National Extrusion & Manufacturing Co.

National Labor Relations Board - Administrative Judge Opinions

Jan 30, 2009

08-CA-037672 (N.L.R.B. Jan. 30, 2009)

JD-05-09
Bellefontaine, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KLB INDUSTRIES, INC. d/b/a NATIONAL
EXTRUSION & MANUFACTURING COMPANY,
and Cases 8–CA–37672
8–CA–37835
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE, AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA.
DECISION and ORDER
DAVID I. GOLDMAN
Administrative Law Judge
Karen N. Neilsen, (Region 9, NLRB)
of Cleveland, Ohio, appeared for the General Counsel
Kerry P. Hastings (Taft Stettinius & Hollister LLP)
of Cincinnati, Ohio, appeared for the Respondent
William Karges (UAW Legal Department)
of Detroit, Michigan filed a posthearing
brief on behalf of the Charging Party
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Table of Contents
Statement of the Case .................................................................................................... 1
Jurisdiction ..................................................................................................................... 1
Facts ............................................................................................................................ 2

A. Background ................................................................................................... 2
B. Some evidentiary and credibility considerations............................................. 3
C. The bargaining............................................................................................... 4
1. September 20 bargaining.................................................................... 4
2. September 21 bargaining.................................................................... 6
3. September 25 bargaining.................................................................... 7
4. September 28 bargaining.................................................................... 8
5. September 30 bargaining.................................................................... 9
6. October 2 bargaining ......................................................................... 12
7. October 3 bargaining and notice of contract termination ................... 13
8. October 4 information request........................................................... 14
9. October 5 bargaining and the October 8 “timed” proposal ............... 16
10. October 10 and 16 bargaining......................................................... 18
11. The Company’s response to the Union’s information request ......... 19
12. The Company’s October 19 lockout letter and
the Union’s October 21 response; the lockout begins................. 21
13. Subsequent bargaining ................................................................... 23
D. Pre-lockout events away from the bargaining table...................................... 24
E. Incidents after the lockout begins................................................................. 26
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Table of Contents (continued)
Analysis ........................................................................................................................ 27
A. Overall Bad-Faith Bargaining ...................................................................... 27
1. The Respondent’s health care proposal............................................ 29
2. The Timed offer ................................................................................ 34
3. 8(d) Notice issues............................................................................. 34
4. The termination of the extension agreement ..................................... 35
5. Lack of authority of bargainers.......................................................... 37
6. Requests for information................................................................... 37
a. Health care Information ......................................................... 38
b. Bonus information ................................................................. 39
c. Wage reduction information................................................... 39
7. Incidents away from the bargaining table.......................................... 48
B. The General Counsel’s Motion to Amend the Complaint .............................. 51
C. The Respondent’s call to the police on June 24
regarding the Union’s picket signs............................................................... 54
D. The Lockout (including the cancellation of health insurance,
COBRA Rights, and the hiring of replacements).......................................... 56
Conclusions of Law....................................................................................................... 61
Remedy ........................................................................................................................ 62
Order ......................................................................................................................... 63
Appendix ..................................................................................................................... 66

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Decision
DAVID I. GOLDMAN, Administrative Law Judge. These cases involve an employer that
locked out its employees and cancelled their group health insurance coverage in an effort to
pressure the employees’ union to accept its bargaining position. The Government contends that
the employer engaged in unlawful overall bad faith bargaining throughout the parties’ one month
of negotiations before the lockout. As part of the bad-faith bargaining, the Government alleges
that the employer unlawfully failed to provide the union with relevant and requested information.
The Government alleges that because of the bad-faith bargaining, the lockout of the employees
and cancellation of employee health insurance benefits was unlawful. The Government further
alleges that, in an incident occurring eight months after the lockout began, the employer
unlawfully called the police to its facility in response to lawful picketing activity. Finally, at trial
the Government sought to amend the complaint to add additional alleged violations involving a
range of conduct, on a range of theories, including a discharge, comments by management
regarding discussion of negotiations and potential strikes, and surveillance.
STATEMENT OF THE CASE
On March 12, 2008, the International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America (Union or UAW) filed an unfair labor practice charge
with Region 8 of NLRB (Board) against the KLB d/b/a National Extrusion & Manufacturing Co.
(Company or KLB). The charge was docketed by the Region as case number 8–CA–37672.
An amended charge was filed April 11, 2008, and a second amended charge was filed April 28,
2008. On April 30, 2008, the Board’s General Counsel, acting through Region 8’s Regional
Director, issued a complaint in the case alleging KLB violated the National Labor Relations Act
(Act). KLB filed a timely answer denying all alleged violations. On June 30, 2008, the Union
filed an additional unfair labor practice charge against KLB, docketed as case number 8–CA–
37835. On July 8, 2008, the General Counsel issued an order consolidating both cases and
issued a consolidated complaint alleging violations of the Act by KLB. KLB filed an answer to
the consolidated complaint on July 16, 2008.1
These cases were heard in Bellefontaine, Ohio, on five days between July 22 and 29,
2008. At the close of her case-in-chief, counsel for the General Counsel moved to file extensive
amendments to the complaint, each of which was opposed by the Respondent, on, among other
grounds, that the amendments were offered outside the applicable statute of limitations. I took
the General Counsel’s motion under advisement and it is discussed herein. Counsel for the
General Counsel, the Union, and the Respondent filed briefs in support of their positions on
September 22, 2008. On the entire record, I make the following findings of fact, conclusions of
law, and recommendations.
JURISDICTION
The complaint alleges, the Respondent admits, and I find that the Respondent is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The
complaint alleges, the Respondent admits, and I find that the UAW is a labor organization within
the meaning of Section 2(5) of the Act.

1I note that throughout this decision references to the complaint are to the extant
consolidated complaint and not to the original superseded version.
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FACTS
A. Background
KLB produces aluminum extrusion products under the name National Extrusion &
Manufacturing Co. at a facility in Bellefontaine, Ohio. KLB was formed and assumed ownership
of the facility in 1997. For many years, both before and after KLB’s assumption of the facility,
the UAW and its local union Local 1224A (collectively referred to as the Union or the UAW)
represented the facility’s production and maintenance employees.2 Upon assuming ownership
of the facility in 1997, KLB negotiated and entered into a collective-bargaining agreement with
the Union. A successor agreement was negotiated in 2000, and then again in 2004. The 2004
agreement was scheduled to terminate no earlier than September 30, 2007. As of September
2007, KLB employed 16 bargaining unit employees.
Konrad Young is the Union representative assigned to service the KLB bargaining unit.
He has serviced this unit since 1999 and in that capacity negotiated the 2000 and 2004
agreements with KLB. Young was the Union’s chief negotiator for the 2007 negotiations. He
was assisted by KLB employees Jack Conway, Ellen Potter, and Roger Leugers.
KLB’s chief negotiator was Attorney Brian Wakefield, an attorney with the law firm hired
to represent KLB in negotiations and in this unfair labor practice proceeding. Also on the
negotiating team for KLB was Craig Johnson, who served as the controller, treasurer, and
Human Resources manager for KLB. He was also one of KLB’s owners. Johnson had been
involved in the 1997, 2000, and 2004 negotiations with the Union. Wakefield was new to the
KLB-Union negotiations.
A federal mediator, Don Ellenberger, was present at most of the bargaining sessions but
not at the initial sessions.
On February 26, 2007,3 with the labor agreement set to expire October 30, the law firm
representing KLB in negotiations sent Young a letter notifying the Union that it intended to
terminate the agreement at expiration. The letter concluded by stating that “[w]e will be in touch
in the coming months to discuss the scheduling of collective bargaining negotiations.”4

2The bargaining unit (which is admitted to be appropriate for purposes of collective
bargaining) is composed of:
All hourly-paid production and maintenance employees in the Company’s
Bellefontaine, Ohio, plant but excluding all office and clerical employees, guards,
professional employees and all supervisors as defined in the Labor Management
Relations Act of 1947, as amended.
3All subsequent dates are in 2007 unless otherwise indicated.
4Like many collective-bargaining agreements, the agreement between KLB and the Union
provided a definite expiration date, but also provided that the contract would automatically
renew for an additional year unless either party notified the other of an intent to terminate the
agreement at least 60 days prior to the expiration date. In 2003, neither party sent such notice
of intent to terminate the 2000 Agreement, and the agreement automatically renewed for
another year. Feeling “caught off guard” by the automatic renewal in 2003, and determined to
avoid a recurrence in 2007, KLB sent the required notice seven months in advance of the
scheduled contract termination date.
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In fact, the parties did not speak again regarding negotiations until September 6. On
that date Young called Johnson and told him that although he had received a contract-
termination notice in February, no one had contacted him to schedule negotiations. Young told
Johnson that he had set aside the last two weeks of September for negotiations with KLB.
Young indicated that “if we did not get an agreement by the 30th that . . . as long as we were
negotiating and still talking, he was willing to extend the agreement.” Johnson told Young that
he would have KLB’s law firm contact Young to schedule negotiations. Within the next few days
Attorney Wakefield spoke with Young and the parties set September 20 for the first bargaining
session.
B. Some evidentiary and credibility considerations

At the hearing in this case, multiple witnesses recounted events from multiple bargaining
sessions. Not surprisingly, there were many discrepancies between witnesses, and even some
within the testimony of individual witnesses. My findings, set forth below, reflect my
determination of the most likely narrative of events at the bargaining table. In addition to oral
testimony at the hearing, in reconstructing events at the bargaining table I have relied upon
contemporaneous notes of bargaining taken by some of the witnesses and intended to record
discussion and events at the bargaining table. I accept these as evidence of what was stated at
the bargaining table and of what transpired in bargaining.5

In terms of the witnesses, the three union bargaining committee witnesses (Young,
Potter, and Conway) relied heavily on leading questions and on the reading of proposals or
notes presented to them. It was clear that they had limited independent memory of events. In
terms of events occurring at the negotiating table, for the most part I have relied upon (and
credited) the testimony of KLB witnesses Wakefield and Johnson over that of the union
bargaining committee witnesses. Both Johnson and Wakefield testified in a straightforward
manner, recounting events with a demeanor that inspired confidence that they were accurately
recalling what transpired in bargaining.
One evidentiary issue that arose in conjunction with Wakefield’s testimony warrants
comment. On cross examination Wakefield testified that in preparation for testimony he
reviewed bargaining proposals, materials in the “client file,” and emails exchanged between
himself and Johnson. In these files were certain documents that the Respondent did not
produce in response to the General Counsel’s subpoena duces tecum on grounds that they
were protected by the attorney client privilege and work product doctrine. A privilege log was
produced in their stead. When Wakefield testified that he had reviewed these documents the
General Counsel moved to have the documents produced pursuant to Federal Rule of Evidence
612. The Respondent opposed this demand.
After permitting the parties to argue the issue I declined to order production of these
documents, the privileged nature of which, the General Counsel did not dispute. I referenced
the fact that the General Counsel had not articulated any need for the documents and that I
would exercise my discretion not to order disclosure of the documents. I did not cite, but note
here that the Board’s recent decision in CNN America, 352 NLRB 265, 266 (2008) endorses the
extent of my discretion in that regard. Moreover, there was no assertion, much less showing,
that Wakefield reviewed the documents in question for the purpose of refreshing his

5Allis-Chalmers Mfg. Co., 179 NLRB 1, 2 (1969); NLRB v. Tex-Tan, Inc., 318 F.2d 472, 483
(5th Cir. 1963).
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recollection, or that his review of the privileged documents affected his testimony. As the Board
explained in CNN America, supra,
For Rule 612 to apply, the document(s) at issue must have been reviewed for the
purpose of refreshing a witness’ recollection. “[E]ven where a witness reviewed
a writing before or while testifying, if the witness did not rely on the writing to
refresh memory, Rule 612 confers no rights on the adverse party.”
* * * * * * * * *
In addition to Rule 612’s requirement regarding refreshing a witness'
memory, the Rule requires that such refreshing was undertaken “for the purpose
of testifying." As the advisory committee notes explain, the writing(s) must have
had an impact on the witness' testimony. In other words, merely looking at or
reviewing a document during the course of preparation for trial does not
automatically trigger Rule 612. The advisory committee stated that, by limiting
disclosable documents to those that have an impact on the witness' testimony,
the committee intended to safeguard against "fishing expeditions" and "wholesale
exploration" of the many files and papers that a witness may have used in
preparation for trial.
In this case, the preconditions for application of Rule 612 were not met. Indeed, the request for
the attorney client communications in question appeared to me to be precisely the “fishing
expedition” and “wholesale exploration” warned against by the Board. The fact that the witness
was an attorney and the review included documents that the attorney would reasonably expect
to be privileged communications does not undermine but rather bolsters the inapplicability of
Rule 612 as a basis to require production. See, "Report of House Committee on the Judiciary"
regarding FRE 612 ("The Committee intends that nothing in the Rule be construed as barring
the assertion of a privilege with respect to writings used by a witness to refresh his memory").
C. The bargaining
1. September 20 bargaining
The parties met for negotiations on September 20 at the Bellefontaine VFW hall located
across the street about a quarter block away from KLB’s facility.
As reflected in their opening proposals, the parties entered negotiations with vastly
different goals. The Union felt that employees’ wages were low, and anticipated and sought
wage increases over the life of the new contract with additional economic and noneconomic
changes that would benefit employees. Although I attribute it to posturing, at one or more times
in negotiations Young indicated to KLB that the union employees would not agree to a
concessionary contract. KLB, on the other hand, came to the table determined to cut labor
costs. Its goal was to save $100,000 annually. According to Johnson, KLB was determined to
reduce costs through bargaining in order to remain “competitive.” Johnson testified that KLB
never told the Union it could not afford the Union’s demands, but limited its expression of
financial concern to the need to stay “competitive.” As Johnson stated, “We did not want to
open ourselves up to being able to have our books examined.”
The Union’s opening proposal sought wage increases of $2 the first year, and $1 in the
second and again in the third year of the new contract. It sought monthly cost of living
adjustments (COLA) to wages, an additional paid holiday, three paid “personal days,” an
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increase in paid leave for bereavement leaves requiring significant travel, the reduction of
probationary and waiting period for benefits from 90 to 60 days employment, and a week’s
vacation pay in lieu of the performance bonus. The Union also proposed that disciplinary
actions were to be maintained for 6 months in an employee’s file (rather than the existing 18
months), and that the Company would furnish prescription safety glasses, pay $150 annually for
boots, add a janitor classification, and change the attendance policy so that absences excused
with a doctor’s note would not count against the attendance bonus calculations. The Union also
proposed that anyone (not just employees) entering the plant abide by all health and safety
rules and that there be no outsourcing while any employee was laid off.
KLB’s opening proposal was in the form of a copy of the current 2004 Agreement with
text to be eliminated struck-out and proposed additions in bold. Most prominently, the proposal
sought an across-the-board 20 percent reduction in wages the first year of the new contract.6 It
proposed reducing the employer’s matching 401(k) contribution from 6 percent to 3 percent of
an employee’s wages. It cut the shift differential provided for the agreement from 30 cents to 15
cents. It proposed eliminating double pay for Sunday work and work in excess of 12 hours in a
day.
Also of central interest to the parties, and to this case, was KLB’s proposal on “Group
Insurance,” which included major medical, disability benefits, life insurance, as well as general
health insurance. In its September 20 proposal KLB struck extensive language governing the
major medical insurance coverage, the disability income benefits, life insurance, and language
setting forth the deductibles, co-pays and payroll deductions that applied to the plan. KLB also
struck language in the 2004 Agreement that limited the Company’s right to change insurance
carriers or to become self insured to instances where “the benefits accorded are substantially
similar.” In place of this struck language, the Company proposed language stating: “The
Company will pay seventy-five percent (75%) and the employee will pay twenty-five percent
(25%) of the cost of group health insurance.”
KLB also proposed language reducing the right to medical leaves of absence from 24
months to 12 weeks, with questions on the subject left to the discretion of the Company, and
excluded from the grievance procedure.
The Company proposed maintaining disciplinary actions of record in employees’ files for
7 years, whereas under the current contract such matters were maintained for 18 months.
KLB proposed eliminating the three performance bonuses currently in existence (the
quality returns bonus, the safety incentive bonus, and the attendance bonus).
Another significant change proposed by KLB involved adding the word “not” in the
contract language describing the effect of an arbitrator’s award, so that the language read: “The
arbitrator’s award shall not be final and binding on both parties for the term of this Agreement.”
KLB’s proposal maintained the prohibition on strikes and lockouts for the term of the Agreement.

6Under this proposal the minimum straight time wage rate for the lowest paid positions, such
as fab operator, maintenance helper, and shipping associate, would be $8.20 per hour, and the
maximum straight time rate for the highest paid job in the unit, NEM Technician, would be
$12.27 an hour. Under KLB’s proposal newly hired employees could receive less and their
wages would increase by 10 percent every 6 months until they equaled the standard base rate.
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KLB indicated an intention to offer a proposal to change the vacation article of the
contract but that proposal was not made on September 20.
As the parties “walked through” KLB’s proposal, Young asked numerous questions or
offered comments. Generally, he reacted angrily to what he considered “one of the most
extreme documents for take-aways that I had ever participated in.”
Many of Young’s questions constituted requests for information from KLB relating to the
proposals, and particularly to the anticipated cost savings to be realized from the proposals as
well as the number of employees the particular proposal would affect. Wakefield noted the
questions in the margins of the proposal, and Johnson recorded the questions in notes he took
during bargaining.
Questioned by Young about the group insurance proposal, the KLB negotiators said they
had not meant to delete everything, and indicated that no change was proposed in subsections
B and C, which were the weekly disability and life insurance benefits. With regard to the
medical insurance, the deletions left Young unclear about the nature of the proposal. Young
pressed the KLB bargainers to explain “what is [the] proposal,” because the language left in the
proposal—“The Company will pay seventy-five percent (75%) and the employee will pay twenty-
five percent (25%) of the cost of group health insurance”—didn’t state whether it was the current
or some new plan to which this cost sharing would apply. Wakefield testified that KLB’s
proposal referred to continuation of the current plan (with a change in cost sharing). He
explained, “it couldn’t be anything else. I mean, it was talking about this particular plan.” He
suggested the Union understood this. Young testified that the Company indicated it would get
back to Young on this and he described the Company’s proposal as “incoherent.” He denied
that the Company explained that this proposal was based on maintaining the current plan and
its coverages. Potter also testified that she did not understand this to be the case. However,
Conway testified that he understood that what was being proposed was “the old plan” with a
change in cost to the employees. Young also expressed opposition to the language that would
permit the Company to unilaterally change health insurance—without guaranteeing substantially
similar coverage for employees—during the term of the contract.
As to the proposal to eliminate language requiring that changes to insurance during the
contract retain “substantially similar” benefits, Wakefield indicated to the Union that this
language was subject to negotiation, telling the Union “that this was the first day of negotiations,
that all of the things that were here not things that necessarily would be at the end.”
2. September 21 bargaining
The parties met again the next day, September 21. Prior to the meeting, Wakefield had
sent a letter to Young, referencing the multiple oral requests for information that were made the
day before. Wakefield requested that Young’s information requests be in writing “[t]o facilitate
timely and appropriate responses, and to minimize misunderstandings as to the nature of your
requests.” Young rejected Wakefield’s request, telling him that “I can't be limited to putting
everything in writing, because there's such a short duration for the negotiations.” After this the
Company provided much of the information requested the previous day, including information
on insurance costs, projected insurance savings using the 75/25 percent cost sharing, 401(k)
participation and proposed savings, and bonus, shift differential, and double overtime costs and
proposed savings.
The parties reviewed their proposals from the day before and went through and
discussed them. The parties discussed KLB’s proposal to extend the period to maintain records
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of discipline in employee files. The Company explained that the purpose of the proposal was to
maintain records for a period just beyond the statute of limitations for state law employment
claims in Ohio, and not so the Company could rely upon 6-year old disciplines in the
progressive discipline process. The Company agreed that its intent was not reflected in the
language they proposed and agreed to develop language to reflect that the reliance on past
discipline for determining future discipline would remain limited to 18 months. The Union
indicated it would withdraw its proposal on requiring everyone who entered the facility to obey
all rules and regulations. Stating that it was seeking to bridge the (huge) gap between the
parties on wage and pay proposals, the Union also withdrew its COLA proposal during this
bargaining session. It also made a counterproposal on health insurance, proposing that the
employee contribution (then at $35 a week) be increased to $155 monthly the first year, $160
the second, and $165 monthly the third year of the contract.7
During this session, the Company provided the Union with its promised proposal on
vacation. The proposal provided for the elimination of the fifth week of vacation that was
available to those employees (10 of the 16 bargaining unit employees) with 20 or more years of
service. The Company also proposed limiting to one (as opposed to the current language
providing for two) the number of employees that could “call in” on a particular day and take
vacation for that day.
Also on September 21, the Company proposed an “alternative” health insurance
proposal. This was offered as an alternative to the 75/25 percent cost sharing split proposed on
September 20. This proposal was a one page summary of a “high deductible” plan. The
Company felt that with this high deductible plan, it could offer to keep the weekly premium cost
to employees at the $35 a week that it had been under with the old plan then in effect. From the
Company’s perspective, staying with the current plan (with a 75/25 split) would have required
employees to contribute more to the premium. According to the Company, the alternative “high
deductible” plan would drop the Company’s monthly premium back to close to what it had been
paying in 2005. As Johnson explained it at the table, adoption of this new plan would save
$47,000 in premiums. When proposing this plan the Company provided the Union with a
summary sheet describing the plan and listing, albeit in summary form, the medical and drug
prescription benefits under the plan (GC 8). Wakefield explained that there was not detailed
discussion (or information provided) about the coverage details of the new plan, but that “[t]he
discussion kind of went like this, you know, if you broke your arm under this plan and it was
covered, it would be covered under that one. You know, if you got your big toenail cut off and it
was covered under this plan, that would be covered.”8
3. September 25 bargaining
The parties met again on September 25. At this meeting the Company offered a second
proposal that was in the form of a draft of the collective-bargaining agreement with strikeouts

7This represents an increase in employee premiums of 77 cents per week the first year,
$1.92 per week the second year, and $3.07 per week during the third year of the contract.
8In testimony that was the product of highly leading questioning, union witnesses Young and
Potter, and to a more mixed extent Conway, testified—actually they confirmed counsel’s
assertions—that the alternative high deductible plan proposed was the current plan, but only
with higher deductibles. This is incorrect, and I do not believe the Union thought this. It was a
new plan.
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and additions. This proposal incorporated the vacation proposal from September 21 and
removed the inadvertent strikeout of disability and life insurance that had been in the September
20 proposal. The medical insurance proposal was changed to state: “The Company will pay
eighty percent (80%) of the cost and the employee will pay twenty percent (20%) of the cost for
the current plan’s premium.”9 This change was significant, not only because of the change in
the cost sharing allocation but because of the explicit reference to the “current plan.” Young
testified that with this language he understood that the Company was referring to continuing the
current health care plan, something that was not clear to him based on the language in the
Company’s initial September 20 proposal.
The medical leave-of-absence proposal was now limited to 12 months (unless otherwise
approved by the Company) as opposed to the 12-weeks limit of the Company’s initial proposal.
(The current 2004 Agreement provided for a 24-month limit.) In accordance with the discussion
at the bargaining table, the Company’s proposal on maintaining discipline records was changed
to provide that while records of discipline could be maintained for up to seven years, after 18
months they would not be considered in “subsequent discipline.” The Union still wanted the
word “subsequent” removed from this language.
At this meeting, the Company also withdrew its proposal to make arbitration awards “not
be final and binding,” returning to the “final and binding” language contained in the existing
contract.
The Union also offered a proposal at the September 25 meeting. The Union offered a
counterproposal on the issue of health care. It offered to accept the “2nd insurance plan given to
the union on 9/21/07 by the company,”—i.e., the “alternative” high deductible plan. As part of
this proposal the Union proposed that the Company establish a health reimbursement account
to assist employees in paying the high deductibles. Specifically, the Union proposed that such
an account be established by the company into which the Company would pay $1,500 per year
for each individual or $3,500 per year for each family covered by the health insurance. Any
money not used by an employee (or the family) would go back to the company. In addition the
employees would be able to set aside pretax income to meet the deductibles. The Union’s
proposal had another condition: it explicitly required “the understanding that the coverages are
the same as the present insurance as referenced in the documents dated May 1, 2007[,] and
also to be referenced in the contract.” In other words, under the Union’s proposal, the medical
insurance coverage for employees under the high deductible alternative plan would have to be
the same as under the current insurance.
4. September 28 bargaining
On September 28, the parties discussed the Union’s September 25 proposal to accept
the Company’s alternative high deductible plan with an accompanying health savings plan to
defray the high deductibles. Wakefield suggested that this was “doable.” Wakefield mentioned
that Johnson had looked into the health savings account and received documents showing that
this could be established. The Company counterproposed a subsidy of $1,000 per individual
and $2,000 per family with a yearly deductible of $1,500/$3,500. The Company proposed that
with this plan the employees’ weekly premium payment would remain $35. Further heading

9When this proposal was presented the text stated that Company would pay 80 percent (and
the employee 20 percent of the cost for the current plan’s “benefits.” Through discussion it
became clear that the Company intended for the 80/20 split to be for the plan’s “premium” and
that word was inserted in place of the word “benefits” by the parties.
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down the path to the high deductible plan, the Company formally withdrew its original health
insurance proposal (which had been the continuation of the current plan with cost sharing at 80
percent/20 percent).
The Union’s response on insurance (as recorded in Johnson’s contemporaneous
bargaining notes) was to resubmit its proposal to pay more per month with the current insurance
or “move to new plan as originally proposed by union.”
Later on September 28, the Company offered a “package” proposal in which it withdrew
its proposal to eliminate the shift differential, withdrew its proposal to eliminate Sunday double
pay, and overtime after 12 hours in a day, and withdrew its proposal to remove questions
concerning leave of absence from the ambit of the grievance procedure. The Company also
agreed to remove the word “subsequent” from the retention-of-records provision (discussed
above). This movement was conditioned on the Union agreeing to the Company’s proposal to
limit medical leaves to 12 months, as proposed in the previous bargaining session, and the
Union agreeing to the Company’s proposal to limit vacation day call-ins to one person per day.
Subsequently the parties agreed that medical insurance would end after 12 months on
leave, at which time employees would have to pay for insurance through COBRA.10 However,
the parties also agreed that employees could remain on medical leave for 24 months, and the
Company abandoned its proposal to limit that to 12 months. The Company also accepted a
union counterproposal on the issue of vacation call in. The parties agreed to limit vacation call
in to one individual per day until employment went above 20 employees, at which time two
vacation call ins per day would be permitted.
The Union then offered a package proposal under which it would withdraw its proposal
to reduce the probationary periods, its proposal for three paid personal days, and in exchange
keep the 401(k) match and bonuses at current levels. The Company did not accept this but
countered by offering to up the health insurance subsidy on the high deductible plan to $1000
single/ $3000 family, with a $2000/$4000 deductible, and keep the 401(k) match at 6 percent.
This meeting, on Friday, September 28, took place in the shadow of a contract expiration
on Sunday, September 30. Before leaving, the parties made arrangements to meet again
Sunday morning. They discussed the possibility of an extension of the contract and Young
indicated that “[w]e will do this extension day by day.”
5. September 30 bargaining
The parties met again the morning of September 30. At the outset Wakefield mentioned
that the collective-bargaining agreement was expiring at midnight. Wakefield provided an
extension agreement that he (or someone on the Company’s side) had drafted. This document
(R. Exh. 10) stated that the parties “hereby agree to extend their collective bargaining
agreement (currently effective October 1, 2004 through September 30, 2007), through midnight

10The reference is to the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29
U.S.C. § 1161 et seq. COBRA provides for the extension of medical care coverage to
employees, their spouses and dependent children who would lose such coverage because of
termination or a reduction of work hours. COBRA requires employers to give such employees,
spouses and dependent children written notice of their rights under the law to continue at their
own expense to participate in the employer's group medical plan for a period of 18 months
subject to obtaining similar coverage through re-employment prior to that time.
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October 14, 2007.” Young objected to use of this extension agreement. Conway recalled that
while Wakefield wanted a two-week agreement, Young wanted a “day-to-day extension.” As
Young explained, the Union “wanted a day to day so we would be in negotiations on day to day
because I didn’t want to stretch it out two weeks and only have a minimal amount of
negotiations. . . . I [ ] actually asked them about the two weeks. Why do you want two weeks
because we need to be in negotiations every day. And I don't want it stretched out that we
aren't in negotiations.”
Young produced his own draft of an extension agreement, a “form extension
agreement that the UAW uses,” preprinted with spaces to fill in dates and the names of the
parties. KLB agreed to use, and the parties signed, the Union’s extension agreement. It stated,
in relevant part:
The termination date of the Agreement (including all supplements thereto,
if any) between KLB Industries and the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America[ ], and its Local 1224
is hereby extended from Oct[ober] – 1 – 2 007 to 12:00 AM Oct[ober 14 2007,
and thereafter on a day-to-day basis. Should either party desire to terminate the
Agreement, said party shall give written notice to the other party at least twenty-
four (24) hours in advance, and the Agreement shall be terminated on the date
and hour specified in the twenty-four (24) hour notice.
At the September 30 meeting KLB provided a revised “global” proposal that was actually
an updated version of its re-draft of the current collective-bargaining agreement. The proposal
reflected the changes and movement agreed to by the Company since it provided the last re-
draft (i.e., the agreements on retention of records, medical leave, and vacation call-in,
withdrawal of 80/20 proposal on current plan and substitution of high deductible proposal). Its
proposal on medical insurance now included the following, stated in bold in the group insurance
section of the draft contract:
The Company has provided the Union with a proposal that will keep the majority
of the Group Health Insurance benefits the same, however, the deductible would
change. As part of the proposal currently being discussed, the Company would
create a health Reimbursement Account (Company funded) at the level of the
first $1000.00 per individual ($2000.00 deductible) and the first $3000.00 per
family ($4000.00 deductible). There is also a relationship with the deductibles
and [maximum out of pocket] expenses. NOTE: the parties are still trying to
reach agreement regarding this alternative to the current contract language.
Wakefield explained this language as follows:
“We were still having some discussions, and we still needed to reach—to talk about
specifics of contract language. It wasn't -- this wasn't really the contract
language, it was just a way of addressing the fact that this was the proposal on
the table. . . .
Mr. Young wanted the language to read the same. He -- he wasn't happy
with the statement that the majority of the group health insurance benefits were
the same. Again, as far as—as far—and—and—and this—this was another point
where we were using the word "benefits," but we were probably talking about --
there's no probably, we were talking about coverages. The benefits were laid out
in that sheet. They were going to be different than the [ ] benefits as they were
laid out before. . . . General Counsel Exhibit 8. . . that we gave on September
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2[1]. And so I think the real question was about the coverage. And I'm not sure
what example Craig used, but we made it clear that it was our understanding that
if you broke your leg and it was covered under the current plan, that it would be
covered under the new plan. . . . The benefits were laid out in General Counsel
Exhibit 8.
At this meeting, the Union offered a counterproposal to the Company’s September 30
global offer. Young called it a “complete proposal for the whole contract together” that would
“resolve all the items that were open.” The proposal involved significant movement toward the
Company by the Union. On wages, the Union was now proposing 0 increase the first year, a 20
cent-per-hour increase the second year, and a 10 cent-per-hour increase the third year.
As to medical insurance, the Union’s proposal states: “INS – accept co. last offer.”
The Union withdrew the following proposals: to reduce the probationary period in
multiple portions of the contract, to add a holiday, to add pay for lengthy bereavement travel
expenses, for paid personal days, for pay in lieu of a quality bonus, the quality returns portion of
the performance bonus, to have a $150 payment for boots, and to eliminate outsourcing. The
Union’s proposal on doctor-excused absences was modified to propose that a doctor-excused
absence could still count against an employee’s attendance record but not against the
calculation of the attendance bonus.
The Union’s proposal added that “everything else to stay as in present contract” and
finally, added, “plus everything that as been agreed to already.” The Union indicated that it
would encourage ratification of the agreement that day.11
The Company did not accept the Union’s proposal but, cognizant of the Union’s
substantial movement on wages, and acceptance of the Company’s high health insurance
proposal, considered it “a pretty important moment in the negotiations.” As Johnson explained,
“[t]hat was a very big deal for the Company to be able to go that higher deductible insurance
plan. It would have been a [ ] good savings for the Company.”

11Young asserted at trial that this was a “package proposal,” meaning that if not accepted in
full the Union would return to the prior bargaining positions. This claim was, unfortunately,
another product of the pervasive leading testimony that marked his, and indeed, the other union
witness’s testimony, and therefore, difficult, when disputed, to put much credence in:
Q. When you presented this is this, when you say complete, is this they could
accept one item or were they all, you know, some how tied together?
A. It was all, all.
Q. All tied together?
A. Yeah.
Q. I think sometimes the term is package?
A. Package proposal.
Q. So this was a package proposal?
A. Correct.
The characterization of this proposal as a “package” proposal was sharply disputed by the
employer’s witnesses, who claimed that, unlike the other explicit package proposals offered by
the Union at various times in negotiations, there was no such qualification on this proposal. I
need not resolve this dispute. It does not make a difference, although the parties’ different
perspectives is of some significance in explaining their subsequent reactions to events.
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The Union met with its members the afternoon of September 30 and determined that it
would not accept the Company’s last proposal made that morning.12
6. October 2 bargaining
With the contract extended, the parties met again on October 2. With the Union’s
September 30 acceptance of the Company’s high deductible plan, KLB believed that the parties
were close to an agreement. As noted above, KLB did not view the Union’s September 30 offer
as a “package,” subject to withdrawal if not accepted in full, so it viewed the insurance proposal
as tentatively agreed to and the only issues remaining between the parties being wages,
bonuses, and the vacation issue. KLB responded to the Union’s movement with a proposal that
reduced the wage concession demands from 20 percent to 12 percent over three years and left
the 401(k) match at 6 percent as set forth in the expiring contract. The Company’s proposal
stated:
3 yr agreement
Insurance proposal as it was last proposed in our Sept. 30 proposal.
Leave 401(k) as it currently is in contract
6% match.
Eliminate bonuses entirely as it was in our last proposal dated Sep 30, 2007.
Wages 1st year 8% reduction
2nd year 2% reduction
3rd year 2% reduction.13
The Union also made a proposal on October 2. Consistent with its position that its
September 30 proposal was a “package,” the Union returned to many of its pre-September 30
positions on any issue not agreed to with the Company. It reasserted its proposals for reducing
the probationary period in multiple portions of the contract, reasserted the proposal for an
additional holiday the day after Christmas, reasserted the proposal on added pay for
bereavement travel expenses; for paid personal days, for pay in lieu of the quality bonus;

12Union witnesses were divided over whether or not a ratification vote was undertaken that
afternoon.
13This proposal was originally written with reductions of 7 percent the first year, 10 percent
the second year, and 12 percent the third, which would have been a larger reduction than the 20
percent originally sought. The correction was made when Wakefield, realizing he had written
and explained it wrong, returned to the VFW to explain the correct proposal.
I note that there was conflicting testimony as to when this proposal was provided to the
Union. I find that it was provided on October 2, or at least, after the completion of the
September 30 meeting. Young may have received this document before the October 2
meeting, but the “October 30 12:30 PM” date of receipt added by Young seems unlikely to be
accurate. The proposal references the September 30 proposals, which seems an awkward
reference if this proposal was also made on September 30 proposal. Moreover, the discussion
around the correction to the wage reduction suggests that this, at least, occurred at the October
2 meeting, which, unlike the September 30 meeting, ended angrily and abruptly.
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reasserted the proposal for the $150 boot payment; reasserted the prohibition on outsourcing. It
maintained its September 30 position on attendance records. The Union’s wage demand was
less than its opening demand on September 20, but considerably more than its September 30
proposal: on October 2 it asked for $1.50 the first year, $0.80 the second, and $.080 the third
year. The proposal also stated that it was also proposing everything previously agreed to by the
parties and everything else was to remain in the present contract. The October 2 proposal
specifically mentions group insurance only with regard to the reasserted proposal to reduce the
probationary period. On September 30, the union “accept[ed] co. last offer” on health
insurance, so, presumably, its October 2 commitment to “everything that has been agreed to by
the company and the union” encompassed that. It was, in fact, the Company’s understanding
that the parties remained in accord on health insurance.14
The meeting ended shortly after the Union presented its offer.
7. October 3 bargaining and notice of contract termination
The parties met the next day October 3. On the same day the Company sent a letter to
the Union providing notification that “[c]onsistent with the terms of the extension agreement . . .
please accept this letter as the Company’s notice that it intends to terminate the agreement now
in effect between the parties on Sunday, October 7, 2007.” According to Wakefield, KLB
thought that, in light of the turn in bargaining the day before, this might increase the pressure to
obtain an agreement.
Young was unhappy about the Company’s letter of intent to terminate the extension
agreement. Based on the discussion around the extension agreement he had thought the
Company wanted a two-week agreement and the Union did not understand why the Company
would terminate it a week later. Young characterized Wakefield’s response to him on this as
“dismissive.” Wakefield told Young “that was just how it is, that’s our position.”
At this meeting the Company gave what it termed its last and final offer:

3 yr agreement
Insurance proposal—Go to new plan@ 35/wk Company will put $1000 single\
$3000 family into HRA. Will set up an MSA for employees to put into if they wish.
Leave 401(K) match at 6% as it currently is.
Bonuses — Leave language as it is currently: Quality, Attendance, Safety
Change bonus amounts as outlined below.
1st yr $100 per quarter per bonus as it currently is.
2nd yr $65 per quarter bonus
3rd yr $35 per quarter bonus

14Notwithstanding this, union witnesses explained the Union’s October 2 proposal as a
return to their original demand that the expiring agreement’s health care remain unchanged,
other than the reduction in the probationary period for new employees to be covered. At the
same time, Young maintained that the deductibles and the health savings account from the
Company’s September 30 proposal remained a tentative agreement between the parties.
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Company withdraws the Vacation change proposal
Wages 1st year 8% reduction from current wage rates.
2nd year 2% reduction for a total of 10% from current contract
3rd year 2% reduction for a total of 12% from current contract
See wage table exhibit B attached
All items which have already been agreed upon between the union
and company
The Union responded to the Company’s proposal with a proposal of its own. The Union
resubmitted its October 2 proposal but this time withdrew the demand for one week pay instead
of the performance quality bonus. It limited its demand for boot payment to $100. On wages it
modified its offer to $1.25 the first year, $0.80 the second and $0.80 the third. On health
insurance, according to Potter’s notes, the Union proposed: “will agree with the new Ins. Plan at
$15.00/wk.”
The Company responded by reasserting its proposal of earlier that day.
At this meeting the Federal mediator, Ellenberger handed the Union the Company’s
proposal and then asked Wakefield if this was the Company’s last, best and final offer.
Wakefield said it was. Ellenberger turned to Young and said, I guess we’re at impasse then.”
Young denied that the parties were at impasse.15
The parties agreed to meet again October 5.
8. October 4 information request
The next day, October 4, Young submitted an information request to Wakefield in
the form of a 3-page letter. In pertinent part the letter stated:
For purposes of bargaining, the union is requesting KLB Industries, provide the
following information:
Health Care Insurance
With respect to bargaining over health care benefits, the union is willing to
consider KLB Industries proposal regarding health insurance. Although the
Company verbally stated during negotiations that the proposed health care plan
was the same plan document as the present contract, the written language in the

15Young did not recall this exchange, but did not deny it. He added that “I would not be
surprised if I said that because I never want to be at impasse.”
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Company's proposal is very broad and vague. Specifically, the statement “a
proposal that will keep the MAJORITY of the Group Health Insurance benefits
the same, however, the deductible would change." The union would prefer the
current health care plan, coverage and language as detailed in Article VII of the
current agreement. However, in order to consider the Company's proposal, the
union needs additional information.
1. The minimal amount of information that you have provided on the
UnitedHealthcare Choice Plus plan does not give details on the
application of the benefits. Therefore, the Union requests a copy of the
summary plan description as well as a copy of the complete plan that
the Company is proposing.
2. A copy of the Latest Annual Report: Form 5500 or equivalent.
3. A copy of any roles, regulations, procedures, administrative manual or
procedures or policies which affect or relate to the plan.
4. A complete cost breakdown of the plan to the employer. (for the next
three (3) years, provide the monthly rates being quoted by the carrier, what (if
any discounts are being offered by the carrier, and cost comparisons of
three (3) other carriers). In addition, the Union requests the exact
calculations used by the Company in determining the $47,OOO savings
in premiums.
5. The name, address and principal contact of the office which administers
the plan.
6. Copies of all claims for coverage under the plan made by employees
during the last five years as well as copies of any correspondence or
other documents with respect to the processing of those claims and the
payments of those claims.
7. For both the current and proposed plan, a copy of any contracts with
health care providers, insurers or health care plans.
8. In regard to the proposed Health Reimbursement Account, please
provide the rules, regulations, procedures, and policies that would
affect this plan and details on the establishment of this plan.
Bonuses
1. Due to the Company relaxing the importance of Quality, Attendance,
and Safety, by reducing the performance bonus maximums in the
second and third years, please provide the calculations used in
projecting the Company savings in each the second and third year.
Additionally, please estimate the impact to quality, attendance, and
safety this bonus reduction will create.
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Wage Reductions:
During the Course of these negotiations, the Company has continually asserted
that they must improve the competitive position of the Bellefontaine, Ohio facility.
Based on this assertion, the Company has made numerous contract proposals
that reduce the wages and benefits. In order for the Union to determine the
veracity of these claims, please provide the following information:
1. A list of all current customers so that the Union may contact the
customers to determine if any of them is contemplating purchasing
products from other sources.
2. A copy of any and all quotes that the Company has provided, and
whom these quotes have been issued to. Also, how many quotes have
been awarded (or not awarded) in the past five (5) years.
3. Identify any and all outsourced work: (in the past 5 years) that had
previously been done at this facility by the bargaining unit employees.
4. A list of all customers who have ceased buying from this facility during
the last 5 years. The union needs this information to test the
Company's assertion that they are not competitive. The union intends
on contacting the former customers to learn the reasons why they
stopped purchasing.
5. A complete list of prices for products so that the union can compare the
prices of competitors.
6. In order for the Union to determine whether the company's assertion of
uncompetitivness is based on price or other factors. Please provide
market studies and/or marketing plans that would impact sales of
products produced at of the KLB Industries, Bellefontaine, Ohio facility.
7. With the current Company proposal to reduce wages, please provide a
complete calculation of the projected company savings over the next
three years, including any projected overtime.
This request is made without prejudice to the Union' s right to file subsequent
requests. If any part of this letter is denied or if any material is unavailable,
please provide the remaining items as soon as possible, which the Union will
accept without prejudice to its position that it is entitled to all documents and
information called for in this request.
9. October 5 bargaining and the October 8 “timed” proposal
On October 5 the parties met again, initially meeting together at the VFW hall.
The parties discussed the information requests and the Company indicated it would work
on responding to the request made by the Union the day before. Wakefield testified that he told
the Union that some of the documents asked for regarding the new health insurance plan would
not be available. Young became upset with Wakefield, and Wakefield suggested that the
parties should caucus with the mediator moving between the parties. The Union agreed and the
Company left the VFW and went to the KLB facility just down the street.
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According to Union committee member Potter’s notes, Young pressed the Company for
the requested health insurance plan documents so that these documents could be put on the
table as part of the contract negotiations. According to Potter, “I believe [Young] felt like we still
had documents coming showing us what health insurance benefits were . . . and what the plan
entailed. We didn’t have an idea of actually what the health insurance plan was at that point.”
Johnson and Wakefield and the mediator discussed negotiations. Wakefield described
some hesitance to move off the Company’s “last best and final” proposal and in the end the
Company decided to make a new proposal in the form of a “timed” offer that would expire if not
accepted. The proposal would consist of most of the items already offered, or agreed to, but
with a significant reduction in the level of wage concessions sought by the Company. The new
“timed” offer would involve a four year contract with initial wage reduction that would be raised
back to current levels over the course of the contract. The timed nature of the offer would
enable the Company to retain, or return to, the October 3 offer if this timed offer did not work to
achieve agreement. At some point Young was invited into the meeting, without the rest of the
union committee, and Young and the Company and the mediator discussed this move on the
Company’s part. Wakefield asked Young what it would take to get a ratified contract. In this
regard, Young raised the issue of providing a signing bonus to employees “if you want
something to pass.” Wakefield asked him, “how much”? Young suggested $500 per employee.
Young told Wakefield and Johnson that if a new proposal was developed by the Company, the
Union could consider and vote on it the evening of October 8.
Based on the discussions with Young, the Company developed a “timed” offer. The
terms of this offer were communicated to Young on October 5, and written copies provided to
him on October 8.
On its cover the October 8 offer stated that the proposal was valid “only until 11:59 p.m.,
Monday, October 8, 2007. . . . After this proposal expires, it is void and the Company will
automatically reinstate the offer it made at the end of negotiations on October 3, 2007.”
(emphasis in original).
The 4-year offer provided for a decrease in wages of $1 per hour for each employee,
effective on the date of the agreement, with increases of 2.75 percent on each subsequent
anniversary date of the agreement. It provided for a $500 signing bonus on the first scheduled
pay period after ratification. A chart, created at the suggestion of Young so that bargaining unit
employees could see the wages (not just percentages) for each year, was attached and showed
the hourly wage rate for each position for each year of the agreement.
A holiday for an employee’s birthday was suspended for 2 of the 4 years of the contract.
The medical leave-of-absence provision was changed in accordance with the parties’
earlier tentative agreement on that subject. It provided that employer paid health insurance
(which still required the $35 weekly employee premium) would continue for only the first 12 of
the 24 months maximum medical leave.
The parties’ tentative agreement on disciplinary records retention was included in the
proposal.
The performance bonus provision of the contract was changed so that after the first year
of the contract, the quarterly bonus potential went from $100 to $75 for each of the three
bonuses (quality returns, safety incentive, and attendance).
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The vacation call in language was altered, as the parties had tentatively agreed: one
vacation call in per day was allowed when the Company had less than 20 employees, two were
allowed when the Company had 20 or more employees.
The fifth week of vacation for employees with more than 20 years seniority remained in
the contract.
As to health insurance, the Company’s right to change insurance carriers was again (as
in the expiring agreement) limited to changes that left the benefits “substantially similar.”
In terms of the proposed health insurance, the October 8 proposal initially given to
Young provided that
The Company will implement a new Group Health Insurance Plan. This new plan
will have substantially similar medical coverage as identified in the [old plan’s]
Summary Plan Description.
The proposal went on to set forth the deductibles and the health savings programs to
offset the deductibles as agreed to by the parties in the September 30 proposals. The plan also
included the provision that the employees would continue to pay $35 a week as their portion of
the health insurance premium.
When Young saw this health insurance language on October 8, he called Johnson and
expressed concern about the "substantially similar medical coverage" language. Johnson
discussed it with Wakefield, and made a change in accordance with his discussions with Young.
He faxed the new amended page to Young. As a result of their discussions, the original
October 8 proposal was amended, as follows. The final version (the first sentence of which was
inadvertently dropped and had to be handwritten in) now stated:
The company will implement a new Group Health Plan. This new plan
will have the same medical coverage as identified in the [old plan’s] Summary
Plan Description.
The membership met and discussed the October 8 (and the October 3 offer) on October
8. Based on the meeting and vote taken at the meeting, Young called Johnson the evening of
October 8 and told him that the Union rejected the October 8 proposal.
10. October 10 and 16 bargaining
The parties’ bargaining session on October 10 was conducted through the mediator.
The parties met separately. The Company reinstated their offer of October 3. The Union made
a proposal that maintained its October 2 proposal in most respects but provided for a reduced
demand: the Union proposed increases of $.080 per hour in each year of the contract.
Johnson’s undisputed (and credited) testimony, confirmed by his bargaining notes, is that the
Union conveyed that the Company’s wage offer was “unacceptable, but that the insurance
seemed to be okay.” Wakefield testified that the Union raised the issue of wages as a problem
but did not mention health insurance.
The parties met again on Tuesday, October 16. The meeting lasted just a few minutes
and neither party made a proposal or offered movement. The Company reiterated that the
October 3 proposal was its final proposal. Probably at this meeting, but perhaps by phone
thereafter (the record is unclear), Wakefield indicated to Young that he would be providing him
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with a new proposal. On Wednesday, October 17, Young and Wakefield spoke by telephone
and Wakefield told Young that he had misspoken, and would not be providing a proposal, but
would be providing a response to the Union on Friday. Wakefield would not explain further.
11. The Company’s Response to the Union’s Information Request
By letter dated Thursday, October 18, the Company provided its response
to the Union’s October 4 information request. The letter stated:
On October 4, 2007, [ ] you gave KLB Industries, Inc. an information
request. Please accept the information below as the Company's response to this
request.
Health Care Insurance
One of the issues that you raised in your letter was a concern with the
phrase in the Company's proposal that read: "the majority of the Group Health
Insurance benefits." After you made the information request, the Company
changed its proposal from reading "the majority of the Group Health Insurance
benefits" to "the same Group Health Insurance benefits." The Company commits
to providing substantially the same medical coverage in its proposed plan as it
does under the current plan.
While the Company commits to providing the same medical coverage in
its proposal as it currently does, KLB cannot provide the same positive result with
much of the information that you requested about the its proposal. The Company
is unable to provide you with the following information about its proposal to
change the group health insurance plan: (1) a summary plan description; (2) a
Form 5500; (3) a copy of any rules, regulations, procedures, administrative
manual or procedures or policies which affect or relate to the plan; (4) a complete
cost breakdown of the plan; (5) the name, address. and principal contact of the
office which administers the plan; (6) copies of claims for coverage made under
the plan; (7) copies of any contracts with healthcare providers, insurers, or
healthcare plans; and (8) any rules regulations, procedures, and policies that
affect the Health Reimbursement Account. As we have expressed during
negotiations, KLB has not actually purchased a plan like the one proposed. So,
the information that you are asking for does not yet exist.
In addition, we cannot provide you with copies of contracts with
healthcare providers, insurers, or healthcare plans. The Company does not have
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contracts with health care providers, insurers, or healthcare plans. And, although
our current plan is administered by United Healthcare, a United Health Group
Company, the current plan type does not allow for KLB to have a principal
contact.
Bonuses
The Company has attached to this letter as Exhibit A the information that
you requested on its bonus proposal.
Wage Reductions
The Company disagrees that information you requested about its current
customers is necessary and relevant to the UAW's representation of the
bargaining-unit members. The Company's desire to remain competitive in both
global and domestic markets is no different from the desire of any business
conducting operations similar to those of KLB. In addition, KLB has contractual
obligations with each of its customers to maintain the confidentiality of the
customer's information. Disclosing this information to a third party would not only
subject KLB to lawsuits, but could also destroy the Company's relationships with
its customers. Accordingly, the UAW’s bare assertion that it needs to test the
veracity of KLB's “claim" of competitiveness is insufficient to make customer
information necessary and relevant to the Union's role as the exclusive
representative of the bargaining unit.
The Company also disagrees that information about outsourced work is
necessary and relevant to the UAW's representation of the bargaining unit. The
UAW is well aware that KLB has, and continues to, outsource work. To KLB's
knowledge, the Union has never complained about or grieved outsourcing.
Further, the Company and the Union have not had any bargaining discussions
related to outsourcing. The Company fails to understand how its broad
statement of remaining competitive in global and domestic markets triggers the
necessity and relevancy of outsourcing information.
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The Company, however, agrees that the wage cost saving is necessary
and relevant. The first year saving is $36,177.00. The second year savings is
$44,498.00. The third year savings $62,652.00. And the overall cost savings of
the proposed wage decrease is $133,327.00.
In addition to this written response, at the hearing Johnson provided testimony regarding
the Union’s request for information. Johnson explained that upon receipt of the Union’s October
4 information request, he had contacted Ray Ernst, an independent, self-employed insurance
broker. Johnson had worked with Ernst for many years and since 1997 when KLB was formed,
Ernst had helped the Company with all its purchases of healthcare. In fact, KLB had never
worked directly with an insurance company, but always through the broker in purchasing health
insurance plans.
Johnson called Ernst to ask if it was possible to obtain the requested information about
the high deductible alternative plan, before actually purchasing the plan from United Healthcare.
Specifically, Johnson asked Ernst if a copy of the master contract would be available for the
plan that KLB was proposing to the Union. Ernst told Johnson that the master plan document
would not be provided until KLB actually purchased the coverage. Johnson testified (as did
Young) that Johnson told Young at the bargaining table that this document could not be
provided. This was consistent with Johnson’s past experience: in prior collective bargaining
negotiations KLB did not receive a master plan document until the insurance policy had actually
been purchased. Indeed, the Union had never before made such a request.
In his testimony, Young described a process in his previous negotiations where the
Union and an employer negotiate the benefits and coverages of importance to them and then,
after the completion of negotiations, the plan document received from the insurance company
would be reviewed either locally or sent to the Union’s Insurance Department in Detroit. The
document would be reviewed to make sure it was consistent in all respects with what had been
negotiated. Union witness, and local unit chairman Conway explained a similar procedure at
KLB when insurance carriers changed during the term of the contract. Prior contracts allowed
the Company, in the middle of a collective bargaining term, to change insurance carriers and/or
self-insure all or any portion of the benefits “provided the benefits accorded are substantially
similar.” Conway described that in the past when Johnson acted on this right and changed
carriers, the carrier would send a book of “what the plan is” i.e., “the whole thing of coverages,”
and “I would compare it with the old one to see if there's any changes in it.” If there were
inconsistencies between the prior plan coverages and the new one, Conway would raise it with
Johnson and Johnson would see that it was corrected.
As to the request for the Form 5500 or equivalent, Johnson testified that due to the small
size of KLB’s insurance plan, and the limited nature of the employee premium, the IRS did not
require the filing of such a form and therefore none existed.
As to the Union’s request for the proposed plans “rules, regulations, procedures, [etc.],”
Johnson testified that KLB did not possess such information, and that it would be the type of
information contained in the plan document that KLB would not receive until purchasing the
plan.
As to the “complete cost breakdown of the plan to the employer” requested by the Union,
Johnson testified that he only had the cost of the first year premiums and that information had
been provided to the Union. Johnson explained that “the insurance is on a year-to-year annual
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basis, and I’m only provided a quote for the year, the first year that I’m going to purchase it.”
Johnson had not sought quotes from other carriers.
The Union’s request also asked for the name, address, and contact of the office that
administers the plan. That information, testified Johnson, was well known to the Union and was
in the current plan document.
The Union also requested copies of all claims for coverage under the plan made by
employees and papers related to the processing of such claims. Once more, Johnson testified
that KLB did not possess such information and was not routinely provided with it. In the past, an
attempt by Johnson to obtain claims information on a particular employee was rejected by the
insurance carrier, essentially on grounds of confidentiality. As Johnson explained, he has no
regular or ongoing contact with United Healthcare. On one occasion, in approximately 2005,
the quoted renewal rates were higher than expected and he called United Healthcare to request
a summary of KLB’s claims experience. Johnson was told that this would not be provided for a
company of his KLB’s size, and that United Healthcare only provided that to contracting
companies with approximately 100 or more employees.
The Union also requested, for both the current and proposed plan, a copy of any
contracts with insurers or health care plans. Johnson testified that he had no contracts with
health care providers.
As to the rules, regulations, procedures, and details on the proposed Health
Reimbursement Account, Johnson also testified that this information would be included in the
health plan document that would be provided only upon purchase of the plan from United
Healthcare.
12. The Company’s October 19 lockout letter and
the Union’s October 21 response; the lockout begins
On Friday, October 19, Wakefield faxed a letter to Young announcing the Company’s
intent to commence a lockout of bargaining unit employees on Monday morning, October 22.
On the same day, letters went to bargaining unit employees from the President and CEO of
KLB, Christopher Kerns, informing the employees of the lockout. The 2004 Agreement provides
that “[a]ll insurance benefits terminate no later than the end of the month following the month in
which an employee is laid off or is off work for any reason other than circumstances which
expressly give rise to insurance benefits hereunder.” Nevertheless, in his letter to employees,
Kerns wrote that “consistent with the law, your health insurance coverage will end effective
October 23, 2007. Therefore, in order to continue insurance benefits past that date, you will
need to apply for COBRA coverage.”
On Sunday evening, October 21, Young faxed a letter to Kerns, Wakefield, and
Johnson, stating the following:
This letter is in response to the Company's October 18, 2007 attempt to
respond to the Union's October 4, 2007 information request and to the
Company's October 19, 2007 letter regarding “Lockout of the Bargaining Unit."
Health Care Insurance
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Although I appreciate that the Company is willing to change their proposal
to read "the same Group Health Insurance benefits," your next statement still
maintains your original proposal of committing to provide "substantially the same"
medical coverage. With that said, the Union must have the information that has
been requested to better understand the Company's proposal and for the Union
to form a proper response to the Company's proposal. Prior to submitting any
proposal that ultimately alters original contract language, the Company must
have sufficient information to support their proposal. In the case of the
Company's proposal to amend the Group Health Insurance benefits, plan, and/or
providers, the Company has failed miserably to supply essential information to
the Union and your October 18, 2007, letter supports that the Company has not
obtained quotes and/or information on the health insurance plan they are
proposing. Quite frankly, this is unacceptable.
Bonuses
The Union acknowledges that the Company did provide for the
information requested in regard to "Bonuses."
Wage Reductions
Although the Company made an attempt to answer item 7 of this section
(calculation of the projected company savings), the answer does not include the
“complete calculations” for the Union to assess the validity of these figures. The
Union maintains that it is entitled to all documents and information called for in
our October 4, 2007 letter and, again, the Company has failed miserabl[ly] to
supply essential information regarding the Company’s proposals [for] wage
reductions to the Union.
Therefore, let it be clearly understood that the Union expects the
Company to bargain in good faith and to provide the requested information so the
Union can prepare appropriate responses to the Company’s proposals.
Lockout of the Bargaining Unit
The Company has committed an unfair labor practice by implementing a
"Lockout of the Bargaining Unit.” Throughout the entire bargaining process, the
Company has failed to be prepared for negotiation sessions; has failed to provide
information on proposals; has failed to make complete proposals in regard to
health insurance; has failed to support the Company’ s position in regard to wage
reductions; and has failed to present a promised proposal to the Union. In fact,
you purposely strung the Union along a path of deceit by stating that the
Company was working on a proposal and ultimately faxed a "Lockout" letter on
Friday; October 19, 2007 at 16:09 (or 4:09 p.m.).
Until the Union has received and has had an opportunity to review the
requested information to support the Company's proposals, it is an unfair labor
practice for the Company to implement a "Lockout of The Bargaining Unit” and
demand that the Union accept a proposal that is impossible for the Union to
evaluate without the information requested. If the Company insists on and
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implements a “Lockout of the Bargaining Unit" on Monday, October 22, 2007, at
7:00 a.m. as your letter suggests, the Union will file unfair labor practice charges
against the Company.
As promised, the Company locked out the bargaining unit employees commencing
Monday morning, October 22. As of the time of the hearing in this case, late July 2008, the
lockout remained in effect. After the lockout began, the Company advertised for and ultimately
hired temporary replacements to assist it with production during the lockout.
Immediately after the lockout began, on October 24, the Company wrote to United
Healthcare and asked the insurance company to “[p]lease cancel the entire group’s coverage
under this policy effective 10/22/07.” According to Johnson, three employees sought COBRA
coverage, but Johnson was told by United Healthcare that the cancellation of the entire group
health care policy left the employees ineligible for COBRA coverage.
13. Subsequent bargaining
The bargaining since the lockout has been extremely limited. On October 29, the parties
met for approximately five minutes. Young became angry, asserting that Wakefield had
promised a new proposal from the Company but then, instead of a proposal, sent notification
that the employees would be locked out. The Company left and the rest of the session,
conducted through the mediator, resulted in no proposal or changes in position.
The parties met again on January 30, 2008. The Union reduced its wage demand to
$0.38/$0.40/$0.45, and for insurance proposed continuation of the prior insurance. The
Company rejected the proposal and the meeting was over in less than an hour and a half.
The parties met again on March 28, with the mediator shuttling between the parties. This
time the Union proposed a $0.50 decrease the first year, and increases for the following three
years of $0.35/$0.40/$0.40. For insurance the Union proposed the old plan with an 80
percent/20 percent split. The Company indicated that it would consider the offer.
D. Pre-lockout events away from the bargaining table
In addition to the events related to bargaining, the General Counsel relies on the
following six incidents as part of the case in support of overall bad-faith bargaining by the
Company.
1. Sometime in the summer of 2007, the Company replaced some overhead doors
that had been broken for some time. In August, the Company also installed 3 video cameras
that looked outside the facility. Johnson testified that the cameras were installed because of
some vandalism that occurred at night in KLB’s parking lot. It is undisputed that the cameras
were in use during the lockout, during which the Company has continued to operate the facility
with replacement workers.
2. In August, Company President Kerns received an audio birthday card that played
snippets of a song. Using that audio card and others he purchased, Kerns began playing the
snippets of music over the loudspeaker. The snippets lasted less than a minute at a time. The
snippets included the theme music from the Good, the Bad and the Ugly, Bad to the Bone, and
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Who Let the Dogs Out. Some other snippets were played as well. At first he played them
several times a day, in the morning when he got there, at lunch, and at quitting time, although
the frequency diminished over time.
3. On September 26, union steward Mark Miranda was terminated after an angry
encounter with Plant Manager Kevin McKnight. Miranda worked at KLB as the lead man in
fabrication, setting up punch and drill presses. On September 26, before lunch break, Miranda
was stopped by Roger Leugers and another employee and asked to fix the punch press on
which they had been working. He began working on the press, hitting the buttons to readjust
the die. McKnight had been working on another piece of equipment and passed by the
fabrication department on his way to the restroom. He saw the employees not working and told
them it was too early to stop and that they should get back to work. McKnight testified that the
employees had no explanation for not working. However, Miranda testified that he told
McKnight that they were not stopping but that he was fixing the press and they could not run the
machine while he fixed it. McKnight testified that he started to leave and Miranda began
“cycling the press” without product in it in a way that could damage the press and cause injury,
and that Miranda stared at McKnight while he did it. Miranda claims he said, “you know, why
should you fix any of the machines, because no one’s going to be here anyways, we’re going to
strike.”16 Miranda testified that after he said this McKnight became angry, said something about
“I don’t fucking need this right now” and told him to go home for the rest of the day. McKnight
went to the restroom. Miranda followed him into the restroom.17 A couple of other employees
were in the restroom already, including Conway. Miranda was angry and admits to using the
word “fuck” in speaking to McKnight. McKnight testified that Miranda came up behind him and
said “fuck you.” To which McKnight said, “Now you can go home. You’re fired.”18 Conway and
McKnight testified that Miranda replied, “Fuck you. I will go home.” According to Miranda, both
he and McKnight were swearing. Miranda got mad, claims he said nothing, punched out, and
left the shop. He was mad when he left and he admits he hit the accelerator hard as he drove
from the gravel parking lot. McKnight saw him “peel out” of the parking lot, spraying gravel on
the car of KLB co-owner John Bishop. Upon approaching the car McKnight could see where
powder from the gravel had damaged the door. Miranda admits that the gravel could have
sprayed and damaged another car. Conway testified that at lunchtime he went to his car and
saw in the gravel that someone had spun out. It was noticeable enough that it caused him to
check his own car for damage. That afternoon, McKnight told Craig Johnson about the incident
and told him that he had terminated Miranda.19 The next day a disciplinary form documenting

16On cross-examination, after examining his pretrial affidavit, Miranda changed his story
slightly. He stated that McKnight was working to fix the extrusion punch just before he
confronted Miranda. In the affidavit Miranda recalled telling McKnight, “why worry about fixing
the extrusion press when we are not going to be here anyways on Friday, because we are going
to vote to strike.” McKnight testified that when he confronted Miranda he was headed to the
restroom and had “been working on a piece of equipment and had grease and stuff on me” but
he did not identify the piece of equipment.
17One employee, Edward Huffman, testified that he saw McKnight follow Miranda into the
restroom. However, McKnight and Miranda both agreed that Miranda followed McKnight into
the restroom, and I do not credit Huffman on this point.
18According to Miranda, McKnight turned around and said, “you’re fucking fired, Mark.”
19Johnson’s retelling of McKnight’s account of the incident was consistent with McKnight’s
testimonial account of events. Johnson testified that McKnight did not relate that Miranda raised
the issue of a potential strike in his interactions with McKnight.
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Miranda’s termination was filled out and signed by McKnight, listing the reasons for termination
as insubordination, violation of safety rules, and violation of company rules.
4. On the morning of September 26, plant manager McKnight approached Conway
at work and told him that Company president Kerns wanted to have a meeting with the local
union bargaining committee after lunch. McKnight told Conway that some people had been
talking about going on strike and he asked if they should be doing that. Conway told him that he
had not been doing that.
5. Sometime after lunch that day, Conway met with Kerns, Johnson, and Roger
Leugers in McKnight’s office. There was discussion of Miranda’s firing and then Kerns said
“there’s some people out there talking strike.” Kerns said to Conway, “I think its illegal for the
committee to be telling their members about negotiations.” Conway replied, “[d]on’t they have a
right to know?” Kerns replied, “[w]ell just try to calm things down a little bit.” Conway told Kerns
that “I’d see what I could do.”
6. On September 28, Conway was at the VFW hall across the street from KLB in
conjunction with negotiations when he received a phone call from an employee at work. The
employee told Conway that Kerns had called a meeting at the time clock and there was no one
from the Union there to represent the employees. (Union steward Miranda had been fired and
the union committee members were at the VFW.) Leugers and Conway went over to the plant.
McKnight met them at the front office and asked why they were there. They told him about the
call and McKnight went into his office and reported it to Kerns. Kerns said, “Ok” and came out
to the time clock where the employees had assembled. Kerns seemed angry and told
employees he had gotten a call from a customer asking if the employees were going on strike.
Kerns told employees something to the effect of “[w]e don’t need this kind of stuff. Just do your
job and everything will work out in the end.”
E. Incidents after the lockout begins
1. Immediately after the lockout KLB hired three security guards. One, Jose
Morales, used a handheld video camera during the first few days of the lockout, pointing it at
picketers as they walked past the gate to a truck entrance for the facility. Johnson testified that
this was prompted by a report from a truckdriver that some picketers had blocked his way.
Morales’ videotaping was not confined to instances when trucks were leaving or entering the
facility. There is no record evidence of any violence or other misconduct at this time that would
serve as a basis for the videotaping.20 In the second week of the lockout, Young approached
Morales and told him, “You can’t be videotaping these guys, that’s against the rules.” After
that, the videotaping stopped.
2. A public right-of-way traverses the KLB property around the facility. In the Fall,
probably just after lockout began, KLB paid a surveying company, Lee’s Surveying, to mark with
paint marks where KLB’s property began and ended. Kerns told Conway that he had this done

20The truth of the report from the truckdriver cited by Johnson was not proven.
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to “keep everybody safe.” Within two weeks of the lockout’s commencement the Union placed
picket signs in the ground across the road from the KLB facility in areas the Union believed,
based on the surveying marks, to be within the public right-of-way. Those signs have remained
in the ground, for the most part, without incident since October 2007. In June 2008 someone
removed some of the signs. The Union replaced them and by that evening someone had
“broken” them. The Union waited approximately one week, until June 24, 2008, and replaced
the signs again. Johnson testified that KLB security guard Morales observed the signs being
put back in the ground and believed they were being placed on Company property, and believed
that this constituted trespassing. Morales called the police. The Bellefontaine Police
Department received a call to meet at KLB with Morales regarding a trespassing complaint.
Officer Blake Kenner of the Bellefontaine police took the call and met with Morales. Morales
expressed concern that the Union had placed picket signs on ground that was KLB property,
and that this would constitute trespassing. Kerns told Kenner about the survey Lee’s Surveying
had done the previous Fall. By the time of this incident, the paint marks laid down by Lee’s to
identify KLB property had mostly washed away. Kenner had his dispatcher contact Lee’s
Surveying and have them come out and meet him at KLB. Someone from Lee’s came over to
the facility and Kenner asked if they could review their records and tell him whether the Union
was infringing on Company property. Lee’s was concerned about who would pay the bill for this
additional work. Kenner made clear that he (or the city) would not. The Company said “they’d
already paid 600 and some odd dollars for this expense and they weren’t going to either.” So
Kenner told Lee’s that he wasn’t going to use their services. Kenner went inside and told the
Company he had no way to determine if the Union signs were on Company property. Once
inside, Morales showed Kenner on the video monitors that a union member was approaching
near a Company dock. Kenner went outside to address the situation. Once outside, the
representative of Lee’s Surveying opined to Kenner that the union member had not been on
Company property and further that he believed that the signs were on the public right-of-way
and not on property exclusively controlled by the Company. He told Kenner this based on a
pink mark he found from the last survey and he explained that–apparently estimating it from
where he stood—“you go . . . 50 feet from this mark and that's all public right-of-way.” 21 The
signs remained undisturbed thereafter and were in place at the time of the hearing in July 2008.
ANALYSIS
A. Overall Bad-Faith Bargaining
The complaint in this case alleges that based on its overall conduct KLB has failed and
refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act.
Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer “to
refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5).
Section 8(d) of the Act defines the duty to bargain collectively as "the performance of the mutual
obligation of the employer and the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other terms and conditions of
employment.” 29 U.S.C. § 158(d). Good-faith bargaining “does not compel either party to
agree to a proposal or require the making of a concession" (29 U.S.C. § 158(d)), but "[g]ood-
faith bargaining 'presupposes a desire to reach ultimate agreement, to enter into a collective-
bargaining contract.'" Public Service Co. of Oklahoma, 334 NLRB 487 (2001) (quoting NLRB v.
Insurance Agents’ Union, 361 U.S. 477, 485 (1960)), enfd. 318 F.3d 1173 (10th Cir. 2003)).

21Kenner’s testimony on this score was hearsay, as was Conway’s similar testimony.
Officer’s Kenner and Conway’s accounts of what the Lee’s Surveying employee told them
cannot prove that the signs were on the public right-of-way.
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"[M]ere pretense at negotiations with a completely closed mind and without a spirit of
cooperation does not satisfy the requirements of the Act." Mid-Continent Concrete, 336 NLRB
258, 259 (2001), enfd. 308 F.3d 859 (8th Cir. 2002). "In determining whether a party has
violated its statutory duty to bargain in good faith, the Board examines the totality of the party's
conduct, both at and away from the bargaining table." Public Service Co., supra at 487 (internal
citations omitted). From a party's total conduct both at and away from the bargaining table, the
Board determines whether the party is "engaging in hard but lawful bargaining to achieve a
contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of
arriving at any agreement." Id.
As discussed herein, a review of the Respondent’s conduct leads me to conclude that
the Respondent did not fulfill its obligations with regard to the Union’s October 4 request for
information. This is a serious matter, particularly given the divisions between the parties and the
Union’s belief that wage increases were in order while the Respondent pushed for wage cuts. I
will examine that issue in depth, below. However, I do not agree that the Respondent’s
bargaining conduct constituted overall bad-faith bargaining. The record does not support the
conclusion that the Respondent’s bargaining was intended to frustrate the possibility of
agreement. Nor did it approach negotiations with a completely closed mind and without a spirit
of cooperation. As to this prominent allegation of the complaint, it is not a close case.
Negotiations began when the union representative’s schedule permitted. The
Respondent met, made movement and attempted to reconcile differences. KLB’s approach to
negotiations involved, most saliently, a determination to bargain concessions from the Union.
Its justification offered at the table and at trial, related chiefly to competitive pressures, as well
as lowered productivity and rising health care costs. At least initially, the Union sought, and
anticipated, that economic gains would be made in this round of negotiations. This did not
happen. Essentially, the Union found itself in a position where its proposals for gains were not
being accepted. The productive bargaining involved negotiations to ameliorate the severity of
the Company’s opening proposals. Within this ambit, the Respondent discussed proposals. It
tried different proposals. It made movement, and reacted to union acceptance of certain
proposals (i.e., health care) by moving toward the Union on other proposals (i.e., wages).
However, nothing in the Act requires that KLB agree to some of the Union’s initial proposals in
order to justify pressing its own proposals. To the contrary, the Act is clear that good-faith
bargaining “does not compel either party to agree to a proposal or require the making of a
concession" (29 U.S.C. § 158(d)).
In terms of the substance of the Respondent’s proposals, I think it was not difficult for the
General Counsel to show that the Respondent’s economic proposals were harsh. From the
standpoint of an employee, wage reductions over the life of the contract of first 20 percent, even
bargained down to 12 percent, are hard to characterize otherwise. But a first principle of the Act
is its indifference to the content of proposals as long as the content of the proposals, or the
manner in which they are proposed and bargained, do not evince an effort to thwart agreement
or bar discussion. As to the Respondent’s proposals, the “criticism” mounted by the General
Counsel is that the proposals were harsh, and this, standing alone, at least under the
circumstances here, is not compelling.
It is notable that if the Respondent’s proposals were harsh, the harshness was primarily
limited to harsh economic demands. The Respondent points out, with some force, that none of
its proposals challenged the Union’s status or undermined the Union’s standing with or as a
representative of the workforce. Thus, the bargaining was free of proposals to limit union
access to the workforce, weaken the union security or dues checkoff provisions that prevailed in
prior contracts, or to undermine or curb employee or union solicitation rights. No hint of an effort
to remove the union from the workplace is found in its conduct. The Respondent did initially
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propose to make arbitration nonbinding, while retaining the contract’s no-strike clause, a
proposal that strikes at a core function and power of a union in the workplace and must, at the
least, raise the eyebrows of an ALJ or Board seeking to assess underlying motives of an
employer’s bargaining strategy. But this initial proposal was abandoned on September 25, and
did not resurface at any time. Similarly, the Company’s initial proposal to exclude decisions on
leaves of absence from the grievance and arbitration procedure was also abandoned by KLB in
its September 30 proposal. These proposals, involving as they do the final decision in the
hands of the employer, might suggest an effort to displace or undermine the Union. But such
proposals were discarded by KLB during the bargaining process.
The Respondent presented, bargained, and pursued its objectives to seek concessions
without evincing hostility to the process or to the Union. It is certainly not required in order to
find bad-faith bargaining, but it is notable that the record is devoid of even a single statement or
comment by any agent of KLB at the bargaining table, or about the bargaining process that
suggests a design to thwart agreement or an unwillingness to engage in meaningful
bargaining.22
One sophisticated ruse to avoid condemnation for fixed “take-it-or-leave-it” bargaining—
but with the same illicit mindset and achieving the same affect—is for an employer to start
bargaining with drastically harsh demands and then, making movement towards the union,
bargain back to a merely harsh bargaining position, predetermined and from which no
compromise is possible. Mid-Continent Concrete, 336 NLRB at 260–61 (condemning
“Respondent's negotiating style” which “was to put forward a harsh bargaining proposal, stand
by the proposal, then as the negotiations dragged on, concede no more than the status quo,
and stall the negotiations by refusing or delaying its response to any additional proposals").
If seeking to condemn KLB, this would be the angle from which to view KLB’s bargaining
tactics, but in this case even this is unsatisfactory. Most all bargainers—collective bargainers
and consumers bargaining for a new car—start low, and allow themselves to be bargained back
to something they were originally hoping for, all the while pointing out how far they have moved
from their original offer. Such tactics are not condemnable in their own right unless they appear
to veil a closed mind, an unwillingness compromise, listen to the other side, and adjust
proposals in an effort to reach agreement. The evidence is sorely lacking here. The bargaining
was not marked by delaying tactics or a refusal of the Respondent to respond to issues raised
by the Union.
In its brief, the Government focuses on a number of areas in which it sees support for its
allegation of overall bad-faith bargaining. I consider each below.
1. The Respondent’s health care proposals

22Of course, this may be attributable to an employer’s (or its advisor’s) sophistication.
Again, such comments are not required if a party’s bargaining conduct otherwise demonstrates
bad faith, but I note that such evidence does not form any part of the General Counsel’s case
here. Compare, Regency Service Carts, Inc., 345 NLRB 671, 714–715 (2005) (employer
bargainer told union “you want a contract, we don’t.”; “I'll meet, but I'm just going to say no to
everything”; "I won't change my mind").
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The General Counsel, joined by the Union, focuses much criticism of the Respondent on
the Company’s health care proposals and the bargaining surrounding it. The General Counsel
attacks the Respondent’s health care proposals as “vague and confusing.” The Union calls
them “undefined.” These arguments misrepresent what occurred at the bargaining table.
The medical care provision contained in the expiring 2004 Agreement provides helpful
background to the 2007 bargaining. In that agreement, the Company agreed that it “will provide
for employees and their eligible dependents a comprehensive plan of group insurance.”
However, the 2004 Agreement recognized the right of the Company to change insurance
carriers and/or insurance plans during the term of the agreement. Thus, the 2004 Agreement
provided that the Company reserved the right to change insurance carriers and/or go to self
insurance “provided the benefits accorded are substantially similar,” and reserved the right “to
substitute a health maintenance program for the existing medical plan.” The agreement also
provided for a change in the Company’s costs if it changed insurance carriers or if the insurance
carrier changed rates.
In terms of benefits for employees, the 2004 agreement specified benefits (of no less
than): co-pays that applied to out of pocket maximums, doctor office visit co-pays of $10, no in
network deductibles, out of network deductibles of $500 individual/$1000 family, 80 percent/20
percent in network co-insurance and maximum out of pocket expenses of $1000
individual/$3000 family for in network or $1750 individual/$3500 out of network utilization, and a
formula for determining the maximum weekly payroll deduction up to $35 per week per
employee. In terms of level of benefits or coverages, that is all that the 2004 Agreement
provided.
This constituted the entire collectively-bargained agreement regarding health insurance.
More information, such as that found in the plan document or in a summary plan description,
was not part of the collective bargaining agreement. This reflected the practice of the parties.
As Young testified,
every negotiations that I've ever negotiated, in my whole career the Summary
Plan Description comes afterwards. And then it's reviewed by us locally or sent
to the International Union's Insurance Department for the review to see if it
matches what we negotiated in the contract or at the bargaining table.23
Indeed, as referenced above, the 2004 Agreement provided the Company with the
right to change insurance plans, or carriers, or even to terminate the plan and self-insure, as
long as the benefits provided were “substantially similar.” Unit Chairman Conway’s testimony
made clear that this practiced predated the 2004 Agreement. In other words, the key issues
and benefits were negotiated at the bargaining table, made part of the collective-bargaining

23In his testimony, when Young referred to the “summary plan description” he was, in fact,
referring to the master plan document provided by the insurance company to KLB. The master
plan document for the health insurance plan in effect after May 1, 2007, was entered into
evidence as Respondent Exhibit 2.
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agreement, and then the Company purchased a plan from an insurance company. During the
term of the collective-bargaining agreement there might be changes in the plan or indeed, in the
insurance company. The plan document would be sent to the Union after-the-fact for review.
As long as the benefits stayed “substantially the same” and nothing in the document
contradicted or undercut what had been negotiated, there was no problem. If it did, the Union
would demand that the Company fix it, and, in the instance recalled by Conway, it did. Here is
Conway’s explanation of how the employees went from being covered by insurance from a
company called Anthem, to the current insurer, United Healthcare:
Q. Is there a point where the insurance
changed to become United Healthcare?
A. Yes. We've had it for, I don't know, four or five years.
Q. Okay. And do you recall how the United Healthcare insurance, the
provider was changed? Was it changed at the bargaining table?
A. No. If it was similar, he'd have the right to change it. It's in a book
every year and I compare it with the old one.
Q. Okay, you said “he” and “they send”, so who are you referring to?
A. The insurance company would send a book every year and I would
compare it with the old one to see if there's any changes in it.
Q. Okay, now when you say “send a book”, is that a book of what the
plan is that you have? Is that what you're referring to?
A. Yeah, it was the whole thing of coverages.
Q. Okay, and then you would compare it to the one the previous year?
A. Right.
Q. Okay. And you said “he would change it”, who were you referring
to?
A. If Craig changed insurance carriers.
Q. And that would be Craig Johnson?
A. Right.
Q. And you said you compared it every year. You compared it to what?
A. I compared it to the old one.
Q. Okay, and do you recall any problems over the years when there
would have been changes?
A. There was a few times with co-pays and things like that.
Q. Okay, and what did you do?
A. Well, I remember a couple years ago we had -- got new insurance
card[s] and the co-pay were completely different on it. Konrad [Young] and me
talked to Craig Johnson and he fixed it.
Q. Okay. When you say “fixed it”, what did he do?
A. Well, they issued new cards and they were correct this time.
Q. And so when you say “correct”, what do you mean “correct”?
A. It had the old co-pays that we had on there before.

Thus, the standard practice, with which the Company and the Union were familiar, was
for the parties to negotiate—and put in the collective-bargaining agreement—only the basic
benefits information. Subsequently, the Company would provide a plan document that the
Union would review and make sure was in accord with what the parties had negotiated. A
variant of this process was repeated during the term of the collective-bargaining agreement, as
insurance companies updated and changed their plan and as KLB’s Johnson searched for
better insurance packages, with the condition that the Company provide the employees with
substantially similar benefits.
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This history and standard practice—which I believe to be not atypical for employers
and unions negotiating health insurance benefits—does not mean that the Union was required
to follow this practice in 2007 negotiations. In my view, should the Union have desired, it was
free to seek negotiations over each word and line of the plan that the Company intended to
apply to employees.24 But that is not, in fact, what happened here, and I think the historical
practices of the Company and the Union inform the events that transpired at the bargaining
table in important ways.
While the Company’s gutting of the existing contract language (some of it described as
inadvertent) in its opening proposal legitimately engendered some confusion as to what the
Company was proposing, in subsequent negotiations the Company’s proposal was not unclear.
The Union’s professed mystification at trial cannot be credited. The Company’s “alternative
proposal” (GC Exh. 8) provided a new high deductible plan in summary form. Notably, while the
parties focused on the level of deductibles, and premium costs, the suggestion that the
proposed alternative plan did not include benefits is false. They are stated plainly on the page:
Plan
Plan Codes Rt-B/Rx H9
Plan Type Choice Plus
Calendar Plan/Policy Plan/Both C
Deductible (Ind/Fam) $ 2,000/ $ 4,000
Non-Network Deductible (Ind/Fam) $ 4,000/ $ 8000
Copays/coinsurance: 100%
Office visit 100%
Specialist 100%
Hospital—Inpatient 100%
Outpatient Surgery 100%
Urgent Care 100%
Emergency Room 100%
In-Network Coins[urance] 100%
Non-Network Coins[urance] 80%
Out-Of-Pocket (Ind/Fam) $ 2,000/ $4,000
Non-Net Out-Of-Pocket (Ind/Fam) $ 8,000/ $16,000
Med/Rx Ded. Combined Y
Med/Rx Out-Of-Pocket Combined Y
Prescription Drugs:
Member Co-Pay $10 Copay Tier 1
$30 Copay Tier 2
$50 Copay Tier 3
Member Home Delivery 2.5 X Copay Home Deliv[ery]
* * * * * * * * * *
Non –Notification Fee 50%
Lifetime Maximum – Network

24At least, to the extent the details involved mandatory subjects of bargaining. Of course,
there are probably fine points of the plan (which is a contract between the Company and the
insurance company) that are not mandatory subjects of bargaining but that is beside the point.
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Lifetime Maximum – Non-Network
Lifetime Maximum – Combined $5,000,000
This level of detail is easily equal to the level of detail negotiated by the Union in the
2004 Agreement. The suggestion at trial by union witnesses, sometimes endorsed, sometimes
contradicted, that the Company’s proposal did not list any benefits or coverages cannot be
taken seriously. Equally without force is the claim by union witnesses that when they agreed to
the Company’s health care proposal on September 30, that they were only agreeing to the
deductibles and health savings plan information—by themselves important areas of
discussion—and not to the benefits plainly set forth on the Company’s proposal. Indeed, when,
on September 30 the Union made what Young described as a “complete proposal for the whole
contract together” that would “resolve all the items that were open,” it is not credible that the
proposal—which states as to medical insurance: “INS – accept co. last offer”—is anything but
acceptance of the Company’s offer, benefits and all. This acceptance of the Company’s health
insurance proposal was orally repeated on October 3. As the Respondent is quick to point out:
the fact that the Union’s own proposals to settle the contract included acceptance of the
Company’s health insurance decisively undercuts both the logic and credibility of claims that the
Company’s health care proposal was “incoherent,” overly “vague” or “confusing.” Similarly, the
fact that the Union brought the Company’s October 3 offer to its membership for consideration
decisively undermines the contention that the proposal was incapable of being accepted. See,
Timber Products, 277 NLRB 769, 770 (1985) (union’s acceptance of pension proposal, with
detailed plan to be provided at later date, created enforceable contract between the parties: “It is
clear that, once the Union accepted its stated final offer, the Respondent was obligated to
provide a pension plan containing the enumerated benefits under the terms specified in
Appendix B. Any additional details could be resolved by the parties later”).
Young and the Union did have a legitimate concern about the health care insurance. In
its initial proposals, the Company had struck language contained in the 2004 Agreement that
limited the Company’s right to change insurance plans and/or carriers to arrangements that
provided “substantially similar” benefits. That proposed deletion was a red flag for Young and
the Union, and understandably so. With that deletion the Company might be free during the
term of the contract to change plans or carriers and gut the health insurance benefits provided
to employees. Discussion of whether the insistence on such a proposal would be permissible
under McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), is
not necessary: by September 30 the Company had abandoned this proposal and was promising
the Union that the new health care plan would have “the majority of the Group Health Insurance
benefits” and ultimately promised “substantially the same medical coverage” as in the current
plan. This did not satisfy the Union, which wanted assurance that the new plan would provide
coverages exactly like the existing plan. That is the Union’s right to propose, but it does not
render unlawful the Company’s proposal to provide a new plan that was substantially similar in
details to the current plan. Of course, as discussed, supra, when confronted with the
Company’s proposal the Union would have been within its rights to demand bargaining over
each and every detail of the plan. But it did not do that.
Stripped of the incredible contention that the Company’s health insurance proposal
contained no coverage or benefits information—it contained no less than the insurance
bargained in the 2004 Agreement—the Union’s contention boils down to the proposition that the
Company’s health insurance proposal was unlawfully “vague” or “confusing” because it
proposed that additional coverage details of the plan would be “substantially similar” to the
current plan but did not set forth all of those items. At least in the present circumstances, this
argument is not compelling. First, it is telling that the Company’s offer was consistent with its
right under the 2004 Agreement—fully accepted by the Union—to change during the contract
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term to insurance that was “substantially similar.” This was also part of the proposal in 2007
bargaining, and provoked no controversy or comment. That the Union could accept
substantially similar coverage during the term of a contract, while claiming it was unlawful to
propose substantially similar coverage from one contract to the next, is remarkable. Second,
the Company’s proposal appears to be consistent with the manner of bargaining health
insurance to which the parties were accustomed. The novelty of the dispute makes one
question whether the Company’s proposal was as outrageous as the Union contends. Third, as
discussed, infra, the Company explained to the Union why it believed it was unable to provide
further details of the plan. This is not a case where an employer refuses to justify or explain its
bargaining conduct, which is often a key factor in determining bad faith bargaining. Fourth, the
Union did not demand, and the Company did not refuse to bargain over additional coverage and
benefits items that the proposed labor agreement lacked. The Union wanted the Company to
agree that the coverages would be exactly the same under the old and new plans. But, faced
with the Company’s reluctance to agree to that, the Union did not seek to bargain each issue at
the table. Thus, this was not a situation where an employer refuses to negotiate over
mandatory subjects. Rather, its proposal to adopt “substantially similar” coverages was met
with the Union’s demand that it guarantee the same coverages.25
Under the particular circumstances in this case, I find that the Company’s health care
proposals were not unlawfully vague, confusing, or incomplete, and were not incapable of being
accepted by the Union. Indeed, on September 30 and again on October 2, the Union’s proposal
included acceptance of the Company’s health care proposal.
2. The Timed offer
The complaint alleges that the Respondent’s October 8 “timed” offer was indicative of
overall bad-faith bargaining and considerable evidence about it was presented at trial.
Accordingly, I review the issue here. I start, however, by pointing out that the contention that
the timed offer was indicative of overall bad-faith bargaining is not advanced in the General
Counsel’s brief. I assume the contention was abandoned because of the evidence. The
evidence at trial showed that the timed offer was an attempt to move toward the Union for the
purpose of achieving a collective-bargaining agreement. Union representative Young’s view
was solicited as to what would be acceptable to the bargaining unit and included in the timed
offer. Rather than showing bad faith, the timed offer was an effort to achieve agreement.
Moreover, the process of a “timed” proposal was not materially different from the Union’s
repeated resort to “package” proposals. Upon rejection of any part of the Union’s package
proposal the Union returned to its previous position (less favorable to the Company) on each

25The Union is correct that, in its October 18 letter to the Union, the Company inconsistently
phrased its offer on this issue. It committed “to providing the same medical coverage in its
proposal as it currently does,” but also, in nearly the same breath, stated that it was committed
“to providing substantially the same medical coverage in its proposed plan as it does under the
current plan.” The Company concedes that the October 18 letter was “inartfully worded,” and
contends that the intent of the letter was to tell the Union that the Company was agreeing to
guarantee the same medical coverage. In my analysis I have assumed that the Company’s
proposal remained, at least after withdrawal of the October 8 timed offer, a willingness to
promise “substantially similar” coverage. In other words, I have analyzed the matter, and
resolved the inconsistency, from the best case scenario for the General Counsel and Union’s
legal argument. However, if the Company sticks to its word, then there will be no issue when
the parties return to productive bargaining: the Company says it was proposing to guarantee the
same medical coverage the employees received under the 2004 Agreement.
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component of the package. The only difference between the Union’s package proposal process
and the Company’s timed offer process was that the Company set a date and time for the Union
to accept or reject. But the uncontradicted evidence is that this date and time was set in
consultation with Young to ensure that the Union would have a chance to accept or reject before
the expiration of the offer. None of the concepts and proposals in the timed offer were new.
There is no suggestion that the Union needed or wanted more time to consider it. Particularly,
in the context where the Union has relied in negotiation on the process of regressing to previous
positions upon the reject of a proposal, one would be hard pressed find the Company’s use of
the practice evidence of unlawful motive. In other words, this is not a case where the
Company’s tactic was foreign to the process established by the parties. There are
circumstances (see, e.g., White Cap, Inc., 325 NLRB 1166 (1998), where the Board has
permitted such tactics even where unilaterally imposed by the Company. And circumstances
where the Board has found such tactics indicative of bad faith. See, e.g., Toyota of San
Francisco, 280 NLRB 784, 801 (1986). But where the Union has utilized the tactic in the
negotiations, it is understandable that the General Counsel does not argue that the employer’s
utilization of the tactic—in an effort to secure not thwart agreement—is evidence of bad faith.
3. 8(d) Notice issues
The General Counsel contends (not in the complaint, but for the first time on brief) that
KLB violated Section 8(d) of the Act by failing to give proper notice required by that subsection
of the Act.26 There is no basis for the claim. The Respondent complied with Section 8(d)(1)
when it sent a notice of an intent to terminate the contract on February 26, 2007. This is
unusually early—the contract was not set to expire until October 1—but nothing more can be
made of it than the explanation offered by Johnson: in 2003 the Company forgot to give the
notice, the Union failed to do so, and the parties ended up with the agreement renewing
automatically. In 2007, the Company gave an early notice as a precaution to avoid a recurrence
of that scenario. It is true that the Company’s February notice promised “be in touch in the
coming months to discuss the scheduling of collective bargaining negotiations.” Instead, Young
contacted the Company in early September. But this is hardly indicative of bad faith.

26Section 8(d) states, in relevant part, that
the duty to bargain collectively shall also mean that no party to such contract
shall terminate or modify such contract, unless the party desiring such
termination or modification--
(1) serves a written notice upon the other party to the contract of the proposed
termination or modification sixty days prior to the expiration date thereof, or in the
event such contract contains no expiration date, sixty days prior to the time it is
proposed to make such termination or modification;
(2) offers to meet and confer with the other party for the purpose of negotiating a new
contract or a contract containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation Service within thirty days after
such notice of the existence of a dispute, and simultaneously therewith notifies any
State or Territorial agency established to mediate and conciliate disputes within the
State or Territory where the dispute occurred, provided no agreement has been
reached by that time; and
(4) continues in full force and effect, without resorting to strike or lockout, all the
terms and conditions of the existing contract for a period of sixty days after such
notice is given or until the expiration date of such contract, whichever occurs later . . .
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Young was not ready to bargain until mid-September and the Company’s failure to
contact the Union before the Union contacted the Company in early September was of no
moment for the bargaining. The General Counsel also claims (GC Br. at 14) that the
“Respondent failed to notify the FMCS as required by Section 8(d)(3).” The claim is baseless.
Indeed, in the next breath the General Counsel concedes (GC Br. at 15) that “the Union's notice
was sufficient to notify the FMCS of the parties' dispute.” It was, and the suggestion that the
Company violated the notice provisions of 8(d), or that its failure to provide a second notification
to the FMCS was indicative of bad faith, evaporates with the concession.
4. The termination of the extension agreement
The General Counsel contends that the Respondent’s termination of the extension
agreement after one week is suggestive of bad faith.
I accept that the text of the extension agreement signed by the parties provided for a firm
two week extension before either party could terminate.27
However, notwithstanding the text of the agreement, the overwhelming evidence clearly
and convincingly demonstrates that the agreement reached at the table between the parties—at
the Union’s insistence—was that the contract could be terminated day to day. This is an
unusual situation, but in these peculiar circumstances the record evidence of the parties’ real
agreement serves to blunt the force of this as evidence of overall bad-faith bargaining.
Notwithstanding the language of the extension agreement, the Company’s decision to terminate
was in accordance with the agreement urged by the Union and acceded to by the Company.
The parties adopted this agreement precisely because the Union did not want an extension
agreement that kept the contract in place for a firm period of two weeks. The evidence is
undisputed and endorsed by both union and company negotiators: Wakefield proposed a firm
two week extension agreement and Young rejected it precisely because he “wanted a day to
day so we would be in negotiations on day to day because I didn’t want to stretch it out two
weeks.” To avoid this, Young supplied his own version of an extension agreement. Asked his
understanding of the length of the extension agreement, union negotiator Conway mightily
resisted efforts of counsel to suggest to him that the answer was two weeks, and stated that
“[s]ince Konrad [Young] came out with this, I think it was probably day-to-day.” (See, Tr. 751–
752).

27The Respondent takes the view that the extension agreement permitted termination upon
notice anytime, even within the first two weeks. The text of the extension agreement does not
support that conclusion. The agreement states that the expiring agreement “is hereby extended
. . . to Oct[ober] 14, 2007, and thereafter on a day-to-day basis.” (emphasis added). It then
states: “Should either party desire to terminate the Agreement, said party shall give written
notice to the other party at least twenty-four (24) hours in advance, and the Agreement shall be
terminated on the date and hour specified in the twenty-four (24) hour notice.” If, as the
Company contends, the 24-hour termination language applies to the period of time between
September 30 and October 14, and not just “day-to-day” “thereafter,” then we would have a day-
to-day contract, even before October 14, and the language extending the contract to October
14, is superfluous, indeed, inoperative. It is, of course, “a cardinal principle of contract
construction: that a document should be read to give effect to all its provisions and to render
them consistent with each other.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52,
63 (1995). In this case, consistency is achieved by interpreting the 24 hour termination
provision to apply only to the “day to day” period after October 14.
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Young testified to puzzlement and unhappiness with the Company’s termination of the
agreement. He wondered, “[i]f . . . the Company was so insistent upon having a two week
extension that was signed as of September 30th, why they were terminating the contract . . . [I]t
didn't make any sense to the Union what the strategy was to ask for a two week extension and
then to cancel it a week later.” However, Young stopped short of contending that the Company
had breached the extension agreement, and, notably, there is no contemporaneous letter or
note, or indication of a discussion showing that the Union viewed the Company’s actions as a
violation of the parties’ extension agreement.
Thus, we have the unusual situation where the evidence of the parties’ intended
agreement is at odds with a reasonable reading of the agreement they signed. It represents a
classic mutual mistake. September 30 was a busy time at the bargaining table. The parties
were trying to obtain a contract. They were not focused on the terms of the extension
agreement. Young did not write the language he proposed, it was a “form extension agreement
that the UAW uses.” Apparently no one at the table read it very carefully and they just assumed
(as Conway explained) that the language served the purpose for which it was proposed and
adopted. And that purpose was to enable the parties to terminate the contract at any time on 24
hours notice.
Thus, the Company’s termination of the agreement did not indicate subjective bad faith.
In terminating the agreement it acted in accordance with the agreement reached with the Union.
Notably, the desire to terminate an agreement, and reach a point where the employees are
working on a day to day basis, is not, by itself, to be frowned upon. It is a common tactic of
unions and employers to increase pressure for settlement by the prospect it creates for a strike
or lockout. In these unique circumstances, the claim of bad faith falters because the Company
acted in accordance with agreement intended by the parties.
Given this, the most that can be said is that the Company—relying on the common
understanding of both parties—itself a product of acceding to the Union’s demands for a day-to-
day contract, did not read (or did but misread) the text. The circumstances effectively puncture
efforts to transform this incident into evidence of an intent by the Company to thwart the
collective bargaining process.
The General Counsel also contends that the breach of the agreement is an
independent violation of the Act, regardless of motive. It is clear that repudiation of an
extension agreement constitutes a per se breach of the act. But this is a classic case of a
mutual mistake. Neither Board precedent nor the law of contracts is so unforgiving as to find a
violation in such circumstances.28 I decline to find a violation of Section 8(a)(5) in these
circumstances based on the termination of the extension agreement.

28Cook County School Bus, Inc., 333 NLRB 647, 653 (2001) (“the parties conduct should be
governed by what they agreed to and not by what was mistakenly put in the contract”); enfd. sub
nom. NLRB v. Cook County School Bus, Inc., 283 F.3d 888, 893 (7th Cir. 2002) (citing § 155 of
the Restatement 2nd of Contracts: “Where a writing that evidences or embodies an agreement
in whole or in part fails to express the agreement because of a mistake of both parties as to the
contents or effect of the writing, the court may at the request of a party reform the writing to
express the agreement”).
I note, again, that while Young expressed surprise that the Company would terminate the
extension agreement after a week, there is no evidence that the Union viewed the Company’s
termination as breach of the extension agreement. It is not even alleged in a charge. Thus, the
text notwithstanding, neither party to the agreement maintains that the Company breached the
Continued
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5. Lack of authority of bargainers
In support of its contention that KLB bargained in bad faith, the General Counsel asserts
that KLB bargainers lacked adequate authority to negotiate a contract. In mounting this
argument, the General Counsel cites Johnson’s testimony that he had to talk over union offers
with the owners before agreeing to a particular offer. However, Johnson also testified—and the
General Counsel concedes (GC Br. at 17) that this testimony is not necessarily contradictory—
that he had “outside limits” beyond which he could not go without discussing it with the owners,
but that he made offers at the table without checking with the owners. Wakefield described he
and Johnson’s authority as falling within “parameters” laid down by the principals. All of this
struck me as prosaic. The salient point is that there is no evidence that Wakefield or Johnson’s
authority (or lack thereof) hindered the collective bargaining process. The limits on Johnson
and Wakefield’s authority did not delay, stall, or contribute in any discernible way to the failure of
the negotiations.
6. Requests for information
The complaint alleges that the Respondent failed and refused to provide the Union with
health care insurance, bonus, and wage information requested in the Union’s October 4
information-request letter. The complaint also alleges that these requests were verbally
renewed on October 10, 16, and 21.
On brief, the General Counsel confines argument regarding the Respondent’s failure to
provide requested information to the Respondent’s response to the Union’s October 4
information-request letter. There is no argument, and no evidence was offered, to support the
allegations regarding verbally renewed requests on October 10, 16, or 21. Accordingly, those
allegations must be dismissed.
As to the allegations involving the October 4 information request, the General Counsel
generally challenges the Company’s failure to provide the information on the newly proposed
alternative health insurance plan, bonuses, and the Union’s requests related to the Company’s
proposal to reduce wages.
a. Health Care Information
For the most part, the Company’s response (as set forth in detail, above) was that it did
not possess the requested information on the new plan, that it made an effort to obtain the
information, but could not obtain the information until it actually purchased the new plan. As to
other items, such as the Form 5500 or equivalent, copies of contracts, quotes from other
carriers, and quotes for cost beyond the first year, Johnson testified, essentially, that such items
did not exist. Board precedent requires an employer in this situation to make a good faith effort
to obtain requested documentation held by a third party. However, the extent of the effort and
the credibility of the failure is related to the nature of the relationship between the employer and
the third party. Pittston Coal Group, Inc., 334 NLRB 690, 692–693 (2001).
In his testimony, Johnson painted a picture of a small employer that purchased its health
insurance through an independent insurance broker. The Company itself has no relationship
_________________________
parties’ agreement.
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with the insurer and, in Johnson’s telling of it, is too small to get attention from the insurance
company. His efforts to obtain the requested information were undertaken through the
insurance broker who told him that the information was not available.
Contrary to the assertions of the General Counsel, there was nothing inherently
unbelievable about Johnson’s testimony. As mentioned, above, I found Johnson a
straightforward witness. I did not have reason to believe he was dissembling or evasive. I
credit his testimony on this issue, particularly given that his testimony on the issue is
undisputed. The most obvious avenue for the General Counsel to pursue would have been to
subpoena the insurance broker in an effort to rebut Johnson’s claims. Or, subpoena a
representative of the insurance company to testify about what kind of materials and documents
it makes available for employers in KLB’s situation. Instead, the General Counsel called an
employee of the UAW benefits department who had no involvement in the facts surrounding this
case, but who attempted to testify as an expert witness based on her familiarity with the health
insurance industry, which expressly did not include familiarity with the practices of United
Healthcare “specific to the timeframe.” I sustained objections to her testimony that went to the
issue of whether the requested information would have been the “type of documents . . . readily
available if an inquiry is made into an insurance company.” I sustained objections to this
testimony because I do not believe that the Company’s access to the requested information can
be proven in this manner.29
I do not believe a violation has been proven as to the requested health insurance
information.
b. Bonus information
As to the information on bonuses, notwithstanding the General Counsel’s reference to it
on brief, the evidence suggests that the Union felt it that its request was satisfied. The
Company’s October 18 letter to the Union attached information related to bonuses. The Union’s

29In light of my rulings, the General Counsel made several offers of proof regarding the
testimony the witness would have given. In sum the offers of proof stated that the witness
would have testified that “every insurance company” or “other insurance companies similar to
United Healthcare” usually have actual plan documents and extensive information on various
plans offered by the insurance company that are available to prospective purchasers prior to
purchasing an actual plan. My view is that the issue does not lend itself to generalized
testimony about the practices of insurance companies. I continue to believe that such testimony
would not assist me “to understand the evidence or to determine a fact in issue” (Federal Rule
of Evidence 702) and I reject it on that basis. I also believe that the use of an expert witness
without advance notice to the opposing party is in most instances going to be unfair. The
premise of allowing an expert witness to testify is that he or she can provide “scientific,
technical, or other specialized knowledge” on a relevant subject. Given that, it is unlikely that an
attorney can, with no advance notice, effectively cross examine the witness or even line up a
rebuttal expert witness without significant delay and disruption to the trial schedule. The failure
to provide notice is not conclusive, but it was a factor in my decision to bar much of this witness’
testimony. Finally, I would note that even if I permitted testimony to this effect (and, in fact,
notwithstanding my ruling, I ended up allowing some specific testimony that probably ran afoul
of my general ruling prohibiting “expert” opinion on what insurance companies make available to
prospective purchasers), I would not give it much weight. More persuasive is the creditable
testimony of Johnson regarding his actual experience in this instance seeking information
sought by the Union.
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October 21 letter, which discussed the Company’s response to the Union’s October 4
information request, stated that “[t]he Union acknowledges that the Company did provide for the
information requested in regard to bonuses.” There is no evidence to support the General
Counsel’s suggestion that bonus information was not provided to the Union. Accordingly, with
regard to the bonus information, no violation has been proven.
c. Wage reduction information
The Union’s October 4 information request also sought seven items listed under the
heading of “wage reductions.” In the letter, the Union stated that it was asking for this
information in order to determine the “veracity” of the “continually asserted” claims by the
Company during negotiations that it must “improve its competitive position.” The Union
contended that “[b]ased on this assertion, the Company has made numerous contract proposals
that reduce the wages and benefits.”
The specific requests, set out above, are of certain types: a list of current and past
customers and information on quotes provided to customers (and prospective customers);
marketing plans, information on pricing of products, information on outsourcing of work
previously performed by bargaining unit employees, and “complete calculation” of the
anticipated savings from the proposed wage cuts. In its response, the Company refused to
provide most of this information, although it did provide the amount of anticipated wage savings,
without any calculation or information that would show how the figures were reached. The
Union’s October 21 follow-up letter “maintain[ed] that it is entitled to all documents and
information called for in our October 4, 2007 letter,” and with regard to the wage figures,
specifically pointed out that the Company did not provide “’complete calculations’ for the Union
to assess the validity of these figures.”
In Caldwell Mfg. Co., 346 NLRB 1159, 1159–1160 (2006), the Board summarized its
precedent on the duty to provide requested information:
an employer's duty to bargain includes a general duty to provide information
needed by the bargaining representative to assess claims made by the employer
relevant to contract negotiations. Generally, information pertaining to employees
within the bargaining unit is presumptively relevant. CalMat Co., 331 NLRB 331
1084, 1095 (2000). However, when the representative requests information that
does not concern the terms and conditions of employment for the bargaining unit
employees--such as data or information pertaining to nonunit employees--there is
no such presumption of relevance, and the potential relevance must be shown.
Shoppers Food Warehouse Corp., 315 258, 258–259 (1994). The burden to
show relevance is "not exceptionally heavy," Leland Stanford Junior University,
262 NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983) and "the Board
uses a broad, discovery-type of standard in determining relevance in information
requests." Shoppers Food Warehouse, 315 NLRB at 259. When there has been
a showing of relevance, the Board has consistently found a duty to provide
information such as competitor data, labor costs, production costs, restructuring
studies, income statements, and wage rates for nonunit employees. E.I. du Pont
& Co., 276 NLRB 335 (1985), enfd. 744 F.2d 536 (6th Cir. 1984); see also
CalMat Co., supra at 1096–1097; Litton Systems, 283 NLRB 973, 974–975
(1987), enf't. denied on other grounds 868 F.2d 854 (6th Cir. 1989).
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An employer is required to provide information pertaining to nonunit employees when the
Union has shown a “probability that the desired information is relevant, and that it would be of
use to the union in carrying out its statutory duties and responsibilities.” Allison Co., 330
NLRB 1363, 1367 (2000). However, even in the absence of such a showing by the Union, the
Board holds “that an employer is obligated to furnish requested information where the
circumstances should put the employer on notice of a relevant purpose which the union has not
specifically spelled out.” Allison Co., 330 NLRB at 1367 fn. 23.
In Caldwell Mfg., supra, the Board rejected the argument “that an employer has no duty
to disclose information requested by a union where the information is financial in nature and the
employer has not pleaded an inability to pay.” In Caldwell, the Board recognized that “generally,
an employer is not obligated to open its financial records to a union unless the employer has
claimed an inability to pay, and that broad statements of ‘competitive disadvantage’ do not
amount to a claim of an inability to pay.” 346 NLRB at 1160 (citations omitted). However, while
the claim that bargaining positions are motivated by competitive concerns does not trigger
general access to an employer’s financial records, a union is entitled to request information “to
evaluate and verify the Respondent’s assertions and develop its own bargaining positions.” A
union is entitled to request and receive financial records when the request is based on specific
assertions on which the employer premised its bargaining positions, and the employer violates
Section 8(a)(5) and (1) by failing to provide the requested information. Caldwell, supra. Accord,
Metropolitan Home Health Care, 353 NLRB No. 3 fn. 2 (2008).
The right to request and receive necessary and relevant information in bargaining is an
important and central feature of the Act. The holding in Caldwell follows from long-settled
Supreme Court-approved understanding of the Act: "Good-faith bargaining necessarily requires
that claims made by either bargainer should be honest claims. . . . If such an argument is
important enough to present in the give and take of bargaining, it is important enough to require
some sort of proof of its accuracy." NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956). As
the Supreme Court explained in Truitt, supra, relying on principles adhered to since the earliest
years of the Act, for a party to assert its positions without permitting proof or independent
verification, “[t]his is not collective bargaining.” 351 U.S. at 153 (quoting Pioneer Pearl Button
Co., 1 NLRB 837, 842–843 (1936)).
Collective bargaining is often described as a struggle of brute economic power between
an employer and union. It is, but at the same time the Act regulates the process of that struggle
by requiring good-faith bargaining that encourages reasoning, problem solving, and honest
discussion. This reasoned side of the Act is essential if the Act’s goal of industrial peace is to
be furthered. There is a right to engage in knowledge-based bargaining where parties can
verify each other’s statements, and just as importantly, have information necessary to creatively
search for solutions to the problems and differences that arise in collective bargaining.
In this case, the Company took care to avoid statements that could be construed as
suggesting an inability to pay and thus be grounds to trigger a duty to disclose general financial
records. As Wakefield explained, “we weren't pleading poverty, we didn't say we couldn't pay,
so [Young] didn't -- he didn't have any right to access the books.” As Johnson stated, “We did
not want to open ourselves up to being able to have our books examined.” That is all well and
good. I agree that the Company did not “plead poverty.” It had no duty to respond to a general
request that it open its financial records to the Union. But the Union did not request
“generalized financial information, such as the Respondent's profits, net income, tax returns,
salary information, or administrative expenses.” Caldwell, supra at 1160. The teaching of
Caldwell, supra, reaffirmed in Metropolitan Home Health Care, supra, is that the failure to plead
an inability to pay does not sanction the refusal of an employer to provide requested information
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that is relevant to the positions it has taken in bargaining. The point of Caldwell is that the duty
to provide relevant requested information cannot be evaded just because inability to pay is not
the rationale for bargaining positions. Other rationales also make relevant certain information
that would—absent the bargaining positions taken by an employer—not necessarily be relevant
or required to be disclosed. An employer’s claim of “competitive” problems as a rationale for
bargaining positions is not a refuge from the Act’s requirement that if “an argument is important
enough to present in the give and take of bargaining, it is important enough to require some sort
of proof of its accuracy." NLRB v. Truitt Mfg. Co., 351 U.S. at 152–153. And KLB’s insistence
that its reliance on “competitiveness” was articulated “broadly” or “generally” does not immunize
the claim from union scrutiny. The claim was the key rationale for its demand for wage
concessions. As the record reveals generally, and as union negotiator Young specifically, and
credibly testified, when it came to the Company’s rationale for its position, “it all centered around
competitiveness.” The Union has a right in the knowledge-based bargaining system provided
for by the Act to delve into this claim and seek information to understand, evaluate, and rebut it.
Case law cited by KLB is not to the contrary. For instance, KLB cites Nielson
Lithographing, 305 NLRB 697 (1991), where the Board adopted the view that complaints of
“competitive disadvantage” did not equate to a claim of inability to pay that triggered a Union’s
right to financial information such as banking records, financial statements, and analyses of
working capital. However, in support of its claims of competitive disadvantage, the employer in
Nielson Lithographing did provide the union with data that supported the employer’s assertions
that it had been losing business to competitors. 305 NLRB at 697.30

With these principles in mind, it is necessary to review the information requested by the
Union that it contended was relevant to the Company’s demand for wage concessions. First, is
the list of current customers. The Union explained in its letter that this information was sought
to verify the Company’s repeated claims about the need to improve its competitive position.
The Union stated that it wanted to contact customers to see if any were contemplating buying
from sources other than KLB.
In its letter to the Union, the Company asserted that the information was not “necessary
and relevant to the UAW’s representation of the bargaining unit members.” In the letter, KLB
essentially dismisses its own claims about competitiveness being the basis for the wage
concessions it sought as “no different from the desire of any business conducting operations
similar to those of KLB.” But KLB cannot so quickly dismiss its own claims, that it made central
to the bargaining.
As the Company maintains in its brief and maintained at trial (correctly in my view), the
central issue in these negotiations, and the chief stumbling block to agreement, was the

30Also wholly inapposite is Gilberton Coal Co., 291 NLRB 344 (1988), enfd. w/o op. 888
F.3d 1381 (3d Cir. 1989), a case the Respondent relies upon in which customer information was
not required to be provided to the Union. However, in Gilberton Coal, the requested customer’s
names bore no relevance to the purpose for which they were sought: the union’s effort to
determine whether it could picket the purchaser of a culm bank as an ally of the respondent.
The employer reasonably satisfied the union’s doubts about the sale by directing the union the
court clerk’s office where the documents describing the sale were on record. Although the
Board declined to pass on the finding, the judge found the employer had grounds to suspect
that the union would use the customer names for illegal secondary activity (a complaint already
having been issued in that regard). No such concerns and no such irrelevance attaches to the
Union’s request for customer names in this case.
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significant wage concessions that the Company sought in negotiations. As I have indicated,
above, in my view, up to October 4, it advanced this position lawfully. Its asserted basis for the
sharp wage concessions was the need to be more competitive, which it defined or explained in
a variety of ways, but as noted, the Company’s rationale for the wage cuts “centered around
competitiveness.”
At the hearing, the Company made clear that its wage concession demands were driven
by concerns with competitors, and this, obviously, but also explicitly included concerns about
customers—a huge one was lost in 2006 according to Company testimony. Maintaining
customers and keeping them from going to other sources is a core function of competitiveness.
It made sense for the Union, faced with demands for huge wage concessions, and apparently
not a lot of bargaining power, to seek information to verify the Company’s concerns or, better
yet from the Union’s perspective, to undercut or mollify the Company’s concerns. To
paraphrase Truitt, supra, “this is collective bargaining.” Seeking more information about a
potential loss of customers, a key element of competitiveness concerns raised by the
Respondent, is a legitimate response for a Union facing demands for significant wage cuts. Its
relevance was explained in the Union’s letter and it is clear from the record developed at the
hearing that the relevance was apparent to the Company.
In this regard it is highly significant that at trial the Company provided additional
information—specifically the names and sales volume of customers—precisely to justify the
claims of competitive pressures as the motivation for its wage proposals. In order to bolster its
case of its rationale for wage concessions, the Respondent introduced into evidence a list of its
top 20 customers for 2005, 2006, and 2007, including sales figures for each (which is not
something the Union requested). Thus, at trial the Company produced the same information that
would have been responsive to the Union’s information request on customers. This is a glaring
if implicit admission of the relevance of the Union’s pursuit of customer information to test the
Company’s alleged competitiveness problems.
The Company also maintained that this information was confidential. In its letter to the
Union it maintained that it had confidentiality agreements with each of its customers. The
Company claimed that “KLB has contractual obligations with each of its customers to maintain
the confidentiality of the customer’s information” and disclosing such information “would not only
subject KLB to lawsuits, but could also destroy the Company’s relationships with its customers.”
However, at trial, Johnson scaled back this claim to the statement that the Company had
confidentiality agreements only with “some” of its customers. Notably, neither in its letter nor in
Johnson’s testimony was any claim made that the confidentiality agreements covered disclosure
of the mere name of the customer (which is what the Union sought), as opposed to sales or
other financial information.
While the Board recognizes the Supreme Court admonition in Detroit Edison v. NLRB,
440 U.S. 301 (1979) that a “[r]espondent’s claim of confidentiality and privilege must be
balanced against the Union’s need for relevant information in pursuit of its role as a
representative of the employees” (Howard University, 290 NLRB 1006, 1007 (1988)), the Board
also holds that “[a]n employer bears the burden of demonstrating that its refusal to provide
relevant and necessary information to a labor organization is excusable because the requested
data is privileged information.” Washington Beef, Inc., 328 NLRB 612, 621 fn.11 (1999);
McDonnell Douglas Corp., 224 NLRB 881 (1976). Moreover, blanket claims of confidentiality as
grounds for refusing to provide any information of the type requested are not adequate.
Pennsylvania Power Co., 301 NLRB 1104, 1105–1106 (1991) (“Legitimate and substantial
confidentiality and privacy claims will be upheld, but blanket claims of confidentiality will not”);
Washington Gas Light Company, 273 NLRB 116–117 (1984) (general blanket policy of refusing
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disclosure violates Act).
Here, KLB has not proven that the names of its customers present or past is a matter of
confidentiality. Notably, the Union’s request does not seek sales or other financial information
regarding these customers. It seeks a list of their names. KLB produced no contracts or
evidence, redacted or otherwise, to support an assertion that the mere name of a customer is
subject to a confidentiality agreement between KLB and the customer. Moreover, as discussed,
at trial, in order to bolster its case of its rationale for wage concessions, the Respondent
introduced into evidence a list of its top 20 customers for 2005, 2006, and 2007, including sales
figures for each (which is not something the Union requested). Thus, exactly the type of
information requested by the Union has now been placed in a public record by the Respondent,
and therefore provided to the Union and anyone else interested in it, without any effort to shield,
redact, or hide the allegedly confidential information. On this record, the claim that the identity
of its customers is confidential has not been proven.31
Moreover, even assuming the legitimacy of KLB’s confidentiality concerns, under Board
precedent KLB bears the burden of proposing alternatives or seeking to bargain a resolution to
its confidentiality concerns. As the Board explained in National Steel, Corp., 335 NLRB 747,
748 (2001), enfd. 324 F.2d 928 (7th Cir. 2003):
With respect to the confidentiality claim, it is well established that an
employer may not avoid its obligation to provide a union with requested
information that is relevant to bargaining simply by asserting a confidentiality
interest in the information. Rather, the employer has the burden to seek an
accommodation that will meet the needs of both parties. Thus, upon informing
the Unions of its confidentiality concerns, the Respondent had an obligation to
come forward with an offer of accommodation. (citations omitted).
Accord, Tritac Corp., 286 NLRB 522 (1987) (a respondent “cannot simply raise its confidentiality
concerns, but must also come forward with some offer to accommodate both its concerns and
its bargaining obligation”); GTE Southwest Inc., 329 NLRB 563, 564 fn. 6 (1999) (“We find no
merit in the Respondent's argument that the Union made no attempt to accommodate or to
guarantee confidentiality. The Respondent, not the Union, was the party that was required to
seek accommodation”).
KLB did not do this. Instead, KLB contends that it was “prepared to discuss potential
accommodations of its confidentiality concerns with the Union,” and complains that the Union
failed to pursue such discussions. But the truth is, KLB did not raise the subject or make any
effort to bargain an accommodation of its alleged confidentiality concerns. As can be seen in its
letter, it raised confidentiality concerns as a reason to say no, not as concern that it sought to

31I note that there is no evidence the Company feared the Union would misuse the customer
information, for example to picket customers. See, e.g., Allen Storage & Moving Co., 342 NLRB
501, 503 (2004) (employer established confidentiality interest in names of customers based on
concern that union would use customer information to picket at customers). The Company did
not mention such a concern to the Union, did not mention such a concern at trial, and does not
argue it on brief.
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accommodate.32
The second item requested by the Union was a copy of “any and all quotes” provided by
the Company. The request also asks for the number of quotes awarded or not awarded in the
past five years. The record discloses no response to this request. However, at trial, Johnson
indicated that being outbid by competitors, which he assumed had happened when the
Company provided a customer with a quote but did not receive the job, was a source of concern
that prompted the demand for steep wage cuts in negotiations. Johnson’s testimony
demonstrates that the relevance of the quote information was apparent to the Respondent
under the circumstances. To the extent the request raised confidentiality issues the response
should have included them and a proposal to accommodate them.
The Union also requested a list of former customers that had ceased buying from the
Company within the last five years. Again, KLB did not respond to this request. At trial, KLB
featured its concerns about customers and, specifically, its 2007 loss of its second largest
customer as a basis for its need for labor cost reductions. By placing into evidence information
about customers that it withheld from the Union, for the purpose of demonstrating to the Board
the legitimacy of its desire for wage reductions, the Company effectively admits the relevance of
the information sought by the Union, and demonstrates that it understood the relevance of the
request.
The Union’s information request also requested that KLB identify outsourced work (over
last five years) that had previously been performed by the bargaining unit. In response, the
Company disputed that this information was necessary or relevant and maintained that the
“UAW is well aware that KLB has, and continues to, outsource work.” The letter went on to say
that “the Union has never complained about or grieved outsourcing,” that there had not been
“any bargaining discussions relating to outsourcing,” and that the Company did not understand
how its statements about remaining competitive rendered the information necessary or relevant.
The Board views such requests to require a showing of relevance by the Union.

32This decisively distinguishes the instant situation from that in Allen Storage & Moving Co.,
342 NLRB at 503, a case relied upon by the Respondent. In that case the Union wrote to the
employer asking for customer information in order to evaluate the employer’s claim concerning
limited work available for employees after a strike. The employer wrote to the union denying the
request on grounds of confidentiality, but in the same letter sought to accommodate the union’s
concern by
“‘offer[ing] to permit a post-strike review of the company financials [which will
show] that the company’s financial picture has deteriorated even further as a
result of the strike. . .’ The Union, without discussion or explanation, did not
accept the Respondent’s offer, even though the ‘financials” could have given the
Union the information it said it needed. Indeed, at the hearing, [the union
representative] admitted that he had no reason for not accepting the
Respondent’s offer to review its financial statements.”
The Board held that this effort by the employer to accommodate the union’s concern satisfied its
duty to bargain towards an accommodation with the Union regarding information (that the Board
also found to the employer) established as confidential. Id. at 504. Here, in sharp contrast, KLB
made no effort to accommodate the Union’s concern.
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However, as noted, this requires only a showing of a "probability that the desired information is
relevant, and that it would be of use to the union in carrying out its statutory duties and
responsibilities." Public Service Electric & Gas Co., 323 NLRB 1182, 1186 (1997), enfd. 157
F.3d 222 (3d Cir. 1998). The request was limited to work “that had previously been done at this
facility by bargaining unit employees.” The request was made at a time when, it is undisputed,
bargaining unit employees were and had been on layoff for a couple of years. The information
explicitly was requested in conjunction with KLB’s demands for wage reductions to remain
competitive and thus the question of whether the bargaining unit employees, some of whom
were now on layoff, used to perform any of the work more efficiently than outsourcing was
probably relevant and would be of use to the Union in attempting to evaluate and verify the
Company’s wage reduction proposals.33 Moreover, although withdrawn by October 4, the
Union had maintained a proposal in negotiations to eliminate all outsourcing. The fact that the
issue was not on the bargaining table at the time of the request does not undercut the relevancy
of the request. The right to information is not so limited. To the contrary, the Union might have
further pursued the issue if the request yielded information that made a further outsourcing
proposal expedient. Alternatively, the information might have confirmed to the Union the
appropriateness of its decision to withdraw the proposal. There is no basis for the Company’s
contention that the right to information is limited to proposals currently being proposed.34
The Union also requested “a complete list of prices for products so that the union can
compare the prices of competitors.” In addition, the Union’s request stated: “[i]n order for the
Union to determine whether the company’s assertion of uncompetitiveness is based on price or
other factors . . . . [p]lease provide market studies and/or marketing plans that would impact
sales of products produced at . . . KLB Industries, Bellefontaine, Ohio facility.” The Company
did not respond to these requests. The Union explained each of these requests in relation to
the Company’s claims that competitive concerns were driving its demand for wage concessions.
Prices are obviously relevant to a claim of competitiveness. Indeed, at trial Johnson made clear
that when the Company bid on a job and did not get it, it assumed that the reason was that “our
quotes were too high.” Similarly, a market study, if the company possessed one, would
probably help to evaluate the role of competitors in limiting the Company’s sales. I note that as
the Company did not respond to this response no claim of confidentiality was raised.
Finally, in its October 4 letter, the Union requested that “[w]ith the current Company
proposal to reduce wages, please provide a complete calculation of the projected company
savings over the next three years, including any projected overtime.” The Company responded
by conceding that “wage cost saving is necessary and relevant,” then stating:

33The fact of the current layoffs, alone, distinguishes the instant circumstances from those in
Disneyland Park, 350 NLRB 1257 (2007). In that case, the Board found that the relevance of a
union’s request for subcontracting had not been adequately supported where there was no
claim that an employee was on layoff or had not been recalled from layoff. Here, the fact that
there were such layoffs was undisputed, and, the record establishes, known to the employer.
Thus, the relevance of the request “should have been apparent to the Respondent under the
circumstances” which is adequate to support the required showing of relevance. Disneyland
Park, supra at 1258.
34See, Dodger Theatrical Holdings Inc., 347 NLRB 953, 972 (2006) (“it is not up to
Respondent to decide what information [the Union] needed or should have requested. As long
as the Union has demonstrated a plausible relevant reason for the request, which it has done,
the Union is entitled to receive the information from Respondent. The fact that the Union may
have withdrawn its proposal does not render the issue irrelevant to negotiations”).
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The first year saving is $36,177.00. The second year savings is $44,498.00. The
third year savings $62,652.00. And the overall cost savings of the proposed
wage decrease is $133,327.00.
As the Union pointed out in reply, the Company’s response on this item
does not include the ”complete calculations” for the Union to assess the validity
of these figures. The Union maintains that it is entitled to all documents and
information called for in our October 4, 2007 letter and, again, the Company has
failed miserabl[ly] to supply essential information regarding the Company’s
proposals [for] wage reductions to the Union.
In response, no further information was supplied to the Union.
The Company had a duty to supply more detail regarding the projected savings of its
wage concession proposal. The schoolteacher’s admonition “show your work” is called to mind.
While the sum of each year’s savings would be of use to the Union, it left no way to see the
basis of the Company’s conclusion, no way to evaluate the accuracy of the claim, or what the
impact of alternative proposals would be. See e.g., Wilshire Plaza Hotel, 353 NLRB No. 29, slip
op. at 22-23 (2008) (unfair labor practice for respondent to respond to union’s request for
“detailed” calculations of respondent’s concessionary economic proposals by providing only “flat
amounts” to union).35 Second, quite apart from what information was and was not available to
the Union and what calculations the Union reasonably could and could not make, in a case such
as this one, which involves a request for a calculation with many opportunities for error, and
varying assumptions, a union is entitled to have a calculation from the employer so that it can
verify the validity of its own calculation. KLB’s contention on brief that the Union could calculate
the savings itself is unsatisfactory. See, Mary Thompson Hosp. v. NLRB, 943 F.2d 741, 744
(7th Cir. 1991) ("need for verification makes it immaterial that union can secure desired
information" through alternative means); Albertson's Inc., 310 NLRB 1176, 1187 (1993)
(employer's claim that union could determine amount of contributions to trust fund from plan
documents did not excuse the employer's failure to provide its own information on the actual
contributions made where this information would allow the union to verify the information found
in the plan).
The Company’s response to this final information request is representative of its
generally dismissive and niggardly response to the Union’s October 4 information request. The
Company made short shrift of the Union’s right to receive information. The Company might
agree with this, as it contends that the Union’s “entire information request was a sham designed
to prevent KLB from implementing its final offer after reaching impasse.” The Company points
out that the request followed, by a day, the Company’s declaration that it was providing its last,
best, and final offer, its notice that it planned to terminate the extension of the labor agreement,
and the mediator’s suggestion that the parties were at impasse.

35The ALJ’s finding on this point was adopted by the Board in the absence of exceptions,
which, of course, robs the case of precedential force on this issue. However, the ALJ’s
reasoning, and his finding, is, indeed, unexceptional. I cite the case because of that, and
because the facts are so similar to the issue presented here. I further note that the seriousness
with which the Board viewed this unfair labor practice may be gleaned from the fact that it
served as a basis for the Board’s precedential finding that a lawful impasse was precluded by
the failure to supply this information. Wilshire Plaza Hotel, supra, slip op. at 2.
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I reject the Company’s argument that the Union’s information request was a “sham” or
otherwise offered in bad faith. “[T]he presumption is that the union acts in good faith when it
requests information from an employer until the contrary is shown.” Hawkins Construction Co.,
285 NLRB 1313, 1314 (1987), enf. denied on other grounds, 857 F.2d 1224 (8th Cir. 1988);
International Paper Co., 319 NLRB 1253, 1266 (1995) enf. denied on other grounds, 115 F.3d
1045 (D.C. Cir. 1997). The Company has failed to prove that the request was made in bad
faith. It has certainly failed to prove that the Union had no valid motive, which is necessary in
order for the request to be invalid. Hawkins, supra at 1314 (requirement of good faith “is met if
at least one reason for the demand can be justified”). Significantly, the parties were still
engaged in bargaining when the Union made its request and, in fact, the Company, contrary to
its assertion that the October 3 proposal was its final proposal, had not yet formulated its timed
offer which made significant movement on a number of subjects, including wages. The
contention that the Union’s right to information had expired, or can be presumed illegitimate
once the prospect of impasse is raised—by the mediator no less, not by the Company—
significantly denigrates and diminishes the Union’s right to seek and obtain information under
the Act, as well as the ongoing bargaining process. The timing of the Union’s information
request could well mean that the information request would not have tainted a bargaining
impasse that existed at the time of the request (although it’s worth pointing out that the
information request came just two weeks after bargaining commenced, not after months of
protracted, fruitless negotiations). That is not at issue. There was no claim of impasse, no
threat to implement the Company’s bargaining proposal, and no reason for me to decide
whether or not the parties were at impasse on October 4 or any other date.
Even assuming, arguendo, that the Union’s information request was motivated, in part,
by concerns about impasse, this would not demonstrate the illegitimacy of the Union’s request.
For a weak union facing a severely concessionary proposal, impasse is a gateway to bad
things. That is the way it works. And if the Company’s surprise declaration that it was
terminating the contract and providing its final offer—just two weeks after bargaining began—
jarred the Union into getting more aggressive that is not a sanctionable act. An air of hostility to
union rights unavoidably garbs the argument that a union acts in bad faith—indeed, only in bad
faith—when it reacts to the possibility of impasse by redoubling its efforts. In this case, the
Union not only sought new information, the Union’s chief negotiator worked closely with the
Company to prepare a new timed offer that was very clearly aimed—by both the Company
negotiators and Young—as an effort to broker an agreement. This effort well could have been
aided by the receipt of information from the Company. Just as important, the employees’
receptivity toward the timed offer, or the renewed October 3 offer might have been affected by
the Union’s receipt and analysis of this information. KLB’s contention of union bad faith would
wear better if it could show that the Union was not serious about trying to bargain an agreement,
or did not need or want the information. It has not shown that. As stated, the Company did not
declare impasse, and did not implement its final proposal. It did not lock out its employees for
2-1/2 weeks after the Union’s information request. On this record, accusing the Union of
making the information request for purposes of delay is a hollow claim. Compliance with the
Union’s information request could likely have been accomplished without causing any delay in
KLB’s subsequent actions. Any derailing of KLB’s legal prerogatives caused by the Union’s
October 4 information request is the result of KLB’s failure to timely comply with the request.36

36KLB relies on ACF Industries, 347 NLRB 1040 (2006), where a Board majority found that
an employer did not violate the Act by delaying the furnishing of information requested by a
union. ACF is inapposite. In the first place, in ACF the Board did not pass on whether the
employer would have violated the Act by failing to furnish requested information, which is the
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I find that the Respondent’s response to the Union’s October 4 information request did
not satisfy the Act. “The refusal of an employer to provide a bargaining agent with information
relevant to the Union's task of representing its constituency is a per se violation of the Act.” The
Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975); The Procter & Gamble Mfg. Co., 237
NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979). KLB has failed and refused to
bargain in good faith with the Union by failing and refusing to furnish the Union with the “wage
reduction” information requested.
Still, by itself, this violation does not vindicate the General Counsel’s claim of overall
bad-faith bargaining. While I must consider this violation, I believe it represents a stark change
in the Respondent’s bargaining conduct, but only as of October 4, and even then the
misconduct is limited to the failure to provide information. That is not to say, however, that the
effects and implications of this violation on the Respondent’s overall bargaining position are
insignificant. I will turn to that issue below in consideration of the relationship of this violation to
the lockout.
7. Incidents away from the bargaining table
The General Counsel argues that six incidents provide evidence of “away-from-the table
conduct” supporting the overall bad-faith bargaining claim. The six incidents are: (1) the alleged
preparations for a work stoppage in the form of fixing garage doors and mounting cameras on
the outside of the facility; (2) the playing of music over loudspeakers; (3) the discharge of
Miranda; (4) the September 26 incident in which McKnight discouraged employees from
discussing strike activity; (5) the September 26 incident in which Kerns asked Conway to
discourage employees from discussing negotiations; and (6) the September 28 incident in which
Kerns discouraged employees from discussing the possibility of a strike.37
Unlike the complaint allegations regarding the Respondent’s bargaining conduct, none of
these incidents were set forth in the complaint. Rather, the complaint generally alleged that the
Respondent “[c]onsistently engaged in conduct both at and away from the table which otherwise
demonstrated a fixed intent not to engage in meaningful bargaining.” Complaint at ¶7(b)(11).
On the assertion that it supported the surface bargaining case, and that the complaint
generally gave notice that “away-from-the-table” conduct would be at issue in the case, at the
_________________________
issue presented in the instant case. In finding no violation in the employer’s delay in providing
information, the Board agreed with the factual findings of the ALJ that “the Union’s information
request was purely tactical and was submitted solely for purposes of delay,” explaining: “This
finding is warranted by the fact that the Union requested the information after months of
extensive bargaining, after the contract’s expiration, after the Union’s rejection of the
Respondent’s final offer, and after the Respondent declared that it had nothing left to offer.” In
the instant case, the information was requested after two weeks of bargaining, prior to the
extension agreement’s expiration, and before KLB submitted its October 8 offer. The possibility
of meaningful bargaining had not run its course at the time of the Union’s information request.
37A seventh incident—the videotaping of picketers in the first week or so of the lockout—is
alleged to have undermined the union’s status as collective-bargaining representative. At trial, I
presumed this was being introduced as more “away-from-the-table” evidence of overall bad faith
bargaining, but this argument is not part of the General Counsel’s brief.
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trial I permitted (over the objection of the Respondent) the introduction of evidence regarding
the September 26 discharge of employee Miranda, an issue discussed and disclosed at a
pretrial conference the week before the hearing.38 Subsequently, evidence of the five additional
incidents were introduced on the same grounds—as evidence of away-from-the-table conduct
supporting the overall bad faith bargaining allegations of the complaint.
In each instance I took the evidence, but as the exception to the norm of litigating pled
allegations began to turn into the rule, my concern with this tactic grew. The question boils
down to whether the allegation in a complaint that an employer “engaged in conduct . . . away
from the table which otherwise demonstrated a fixed intent not to engage in meaningful
bargaining” can become the portal for the introduction of an unlimited number of discrete
incidents, all of which appear to have been known to the General Counsel prior to trial, but none
of which were alleged or alluded to in the complaint, and only one of which the Respondent
was told about prior to trial.
In this case, it is not necessary for me to rule on the propriety of this tactic, although I do
think it raises some hard issues. It is not necessary for me to rule on the propriety of the tactic
because, when these incidents are considered they add little to nothing to the overall bad-faith
bargaining contention. In other words, as “away from the table conduct,” the incidents, even if
true, do not advance the claim that the Company “demonstrated a fixed intent not to engage in
meaningful bargaining.” Even considering these incidents, it does not alter my view that the
bargaining did not evidence an intent not to reach agreement or otherwise evidence overall bad-
faith bargaining.
The first incident concerned the Respondent’s replacing of broken garage doors in the
summer of 2007. The new doors had less windows. The General Counsel suggests that this,
along with the mounting of video cameras in August, shows that the Respondent was preparing
for a work stoppage. The Respondent offered less calculating explanations for each of these
developments, but it hardly matters. Even if they were preparations for upcoming negotiations,
such preparations are wholly lawful, and cannot add to a showing of overall bad-faith bargaining
where the bargaining itself appeared to be directed toward reaching an agreement. Such
preparation do not evidence an intent not to reach agreement.
The Government also cites what it calls the “odd but demeaning” practice adopted by
Kerns of playing snippets of music over the loudspeakers to employees. The Respondent
mocks this contention, and points out that there were no complaints about this registered by any
employees or the Union. I suppose one could take offense at a snippet of “Who Let the Dogs
Out” being played at quitting time, with its less than flattering implication.39 But as evidence
supporting bad-faith bargaining it is not compelling. The evidence suggests it was just Kerns’
idea of humor, and whatever one thinks of that, a bad-faith bargaining case cannot be built on it.

38The intent to rely on the Miranda incident as away-from-the-table bad faith bargaining
conduct was disclosed when, in pretrial discussions, the Counsel for the General Counsel was
called upon to provide an explanation for a subpoena request that did not appear to relate to
anything expressly alleged in the complaint.
39And who cannot sympathize with employees having to suffer through that song, ranked
third in a poll of all-time most annoying songs. See, http://www.rollingstone.com
/rockdaily/index.php/2007/07/02/the-20-most-annoying-songs/.
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The discharge of union steward Miranda is a more serious matter. Assuming arguendo
the version of events pressed by the General Counsel, Miranda’s suspension (which spiraled
into an argument that resulted in his discharge) was the product of a prediction by Miranda of a
strike. The suspension, and the initial decision to discharge Miranda was, indisputably carried
out on the spot, in anger, by McKnight. Neither McKnight nor Miranda had any role in the 2007
collective-bargaining negotiations. Certainly an effort by an employer to target and discharge a
union activist could be seen as part of an effort to undermine the union in collective bargaining
and therefore be an integral part of a case of overall bad-faith bargaining. But not in this case.
In this case, even assuming, arguendo, the discriminatory nature of Miranda’s discharge, no
relationship to the Respondent’s bargaining conduct has been demonstrated, directly or
inferentially. Rather, even assuming, that the suspension was discriminatory, it was a
spontaneous reaction by McKnight, and events spiraled from there. There is no evidence that
the Company’s discharge of Miranda, including the final decision by upper management to allow
McKnight’s decision to stand, bore any relationship to events at the bargaining table. Notably,
there is no evidence that the matter was discussed at the bargaining table at anytime.
The final incidents relied upon by the General Counsel as “away-from-the-table” support
for the overall bad-faith bargaining theory involve statements by Kerns (and McKnight in one
instance) on separate dates. On September 26, McKnight told Conway that Company president
Kerns wanted to meet with the union bargaining committee after lunch. McKnight mentioned to
Conway that some people (presumably employees) had been talking about going on strike and
McKnight questioned whether they should be talking about that. Later, at the meeting arranged
by Kerns with the local union bargaining committee, Kerns also complained about “people out
there talking strike,” and Kerns added that he thought it “illegal for the committee to be telling
their members about negotiations.” Conway challenged that: [d]on’t they have a right to know?”
And Kerns said, “[w]ell just try to calm things down a little bit.” Two days later, on September
28, Kerns called a meeting of employees to complain that a customer had called asking if
employees were going on strike. Kerns was upset about it and told employees something to the
effect of “[w]e don’t need this kind of stuff. Just do your job and everything will work out in the
end.”
These comments, even if unlawful, as ultimately alleged by the General Counsel, do not
taint the Respondent’s bargaining tactics and did not contribute in anyway to the failure to reach
agreement. The most that can be said is that on September 26, Kerns and McKnight wrongly
attempted to persuade union committee members that employees should not talk about striking
and the committee should not contribute to talk about striking by discussing with employees how
negotiations were going. By all evidence these comments to the union bargainers had no effect
on negotiations, and do not suggest an unwillingness to bargain in good faith. As to the
September 28 incident, while customers wondering aloud about a strike is uncomfortable for
management, and perhaps intended to be so, it does not give Kerns the right to tell employees,
in effect, to knock off the strike talk because “everything will work out in the end.” That said, as
evidence of bad-faith bargaining or intent not to reach agreement it is awfully thin. Indeed, it
might suggest the belief that agreement will be reached.
In sum, I find that, even considering the Respondent’s away-from-the-table conduct, the
General Counsel has not demonstrated that there was overall bad-faith bargaining.40

40I give no weight to two other items the General Counsel appears to rely upon, if obliquely,
in support of the bad-faith bargaining case. GC Exh. 2 is a May 30, 2000 letter from Kerns to an
employee calling for cooperation and avoidance of conflict between employees and
management. GC Exh. 3 is a 2001 NLRB informal settlement agreement, with a nonadmissions
Continued
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B. The General Counsel’s Motion to Amend the Complaint
As discussed, counsel for the General Counsel introduced evidence of the incidents
described above on grounds that they supported the overall bad faith bargaining allegations.
At the close of her case, counsel for the General Counsel moved to amend the
complaint to allege as independent unfair labor practices four of the six previously unalleged
incidents that had been introduced into evidence as evidence of “away from the table” conduct
supporting the surface bargaining claims. (The incidents relating to replacing of the doors and
playing of the music in alleged preparation for the labor dispute were not alleged as
independent unfair labor practices.) The General Counsel also moved to amend the complaint
to add an allegation that videotaping by a security guard early in the lockout constituted an
independent violation of the Act.
Specifically, the motion to amend the complaint proposed the addition of a new
paragraph 17 to the complaint alleging that the following incidents “undermined the Union as the
exclusive collective bargaining representative of the employees”:
Kerns’ and McKnight September 26 discussions with Conway and the bargaining
committee discouraging discussion of a strike and suggesting that it was illegal to
tell employees what was happening in negotiations;
the discharge of Miranda;
the September 28 incident in which Kerns discouraged employees from
discussing strike activity;
and discouraging employees from picketing by engaging in surveillance.
Counsel for the General Counsel then moved that the new paragraph 17, with its four
(really five, as the September 26 incidents are pled together) allegations of misconduct, be
included as a part of the conduct described in paragraph 15 of the complaint, which lists the
conduct alleged to violate Section 8(d) and 8(a)(5) of the Act. Counsel then moved that the new
paragraph 17 be included as part of the conduct described in paragraph 14 of the complaint,
which lists the conduct alleged to violate Section 8(a)(3) of the Act. Finally, on brief the General
Counsel stated (GC Br. at 4 fn. 3), that “to the extent necessary, the General Counsel moves
that paragraph 17 be included in the conclusory paragraph 13, violations of Section 8(a)(1).” In
summary, counsel for the General Counsel has moved to amend the complaint to contend that
the newly alleged incidents were each independently violative of Section 8(a)(1), 8(a)(3) and
8(a)(5) of the Act.
At trial, the Respondent opposed the motion to amend on grounds, among others, that
the new allegations were each time-barred.
I deferred ruling on the motion and asked the parties to argue the motion in their briefs.
After consideration, I deny the motion to amend on the grounds that granting it would be futile,
_________________________
clause, settling unfair labor practice charges filed against KLB by the Union. Among other
things, these documents are far too remote in time to be of any relevance in the instant cases.
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as each of the new allegations is time barred.
Section 10(b) of the Act provides that "no complaint shall issue based upon any unfair
labor practice occurring more than 6 months prior to the filing of the charge with the Board.” 29
U.S.C. § 160. In this case, no charge was filed regarding any of the allegations that the General
Counsel proposes to add to the complaint. Still, under longstanding Board precedent, if
sufficiently related to a timely filed allegation, the new allegations may be added:
In determining whether an otherwise untimely allegation is sufficiently related to a
timely allegation to allow it to be added to the complaint, the Board applies the
three-prong test set forth in Redd-I, Inc., 290 NLRB 1115 (1988). Under that test,
the Board (1) considers whether the timely and the untimely allegations involve
the same legal theory; (2) considers whether the otherwise untimely allegations
arise from the same factual situation or sequence of events as the allegations in
the timely charge; and (3) "may look" at whether a respondent would raise the
same or similar defenses to both the timely and untimely allegations. Carney
Hospital, 350 NLRB No. 56, slip op. at 2 (2007); Nickles Bakery of Indiana, 296
NLRB 927, 928 (1989).
The Earthgrains Co., 351 NLRB 733, 734 (2007).41
In this case the required factual relationship between the proposed allegations and the
allegations in any charge filed in these cases is lacking.
The charge, filed March 12, alleged unfair labor practices, involving bargaining
violations, an unlawful lockout, and a unilateral change in terms and conditions related to the
cessation of health benefits after the lockout commenced. There is also a boilerplate 8(a)(1)
allegation that the employer “restrained and coerced” employees in the exercise of their Section
7 rights. There is no evidence that it was intended to allege any of the allegations the General
Counsel seeks to add to the complaint by amendment. Amended charges filed April 11, and
again on April 28, did not expand the reach of the allegations. A new charge filed June 30,
2008, involved the June 24 incident in which the police were called to KLB by security guard
Morales.
As discussed above, as “away from the table” evidence of bargaining violations, the
proposed allegations are lacking in probative value. For similar reasons, their factual
relationship to the bargaining violations is also remote. Even granting the assumption that
Miranda’s discharge was provoked by a comment about a potential strike, it was the result of an
incident between McKnight and Miranda, neither of whom was involved in bargaining. There is
no basis to conclude that upper management’s upholding of McKnight’s decision was related to
their bargaining conduct or objectives. Kerns and McKnights’ comments related to the concerns
over a strike and employee discussions about how bargaining was going, but the factual
situation and sequence of events at issue are completely distinct from the charge’s allegations
about “take-it-or-leave-it” bargaining, failure to supply requested information, or locking out
employees and halting health benefits. None if these comments (there are three in sum) reflect,

41The Redd-I "closely related" test did not initially apply to complaint allegations of 8(a)(1)
violations, which were deemed covered by any timely charge by virtue of the inclusion of
general "catch-all" language in the Board's preprinted charge form. In Nickles Bakery, supra, the
Board overruled this practice and held that the Redd-I test should also apply to 8(a)(1)
allegations.
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reveal, or meaningfully relate to bad-faith bargaining or an intent not to reach an agreement with
the Union.
Similarly, the post-lockout videotaping by Morales took place during the first week of the
lockout. Although the allegation is serious, there is no factual nexus between it and the
Respondent’s bargaining conduct. Indeed, the issue is factually independent of the allegation
that the lockout constituted unlawful discrimination, or any other allegation of the complaint or
charge.
The General Counsel attempts to avoid the factual dissimilarity between the new and
timely allegations with the claim (GC Br. at 6) that the new allegations constitute part of a “chain
of events” related to the “Respondent’s overall plan to avoid reaching a contract with the Union.”
If so, this would satisfy the second prong, as explained by the Board in Carney Hospital, 350
NLRB 627, 630 (2007). The problem is they are not. As I found, these “away from the table,”
incidents are essentially unrelated to the alleged bargaining violations. Merely alleging their
relationship to the bad-faith bargaining cannot transform factually unrelated incidents into
allegations related to the very different allegations in the extant complaint.
Having found that the second prong of Redd-I is not met, I do not believe, in this case,
the claim of common legal theory can serve to protect the new allegations from a 10(b) defense.
Carney, supra at 631.42
The General Counsel’s motion to amend the complaint is denied, as the allegations he
seeks to add are time barred.
C. The Respondent’s call to the police on
June 24 regarding the Union’s picket signs
This incident occurred when security guard Morales called the police on June 24 to
report the union picketers for trespassing. Shortly after the lockout, the Union had placed picket
signs across the street from the facility within the area marked by surveyors as a public right-of-

42Nor do I believe that the new claims call on the Respondent to raise the same or similar
defenses as required for the pled allegations, which is the 3rd prong of Redd-I. They require
entirely different defenses, factually and legally. The General Counsel’s contention that the 3rd
prong is met is based on the claim that the Respondent would already have to defend (most) all
of the new allegations, as these allegations constituted “away from the table” conduct
supporting the overall bad faith bargaining alleged in the complaint. This returns us to the
problem (referenced above) of relying on the pled allegation of unspecified “away from the
table” conduct as grounds to adduce evidence at trial on an unlimited number of unpled
incidents. The General Counsel’s argument boils down to the contention that since he is
claiming that these unpled incidents are “away from the table” evidence of the timely alleged
bad-faith bargaining, the Respondent has to defend against them whether or not they are
alleged as independent violations, and therefore, adding the incidents as independent violations
adds nothing to the Respondent’s burden. Of course, adoption of this argument eviscerates the
3rd prong in surface bargaining cases if, as the General Counsel seems to believe, any number
of allegations can be advanced on grounds that they “support” the surface bargaining
allegations. Acceptance of this argument would stretch due process past its breaking point.
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way. The picket signs stayed there without incident until June when they were removed and
later destroyed by persons unknown. When the Union replaced the signs on June 24, Morales
called the police. Morales was allegedly motivated to do this by his belief that the picket signs
the Union had replaced were on Company property, and that this constituted trespassing.
It is a violation of Section 8(a)(1) of the Act for an employer to call in the police for the
purpose of taking action against legal picketing. Sprain Brook Manor Nursing Home, 351 NLRB
1190, 1191 (2007); Walgreen Co., 352 NLRB 1188, 1192–1193 (2008). However, Section
8(a)(1) is not violated if the employer acts out of a “reasonable concern.” As the Board
explained in Nations Rent, Inc., 342 NLRB 179, 181 (2004):
It is well established that an employer may seek to have police take
action against pickets where the employer is motivated by some reasonable
concern, such as public safety or interference with legally protected interests.
See Great American, 322 NLRB 17, 21 (1996). So long as the employer is
acting on the basis of a reasonable concern, Section 8(a)(1) is not violated
merely because the police decide that, under all the circumstances, taking action
against the pickets is unwarranted.
The question, then, is whether Morales’ call to the police was “motivated by a
reasonable concern.”43 Notably, in undertaking this analysis we must assume that the Union
signs were not on property under the private control of KLB. KLB correctly points out that the
General Counsel failed to prove that the signs were, as suggested, on the public right-of-way.44
However, Board precedent places the burden on the Respondent to prove that the signs were
on its private property if it wants to assert a property interest as the basis for summoning the
police. Great American, 322 NLRB 17, 21–22 (1996). This was not proved, and accordingly,
the analysis assumes that the signs were on the public right-of-way. Great American, supra.

43I note that the Respondent does not dispute Morales’ agency status under Section 2(13) of
the Act. In any event, I am satisfied that Morales, described by Kenner being “in charge of
security,” was an agent of the Respondent under Section 2(13) of the Act. “The Board applies
common law principles when examining whether an employee is an agent of the employer.
Apparent authority results from a manifestation by the principal to a third party that creates a
reasonable basis for the latter to believe that the principal has authorized the alleged agent to
perform the acts in question.” GM Electrics, 323 NLRB 125 (1997) (quoting Southern Bag
Corp., 315 NLRB 725 (1994)). The test is whether, under all the circumstances, employees
would reasonably believe that the alleged agent was speaking and acting for management. GM
Electrics, supra. As set forth in Section 2(13), when making the agency determination, "the
question of whether the specific acts performed were actually authorized or subsequently
ratified shall not be controlling." Here, employees would reasonably believe that from the
earliest days of the lockout, that a security guard such as Morales was acting at the behest of
KLB. The security guards monitored the gates during the lockout. Morales wielded a
videocamera on the picket line and talked with the police on behalf of KLB on June 24.
Accordingly, I find that Morales was an agent of the Respondent within the meaning of Section
2(13) of the Act.
44As discussed above, the hearsay evidence that the Lee’s Surveying employee called to
the scene announced his view that the signs were on the public right-of-way cannot be relied
upon to prove the matter.
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Morales did not testify. According to Johnson, Morales believed that the Union’s picket
signs, that the Union had recently found destroyed, were being replaced in the ground in areas
that Morales believed was Company property. No reason for this belief was offered. These
signs had been in the ground around the building since late October 2007, after the lockout
began, and had stood since then without incident until being tampered with in June. After
Officer Kenner left, the signs remained in place through the date of the hearing in this matter.
The record reveals no reasonable basis for Morales’ view—a mistaken view under the
assumptions of this analysis—that the signs were on Company property. Nor was there any
other disturbance, event or incident that would justify an effort to have the police take action
against the union picketers.
The purpose of Morales’ call to the police was to attempt to take action against the
picketers for trespassing.45 Morales’ unexplained, unjustified (at least in the record) reason for
suddenly believing that the signs—that had been in place for months—were on company
property—does not constitute a reasonable basis for calling the police. Sprain Brook Manor
Nursing Home, 351 NLRB 1190, 1191 (2007) (respondent’s burden to show that it was
motivated by reasonable concern of union or employee misconduct as basis for calling police to
interfere with picketing activity). Accordingly, KLB violated section 8(a)(1) of the Act when it
called the Bellefontaine police and reported a trespassing incident by picketers based on the
resetting of picket signs in the ground.46
The General Counsel also maintains (GC Br. at 2, 54) that this incident constituted an
independent violation of Section 8(a)(5), as it allegedly was an attempt to “undermine the status
of the Union as the employees’ exclusive bargaining representative.” Neither precedent nor
argument is offered to support this proposition, which, to me at least, is not intuitively logical and
is not supported by any evidence. I reject it.
D. The Lockout (including the cancellation of health insurance,
COBRA rights, and the hiring of replacements)

45KLB argues that there is no evidence that anyone from KLB attempted to have the
picketers arrested or evicted. This is incorrect. The intent of calling the police was to have
action taken against the picketers for trespass. Johnson, Kenner, and the police report confirm
that. If the police had been willing, Morales’ call would have resulted in the removal (of the
signs) and, perhaps, the arrest or citation of picketers responsible for placing the signs. Officer
Kenner’s good sense not to let a mountain be created out of a molehill is not a defense for KLB.
46KLB contends (R. Br. at 55 fn. 33) that if the picket signs were on the public right-of-way
they were in violation of Bellefontaine city ordinances requiring a permit for such signs, and that
“KLB could lawfully challenge the placement of these signs.” The short answer is that this was
not the reason for calling the police. The (unreasonable) concern that the picketers were
trespassing was the reason. That is what was announced to Office Kenner and under the
circumstances it would tend to interfere and restrain with employees’ section 7 rights.
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The Respondent contends that it locked out the employees in support of its bargaining
position. (Tr. 1228; See, R. Br. at 69; Answer at ¶8(b)(10)). The General Counsel agrees.
(Complaint at ¶8(b)(10)). The evidence supports their view.47
This kind of lockout is usefully called a bargaining lockout. Prior to the Supreme Court’s
1965 decision in American Shipbuilding Co. v. NLRB, 380 U.S. 300 (1965), the Board
consistently held that bargaining lockouts violated the Act. 380 U.S. at 306. However, in
American Shipbuilding Co., supra, the Supreme Court analyzed the Act and found that “the
employer’s use of a lockout solely in support of a legitimate bargaining position” is not
inconsistent with any requirement of the Act. American Shipbuilding Co., supra at 310.
However, for a bargaining lockout to be permissible its purpose must be to bring
economic pressure to bear in support of a legitimate bargaining position. If the lockout is
implemented to compel acceptance of unlawful bargaining conduct, then the lockout is not
permissible—it has become a weapon to enforce unlawful bargaining and a means of evading a
duty to negotiate in good faith. As such, it is a violation of Section 8(a)(5) and (1) of the Act.
Teamsters Local 369 v. NLRB, 942 F.2d 1078, 1085 (D.C. Cir. 1991) (enforcing Association of
D.C. Liquor Wholesalers, 292 NLRB 1234, 1237, 1258 (1989)).; Royal Motor Sales, 329 NLRB
760, 765 (1999), 2 Fed. Appx. 1 (D.C. Cir. 2001). Moreover, locking out employees for the
purpose of enforcing an illegitimate bargaining position also violates Section 8(a)(3) and (1).
Teamsters Local 369, supra at 1085; Globe Business Furniture, Inc., 290 NLRB 841 fn. 2 (1988)
(“In adopting the judge's conclusion that the Respondent violated Sec. 8(a)(3) and (1) of the Act
by locking out its employees, we note that the lockout was implemented following the
Respondent's repeated, unlawful refusals to provide the Union with information it had requested
for bargaining. Within the context of these preexisting unfair labor practices, the Respondent's
subsequent lockout of its employees may not be found legitimate”), enfd. in unpublished
decision, 889 F.2d 1087 (6th Cir. 1989). See, R.E. Dietz Co., 311 NLRB 1259, 1267 (1993)
(unlawful insistence on nonmandatory subject converts lawful lockout to unlawful lockout, and
employees “became discriminatees as of that date and the refusal of the Respondent to
reinstate them became, at that point, another unfair labor practice which violated Section 8(a)(1)
and (3) of the Act”).
In this case, as discussed, I have rejected the General Counsel’s contention that the
Company engaged in “overall” or surface bargaining throughout these negotiations. However,
as also discussed, the Company’s dismissive and unlawful response to the Union’s October 4
bargaining request was no small matter. Without serious effort to engage the Union’s right to
request and seek answers to its questions, the Company moved forward as if the request did
not matter, as if the end of further meaningful bargaining was a foregone conclusion, as if,
having reached the end of its rope with the Union’s rejection of the October 8 timed offer, only
the force of a lockout of the union workforce and replacement with new employees could
compel a successful end to these negotiations.

47I note that KLB’s October 19 letter to the Union announcing its intent to lock out
employees suggests that a reason for the lockout was the Company’s desire to “protect its
business interest from disruption.” However, there is no evidence of any looming disruption
(e.g., an intent to strike or otherwise disrupt business), and this rationale for the lockout is not
repeated in the evidence or in argument. I accept KLB and the General Counsel’s contentions,
and credit Johnson’s uncontradicted testimony, that the true motive for the lockout was to
compel the Union’s acceptance KLB’s bargaining position.
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Throughout trial and throughout its brief, the Respondent insists that the General
Counsel and Union’s emphasis on health insurance proposals as the source of the failed
bargaining is a mischaracterization of the situation. I am in significant agreement with the
Respondent on this point. While I think it clear there was lingering concern over how to assure
itself that the new proposed health care plan would not have any surprises, the Union was
prepared to accept the new plan and indeed, did accept it or indicate willingness to accept it at
various points. On the other hand, the severe wage cuts sought by the Respondent were the
key stumbling block; the issue, as the Respondent stresses, above all others, that was
outstanding at the time of the Union’s information request on October 4 and at all times since. It
is for precisely this reason that it was unsatisfactory for the Company to move forward to lock
out the bargaining unit while unlawfully flouting its statutory duty to respond to information
requests that expressly sought information relating to the Company’s wage proposal and
expressly sought to verify and substantiate the rationale for the wage cuts it insisted upon.
This unlawful response to information requests related to the central point of contention
in negotiations. For that reason, that illegality rendered unlawful the lockout commenced in its
support and in response to the employees’ refusal to accept the Company’s offer. As the Board
stated in Clemson Brothers, 290 NLRB 944, 945 (1988), a case involving an employer’s failure
to provide requested information regarding an employer’s inability to meet the union’s demands:
We concur in the judge's finding that the Respondent failed to bargain in good
faith because it refused to allow the Union to verify its asserted inability to pay for
the Union's demands. We, therefore, conclude that there can be no impasse
because the cause of the alleged deadlock was the Respondent's own failure to
bargain in good faith. Thus the Respondent was engaged in bad-faith bargaining
at the point when it initiated the lockout and it maintained the lockout while
continuing to refuse to bargain in good faith with the Union. And it is the
Respondent's avoidance of its bargaining obligation in instituting the lockout,
rather than the absence of a lawful impasse, which renders the lockout violative
of Section 8(a)(3) and (1).
(footnotes omitted). See also, Royal Motor Sales, 329 NLRB 760 (lockout unlawful violation of
8(a)(3) and (5) where lockout was effort to compel acceptance of final proposal unlawfully
implemented because no impasse had been reached in part because union was not provided
time adequate time to review requested information); Globe Business Furniture, Inc., 290 NLRB
841 fn. 2 (1988) (“In adopting the judge's conclusion that the Respondent violated Sec. 8(a)(3)
and (1) of the Act by locking out its employees, we note that the lockout was implemented
following the Respondent's repeated, unlawful refusals to provide the Union with information it
had requested for bargaining. Within the context of these preexisting unfair labor practices, the
Respondent's subsequent lockout of its employees may not be found legitimate”), enfd. 889
F.2d 1087 (6th Cir. 1989).
Further, in a significantly related line of cases, the failure to provide information on a
subject that is important to ongoing bargaining will preclude a valid bargaining impasse, and
therefore, unilateral implementation. E.I. du Pont de Nemours & Co., 346 NLRB 553, 558
(2006) (“It is well settled that a party's failure to provide requested information that is necessary
for the other party to create counterproposals and, as a result, engage in meaningful bargaining,
will preclude a lawful impasse”), enfd. 489 F.3d 1310 (D.C. Cir. 2007) (“Board and court
precedents reflect the principle that a denial of ‘information relevant to the core issues
separating the parties’ can preclude a lawful impasse’” (quoting, Caldwell Mfg., 346 NLRB 1159,
1170 (2006) (“Under consistent Board precedent, a finding of valid impasse is precluded where
the employer has failed to supply requested information relevant to the core issues separating
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the parties”); Wilshire Plaza Hotel, 353 NLRB No. 29, slip op. at 2 (2008) (“the Respondent
failed to provide to the Union admittedly relevant detailed calculations for the cost savings that
the Respondent expected from its proposed wage and benefit concessions that were ‘core’
issues in the negotiations”); Decker Coal Co., 301 NLRB 729, 740 (1991) (“A legally recognized
impasse cannot exist where the employer has failed to satisfy its statutory obligation to provide
information needed by the bargaining agent to engage in meaningful negotiations”).
The Respondent points out, and cites cases to the effect, that the Board will not find that
an employer’s unfair labor practice taints a lockout simply because the unremedied unfair labor
practice coincides with the lockout. Similarly, the Respondent cites cases in which the Board
has held that the failure to provide information will not preclude a finding of a bargaining
impasse where the information is not sought for a purpose relevant to the issues the parties are
deadlocked upon. This is absolutely correct: there is no per se rule. The centrality of the unfair
labor practice to the bargaining must be examined to determine if it renders the lockout
illegitimate. In the cases cited by the Respondent, the Board found that the information
requests were directed towards subjects peripheral or unrelated to the bargaining dispute.
Thus, in Central Illinois Public Service Co., 326 NLRB 928 (1998), cited by the
Respondent, the Board found 8(a)(5) violations based on the employer’s failure to provide
requested subcontracting grievance information and its failure to provide the names of outside
companies supplying power to the employer. However, relying on the union’s asserted reason
for seeking the information, the Board pointed out that the Union “made clear that regarded
subcontracting as a relatively minor issue, and no obstacle to contractual agreement." The
request for information of outside companies, which was made months after the lockout began,
“had an even less attenuated nexus to the issues under discussion in collective bargaining.”
According to the union, it sought the information “’to see if any other power companies were
performing struck work’ so that it could further determine ‘who it could picket/handbill under the
ally doctrine.’" 326 NLRB at 936. Accordingly, these section 8(a)(5) allegations did not render
the lockout in support of the Company’s bargaining proposal unlawful.48
By contrast, here, the Union’s requested information was made by the Union for the
express purpose of evaluating the Company’s position on the admittedly central issue in
negotiations—the wage dispute. As the Company has stressed (R. Br. at 48), “[t]he wage
impasse independently explains why the parties have not reached agreement.”
The Respondent’s response, then, in October 2007, and now, in litigation, is to
disparage the information request. The Union’s motives are questioned, the right to obtain the
information is questioned, the need and relevance for the information is questioned. The

48See also, Sierra Bullets, 340 NLRB 242, 244 (2003) (rejecting contention that there was
no impasse where unsatisfied information request on overtime was unrelated to parties 8 month
deadlock over “four pack” of issues that the union considered necessary to reach agreement:
union security, attendance, dues check-off, and management rights clause). Accord, Brewery
Products Inc., 302 NLRB 98, 98 fn. 2 (1991), where the Board adopted the ALJ’s finding that a
delay in providing information did not undercut a finding of an impasse or taint the subsequent
lockout. The ALJ reasoned that the information was not significant for bargaining, most of the
delayed information was provided prior to the lockout or made irrelevant by the withdrawal of
proposals, and the ALJ found that the information requests did not affect bargaining because
the union was reluctant to reach agreement with the employer prior to reaching agreement with
the employer-association from which the employer had recently resigned. None of these factors
are present in the instant case.
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Respondent relies on Young’s posturing at the table to conclude that the Union never would
have agreed to wage cuts. Essentially, the Company says, there would have been no point in
the answering the information request.
The Company’s view is untenable. Notwithstanding Young’s posturing at the bargaining
table, the story of these negotiations is one of the Union inexorably giving more and more
ground to Company demands. I disagree with the General Counsel’s suggestion, that, under
the circumstances, this evidences bad-faith bargaining. However, I also reject the Company’s
effort to rely on Young’s bargaining rhetoric to justify the Company’s failure to take seriously the
Union’s information request. The Company is quick to point out that the Board should be
reluctant to adjudge bad faith motive from the concessionary substance of employer proposals.
There is much to be said for that view. At the same time, the Company cannot arrogate to itself
the determination that it would not have been useful to answer the Union’s information
requests—i.e., it would not have been useful to bargain in good faith—because, in the
Company’s view, it would have been unlikely to help matters. I certainly do not believe the
record supports this self-serving speculation.49
At the end of the day, as the Company itself stresses, wages were the central stumbling
block in negotiations, and good-faith bargaining required that the Respondent attempt to answer
the Union’s questions and address its concerns on the Company’s wage proposal. “The
objective of the disclosure obligation is to enable the parties to perform their statutory function
responsibly and ‘to promote an intelligent resolution of issues at an early stage and without
industrial strife.’” Clemson Brothers, 290 NLRB 944, 944 fn. 5 (1988) (quoting Monarch
Machine Tool Co., 227 NLRB 1265, 1268 (1977)). One certainly cannot be sure that if the
Company had responded in good faith to the Union’s information request that it would have led
to settlement and the avoidance of industrial strife. But answering that speculative question is
not the test. The Act regulates and governs the process of collective bargaining, not the
outcome.50 Central to this process is the mandatory exchange of requested relevant
information necessary to explain, justify, and substantiate the proposals and explanations made
at the bargaining table. Instead of doing that, as required by the Act, the Company essentially
ignored its duty to treat with the Union’s information request. Instead it gave one last shot at

49Royal Motor Sales, 329 NLRB 760, 762 fn. 10 (“negotiators' tough statements suggesting
‘unyielding opposition’ . . . did not show that they would never yield, but merely that they would
not yield quickly without a fight”); Allbritton Communications, Inc., 271 NLRB 201, 206 (1984)
(“the Board must be especially wary of throwing back in a party's face nonsubstantive remarks
he makes in the give-and-take atmosphere of collective bargaining. To lend too close an ear to
the bluster and banter of negotiations would frustrate the Act's strong policy of fostering free and
open communications between the parties”), enfd. 766 F.2d 812 (3d Cir. 1985), cert. denied 474
U.S. 1081 (1986). Moreover, as to Young’s temper, the Board also explained in Royal Motor
Sales, 329 NLRB at 776 fn. 49: “As to [the union representative’s] use of profanity in this and
other meetings, we note that ‘[a]ngry outbursts . . . made in the heat of bargaining are realities
of negotiations.’ American Packaging Corp., 311 NLRB 482 fn. 5 (1993). We know of no case
in which the use of profanity at the negotiating table was relied on for a finding that a party had
engaged in dilatory tactics or that the parties were at impasse.” (Board’s ellipses).
50See H.K. Porter Co. v. NLRB, 397 U.S. 99, 108 (1970) (“It is implicit in the entire structure
of the Act that the Board acts to oversee and referee the process of collective bargaining,
leaving the results of the contest to the bargaining strengths of the parties. . . . [T]he
fundamental premise on which the Act is based [is] private bargaining under governmental
supervision of the procedure alone, without any official compulsion over the actual terms of the
contract”).
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putting together a timed proposal in order to reach agreement and when that did not work it
decided to lock out the employees in order to compel acceptance with the October 3 offer. It
was not satisfying the statutory duty to bargain in good faith when it did so. It was unlawful to
lock out its workforce—primarily it says, over the workforce’s unwillingness to accept its wage
proposal—while for over two weeks before the lockout (and continuously since the lockout)
ignoring its statutory obligation to respond to requests for information explicitly aimed at gaining
information to verify, substantiate and understand the Company’s wage proposal and demand
for wage cuts.
Accordingly, the lockout was implemented to compel acceptance of unlawful bargaining
conduct. It thereby became a weapon to enforce unlawful bargaining and a means of evading a
duty to negotiate in good faith. As such, it violated Section 8(a)(5) and (1) of the Act.
Teamsters Local 369 (D.C. Liquor Wholesalers) v. NLRB, 942 F.2d at 1085; Royal Motor Sales,
329 NLRB at 765 (1999). It also violated Section 8(a)(3) and (1) of the Act. Teamsters Local
369, supra at 1085; Globe Business Furniture, Inc., 290 NLRB 841 fn. 2; See, R.E. Dietz Co.,
311 NLRB at 1267.
Having found that the lockout was unlawful, it follows that the temporary replacement of
the employees was “part and parcel” of the unlawful conduct and also a violation of Section
8(a)(1) and (3) and (5). Association of D.C. Liquor Wholesalers, 292 NLRB at 1237, 1258
(1989); Clemson Brothers, 290 NLRB at 945, 951.
The General Counsel also alleges that KLB violated the Act by cancelling the locked out
employees’ health care coverage and denying the locked out employees COBRA eligibility. For
purposes of this analysis, I will assume that, had the employees been lawfully locked out, their
insurance benefits would have terminated as a consequence, within a little over a month’s time.
The expiring labor agreement stated that:
“[a]ll insurance benefits terminate no later than the end of the month following the
month in which an employee is laid off or is off work for any reason other than
circumstances which expressly give rise to insurance benefits hereunder.”
Notwithstanding the above, just prior to the lockout, on October 19, KLB wrote to each
bargaining unit employee informing them of the upcoming lockout and stating:
In addition, please understand that, consistent with the law, your health
insurance coverage will end effective October 23, 2007. Therefore, in order to
continue insurance benefits past that date, you will need to apply for COBRA
coverage. A notice regarding your benefit rights will be mailed to you.
On October 24, Johnson wrote to United Healthcare requesting that United Healthcare
“cancel the entire group’s coverage under this policy effective 10/22/2007.”
The Respondent has offered no legitimate reason for canceling the employees’ health
care coverage effective October 22. It was not required by the lockout, by the existing health
insurance plan, or by the existing terms and conditions of employment. The cancellation did not
represent the implementation of a bargaining proposal upon reaching a valid bargaining
impasse. Putting aside the issue of impasse, the cancellation of health insurance coverage was
not part of KLB’s bargaining proposal. The Respondent took it upon itself to write to United
Healthcare and cancel the group coverage.
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The intended result was to immediately eliminate health insurance for all locked out
employees. Another result, perhaps unintended, was the elimination of employees’ eligibility for
COBRA coverage, for which the Respondent had encouraged employee to apply when their
insurance coverage ended.51
Having found the lockout unlawful, any loss of health coverage derivative of the lockout
would be, at a minimum, redressed as part of the remedy for the unlawful lockout. However,
even in the absence of the unlawful lockout, the unilateral cancellation of the group health
insurance plan—a change for which the evidence shows no notice was provided to the Union—
is violative of Section 8(a)(5) and (1) of the Act. The fact that it occurred contemporaneously as
part of the unlawful lockout suggests very strongly that it was motivated by the same
discriminatory motivations that rendered the lockout a violation of 8(a)(3) and(1) as well: just like
the lockout, it was intended to add to the pressure on the employees to accept the unlawfully
maintained bargaining position of the employer. Again, no legitimate or substantial justification
is proffered by the Respondent for acting to cancel the health insurance and the attendant
elimination of COBRA. Accordingly, this is also a violation of Section 8(a)(3) and (1).
CONCLUSIONS OF LAW
1. The Respondent KLB Industries, Inc., d/b/a National Extrusion and Manufacturing
Company, is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of the Respondent constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All hourly-paid production and maintenance employees in the
Company’s Bellefontaine, Ohio, plant but excluding all office and
clerical employees, guards, professional employees and all
supervisors as defined in the Labor Management Relations Act of
1947, as amended.
4. Beginning on or about October 4, 2007, and continuing thereafter, the Respondent
violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union

51Johnson’s testimony would suggest that the loss of COBRA eligibility was an unintended
consequence of the Respondent’s cancellation of the group health insurance. Indeed, the
Company’s October 19 letter to employees had directed them to apply for COBRA coverage
when their health insurance coverage lapsed. However, Johnson later learned that “no
individuals under that policy were eligible for COBRA because we had canceled the entire
policy.” At trial, Johnson testified that when he learned that the employees’ were ineligible for
COBRA benefits he attempted to repurchase the plan but was told he could not because the
employees were now considered “non-active” and therefore not eligible for the group insurance
offered by United Healthcare. Johnston testified that he tried to put the employees on the office
plan, but was told he could not, and that ultimately he asked his insurance broker to work
directly with the individuals to help them obtain personal insurance policies and that he had
Wakefield inform Young that the Company would pay any difference between the cost of
insurance under COBRA and the amount an individual had to pay for a personal insurance plan.
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with requested information necessary for the Union’s performance of its collective-
bargaining duties, including, information requested by the Union relating to current
customers, quotes, outsourced work, past costumers, prices, market studies and/or
marketing plans, and a complete calculation of projected savings from the
Respondent’s wage proposal.
5. Beginning on or about October 22, 2007, and continuing thereafter, the Respondent
violated Section 8(a)(5), (3), and (1) of the Act by locking out and replacing its
bargaining unit employees and cancelling their health insurance coverage.
6. On or about June 24, 2008, the Respondent violated Section 8(a)(1) of the Act by
calling the police to the facility for the purpose of taking action against legal picketing.
7. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall provide the Union with the information requested in the Union’s
October 4, letter, consistent with the decision in this matter. The Respondent shall end the
lockout of its employees instituted October 22, offer each locked out employee reinstatement to
their former jobs, or if those jobs no longer exist to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed, discharging, if
necessary employees hired from other sources to make room for them. The Respondent shall
reinstate the health insurance coverage for employees that it terminated at the commencement
of the lockout including its COBRA policies. The locked out employees shall be made whole for
any loss of earnings or other benefits incurred by them as a result of being unlawfully locked
out, including but not limited to losses suffered on account of the termination of their health
insurance coverage.52 The amounts due shall be computed on quarterly basis for the entire
lockout period continuing until the date of a proper offer of recall, less net interim earnings, with
the amounts owed to be determined in the manner prescribed in F.W. Woolworth Co., 90 NLRB
289 (1950), with interest on such amounts to be computed in accordance with New Horizons for

52I have also found that the Respondent’s cancellation of group health insurance coverage
resulted in the employees’ ineligibility for COBRA benefits. However, a separate make whole
remedy for this violation is not appropriate, as any losses suffered as a result of the ineligibility
for COBRA coverage caused by the Respondent’s violation would be subsumed by make whole
remedy for employee losses attributable to their loss of health insurance coverage during the
lockout.
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the Retarded, Inc., 283 NLRB 1173 (1987).53
The Respondent shall post an appropriate informational notice, as described in the
Appendix, attached. This notice shall be posted in the Respondent’s facility or wherever the
notices to employees are regularly posted for 60 days without anything covering it up or
defacing its contents. When the notice is issued to the Respondent, it shall sign it or otherwise
notify Region 8 of the Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended54
ORDER
The Respondent, KLB Industries, Inc., d/b/a National Extrusion and Manufacturing
Company, Bellefontaine, Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Bargaining in bad faith with the Union by failing and refusing to furnish the Union
with information which is relevant and necessary to the Union’s performance of
its collective-bargaining duties, including outstanding union requests for
information concerning current customers, quotes, outsourced work, past
customers, prices, market studies and/or marketing plans, and a complete
calculation of the projected savings from the Respondent’s wage proposal.
(b) Bargaining in bad faith with the Union by locking out and replacing its employees
in support of its bad-faith bargaining.
(c) Bargaining in bad faith with the Union by unilaterally terminating the employees’
group health insurance coverage without notifying the Union and providing an
opportunity to bargain.
(d) Discriminating in regard to hire, tenure, or terms of conditions of employment of
its employees by locking out and replacing employees in support of its bad-faith
bargaining.
(e) Discriminating in regard to hire, tenure, or terms of conditions of employment of

53The General Counsel requests that compound interest be awarded on backpay owed to
employees. The Board has repeatedly considered this proposition in recent months and
repeatedly declared, as recently as two weeks ago, that “we are not prepared at this time to
deviate from our current practice of assessing simple interest.” Cadence Innovation, 353 NLRB
No. 77 fn. 1 (2009); Acme Press, 353 NLRB No. 73 fn. 3 (2008); BSC Development Buf, LLC,
353 NLRB No. 63, slip op. at 5 fn. 4 (2008). Given these pronouncements, I am not inclined to
depart from the Board’s traditional interest formula at this juncture.
54If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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its employees by terminating the employees’ group health insurance coverage.
(f) Calling the police to the facility for the purpose of taking action against legal
picketing.
(g) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Furnish the Union with requested information which is relevant and necessary to
carrying out its collective-bargaining responsibilities, including fulfilling the
outstanding union requests for information concerning current customers,
quotes, outsourced work, customers, prices, market studies and/or marketing
plans, and a complete calculation of the projected savings from the Respondent’s
wage proposal.
(b) Within 14 days from the date of this Order, offer all locked out employees full
reinstatement to their former jobs, or if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority or any other rights or
privileges previously enjoyed, discharging, if necessary employees hired from
other sources to make room for them.
(c) Make all locked out employees whole for any loss of earnings and other benefits
suffered as a result of the employer’s lockout, in the manner set forth in the
remedy section of this decision.
(d) Restore the employees group health insurance coverage, including the COBRA
policies, that it unilaterally terminated in October 2007 and make employees
whole for all losses suffered as a result of the unlawful termination of the group
health insurance coverage.
(e) 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 designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its facility in Bellefontaine,
Ohio, copies of the attached notice marked “Appendix.”55 Copies of the notice, on
forms provided by the Regional Director for Region 8, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered, defaced, or

55If 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since October 4, 2007.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. January 30, 2009.

____________________
David I. Goldman
Administrative Law Judge
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail and refuse to furnish the Union with requested information necessary for the
Union’s performance of its collective-bargaining duties.
WE WILL NOT lock out or replace our employees in support of our bad faith bargaining conduct
or to discriminate against employees for refusing to accept our bad-faith bargaining conduct.
WE WILL NOT unilaterally terminate employees’ health insurance coverage without notifying
the Union and providing an opportunity to bargain and we will not terminate employees’ health
insurance coverage as a means of discriminating against employees for refusing to accept our
bad-faith bargaining conduct.
WE WILL NOT call the police to the facility for the purpose of taking action against legal
picketing.
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 National Labor Relations Act.
WE WILL provide the Union with requested information which is relevant and necessary to carry
out its collective-bargaining responsibilities, including fulfilling all outstanding requests from the
Union’s October 4, 2007 information request, to the extent required by the NLRB decision.
WE WILL offer all locked out employees full reinstatement to their former jobs, or if those jobs
no longer exist, to substantially equivalent positions without prejudice to their seniority or any
other rights or privileges previously enjoyed, discharging, if necessary employees hired from
other sources to make room for them.
WE WILL make all locked out employees whole for any loss of earnings and other benefits
suffered as a result of the lockout.
WE WILL restore the employees’ group health insurance coverage, including the COBRA
policies, that we unilaterally terminated in October 2007 and make employees whole for all
losses suffered as a result of the termination of the coverage.

JD-05-09
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KLB Industries Inc. d/b/a
National Extrusion and Manufacturing Company
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Federal Building, Room 1695
Cleveland, Ohio 44199-2086
Hours: 8:15 a.m. to 4:45 p.m.
216-522-3716.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 216-522-3723.