North Star Steel Co.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1364 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 119
1364
North Star Steel Company and International Union,
United Automobile, Aerospace, and Agricultural
Implement Workers of America (UAW), AFL–
CIO. Cases 7-CA–43609(1)(2) and 7–CA–44077
August 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 11, 2002, Administrative Law Judge Paul
Bogas issued the attached decision. The General Coun-
sel and the Charging Party filed separate exceptions and
supporting briefs, and the Respondent filed cross-
exceptions and a supporting brief. The Respondent also
filed a brief in opposition to the other parties’ exceptions.
The Charging Party filed an answering brief to the cross-
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions, except as modified below, and to adopt
the recommended Order as modified and set forth in full
below.2
The Respondent operates several steel mills through-
out the United States, including a facility in Monroe,
Michigan. In an election held on September 21, 2000,3
the International Union, United Automobile, Aerospace

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s dismissals of the 8(a)(1) alle-
gations involving employee Kathy Lafayette; the 8(a)(3) allegations
relating to the elimination of the scrap-yard positions and the displace-
ment of the three scrap-yard employees; the 8(a)(5) allegation pertain-
ing to item 13 set forth in the Union’s October 24, 2000 information
request; and the 8(a)(5) allegation pertaining to the Union’s information
request regarding the use of outside contractors to stack squares. There
is also no exception to the judge’s rejection of the Respondent’s 10(b)
defense pertaining to the elimination of the scrap-yard positions.
2 The judge found that the Respondent unlawfully failed to bargain
over the decision to eliminate three scrap-yard operator positions and
the displacement of three employees at the Monroe facility. As more
fully discussed in the Amended Remedy section of this Decision, we
shall modify the judge’s recommended remedy, Order, and notice to
employees for this violation to impose a limited backpay remedy con-
sistent with the effects-bargaining remedy set forth in Transmarine
Navigation Corp., 170 NLRB 389 (1968).
Member Walsh does not agree with his colleagues about the nature
of this violation and the appropriate remedy for it. He is separately
dissenting on this issue.
3 All dates are in 2000, unless otherwise indicated.
and Agricultural Implement Workers of America
(UAW), AFL–CIO won a majority of the valid votes cast
by the Respondent’s Monroe plant employees. On Sep-
tember 29, the Union was certified as the exclusive rep-
resentative of a production and maintenance employees
unit at the Monroe facility.4
The judge found that the Respondent committed sev-
eral unfair labor practices affecting the Monroe plant
employees. He found violations based on several pre-
election statements by David Lewis in mid-September
and the Respondent’s failure to supply the Union with
information about a transfer of unit work from the Mon-
roe facility that took place in December. As more fully
described below, we adopt these violations. The judge
also found unlawful a transfer of 175 tons of steel pro-
duction from the Monroe plant in December and the
withholding of financial and competitor information that
the Union first requested in late October. As indicated
below, we reverse the judge, find no violations, and dis-
miss these complaint allegations.5

4 The unit represented by the Union consists of:
All full-time and regular part-time production and maintenance em-
ployees, including stores employees, shipping and receiving employ-
ees, and quality assurance employees, employed by the Respondent at
its Monroe, Michigan facility; but excluding all metalographers, de-
partment clerks/plant clerical employees, draftsmen, office clerical
employees, electronics technicians, professional employees, supervi-
sors and guards as defined in the Act.
5 The judge also dismissed other complaint allegations relating to
employee layoffs implemented in January 2001, and the lack of an
annual wage increase at the Monroe facility in 2001. We affirm these
dismissals for the reasons stated by the judge. Member Walsh is sepa-
rately dissenting on the annual wage increase issue because he would
find a violation of the Act.
Member Walsh takes the position that the Respondent violated the
Act when it failed to bargain about its decision not to grant a wage
increase in 2001. He asserts that “by the time the Union became the
collective-bargaining representative, these annual wage increases for
Monroe employees had become an established pattern and practice over
many years and therefore constituted a condition of employment which
the Respondent was not free to change unilaterally.” We disagree.
The judge reasonably found that the granting of annual wage in-
creases was not part of the status quo prior to the Union’s certification
and certainly not part of the status quo during periods when the Re-
spondent’s business at Monroe was poor. It is undisputed that the state
of the Monroe facility’s business was poor in 2000–2001. Mike Roper,
who had worked at the Monroe facility since it began operating and
became its works manager in 1999, testified without contradiction that
the downturn in Monroe’s business commencing in 2000 was the
bleakest period in the 22-year history of the Monroe facility. In deter-
mining the status quo for the Monroe facility, the judge reviewed the
Respondent’s wage practice for the entire 22-year history of the Mon-
roe facility. In most years, the Respondent gave annual wage increases
to employees. However, when it experienced economic difficulty in
the 1980s, the Respondent did not give wage increases to employees at
the Monroe facility in 5 of those 10 years. Like the judge, we consider
the Respondent’s wage practices of the 1980s to be particularly relevant
to the status quo question. To consider otherwise, as suggested by our
colleague, would seem to unfairly skew the data and would result in an
NORTH STAR STEEL CO. 1365
I. DAVID LEWIS’ PREELECTION STATEMENTS
David Lewis, acting as an agent for the Respondent,
discussed the union campaign with Monroe plant em-
ployees at a series of a dozen or more mandatory meet-
ings. These meetings took place over the course of sev-
eral days, approximately 1 week before the election. The
judge found that certain statements by Lewis at those
meetings violated Section 8(a)(1) of the Act.
A. Statements Implying Futility of
Union Representation
At the preelection employee meetings, Lewis identi-
fied himself as the Respondent’s lead contract negotiator
if the Monroe facility became unionized. The credited
evidence reveals that Lewis told the employees that he
would not allow the Union to “succeed” and that if em-
ployees “were to get the Union in and get a contract, if
you have what you have right now, we would consider
that . . . succeeding and we do not want that to happen
because we’re afraid of the domino effect [on] other
nonunion plants.” The judge found that Lewis had im-
plied to employees that collective bargaining would be
futile because such bargaining would not result in the
employees obtaining benefits other than what the Re-
spondent chose to give them and that unionization would
necessarily lead the Respondent to choose to give fewer
benefits to employees. The judge concluded that Lewis’
statement violated Section 8(a)(1) because employees
could reasonably infer futility of union representation.
We adopt these findings and conclusion.6
B. Statements About Reduced Hours and Layoff
Lewis also told the assembled employees that he was
proud that there had been no layoffs at the Monroe facil-
ity in the past. According to the credited evidence, he
explained that the Respondent had been able to avoid
layoffs at its union-free facilities, but it had been forced
to lay off employees at its unionized facilities, because
the union-free arrangements allowed the Respondent the
flexibility necessary to keep employees busy during eco-
nomic downturns. Lewis asked employees: “Who here
would like to work 32 hours or get laid off? How do you
like 32 hours? We can do that.”
The judge found that Lewis’ assertion about no layoffs
at the Monroe facility was incorrect. The judge specifi-

elimination of the period of most compatibility to Monroe’s declining
business situation that existed in January 2001.
6 We therefore find it unnecessary to pass on the judge’s findings re-
lating to other comments made by Lewis that are identified in sec.
III,A,1, last par., of the judge’s decision because a finding of any addi-
tional futility violation is cumulative and does not affect the remedy
and the Order. Member Walsh would affirm all of the judge’s findings
of fact and conclusions of law on this issue.
cally determined that the Respondent had at least two
layoffs before the Union’s campaign in 2000.7 Thus, the
judge concluded that Lewis did not have a basis in objec-
tive fact to tell employees that the Monroe facility had
never had a layoff in the past and that the reason for no
layoffs was the union-free arrangement that existed at the
Monroe facility. The judge concluded that Lewis’ state-
ments about reduced hours and layoffs, described above,
constituted an unlawful threat in violation of Section
8(a)(1) of the Act. We agree that the Respondent unlaw-
fully threatened employees, as explained below.8
To clarify, the evidence establishes that the Respon-
dent did not actually threaten to reduce hours if the Un-
ion got in, but threatened that it would not have the flexi-
bility to reduce hours during economic downtimes if the
Union got in, and that it would be forced instead to lay
off some employees under such circumstances. The un-
derlying premise for Lewis’ comments is a prediction
that the Respondent would not be able to have flexibility
to implement reduced work hours in place of economic
layoffs for its employees if the Monroe facility became
unionized. However, Lewis failed to support this predic-
tion with concrete examples and information, as the cred-
ited testimony of employees Mike Carmody and Willie
R. Hall revealed. By crediting their testimony, the judge
rejected the testimony of the Respondent’s witness,
James Jonasen, about Lewis’ statements.
Lewis did not testify at the hearing, and the Respon-
dent’s witnesses did not indicate that Lewis based his
comments on “the strictures of Union contracts,” as sug-
gested by our dissenting colleague. In Tri-Cast, Inc., 274
NLRB 377, 378 (1985), cited by our dissenting col-
league, the employer indicated to employees that it could
lose its ability to successfully conduct its operations be-
cause of “union restrictions.” But, in the instant case,
there is no credited evidence that Lewis ever referred to
any “union restrictions” in support of statements during
his meetings with the employees. Specifically, Carmody
credibly testified:

7 There are no exceptions to the judge’s findings about the existence
of layoffs at the Monroe facility. The Respondent also does not dispute
that during one of the preelection meetings held by Lewis, an employee
corrected Lewis’ misstatements.
8 In addition to the cases cited by the judge, including Hertz Corp.,
316 NLRB 672, 686 (1995) (“In effect the [company] implied to its
employees that the selection of a union to represent them could result in
layoffs which the Union could do nothing about.”), we also rely on
Times-Herald Record, 334 NLRB 350 (2001) (publisher’s prediction—
that the newspaper would not continue its practice of stretching part-
time jobs into 8-hour jobs in order to keep the drivers employed full
time—was a threat and not a permissible statement of economic real-
ity).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1366
Lewis started off the meeting with a little history of
North Star and what had happened during the tough
times in the past and he had some index cards so he,
you know, he read his cues from that and he said that in
the past when times were tough at the Monroe division
that they had not laid anybody off because the man-
agement team at the Monroe division would go to cor-
porate and say hey, we can keep our people busy, we
don’t need to lay ‘em off, and he said that the reason
that we were able to do that is we were non-union and
the union plants didn’t have to do that they had to go to
their layoff policy, that’s how they dealt with it.
During the preelection meetings, Lewis related no spe-
cific incidents where the Respondent, in trying to cope in
depressed economic times, had less flexibility at its un-
ionized facilities. Instead, Lewis misstated the past his-
tory at the Monroe plant before the Union came on the
scene.9 The Respondent furnished no objective basis for
claiming that unionization would adversely affect its
ability to be flexible during economic downtimes. Fur-
thermore, Lewis’ remarks about reduced hours and lay-
offs were made in the course of the same speech in which
Lewis unlawfully threatened futility of union representa-
tion and unlawfully compared the selection of union rep-
resentation to a “bad divorce.”
Given all these circumstances, the Respondent failed
to satisfy its burden to justify Lewis’ statement equating
inflexibility with unionization.10 Thus, we find a viola-
tion of Section 8(a)(1).

9 Interestingly, Lewis’ prediction turned out to be wrong. The judge
found that after the Monroe facility became unionized, the Respondent
bargained with the Union and lawfully implemented a 32-hour reduced
schedule to curtail production at the Monroe facility in late November.
No exceptions were filed to this finding.
10 For the reasons set forth in his separate dissent, Chairman Battista
would find no violation and would dismiss this complaint allegation.
In his separate dissent, Chairman Battista argues that it was not
threatening for the Respondent to tell employees about the possibility
of layoffs in economic downtimes. We think that our dissenting col-
league’s argument misses the mark. First, Lewis bragged (albeit incor-
rectly) that there had been no layoffs at the Monroe facility. Then, he
stated that the Respondent had been forced to lay off employees at
unionized facilities. In this context, Lewis asked the rhetorical ques-
tion, “Who here would like to work 32 hours or get laid off?” Thus,
Lewis’ statements suggest, without any foundation, that if the Monroe
facility became unionized the Respondent’s options would be limited
and the Respondent would no longer be able to choose to reduce work
hours in lieu of implementing layoffs during depressed economic times.
In our view, Lewis’ statement would reasonably be interpreted by em-
ployees as a threat of inflexibility with the onset of union representa-
tion, indicating that employees will suffer financially in a unionized
setting. Thus, unlike our colleague, we think that employees would
reasonably understand from Lewis’ remarks that a reduced work
schedule for them would not be available if the Union was selected as
their representative.
C. “Bad Divorce” Threat
At these same preelection meetings, Lewis also com-
mented on the employer-employee relationship that ex-
isted at the Monroe facility. The credited evidence
shows that Lewis said that there was a 22-year relation-
ship between management and hourly workers at the
Monroe facility and that a third party was now trying to
interfere with that relationship. He compared the rela-
tionship to a “marriage,” and said that if the employees
selected the Union to represent them, it would be a “bad
divorce.” The judge found that Lewis’ remark consti-
tuted an unprotected threat of different, unfavorable
treatment if the employees select the Union as their rep-
resentative. For the reasons stated by the judge and as
explained further below, we find that Lewis’ “bad di-
vorce” statement violated Section 8(a)(1).11
In determining whether a statement by an employer
violates Section 8(a)(1), or is protected by Section 8(c),
the Board considers the totality of the relevant circum-
stances.12 Applying that standard, we observe that Lewis
gave his “bad divorce” statement in the same preelection
meetings where he made the unlawful threat of futility of
union representation and the unlawful threat about re-
duced hours and layoff. These threats would reasonably
inform an employee’s interpretation of Lewis’ “bad di-
vorce” comment. Heard in the context of these other

11 For the reasons set forth in his separate dissent, Chairman Battista
would find no violation and would dismiss this complaint allegation.
We find distinguishable the cases relied on by our dissenting col-
league. In John W. Hancock Jr., Inc., 337 NLRB 1223, 1224 fn. 7
(2002), the employer at a plantwide meeting referred to employee card
solicitors as the “enemy within,” while the employer in Optica Lee
Borinquen, Inc., 307 NLRB 705, 708 (1992), enfd. 991 F.2d 786 (1st
Cir. 1993), distributed a letter to employees assertedly associating the
union with strikes and violence. The Board examined the “context” of
the particular statement at issue in each case and determined that nei-
ther comment lost the protection of Sec. 8(c) of the Act. The Board
majority in Hancock emphasized that the “enemy within” statement
was unaccompanied by any other threats or unlawful statements. In
Optica Lee Borinquen, the Board adopted the judge’s finding that the
letter’s disparagement of the union was unaccompanied by any intima-
tion that strikes and violence were inevitable consequences of unioniza-
tion. Thus, the context of the employer’s statements weighed strongly
in favor of finding no unlawful threats in both cases. Yet, in the instant
case, the Chairman ignores the “context” of the “bad divorce” state-
ment and instead considers Lewis’ words in isolation to find that the
“bad divorce” statement is protected speech under Sec. 8(c) of the Act.
Member Walsh did not participate in either John W. Hancock Jr.,
Inc., or Optica Lee Borinquen. He agrees, however, with Member
Liebman’s dissenting position in John W. Hancock Jr., Inc., he ex-
presses no view here as to whether the issue in question in Optica Lee
Borinquen was correctly decided. But in any event, he agrees with
Member Schaumber that those cases are distinguishable from the in-
stant case.
12 See, e.g., Center Service System Division, 345 NLRB 729, 731
(2005); Contempora Fabrics, 344 NLRB 851 (2005); Saginaw Control
& Engineering, 339 NLRB 541, 541 (2003).
NORTH STAR STEEL CO. 1367
threats, Lewis’ “bad divorce” statement would reasona-
bly suggest a similar negative, retaliatory message to
employees. An employee would reasonably understand
that Lewis was intimating that not only would there be
changes in the Respondent’s relationship with them (as
in a divorce) if they selected the Union as their bargain-
ing representative but also they could anticipate reper-
cussion and difficulties (because the situation would be
“bad”) if the Union was their representative. To that
extent, the “bad divorce” statement goes beyond a per-
missible negative view of union intervention.13 In our
view, employees could reasonably equate Lewis’ “bad
divorce” comparison with an implicit threat of reprisal if
employees supported the union.14 Thus, considering the
totality of the circumstances, we find that Lewis’ “bad
divorce” statement reasonably had the tendency to inter-
fere with, restrain, or coerce employees in the exercise of
their Section 7 rights.
II. TRANSFER OF 175 TONS OF STEEL PRODUCTION
A. Refusal to Bargain
On one occasion in December, the Respondent trans-
ferred the production of 175 tons of steel from its Mon-
roe facility to its St. Paul facility. As the judge recog-
nized, the December transfer constituted less than 1 per-
cent of a single month’s production for the Respondent.
More precisely, it represented 0.006 percent of the De-
cember’s production. The Respondent never notified the
Union or gave it an opportunity to bargain about this
transfer.15 Acknowledging that this work transferred in
December constituted a small fraction of the Monroe
facility’s overall production, the judge concluded, none-
theless, that the Respondent violated Section 8(a)(5) and
(1) by failing to bargain over its decision to transfer the
processing of the 175 tons of steel. The Respondent ar-
gues that it had no bargaining obligation because the
transfer was an isolated incident that caused a minimal
loss of work. We reverse the judge. We find, for the
reasons stated below, that the Respondent had no duty to
bargain with the Union about this transfer of work.

13 While we agree with the general view expressed in Optica Lee
Borinquen, supra, that Sec. 8(c) “does not require fairness or accuracy,
and does not seek to censor nastiness,” we find that Lewis’ remarks,
given their context, exceeded the protection of Sec. 8(c) on grounds
other than fairness, accuracy, or nastiness.
Again, Member Walsh did not participate in Optica Lee Borinquen
and expresses no view here as to whether the issue in question was
correctly decided there.
14 See, e.g., Chemical Solvents, Inc., 331 NLRB 706 fn. 3, 718–719
(2000) (supervisor’s statement—that if the union went through, he
could make employees’ lives a “living hell”—was an unlawful threat of
unspecified reprisals).
15 The Union learned about the transfer of unit work after it had been
accomplished.
Generally, an employer has a duty to bargain with the
exclusive representative of a unit of its employees before
making a change in wages, hours, or other working con-
ditions, but that duty arises only if the change is a “‘ma-
terial, substantial, and a significant’ one affecting the
terms and conditions of employment of bargaining unit
employees.”16 The General Counsel bears the burden of
establishing that the change was material, substantial,
and significant. We conclude that the General Counsel
has not carried this burden of proof here.
The General Counsel offered no evidence that the De-
cember transfer of 175 tons of steel production adversely
affected any employee. The judge noted that the timing
“coincided” with reduction in employee hours and con-
templated layoffs due to business downturn affecting the
steel industry. There is no dispute that the steel industry
was suffering depressed business conditions that affected
the Respondent.17 But, there is no evidence in the record
that demonstrated a causal connection between this
minimal transfer of unit work in December and the re-
duction in the employee hours in November and the lay-
offs in January 2001. In fact, the General Counsel of-
fered no evidence concerning the number of employees
or the number of work hours involved in processing the
175 tons at either the Monroe or St. Paul facilities.18
In order to transform the 175 tons transfer into a “ma-
terial, substantial, and significant” change, the judge
coupled the transfer with a separate incident of increased
contracting out of the “stacking of squares” and found
that the two incidents together “dealt an appreciable blow
to the jobs and hours.”19 We find that there is no rea-
soned basis for lumping these two incidents together be-
cause the two incidents were not shown to be sufficiently
related or similar to justify treating them, in effect, as one
event. The transfer of this one hot metal production or-
der for 175 tons in December from one facility’s melt
shop to another facility’s melt shop was done by the Re-

16 Central Telephone Co. of Texas, 343 NLRB 987, 1000 (2004);
Ironton Publications, Inc., 321 NLRB 1048 fn. 2 (1996) (unilateral
removal of certain work historically performed by employees did not
significantly impact bargaining unit).
17 The record shows that, because of depressed business conditions,
the number of heats produced had decreased since January 2000 when
the Monroe facility produced about 420 heats (51,647 tons). In De-
cember 2000, hot metal production was about 220 heats (27,053 tons),
but increased in January 2001 to 265 heats (32,587 tons), when the
Respondent laid off employees after bargaining with the Union.
18 In its answering brief, the Union correctly observes that the Re-
spondent provided no factual basis for its contention that the December
transfer of 175 tons of steel production amounted to no more than 3
hours of work.
19 The “stacking of squares” involves opening bundles of steel bars
as they are normally configured as part of the production process and
reconfiguring those bars into new bundles to meet a particular client’s
specifications.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1368
spondent’s sales department located in Edina, Minnesota.
On the other hand, the increased contracting out of the
“stacking of squares” for a completed order rolled in
November was done by the Monroe facility management.
It is undisputed that the Respondent had previously con-
tracted out, up to 40 percent, of the stacking work for a
rolling. The Respondent conceded, however, that it
wrongly contracted out more stacking for the November
rolling than had been contracted out in the past. The
December transfer of 175 tons and the November stack-
ing of squares project are factually dissimilar, involving
different management, different operations, different unit
employees, and with no evidence connecting them. Add-
ing these two incidents together is, thus, not justified.
Furthermore, the judge found that the stacking of
squares itself constituted a significant portion of the
shipping department inspectors’ work, representing about
25 percent of their work. The increased amount of stack-
ing work contracted out in November was, therefore,
itself significant. Lumping the small December transfer
with this independently significant change to the stacking
work in November to find the December transfer was a
“material, substantial, and a significant” change is unten-
able in our view.
We find that the Respondent had no duty to bargain
about this insubstantial amount of steel production trans-
ferred in December. Accordingly, we shall dismiss the
8(a)(5) and (1) allegations pertaining to the Respondent’s
failure to notify the Union or bargain with it over the
December transfer of 175 tons of steel production.
B. Information Request
At a meeting held on February 13, 2001, the Union
asked the Respondent’s works manager, Mike Roper,
why some Monroe unit work was being sent to the Re-
spondent’s St. Paul facility. The judge found that Roper
was aware of the December transfer of 175 tons of steel
production from the Monroe facility to the St. Paul facil-
ity at the time of the February 13 meeting. However,
Roper never told the Union about the December transfer
of the processing of the 175 tons of steel production from
the Monroe facility to the St. Paul facility. In March
2001, the Union again requested, first verbally and then
in writing “any and all information regarding work and
orders being sent, transferred to, or reassigned from the
Monroe facility to the St. Paul facility.” In a memoran-
dum dated July 5, 2001, the Respondent responded to the
Union’s requests and refused to provide the requested
information about the transfer of unit work. The judge
concluded that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to provide the Union with
information regarding steel production that was being
transferred or reassigned from the Monroe facility to the
St. Paul facility. We adopt the judge’s conclusion for the
reasons set forth below.
It is well settled that an employer, on request, must
provide a union with information that is relevant to its
carrying out its statutory duties and responsibilities in
representing employees. Information relating to wages,
hours, and working conditions of employees in the bar-
gaining unit is presumptively relevant. The Board uses a
broad, discovery-type standard in determining relevance.
The standard for determining relevance of the requested
information is a liberal one, and it is necessary only to
establish the probability that the desired information is
relevant, and that it would be of use to the union in carry-
ing out its statutory duties and responsibilities.20
We find that the Respondent refused to provide such
relevant information when it refused to provide the re-
quested information regarding the transfer of unit steel
production work from the Monroe facility. We find that
the Respondent had an obligation to furnish this informa-
tion even though it had no obligation to bargain in par-
ticular about the December transfer of 175 tons of steel
production (which, as found above, did not involve a
material, substantial, and significant change). As the
record shows and the judge found, the Union requested
in March 2001 “any and all information” about any unit
production work that the Respondent was transferring
from Monroe to St. Paul.
The transfer of unit work is a mandatory subject of
bargaining,21 and contrary to our dissenting colleague, an
employer’s obligation to provide a union with requested
information about it does not depend on whether the em-
ployer is also found to have had an obligation to bargain
about the transfer of particular unit work.22 Thus, we

20 See NLRB v. Acme Industrial Co., 385 U.S. 432, 435–437 fn. 6
(1967).
21 E.g., Dallas & Mavis Specialized Carrier Co., 346 NLRB No. 27,
slip op. at 6 (2006) and cases cited therein; Geiger Ready-Mix of Kan-
sas City, 315 NLRB 1021 (1994), enfd. in relevant part 87 F.3d 1363
(D.C. Cir. 1996); see also St. George Warehouse, Inc., 341 NLRB 904
(2004) (Member Walsh dissenting on other grounds).
22 E.g., Certco Food Distribution Centers, 346 NLRB No. 102, slip
op. at 1–2; JD slip op. at 13 (2006); see Clear Channel Outdoor, Inc.,
347 NLRB No. 47 (2006); see also Somerville Mills, 308 NLRB 425,
441–442 (1992). In Somerville, the Board found that the employer
violated Sec. 8(a)(5) and (1) of the Act by failing and refusing to supply
the union with information that the union had requested regarding the
employer’s transfer of work, where employees had reported that unit
employees were being sent home early and being laid off for lack of
work while at the same time work was being shipped out of the plant.
In that case, the Board found that the General Counsel sustained his
burden of showing the requested information was relevant to the sub-
ject matter of complained-of layoffs, notwithstanding that the employer
had told the union that there was no shortage of work due to the trans-
fer, since the union was not required to accept the employer’s assur-
ances.
NORTH STAR STEEL CO. 1369
agree with the judge and adopt his ultimate finding of the
violation.
III. FINANCIAL AND COMPETITOR
INFORMATION REQUEST
Before the Union’s certification as bargaining repre-
sentative in late September, the Respondent began to see
a drop in its business at its Monroe facility. The Re-
spondent experienced a decline in the selling price for its
product, a decrease in sales and backlog of outstanding
orders, an increase in the cost of raw materials, and an
increase in its inventory of finished product.
The Respondent tried to address this problem in sev-
eral ways. For example, the Respondent curtailed pro-
duction at the Monroe facility and sought concessions
from the Union to reduce employee work schedules and
to implement layoffs at the plant. In a letter dated Octo-
ber 24, the Union requested financial and competitor
information from the Respondent to “help the UAW
formulate contract proposals” and “enable the union to
pursue productive negotiations” concerning the conces-
sions sought by the Respondent.23 The Respondent fur-
nished some information, but it did not completely com-
ply with the Union’s request.
During bargaining sessions held on November 1, De-
cember 6, and January 4, 2001, the Respondent gave a
considerable amount of financial information to the Un-
ion.24 At the first session, the Respondent made a pres-

Our colleague argues that Certco and Clear Channel are inapposite
here because the information about the transfer of unit work that was
unlawfully withheld in those cases, unlike here, was requested by the
unions in the course of processing grievances that alleged that the trans-
fers violated collective-bargaining agreements. But the findings of
unlawful refusals to provide information about the transfers of unit
work in those cases, even in the absence of corresponding findings of
an obligation to bargain about such transfers, did not depend on the fact
that the unions had filed contractual grievances over the transfer of unit
work. In both cases, the Board expressly applied the broad, discovery-
type standard discussed above in determining that the requested infor-
mation was relevant, with a showing of possible or potential relevance
being sufficient to establish the employers’ duty to provide the informa-
tion.
23 The Union’s letter requested 13 numbered categories of informa-
tion from the Respondent. The Union claims that the Respondent did
not adequately respond to items 4 through 7 of the letter. These four
items identify the Respondent’s income statements for the past 3 full
years; the Respondent’s general and administrative expenses, including
details on management salaries and benefits; the Respondent’s operat-
ing plans, budgets, forecasts, or other documents dealing with projected
costs and operating results; and a list of all the Respondent’s competi-
tors including company name, address, whether they are unionized, and
any wage and benefit information.
24 As found by the judge, the Union notified employees that the Re-
spondent had provided “comprehensive data surrounding the current
business conditions which included shipments, net income, projected
cycle forecasts, current and projected production schedules, booking
reports, inventory and order backlogs, and general business condi-
tions.”
entation about the poor market conditions troubling the
Monroe facility at that time. The Respondent distributed
documents indicating that the “extremely low” future
orders were “a cause of great concern”; explaining that
“prices [we]re falling as our competitors struggle for
volume”; and describing new orders as “looking bleak.”
The Respondent told the Union that several competitors
were “effectively bankrupt” and trying to sell off product
to raise cash, while other facilities operated by the Re-
spondent might face reductions due to the downturn in
the steel industry. At the second of these bargaining ses-
sions, the Respondent told the Union that Monroe’s
business had further deteriorated, adding that it might be
in the “red” in December. The Respondent also stated
that “business was really going south in a hurry.” At the
subsequent January bargaining session, the Respondent
told the Union that business continued to be bleak.
The judge correctly found that the Union’s request for
financial and competitor information from the Respon-
dent was not presumptively relevant to the Union’s bar-
gaining representative duties.25 The requested informa-
tion did not concern terms or conditions of employment
for bargaining unit employees. The judge also properly
found that the Respondent had no obligation to furnish
the financial and competitor information to the Union
unless the relevancy of such information to the Union’s
bargaining representative duties could be demonstrated.
To resolve this question of relevancy, the judge focused
on the November 1, December 6, and January 4 state-
ments made by the Respondent, which are described
above, to determine if the Respondent had claimed an
inability to pay during negotiations with the Union. In
the judge’s view, the Respondent’s statements “were not
merely descriptions of ‘market conditions,’ but rather
conveyed that the Respondent itself was financially in
critical condition.” Based on this interpretation, the
judge found that the Respondent’s statements constituted
“a claim that actions such as the reduced work schedule
and layoff were necessary because of the Respondent’s
financial inability to pay.” For the reasons that follow,
we reverse the judge.26 We reject the judge’s flawed
interpretation of the Respondent’s statements and his
erroneous finding of an inability-to-pay claim that is
premised on it.
When an employer bases its bargaining position on an
asserted inability to pay, the union is entitled to request
and review the employer’s financial records to assess the

25 See Nielsen Lithographing Co., 305 NLRB 697 (1991), affd. sub
nom. Graphic Communications Union Local 508 v. NLRB, 977 F.2d
1168 (7th Cir. 1992).
26 Member Walsh is separately dissenting on this information request
issue because he would adopt the violation found by the judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1370
employer’s representations about its dire financial condi-
tion.27 But, if an employer claims concessions from the
union are necessary for the employer simply to avoid
competitive disadvantage in the marketplace, the em-
ployer has no obligation to open its books and provide
financial and competitor information that may be re-
quested by the union.28 As the Board has pointed out, the
distinction between “inability to pay” and “competitive
disadvantage” is the difference between claims of “can
not” and “will not.”29 In applying this distinction in
AMF Trucking & Warehousing, 342 NLRB 1125, 1126
(2004), the Board stated:
[T]he phrase “inability to pay” means, by definition,
that the employer is incapable of meeting the union’s
demands. That is, the phrase means more than the as-
sertion that it would be difficult to pay, or that it would
cause economic problems or distress to pay. “Inability
to pay” means that the company presently has insuffi-
cient assets to pay or that it would have insufficient as-
sets to pay during the life of the contract that is being
negotiated. Thus, inability to pay is inextricably linked
to nonsurvival in business.
Further, a claim based on the employer’s projections of fu-
ture inability to compete, whether or not linked to job loss,
“is not synonymous with an assertion that the [employer]
currently has, or will have, insufficient assets to pay.” Id.
Therefore, a mere unwillingness to pay does not trigger an
employer’s obligation to provide financial and competitor
information to the union.30
Our review of the bargaining sessions held on Novem-
ber 1, December 6, and January 4 reveals that the Re-
spondent identified two contributing factors for the de-
cline in its business—diminishing future orders and de-
clining prices—and traced the cause of these factors to
the poor state of the steel industry at that time. The Re-
spondent also linked its anticipated low December profit
figures and depressed business to bad market conditions.
Interestingly, the Respondent seemed to downplay the
extent of its own financial predicament when it carefully
drew a distinction between itself and some competitors
who were in worse financial shape. In emphasizing that
those competitors had serious cash flow problems and
were “effectively bankrupt,” the Respondent clarified

27 See NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
28 See NLRB v. Truitt Mfg. Co., supra; Lakeland Bus Lines, Inc. v.
NLRB, 347 F.3d 955, 960–961 (D.C. Cir. 2003), denying enf. 335
NLRB 322 (2001).
29 Nielsen Lithographing Co., supra at 700.
30 See Nielsen Lithographing Co., id.; Richmond Times-Dispatch,
345 NLRB 195 (2005).
that it had the advantage over its competitors and it still
could pay employees.
The substance of these bargaining statements shows
that the Respondent stayed completely clear of the sub-
ject of company assets and its ability to pay employees.
The Respondent never stated, explicitly or implicitly,
that it did not have sufficient assets on hand to operate
the Monroe facility. The Respondent never suggested
that it was financially incapable of operating the Monroe
facility without implementing reduced work schedules
and layoffs or that its business would not survive without
agreement on the concessions for the Monroe facility.31
We find that the Respondent relayed the message that it
was losing money and would not pay, as opposed to
could not pay, in order to stay competitive.
In the absence of evidence of a present “inability to
pay” claim, we find that the requested financial and
competitor information is not relevant to the Union’s
bargaining representative duties. We, therefore, find that
the Respondent had no duty to furnish the requested in-
formation. Thus, we reverse the judge and find that the
Respondent’s failure to furnish the requested information
to the Union did not violate Section 8(a)(5) and (1) of the
Act. Accordingly, we shall dismiss the complaint allega-
tions pertaining to items 4 through 7 of the Union’s Oc-
tober 24 letter.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 6 and
7.
“6. The Respondent violated Section 8(a)(1) and (5)
of the Act by failing to give the Union a reasonable op-
portunity to bargain before taking the following actions:
eliminating three yard operator positions and displacing
Cheryl Hoffman, Troy Daniels, and Scott Lambrix; and
significantly increasing the percentage of squares it used
outside contractors to stack.
7. The Respondent violated Section 8(a)(1) and (5) of
the Act by failing and refusing to supply information
requested by the Union on March 6 and 16, 2001, regard-
ing steel production being transferred or reassigned from
the Monroe, Michigan facility to the St. Paul, Minnesota
facility.”

31 In the instant case, the Respondent never suggested that the Com-
pany’s survival was at stake. To this extent, Shell Co., 313 NLRB 133
(1993), cited by our dissenting colleague, is clearly distinguishable. In
that case, the employer informed the union that “economic conditions
had affected them ‘very badly, very seriously,’ that present circum-
stances . . . were ‘bad’ and a matter of ‘survival,’ and that it needed the
union’s help because of its condition.” Id. at 133. The Board found the
employer claimed a present inability to pay because the employer’s
posture was grounded in assertions that it could not survive if it contin-
ued meeting its obligations under its most recent collective-bargaining
agreement with the union. Id. at 133–134.
NORTH STAR STEEL CO. 1371
AMENDED REMEDY
Before the election that resulted in the Union’s certifi-
cation as the employees’ bargaining representative, the
Respondent decided, in February, to implement a new
scrap-handling system using front-end loaders at its
Monroe facility. As a consequence of this decision, the
Respondent decided, in October, to eliminate three scrap-
yard operator positions and displace three scrap-yard
operators at the Monroe facility. The judge found that
the Respondent unlawfully failed to bargain over the
decision to eliminate three scrap-yard operator positions
and the displacement of three employees at the Monroe
facility. To remedy this violation, the judge recom-
mended that the Respondent not only be required to bar-
gain but also that the status quo ante be restored and that
the employees be made whole for any lost pay or bene-
fits.
We agree with the judge that the Respondent had a
bargaining obligation and that it violated Section 8(a)(5)
and (1) of the Act. However, the obligation was an ef-
fects bargaining obligation because the decision to elimi-
nate three scrap-yard operator positions and displace
three scrap-yard operators flowed from the earlier deci-
sion to implement a new scrap-handling system using
front-end loaders. See Fast Food Merchandisers, Inc.,
291 NLRB 897, 899–902 (1988) (make-whole relief in-
appropriate to remedy a bargaining violation where the
layoff decision is an effect of an earlier management
decision that is not a mandatory subject of bargaining).
See also Litton Business Systems, 286 NLRB 817, 821–
822 (1987), enfd. in relevant part 893 F.2d 1128 (9th Cir.
1990) (a restoration order was not appropriate to remedy
an effects bargaining violation involving layoffs flowing
from an earlier decision to convert the plant’s machin-
ery). Thus, the judge erred in recommending a “make-
whole” remedy and restoration remedy for this violation.
The record shows that the Respondent’s scrap-
handling system in existence prior to 2000 required three
employees per shift to operate two yard cranes and a lo-
comotive that pulled freight cars along tracks. When it
first informed employees in 1999 that it was examining
new systems for its scrap-yard operation, the Respondent
explained its objective as wanting to eliminate the high-
maintenance scrap crane and reduce manpower by four
persons (i.e., one employee per shift). The following
year, when the Respondent decided to make a substantial
change, it replaced the old yard crane/locomotive system
with two front-end loaders. This new system allowed the
Respondent the ability to reduce its overall manpower
needs per shift. By design, each loader required only one
person to operate it. Less equipment obviated the need
for a third employee on the shift.32 The fact that the Re-
spondent retained the third employee on some of the
shifts for a short while during the period of transition
from the old system to the new system does not negate
the fact that the decision to implement the new system
with equipment for only two operators per shift produced
the unlawful decision to select the three displaced em-
ployees by seniority, without bargaining with the Union.
Thus, unlike Member Walsh, we find that the October
selection process for displacement was but a “direct ef-
fect” of the earlier decision to utilize a scrap-handling
system of two loaders manned by two operators.
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act by failing to bargain with the
Union over the effects of its decision to change scrap-
yard equipment at its Monroe, Michigan facility in Au-
gust 2000, we shall order the Respondent, on request, to
bargain with the Union concerning the effects of its deci-
sion. As a result of the Respondent’s unlawful failure to
bargain in good faith with the Union about the effects of
its decision, three employees, Cheryl Hoffman, Troy
Daniels, and Scott Lambrix, were displaced from yard-
operator positions in the yard and the affected employees
have been denied an opportunity to bargain through their
collective-bargaining representative. Meaningful bar-
gaining cannot be assured until some measure of eco-
nomic strength is restored to the Union. A bargaining
order alone, therefore, cannot serve as an adequate rem-
edy for the unfair labor practices committed.
Accordingly, we deem it necessary, in order to effec-
tuate the purposes of the Act, to require the Respondent
to bargain with the Union concerning the effects of
changing scrap-yard equipment in August 2000 on the
affected employees, and shall accompany our Order with
a limited backpay requirement designed both to make
whole the displaced employees for losses suffered as a
result of the violation and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Respon-
dent to pay backpay to the displaced employees in a
manner similar to that required in Transmarine Naviga-
tion Corp., 170 NLRB 389 (1968).
Thus, the Respondent shall pay the three displaced
employees backpay at the rate of their normal wages
when last working in their yard-operator positions from 5
days after the date of this Decision and Order until occur-
rence of the earliest of the following conditions: (1) the

32 The only other equipment operated during the shift—a small mo-
bile crane used to pick up scrap—involved work that took only 15–30
minutes per shift, clearly not enough to justify having a third employee
on the shift under the new scrap-handling system.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1372
date the Respondent bargains to agreement with the Un-
ion on those subjects pertaining to the effects of the deci-
sion to change scrap-yard equipment on its employees;
(2) a bona fide impasse in bargaining; (3) the Union’s
failure to request bargaining within 5 business days after
receipt of this Decision and Order, or to commence nego-
tiations within 5 business days after receipt of the Re-
spondent’s notice of its desire to bargain with the Union;
and (4) the Union’s subsequent failure to bargain in good
faith, but in no event shall the sum paid to these employ-
ees exceed the amount they would have earned as wages
from the date on which they were displaced from the
Yard Operator position to the time they secured equiva-
lent employment elsewhere, or the date on which the
Respondent shall have offered to bargain in good faith,
whichever occurs sooner; provided, however, that in no
event shall this sum be less than the employees would
have earned for a 2-week period at the rate of their nor-
mal wages when last employed as yard operators on or
about October 18, 2000. Backpay shall be based on
earnings which the displaced employees would normally
have received during the applicable period, less any net
interim earnings, and shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, North Star Steel Company, Monroe, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with different or unfavor-
able treatment, if they engage in union or protected con-
certed activity.
(b) Threatening employees that it would not have
flexibility to choose between reduced hours and layoffs
in economic downtimes if the employees at its Monroe
facility became unionized.
(c) Making statements to employees implying that col-
lective bargaining with the Union will be futile.
(d) Refusing to bargain with the Union, as its employ-
ees’ exclusive bargaining representative, with respect to
the effects of the decision to change scrap-yard equip-
ment at the Respondent’s Monroe, Michigan facility in
August 2000 on the following unit of employees:
All full-time and regular part-time production and
maintenance employees, including stores employees,
shipping and receiving employees, and quality assur-
ance employees, employed by the Respondent at its
Monroe, Michigan facility; but excluding all metalo-
graphers, department clerks/plant clerical employees,
draftsmen, office clerical employees, electronics tech-
nicians, professional employees, supervisors and
guards as defined in the Act.
(e) Significantly increasing from preelection levels the
proportion of square stacking work performed using out-
side contractors rather than bargaining unit employees,
without the Respondent first giving the Union notice and
a reasonable opportunity to bargain.
(f) Failing to provide the Union, in a timely fashion,
with information regarding steel production that was
transferred or reassigned from the Monroe, Michigan
facility to the St. Paul, Minnesota facility.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively and in good faith
with the Union with respect to the effects of the decision
to change scrap-yard equipment at the Respondent’s
Monroe, Michigan facility in August 2000 on unit em-
ployees, and reduce to writing and execute any agree-
ment reached as a result of such bargaining.
(b) On request, bargain collectively and in good faith
with the Union regarding the change described in para-
graph 1(e) of this Order.
(c) On request, rescind the change described in para-
graph 1(e) of this Order; restore the status quo ante, and
make whole any unit employees who have suffered
losses as a result of the change, with interest, as set forth
in the amended remedy section of this Decision.
(d) Pay Cheryl Hoffman, Troy Daniels, and Scott
Lambrix, who were displaced from their yard-operator
positions, backpay at the rate of their normal wages when
last working in their yard-operator positions from 5 days
after the date of this Decision and Order until occurrence
of the earliest of the following conditions: (1) the date
the Respondent bargains to agreement with the Union on
those subjects pertaining to the effects of the decision to
change scrap-yard equipment on its employees; (2) a
bona fide impasse in bargaining; (3) the Union’s failure
to request bargaining within 5 business days after receipt
of this Decision and Order, or to commence negotiations
within 5 business days after receipt of the Respondent’s
notice of its desire to bargain with the Union; and (4) the
Union’s subsequent failure to bargain in good faith, but
in no event shall the sum paid to these employees exceed
the amount they would have earned as wages from the
date on which they were displaced from the yard-
NORTH STAR STEEL CO. 1373
operator position to the time they secured equivalent em-
ployment elsewhere, or the date on which the Respon-
dent shall have offered to bargain in good faith, which-
ever occurs sooner; provided, however, that in no event
shall this sum be less than the employees would have
earned for a 2-week period at the rate of their normal
wages when last employed as yard operators on or about
October 18, 2000, with interest, as set forth in the
amended remedy section of this Decision.
(e) On request, furnish the Union, in a timely fashion,
with information regarding steel production that was
transferred or reassigned from the Monroe, Michigan
facility to the St. Paul, Minnesota facility.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records 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.
(g) Within 14 days after service by the Region, post at
its Monroe, Michigan facility copies of the attached no-
tice.33 Copies of the notice, on forms provided by the
Regional Director for Region 7, 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 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 facilities 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 September 2000.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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.
CHAIRMAN BATTISTA, dissenting in part.

33 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Contrary to my colleagues and the judge, I do not find
that the Respondent violated Section 8(a)(1) of the Act
by threatening employees with different, unfavorable,
treatment or by threatening them with reduced hours and
layoffs. I also do not find that the Respondent violated
Section 8(a)(5) because it did not provide information to
the Union about the transfer of an order for 175 tons of
steel production in December 2000 from its Monroe,
Michigan facility to its St. Paul, Minnesota facility.
David Lewis’ Statements at Employee Meetings
The judge concluded that, in meetings during the orga-
nizing campaign, vice president of human resources,
David Lewis threatened employees with different and
unfavorable, treatment when he compared the 22-year
relationship between management and hourly employees
to a “marriage” and said that it would be a “bad divorce”
if employees allowed a “third party” to come between
them. The judge separately concluded that Lewis unlaw-
fully threatened employees with reduced hours and lay-
offs. Lewis stated that there never had been layoffs at
the Monroe facility. He asked employees “who here
would like to work 32 hours or get laid off?” “[H]ow do
you like 32 hours? We can do that.”
Section 8(c) of the Act provides that the expression of
opinion, unaccompanied by threats or promises, does not
violate the Act. Lewis’ statements here amount to the
mere expression of his opinion protected by Section 8(c)
of the Act and could not reasonably be understood as
threatening reprisal.
The judge found that Lewis’ “bad divorce” analogy
was a threat because it suggested that the Respondent
would develop a hostile posture toward employees. The
statement does not imply retaliation against the employ-
ees. The “bad divorce” analogy was merely an emphatic
way of expressing his view that after a 22-year “mar-
riage” between management and employees, the pres-
ence of a Union would come between them, to the detri-
ment of the marriage. Emphatically expressing one’s
negative view of union intervention does not convert that
view into a threat.1 The fundamental purpose of Section
8(c) is to protect employers’ right to do precisely what
Lewis did: oppose a union organizational campaign vig-
orously and strenuously. See John W. Hancock Jr., Inc.,
337 NLRB 1223, 1224 fn. 7 (2002) (referring to employ-
ees who solicit union cards as the “enemy within” en-
tirely consistent with the proposition that employers are
entitled to oppose, vigorously and strenuously, union

1 Chemical Solvents, Inc., 331 NLRB 706 fn. 3, 718–719 (2000),
cited by my colleagues, is distinguishable. There the supervisor made
an explicit threat of retaliation to employees by telling them that if the
union came in he could make employees’ lives a “living hell.” Lewis’
analogy contained no threat.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1374
organizational campaigns and not an implicit threat of
reprisals.) Optica Lee Borinquen, Inc., 307 NLRB 705,
708 (1992), enfd. 991 F.2d 786 (1st Cir. 1993) (“Section
8(c) does not require fairness or accuracy, and does not
seek to censor nastiness.”).
Similarly, Lewis’ remarks about layoffs and working
“32 hours” are not reasonably construed as a threat of
retaliation for selecting the Union. As to the layoffs,
Lewis told employees that, during past economic down-
turns, its union facilities experienced layoffs under the
provisions of the collective-bargaining agreements, but
that the Respondent had been able to avoid layoffs at its
nonunion facilities. But there had been prior layoffs at
the Monroe facility. Indeed, the employees themselves
pointed out that there had been a layoff at the Monroe
facility. Thus, the Monroe employees were aware of the
facilities past layoff history so that the initial Lewis
statement could not have been perceived by them as co-
ercive or threatening. At worst, Lewis’ initial statement
was mistaken, and the error was quickly pointed out.
Further, to the extent that that the Respondent was saying
that layoffs occur at unionized facilities, and not at non-
Union facilities, the Respondent was expressing its view
that this was because of the strictures of union contracts,
rather than unionization per se, i.e., there were lawful
reasons for these layoffs.2
As to the alleged threat to reduce hours, my colleagues
concede that there was no such threat. To the contrary,
they say that the Respondent was taking the position that,
with a union, the Respondent would not have the flexibil-
ity to reduce hours. Hence, in lieu of a reduction of
hours, the Respondent would have to layoff employees in
the event of an economic difficulty. However, an alleged
threat of layoff is not the same as an alleged threat to
reduce hours. Simply stated, there was no threat to re-
duce hours.
Nor was there an unlawful threat to lay off. The Re-
spondent was experiencing economic difficulty, and was
explaining possible responses to economic difficulties.
As set forth above, the Respondent expressed its opinion
that, under a union, there would not be enough flexibility

2 My colleagues say that there was no express reference to “strictures
of a union contract.” However, it is clear that this was precisely what
Lewis was referring to. Lewis said that, in a nonunion plant, the Re-
spondent was able to unilaterally take steps to avoid a layoff, but in
union plants the Respondent was constrained in the actions that it could
take.
Contrary to my colleagues, the Respondent’s point throughout the
campaign was that, during economic downturns, layoffs had occurred
at unionized facilities as a result of the Respondent adhering to the
layoff procedures in the union contracts. It is evident from the cited
testimony of employee Mike Carmody that employees understood that
that was the Respondent’s position.
to have a reduction in hours. The alternative would be to
have a layoff. Thus, the layoff, rather than a reduction in
hours, would be the response to economic difficulties. It
would not be a reprisal for union activity. It is neither
objectionable nor threatening to tell employees about
those possible consequences. Tri-Cast, Inc., 274 NLRB
377, 378 (1985) (employer statement that union restric-
tions would lessen its flexibility and competitiveness can
only refer to possible restrictions that unions may seek in
future bargaining and is not objectionable conduct or a
retaliatory threat). Such statements, moreover, are per-
missible expressions of opinion protected by Section 8(c)
of the Act.3
Steel Production Transfer Information
The judge found that the Respondent was obligated to
bargain about the transfer of 175 tons of steel production
from the Monroe facility to the St. Paul facility in De-
cember 2000. Based on his finding that the Respondent
was obligated to bargain about that transfer, he con-
cluded that, the Respondent further unlawfully refused to
provide information about the transfer of steel production
requested by the union. Contrary to the judge, the Board
has found that the Respondent had no duty to bargain
about the transfer of an insubstantial amount of steel
production and, thus, did not violate Section 8(a)(1) and
(5) of the Act. Because the Respondent was not obli-
gated to bargain about the inconsequential transfer of 175
tons, it follows that the Respondent was not obligated to
furnish information regarding steel production that was
transferred or reassigned from the Monroe facility to the
St. Paul facility. See Cowles Communications, 172
NLRB 1909 (1968) (duty to furnish information stems
from the underlying statutory duty to bargain with re-
spect to mandatory subjects of bargaining).
My colleagues nevertheless, find that the Respondent
was required to provide the steel production transfer in-
formation.
My colleagues’ position is simple, and it is wrong.
They reason as follows: a transfer of unit work is a man-
datory subject; the information concerned a transfer of
work; therefore information must be supplied. However,
the information here was not about some theoretical or
hypothetical transfer; it was triggered by an actual and
concrete transfer, and that transfer was not a mandatory

3 Hertz Corp., 316 NLRB 672 (1995), and Times-Herald Record,
334 NLRB 350 (2001), cited by my colleagues, are distinguishable. In
both cited cases, the employer’s statements clearly conveyed that it
would take future adverse actions if the employees selected the union.
Here, the limited testimony of what Lewis said about past layoffs and
reduced hours cannot reasonably be construed as including an express
or implicit threat of retaliatory action by the Respondent against the
employees for selecting the Union.
NORTH STAR STEEL CO. 1375
subject. Therefore, there was no obligation to supply
information about the steel production transfers.
I do not disagree that a transfer of bargaining unit
work to nonunit individuals may be a mandatory subject
of bargaining if it has an impact on unit work. Regal
Cinemas, Inc., 334 NLRB 304 (2001). But to trigger an
employer’s statutory bargaining obligation, it is not
enough that a change involves a mandatory subject of
bargaining; it also must be a material, substantial, and
significant change in the terms and conditions of em-
ployment. United Technologies Corp., 278 NLRB 306
(1986). In the cases cited by the majority, unlike here,
the transfer of unit work was a “material, substantial, and
significant” change that affected most, if not all unit em-
ployees and triggered the employer’s bargaining obliga-
tion. Dallas & Mavis Specialized Carrier Co., 346
NLRB No. 27 (2006) (employer terminated all unit driv-
ers and transferred unit work to owner-operators); Geiger
Ready-Mix of Kansas City, 315 NLRB 1021 (1994) (em-
ployer closed plant, laid off unit employees, and reas-
signed unit work to other plants); St. George Warehouse,
Inc., 341 NLRB 904 (2004) (after representation elec-
tion, employer stopped hiring employees and assigned
unit work to temporary employees so that the bargaining
unit decreased from 42 to 8 employees). Similarly,
unlike the present case, in the cited cases which find that
the employer was obligated to provide the information,
the union had established that the requested information
was relevant to a union grievance asserting that the em-
ployer’s conduct violated the terms of the collective-
bargaining agreement. Certco Food Distribution Cen-
ters, 346 NLRB No. 102 (2006) (information relevant to
union grievance that employer’s newly opened facility
was an accretion and that the existing labor contract ap-
plied to the new facility); Clear Channel Outdoor, Inc.,
347 NLRB No. 47 (2006) (information relevant to union
grievance that employer was subcontracting work in
derogation of the collective-bargaining agreement).4
In these circumstances, I would not find that the Re-
spondent violated Section 8(a)(5) by failing to provide
information about the transfer of the steel production.

4 Somerville Mills, 308 NLRB 425 (1992), also cited by the majority,
is inapposite. There, the Board adopted, without comment, the judge’s
finding that the employer unlawfully refused to supply information
requested by the union about the employer’s subcontracting work while
employees were being sent home and being laid off. The judge found
that the General Counsel sustained his burden of showing the requested
information was relevant to the layoffs. In contrast, the General Coun-
sel here did not show that there were layoffs attributable to the transfer.
MEMBER WALSH, dissenting in part.
I disagree with my colleagues on three points: (1) their
finding that the Respondent’s unlawful failure to bargain
about its decision to eliminate three unit jobs and dis-
place three unit employees from the scrap yard was only
an effects bargaining violation, requiring only a Trans-
marine1 remedy; (2) their adoption of the judge’s finding
that the Respondent did not unlawfully fail to bargain
with the Union about the Respondent’s decision not to
grant a wage increase in 2001; and (3) their finding that
the Respondent did not unlawfully fail to provide the
Union with requested information about the Respon-
dent’s financial situation and competitors.
I. THE SCRAP YARD
Just 2 weeks after the employees elected the Union to
represent them in collective bargaining with the Respon-
dent, the latter ignored its obligation to bargain with the
Union and, without giving the Union any advance notice
or opportunity to bargain, unilaterally decided to elimi-
nate three unit jobs from the scrap-yard department and
correspondingly to displace three scrap-yard unit em-
ployees into the Respondent’s general labor pool.
A.
Historically, the Respondent moved steel in its scrap
yard by using two cranes and a locomotive. There were
four scrap-yard shifts, with three employees working
each shift: two operated the cranes, and the third oper-
ated the locomotive. In a May 1999 memorandum, the
Respondent informed employees that it was considering
eliminating the cranes, and reducing manpower by one
employee per shift. The memorandum also stated, how-
ever, that the Respondent would publish and communi-
cate the results of its feasibility study of these possible
changes as they developed, “well before any decisions
would be made which affected the total number of indi-
viduals” in the scrap yard.
About a year later, in April 2000,2 the Respondent or-
dered two front-end loaders for a new system of handling
scrap that would replace the cranes-and-locomotive sys-
tem. By August, the Respondent was operating the scrap
yard under its new method, with front-end loaders.
At some point during the transition period in scrap-
yard operations, Supervisor Toni Hallam spoke with
scrap-yard employees about rumors that the scrap-yard
positions were not secure because of the change to the
new scrap-handling system. Hallam told the employees
that all they had to go on was the Respondent’s past

1 Transmarine Navigation Corp., 170 NLRB 389 (1968).
2 All dates in this section are in 2000, unless stated otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1376
practice, under which the Respondent only eliminated
jobs through attrition of the employees.
At the time of the Union’s election and certification in
late September, there were still three scrap-yard unit po-
sitions on three of its shifts, but just two on the fourth.
And the Respondent was still essentially using three
scrap-yard employees per shift: two to operate the front-
end loaders and (on three of the four shifts) a third to
help relocate scrap within the yard to accommodate the
new system.3
In October, however, shortly after the Union’s election
as bargaining representative, Superintendent Barbara
Nocella told Hallam that the Respondent was going to
eliminate three positions in the scrap yard. On October
18, Nocella and Hallam gave written notification to the
three most junior scrap-yard employees, Cheryl Hoff-
man, Troy Daniels, and Scott Lambrix, that they were
being displaced from the yard.4 Nocella told them that
the action was the result of the downturn in the Respon-
dent’s business and the new, more efficient, scrap-
handling system. Hoffman said “I thought you said our
jobs were secure,” and Hallam responded that “things
have changed.” The Respondent did not give the Union
advance notice or an opportunity to bargain prior to
eliminating the positions and displacing the incumbents.
B.
The judge found that although by the time of the Un-
ion’s election in September the Respondent was operat-
ing the scrap yard under its new method with new
equipment, the status quo in terms of unit positions and
employees at that time was still 11 unit positions and 11
employees, and did not include the elimination of the
three positions and the displacement of the three employ-
ees. Thus, the judge found that the Respondent’s imple-
mentation of the equipment and operational changes in
the scrap yard prior to the Union’s election did not re-
lieve the Respondent of its obligation to bargain with the
Union before deciding to make the manpower and per-
sonnel reductions in question after the election.
I agree with the judge’s analysis. The record estab-
lishes that while the Respondent’s decision to change
scrap-yard equipment and operations was made before
unionization, its decision to eliminate three scrap-yard
positions and displace three employees was not made
until after unionization. The Respondent told the em-
ployees prior to unionization that it would communicate

3 As to the fourth shift, one of the scrap-yard employees on that shift
had transferred to another assignment in late 1999 or early 2000, and
the Respondent had not replaced him.
4 Nocella told the three displaced employees that they would be in
the “labor pool,” which meant they would be assigned wherever they
were needed within the Monroe facility.
and publish the results of its scrap-yard feasibility study
well before making any decision that would affect the
number of employees in the scrap yard. But no such
results were published or communicated prior to unioni-
zation, and, presumably then, no such resulting decision
had been made by that time. Later, but still prior to un-
ionization, Supervisor Hallam reassured the scrap-yard
employees that under the Respondent’s established prac-
tice, scrap-yard positions would only be eliminated as a
result of the attrition of scrap-yard employees. But only
one employee had left the scrap yard prior to unioniza-
tion, and only that one scrap-yard position had been
eliminated by that time. The Respondent did not elimi-
nate the three positions in question and displace the three
employees until after the Union’s election, by which
time, of course, the Respondent had an obligation to bar-
gain with the Union about changes in unit employees’
terms and conditions of employment. Thus, the 8(a)(5)
and (1) violation here was the Respondent’s failure to
bargain with the Union about this post-unionization deci-
sion affecting the bargaining unit.5 Accordingly, the
judge correctly recommended that the Respondent be
required to (1) restore the status quo ante by rescinding
the elimination of the unit positions and the displacement
of the employees, (2) offer the displaced employees full
and immediate reinstatement to their former positions in
the scrap yard, (3) make them whole for any lost pay and
benefits resulting from the Respondent’s unlawful ac-
tions, and (4) bargain in good faith with the Union about
the elimination of the positions and displacement of the
employees.6
While my colleagues agree that the Respondent vio-
lated Section 8(a)(5) and (1) by failing to bargain about
eliminating the unit positions and displacing the unit
employees, they disagree with the judge and me about
the nature of the Respondent’s bargaining obligation,

5 See, e.g., Wackenhut Corp., 345 NLRB 850 (2005) (unilateral
elimination of unit positions, unlawful); Sartorius, Inc., 323 NLRB
1275 (1997) (same); Gratiot Community Hospital, 312 NLRB 1075
(1993), enfd. mem. in pertinent part 51 F.3d 1255 (6th Cir. 1995)
(same); Southern Mail, Inc., 345 NLRB 644 (2005) (unilateral reas-
signment of route drivers to the extra board, unlawful); King Soopers,
Inc., 295 NLRB 35 (1989) (unilateral transfer of employee out of unit,
unlawful); San Antonio Portland Cement Co., 277 NLRB 338 (1985)
(unilateral reassignment of unit employees, unlawful).
6 See, e.g., Tri-Tech Services, 340 NLRB 894 (2003); Ebenezer Rail
Car Services, 333 NLRB 167, 172 (2001); Westinghouse Electric
Corp., 313 NLRB 452 (1993), enfd. mem. sub nom. Salaried Employ-
ees Assn. of Baltimore Division v. NLRB, 46 F.3d 1126 (4th Cir. 1995)
cert. denied 514 U.S. 1037 (1995); Holmes & Narver, 309 NLRB 146
(1992), Adair Standish Corp., 292 NLRB 890 fn. 1 (1989), enfd. in
relevant part 912 F.2d 854 (6th cir. 1990); Lapeer Foundry & Machine
Co., 289 NLRB 952, 955–956 (1988). Cf. Consolidated Printers, Inc.,
305 NLRB 1061 (1992) (no duty to bargain over layoffs where the
decision to lay off had been made prior to the election of the union).
NORTH STAR STEEL CO. 1377
and thus about the appropriate remedy for the Respon-
dent’s failure to meet it. They find that the Respondent’s
postunionization elimination of the unit positions and
displacement of the unit employees were actually only
effects of the Respondent’s preunionization change in
scrap-yard equipment and operations. Accordingly, they
find that the Respondent had only an effects bargaining
obligation. Consequently, they find that the judge erred
in recommending a make-whole remedy, and they im-
pose a Transmarine remedy instead. But as seen above,
while the Respondent was operating the scrap yard with
new equipment and methods as early as August 2000,
prior to unionization, the record does not show that the
Respondent had already also decided by then to eliminate
three unit positions and displace three unit employees.
On the contrary, as shown above, the record establishes
that the Respondent did not make that decision until
later, in October, by which time the Union had been
elected and the Respondent had a corresponding obliga-
tion to bargain. Under the above-cited precedent, the
judge has correctly recommended a status quo ante and
make-whole remedy for the Respondent’s failure to bar-
gain about this decision.
In ordering only a Transmarine effects-bargaining,
limited backpay remedy, my colleagues cite Fast Food
Merchandisers, Inc., 291 NLRB 897, 899–902 (1988),
and Litton Business Systems, 286 NLRB 817, 821–822
(1987), enfd. in relevant part 893 F.2d 1128 (9th Cir.
1980). Fast Food, however, is distinguishable and Litton
is inapposite.
In Fast Food, the union represented the employer’s
warehouse employees at its LaGrange, Georgia food dis-
tribution facility. LaGrange serviced most of the Florida
restaurants of the employer’s parent company, Hardee’s
Food Systems. In December 1980, the employer decided
to (1) open a new food distribution center in Jackson-
ville, Florida, to take over servicing most of Hardee’s
Florida restaurants from LaGrange, and (2) discontinue
the third shift at LaGrange. Within the next few weeks,
by the end of the month, the employer (1) started operat-
ing at Jacksonville, (2) transferred the servicing of most
of the Florida restaurants from LaGrange to Jacksonville,
(3) hired three warehouse employees at Jacksonville, and
(4) unlawfully unilaterally discontinued the third shift
and discharged three third-shift warehouse employees at
LaGrange.
Although the Board found that the employer unlaw-
fully failed to bargain about its decision to discontinue
the third shift and discharge the third-shift employees at
LaGrange, the Board did not adopt the judge’s remedial
recommendation that the employer be ordered to reestab-
lish the third shift and reinstate and make whole the dis-
charged employees. Instead, it found that the employer’s
decision to start up Jacksonville and transfer LaGrange
work there (the Jacksonville decision) was “the clearly
defined management decision” that produced the unlaw-
ful decision to eliminate the third shift and discharge the
three warehouse employees at LaGrange (the LaGrange
decision). Thus, the Board found that the unlawful La-
Grange decision was but a “direct effect” of the contem-
poraneous Jacksonville decision.7 Consequently, the
Board found that only a Transmarine remedy for the
unlawful LaGrange decision was appropriate “under the
circumstances.”8
Here, however, unlike in Fast Food and contrary to my
colleagues, the Respondent’s April decision to change
equipment and methods of operation in the scrap yard9
cannot reasonably be found to have been a “clearly de-
fined management decision” that produced the Respon-
dent’s unlawful October decision 6 months later (or, un-
der my colleagues’ view, 8 months later) to eliminate the
three scrap-yard positions and displace the incumbents.
Indeed, the Respondent had been operating the scrap
yard with the new equipment and methods since August,
while keeping the same number of positions and employ-
ees as before. The Respondent did not ultimately decide
to eliminate the three scrap-yard positions and displace
the incumbents until 6 months after it decided to change
the equipment and method of operation in the scrap yard,
and 2 months after it actually started to operate the scrap
yard with this new equipment under these new methods.
Under these circumstances, the Respondent’s unlawful
October decision to eliminate scrap-yard jobs and dis-
place incumbents was not a “direct effect” of its decision
6 months earlier to change scrap-yard equipment and
methods, and the Respondent’s unlawful failure to bar-
gain about its October decision warrants the reinstate-

7 There was no allegation that the employer was obligated to bargain
about the Jacksonville decision to start operating there and transfer
LaGrange work there; only the lawfulness of the subsequent unilateral
LaGrange decision to eliminate the third shift and discharge the three
warehouse employees at LaGrange was at issue. Likewise, there is (of
course) no allegation in the instant case that the Respondent was obli-
gated to bargain about its earlier, April 2000 preunionization decision
to change equipment and methods of operation in the scrap yard; only
the lawfulness of the subsequent, October 2000 postunionization uni-
lateral decision to eliminate the three scrap-yard positions and displace
the incumbents is at issue here.
8 Specifically, the Board ordered the employer to bargain over its
discontinuation of the LaGrange third shift and discharge of employees
“as effects of its decision to open the Jacksonville facility.”
9 My colleagues place this decision earlier, in February. The result
that I reach in this case does not depend on whether the Respondent’s
decision to change equipment and methods of operation in the scrap
yard was made in February or April.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1378
ment and make-whole remedy recommended by the
judge.10
II. THE DECISION NOT TO GRANT A WAGE INCREASE
A.
In the 12 years (1989–2000) prior to the Union’s elec-
tion as collective-bargaining representative in September
2000, the Respondent granted 11 annual wage increases,
at the beginning of each calendar year.11 Following the
Union’s election, however, the Respondent unilaterally
decided not to grant a wage increase in 2001, without
giving the Union advance notice and an opportunity to
bargain about that decision.
B.
The judge concluded that the Respondent did not vio-
late Section 8(a)(5) and (1) of the Act by failing to bar-
gain with the Union about the decision not to grant a
wage increase in 2001. He found that the record did not
establish that an annual wage increase was the status quo
for the 18 years (1983–2000) prior to unionization. Be-
cause the Respondent had not granted wage increases
when it was assertedly experiencing economic difficulty
in the earlier years, 1983–1984 and 1986–1988, the judge
found that annual wage increases were “certainly not”
the status quo during periods when the Respondent’s
business was poor. The judge found that the Respon-
dent’s business was poor in 2000 and 2001 (although, as
seen, the Respondent in any event did grant a wage in-
crease at the beginning of 2000). Thus the judge found
that the Respondent’s failure to bargain about its decision
not to grant a wage increase in 2001, following unioniza-
tion, did not violate the Act because it did not constitute
a unilateral change to the status quo. For the reasons set
forth below, I disagree with the judge and find that the
Respondent violated the Act.
C.
Once a union has been selected to represent an appro-
priate unit of employees, the employer may not make
decisions regarding any term and condition of employ-
ment without first notifying the union and providing it
with the opportunity to bargain. E.g., Britt Metal Proc-
essing, Inc., 322 NLRB 421 (1996), affd. mem. 134 F.3d
385 (11th Cir. 1997). The Respondent granted annual
wage increases in 11 of the 12 years (92 percent of the
time) immediately preceding the Union’s election in Sep-

10 In Litton Business Systems, supra, also relied upon by my col-
leagues, there was no allegation that the employer had anything more
than an effects-bargaining obligation. The issue in dispute between my
colleagues and me here, however, is whether the Respondent had a
decision-bargaining obligation. Thus, Litton is inapposite.
11 In 1998, the Respondent granted an across-the-board $1000 bonus
in lieu of an annual wage increase.
tember 2000. Thus, by the time the Union became the
collective-bargaining representative, these annual wage
increases had become an established pattern and practice
over many years and therefore constituted a condition of
employment which the Respondent was not free to
change unilaterally.12 Lee’s Summit Hospital & Health
Midwest, 338 NLRB 841 (2003); Keeler Die Cast, 327
NLRB 585, 588 (1999) (8(a)(5) violation).13 Given the
consistency of the Respondent’s practice, the employees
were entitled to regard an annual wage increase as an
established part of their wage structure. (Indeed, that is
precisely what the Respondent wanted the employees to
understand.)14 And this is so even though there may
have been discretion in the amount of the annual in-
creases, Lee’s Summit, supra, 338 NLRB at 843,15 and
even though a $1000 bonus was granted in lieu of an
increase in 1998, assertedly due to economic conditions.
Id. Consequently, I find that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to bargain
with the Union about the decision not to grant a wage
increase in 2001.

12 This consistent pattern of annual wage increases in 11 of the 12
years immediately before the Union’s election is more probative of the
existence of such increases as an established term and condition of
employment at the time of the election than the absence of such in-
creases in 5 of the 6 earlier years before that period. But even going all
the way back to 1983, as the judge did, the Respondent still granted
wage increases in 12 of the 18 years (67 percent of the time) before
2001.
13 See also UARCO, Inc., 283 NLRB 298, 300–301 (1987) (8(a)(5)
violation) (employer unlawfully withheld wage increase to newly rep-
resented employees who had received increases equal to those of com-
petitor for previous 17 years).
14 Human Resource Manager Todd Dean testified that one of the Re-
spondent’s antiunion “selling points” to employees during the Union’s
election campaign in September 2000 was that the Respondent had
granted the employees “continua[l] wage increases.” Also during the
campaign, the Respondent trumpeted on its “Union Free” website that
the Respondent had a “[c]onsistent history of wage increases averaging
3% per year since 1990,” and (in another place on the website) a “3%
average annual increase the last 11 years.” (Emphasis added.)
15 See also Daily News of Los Angeles, 315 NLRB 1236 (1994),
enfd. 73 F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997)
(employer that had practice of granting merit increases that were fixed
as to timing but discretionary as to amount violated the Act by unlaw-
fully discontinuing that practice without bargaining to agreement or
impasse with union (applying NLRB v. Katz, 369 U.S. 736 (1962)).
Thus, to the extent that the Respondent decided in its discretion not to
grant the regular wage increase in 2001 because of financial considera-
tions, the Respondent was nevertheless obligated to bargain with the
Union over the discretionary issue of whether to grant the increase in
light of financial considerations. See, e.g., Oneita Knitting Mills, 205
NLRB 500 fn. 1 (1973) (an employer with a preunionization history of
a merit increase program may no longer continue unilaterally to exer-
cise its discretion with respect to such increases following unionization;
the implementation of the merit increase program, to the extent that
discretion has existed in determining the amounts or timing of such
increases, becomes a matter as to which the bargaining agent is entitled
to be consulted).
NORTH STAR STEEL CO. 1379
III. THE REFUSAL TO PROVIDE INFORMATION
The judge correctly found that the Respondent’s nego-
tiation statements effectively claimed a present inability
to pay and also put information about its competitors in
issue, and that the Respondent violated Section 8(a)(5)
and (1) by refusing to furnish the Union with requested
financial and competitor information. I disagree with the
majority’s reversal of these findings.
A.
In October 2000,16 shortly after the employees elected
the Union to represent them in collective bargaining, the
Respondent unilaterally reduced weekly production from
21 work shifts to 15, and announced to the employees
that it was cutting their weekly hours from 40 to 32. The
Respondent did not give the Union advance notice or an
opportunity to bargain about the decisions to impose
these reductions.17 The last time the Respondent had
taken such steps was 14 years earlier, in response to fi-
nancial difficulties.
Thereafter, on October 24, the Union asked the Re-
spondent to provide it with, inter alia, income statements
for the last 3 full years; general and administrative ex-
penses, including details on management salaries and
benefits; operating plans, budgets, forecasts or other
documents dealing with projected costs and operating
results; and a list of all the Respondent’s competitors,
including company name, address, and whether they are
unionized, and also any wage and benefit information
that the Respondent had about them.
A week later, on November 1, the Respondent and the
Union had a meeting about the reduction in work hours.
The Respondent told the Union that there was a down-
turn in the steel industry, and that the Respondent’s sales
orders were “extremely low,” “looking bleak,” and “a
cause for great concern.” The Respondent also told the
Union that sales prices were falling because of increased
competition from several “effectively bankrupt” competi-
tors who needed cash quickly and were struggling to get
some cash by lowering their prices to increase their sales
volume. At this meeting, the Respondent gave the Union
manufacturing and financial data for the years 1999 and
2000.18

16 All dates in this section are October 2000 through January 2001,
unless stated otherwise.
17 As a result of postfacto discussions with the Union, however, the
Respondent postponed implementation of the reduction in work hours
for about a month.
18 As my colleagues note, later that month, the Union did notify its
members that the Respondent had provided comprehensive data sur-
rounding the Respondent’s current business conditions, including, inter
alia, information about shipments, net income, current and projected
production schedules, and inventory and order backlogs.
At a meeting on December 6, the Respondent told the
Union that the Respondent’s business had deteriorated
further since the previous meeting, that it was continuing
to deteriorate quickly (“really going south in a hurry”),
that the Respondent might show a loss (“in the red”) for
that month, and that there was going to be a layoff.
On December 23, in response to the Union’s October
24 request for information about the Respondent’s com-
petitors, the Respondent provided only a copy of the
commercially published 2000 edition of “The Directory
of Iron and Steel Plants.” The directory listed over 100
facilities, but the Respondent did not identify which
companies were the Respondent’s competitors.19 The
Respondent did not provide anything in response to the
request for income statements for the last 3 years or the
request for information about management salaries and
benefits. The Respondent took the position that informa-
tion about management salaries and benefits was not
relevant to the Union’s bargaining obligation in the con-
tract negotiations.
Finally, at a meeting on January 4, 3 days before the
start of the layoff, the Respondent told the Union that the
Respondent’s business outlook continued to be bleak.
B.
Contrary to my colleagues, I agree with the judge that
during the Respondent’s above meetings with the Union
the Respondent effectively raised a claim of inability to
pay for wages and benefits that the Union might seek for
the employees, and to justify concessions from the Un-
ion.
An employer is required to comply with a union’s re-
quest for financial information to verify the employer’s
claim of economic inability to pay the union’s bargaining
demands.20 There are no magic words required to trigger
this obligation; rather, “so long as the employer’s refusal
reasonably interpreted is the result of financial inability
to meet the employees’ demand rather than simple un-
willingness to do so, the exact formulation used by the
employer in conveying the message is immaterial.”21
Here, the Respondent clearly communicated to the Un-
ion that it could not afford the Union’s bargaining de-
mands. It conveyed to the Union that it was caught in a

19 The Respondent actually had only four primary competitors
among the over 100 companies listed in the directory. The Respondent
had information about the wages being paid by one of those competi-
tors, but the Respondent did not provide it to the Union.
20 NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956).
21 Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984); Stamco
Div., 227 NLRB 1265 (1977). See also Printing Pressmen Local 51
(Milbin Printing) v. NLRB, 538 F.2d 496, 500 (2d Cir. 1976); NLRB v.
Unoco Apparel, Inc., 508 F.2d 1368, 1370 (5th Cir. 1975) (statement
that “employees came to the wrong well . . . the well is dry” constituted
a claim of financial inability to afford wage increase).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1380
rapidly, downwardly spiraling financial trap (i.e., ex-
tremely low sales orders that were looking bleak and
were a cause for great concern, coupled with falling sales
prices caused by increased competition from cash-
starved, virtually bankrupt competitors who were drag-
ging down market prices to increase their volume). The
Respondent made alarming statements to the Union
about the Respondent’s increasingly desperate current
and future operational and financial condition. These
statements were coupled with thinly veiled predictions of
unprofitability and even bankruptcy and were made in
the context of the Respondent’s substantial reductions in
work shifts and work hours, and ultimately, a layoff.
They therefore constituted, en toto, a claim of inability to
pay, and in turn triggered an obligation on the part of the
Respondent to provide the Union with the requested fi-
nancial and competitor information. In sum, the reason-
able interpretation of the Respondent’s above statements
and conduct is that it was financially unable—not just
unwilling—to acquiesce in the Union’s negotiating de-
mands.22 The Respondent’s failure to provide the re-
quested information thus violated Section 8(a)(5) and (1)
of the Act.
In reversing the judge and dismissing this allegation,
my colleagues rely on the recent majority opinions in
AMF Trucking & Warehousing, 342 NLRB 1125 (2004),
and Richmond Times-Dispatch, 345 NLRB 195 (2005).
Both of those cases were wrongly decided, as fully ex-
plained in Member Liebman’s and my separate dissent-
ing opinions in Richmond Times-Dispatch and AMF,
respectively. Like the Board majorities in those cases,
the majority seems to be bending over backwards in this
case to reinterpret and recast the Respondent’s clear
claim of inability to pay. Thus, the majority finds that
the Respondent’s above statements and predictions
amounted to just a claim by the Respondent that it
needed concessions from the Union only in order to
avoid being placed at a competitive disadvantage in the
marketplace. But that clearly understates the import of
the Respondent’s statements and conduct, which just as
clearly conveyed to the Union that the Respondent
needed concessions from the Union just to survive. My
colleagues’ spinning and recasting of the Respondent’s
comments, while arguably adroit,23 cannot defuse those

22 See, e.g., Shell Co., 313 NLRB 133 (1993) (economic conditions
had affected the company “very badly” and rejection of the union’s
economic demands was a matter of “survival”): Stamco Division, 227
NLRB 1265, 1266 (1977) (employer not in healthy position, projec-
tions of the future did not look great).
23 For example, my colleagues seem to transform the Respondent’s
warning to the Union that the Respondent was “great[ly] concern[ed]”
about its “extremely low” future production orders, in a market where
“prices are falling” and three of the Respondent’s competitors were
comments into merely a composite claim of unwilling-
ness to pay, based on a desire only to avoid being placed
at a competitive disadvantage. And contrary to my col-
leagues’ implication, the fact that the Respondent pinned
its assertedly precarious financial condition on low sales
volume and low sales prices caused by a decline in the
steel industry in general, not only does not change the
message conveyed to the Union, it underlines it—the
Respondent would no longer be able to afford to operate
at preunion levels and would not be able to continue to
survive in the weakened marketplace without conces-
sions from the Union.
Accordingly, I respectfully disagree with my col-
leagues, and would adopt the judge’s finding that the
Respondent’s negotiation statements effectively claimed
a present inability to pay, and that the Respondent vio-
lated Section 8(a)(5) and (1) by refusing to furnish the
Union with requested financial information.24
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with different or unfavor-
able treatment if you engage in union or protected con-
certed activity.

“effectively bankrupt,” into an implicit boast by the Respondent that it
had an advantage over its competitors and could still pay its employ-
ees—all of this, however, in the context of the Respondent’s contempo-
raneous reductions in work shifts and hours, and its eventual layoff of
employees. The Respondent’s above statements to the Union were just
what the Respondent intended them to be: a clear warning to the Union
that the Respondent was unable to meet any union demands for im-
provements and would follow its competitors into bankruptcy in a
weakened marketplace unless the Respondent got concessions from the
Union.
24 Also contrary to my colleagues, and for the reasons set forth by
the judge in sec. III,D,2 of his attached decision, I would adopt his
finding that the Respondent violated Sec. 8(a)(5) and (1) under these
circumstances by failing to provide the Union with information in the
Respondent’s possession about its competitors.
NORTH STAR STEEL CO. 1381
WE WILL NOT threaten you that we would not have
flexibility to choose between reduced hours and layoffs
in economic downtimes if the employees at our Monroe
facility became unionized.
WE WILL NOT make statements to you implying that
collective bargaining with International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO will be futile.
WE WILL NOT refuse to bargain with the Union, as the
exclusive bargaining representative, with respect to the
effects of the decision to change scrap-yard equipment at
our Monroe, Michigan facility in August 2000 on the
following unit of employees:
All full-time and regular part-time production and
maintenance employees, including stores employees,
shipping and receiving employees, and quality assur-
ance employees, employed by us at our Monroe facil-
ity; but excluding all metalographers, department
clerks/plant clerical employees, draftsmen, office cleri-
cal employees, electronics technicians, professional
employees, supervisors and guards as defined in the
Act.
WE WILL NOT significantly increase from preelection
levels the proportion of square stacking work performed
using outside contractors rather than bargaining unit em-
ployees, without us first giving the Union notice and a
reasonable opportunity to bargain.
WE WILL NOT fail to provide the Union, in a timely
fashion, with information regarding steel production be-
ing transferred or reassigned from our Monroe, Michigan
facility to our St. Paul, Minnesota facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively and in good
faith with the Union with respect to the effects of the
decision to change scrap-yard equipment at our Monroe,
Michigan facility in August 2000 on unit employees, and
reduce to writing and execute any agreement reached as a
result of such bargaining.
WE WILL, on request, bargain in good faith and collec-
tively with the Union regarding significantly increasing
from preelection levels the proportion of square stacking
work performed by outside contractors rather than Mon-
roe bargaining unit employees.
WE WILL pay to employees Cheryl Hoffman, Troy
Daniels, and Scott Lambrix, who were displaced from
their yard-operator positions, limited backpay in the
manner set forth in the Board’s Decision.
WE WILL, on the request of the Union, rescind the in-
crease in the proportion of square stacking work per-
formed using outside contractors rather than Monroe
bargaining unit employees, and make whole any employ-
ees who have suffered losses as a result of that increase,
with interest.
WE WILL, on request, furnish the Union, in a timely
fashion, with information regarding steel production be-
ing transferred or reassigned from the Monroe, Michigan
facility to the St. Paul, Minnesota facility.
NORTH STAR STEEL COMPANY
John Ciaramitaro, Esq., Dynn Nick, Esq., and Kelly Gacki,
Esq., for the General Counsel.
Vincent Candiello, Esq. (Morgan, Lewis & Bockius LLP), of
Harrisburg, Pennsylvania, for the Respondent.
Betsey A. Engel, Esq. and Niraj R. Ganatra, Esq., of Detroit,
Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was
tried in Detroit, Michigan, on December 11, 12, 13, and 14,
2001. The International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL–CIO
(the Union or UAW), filed the initial charge on December 19,
2000, and amended that charge on February 9 and March 29,
2001. The Union filed additional charges on April 3 and May
31, 2001. The Director for Region 7 of the National Labor
Relations Board (the Board) issued the initial complaint on
March 30, 2001, the amended consolidated complaint on May
30, 2001, and the second amended consolidated complaint on
August 8, 2001. The second amended consolidated complaint
(the complaint) alleges that North Star Steel Company (the
Respondent) violated the National Labor Relations Act (the
Act) by taking various actions at its facility in Monroe, Michi-
gan, both before and after a representation election in which
employees selected the Union as their exclusive collective-
bargaining representative. The unlawful conduct in which the
Respondent is alleged to have engaged includes, inter alia:
threatening its employees with adverse consequences if they
chose the Union as their collective-bargaining representative;
coercively interrogating an employee about the Union; giving
employees the impression that union activities were under sur-
veillance; promulgating an overly broad no-discussion rule;
and, eliminating three positions in its scrap yard because of
employees’ union and protected activities. The complaint fur-
ther alleges that, after the Union was certified as the collective-
bargaining representative of a unit of employees, the Respon-
dent refused the Union’s request for financial and other infor-
mation relevant to bargaining, and failed to bargain with the
Union regarding subjects that included: the elimination of three
positions in the scrap yard; the failure to give an annual wage
increase; the transfer of work from the Respondent’s facility in
Monroe, Michigan, to its facility in St. Paul, Minnesota; the
subcontracting and outsourcing of certain work previously per-
formed by members of the bargaining unit; the reduction in
employees’ hours; and the layoff of employees. The Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1382
dent filed an answer and amended answers in which it denied
that it had committed any violation of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Monroe, Michigan, is engaged in the manufacture
and nonretail sale of steel at its Monroe facility, where it annu-
ally derives gross revenues in excess of $1 million sells goods
valued in excess of $50,000 to customers located outside the
State of Michigan, and causes such goods to be shipped from
the Monroe facility directly to points located outside the State
of Michigan.
The Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates steel mills in a number of states,
including Arizona, Iowa, Kentucky, Michigan, Minnesota,
Ohio, and Texas. This case involves alleged violations at the
Respondent’s steel mill in Monroe, Michigan. The Respon-
dent’s Monroe facility produces a number of different types of
steel products, but concentrates primarily on high quality engi-
neered steel that is used in the automotive industry. The facil-
ity also produces a smaller amount of “merchant” grade and
“rebar” grade steel that is used primarily in the construction
industry. As of late 2000, the Respondent employed over 300
persons at the Monroe facility. The Respondent is associated
with Cargill Steel International (Cargill), most probably as a
subsidiary of Cargill.1
In the year 2000, the Union engaged in a campaign to organ-
ize employees at the Monroe facility. This campaign culmi-
nated with an election on September 21, 2000, in which em-
ployees selected the Union as their collective-bargaining repre-
sentative. On September 29, 2000, the Union was certified as
the exclusive collective-bargaining representative of a unit of
employees at the Monroe facility.2

1 The briefs filed by the General Counsel and the Union both state
that the Respondent is a subsidiary of Cargill, but neither provides
record citations that establish that to be the case. The record does con-
tain evidence that suggests the Respondent is a subsidiary of Cargill.
For example, the evidence showed: that the Respondent’s officials
received direction from a Cargill official, that a Cargill official ad-
dressed the Respondent’s employees regarding the union campaign,
that in-house counsel from Cargill conducted negotiations with the
Union about subjects affecting the Monroe facility, and that the Monroe
plant was referred to by management officials as one of the facilities
“within Cargill.”
2 The unit of employees represented by the Union consists of:
All full-time and regular part-time production and maintenance em-
ployees, including stores employees, shipping and receiving em-
ployees, and quality assurance employees, employed by Respondent
B. Deterioration of Business Conditions Affecting
the Monroe Facility
The state of the Monroe facility’s business began to worsen
some months before the union election. Management at the
facility first noticed the decline early in the year 2000, and the
downturn became more pronounced by June of that year. The
Respondent’s sales and backlog of outstanding orders were
decreasing and its inventory of finished product was growing.
The problem of reduced sales was compounded by declines in
the selling price of its product and increases in the cost of raw
materials. Mike Roper, who has worked at the Monroe facility
since it began operating and became its works manager in 1999,
testified without contradiction that the recent downturn was the
bleakest period in the 22-year history of the Monroe facility.
In an effort to improve its financial condition, the Respon-
dent: tried to reduce costs by buying raw materials through
internet bidding; initiated capital projects designed to reduce
operating costs; encouraged customers to take delivery on
product they had already committed to buy; reduced the inven-
tory of spare parts; attempted to raise prices for its products by
performing additional “finishing” work; and reduced its weld-
ing workforce through attrition. In August 2000, the Respon-
dent began to curtail production at the Monroe facility. That
facility had previously functioned 24 hours a day, 7 days a
week, but now the Respondent would at times idle operations in
certain departments.
C. Events Leading up to the Election
David Lewis was vice president for human resources at
Cargill Steel during the union campaign at the Monroe facility.3
Over the course of several days, approximately 1 week before
the election, Lewis conducted a series of a dozen or more meet-
ings with employees at which he discussed the union campaign.
Each employee was required to attend a particular meeting
based on a schedule posted at the Monroe facility. The meet-
ings were held at the Monroe facility and lasted approximately
1 hour. Each meeting was attended by as many as 30 or more
hourly employees as well as by a smaller contingent of man-
agement and supervisory personnel. Lewis gave a presentation
at each meeting that communicated the same general informa-
tion, but varied somewhat in its particulars from meeting to

at its Monroe facility; but excluding all metalographers, department
clerks/plant clerical employees, draftsmen, office clerical employees,
electronics technicians, professional employees, supervisors and
guards as defined in the Act.
3 At the time of trial Lewis had left this position with Cargill for a
job with a company unaffiliated with the Respondent. The General
Counsel argues that I should draw an adverse inference from the Re-
spondent’s failure to call Lewis as a witness at trial. GC Br. 39. How-
ever, such an inference is only proper if it can reasonably be assumed
that Lewis is favorably disposed to the Respondent. See International
Automated Machines, 285 NLRB 1122, 1123 (1987). Since the cir-
cumstances of Lewis’ departure from the position with Cargill were not
explored by either party, I cannot assume that he would be favorably
disposed to the Respondent. Indeed, there was no record evidence
showing that the Respondent even knows how to contact Lewis. Given
those circumstances, I decline to draw any inference based on the Re-
spondent’s failure to present Lewis as a witness.
NORTH STAR STEEL CO. 1383
meeting. Lewis also responded to employee questions and
comments.
At the meetings, Lewis identified himself as the person who
would be the lead contract negotiator for management if the
workforce became unionized. He said that he would consider
himself “a failure” if the Union succeeded in improving things
for Monroe employees to the extent that unionization became
attractive to employees at the Respondent’s remaining union-
free facilities. He would negotiate, he said, “to the point that
[other nonunion facilities] wouldn’t say ‘look at what [Mon-
roe,] Michigan received.’” The Respondent “could not afford,”
he said, “to have the freight train effect roll down to our other
facilities and have these other facilities see monetary wages and
gains here.” (Tr. 423.) During at least one meeting he stated
that he would not allow the Union to “succeed” at the Monroe
facility, and that if employees “were to get the Union in and get
a contract, if you have what you have right now, we would
consider that . . . succeeding and we do not want that to happen
because we’re afraid of the domino effect [on] other nonunion
plants.”4 (Tr. 352.) Lewis said that there was a 22-year rela-
tionship between management and hourly workers at the Mon-
roe facility and that a third party was now trying to interfere
with that relationship. He compared the relationship to a “mar-
riage,” and said that if the employees selected the Union to
represent them, it would be a “bad divorce.”
Lewis discussed two programs that were in place at the Mon-
roe facility: the employee stock ownership program or “ESOP”
and the insurance plan subsidizing medical coverage for retired
employees. During the organizing campaign the Respondent
distributed a communication to employees regarding the stock
program. The communication stated: “If a union were success-
ful in organizing this facility, the [existing] ESOP plan would
become a negotiable benefit. However, no unionized facility
within Cargill has ever been successful in continuing their
ESOP plan through negotiations.” (R. Exh. 33 (emphasis in
original).) A communication issued on September 8, 2000,
prior to the meetings conducted by Lewis, explained that if the

4 The General Counsel alleges that Lewis told employees that, if
they selected the Union as their representative, bargaining would start
at zero. (Complaint par. 14.) This allegation is supported by the testi-
mony of Gregory Kirk, a member of the union bargaining committee,
who stated that Lewis said if the Union prevailed in the election, “we
would start at zero in negotiations and go from there.” None of the
other witnesses for the General Counsel corroborated Kirk’s account or
recounted a similar statement. James Jonasen and Todd Dean, man-
agement officials who were present at the meeting that Kirk attended,
both stated that they did not remember Lewis stating that negotiations
would “start at zero.” Kirk had a credible demeanor although he was
somewhat defensive during cross-examination. However, I found Dean
an equally credible witness based on his demeanor and testimony. In
more than one instance during his testimony, Dean admitted that he did
not recall events alluded to by the Respondent’s counsel even though
positive testimony would have buttressed the Respondent’s position. I
found Jonasen a somewhat less credible witness because his recollec-
tion was imprecise and he was occasionally evasive during cross-
examination. Given the testimony of Dean and Jonasen, and the ab-
sence of testimony corroborating Kirk’s account, I conclude that the
General Counsel has failed to establish that Lewis said negotiations
with the Union would start at zero.
facility became unionized the stock plan would be continued
until a collective-bargaining agreement was ratified and that if
such a plan was not included in the final contract then contribu-
tions to the plans would cease, but employees would “continue
to earn dividends and enjoy the growth of the stock” previously
allocated to their accounts. Questions about the stock plan were
raised at the meetings with Lewis. Lewis, stated that continua-
tion of the stock plan would have to be negotiated if the facility
was unionized, but that the Respondent would bargain very
hard regarding that subject and that no unionized facility within
Cargill had such a plan.5
Regarding medical insurance for retirees, Lewis stated that
Cargill had a plan to eliminate this benefit throughout all its
facilities by 2010 or 2012.6 This phase-out had been an-

5 Cheryl Hoffman, an alleged discriminatee in this case, testified that
Lewis said if the union campaign was successful the stock plan “would
be stopped immediately.” Tr. 368. I do not credit this testimony. It
was not corroborated by any other witness and is contrary to the prior
written communication that the Respondent made to employees assur-
ing them that if the Union won the election the stock plan would remain
in effect until a contract was negotiated. Hoffman’s account is also in
conflict with the testimony of Jonasen who attended every one of the
presentations given by Lewis and testified that Lewis said the stock
plan would be negotiable if the employees unionized, but that no union-
ized plant had such a stock plan. Tr. 922. I did not find Hoffman a
very credible witness based on her demeanor and testimony. She had
been displaced from her position in the Respondent’s scrap yard on two
separate occasions and appeared overanxious to testify unfavorably
about the Respondent’s behavior. In several instances her testimony
was demonstrated to be erroneous. For example, in support of the
General Counsel’s position that yearly wage increases were standard at
the Monroe facility, Hoffman stated that she had been with the Respon-
dent for 15 years and that the Respondent had given a wage increase
every year except 2001—i.e., immediately after the employees became
unionized. Tr. 359, 379. However, the credible evidence showed that
no wage increases had been granted in 1986, 1987, 1988, and 1998.
GC Exh. 38; Tr. 811–812. Hoffman testified that the front-end loaders
were put into operation in the scrap yard approximately 6 or 7 months
prior to the union election, i.e., in February or March 2000. That tim-
ing would tend to undercut the Respondent’s claim that positions in the
yard were eliminated in October due to the change to a new scrap han-
dling system using the front-end loaders, and not because of the union
election. However, the evidence shows that, contrary to Hoffman’s
testimony, the two front-end loaders were not even ordered until April
2000. The first was not delivered to the Respondent until June 2000,
and the second until July or August 2000. The front-end loaders were
not assembled and operational until August 2000.
Willie Hall, a current member of the union bargaining committee,
Tr. 178–179, described Lewis’ presentation and recounted that “[h]e
said we wouldn’t have ESOP, no unionized plant has ESOP.” Tr. 343.
It is not clear from Hall’s testimony whether he was summarizing what
he understood to be the gist of Lewis’ statements, or whether he meant
that Lewis explicitly said that if the facility became unionized the em-
ployees “wouldn’t have ESOP.” To the extent that Hall’s testimony
was that Lewis explicitly stated that the stock plan would be discontin-
ued if the facility became unionized, I do not credit that testimony,
which lacked detail, was not corroborated by other credible testimony,
and was contrary to Jonasen’s testimony that what Lewis said was that
the stock plan would be “negotiable.” Tr. 922.
6 Under the existing program, retired employees could maintain their
health insurance by paying the same premium paid by current hourly
employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1384
nounced several years before the representation election at the
Monroe facility. Lewis said that the Respondent’s management
tried to convince senior Cargill officials, including the chief
financial officer, to continue the retiree health care plan for
hourly employees, but the request had been denied. Lewis said
that “union or no union” this “was an issue that Cargill was
taking a very firm stand on.” (Tr. 921.) He told the employees
at one meeting that “[i]f you think getting a union in here will
get your medical retirement, you’re wrong.” (Tr. 423.) He
indicated that the matter of medical insurance for retirees would
have to be negotiated, but at one meeting stated that if the Un-
ion succeeded in obtaining a continuation of the medical re-
tirement at negotiations he would be considered a failure and
would lose his job. (Tr. 343.)7
Lewis stated that he was proud that there had been no layoffs
at the Monroe facility in the past.8 He explained that the Com-
pany had been able to avoid layoffs at union-free facilities, but
had been forced to lay off employees at unionized facilities,
because the union-free arrangements allowed the Company the
flexibility necessary to keep employees busy during economic
downturns. Lewis asked employees “who here would like to
work 32 hours or get laid off?” (Tr. 353.) “[H]ow do you like
32 hours? We can do that.” (Tr. 345.)9
The General Counsel alleges that after Cheryl Hoffman, who
worked in the Monroe facility’s scrap yard, attended one of the
meetings, Hoffman’s supervisor, Toni Hallam, conducted a
coercive interrogation of Hoffman. No one testified regarding
this subject other than Hoffman and Hallam. Hoffman testified
that she asked Lewis questions during the meeting, and that
Hallam approached her about 30 minutes after the meeting
ended. In Hoffman’s account, Hallam said that Lewis told her

7 Hoffman testified that at the meeting she attended Lewis stated that
the issue of medical insurance for retirees “would not be negotiable.”
Tr. 369. This account was contradicted by Dean. Tr. 714. For the rea-
sons discussed above, I found Hoffman to be an unreliable witness, and
a less reliable one than Dean. Based on the totality of the evidence, I
do not credit her uncorroborated testimony that Lewis explicitly stated
that the Respondent would not negotiate on the issue of medical insur-
ance for retirees.
8 Contrary to Lewis’ statement, the Respondent had laid off employ-
ees at the Monroe facility in the past, and this was brought to Lewis’
attention during at least one of the meetings.
9 In its brief, the Respondent claims that the General Counsel offered
no direct evidence that Lewis threatened employees with reduced hours
or a layoff, but rather relied entirely on the cross-examination of
Jonasen. R. Br. 10. However, the record shows that the General Coun-
sel introduced the direct testimony of both Mike Carmody and Willie
R. Hall regarding these alleged threats. Tr. 345, 353. This is not the
only instance where the Respondent’s brief misstates the record to its
advantage. For example, the Respondent states that the General Coun-
sel is asking that I find that Lewis said that the Respondent would not
bargain about the stock plan and medical insurance for retirees based
on “no evidence” but only the “vague testimony of Castiglione.” R. Br.
5. However, the Record shows that at least two witnesses other than
Castiglione gave testimony to support the allegation that Lewis said the
Respondent would not bargain about the stock plan or medical retire-
ment for retirees. See Tr. 342–343, 368–369. I assume these misstate-
ments were the result of oversight. Regardless of the cause of the mis-
statements, they create unnecessary confusion and do a disservice to the
adjudicative process.
that Hoffman had a lot of “issues.” According to Hoffman,
Hallam proceeded to: state that she assumed Hoffman was a
“yes” vote; demand to examine Hoffman’s hard hat for union
stickers (there were none); and tell Hoffman to “think long and
hard before [she] voted.” In contrast, Hallam testified that
Lewis has never come to talk to her about anything Hoffman
said, and that she had never told Hoffman that Lewis had talked
about her. Hallam testified that she did not say that she as-
sumed Hoffman was a “yes” vote, did not look at Hoffman’s
hard hat to see if there were union stickers on it, and did not
question Hallam about her union sympathies or discuss the
Union with her. As discussed above, I did not find Hoffman a
particularly reliable witness based on her demeanor and her
testimony, which was in some respects contradicted by the
documentary evidence. Her account of the conversation was
uncorroborated by any evidence that she discussed the interro-
gation with others or took any action based on it at the time.
Moreover, I find her account somewhat implausible. Mike
Carmody, Dominick Castiglione, Willie Hall, and Gregory Kirk
all asked Lewis questions during his presentations, but, while
all of them were called as witnesses by the General Counsel,
none reported being harassed, interrogated, or even approached
by the Respondent about those questions. I see no reason why
the Respondent’s antiunion response to employees who asked
questions at the meetings would be reserved for Hoffman.
Similarly, no other witness reported that Hallam engaged in
antiunion behavior of any kind. It is, moreover, difficult to
understand why Hallam would demand to see Hoffman’s hard
hat given that she would undoubtedly have had the opportunity
to view it when Hoffman was working. Even the timing al-
leged by Hoffman is improbable. She stated that Hallam ap-
proached her about 30 minutes after the meeting. That would
mean that, within about 30 minutes after concluding the meet-
ing, Lewis determined who Hoffman’s supervisor was, located
Hallam (who was not present at the meeting Hoffman at-
tended), and discussed Hoffman’s behavior with Hallam, who
decided to talk to Hoffman and then located her in order to do
so. Hallam’s testimony denying the interrogation was not
shown to be inconsistent or contrary to other credible evidence.
Although Hallam appeared somewhat evasive during cross-
examination,10 I conclude that Hallam’s denials regarding the
alleged interrogation were at least as credible as Hoffman’s
allegations. I find that the General Counsel has failed to estab-
lish that the alleged unlawful interrogation took place.
D. Reductions in Hours and Work force Subsequent
to Union Election
In October 2000, shortly after the union election, the Re-
spondent curtailed production at the Monroe facility. Whereas
the facility had previously operated based on a schedule of 21
“turns”—i.e., 21 shifts per week—it reduced this to a schedule
of 15 turns. This essentially cut its operations from 7 days a
week, three shifts a day, to 5 days a week, three shifts a day.
To operate on a 21-turn schedule the Respondent required four
crews. The 15-turn schedule only required three crews, but

10 For example, on the subject of whether she told employees in the
scrap yard that their jobs were secure despite the new scrap handling
system. Tr. 983–984.
NORTH STAR STEEL CO. 1385
after switching to a 15-turn schedule the Respondent initially
retained the fourth crew to perform “utility” work such as
housekeeping, painting, and filling in for absent employees.
Before reducing the production schedule to 15 turns, the Re-
spondent did not give the Union notice or an opportunity to
bargain over the change. The Respondent had reduced the
number of turns before in 1986.
On October 17, 2000, the Respondent posted a memorandum
informing employees that as of October 23 it would reduce
their work schedule from 40 hours per week to 32 hours per
week. A similar reduction in hours had been implemented in
response to financial difficulties in 1985 or 1986. Prior to an-
nouncing the 32-hour schedule to employees, the Respondent
did not notify the Union or give it a chance to bargain. How-
ever, in a letter dated October 18, 2000, the Respondent in-
formed the Union of its intention. On October 18, the Union
filed an unfair labor practice charge with the Board regarding
the 32-hour schedule. After the charge was filed, the Respon-
dent postponed implementation of the 32-hour schedule. The
first of a series of meetings regarding the 32-hour schedule took
place on October 26, 2000. Attending for the Respondent were
Mark Kruger (an attorney with Cargill acting on behalf of the
Respondent), Todd Dean (human resources manager for the
Monroe facility), and Jodi Klecker (human resources represen-
tative). Attending for the Union were Gregory Drudi (a union
servicing representative assigned to the Respondent) and David
Drouillard (president of the local). At this meeting, the Re-
spondent, inter alia, informed the Union that the 32-hour
workweek had not been implemented.
A second meeting regarding the reduction in hours was held
on November 1, 2000. Present at the meeting on behalf of the
Respondent were Kruger, Dean, and Roper. Attending for the
Union were Drudi, Drouillard, Dominick Castiglione, and Kim
Geronim. Castiglione was a receiver attendant in the Respon-
dent’s purchasing department who, on October 29, had been
elected plant chairperson for the Union. Geronim was with the
Union’s research department and apparently attended for pur-
poses of evaluating the Respondent’s claims about its financial
condition. Roper started the meeting by making a presentation
regarding the state of the Respondent’s business. He distrib-
uted a packet of materials that indicated, inter alia, that future
orders already placed with the Monroe facility were “extremely
low” and “a cause for great concern.” (Tr. 580.) The materials
stated that “prices are falling as our competitors struggle for
volume. RTI and CSC are effectively bankrupt along with
Qualitech and therefore they need cash.” (R. Exh. 18.) Book-
ings for new orders were described as “looking bleek [sic].” Id.
Drudi responded to Roper’s representations about the state of
the Monroe facility’s business by suggesting that the Respon-
dent’s desire to reduce the work hours of employees was linked
to the successful union organizing drive. Castiglione ques-
tioned why the Respondent was reacting to the current down-
turn by cutting work hours, whereas in the past it had first taken
other cost reducing measures. Roper responded that the Re-
spondent was, in fact, taking other steps to cut spending in an
effort to avoid reducing employees’ work hours. Dean com-
mented that other facilities operated by the Respondent might
also be having labor reductions in the near future due to the
downturn in the steel industry. The parties discussed ways of
implementing the 32-hour schedule and also alternatives in-
cluding voluntary layoffs, rolling layoffs, and shutting down
the facility for 1 or 2 weeks at the end of the year. Dean stated
that the Respondent had selected the 32-hour schedule because
that option would permit the facility to quickly respond to
changes in business conditions.
The same participants, with the exception of Geronim, par-
ticipated in a third meeting on the same subject 7 days later on
November 8. Drudi expressed concern about the possibility
that bargaining unit employees were being asked to agree to
reduced hours, while management was outsourcing some of the
work those employees had been doing. He asked whether
“there was any work leaving or being outsourced from Mon-
roe”? Roper responded that the Monroe facility was not con-
tracting out any more work than it usually did. According to
Drudi, the parties “negotiated back and forth,” (Tr. 38), and
these efforts resulted in an agreement regarding the 32-hour
work schedule. Under this agreement, the Union accepted the
reduced work schedule, and the Respondent agreed to delay
implementation of that schedule for several weeks and to pay
employees based on a 40-hour workweek for vacation taken
while the 32-hour schedule was in effect.11 The Union with-
drew the unfair labor practice charge it had filed over the 32-
hour schedule. On November 26, 2000, the Respondent im-
plemented the 32-hour schedule. The Union’s written commu-
nication announcing the agreement to its members stated that
“research was conducted regarding the steel industry,” and that
the Respondent had provided “comprehensive data surrounding
the current business conditions which included shipments, net
income, projected cycle forecasts, current and projected pro-
duction schedules, booking reports, inventory and order back-
logs, and general business conditions.” (GC Exh. 10.)
On December 6, 2000, the Respondent met with the Union
and announced that it planned to layoff employees. Attending
the meeting on behalf of the Respondent were Kruger, Dean,
Klecker, and Roper. Present for the Union were Drudi, Drouil-
lard, and the union bargaining committee—Castiglione, John
Carmody, Gregory Kirk, Christopher Mozingo, and Gary
(Jumbo) Smith. Roper stated that the facility’s business had
deteriorated further since the last meeting. Smith’s notes of the
meeting show that Roper said the Company might be in the
“red” for December. (R. Exh. 41 at p. 1.) This was the first
time the Respondent informed the Union that it intended to lay
off employees, but Dean had known since at least October 9,
2000, that Lewis was ordering the Monroe facility to reduce its

11 Drudi testified that the agreement was conditioned on the Respon-
dent’s commitment that no work was leaving the Monroe facility, (Tr.
38), a claim that is denied by Kruger, the only official present for the
Respondent at the time the agreement was reached, Tr. 1004–1005. I
find Kruger’s testimony more credible than Drudi’s on this subject
based on the available documentary evidence. Neither the written
description of the agreement that the Union circulated to its members,
GC Exh. 10, nor the Union’s letter to the Board withdrawing the charge
and outlining the agreement’s terms, GC Exh. 11, makes any mention
of the Respondent having agreed not to outsource any work. In addi-
tion, Drudi’s own notes regarding the agreement do not mention that it
was conditioned on the Respondent not outsourcing work. Tr. 130.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1386
workforce. The December 6 meeting focused on the mechanics
of the layoff, rather than on whether or not the layoff would
occur. Kruger stated that the Respondent was pressed for time
because “[b]usiness was really going south in a hurry,” (Tr.
1010), and intended to use the preexisting layoff procedures in
the employee handbook (the handbook) to implement the lay-
off. Under those procedures, employees would be selected for
layoff based on their sequential seniority—i.e., the date those
employees started in the particular promotional series of jobs in
which they were working.12 Drudi confirmed with Kruger that
under that policy some employees with a great deal of plant-
wide seniority could be laid off, while employees who had been
at the Monroe facility a shorter time could be retained. Drudi
took the position that layoff based on sequential seniority was
unfair, and that the Union wanted to negotiate a new layoff
procedure that would base layoff decisions on employees’ over-
all seniority at the Monroe facility. Drudi suggested that the
parties negotiate a layoff policy that would be, or looked like it
could be, part of the labor contract.13 He stated that the Union
was willing to accept the layoff policy in place at the Respon-
dent’s facility in St. Paul, Minnesota. Kruger stated that the
Respondent’s intent was to use the policy in the handbook, but
that it would “look at other options” expressed by the Union
committee and resolve how best to implement the layoff. (R.
Exh. 41, pp. 8–9; Tr. 940–947.) He stated that representatives
of the Respondent would meet with representatives of the Un-
ion in order to help the Company “tweak” the policy in the
manual, but was not willing to negotiate what language would
be included in the contract in advance of the upcoming contract
negotiation sessions.14 Drudi rejected this invitation, and took

12 A sequence is a series of jobs within a department. Employees en-
ter the sequence at the “bottom” and as they gain experience they can
move into more highly skilled and paid positions within the same se-
quence.
13 In its brief the Respondent contends that Drudi refused to negoti-
ate about the procedures to be used to implement the January layoff
unless those negotiations were for a new procedure that would be part
of the labor contract. The Respondent contends that by trying to force
it to negotiate the contract on a “piecemeal” basis the Union was im-
posing an improper condition on negotiations over the January layoff.
(R. Br. 70–71.) However, even under Kruger’s account, Drudi ex-
pressed a willingness to negotiate language that “look[ed] like” contract
language, and, I find, was not insisting that the language actually had to
be included in the labor contract. (Tr. 1012.)
14 Drudi claims that at the meeting Kruger announced: “It’s our in-
tention to follow the handbook. We’re not interested in negotiating. . . .
What [we] will offer the Union is afford you the opportunity to create a
little subcommittee to sit down with the Company and ensure that the
handbook was being followed.” Tr. 51–52. This account is contra-
dicted by the testimony of Kruger and other management witnesses and
I do not credit it. Drudi was an evasive and unnecessarily contentious
witness during cross-examination by the Respondent’s attorney and I
believe he was biased and unreliable regarding most disputed matters.
As discussed earlier, Drudi’s assertion that the Respondent’s agreement
not to outsource work was a condition of the agreement reached regard-
ing the 32-hour schedule was contrary to the documentary evidence and
unworthy of credence. See supra, fn.11. His account of Kruger’s blan-
ket refusal to negotiate does not ring true, and is belied by the meeting
notes of Smith, a union committee member, which report that Kruger
said the Respondent’s “[i]ntent is to go by the handbook, but to look at
the position that the Union wanted to negotiate a new policy
based on plantwide seniority, but would not meet with the Re-
spondent to “tweak” the existing policy. The Union, he stated,
had not had a voice in the creation of the handbook layoff pol-
icy based on sequential seniority and did not want to take any
of the “heat” for layoff decisions based on that policy. He told
Kruger that the layoff was the Respondent’s “baby” and the
Union wanted nothing to do with it.
One or more of the union representatives present at the meet-
ing suggested that some jobs could be saved by having bargain-
ing unit employees do certain work—e.g., cutting scrap, clean-
ing rake beds, housekeeping—that was being performed by
outside contractors. Kruger responded that the Respondent was
willing to consider transferring work from contractors to its
own employees.
After the December 6 meeting, Kruger and Drudi exchanged
letters in which each blamed the other for refusing to bargain
over the layoff procedures. (GC Exhs. 14 and 15.) Kruger’s
letter, dated December 8, stated that given the Union’s refusal
to bargain, the Respondent would follow the layoff procedures
in the handbook. Drudi’s December 19 response to Kruger,
stated that the Union was again requesting to bargain regarding
“the structure of the layoff and the procedures to be followed.”
On about December 11, 2000, Dean gave Castiglione a ver-
sion of the “layoff packet” that the Respondent intended to
distribute to inform employees of their selection for layoff and
of the applicable procedures. Castiglione reviewed the materi-
als, and told Dean that an aspect of the recall procedure was
contrary to the procedures described in the handbook. Dean
considered the objection and changed the offending provision
after concluding that Castiglione was correct. Castiglione was
notified of the change by letter. Castiglione subsequently told
Dean that he wanted to negotiate the matter, but Dean stated
that he had already changed the packet in response to Castig-
lione’s concern. Shortly after December 12, 2000, the Respon-
dent distributed the layoff packet, as modified based on Castig-
lione’s concern, to affected employees.
At trial, Castiglione described six other ways in which he
claimed the layoff procedures in the packet were contrary to the
handbook. (Tr. 309–314, 318–319.) Dean testified regarding
each of the instances raised by Castiglione, and contended that
in none of the cases were the procedures in the packet inconsis-
tent with the handbook. (Tr. 768–783.) My review of the
points raised by Castiglione revealed that the inconsistencies
are quite technical and involve disputes over how matters were
handled in an earlier layoff, and hairsplitting about the proper
interpretation of language in the layoff packet and the hand-
book, as well as of the handbook’s silence on certain matters.
Dean testified credibly that the procedures in the layoff packet
regarding reclassification of employees, bonuses, and insurance
coverage, were consistent with the way a prior layoff had been
conducted. Other challenged provisions in the layoff packet
did not contradict the handbook in any way, but rather filled
minor interstices in the handbook’s procedures. For example,
the handbook did not state how much time recalled employees

other options expressed by [the union] committee,” R. Exh. 41 at p. 9,
and “resolve” how “best . . . to do it.” Id. at p. 8.
NORTH STAR STEEL CO. 1387
would have to respond to the recall offer and the layoff packet
defined a time period. At any rate, no bargaining unit members
were identified who were shown to have been impacted in a
significant way by a difference between the procedures in the
layoff packet and those in the handbook. The inconsistencies
identified by Castiglione at trial, to the extent that any of them
are inconsistencies at all and were not remedied before the
layoff packet was distributed to employees, are insubstantial.
On January 4, 2001, 3 days before the layoff was scheduled
to be implemented, a meeting was held between the Respon-
dent and the Union. Attendees included Kruger, Drudi, and the
entire union bargaining committee. Al Sufka, the Cargill attor-
ney who would be representing the Respondent in the negotia-
tions for the labor contract was also present and was introduced
to the union officials for the first time. Roper discussed the
state of the Respondent’s business, which he said continued to
be bleak. Drudi asked if the layoff had been implemented yet,
and when he was told that it had not been, he said he wanted to
discuss the seniority issues relating to the layoff. Kruger took
the position that the Union had been given an opportunity to
discuss the procedures in December and had not been willing to
do so, but that the Respondent was still willing to meet. The
parties discussed recalling employees based on plant-wide sen-
iority in order to let some of the long-time employees who had
been laid off return sooner. The Respondent indicated that, in
its view, such an effort would make sense only if the layoff
turned out to be lengthy since such a recall would disrupt job
sequences and require additional training. The parties agreed to
consider recalling senior employees at a future meeting.
The layoff took effect on January 7, 2001, and approximately
66 employees were selected for it. Once the layoff was imple-
mented, most, if not all, of the remaining employees, returned
to a 40-hour a week schedule.
E. Work Performed by Outside Contractors and at
Other Facilities after the Union Election
Testimony and other evidence was presented at trial regard-
ing work that the Respondent could have assigned to its own
employees, but which the Respondent instead paid outside
contractors to perform. One of these tasks was referred to as
the “stacking of squares.” Squares are bars of steel that are
fastened into bundles as part of the production process. The
configuration of these bundles is unacceptable to one of the
Respondent’s clients. “Stacking of squares” refers to the proc-
ess of opening up those bundles and reconfiguring the squares
into a new bundle built according to the specifications of that
client. Some of the squares are stacked by employees of the
Respondent, usually by the six inspectors in the Respondent’s
shipping department, and some of the squares are stacked by
outside contractors. Square stacking represents roughly 25
percent of all the work done by the shipping department inspec-
tors. The Respondent began stacking squares in July 1998, and
has done so for each “rolling,” i.e., production cycle, since
then. The percentage of the square stacking work done by out-
side contractors, rather than by the six inspectors, has varied
since July 1998. Initially the Respondent’s own employees
stacked all the squares, but beginning in April 1999 a signifi-
cant percentage was usually sent to outside contractors. For the
five rolling that occurred between April 1999 and June 2000
the percentage of stacking done by outside contractors ranged
from 17 to 40 percent with the exception of one unusually
small-scale rolling in November 1999, which was stacked en-
tirely by the Respondent’s employees. The first rolling after
the union election was in November 2000, and those squares
were stacked in November and December. In that instance the
Respondent had 60.6 percent of the squares stacked by outside
contractors. This was the first and only time that the Respon-
dent’s employees did not stack a majority of the squares.
Officials of the Respondent have offered at least two expla-
nations for the increase in the percentage of squares being sent
out for stacking. Roper, the works manager, testified that he
was told that the shipping department sent out a greater propor-
tion of squares for stacking in November in order to reduce
overtime and make sure that the product was ready for ship-
ping.15 On the other hand, Harry Collum, an inspector in the
shipping department, testified credibly that he was told by a
supervisor involved with the assignment of the square stacking
work that the percentage of squares sent out had been increased
due to the Respondent’s concerns about safety hazards associ-
ated with opening the bundles of squares. However, Collum
testified that the Respondent’s employees routinely opened
bundles of squares for reasons unrelated to the square stacking
work.
Another type of work that the Respondent has used both its
own employees and outside contractors to perform is the re-
moval of steel “scale” that accumulates under the “rake bed”
where steel bars are cooled in the caster department after pro-
duction. Prior to the beginning of 2001, employees in the Re-
spondent’s caster department would clean under the rake bed
once a week, a job that required 8 to 10 hours to complete. The
employees collected the scale using shovels and wheelbarrows
and then dumped the scale into a hopper. Since April 1999, the
Respondent has had a contract with Hydro Technologies Incor-
porated (Hydro Tech) under which Hydro Tech performs clean-
ing and disposal work. The contemporaneous “daily reports of
labor” that Hydro Tech uses to bill the Respondent show that
Hydro Tech employees cleaned under the rake bed in the caster
department on February 2 and 9, 2000, and August 17, 2000.
Hydro Tech’s president, Morris Partridge, who is present at the
Monroe facility most workdays, testified that his company has
cleaned under the caster department rake bed on more than
those three occasions and does so “fairly often,” but he was
unable to be more specific, and no daily reports of labor were
offered for other days. When Hydro Tech employees cleaned
under the rake bed they used a vacuum truck that belonged to
Hydro Tech, in addition to shovels and wheelbarrows.
One caster department employee, Gerald Duvall, testified
that he did not observe the Hydro Tech employees cleaning the

15 Roper testified that after discovering the November increase in the
percentage of squares being sent to outside contractors for stacking, he
directed the responsible official in the shipping department never to
allow the percentage of work sent out of the plant to exceed the levels
from before the union campaign and election. Roper also informed the
Union that he had given this directive. As of the time of trial, the per-
centage of squares being sent to outside contractors for stacking had not
exceeded the preelection levels again.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1388
caster department rake bed until January 2001 and that from
then, until mid-May 2001, he was not called upon to clean the
rake bed. The suggestion is that the Respondent reassigned the
work from its own caster department employees to the employ-
ees of the outside contractor. I do not believe that Duvall’s
testimony establishes that this is the case. The evidence did not
show that Duvall had the opportunity to observe who cleaned
the rake bed on shifts other than his own. Indeed, although
Hydro Tech employees had been cleaning under the caster de-
partment rake bed at least occasionally since early in the year
2000, Duvall apparently did not observe them doing so until
January 2001. He stated that he did not clean under the rake
bed from January until May 2001, but his testimony does not
establish that the Respondent’s employees were not doing this
work on shifts other than his own. In other words, Duvall’s
testimony does not establish that the Hydro Tech employees
began cleaning the rake bed in the caster department more fre-
quently in 2001, or that the Respondent’s employees, with the
exception of Duvall, were doing so less frequently. The record
does not include “daily reports of labor” or other documentary
evidence showing that Hydro Tech employees were cleaning
the caster department rake bed any more often in 2001 than
they had before the union election. I find that the record does
not provide a sufficient basis in fact to support the allegation
that the Respondent increased the outsourcing of rake bed
cleaning following the union election.
Hydro Tech employees also empty the dumpsters outside the
storeroom twice a month. The Respondent’s employees in the
storeroom are responsible for gathering materials outside the
storeroom that need to be placed in dumpsters. During recent
periods when the storeroom has been short of personnel, em-
ployees there have had little time to devote to cleaning work
around the storeroom. Castiglione, who is a storeroom depart-
ment employee in addition to being plant chairperson for the
Union, testified that he did not notice Hydro Tech employees
doing clean-up work around the outside of the storeroom until
after the Respondent laid off a number of its own employees on
January 7, 2001. However, the fact that Castiglione did not
notice Hydro Tech employees doing this work prior to that time
does not establish that such activity was not taking place. The
evidence does not establish that Castiglione had the opportunity
to observe every activity, or even most activities, that took
place around the outside of the storeroom during his shift, let
alone during other shifts. Given that the Hydro Tech employ-
ees emptied the dumpsters only twice a month, it would not be
at all surprising that Castiglione would fail to notice such activ-
ity until motivated by the layoff to become particularly vigilant.
Similarly, Kirk, a member of the union bargaining committee,
stated that he first noticed employees of Hydro Tech perform-
ing clean-up work around the shipping department approxi-
mately 2–3 weeks after the January 7 layoff. Here too, the
record does not persuade me that Kirk had the opportunity or
the motivation to notice all, or most, such activity by Hydro
Tech employees prior to the January 7 layoff. No “daily re-
ports of labor” or other documents were introduced to show a
change in the work being performed by Hydro Tech employees.
Based on the evidence it is certainly possible that after the
union election the Respondent began to use Hydro Tech em-
ployees to perform general labor housekeeping work previously
performed by the Respondent’s own employees. However, the
evidence presented does not establish that the Respondent did
do that. I find that the record does not provide a sufficient basis
in fact for the allegations based on Hydro Tech’s performance
of general labor and housekeeping work.
F. Elimination of Positions in the Scrap Yard
Prior to August 2000, the Respondent had moved the steel in
its scrap yard using two cranes and a locomotive that pulled
freight cars along tracks. On each of the four shifts there were
three employees working in the yard—one to operate the loco-
motive and two to operate the yard cranes. In a May 1999
memorandum, the Respondent informed employees that it was
examining new systems for its scrap yard operation, and that its
objectives included eliminating the high-maintenance scrap
crane, reducing the number of times the scrap had to be han-
dled, and reducing manpower by four persons. The memoran-
dum stated, however, that the consideration of new scrap han-
dling systems was only in the “feasibility stage” and that the
Respondent would “publish and communicate the results of this
review as they develop, well before any decisions would be
made which affected the total number of individuals in the Melt
Shop.”
In April 2000, Roper ordered two front-end loaders for a new
scrap handling system that would replace the yard
crane/locomotive system. The first of the front-end loaders was
delivered in June 2000 and the second in either July or August
2000. Using the new system, the Respondent was able to func-
tion with only two persons per shift at the scrap yard since there
were only two front-end loaders and each required one person
to operate it.16 The front-end loader system began operating in
August 2000, but the third person was initially retained on three
of the shifts to help relocate scrap within the yard to suit the
new system. Previously, when one of the scrap yard employees
transferred to another assignment in late 1999 or early 2000, the
Respondent had not replaced him, which meant that there were
only two employees on one of the four shifts.
At some point during the scrap yard transition period Toni
Hallam, who was then the supervisor with authority over the
scrap yard, spoke with one or more of the scrap yard workers
regarding rumors that their positions in the yard were not se-
cure because of the change to the new scrap handling system.
Hallam stated that all they had to go on was past precedent and
that past precedent was that the Respondent would only elimi-
nate jobs through attrition. Subsequently, in October, Hallam
was informed by Barbara Nocella, the superintendent of the
Monroe facility’s melt shop, that three positions were going to
be eliminated in the scrap yard. On October 18, 2000, Nocella
and Hallam met with the three yard employees with the least
sequential seniority—Hoffman, Troy Daniels, and Scott Lam-
brix—and informed them that they were being displaced from
the yard. Nocella gave each a written “notification of dis-
placement” and explained that the action was the result of the

16 In addition to the front-end loaders, there is also a small mobile
crane that is used to pick up scrap that has fallen on the scrap yard
roadways, but that work takes only 15–30 minutes per shift.
NORTH STAR STEEL CO. 1389
downturn in the Respondent’s business and the new, more effi-
cient, scrap handling system. Hoffman said “I thought you said
our jobs were secure,” and Hallam responded that “things have
changed.” Nocella told the three displaced employees that they
would be in the “labor pool,” which meant they would be as-
signed wherever they were needed within the Monroe facility.17
Prior to implementing the changes discussed at the meeting, the
Respondent did not give the Union notice or an opportunity to
bargain.
G. No Wage Increase Granted in 2001
In most years, employees at the Monroe facility received a
wage increase at the beginning of the calendar year. However,
the Respondent sometimes refrained from giving wage in-
creases based on market conditions. For example, no wage
increases were given in 1983, 1984, 1986, 1987, 1988, and
1998.18 In the year 2001, the first year after the successful
union drive, the Respondent did not grant its employees a wage
increase.
When Todd Dean was asked why the Respondent did not
provide a wage increase to employees in 2001, his first re-
sponse was “[i]t was my understanding and the Company’s
understanding at the time nothing changes including current
wages and benefits.” (Tr. 812.) In the context of the record as
a whole, I find that Dean was referring to advice management
gave to officials at the Monroe facility that after the union elec-
tion “whatever rules, policies, procedures, that we had under-
taken in the past, dealing with the workforce, supervision and
management of the work force, those were where we were lim-
ited to in the future, until we moved forward with this [collec-
tive bargaining] process.” (Tr. 568.) When the Respondent’s
counsel pressed Dean for “all” the reasons why a wage increase
was not given in 2001, Dean gave other explanations, including
poor business conditions and the fact that employees at the
Monroe facility were already paid as well as employees at its
biggest competitor and the Respondent’s other facilities. Dean

17 Hallam and Hoffman subsequently had a meeting in Hallam’s of-
fice regarding the December 2000 performance appraisal that Hallam
completed for Hoffman. During the meeting Hoffman asked why she
was not working in the scrap yard anymore. Hallam testified that she
told Hoffman that the Respondent’s business was slow and that changes
in the scrap handling system meant that fewer employees were needed
in the yard. However, Hoffman testified that Hallam said things have
changed “since September 21,” i.e., since the date of the union election.
Hallam testified that she did not recall saying that and did not recall
Hoffman bringing up the date. For reasons discussed above, Hoffman
was a somewhat unreliable witness and I do not credit her testimony
that Hallam made reference to September 21 to explain Hoffman’s
displacement from the yard. When Hallam was confronted with her
previous reassuring statements regarding yard employees’ job security,
she responded, “things have changed,” but I credit her testimony that
she made no reference to September 21 and that she meant that “manu-
facturing had slowed down, our economy, our orders, our backlog was
severely decreased and that that dictated doing what we were going to
do.” Tr. 978–979. This is consistent with the available evidence re-
garding the state of the Respondent’s business.
18 In 1998, the Respondent gave employees at the Monroe facility a
one-time bonus, but not a wage increase. I do not consider a bonus,
which does not affect compensation on a continuing basis, to be the
same as a wage increase.
stated that employees at some of the Respondent’s other facili-
ties did not receive a wage increase in 2001.19
H. Meeting Between Lafayette and Castiglione
On January 17, 2001, an incident occurred between Castig-
lione and a storeroom coworker named Joyce Collins. Appar-
ently Castiglione, whose duties including picking up the Re-
spondent’s mail from the post office, had read and photocopied
a “controlled” document that was addressed to Collins. The
document described certain quality standards and was being
recalled because it was obsolete. Castiglione brought a copy of
the document to Collins and told her that she had to inform him
of any changes in operating procedures. She responded that it
was not a change, that Castiglione should not have looked at
mail addressed to her, and that he should not have copied the
document because it was “controlled.” The exchange became
heated, and afterwards Collins complained about Castiglione’s
behavior to Kathy Lafayette, the Respondent’s purchasing
manager and the official who supervised both Collins and Cas-
tiglione.
Later that day, Lafayette called Castiglione to a meeting in
the “front office.” Although other management officials were
initially present, they exited shortly after Castiglione arrived,
and the meeting proceeded with only Lafayette and Castiglione
present. Lafayette told Castiglione that that he had been “out of
line” making a copy of the controlled document and in his ac-
tions towards Collins. She raised the subject of Castiglione’s
new position as plant chairperson for the Union and stated that
she could see he was under a lot of stress and knew that a lot of
people were now coming to him with their problems and look-
ing to him as a leader. She compared this to the stress she her-
self had felt upon becoming a supervisor. Lafayette stated that
she had noticed people coming in to talk to Castiglione and
although she “didn’t care what they were talking about” she
knew that this was “all part of his new position.”20 Castiglione
asked Lafayette, “are you trying to tell me I can’t talk about the
union?,” to which Lafayette responded, “[t]hat’s not what I’m
trying to say.” In fact, Castiglione testified that management
had encouraged employees to discuss workplace issues with
him. Lafayette also brought up Castiglione’s “attitude,” which
she characterized as having become “cocky” and confronta-
tional. Castiglione responded that he saw himself as a “marked
man” who had to “watch his back” because of his position with
the Union. After the meeting, Castiglione told Dean that it had

19 Hoffman testified that Roper held a meeting with a “ bunch” of
hourly employees four or five months before the union vote, at which
Roper stated that employees would receive a 3-percent wage increase in
2001. Roper denies making such an announcement in 2000 regarding a
wage increase in 2001, although he remembers making an announce-
ment in December 1999 about an increase in 2000. No other witness
corroborated Hoffman’s testimony that Roper made such a statement in
2000, and Hoffman was unable to name a single one of the “bunch” of
other employees who she says were present. Tr. 379–380, 391. I do
not credit Hoffman’s testimony that Roper told employees that they
would receive a wage increase in 2001.
20 Lafayette’s office was in the same storeroom where Castiglione
worked, but she did not have a view of his workstation from her office.
She could, however, observe his activities when she walked through the
storeroom.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1390
gone well and cleared the air.21 Lafayette believed the meeting
ended “well.” The meeting did not result in any discipline for
Castiglione and nothing was put in his personnel file about the
incident.
I. Transfer of Production from the Monroe Facility to the
Respondent’s St. Paul Facility
At a meeting between the Union and the Respondent on Feb-
ruary 13, 2001, Roper made representations about the negative
effect that reductions in the “tonnage” being produced at the
Monroe facility were having on the facility’s fixed and/or ex-
cess costs. Christopher Mozingo, a member of the bargaining
committee, asked Roper why, if that was the case, were “some
of our tons” being “sent” to the Respondent’s St. Paul, Minne-
sota, facility. Mozingo had seen an electronic mail message
that was sent to Roper and others by the Respondent’s sales
department and which stated that certain steel that the Monroe
facility had been producing or was slated to produce would
instead be produced by the St. Paul facility. In response to
Mozingo’s question, Roper stated that the Respondent was no
longer interested in having the Monroe facility produce the
lower grades of steel that Mozingo was referring to, and wanted
to concentrate instead on the higher grades of steel products.
At trial, Roper discussed a report, apparently prepared for
trial, which he said showed that no production had been shifted
from the Monroe facility to the St. Paul facility. (R. Exh. 1.)
Roper conceded that production had increased at the St. Paul
facility during the relevant timeframe, but stated that the pro-
duction report shows that no decrease in production of a par-
ticular type of steel at the Monroe facility was matched by an
increase in production of the same type of steel at the St. Paul
facility during the period from 1999 to 2001. Roper testified
that as works manager he would have known about any diver-
sion of steel production from the Monroe facility to another
facility. (Tr. 666–667.) He said that he had not read anything
that suggested that work was being transferred from the Mon-
roe facility to the St. Paul facility (Tr. 653), and that he per-
formed an investigation of the matter that yielded no evidence
of such a transfer (Tr. 644–645). In apparently contradictory
testimony, however, Roper stated that he was aware of an elec-
tronic mail from the sales department that stated work was
being transferred from the Monroe to the St. Paul facility, al-
though he said that was merely a “forecast.” (Tr. 653–654.)
He testified that after the preparation of the report on produc-
tion he became aware that 175 tons of steel that was originally
destined for production by the Monroe facility had, in fact,
been transferred to the St. Paul facility in December 2000. (Tr.
665.)22 Roper stated that he had no idea why this transfer of
work occurred.

21 When Castiglione was asked at trial whether he told Dean the
meeting with Lafayette “went well” and “cleared the air” regarding
some issues, Castiglione responded, “I may have said that along with
some additional things which I know I said additional.” Tr. 297. I
believe that this was a somewhat evasive response, but one that effec-
tively conceded that Castiglione told Dean the meeting had gone well
and had cleared the air regarding some issues.
22 Roper testified that at the February 13, 2001 meeting with the Un-
ion he responded to a question by stating that no steel production was
Roper’s testimony on the subject of the alleged transfer of
work from the Monroe facility to the St. Paul facility was al-
most incoherent and I found it less than fully credible. As
noted above, Roper contradicted himself regarding his knowl-
edge of a document discussing the transfer of some work, and
he could offer no explanation at all for why such a transfer had
occurred. The Respondent argues that the decision to transfer
the work was made by the sales department in Edina, Minne-
sota, and that the Monroe facility was not “privy” to it, Re-
spondent’s Brief at 97, but Roper himself stated that as works
manager he would have known about any diversion of steel
production. (Tr. 666–667.) Moreover, his claim that he did not
know about the diversion when Mozingo raised it on February
13 is suspect given that the electronic message Mozingo saw
was addressed to Roper among others, and also given that
Roper responded to Mozingo’s query by essentially defending,
rather than denying, the transfer of production of lower grade
steels. I find that Roper was aware of the transfer of steel pro-
duction to the St. Paul facility at the time of the February 13
meeting when Mozingo asked about it.
Although the problems with Roper’s testimony about the al-
leged transfer of steel work raise some questions, I find no
basis on the record for concluding that the transfer involved
more than the 175 tons discussed above, or for rejecting the
figures in the production report which indicate that 175 tons
was a small fraction of the Monroe facility’s output.23 Mozingo
did not testify that the electronic mail message he read indi-
cated that a larger amount of production was being shifted and
none of the parties introduced other evidence of a larger trans-
fer.
J. Information Requests
The Union has requested various types of information from
the Respondent since becoming the collective-bargaining repre-
sentative of employees at the Monroe facility. The Union made
its first, and most extensive, request in a letter dated October
24, 2000. The request listed 13 items, and the Union states that
the Respondent did not provide adequate information regarding
items 4 through 7, and 13. Those five items are as follows:
(4) Income statements for the last three (3) full years;
(5) General and administrative expenses, including de-
tails on management salaries and benefits;

being transferred to the St. Paul facility from the Monroe facility, but
that his answer had since changed because he discovered that, in De-
cember, 175 tons of production had been transferred to St. Paul. Tr.
642–643, 665. Roper did not explicitly state the year that the transfer
took place. However, considering his reference to “December” in
context of his other testimony, I conclude that he was referring to De-
cember 2000.
23 For example, the Respondent’s Report indicates that in December
2000 (the lowest production month from June 1999 to May 2001and
the month when the 175 tons of production were transferred) the Mon-
roe facility produced approximately 220 “heats” of 122.97 tons each,
for total production of 27,053 tons. R. Exh. 1, chart titled “Total Heats
Produced by Month at [Monroe] Michigan for Fiscal Years 99/00 and
00/01.” In January 2000, the Respondent produced approximately 420
“heats” of 122.97 tons each, for a total of 51,647 tons. Id. In either
case, the 175-ton transfer in December 2000 would constitute less than
1 percent of a single month’s production.
NORTH STAR STEEL CO. 1391
(6) Operating plans, budgets, forecasts or other docu-
ments dealing with projected costs and operating results;
(7) A list of all your competitors, including company
name, address, and whether they are unionized. Also, any
wage and benefit information you have on them;
(13) A detailed list of all work that is currently being
subcontracted by any temporary service, and any work that
may be subcontracted in the next 12 month period, includ-
ing name and address of whom the work is contracted to.
(GC Exh. 7.)
At the meeting on November 1, 2000, the Respondent pro-
vided the Union with a packet of materials that included manu-
facturing and financial data for the Respondent for years 1999
and 2000. In a statement to its members later that month, the
Union stated that the Respondent had provided “comprehensive
data surrounding the current business conditions which in-
cluded shipments, net income, projected cycle forecasts, current
and projected production schedules, booking reports, inventory
and order backlogs, and general business conditions.” (GC
Exh. 10.)
At the meeting on December 6, 2000, the Respondent in-
formed the Union that it would soon be providing the Union
with additional information in response to the October 24 in-
formation request. During that meeting the Union verbally
made a new request for information, this time for a history of
the Respondent’s use of outside contractors to stack squares.
Roper stated that he would find the information and provide it
to the Union.
On December 23, the Company gave Castiglione a packet of
materials in response to the Union’s October 24 information
request. Dean was the management official largely responsible
for preparing this packet. It is not disputed that these materials
responded to all of the October 24 information request with the
exception of items 4 through 7 and 13, which are set forth
above. (Tr. 275.) Regarding the disputed items, the record is
generally unclear about precisely what was or was not pro-
vided. There are, however, a few points that can be gleaned
from the record with clarity. In response to item 7, which re-
quested a list of the Respondent’s competitors and information
that the Respondent had regarding the wages paid by those
competitors, the Company provided only a photocopy of the
commercially published “2000 Directory of Iron and Steel
Plants.” (R. Exh. 5.) Dean conceded that not all of the over
100 facilities listed in the directory were competitors of the
Respondent’s, and that the directory did not identify which
ones were competitors. According to James Jonasen, general
manager of the Monroe facility during the relevant period, the
Respondent had four primary competitors—Timken Steel, Max
Steel, Republic Technology, Inland Steel—but these companies
were not identified to the Union in response to the information
request. Dean had information about the wages being paid by
Max Steel,24 but did not provide that information to the Union.
The record shows that in response to item 13, which re-
quested a list of all work being performed by subcontractors,

24 Dean testified that he knew Max Steel’s base wage rate “in his
head,” because the human resources manager at Max Steel had told him
the figure several months before.
the Respondent provided a list that stated the name, address,
and phone number of each contractor used by the Respondent
and described the contractor’s “business type”—e.g., “access
control & security TV sys,” “air pollution measurement,” and
“vibration analysis.” (R. Exh. 11.) Another instance where the
record is clear is with respect to the Union’s request, in item 5,
that the Respondent provide the Union with details about man-
agement salaries and benefits. The Respondent refused to pro-
vide that information, taking the position that it was “not rele-
vant to the Union’s bargaining obligation in this negotiation.”
(GC Exh. 17.) Regarding, item 4, income statements, the Re-
spondent states that it provided information on net income,
however, the record shows that it failed to provide income
statements.25 At one point Kruger indicated that he was willing
to provide “last years’ income statement,” but “question[ed] the
relevance of three years of income statements,” (GC Exh. 17);
however, income statements were not subsequently produced
for any year.
At the meeting on January 4, 2001, the Company responded
to the Union’s December 6 verbal request for information re-
garding stacking of squares by providing a memorandum that
stated the size of each “rolling” since July 1998, and the per-
centage of the squares from that rolling that were stacked by
outside contractors. (GC Exh. 28.) Kirk then made a further
verbal request, this time seeking information about any storage
or transportation costs associated with using outside contractors
to stack squares. Roper responded verbally that there were no
storage costs, and subsequently he provided a written response
that stated shipping costs on a “cut weight per foot” basis.
A meeting between the Respondent and the Union was held
on February 5, 2001. The information requests were discussed
and Drudi complained that the Respondent had failed to pro-
vide adequate information in response to items 4–7 and 13 of
the October 24 request. In fact, Drudi had never even reviewed
the documents that the Respondent had already provided in
response to those requests “as a whole,” because Castiglione
had retained those documents. (Tr. 148–149.) The Respondent
disagreed with Drudi about what had been provided and
whether it was an adequate response. Kruger asked Drudi to
prepare a written statement detailing what information the Un-
ion was seeking that the Respondent had not already provided,
and explaining why the Union thought the information was
relevant to bargaining. Drudi did not respond to that invitation
until a March 6, 2001 meeting, when he handed Kruger a
document that simply restated, word-for-word, the text of items
4–7 and 13 from the October 24 request. (GC Exh. 18.) In this
request Drudi did not in any way clarify or specify what infor-

25 Dean testified that he did not know what the Union meant by an
“income statement.” Tr. 817. However, Kruger, who communicated
with the Union on behalf of the Respondent regarding the request,
apparently did know what an income statement was since he offered by
letter to provide Drudi with “last years’ income statement.” GC Exh.
17. Likewise, Roper testified that he had seen income statements while
working for the Respondent. An “income statement” is “[t]he state-
ment of revenues expenses, gains, and losses for the period ending with
net income (or loss) for the period.” Deluxe Black’s Law Dictionary
(6th ed. 1990) at p. 764.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1392
mation he felt was still outstanding from the five items in the
October 24 request.
At a meeting on March 6, Drudi verbally requested informa-
tion about any steel production that the Respondent was trans-
ferring from the Monroe facility to its facility in St. Paul, Min-
nesota. In a letter dated March 16, 2001, Drudi reiterated that
request, asking for “any and all information regarding work and
orders being sent, transferred to, or reassigned from the Monroe
facility to the St. Paul facility.” (GC Exh. 19.) In a memoran-
dum, dated July 5, 2001, Dean responded that it would not
provide information regarding “manufacturing . . . sent from
the Monroe facility to any other facility” because that is “sub-
ject to the existing Amended Complaint” and “no pre-hearing
discovery [is] contemplated by the rules of the National Labor
Relations Board.” At trial, the Respondent introduced a pro-
duction report that it argues shows that no production was
transferred, but Roper also testified that about 175 tons of steel
originally destined for production by the Monroe facility had
been transferred to the St. Paul facility. None of this informa-
tion was provided to the Union in advance of trial in response
to the information requests.26
K. The Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when David Lewis: implied to employees
that choosing the Union would be futile because the Respon-
dent would not negotiate an employee stock option plan, a
medical plan for employees intending to retire, or any entitle-
ments, and would not allow the Union to succeed; threatened
employees that, if they chose the Union to be their collective-
bargaining representative, bargaining would start at “zero”;
and, threatened employees with reduced hours, layoff, and dif-
ferent and less favorable treatment, if they chose the Union.
The complaint also alleges that the Respondent violated Section
8(a)(1) when Toni Hallam coercively interrogated employees
and when Kathy Lafayette gave employees the impression that
their union activities were under surveillance and promulgated
an overly broad no-discussion rule.
The complaint further alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by eliminating yard operator
positions and displacing employees Cheryl Hoffman, Troy
Daniels, and Scott Lambrix because employees chose the Un-
ion as their collective-bargaining representative and engaged in
concerted activities, and to discourage employees from engag-
ing in protected activities.

26 In a letter dated June 6, 2001, Drudi requested that Dean provide
information on “[a]ny and all work that has been out contracted or sub-
contracted at North Star Steel, Monroe, Michigan during the year
2001.” GC Exh. 20. In its brief, the General Counsel alleges that the
Respondent’s refusal to provide information in response to this request
was a violation of the Act GC Br. at 61, however, the complaint does
not allege a violation based on the June 6, 2001 information request.
See (complaint pars.18–24) (second amended consolidated complaint,
GC Exh. 1(w)). The issue of the June 6 information request was not
briefed by either the Respondent, see R. Br. at 72–97, or the Union, see
UAW’s Br. at 17–24. I conclude that the question of whether the Re-
spondent’s refusal to provide information sought on June 6, 2001, was
not fully litigated and reach no decision regarding it.
The complaint further alleges that the Respondent violated
Section 8(a)(1) and (5) of the Act by taking the following ac-
tions without giving the Union a meaningful opportunity to
bargain: eliminating yard operator positions and displacing
employees Cheryl Hoffman, Troy Daniels, and Scott Lambrix;
reducing unit employees’ work hours at its Monroe facility;
substantially increasing the outsourcing of squares; outsourcing
the cleaning of the rake bed in its caster department; transfer-
ring processing of nonshrouded steel from its Monroe facility to
its St. Paul facility; using outside contractors to perform general
labor and housekeeping work; failing to provide unit employees
with an annual wage increase; laying off employees; and im-
plementing a layoff procedure that differed form the one pro-
vided in the employee manual. The complaint also alleges that
the Respondent refused to bargain collectively and in good faith
in violation of Section 8(a)(1) and (5) by failing and refusing to
supply the information requested by the Union: on October 24,
2000, in its written information request; on December 6, 2000,
and January 4, 2001, regarding the stacking of steel squares;
and on March 6 and 16, 2001, regarding work and orders that
the Respondent reassigned from its Monroe facility to its St.
Paul facility.
III. ANALYSIS
A. Alleged 8(a)(1) Violations
1. Statements by David Lewis
The General Counsel alleges that Lewis threatened employ-
ees with different, unfavorable, treatment, as well as with re-
duced hours, and layoff. An employer violates Section 8(a)(1)
by threatening employees that it will treat employees in a less
favorable manner as a consequence of their selecting a union as
their bargaining representative. Treanor Moving & Storage
Co., 311 NLRB 371, 373–374 (1993); Azalea Gardens Nursing
Center, 292 NLRB 683, 686 (1989); Maxwell’s Plum, 256
NLRB 211, 215 (1981).27 The evidence showed that Lewis28

27 The General Counsel also states that Lewis threatened employees
that bargaining would start at “zero” if the facility became unionized.
For the reasons discussed above, I found that the record fails to estab-
lish that Lewis made this statement. Therefore, the allegation that this
statement violated Sec. 8(a)(1) should be dismissed.
28 The Respondent’s answer to the second amended consolidated
complaint states that “[t]o the extent that a response is required” to the
allegation that David Lewis was a supervisor within the meaning of
Sec. 2(13) or an agent within the meaning of Sec. 2(11), “the allega-
tions are denied.” The Respondent does not press this argument in its
brief. At any rate, it is clear that Lewis was acting an agent for pur-
poses of the statements alleged to violate the Act. All of Lewis’ at-
issue statements were made while he was conducting meetings that the
Respondent directed its employees to attend and which were held at the
Respondent’s facility. At those meetings Lewis told employees that he
would be the Respondent’s lead negotiator if the Union were selected
and made various representations about how the Respondent would
behave in those negotiations. These statements were made in the pres-
ence of the general manager of the Monroe facility (Jonasen) and other
management officials of the Respondent, who were not shown to have
questioned or contradicted Lewis’ representations. In addition, Dean
testified that he received direction from Lewis regarding the need to
implement a layoff at the Monroe facility. Lewis was Cargill’s vice
president for human resources at the time he made the statements al-
NORTH STAR STEEL CO. 1393
told employees that the relationship between management and
hourly employees at the Monroe facility was like a “marriage”
and that it would be a “bad divorce” if employees allowed a
“third party” to come between them. In its brief the Respon-
dent contends that the comment comparing unionization to a
“divorce” between management and employees was not made
in a “threatening manner” and merely conveyed that things
would be different and that unionization could not guarantee
that the changes would be an improvement. (R Br. at 12.) I do
not necessarily agree that an employer’s statement comparing
unionization to a “divorce” from its own workers is not threat-
ening. At any rate, according to four witnesses, including man-
agement witness Dean, Lewis did not merely say that unioniza-
tion would be a divorce, but that it would be a bad divorce.
(Tr. 183, 340, 368, 711.) Based on the surrounding circum-
stances, I conclude that this is a threat that the Respondent
would adopt a hostile posture towards its employees if they
chose to bargain collectively with the Respondent. See Medi-
plex of Danbury, 314 NLRB 470, 471 (1994) (in determining
whether a statement is violative of Section 8(a)(1) or protected
by Section 8(c), the Board considers the totality of the relevant
circumstances). After all, what distinguishes a divorce from a
bad divorce if not the hostility of one or more of the parties? I
am not persuaded otherwise by the Respondent’s citation of
Ebenezer Rail Car Services, Inc., 333 NLRB 167 (2001), in
which the owner of a company told employees that unioniza-
tion made him feel “like getting a divorce or losing a child
through death.” See Respondent’s Brief at 13. In that decision
neither the Board nor the administrative law judge addressed
the question of whether the reference to divorce was a violation
of 8(a)(1). Moreover, the employer there did not say that un-
ionization would be a “bad divorce,” only that it made him feel
“like getting a divorce.” As previously noted, this is a signifi-
cant difference. I conclude that the Respondent threatened
employees with different, unfavorable, treatment, in violation
of Section 8(a)(1).
Regarding the alleged threat of reduced hours and layoffs,
the evidence showed that Lewis told employees that he was
proud that there had been no layoffs at the Monroe facility in
the past and that the reason the Respondent had been able to
avoid layoffs at nonunion facilities during economic downturns
while layoffs were necessary at unionized facilities was be-
cause of the flexibility allowed by the union-free arrangement.

leged to violate the Act. The record suggests that Lewis had actual
authority to act as the Respondent’s agent for purposes of the state-
ments he made to employees at the meetings. Even if he did not have
actual authority it is clear that he had “apparent authority.” Such au-
thority exists when, as here, “‘the principal does something or permits
the agent to do something which reasonably leads another to believe
that the agent had the authority he purported to have.’” Cablevision
Industries, 283 NLRB 22, 29 (1987) (quoting Hawaiian Paradise Park
Corp. v. Friendly Broadcasting Co., 414 F.2d 750, 756 (9th Cir.
1969)); see also Contemporary Guidance Services, 291 NLRB 50, 64
(1988). I conclude that Lewis was an agent of the Respondent for
purposes of statements he made during the meetings with employees at
the Monroe facility. Given that conclusion, it is not necessary for me to
decide whether Lewis was also a supervisor within the meaning of Sec.
2(11).
Lewis asked employees “who here would like to work 32 hours
or get laid off?” “[H]ow do like 32 hours? We can do that.”
Statements by an employer during a union campaign that un-
ionization will likely result in a reduction in hours, Reeves
Bros., Inc., 320 NLRB 1082, 1083 (1996), Bay State Ambu-
lance Rental, 280 NLRB 1079, 1083–1084 (1986), and could
result in layoffs, Hertz Corp., 316 NLRB 672, 686 (1995), vio-
late Section 8(a)(1). Moreover, the record shows that, contrary
to Lewis’ assertion, the Respondent had had at least two layoffs
prior to the union drive. (Tr. 604.) Thus Lewis did not have a
basis in objective fact for stating that the facility had never had
a layoff in the past and that the reason was the union-free ar-
rangement. See Components, Inc., 197 NLRB 163, 164 (1972)
(an employer’s statement to employees predicting that adverse
economic consequences will result from unionization is a viola-
tion of Section 8(a)(1) if such prediction is not carefully
phrased on the basis of objective fact to convey an employer’s
belief as to the demonstrably probable consequences beyond
his control). I conclude that Lewis unlawfully threatened em-
ployees with reduced hours and layoffs in violation of Section
8(a)(1) of the Act.
The General Counsel also alleges that Lewis made state-
ments to employees during the union campaign which implied
that it would be futile for them to select the Union as their bar-
gaining representative. Statements by an agent or supervisor
that imply it would be futile to support the union are violative
of Section 8(a)(1) of the Act. Hertz Corp., 316 NLRB at 685–
686. During the union campaign in this case, Lewis told em-
ployees that, if the employees unionized, he, as the lead nego-
tiator for the Respondent, would be a “failure” if the Union
obtained a contract that made unionization attractive to em-
ployees at the Respondent’s union-free facilities. He explained
that the Respondent had to limit what the Union obtained in
order to avoid a “domino effect” on those union-free plants. At
one meeting he stated that if the facility unionized he would not
allow the Union to “succeed” by getting a contract that pro-
vided the same terms and conditions as the employees already
had. He also discussed two existing employee benefits that
were of particular interest to workers at the Monroe facility.
One was the medical insurance that the Respondent provides to
retired employees, but has announced an intention to discon-
tinue. About that, Lewis told employees “if you think getting a
union in here will get your medical retirement, you’re wrong.”
The other benefit was the employee stock ownership plan.
Lewis stated that if the facility became unionized the continua-
tion of that plan would be a subject for negotiations, but that no
unionized facility within Cargill had such a plan. These state-
ments, taken together, had a clear message—i.e., that collec-
tive-bargaining would not result in the employees obtaining
benefits other than what the Respondent chose to give them and
that unionization would necessarily lead the Respondent to
choose to give them less. I conclude that the statements by
Lewis violated Section 8(a)(1) by, in effect, threatening em-
ployees that it would be futile to choose the Union to bargain
collectively on their behalf.29

29 The Respondent argues that Lewis’ remarks during the meetings
indicated that he was “prepared to bargain” over the issues raised and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1394
2. Statements by Kathy Lafayette
The General Counsel alleges that the Respondent violated
Section 8(a)(1) because Lafayette gave Castiglione the impres-
sion that employees’ union activities were under surveillance
and promulgated an overly broad no-discussion rule. An em-
ployer violates the Act when it creates the impression among its
employees that it has placed their union activity under surveil-
lance. Robert F. Kennedy Medical Center, 332 NLRB1536,
1540 (2000). The employer’s actions are evaluated from the
perspective of the employee and are unlawful if they would
reasonably cause an employee to believe that his or her activi-
ties are under surveillance. Tres Estrellas de Oro, 329 NLRB
50, 50–51 (1999). I conclude that Lafayette’s statements to
Castiglione on January 17, 2001, indicating that she was aware
that employees came to his workstation to talk to him because
of his new position as union plant chairperson, and expressing
her concern about the stress he was under, did not give Castig-
lione a reasonable basis for believing that his activities were
under surveillance. The activities to which Lafayette referred
took place in the workplace in plain view of persons in the
storeroom. Lafayette’s statements did not indicate to Castig-
lione that she was interested in, or aware of, any of the specifics
of conversations employees were having with him or of the
identities of those employees. Lafayette did not suggest that
she was aware of any union activities that took place away from
the workplace or in a private setting. The general, nonspecific,
knowledge that Lafayette alluded to was not suggestive of sur-
veillance. Such information would be apparent to anyone who,
like Lafayette, worked in the same part of the facility as Castig-
lione and knew that Castiglione was the plant chairperson for
the Union. Although Lafayette could not see Castiglione’s
from inside her office, she did see him without unusual effort
while walking through the storeroom, of which she was the
supervisor. There is no evidence to indicate that she changed
any of her normal routines in the storeroom to increase her
opportunity to observe Castiglione, or to create the impression
of such an increase. The Act does not impose an obligation on
supervisors to make efforts to avoid noticing activities by their
supervisees. Metal Industries, 251 NLRB 1523 (1981) (“man-
agement officials may observe public union activity . . . on
company premises . . . unless such officials do something out of
the ordinary”).
In addition, Lafayette had a legitimate reason for alluding to
the stress that she believed Castiglione was under. It is undis-
puted that Lafayette met with Castiglione after receiving a
complaint about his behavior from Collins. The record showed
that Collins’ complaints were not unfounded—Castiglione had
opened mail addressed to Collins, had improperly photocopied

that the allegation that he implied unionization would be “futile” is
unfounded. I disagree. The credible evidence does show that Lewis
acknowledged that the Respondent would have an obligation to negoti-
ate regarding various issues if the employees at the facility unionized.
However, his other statements—for example, that he would not permit
those negotiations to result in significant improvements for employees
or even in their retention of what the Respondent already chose to give
them—conveyed to employees that the Respondent would not meet its
obligation to bargain in good faith.
a “controlled” document he found in that mail, and then had
confronted Collins with the document. Such behavior by a
long-time employee would be a matter of concern for Lafayette
as the supervisor of both Castiglione and Collins, and I credit
Lafayette’s testimony that she suspected that Castiglione was
having trouble with stress. A reasonable employee would have
seen Lafayette’s comments comparing Castiglione’s stress to
her own as an effort to counsel him, not as an indication of
surveillance. Indeed Castiglione himself told Dean that he
thought the meeting with Lafayette had “gone well” and “had
cleared the air of some issues.”
For the reasons discussed above, I conclude that the allega-
tion that the Respondent unlawfully created the impression of
surveillance in violation of Section 8(a)(1) should be dismissed.
The General Counsel also alleges that during the same Janu-
ary 17 conversation with Castiglione, Lafayette promulgated an
overly broad no-discussion rule in violation of Section 8(a)(1).
As correctly noted by the General Counsel, it is unlawful for an
employer to restrict conversations about union matters during
work time while permitting conversations about other nonwork
matters. Emergency One, Inc., 306 NLRB 800 (1992). The
General Counsel contends that Lafayette’s statements “effec-
tively communicated displeasure with Castiglione’s discussion
about the Union” and “essentially told Castiglione that he is not
to discuss the Union.” (GC Br. at 44.) This stretches the rea-
sonable implications of Lafayette’s statements well beyond the
breaking point. Even under Castiglione’s account of the ex-
change, Lafayette never told him to stop, or even limit, his
union-related discussions. To the contrary, Castiglione testified
that Lafayette informed him that she was not telling him to stop
discussing the Union. Indeed, by Castiglione’s account, the
Respondent encouraged employees to discuss their workplace
concerns with him. Although Lafayette alluded to the conver-
sations that Castiglione was having with employees since be-
coming plant chairperson, the record leads me to conclude that
Lafayette did this in an effort to address Castiglione’s work-
place stress, and that Lafayette did not suggest, and cannot
reasonably be interpreted as having suggested, that conversa-
tions about union matters were impermissible.
For the reasons discussed above, the allegation that the Re-
spondent promulgated an overly broad no-discussion rule in
violation of Section 8(a)(1) is without merit and should be dis-
missed.30
B. Alleged Violation of Section 8(a)(1) and (3) Relating to
the Elimination of Yard Operator Positions and the
Displacement of Three Yard Employees
The General Counsel alleges that the Respondent violated
Section 8(a)(1) and (3) by eliminating positions in the scrap
yard, and displacing Hoffman, Daniels, and Lambrix from their

30 The complaint also alleges that the Respondent violated Sec.
8(a)(1) when Toni Hallam coercively interrogated employees. This
allegation is based on a conversation that Hallam supposedly had with
Hoffman shortly after Hoffman attended a meeting conducted by
Lewis. For the reasons discussed above, I found that the record did not
establish that Hallam made the statements or asked the questions that
are alleged to constitute an unlawful interrogation. The allegation of
unlawful interrogation should be dismissed.
NORTH STAR STEEL CO. 1395
positions because employees selected the Union as their collec-
tive-bargaining representative and engaged in protected activi-
ties, and with the purpose of discouraging employees from
engaging in protected activities. In Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Corp., 462 U.S. 393 (1983), the Board set forth the stan-
dards for determining whether an employer has discriminated
against an employee on the basis of union or protected activity.
Under the Wright Line standards, the General Counsel bears the
initial burden of showing that the Respondent’s actions were
motivated, at least in part, by antiunion considerations. The
General Counsel may meet this burden by showing that: (1) the
employee engaged in union or other protected activity, (2) the
employer knew of such activities, and (3) the employer har-
bored animosity towards the Union or union activity. Senior
Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000);
Regal Recycling, Inc., 329 NLRB 355, 356 (1999). If the Gen-
eral Counsel establishes discriminatory motive, the burden
shifts to the employer to demonstrate that it would have taken
the same action absent the protected conduct. Senior Citizens,
330 NLRB at 1105.
I conclude that the General Counsel has failed to meet its ini-
tial burden. The record does not show that Hoffman, Daniels or
Lambrix participated in any union or protected concerted activ-
ity, and neither the brief of the General Counsel nor the brief of
the Union specify any such activity by these employees. The
General argues that Hallam’s interrogation of Hoffman demon-
strates that the Respondent “had, at least, a mistaken belief that
[Hoffman] was engaged in Union activity.” (GC Br. at 45.) But
as discussed above, the evidence did not establish that such an
interrogation took place. There was no persuasive evidence that
the Respondent had a belief, mistaken or otherwise, that Hoff-
man was engaged in union or protected concerted activity.31
With respect to Daniels and Lambrix, there is a complete lack
of evidence of protected activity or of the Respondent’s knowl-
edge or suspicion of such activity. Neither Daniels or Lambrix
were called to testify and the record reveals little other than that
they, along with Hoffman, were the scrap yard employees with
the least sequential seniority, and were informed of their dis-
placement from the scrap yard during a meeting with Hallam
and Nocella.
The Union argues that the Respondent eliminated the yard
positions in retaliation for the successful union drive. (UAW’s
Br. at 16.) The Board has held that unlawful motivation may
be shown when an adverse action aimed at punishing employ-

31 Hoffman testified that at one of the preelection meetings she told
Lewis that “retirement was a big issue because we were gonna lose our
medical retirement, and . . . I didn’t want to work at North Star for 30
years and have to got to Wal-Mart and be a greeter to have insurance.”
Tr. 368–369. As discussed above, I do not consider Hoffman a particu-
larly reliable witness, but even assuming that I fully credited her ac-
count, such a statement would not constitute protected concerted activ-
ity since Hoffman was acting solely on her own behalf and not with, or
on the authority, of fellow workers, and said nothing indicating that she
was attempting to rally employees towards collective action. Meyers
Industries (II), 281 NLRB 882, 885–886 (1986), affd. 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
ees for union activity affects employees who either did not
individually support, or were not known to support, the union
activity. Mini-Togs, Inc., 304 NLRB 644, 648 (1991), en-
forcement granted in part, denied in part 980 F.2d 1027 (5th
Cir. 1993); ACTIV Industries, 277 NLRB 356 fn.3 (1985). An
inference of such motivation is not, however, raised under the
facts present here. It was not shown that the scrap yard was a
stronghold of union support or that even a single one of the
displaced scrap yard employees supported the Union. Thus this
is not a case where it appears that some individual employees
whose sentiments about a union were unknown to the employer
were swept up in the employer’s effort to purge or punish union
supporters. It is, moreover, implausible that the Respondent
would retaliate for the successful union drive among its over
300 employees by displacing three employees none of whom
were shown to be union supporters. Second, the evidence de-
finitively showed that well before the union campaign and elec-
tion, the Respondent had embarked on some of the changes that
eventually made the elimination of three positions in the yard
possible. When an employee voluntarily left the scrap yard
several months prior to the initiation of the union drive, the
Respondent decided not to replace that worker, thus indicating
that the need for three scrap yard employees per shift was di-
minishing.32 Although the timing of the reduction, only a
month after the union vote, is a cause for some initial suspicion,
see Equitable Resources Energy Co., 307 NLRB 730, 731
(1992), enfd. 989 F.2d 492 (4th Cir. 1993), that suspicion is
alleviated upon examination of the record evidence, which, as
discussed above, shows that changes in the scrap yard were
underway before the union drive and election. The evidence is
wholly insufficient to show that the Respondent’s had an anti-
union motive for eliminating the three scrap yard positions and
displacing Hoffman, Daniels, and Lambrix.
The evidence of record fails to satisfy the General Counsel’s
initial burden under Wright Line. Therefore, the allegation that
the Respondent violated Section 8(a)(1) and (3) by eliminating
three positions in the scrap yard, and displacing Hoffman,
Daniels, and Lambrix, should be dismissed.
C. Alleged Failures to Bargain in Violation of Section
8(a)(1) and (5)
1. Elimination of yard positions
The General Counsel fares better with its allegation that the
Respondent violated Section 8(a)(1) and (5) of the Act by fail-
ing to bargain with the Union before eliminating the three yard
positions and displacing Hoffman, Daniels, and Lambrix . An
employer violates Section 8(a)(1) and (5) if it changes opera-
tions in a way that significantly impacts employees without
providing the majority representative with prior notice and a

32 The Respondent’s decision to accomplish the reduction by the
forced displacement of employees, rather than through attrition as
Hallam indicated the Respondent had done in the past, does not raise an
inference of discrimination given the poor state of the Respondent’s
business. Given those business conditions, it is not surprising that the
Respondent would wish to displace the employees to the labor pool
where they could be assigned to tasks as needed, rather than retain
those employees in the scrap yard where the need for their services had
been diminished by the new scrap-handling system.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1396
reasonable opportunity to bargain. NLRB v. Katz, 369 U.S.
736, 745–746 (1962). “[B]argaining over the effects of a deci-
sion must be conducted in a meaningful manner and at a mean-
ingful time, and the Board may impose sanctions to insure its
adequacy.” First National Maintenance Corp., 452 U.S. 666,
681–682 (1981). In the instant case, the Respondent eliminated
positions in the scrap yard that were held by members of the
bargaining unit and displaced three scrap yard employees to the
labor pool. This action resulted in a significant impact on em-
ployees and was a mandatory subject of bargaining. Bundy
Corp., 292 NLRB 671 (1989). The Respondent did not notify
the Union, or give it a reasonable opportunity to bargain prior
to making these changes. I conclude that the General Counsel
has shown that the Respondent violated Section 8(a)(1) and (5)
by failing to give the Union notice and a reasonable opportunity
to bargain over the elimination of three scrap yard positions and
the displacement of scrap yard employees Hoffman, Daniels,
and Lambrix.
The Respondent contends that it was not obligated to bargain
over the elimination of the yard positions and the displacement
of employees because these were not a change in the status quo.
(R. Br. at 39.) According to the Respondent, it put employees
on notice of its intent to change the scrap handling system in
May 1999, decided how to implement the change in February
2000, and completed the change in August 2000—all prior to
the Union’s selection as the collective-bargaining representa-
tive of employees at the Monroe facility. This argument is
without merit. At the time of the union election there were 11
positions in the scrap yard and Hoffman, Daniels, and Lambrix
occupied three of those positions. It was not until October
2000 that the Respondent changed the status quo by eliminating
three scrap yard positions and displacing Hoffman, Daniels,
and Lambrix to the labor pool. The May 1999 memorandum
that the Respondent characterizes as providing prior “notice” of
the workforce reduction at the scrap yard in reality stated only
that the Respondent was examining new scrap yard systems for
a number of reasons, including the reduction of manpower in
the melt shop. That memorandum explicitly stated that the
Respondent’s examination of new systems was only in the
“feasibility” stage. The memorandum did not state that any
change at all in scrap yard operations would necessarily take
place as a result of that feasibility study, much less that any
change would ultimately meet all of its goals, including a re-
duction in manpower. To the contrary, the memorandum stated
that no decision had been made, and that the Respondent would
“publish and communicate the results of this review as they
develop, well before any decisions would be made which af-
fected the total number of individuals in the Melt Shop.” The
evidence does not show that, prior to the implementation of the
reduction in October 2000, the Respondent communicated with
employees to inform them that a final decision had been made
to reduce the number of employees at the melt shop generally,
or at the scrap yard in particular.33 Certainly no communication

33 The Respondent did inform employees that it was switching from
the scrap handling system that used cranes and rail cars to a system that
used two front-end loaders. However, that does not constitute notice
that positions would be eliminated and that the reduction would be
was made informing the Union or employees that a reduction at
the scrap yard would be accomplished by forced displacement
rather than by attrition. Although there had been changes in the
scrap yard equipment and operations prior to the union election,
the expectation, as stated by supervisor Hallam to Hoffman,
was that if any reductions in the scrap yard resulted from those
changes, the reductions would likely be accomplished by attri-
tion, as they generally had been in the past, not by the elimina-
tion of positions and the forced displacement of employees.
Based on the record evidence, I reject the Respondent’s defense
that the status quo prior to the union election included the
elimination of three positions in the yard and the displacement
of Hoffman, Daniels, and Lambrix.
In a related vein, the Respondent contends that the “yard re-
duction decision took place outside the [Act’s] six-month stat-
ute of limitations,” see Section 10(b), 29 U.S.C. Section 160(b),
and that the allegations regarding the reduction should therefore
be dismissed as untimely. (R. Br. at 38.) This argument, too, is
without merit. The three employees were informed of the re-
duction and of their own displacements in October 2000. The
initial charge in this case was filed on December 19, 2000, and
the amended charge alleging a violation based on the reduction
in the scrap yard was filed on February 9, 2001, and served on
the Respondent the same day—well within the 6-month limita-
tions period. The Respondent’s argument that the charge was
untimely is based on the contention that “the decision to reduce
the yard operators was made, at the latest, in February 2000.”
Id. The Respondent’s timeliness argument is faulty both le-
gally and factually. The Board has held that “the Section 10(b)
period does not begin to run until the aggrieved party has re-
ceived actual or constructive notice of the conduct that consti-
tutes the alleged unfair labor practice.” Concourse Nursing
Home, 328 NLRB 692, 694 (1999). Assuming that by February
2000 the Respondent had made a decision to reduce the number
of employees in the yard and displace employees, the record
still does not show that employees or the Union received notice
of that decision before October 2000. In addition, even if one
believes that the employees must have surmised that the change
in scrap handling equipment meant that the Respondent needed
three fewer yard operators, the record does not show that those
employees knew that anyone would be involuntarily displaced
from their positions. Not only did the Respondent fail to in-
form them of this prior to October, but it actually conveyed a
contrary impression when Hallam suggested that any elimina-
tion of positions would be through attrition. I reject the Re-
spondent’s defense that the complaint allegations regarding the
reduction in the yard and the displacement of employees were
untimely under Section 10(b).

accomplished through forced displacement, not attrition. The Respon-
dent’s argument to the contrary improperly seeks to impose an obliga-
tion on employees to self-notify themselves of planned reductions by
correctly surmising that changes in existing equipment forecast their
futures with the Respondent. See NLRB v. Crystal Springs Shirt Corp.,
637 F.2d 399, 402 (5th Cir. 1981) (an employer may not satisfy its
notice obligation by giving general information from which the union is
to infer that a change has occurred).
NORTH STAR STEEL CO. 1397
2. Denial of wage increase in 2001
The General Counsel alleges that the Respondent violated
Section 8(a)(1) and (5) by not bargaining with the Union before
failing to provide unit employees with an annual wage increase
in 2001, during the initial bargaining with the newly certified
union. According to the General Counsel, the status quo at the
Monroe facility included annual wage increases.
It is undisputed that the Respondent did not bargain about
the denial of a wage increase in 2001. However, the record
does not establish that the granting of annual wage increases
was part of the status quo prior to the union election. In fact,
the record shows that as recently as 1998 the Respondent did
not grant employees a wage increase. In the 1980s, during a
period of economic difficulty, the Respondent did not give
wage increases to employees at the Monroe facility in five of
ten years. The state of the Monroe facility’s business was poor
in 2000 and 2001. Because the evidence does not show that an
annual wage increase was part of the status quo, and certainly
not part of the status quo during periods when business was
poor, I conclude that the General Counsel has failed to show
that the Respondent violated Section 8(a)(1) and (5) by failing
to grant a wage increase in 2001 without first bargaining with
the Union. The complaint allegation regarding the denial of a
wage increase in 2001 should be dismissed.
3. Transfer of work from Monroe facility
The General Counsel alleges that the Respondent violated
Section 8(a)(1) and (5) by failing to bargain with the Union
before transferring the processing of nonshrouded steel from
the recently unionized Monroe facility to its St. Paul facility.
An employer violates Section 8(a)(1) and (5) of the Act when it
transfers work performed by unit employees to others outside
the bargaining unit without providing the union with notice or
an opportunity to bargain. Ferragon Corp., 318 NLRB 359,
366 (1995), enfd. 88 F.3d 1278 (D.C. Cir. 1996); Geiger
Ready-Mix Co. of Kansas City, 315 NLRB 1021, 1022–1023
(1994). The evidence in this case showed that on one occasion
in December 2000 the Respondent transferred the production of
175 tons of steel from its Monroe facility to its St. Paul facility.
This was a transfer of work from members of the unit to indi-
viduals outside the bargaining unit, but the Respondent did not
notify the Union of the transfer or give it an opportunity to
bargain. The Respondent’s witnesses offered no explanation
for the decision to transfer this work.
The Respondent contends that if unit work was affected at all
by the transfer of 175 tons of production to the St. Paul facility,
it was only marginally affected and that bargaining over the
transfer was therefore unnecessary since it did not have a sig-
nificant effect on unit employees.
The Respondent cites North Atlantic Medical Services, 329
NLRB 85, 102 (1999), in which the Board upheld the adminis-
trative law judge’s ruling that an employer’s hiring of two new
delivery drivers outside the unit did not require bargaining
since that hiring had, at most, marginally affected unit work.
That decision, however, was explicitly based on a finding that
the employer had shown the hiring resulted in “no appreciable
diminution in jobs, hours, or overtime” of unit employees. Id.
Indeed it is unclear to me whether work was actually trans-
ferred at all in that case. By contrast, in the instant case, the
Respondent admits that production was transferred from the
Monroe to the St. Paul facility. Moreover, that transfer coin-
cided with reductions in unit employees’ hours and impending
layoffs. Although the work that was transferred constituted a
small fraction of the Monroe facility’s overall production, and
the majority of the reductions were not related to the transfer,
that transfer was still substantial and significant enough to play
a part in the loss of jobs and hours for some unit employees.
Moreover, the Respondent’s transfer of this work was not an
isolated incident. The General Counsel also proved that for the
November 2000 “rolling”—at a time when employee hours
were being curtailed—the Respondent significantly increased
the percentage of squares that were sent away from the Monroe
facility for stacking by contractors, rather than kept in-house to
be stacked by unit employees. Prior to the union election, the
highest percentage of squares that the Respondent had ever sent
to outside contractors to stack was 40 percent. However, for
the November rolling, the first one after the election, the Re-
spondent increased that proportion by half to 60.6 percent. The
stacking work had been a significant proportion—
approximately 25 percent—of all the work done by inspectors
in the Respondent’s shipping department. This increase in
outsourcing had a significant and substantial affect on the work
of unit employees. Even if I believed that neither the transfer
of production to St. Paul, nor the increased outsourcing of
square stacking, were individually sufficient to have a signifi-
cant and substantial effect on bargaining unit work, I would
have concluded that the work that left the facility as a result of
those two changes together dealt an appreciable blow to the
jobs and hours of some unit employees.
For the reasons discussed above, I conclude that the Respon-
dent violated Section 8(a)(1) and (5) by failing to bargain over
its decisions to transfer the processing of 175 tons of steel from
its Monroe facility to its St. Paul facility, and to significantly
increase the percentage of squares that the Respondent used
outside contractors to stack.34
4. Layoff and reduction
The General Counsel alleges that the Respondent violated
Sections 8(a)(1) and (5) by failing to give the Union a meaning-
ful opportunity to bargain before reducing unit employees’
work hours at the Monroe facility, laying off employees, and
implementing a layoff procedure that differed from the one
provided in the employee manual.35
Regarding the reduced work schedules, the record showed
that the Respondent met with union officials on October 26,
November 1 and 8. According to even Drudi, the parties “ne-
gotiated back and forth.” (Tr. 38.) On November 8, the parties

34 For the reasons discussed above, I found that the General Counsel
failed to establish that the Respondent increased the use of outside
contractors to clean the rake bed in the caster department and perform
general labor and housekeeping work. Therefore, the allegations that
the Respondent violated Sec. 8(a)(1) and (5) by failing to bargaining
with the Union over those alleged actions should be dismissed.
35 The General Counsel does not allege that the Respondent’s deci-
sions to reduce work hours and layoff employees were motivated by
antiunion animus in violation of Sec. 8(a)(1) and (3).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1398
reached an agreement concerning the reduced work schedule
that was set down in writing and signed by officials of the Un-
ion and the Respondent. I conclude that the Respondent met its
obligation to bargain with the Union regarding the reduced
hours as evidenced by the meetings, the “back and forth” bar-
gaining, and the agreement reached by the parties.
The General Counsel does not explain precisely how it be-
lieves the Respondent fell short of its bargaining obligation
regarding the reduction in hours, but appears to suggest that the
negotiations were inadequate because the agreement between
the parties was based on the Respondent’s fraudulent represen-
tation that it was not outsourcing work. (GC Br. at 55–56.) To
the extent that this is the Respondent’s contention, it does not
withstand scrutiny. I note first that the written agreement
makes no mention of an understanding about the outsourcing of
work. Moreover, such an understanding was not mentioned in
the documents the Union used to communicate and explain the
agreement to union members and to the Board. I expect that if
an agreement not to outsource work were an aspect of the
agreement it would merit at least a passing mention in these
documents. Second, at the time the agreement was reached on
November 8, the Respondent represented only that it was not
outsourcing any more work than it usually did. The record
does not show that this was untrue. Although the percentage of
the squares from the November rolling that were ultimately
stacked by outside contractors was greater than in the past, that
stacking apparently was not completed until at least December.
The record does not show that the Respondent had even begun
stacking squares from the November rolling by the time of the
November 8 agreement, and certainly not that it had decided at
that time what percentage of the total would ultimately be
stacked by outside contractors. The only other increase in out-
sourcing shown to have occurred was the transfer of 175 tons of
steel production to the St. Paul facility and that transfer oc-
curred in December 2000—after the November 8 agreement.
The General Counsel failed to show that the Respondent re-
duced work hours of unit employees without affording the Un-
ion a meaningful opportunity to bargain as required by Section
8(a)(1) and (5) of the Act. Therefore, the complaint allegations
based on the Respondent’s supposed failure to bargain ade-
quately over the reduction in hours should be dismissed.
I also conclude that the evidence fails to support the allega-
tion that the Respondent did not provide the Union with a rea-
sonable opportunity to bargain about the layoff procedures.
The Respondent argues that it implemented the layoff using the
preexisting layoff procedures in its handbook and therefore
made no change that triggered an obligation to bargain over
layoff procedures. (R. Br. at 69–70.) This argument has some
merit, see, e.g., News Journal Co., 331 NLRB 1331, 1332
(2000) (not a violation of Section 8(a)(5) where employer ap-
plied existing procedure for wage increases), but assuming that
the Respondent had an obligation to bargain over the use of the
preexisting layoff procedures, I conclude that the Respondent
met that obligation. During a meeting on December 6—a full
month before the layoff—the Respondent notified the Union of
its intent to implement a layoff. The Respondent stated that it
was “pressed for time” and therefore had decided to use the
existing procedures in the handbook. The Union, through
Drudi, insisted that the layoff procedure be based on plant-wide
seniority, and refused to discuss any procedure based on the
sequential seniority system embodied in the handbook. Kruger
then invited union officials to meet with officials of Respondent
and stated that, while the Respondent intended to carry out the
layoff using the handbook procedures, it was willing to “look at
other options” proposed by the Union committee in order to
determine how best to implement the layoff.36 The Union re-
fused that offer to meet, informing the Respondent that it did
not want anything to do with a layoff based on the handbook
procedures and was unwilling to take any of the “heat” for such
a such a layoff, which Drudi said was the Respondent’s “baby.”
Section 8(a)(1) and (5) requires an employer, after reaching a
decision concerning a mandatory subject of bargaining, to delay
implementation until after it has consulted with the bargaining
representative, but does not require that the employer delay the
decision-making process itself. Mercy Hospital of Buffalo, 311
NLRB 869, 873 (1993); Haddon Craftsmen, 300 NLRB 789,
790 fn.8 (1990), review denied mem.937 F.2d 597 (3d Cir.
1991); Lange Co., 222 NLRB 558, 563 (1976). “[W]hen an
employer notifies a union of proposed changes in terms and
conditions of employment, it is incumbent on the union to act
with due diligence in requesting bargaining.” Jim Walter Re-
sources, 289 NLRB 1441, 1442 (1988) (quoting Clarkwood
Corp., 233 NLRB 1172 (1977)). Considering all the circum-
stances of the December 6 meeting, I conclude that the Re-
spondent offered the Union a reasonable opportunity for bar-
gaining regarding the layoff procedures and the Union failed to
take advantage of that opportunity. The Respondent’s invita-
tion to meet to “look at other options” proposed by the Union
indicated that no irrevocable decision to follow the handbook
procedures had been made. Thus the Respondent did not sim-
ply present the Union with a fait accompli, but “afforded a
reasonable opportunity for counter arguments or proposals.”
Pinkston-Hollar Construction Services, 312 NLRB 1004, 1005
(1993). I conclude that the Union waived its right to bargain
when, at the December 6 meeting, Drudi refused the Respon-
dent’s invitation to meet regarding the layoff procedures. The
right to bargain may be waived by clear and unmistakable lan-
guage as well as by evidence of negotiations. Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 fn. 12 (1983); Allison
Corp., 330 NLRB 1363–1365 (2000).37 Although neither side

36 There was a good deal of testimony at trial attempting to shed
light on the proper interpretation of Kruger’s use of the word “tweak”
at the December 6 meeting, and in particular on what his use of that
word indicated regarding the breadth of issues the Respondent was
inviting the Union to bargain about. That testimony was remarkably
unenlightening. Kruger’s statement, captured in the notes of a member
of the Union committee, that the Respondent was willing to “look at
other options” proposed by the union committee in order to determine
how best to implement the layoff is a much more helpful indicator
regarding the nature of the Respondent’s offer to negotiate than are the
commentaries of witnesses regarding their understanding of what
Kruger meant by “tweak.”
37 In a letter sent on December 19, almost two weeks after the De-
cember 6 meeting, Drudi requested bargaining “regarding the structure
of the layoff and the procedures to be followed.” GC Exh. 15. My
conclusion that the Union waived bargaining is not changed by the
December 19 letter. The Respondent had, on December 6, advised the
NORTH STAR STEEL CO. 1399
exerted exemplary effort to make bargaining regarding the
layoff procedures fruitful, the primary and ultimate responsibil-
ity for the failure of negotiations rests with the Union, which
refused to meet unless the Respondent essentially agreed in
advance that the layoff procedure would be based on plantwide
seniority. The course of the December 6 meeting leaves the
distinct impression that Drudi considered accusing the Respon-
dent of refusing to bargain a better outcome than engaging in
negotiations that, even if pursued by all parties in good faith,
were still likely to yield a layoff that the newly unionized em-
ployees would view as a defeat.
I conclude that the Union’s December 6 waiver of bargaining
regarding layoff procedures also extended to its right to bargain
over the layoff procedures stated in the layoff packet. Further-
more, even after the Union refused the Respondent’s offer to
meet about the layoff procedures, the Respondent provided the
layoff packet to the Union’s plant chairperson, Castiglione, for
review. Prior to distributing the packet to affected employees,
the Respondent modified the packet materials to address the
one disagreement Castiglione expressed with its contents.38
The General Counsel failed to show that the Respondent im-
plemented layoff procedures without affording the Union a
meaningful opportunity to bargain. The complaint allegations
based on the Respondent’s supposed failure to bargain over the

Union that there was an urgent need for the layoff and Drudi did not
send the letter requesting bargaining until almost two weeks later—
after he had stated that the Union would not meet with the Respondent
and after the Respondent had begun to implement the layoff. Given all
the circumstances, I have some doubts as to whether the December 19
letter was a sincere request to bargain and not a delaying tactic. As-
suming that that the letter was the former, I conclude that the Union did
not exercise due diligence in requesting bargaining. On December 6,
the Respondent informed the Union that the need for the layoff was
urgent, and still the Union did not send the letter requesting bargaining
for nearly two weeks. The Board has found that as little as two days
constitute sufficient notice so as not to preclude due diligence on the
part of the bargaining representative to demand bargaining. Jim Walter
Resources, 289 NLRB at 1442.
38 At trial, Castiglione identified multiple other respects in which he
contended that the layoff packet was inconsistent with the procedures in
the handbook. It does not appear that the Union raised any of these
concerns with the Respondent before the Respondent distributed the
packet to affected employees. Thus even assuming that I had not con-
cluded that the Union waived bargaining over the layoff procedures on
December 6, I would conclude that it waived bargaining with respect to
the changes that the Union alleges were included in the layoff packet.
Moreover, where it is alleged that an unlawful unilateral change has
been made that contravenes past practice, it is the General Counsel’s
burden to demonstrate by a preponderance of the evidence the existence
and nature of that practice. Whirlpool Corp., 281 NLRB 17, 22 (1986).
In this case, the General Counsel has not established the existence of
any existing procedures and practices that were contravened by the
provisions in the layoff packet. Even if I agreed that certain layoff
packet provisions were at variance with the preexisting layoff proce-
dures I would find that the changes did not have a significant impact on
the bargaining unit given the nature of those changes and the lack of
credible evidence identifying a single unit employee who had been
affected by them. Unilateral changes that do not have a significant
impact on the bargaining unit are not material, substantial changes, and
do not violate the Act. See, e.g., Mitchellace, Inc., 321 NLRB 191, 193
fn. 6 (1996); Ironton Publications, 321 NLRB 1048 fn. 2 (1996).
layoff procedures in violation of Section 8(a)(1) and (5) of the
Act should be dismissed.
In addition, I conclude that the Respondent did not deny the
Union an opportunity to bargain over the decision whether to
have the layoff at all. Layoff decisions are a mandatory subject
of bargaining and an employer who conducts a layoff without
giving the union notice and an opportunity to bargain over a
layoff decision and its effects on unit employees violates the
Act. Contech Division, SPX Corp., 333 NLRB 875 fn. 1
(2001); Kajima Engineering & Construction, 331 NLRB 1604
(2000); Holmes & Narver, 309 NLRB 146, 147 (1992). In the
instant case, Respondent did provide the Union with notice of
the layoff and an opportunity to bargain on December 6.
However, the evidence does not show that the Union responded
by requesting bargaining regarding the decision about whether
to have a layoff. Even Drudi’s December 19 letter does not
request bargaining on that subject, but only about the “structure
of the layoff and the procedures to be followed.” I conclude
that the Union waived bargaining about the decision to have a
layoff, and the effects of that decision, by failing to act with
due diligence to request bargaining and by refusing the Re-
spondent’s invitation to meet regarding how best to carry out
the layoff. Therefore, to the extent that the complaint alleges
that the Respondent violated Section 8(a)(1) and (5) by failing
to give the Union a reasonable opportunity to bargain over the
decision to have a layoff, or the effects of that decision, those
allegations should be dismissed.
D. Information Requests
An employer must provide information that is requested by a
union and is relevant to the union’s performance of its statutory
duties and responsibilities in representing employees. NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–437 (1967). The stan-
dard for assessing relevance is a liberal, discovery-type stan-
dard. 385 U.S. at 437; see also Ohio Power Co., 216 NLRB
987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). “Where
the information sought covers the terms and conditions of em-
ployment within the bargaining unit, thus involving the core of
the employer-employee relationship, the standard of relevance
is very broad, and no specific showing is normally required.”
Ohio Power Co., 216 NLRB at 991. When information does
not concern the terms or conditions within the bargaining
unit—e.g., when it involves financial information or informa-
tion on competitors—there is no presumption of relevancy.
Dexter Fastener Technologies, Inc., 321 NLRB 612, 612–613
and fn. 2 (1996). In such an instance, the probable or potential
relevance of the information must be shown. Id. Shoppers
Food Warehouse Corp., 315 NLRB 258, 259 (1994). The bur-
den to show relevance is “not exceptionally heavy.” Leland
Stanford Junior University, 262 NLRB 136, 139 (1982), enfd.
715 F.2d 473 (9th Cir. 1983).
1. Financial information
The complaint alleges that the Respondent unlawfully re-
fused to provide financial information sought by the Union in
the written request dated October 24, 2000.39 The financial

39 The complaint originally indicated that the information request
was made on September 24, 2000. At the start of trial, I granted the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1400
information requested by the Union is not presumptively rele-
vant to its duties as the representative of employees and there-
fore the relevance of that information must be demonstrated.
See Dexter Fastener Technologies, 321 NLRB at 612–613 and
fn. 2.40 Financial information is relevant when a union requires
it to assess an employer’s assertion that the employer’s “‘poor
financial condition’“ justifies concessions by the union. NLRB
v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956) (quoting Pioneer
Pearl Button Co., 1 NLRB 837, 842–843 (1936)). The Board
has not required that an employer explicitly articulate a claim
of inability to pay, or utter any “magic words,” in order to trig-
ger an obligation to provide financial information, but has seen
it as sufficient that the employer “effectively” makes a claim of
inability to pay. Shell Co., 313 NLRB 133 (1993) (employer
“effectively pleaded it was presently unable to pay” where it
told union that “economic conditions had affected them ‘very
badly, very seriously,’ that present circumstances . . . were . . .
a matter of ‘survival’ and, that ‘we are telling you all of this
because we need your help’“); see also Lakeland Bus Lines,
335 NLRB 322, 324–325 (2001) (employer conveyed a present
inability to pay by stating that it was “trying to bring the bottom
line back into the black,” that acceptance of the offer would
enable employer to “retain your jobs and get back in the black
in the short term,” and that “[t]he future of the [employer] de-
pends on it”). The Board has held that the relevance of finan-
cial information is not shown, however, when the employer
only claims that concessions are necessary to avoid placing the
employer at a competitive disadvantage. Nielsen Lithograph-
ing Co., 305 NLRB 697, 699 (1991), affd. sub nom. Graphic
Communications Local 50B v. NLRB, 977 F.2d 1169 (7th Cir.
1992).
I conclude that in the course of meetings with the Union re-
garding the reduced work schedule and the layoff, the Respon-
dent made representations regarding its financial condition that
triggered an obligation to provide the financial information
requested by the Union. Taylor Hospital, 317 NLRB 991
(1995) (employer required to furnish budgetary information
when it attributed layoffs to reduced revenues and need to meet
its budget and remain financially healthy). I have carefully
considered the Respondent’s contention that, under Nielsen
Lithographing, supra, it does not have an obligation to supply
the requested financial information because it never claimed it
was unable to pay, but rather justified the reduction in hours
and the layoff based on “market conditions.” I disagree, how-
ever, with the Respondent’s characterization of its representa-
tions to the Union. At a meeting with the Union on November
1, 2000, regarding the reduction in hours, Roper made a presen-
tation about the poor state of the Respondent’s business and
distributed documents indicating that the “extremely low”
future orders were “a cause for great concern.” The documents

General Counsel’s unopposed motion to amend the complaint to substi-
tute “October 24, 2000,” for “September 24, 2000,” in pars. 18 and 22
of the complaint, which relate to the information request.
40 In Dexter Fastener, the same union involved here made an infor-
mation request that was essentially identical to the one at issue in this
case. The Board held that the financial information sought was not
presumptively relevant to the Union’s duties as the representative of
employees. 321 NLRB at 612–613 and fn. 2.
explained that “prices [we]re falling,” and that several competi-
tors were “effectively bankrupt” and trying to sell-off product
to raise cash. New orders were described as “looking bleek
[sic].” Dean stated that other facilities operated by the Respon-
dent might also soon be having reductions due to the poor state
of the steel industry. At the December 6 meeting regarding
planned layoffs, Roper stated that the Respondent might be in
the “red” that month. Kruger justified the need for quick action
on the layoff by stating that “business was really going south in
a hurry.” At a January 4, 2001, meeting—shortly before the
layoff was implemented—Roper told the Union that the state of
the Respondent’s business continued to be bleak. These were
not merely descriptions of “market conditions,” but rather con-
veyed that the Respondent itself was financially in critical con-
dition. I conclude that the Respondent’s statements rise to the
level of a claim that actions such as the reduced work schedule
and layoff were necessary because of the Respondent’s finan-
cial inability to pay. Even if I were persuaded that the Respon-
dent had not explicitly claimed an inability to pay, I would
conclude that, like the employers in Lakeland Bus Lines, supra,
Shell Co., supra, the Respondent “effectively” made such a
claim, and that the Union, therefore, had a right to obtain finan-
cial information in order to meaningfully assess the Respon-
dent’s representations.
The Respondent also asserts that during the meetings it gave
the Union sufficient financial information. Much of the finan-
cial information to which the Respondent alludes was either
supplied verbally or displayed to the Union for only a limited
time. The Board has held that an employer does not meet its
obligation to supply information when it provides the union a
limited opportunity to examine materials, but denies the union
copies thereby preventing extended consideration. Good Life
Beverage Co., 312 NLRB 1060, 1069–1071 (1993); see also J.
I. Case Co. v. NLRB, 253 F.2d 149, 155 (7th Cir. 1958) (em-
ployer violated Act when it orally presented complicated in-
formation at a single bargaining session rather than producing
copies of records in question). Given the nature of the financial
information at issue here, which included statistics and other
figures requiring analysis and interpretation, I conclude that the
Respondent did not meet its obligation to provide financial
information to the Union when it supplied the information ver-
bally or displayed it without providing copies. Moreover, the
information supplied at the meetings did not include all the
documents and information requested by the Union, but only
what the Respondent deemed sufficient. “A respondent’s duty
to supply information . . . is not satisfied by furnishing only the
documents it deems are sufficient. Rather, the Board has long
held that, on request, the employer must supply the union with
sufficient information to enable it to understand and intelli-
gently discuss the issue raised in bargaining.” Good Life Bev-
erage, supra. I reject the Respondent’s contention that it satis-
fied its obligation to produce financial information when, at
meetings with the Respondent, it provided the Union with a
limited opportunity to consider documents and other informa-
tion that the Respondent deemed sufficient.41

41 When the Union informed its members of the agreement reached
on November 8 regarding the reduced work schedule, it stated that the
NORTH STAR STEEL CO. 1401
The Respondent suggests that some elements of the request
were not clear or specific enough to permit it to respond. For
example, it indicates that the Union may not have told Kruger
what it meant by “income statements.” (R Br. at 83.) This is
disingenuous. Kruger essentially conceded that he understood
what was meant by an “income statement” when he offered to
(but did not) provide “last years’ income statement” to the Un-
ion. Similarly Roper testified that he had seen income state-
ments while working for the Respondent, thus indicating that
he, too, understood what one was. I agree that Drudi was not as
helpful as he might have been when he answered the Respon-
dent’s request that he clarify what had not been provided by
merely repeating, verbatim, the text of items from the Union’s
October 24 request. Moreover, the record suggests that Drudi
was prone to badger the Respondent about its response to the
information request even when he had not thoroughly examined
all the documents the Respondent had already provided.42 It is
quite possible that some of the issues regarding the October 24
information request could have been worked out between the
parties if Drudi had responded in a more meaningful way to
the request for clarification. However, given that the Respon-
dent had not yet responded in a forthcoming manner to ele-
ments of the information request that clearly sought necessary
and relevant information, I conclude that the Union has not
forfeited its right to additional financial information by failing
thus far to clarify its request. The Act does not allow an em-
ployer simply to refuse to respond to an ambiguous or over-
broad request, but rather requires it to request clarification
and/or comply to the extent that the request for information
clearly asks for necessary and relevant information. Keauhou
Beach Hotel, 298 NLRB 702 (1990).
The Respondent refused to provide the Union with requested
information regarding management salaries and benefits, claim-
ing that the information was not relevant to bargaining under
Board precedent. In its brief, the Respondent does not identify
the Board precedent that it believes renders such information
beyond the Union’s reach. In fact, the Board has held that the
where an employer claims an inability to pay, the Union may

Respondent had provided “comprehensive data surrounding the current
business conditions.” This statement does lend support to the Respon-
dent’s claim that it provided the Union with sufficient information to
evaluate the claims the Respondent made regarding the reduction in
hours. However, the Respondent does not claim that the Union ever
advised it that the financial information provided was sufficient or that
the Union was no longer seeking the other documents and information
listed in the information request for the purpose of further negotiations
relating to the reduced work schedule. Moreover, other actions by the
Respondent—e.g., the layoff, the elimination of positions in the scrap
yard—gave the Union’s request for financial information continued
relevance to the Union’s duties as the representative of employees.
42 I do not mean to suggest that the Respondent has a “bad-faith” de-
fense to the information request. Bad faith is an affirmative defense to
an information request and must be pled and proved by the Respondent.
Island Creek Coal Co., 292 NLRB 480, 489 and fn. 14 (1989), enfd.
mem. 899 F.2d 1222 (6th Cir. 1990). Here, the Respondent did not
plead “bad faith” as an affirmative defense. Moreover, a bad-faith
defense fails if at least one reason for the information request can be
justified. As discussed above, there were legitimate reasons for the
Union’s request for financial information.
obtain information about managers’ salaries. See Metlox Mfg.
Co., 153 NLRB 1388, 1394–1395 (1965), enfd. 378 F.2d 728
(9th Cir. 1967), cert. denied 389 U.S. 1037 (1968). As was
noted in Metlox, “[s]izeable changes in salaries paid company
officials . . . can change the profit-and-loss picture,” and “good-
faith bargaining, in requiring an employer to substantiate his
inability-to-pay plea, requires the employer to show that the
figures of profit and loss are not only accurate but that they . . .
constitute fair representations of the company’s financial condi-
tion.” Id. I conclude that the management compensation infor-
mation sought in this case is relevant because of the light it
promises to shed on whether the other financial information
fairly represents the Company’s financial condition.
I conclude that the Respondent violated Section 8(a)(1) and
(5) by failing to provide financial information requested by the
Union, including, but not limited to, income statements and
details on management salaries and benefits.
2. Competitor information
In the October 24, 2000, information request, the Union
asked the Respondent to supply: “A list of all your competitors,
including company name, address, and whether they are union-
ized. Also, any wages and benefit information you have on
them.” Information about competitors is not presumptively
relevant to a union’s duties as the collective-bargaining repre-
sentative of employees. Dexter Fastener, 321 NLRB at 612–
613 and fn. 2. If the employer has no relation to the competitor
it is not required to provide information that is not in its posses-
sion or control. CalMat Co., 331 NLRB 1084 (2000).
Although information on competitors is not presumptively
relevant, I conclude that the Respondent put such information
in issue by, inter alia, providing documents to the Union during
negotiations, which stated: “prices are falling as our competi-
tors struggle for volume. RTI and CSC are effectively bankrupt
along with Qualitech and therefore they need cash.” (R. Exh.
18.) As noted above, the Respondent also made other state-
ments that effectively used financial inability to pay as a justifi-
cation for requiring the reduction in hours and the layoff. By
suggesting that the financial desperation of its competitors con-
tributed to the Respondent’s own inability to pay and justified
concessions by the Union, the Respondent engendered an obli-
gation to provide the Union with sufficient information to en-
able the Union to understand and intelligently discuss the issue.
Thus the Respondent did have an obligation to supply the Un-
ion with information in its possession regarding competitors.
The Respondent did not meet that obligation in this case by
providing a photocopy of a commercially published listing of
over a hundred steel companies, the overwhelming majority of
which were not competitors. Moreover, Dean, who responded
to the October 24 request, admitted at trial that he had salary
information regarding one of the Respondent’s major competi-
tors, yet he withheld that information from the Union.
I conclude that the Respondent violated Section 8(a)(1) and
(5) by withholding information regarding competitors from the
Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1402
3. Subcontracting and transfer of work
The Union repeatedly requested information regarding the
Respondent’s outsourcing of work. In its October 24, 2000
written request, the Union asked the Respondent to supply “A
detailed list of all work that is currently being subcontracted by
any temporary service, and any work that may be subcontracted
in the next 12 month period, including name and address of
whom the work is contracted to.” On December 6, 2000, the
Union verbally requested a history of the Respondent’s use of
outside contractors to stack squares, and on January 4, 2001,
the Union verbally asked for the storage and transportation
costs associated with using outside contractors for that work.
On March 6 and 16, 2001, the Union requested information
about any steel production that the Respondent was transferring
from the Monroe facility to the St. Paul facility.
It is not clear whether the type of outsourcing information
sought by the Union is presumptively relevant to bargaining or
whether potential or probable relevance must be shown. Com-
pare, Dexter Fastener, 321 NLRB at 612–613 and fn. 2 with
Island Creek Coal Co., 292 NLRB 480, 488, and 490 fn. 18
(1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990). At any rate,
I conclude that here the record establishes that the information
was relevant to assess the Respondent’s claim that the reduction
in hours and the layoffs were necessary due to its precarious
financial condition. Obviously evidence that there were in-
creases in outsourcing at the same time that the reduction in
hours or the layoffs were proposed, could indicate that the in-
creased use of nonunit employees, rather than decreased busi-
ness, was responsible for at least some of the reductions in
hours and layoffs. Therefore, the information regarding sub-
contracting and transfers of work is relevant.
Regarding item 13, the request for a list regarding work be-
ing subcontracted, I conclude that the Respondent satisfied its
responsibility to provide information under Section 8(a)(1) and
(5) by supplying the Union with a list that stated the name,
address and phone number of each contractor used by the Re-
spondent and described the general sort of work that the con-
tractor was performing for the Respondent. Although the Un-
ion apparently thought it was entitled to additional information,
the list that the Respondent provided was a reasonable response
to the request with which it was presented. Moreover, when the
Respondent asked the Union to specify what information it still
needed, the Union declined to clarify. I conclude that the com-
plaint allegation regarding item 13 of the October 24, 2000
information request should be dismissed.
The Respondent answered the Union’s December 6, 2000,
request for a history of the use of outside contractors to stack
squares by providing a memorandum on January 4, 2001,
which stated the size of each “rolling” since July 1998 and the
percentage of squares that were stacked by outside contractors
for each of those rollings. In response to the Union’s January
4, 2001 request for the storage and transportation costs associ-
ated with the use of outside contractors to stack squares, the
Respondent told the Union that there were no storage costs and
stated the shipping costs on a “cut weight per foot” basis. Nei-
ther the Union nor the General Counsel has clarified what addi-
tional information they believe the Respondent possessed and
should have supplied about the stacking of squares. I conclude
that the Company’s response to the information requests re-
garding the use of outside contractors to stack squares did not
violate Section 8(a)(1) and (5). The allegations relating to
those requests should be dismissed.
In Response to the Union’s request for information about any
steel production that was being transferred or reassigned from
the Monroe facility to the St. Paul facility, the Respondent
stated in a letter that it would not provide the information be-
cause it was “subject to” the complaint this case and “no pre-
hearing discovery [is] contemplated by the rules of the National
Labor Relations Board.” In its brief, the Respondent does not
raise this argument,43 but rather argues essentially that there
was no steel production being transferred to St. Paul, with the
exception of an inconsequential transfer of 175 tons about
which the Respondent had no knowledge until shortly before
trial. For reasons discussed above, I conclude that the Respon-
dent was aware of the transfer of 175 tons of steel production
from the Monroe facility to the St. Paul facility in December
2000, and that the transfer was significant and substantial
enough to require bargaining. I conclude that by refusing to
provide the Union with information regarding steel production
that was being transferred or reassigned from the Monroe facil-
ity to the St. Paul facility, the Respondent violated Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act, when
it threatened employees with different, unfavorable, treatment,
if they selected the Union as their collective-bargaining repre-
sentative.
4. The Respondent violated Section 8(a)(1) of the Act, when
it threatened employees with reduced hours and layoffs if they
selected the Union as their collective-bargaining representative.
5. The Respondent violated Section 8(a)(1) of the Act, when
it implied to employees that collective bargaining would be
futile because such bargaining would not result in the employ-
ees obtaining benefits other than what the Respondent chose to

43 It may be lawful for an employer to refuse a request for informa-
tion if factors such as the timing of the request indicate that its purpose
was to obtain information to assist in the presentation of evidence relat-
ing to a complaint rather than to aid in collective bargaining. See, e.g.,
Frontier Hotel & Casino, 318 NLRB 857, 877 (1995), enfd. in part 118
F.3d 795 (D.C. Cir. 1997). The facts in the instant case, however, do
not suggest that the request was motivated by a desire to assist in the
presentation of evidence a trial. The Union requested the information
on March 6 and 16, 2001, before the Regional Director even filed the
initial complaint on March 30, 2001. Moreover, the information being
sought, which related to the possibility that work was leaving the Mon-
roe facility, was one of the types of information that the Union had
been consistently seeking for purposes of collective bargaining almost
since the inception of its role as the representative of unit employees.
The Respondent has not pointed to persuasive evidence showing that
the Union did not seek the information for purposes of fulfilling its
lawful duties as collective-bargaining representative.
NORTH STAR STEEL CO. 1403
give them and that unionization would necessarily lead the
Respondent to choose to give employees less.
6. The Respondent violated Section 8(a)(1) and (5) of the
Act by failing to give the Union a reasonable opportunity to
bargain before taking the following actions: eliminating three
yard operator positions and displacing employees Cheryl
Hoffman, Troy Daniels, and Scott Lambrix; transferring or
reassigning the production or processing of 175 tons of steel
from its Monroe, Michigan, facility to its St. Paul, Minnesota,
facility; and significantly increasing the percentage of squares it
used outside contractors to stack.
7. The Respondent violated Section 8(a)(1) and (5) of the
Act by failing and refusing to supply the following information
requested by the Union on October 24, 2000, March 6 and 16,
2001: financial information, including, but not limited to, in-
come statements and details regarding management salaries and
benefits; a list of all the Respondent’s competitors, including
company name, address, union status, and any wage and benefit
information that the Respondent possesses regarding each com-
petitor; and, information regarding steel production being trans-
ferred or reassigned from the Monroe facility to the St. Paul
facility.
8. The Respondent did not commit the other unfair labor
practices alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Regarding those instances where I
have found that the Respondent unlawfully made changes
without giving the Union a reasonable opportunity to bargain, I
recommend that the Respondent not only be required to bar-
gain, but also that the status quo ante be restored and that em-
ployees be made whole for any lost pay or benefits resulting
from the unilateral changes. See Bundy Corp., 292 NLRB 671.
Because good-faith bargaining over the elimination of the three
yard operator positions and the displacement of Cheryl Hoff-
man, Troy Daniels, and Scott Lambrix, could have brought
about a different result, I will recommend that the Respondent
be required to offer those individuals reinstatement to their
former positions without prejudice to their seniority or to any
other rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits that resulted
from the elimination of the yard operator positions and their
displacement from the scrap yard. This includes losses, if any,
that are shown during the compliance stage to have resulted
from the effects that the elimination of the yard operator posi-
tions or the displacements from the scrap yard may have had on
the way Hoffman, Daniels, and Lambrix were treated during
the reduction in hours in late 2000, and the layoff beginning in
January 2001. I recognize that even if the Respondent had
bargained over the elimination of the yard operator positions
and the displacement of the three employees those changes may
nevertheless have taken place as they did. That is something
that cannot be known with any certainty because of the Re-
spondent’s unilateral action bypassing the bargaining process. I
nevertheless conclude that reinstatement and make-whole relief
are appropriate since the “‘consequences of Respondent’s dis-
regard of its statutory obligation should be borne by the Re-
spondent, the wrongdoer herein, rather than by the employ-
ees.’“ Lapeer Foundry & Machine, Inc., 289 NLRB 952, 955–
956 (1988) (quoting Hamilton Electronics Co., 203 NLRB 206
(1973)). Backpay should be computed on a quarterly basis
from the date of any reduction in pay, reduction in work hours,
or layoff, that is attributable to either the elimination of the
three yard operator positions or the displacement of the em-
ployees from the scrap yard, to the date of a proper offer of
reinstatement, less any net interim earnings, as prescribed in
F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]