
We apologize for any inconvenience that may result
from sporadic work stoppages and we ask for your pa-
tience and support during these difficult times. It is our
hope that the company will come back to the bargaining
table and negotiate a fair and equitable settlement.
III. ANALYSIS
Once a collective-bargaining relationship has been established, both the Employer and the
Union, in accordance with Sections 8(a)(5), 8(b)(3), and 8(d) are obligated to bargain in good
faith. This means that each must negotiate with the intent of reaching an agreement and must
reduce to writing and execute any agreement that is reached. H.J. Heinz Co. v. NLRB 311 U.S.
514, 526 (1941).
The Act’s requirement that both unions and employers bargain in good faith necessarily as-
sumes that each side will act rationally with a legally compelled desire to reach an agreement.
On the other hand, Congress did not compel either side to agree to any particular form of
agreement and neither the Board nor the Court may “write” the terms of any collective-
bargaining agreement in an effort to decide what the parties should have agreed to. H.K. Porter
v NLRB, 379 U.S. 99 (1970), NLRB v. American National Insurance Co., 343 U.S. 395, (1952);
Peelle Co., 289 NLRB 113 (1988).
The Act’s requirement that there be bargaining and that it be in good faith, contains an im-
plied tension. On one hand, bargaining can be undertaken as a contest of brute force (within
limits)2 and on the other hand, a reasoned symposium where the parties undertake reasonable
discussion in an effort to compromise and reach the “best” accommodation for all sides.
Given that the law requires that bargaining be conducted in good faith and considering that
good faith requires at least some semblance of rationality and reasonableness, the Board and the
courts have recognized early on that there will be situations where a union may ask for, and an
employer may be obligated to furnish information so that reasoned discussion can take place.

2 Industrial warfare is not discouraged under the Act and a union
may engage in a strike while an employer may engage in a lockout.
There are, nevertheless, limits to the weapons that each side may use.
For example, an employer may not discharge employees because they
engage in a strike and a union may not engage in certain types of pro-
hibited secondary boycotts.
LAKELAND BUS LINES 335
NLRB v. Whitin, Machine Works, 217 F.2d. 593, (4th Cir. 1954) cert. denied 349 U.S. 905
(1955) (requiring the employer to furnish employee wage information during bargaining ).
As a general matter, there are two types of bargaining. One type deals with the making of a
contract and the other deals with discussions that take place after a contract is executed and
involves the enforcement of the contract. Assuming that good faith requires each side to
furnish appropriate information,3 the nature of relevant information will be different depending
on whether the parties are negotiating for a new contract or are involved in the discussion of a
grievance when one claims that the other may have breached the agreement. For example, it
would be hard for me to imagine that a union’s request for the entire content of employee
personnel folders would be relevant when negotiating a contract. On the other hand, such
information could be relevant where a grievance is pending and the union wants to determine if
the employee in question has been treated disparately from other similarly situated employees.
Because bargaining takes place in these two separate types of circumstances, there has de-
veloped a body of law regarding the duty to furnish information in each. For purposes of
negotiating a contract, the starting point is NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). For
cases involving the duty to furnish information in the context of enforcing an existing contract,
(grievance handling), one should look at cases such as NLRB v Acme Industrial Co., 385 U.S.
432 (1967), and Detroit Edison Co. v NLRB, 440 U.S. 301 (1979).
At the outset it should be noted that in the context of contract negotiations, certain types of
information are deemed to be presumptively relevant and a union need not separately demon-
strate particular relevance to the bargaining. Such information would include inter alia, the
names and addresses of the employees in the bargaining unit, their wages, and their existing
benefits. In this context, an employer would be required for example to furnish any current
payroll records for unit employees and any documents showing any insurance carriers that
provide existing medical or pension benefits for these employees. NLRB v. Whitin Machine
Works, supra.
If one were to consider that the core of collective bargaining is about money, then it would
seem logical to conclude that the most relevant information would be how much money was
available in the pot. After all, if a Union’s objective is to get a bigger piece of the pie, it should
have some idea as to how big that pie is. Put another and more prosaic way, it is fruitless to try
to get blood from a stone. And it would be equally fruitless for a union to expend time, effort,
and perhaps engage in a destructive strike, if there was little if any money available to meet its
demands and the expectations of the employees it represents. While a company’s financial
records may disclose many different things, to the extent that they disclose the extent to which
it is operating at a profit or loss, information of that kind would, on its face, seem to be pre-
sumptively useful and therefore relevant for the purposes of negotiating a contract.
And yet, financial information has always been treated differently. And one would expect
that the rationale for this would be more than the feeling that it is impolite to ask a gentleman
how much he earns or how much he has.
In NLRB v. Truitt Mfg Co., 110 NLRB 856 (1954), the Board’s trial examiner held that the
employer bargained in bad faith by refusing to grant a union’s request for a wage increase
based on its assertion that such an increase would put him out of a competitive position, while
at the same time refusing to furnish information to support that position. The Board did not
adopt this particular conclusion, but did find that “when an employer seeks to justify the refusal

3 The obligation to furnish information extends to both employers
and unions. While as a practical matter most information requests will
be made by a union, this does not mean that unions are free of this
obligation. For example if a union is seeking to have the employer
contribute money to a union run health and welfare fund, the union
would clearly have the obligation to furnish the employer, upon re-
quest, a copy of the trust agreement, any documents describing the plan
and perhaps even certain financial information regarding the plan’s
fiscal soundness. For examples of cases where unions were required to
furnish information to employers see, Graphic Communications Local
13 (Oakland Press), 233 NLRB 994 (1977), enfd. 598 F.2d 267 (D.C.
Cir. 1979), and Plasterers Local 346 (Brawner Plastering), 273 NLRB
1143, 1144 (1984).
of a wage increase upon an economic basis . . . the Act requires that upon request, the em-
ployer attempt to substantiate its economic position by reasonable proof.”
On appeal, the Circuit Court (NLRB v. Truitt Mfg. Co., 224 F.2d 869, 873 (4th Cir. 1955),
refused to enforce the Board’s order. In doing so, the Court seemed to rely on the concept of
confidentiality as being the basis for denying the information. Moreover, from the tone of the
opinion, it seems that the Court assumed that the union’s request for financial information was
somewhat illegitimate and not intended in good faith. In pertinent part, the court stated:

The statute requires good faith bargaining with respect
to wages and other matters affecting the terms and condi-
tions of employment, not with respect to matters which lie
within the province of management such as the financial
condition of the company, its manufacturing costs or the
payment of dividends. And we do not think that merely
because the company has objected to a proposed wage rate
on the ground that it cannot afford to pay it, good faith
bargaining requires it to open up its books to the union in
an effort to sustain the ground that it has taken. If such
were held to be the law, demand for examination of books
could be used a club to force employers to agree to an un-
justified wage rate rather than disclose their financial con-
dition with such confidential matters as manufacturing
costs, which could conceivably be used to their great dam-
age.

Although the court of appeals did not explain how the disclosure of financial information,
could conceivably be used to cause “great damage,” it seems that a confidentiality defense was
implicitly accepted by all parties in the arguments before the Supreme Court because the basis
for the assumption itself is not discussed. Instead, a majority of the Supreme Court held that if
the employer, during bargaining, made a claim of inability to pay, then good faith required that
the employer produce financial records to support its claim, (NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956). Stating that each case must turn on its particular facts, the Court’s majority also
stated at 152–153:

Good-faith bargaining necessarily requires that claims made by either bargainer should be
honest claims. This is true about an asserted inability to pay an increase in wages. If such
an argument is important enough to present in the give and take of bargaining, it is impor-
tant enough to require some sort of proof of its accuracy. And it would certainly not be far-
fetched for a truer of fact to reach the conclusion that bargaining lacks good faith when an
employer mechanically repeats a claim of inability to pay without making the slightest ef-
fort to substantiate the claim. Such has been the holding of the Labor Board since shortly
after the passage of the Wagner Act. In Pioneer Pearl Button Co., decided in 1936, where
the employer's representative relied on the company’s asserted “poor financial condition,”
the Board said: “He did no more than take refuge in the assertion that the respondent's fi-
nancial condition was poor; he refused either to prove his statement, or to permit independ-
ent verification. This is not collective bargaining.” This was the position of the Board when
the Taft-Hartley Act was passed in 1947 and has been its position ever since. We agree
with the Board that a refusal to attempt to substantiate a claim of inability to pay increased
wages may support a finding of a failure to bargain in good faith. The Board concluded that
under the facts and circumstances of this case the respondent was guilty of an unfair labor
practice in failing to bargain in good faith. We see no reason to disturb the findings of the
Board. We do not hold, however, that in every case in which economic inability is raised as
an argument against increased wages it automatically follows that the employees are enti-
tled to substantiating evidence. Each case must turn upon its particular facts. The inquiry
must always be whether or not under the circumstances of the particular case the statutory
obligation to bargain in good faith has been met. Since we conclude that there is support in
the record for the conclusion of the Board here that respondent did not bargain in good
faith, it was error for the Court of Appeals to set aside the Board’s order and deny en-
forcement.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
Subsequent cases involving requests for financial information, have almost invariably focused
on the words used at the bargaining table; the question being whether or not those words amounted
to a claim of inability to pay.4 That is, the focus of the argument has been a semantic one. Al-
though I cannot claim to have read every case and article on this subject, it seems to me that those I
have read assume that financial information has an aura of confidentiality. Nevertheless, I have
rarely seen any explanation regarding the assumption that disclosure of financial information could
pose a danger to a company.5 And if the assumption is correct, I wonder how it is that thousands of
American companies manage to compete successfully in local and global markets while disclosing,
in detail, their income and financial statements, on a quarterly basis, to the public via the Securities
and Exchange Commission.6
Many pieces of information kept by employers are declared to be confidential, but in the con-
text of labor relations, few are accorded a right to secrecy.7 First, some information such as
employee wage, name, and address data are presumptively relevant . Second, even if there is some
basis for a confidentiality argument, that contention will fail if there is an overriding interest in
disclosing the information. See for example, Olivetti Office U.S.A. Inc. v. NLRB, 926 F.2d 181,
188–189 (2d Cir. 1991) (In Olivetti, the court also stated that the burden is on the employer to
establish confidentiality of relevant information and that this must be done by more than conclusory
assertions). Thus, in bargaining cases, the Board and the courts have often rejected confidentiality
claims. See General Electric Co., v. NLRB, 466 F.2d 1177 (6th Cir., 1972) (wage data); NLRB v.
Frontier Homes Corp., 371 F.2d 974 (8th Cir. 1967) (selling price lists); Curtis Wright Corp. v.
NLRB, 347 F.2d 61 (3d Cir 1965) (job evaluation and wage data). Moreover, even where “confi-
dential information” has legally been refused, there often are special circumstances which can be
asserted either for or against a decision requiring disclosure. For example in United Aircraft Corp.,
192 NLRB 382, 390 (1971) the Board held that doctor’s records are not disclosable absent an
employee’s consent unless they are needed for a specific grievance. In Shell Co. v. NLRB 457 F.2d
615, 619 (9th Cir. 1975), the court held that the employer did not have to furnish employees’ names
without consent, when it was clearly established that there was a clear and present danger of
harassment and violence.
The Supreme Court in Detroit Edison Co., v. NLRB, supra., held that where information was
truly confidential, the employer’s (and its employees’) interests in nondisclosure may in certain
circumstances trump the fact that the information is plainly relevant to bargaining about a griev-
ance. In that case, the company had a program of giving aptitude tests to employees who applied
for certain jobs. When a group of employees failed the test, the union grieved on their behalf. In
support of the grievance, the union asked for the test questions and answers and the actual test
scores of the individuals. The company refused, but offered instead to furnish the test questions and
answers to an independent expert and to provide test scores if consented to by the individuals. The
Board and the court of appeals rejected this position and held that the company was required to

4 However, in Circuit Wise, Inc., 306 NLRB 766, 768 (1992), the
Board held that the company was obligated to furnish financial infor-
mation not because it pleaded inability to pay, but because it proposed a
profit sharing plan. In that context, the Board held that the union was
entitled to information regarding to company’s past profits so as to be
able to evaluate the prospect for future profits upon which the com-
pany’s proposal was based.
5 See “The Employer’s Duty to Supply Financial Information to the
Union When the Employer Asserted an Inability To Pay?—or—(The
Boss Says Times Are Tough; How Truitt Is.) 8 Lab. Law. 815 (1992).
There the author states among other things; “Management asserts its
inherent right to manage and the need for confidentiality to protect its
business plans, its competitive position, its customers, its employees,
and its credit line.”
6 Assuming for arguments sake, that the Board and the courts de-
cided to be more expansive regarding the requirement to disclose finan-
cial information, small companies with limited resources should not, as
a practical matter, be required to hire financial officers and be com-
pelled to compile the types of information and reports required by the
SEC.
7 Certain information such as patents, industrial processes, or trade
secrets would obviously be considered to be confidential.
provide all of the requested information to the union, although the Board did state that the union
should not disclose the test questions and answers to other employees. The Supreme Court held
that the company met its bargaining obligation by offering to furnish the information in the manner
which it proposed, and concluded that if the test questions and answers were disclosed, this would
effectively eliminate the efficacy of using the test in the future. It also said that employees might
object to having their test scores known and that as this was a legitimate confidentiality concern, the
company should be allowed to refuse to furnish that information unless an employee consented. In
sum, the Court concluded that where there was information which was of a nature that its disclosure
would demonstrably be harmful to the employer and/or its employees, then such information may
be considered confidential and the right to withhold it must be overweighed by the necessity for its
disclosure.
The Respondent relies heavily on the Board’s opinion in Nielsen Lithographing Co., 305
NLRB 697 (1991). While arguing that the facts in the present case are distinguishable from those
in Nielsen, the General Counsel also argues that the Board should reconsider that decision and
adopt the dissenting views of the Board’s then Chairman Stephens who stated at 705:

The financial information requested by the Union could either substantiate or tend to dis-
prove the [Employer’s] contention that the employees’ wages and benefits were responsible
for the continuing loss of their jobs. This, in turn might give the Union a basis for reassess-
ing, and possibly altering, its own bargaining posture. It would know whether there was a
source of funds for continued payment of wages and benefits of current employees. The
Union would also therefore have a basis for recommending a bargaining position to the unit
employees—who doubtless would be concerned about both the [Employer’s] predictions of
continuing job loss and the prospect of smaller paychecks and reduced fringe benefits if [its]
demands were agreed to.

In Nielsen, the Board’s majority, after having its original decision remanded from the circuit
court, decided to adopt the opinion of the Seventh Circuit in NLRB v. Harvstone Mfg. Corp, 785
F.2d 570 (7th Cir. 1986), as the law on this subject matter. In Nielsen, they concluded that a claim
of competitive disadvantage was not the equivalent of a claim of a present inability to pay and the
Board dismissed the contention that the Union was entitled to the disclosure of financial informa-
tion.
With the exception of Circuit-Wise, (described at fn. 4), the Board, since Nielsen has concluded
in a number of cases that unless the employer’s comments at the bargaining table are the equivalent
of a claim of present inability to pay, the employer has no obligation to disclose financial informa-
tion to a union.8 Moreover, the cases relied on by the General Counsel are, in my opinion, distin-
guishable from the facts in the present case. Thus, in Shell Co., 313 NLRB 133 (1993), the em-
ployer was required to furnish financial information when it told the union that its present circum-
stances at its airport operation were “bad” and a matter of “survival.” Clearly, if a claim is being
made that the company’s circumstances are a matter of “survival” this is tantamount to claiming a
present inability to pay. Similarly, the claims in Stroehmann Bakeries, Inc., 318 NLRB 1069
(1995), are the equivalent of a claim of present inability to pay. In that case, the employer told the
Union that it had huge losses which it projected to continue, that it was not competitive, and that it
remained in business only due to the “deep pockets” of its parent company.9 The same thing can
be reasonably said for the facts in ConAgra, Inc., 321 NLRB 944 (1996), where the company
asserted that “the situation is serious and fragile,” that “if we are not competitive we cannot sur-
vive,” and that “we must do something to be able to survive.”
8 In Buruss Transfer, 307 NLRB 226, 228 (1992), the Board held
that a statement made away from the bargaining table and about 4
months prior to bargaining to the effect that the company could not
afford to pay more than it was currently paying, did not amount to a
claim of present inability to pay made during bargaining that would
trigger the employer’s obligation to furnish financial information. See
also Georgia -Pacific Corp., 305 NLRB 112, 116 (1991).
9 On appeal, the Second Circuit at Stroehmann Bakeries. Inc. v.
NLRB, 95 F.3d 218, 223 (2d Cir. 1996), refused to enforce this aspect
of the Board’s order stating that although the employer used the word
“cannot” it was evident from all the circumstances that what he really
meant was that he “would not” pay.
LAKELAND BUS LINES 337
The facts in the present case show that at no time during the negotiations did the employer
make any claim of inability to pay. Nor did it make any claim that its survival was at stake or that it
might not be able to continue in business. While it is true that the company emphasized that the
creation of a competing rail line had reduced the number of riders and revenue, this is not, in my
opinion, tantamount to a plea of poverty amounting to a claim of present inability to pay as required
by Nielsen. Nor, under Nielsen, does the fact that the company sought a wage freeze or other give-
backs amount to the equivalent of a claim of current inability to pay.
Finally, even if any words by the Respondent’s representatives could conceivably be construed
as being tantamount to a claim of inability to pay, it is clear that such a claim, if made, was soon
retracted when the Company’s attorney responded to the union’s attorney’s request for financial
information. See Central Management Co., 314 NLRB 763, 769 (1994).
While I have spent a large part of this decision discussing the history of the law dealing with
financial disclosure in the context of labor bargaining, it is my opinion that under current Board
law, the employer is not obligated to furnish the requested financial information.10 That being the
case, the employer and the Union were at a legitimate impasse after the meeting on February 21,
1997, and the employer was free to implement all or part of its last offer.
CONCLUSION OF LAW
The Employer has not violated the Act in any manner alleged in the complaint.
[Recommended Order omitted from publication.]

10 The reader might also want to look at; “Rethinking Financial In-
formation Disclosure Under the National Labor Relations Act,” 47
Vand. L. Rev 1905. (Nov. 1994).