Wayron, LLC

National Labor Relations Board - Board Decisions

Aug 2, 2016

364 NLRB No. 60 (N.L.R.B. 2016)

364 NLRB No. 60
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Wayron, LLC and International Brotherhood of Boil-
ermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers of America, Local 104; The
International Association of Machinists and
Aerospace Workers, AFL–CIO, District Lodge
160, Local Lodge 1350; and The International
Union of Painters and Allied Trades, District
Council 5. Case 19–CA–032983
August 2, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
This case involves the Respondent’s refusal to submit
to a financial audit during contract bargaining and the
Respondent’s unilateral changes to employees’ wages
and benefits after it terminated the bargaining.1 Contrary
to the judge and the dissent, we find that the Respond-
ent’s communications about its financial circumstances,
viewed in their entirety and in context, conveyed inabil-
ity to pay, rather than unwillingness. We therefore con-
clude that the Respondent acted unlawfully when it re-
fused the Unions’ request for a financial audit and that
this refusal prevented the parties from reaching a valid
impasse. We additionally find that, even assuming, ar-
guendo, that the parties had reached a valid impasse, the
Respondent acted unlawfully by unilaterally implement-
ing terms and conditions of employment that did not rea-

1 On March 29, 2012, Administrative Law Judge Gerald A.
Wacknov issued the attached decision. The General Counsel filed
exceptions and a supporting brief, the Respondent filed an answering
brief, and the General Counsel filed a reply brief.
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 and briefs and has
decided to affirm the judge’s rulings, findings, and conclusions only to
the extent consistent with this Decision and Order.
The General Counsel 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. The Respondent, by declining to file
exceptions or cross-exceptions, has accepted the judge’s findings; how-
ever, its answering brief to the General Counsel’s exceptions describes
its conduct in ways that contradict some of the judge’s credibility find-
ings. Even if the Respondent’s characterization of the facts had been
properly raised in the form of exceptions, which they were not, we
would find no basis, applying Standard Dry Wall, to reverse the judge’s
findings.
sonably fall within its final offer to the Unions. Thus, we
reverse the judge’s dismissals of those allegations.2
Facts
The Respondent owns and operates a metal fabrication
shop. It employs metalworkers, mechanics, and painters,
represented, respectively, by local affiliates of the Boil-
ermakers, Machinists, and Painters Unions. The parties’
most recent collective-bargaining agreement ended by its
terms on September 30, 2010.
The parties’ negotiations for a new agreement during
late 2010 and early 20113 were focused almost exclusive-
ly on labor costs. Throughout, the Respondent’s owners,
Jeff Spendlove and Faye Dietz, and its labor consultant,
Dean Nordstrom, expressed the Respondent’s need to
reduce the average per-hour cost of wages and benefits
from $30.51 to $24 or less, so that the Respondent could
be competitive in bidding for work. The Unions initially
demanded an increase of $1.25 per hour, but ultimately
they sought only the continuation of the expiring agree-
ment’s monetary terms.
It is undisputed that, before and during the negotia-
tions, the Respondent was obtaining few of the jobs that
it bid for and had laid off most of its unit employees. In
the early bargaining sessions, the Respondent was repre-
sented by Dietz and Nordstrom, who provided a Septem-
ber 15 proposal (the “red and blue contract,” which was
prepared by Spendlove) that reflected drastic changes to
both economic and noneconomic terms. The Respondent
later calculated that the red and blue contract would have

2 We adopt the judge’s findings, to which the Respondent has not
excepted, that the Respondent violated Sec. 8(a) (1), (3), and (5) in
various respects between February 4 and August 25, 2011. We shall
correct the judge’s Conclusion of Law 3 and the remedy section of his
decision to properly reflect his uncontested finding that the Respondent
violated Sec. 8(a)(3) and (1) by terminating the employees and making
them reapply for work under the unilaterally changed conditions as a
result of the Unions’ failure to agree to the Respondent’s bargaining
demands. Further, in accordance with our decision in AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016), we shall modify the judge’s
recommended remedy by ordering tax compensation and Social Securi-
ty reporting remedies. In addition, we shall modify the judge’s recom-
mended Order to conform to our findings and the Board’s standard
remedial language, as described in the Amended Remedy below. Final-
ly, we shall substitute a new notice to conform to the modified Order
and the Board’s decision in Durham School Services, 360 NLRB No.
85 (2014).
In light of our finding that the Respondent failed to reach impasse
for other reasons, we find it unnecessary to pass on whether the Re-
spondent violated Sec. 8(a)(5) and (1) by engaging in overall bad-faith
bargaining because it would not materially affect the remedy.
We have corrected several inadvertent errors made by the judge in
his decision, including misspellings, typographical errors, misnomers,
and mistaken references. Those errors have not affected our disposition
of this case.
3 Dates are between September 2010 and August 2011 unless other-
wise stated.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reduced average hourly labor costs by $10, nearly a 33
percent reduction. At the September 15 bargaining ses-
sion and at the next session, on October 6, the parties
discussed the terms of their proposals to some extent but
mainly spoke about the Respondent’s financial hardship
and the limited pool of money available for compensa-
tion. Nordstrom’s bargaining notes from October 6 show
that the parties discussed their overall interests: “at-
tract/retain/co[mpany] viability vs. Unions[’] concerns
for continue[d] employment.”4 Also on that day, in re-
sponse to the Respondent’s question about the employ-
ees’ financial priorities, the Unions stated that wages
were a priority.
The next bargaining session, on November 4, was the
first session that Spendlove attended. Speaking for the
Respondent, he offered a proposal that would reduce
average compensation to $24 per hour and would give
the employees the choice of which cost items to cut.
Spendlove spoke about the Respondent’s difficulties in
securing work, because of its increased loss of bids, and
in staying competitive. He did not state that the Re-
spondent was unable to fulfill current contractual obliga-
tions to actively working employees or unable to pay
those employees more money. Rather, he testified,
“what I tried to convey was . . . that “Wayron as a com-
pany wasn’t in jeopardy . . . [but] that what we were not
going to be able to provide was jobs” if the company was
not competitive. Spendlove also informed the Unions
that the Respondent “needed the cost reductions ‘in a
short term fashion’ due to the need to acquire a new line
of credit,” and that the contract must be signed by Febru-
ary. Machinists Business Representative Gregory Heidal
credibly testified that Spendlove stated that the company
was “having a hard time, having difficulties” and “that
they were looking for a competitive edge or an even
playing field, if you will, with his competitors, and that
he needed to reduce the costs of the contract.” Heidal
further testified that “[e]ssentially . . . they had to come
to an agreement with the bank and the landlord”5 and “it
was important for us to get on board for them to make
some sort of agreement so that they could go to the bank
and say, hey, this is where we’re at.” Heidal added, “I
believe Jeff [Spendlove] said they were going to be in
financial trouble if they were unable to make some
agreement with the bank.” As reflected in Spendlove’s
and Nordstrom’s separate bargaining notes for November
4, Spendlove further explained that the Respondent was

4 The Unions’ bargaining notes confirm that Nordstrom stated, “the
viability of the co[mpany] is always important. So is the retention of
employees.”
5 The judge found that the Respondent had already reached an
agreement with the landlord to reduce its rent.
operating at a financial loss, having earned only $2.5
million that year but needing $4.5 million simply to
break even. Spendlove’s bargaining notes show he also
stated that the Respondent had lost money in 2008, 2009,
and 2010 and that it was “out of reserves” and “into
debt.”6 Nordstrom’s notes similarly reflect that
Spendlove said to the Unions that it had “no reserves
now – can’t borrow in this economy – overheads have
been reduced as much as humanly possible.” Spendlove
told the Unions that he wanted to explain to employees
“why such a significant reduction in wages and/or bene-
fits was essential,” and the Unions agreed to Spendlove’s
speaking directly to the employees about the matter.
Spendlove met with unit employees the next day, No-
vember 5. He told the employees that he needed them to
take a large cut in pay and/or benefits; it was not that the
Respondent could not pay, it was that it could not be
competitive, and Spendlove was worried about providing
jobs. Spendlove said that the Unions and employees
could choose how to allocate the necessary reduction of
pay and benefits.
On November 9, Boilermakers Assistant Business
Manager Lance Hickey, on behalf of the Unions, sent the
Respondent a request for access by a union-selected au-
ditor to any financial records that the auditor deemed
necessary to substantiate the Respondent’s claim of in-
ability to pay. The request characterized the Respond-
ent’s bargaining stance as an assertion “that it is finan-
cially unable to pay wages and benefits equal to [those]
in the expired Collective Bargaining Agreement and . . .
that it needs wage and benefit concessions to remain in
business.”7 The Respondent responded to the request the
next day, declining to allow “access for any audits con-
cerning this matter.” It stated that the Respondent was
not claiming, and had not claimed, an inability to pay
wages and benefits under any contract. Rather, the Re-
spondent reiterated, it was “unable to remain competitive
in the current global economic climate, and is seeking
methods of reducing costs to continue to secure work.”
Negotiations continued with a brief session on Decem-
ber 20. Nordstrom sought to clarify again that the Re-

6 The Unions’ bargaining notes are consistent with Spendlove’s but
more detailed. Among other points, they indicate that Spendlove stated
that the Respondent had “no contracts on the books” that would reduce
its deficit for the year.
7 The Unions explained at the hearing that they asked to review the
finances based on the Respondent’s negotiators’ statements about its
financial predicament. Thus, although Nordstrom said, “you will never
hear us say we don’t have the ability to pay,” the Respondent’s con-
sistent refrain that it was not making any money and “can’t compete
with th[e current] contract,” and its claim that it didn’t have any new
work, caused the Unions to perceive that the Respondent was making a
claim of going broke.
WAYRON, LLC 3
spondent had not claimed an inability to pay.8 Hickey,
according to Spendlove’s bargaining notes, stated that
the Unions “were ‘unwilling to take reductions’ to the
employees – that the Union/employees feel that what
they get already is ‘inadequate!’” The Respondent re-
jected Hickey’s suggestion that the existing contract be
extended for a year.9 In response to Hickey’s assertion
that retaining vacation and holidays was significant to
employees, the Respondent “asked if holidays and vaca-
tion were significant enough to put the Company [out] of
business.”
The parties met again on January 28, this time with the
assistance of an FMCS mediator conducting shuttle ne-
gotiations.10 The Respondent maintained its insistence
on a compensation reduction to $24 per hour, while the
Unions opposed any reduction below the status quo. The
Respondent declined the mediator’s proposed 2-week
“think about it” period. The mediator informed the par-
ties that they were so far apart that there was no further
need for her services. Immediately after that meeting,
the Respondent emailed the Unions a notification of its
intent to terminate the contract on February 4.
On February 2, by email, Spendlove clarified that the
Respondent’s best and final offer was the September 15
red and blue contract, with the $6.51-per-hour reduction
proposed in November. In response, the Unions pro-
posed a $0.75-per-hour wage increase for each year of
the contract, an offer that the Respondent apparently re-
jected by email the next day. On Friday, February 4, the
parties met again. They reviewed the Unions’ February
2 offer, but Hickey then proposed simply maintaining the
status quo. The Respondent again insisted that it needed
the reduction to $24 per hour to match its competitors’
compensation levels and to show to the bank in order to
get the Respondent’s line of credit extended.
Spendlove’s notes of that day’s bargaining state:
“Talked about the past/current/future economy & sub-

8 Nordstrom’s bargaining notes reflect that he stated: “Clarification
point: inabil. to pay is an issue of not being able to meet payroll & pay
benefits – we have stated from the start of these neg. that we would
never make a claim of inab. to pay – We did, on 11/4/10 make a
presentation on the co. ability to compete in the marketplace.”
9 Spendlove testified that Hickey would not give the Respondent a
concession because it would lead to a domino effect for all the Unions
nationwide. On cross-examination, Hickey agreed that giving one
employer concessions would “most likely” lead to others asking for
reductions, but he noted that concessions had been granted in other
agreements in 2008 and 2009, “but nothing to the extent of what
Wayron was proposing.”
10 Nordstrom’s bargaining notes reflect that the Respondent again
stated its position as follows: “no inability to pay – there simply is no
work based on co. inability to compete in the market place – comes
down to some [employ]ees at reduced or no [employ]ees at status quo.”
The notes do not make clear whether the Unions were present for those
statements or only the FMCS mediator.
contracting work – see one anothers’ [sic] position –
Wayron stay in business – Union retain pay/benefits for
guys & themselves. Last chance to work something out
but cannot continue at current cost.” The Respondent
stated that it would implement new terms and conditions
of employment on Monday, February 7.
That afternoon, when the actively working employees
went to clock out, Dietz and Spendlove told them not to
come in on Monday but to take employment applications
and bring them in on Tuesday. At the hearing,
Spendlove explained that he and Dietz needed the inter-
vening time to formulate the details of the economic
package, that is, to decide on general and job classifica-
tion-specific and seniority-specific wages and benefits.
Over that weekend, Spendlove and Dietz decided, with-
out the Unions’ input, on a new wage and benefits pack-
age that was intended to conform to the final proposal’s
average compensation rate of $24 per hour. According
to the Respondent, it did so by raising wages; decreasing
vacation, holiday, and bereavement benefits; and elimi-
nating contributions to the Unions’ pension and health
and welfare plans. The record is not clear whether the
Respondent also implemented the changes to noneco-
nomic terms that were contained in the red and blue con-
tract proposal.
In letters dated February 7, the Respondent discharged
all its employees, including those who were on layoff
status at the time. The employees who were working on
February 4 reapplied and returned to work on February 8
under the Respondent’s new terms and conditions.
Based on the discharges and a series of subsequent ac-
tions, the judge found that the Respondent violated Sec-
tion 8(a)(1), (3), and (5) of the Act.11 As noted above,
the Respondent did not file exceptions regarding those
findings.
The Regional Director for Region 19 issued the com-
plaint in this case and dismissed pending decertification
petitions regarding the Boilermakers and the Machinists,
based on which the Respondent had withdrawn recogni-
tion from those two unions and refused to negotiate with
their representatives. After the Board authorized the
General Counsel to seek a 10(j) injunction in this case,
the Regional Office and the Respondent entered into a
consent agreement on August 26, 2011, under which the
Respondent resumed negotiations with all three Unions
and reinstated to laid-off status the employees who had
not been rehired after the February 7 terminations.

11 Those violations, including the Respondent’s conduct underlying
them, are set forth in the judge’s decision. Judge’s decision, infra, slip
op. at 28–30, 32–33.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Discussion
Request for Financial Audit
Under the rationale of Nielsen Lithographing Co.,12
bargaining claims of an inability to pay differ from bar-
gaining claims of competitive disadvantage: the former
require the party making the claim to provide substantiat-
ing financial information if requested, while the latter do
not. The Respondent contends that it made the latter
claim only, and that it therefore was not obligated to
submit to the Unions’ requested financial audit, and the
judge agreed. That is, the judge found that the Respond-
ent never stated or implied that it could not afford the
Unions’ proposals, and that none of the Respondent’s
other statements in negotiations could reasonably be un-
derstood as asserting an inability to pay. We adopt the
judge’s credibility-based findings regarding the testimo-
ny about statements made by the Respondent’s repre-
sentatives; however, in light of the surrounding facts, we
disagree with the judge’s conclusions regarding the rea-
sonable implications of those statements. Contrary to the
judge, we find that the Unions would reasonably have
understood that the Respondent was asserting its inability
to continue compensating employees at the expiring con-
tract’s rates, let alone at the increased wages and benefits
sought by the Unions, and we therefore conclude that the
Unions were within their rights to demand an audit of the
Respondent’s financial records in light of those state-
ments.
Initially, we note that longstanding Board law estab-
lishes that our analysis does not turn on whether or not
an employer utters particular “magic words.” As we
explained in Stella D’oro Biscuit Co.:13
[i]n determining whether there has been a claim of ina-
bility to pay, the Board evaluates an employer’s claims
“in the context of the particular circumstances in that
case.” Lakeland Bus Lines, 335 NLRB 322, 324
(2001), enf. denied 347 F.3d 955 (D.C. Cir. 2003). The
Board does not require that the employer recite any
“magic words,” but only that its statements and actions
be specific enough to convey an inability to pay. Atlan-
ta Hilton & Tower, 271 NLRB 1600, 1602 (1984).
Thus, we must look beyond the Respondent’s carefully
phrased assertions that its position on employee compensa-
tion related to competitiveness and that it would never say
that it could not afford the Unions’ bargaining proposals.
Rather, we consider the Respondent’s statements and ac-

12 305 NLRB 697 (1991), affd. sub nom. GCIU Local 508 v. NLRB,
977 F.2d 1168 (7th Cir. 1992).
13 355 NLRB 769, 770 (2010), enf. denied sub nom. SDBC Hold-
ings, Inc. v. NLRB, 711 F.3d 281 (2d Cir. 2013).
tions in the context of the entire factual picture, drawn not
only from the credited testimony but also from the Re-
spondent’s bargaining notes, which constitute its contempo-
raneous record of its (and the Unions’) statements during
negotiations.14
As described above, the Unions made their request for
an audit on November 9, after the Respondent had set
forth the exigency of its financial circumstances—
including telling the Unions on November 4 that it had
suffered losses each year since 2008 and was “out of
reserves [and] into debt”—and had offered a similar ex-
planation to the employees on November 5. As the judge
found, Spendlove “conveyed to the Unions that the Re-
spondent needed the cost reductions ‘in a short term
fashion’ due to the need to acquire a new line of cred-
it.”15 That is, Spendlove directly connected the Re-
spondent’s bargaining demand for concessions with its
need to demonstrate to the bank that it had reduced ex-
penses and increased income. Spendlove wanted to meet
with the employees, he testified, “to explain to them
what he had told the Unions, because it was a very sig-
nificant reduction that they were being asked to accept
and he wanted the employees to understand why such a
significant reduction in wages and/or benefits was essen-
tial.”16 In speaking to the employees on November 5,

14 In contrast, the dissent accepts the Respondent’s magic words at
face value and rests its conclusion on them. In so doing, it isolates
those words from the context that gave them meaning and disregards
the conflicting statements in the Respondent’s own documents. Al-
though the dissent accuses us of “completely disregarding what was
stated and . . . insisting instead that the party must have ‘meant’ pre-
cisely the opposite of what was stated,” we simply consider the Re-
spondent’s statements in full and in context, as a reasonable listener
would.
15 Judge’s decision, infra, slip op. at 26. Similarly, in recounting the
Respondent’s statements to the Unions and the employees, the Re-
spondent’s brief essentially acknowledges that the Respondent commu-
nicated to them that the company’s access to loans while it operated at
a loss depended on its reducing labor costs. See Respondent’s Re-
sponse to the Acting General Counsel’s Exceptions at 6, 7, and 22. The
dissent suggests that the Unions should have requested communications
between the Respondent and the bank, rather than a financial audit. But
this suggestion—which, in any event, was never raised by the Re-
spondent—is a red herring. In view of the drastic reductions the Re-
spondent was proposing, the Unions had a reasonable interest in con-
firming that the Respondent’s financial situation was as dire as its rep-
resentatives claimed. In addition, the requested information would
enable the Unions to intelligently evaluate the Respondent’s proposal
and formulate counterproposals, including seeking financial savings
from sources other than the compensation of the employees whom the
Unions represented. Copies of the Respondent’s communications with
the bank would not have served that purpose.
16 The dissent barely acknowledges the Respondent’s November 5
meeting with its employees. Although that meeting was not a negotiat-
ing session with the Unions, it was admittedly intended to communicate
to employees the Respondent’s extreme financial straits, which the
Respondent had already communicated to the Unions in the November
4 bargaining session, and to gain employees’ support for the drastic
WAYRON, LLC 5
Spendlove “told them that Wayron had to pull ‘X’ num-
ber of dollars per year to cover overhead.” Even in the
context of Spendlove’s further statements that his con-
cern was about being competitive, such explanations
would reasonably have conveyed the exigency of the
Respondent’s need for cost reductions.17
In this regard, we observe that “competitive disad-
vantage” and “inability to pay,” although different, are
neither mutually exclusive nor separated by a sharp di-
viding line. The Board acknowledged in Nielsen:18
We do not say that claims of economic hardship or
business losses or the prospect of layoffs can never
amount to a claim of inability to pay. Depending on the
facts and circumstances of a particular case, the evi-
dence may establish that the employer is asserting that
the economic problems have led to an inability to pay
or will do so during the life of the contract being nego-
tiated.
It is, of course, an entirely unsurprising proposition that
competitive disadvantage, if continued at length, may even-
tually lead to inability to pay—especially when the business
is losing money and lacks financial resources to cover its
losses.19 Here, we find that the facts and circumstances
establish that the Respondent, despite its surface characteri-
zations to the contrary, was asserting that it could not pay,
during the life of the contract being negotiated, the existing

concessions the Respondent sought in negotiations. Those two meet-
ings with the Unions and the employees immediately preceded the
Unions’ request for a financial audit.
17 See Lakeland Bus Lines, Inc., 335 NLRB 322, 325 (2001) (em-
ployer’s statement that it needed to get “back into the black in the short
term,” combined with its repeated references to financial losses, was
“reasonably construed as a statement that the [employer] was presently
unprofitable and as such was unable to pay more than that contained in
its final offer”), enf. denied 347 F.3d 955 (D.C. Cir. 2003). In denying
enforcement, the D.C. Circuit found it significant that the employer
identified its loss as “short-term.” Here, the Respondent expressly
stated that it was suffering its third consecutive year of losses.
In discussing the denial of enforcement in Lakeland Bus Lines, the
dissent disregards the court’s consideration of the short-term losses
there, focusing instead on the employer’s later clarification of its state-
ments, which the dissent finds comparable to the facts of this case. But,
here, although Spendlove responded by repeating the Respondent’s
magic words, he and the Respondent’s other bargaining representatives
thereafter continued to make statements undermining their claimed
position.
18 305 NLRB at 700.
19 See Lakeland Bus Lines, 335 NLRB at 325 (employer “did not
qualify any of its claims [regarding its financial circumstances] with
statements suggesting that it continued to be profitable or that despite
the loss of revenue there existed some alternative means of paying
more than its final offer”); see also Republic Die & Tool Co., 343
NLRB 683 (2004) (requested audit must be allowed where employer
relied on global competition and company’s financial losses as bases
for unilaterally cutting employee benefits).
(or higher) levels of compensation that the Unions sought.20
Spendlove himself stated during the February 4 bargaining
session that the Respondent’s negotiating goal was “to stay
in business” and that it “cannot continue at current cost.”21
And the Respondent had raised the company’s viability as
an issue in negotiations at least as early as October 6.
The facts of Nielsen, in which the Board ultimately
found that the employer had claimed not an inability to

20 The dissent pulls out of context one sentence of Heidal’s explana-
tion for why the Unions requested the audit, suggesting that the Unions
made the request with full understanding that the Respondent was
asserting only an inability to compete. In context, however, it is abun-
dantly clear that the Unions recognized that the Respondent’s commu-
nications reflected a more expansive financial inability, even as its
representatives strategically insisted that they were asserting only an
inability to compete. Thus, Heidal explained:
Q. And why did you ask for [the audit]?
A. Well, because it kept -- they weren’t crying poverty. In fact, in
our first meeting with the company we asked them about that. They
were telling us, you know, things were tough. And so we asked them
if they were crying poverty. And Dean Nordstrom, I believe, as he
said, you will never say -- you will never hear us say we don’t have
the ability to pay. Okay.
Well, as we continue down this road they continue to beat the
same drum that they were not making any money. So at some point
you got to go, well, okay, prove it, you know. At this point they’re not
saying -- they’re not crying poverty, but they’re telling us they can’t
afford the contract. They can’t compete with that contract. I don’t be-
lieve they ever said they can’t afford the contract.
So, all right, if that’s the case, you’re telling us you can’t com-
pete, then we’ll request the financial records. Where are you at? Are
you going broke or not?
Q. And weren’t they also saying they would go out of business if
they didn’t get the cuts that they sought?
A . Yes. They said they were unable to compete and they wouldn’t
have any work.
(Emphasis added). Heidal’s care in articulating the Respondent’s precise
language bolsters, rather than undermines, his credibility in perceiving that
the Respondent’s carefully selected competitiveness terminology did not
match the overall meaning of its communications. The dissent takes pains
to explain why Heidal’s final “yes” is entitled to little weight. But as we
have explained repeatedly, our analysis does not fixate on one particular
word or phrase.
21 The Respondent’s ability to recall a number of its laid-off employ-
ees, and to hire new employees, after its implementation of lower com-
pensation, lends support to its claim that the contractual labor costs
were an obstacle to winning bids and remaining in business.
The dissent criticizes our reliance on the Respondent’s February 4
bargaining notes, finding them too cryptic and too late to support the
Unions’ November 9 audit request. But, of course, we rely as well on
the Respondent’s earlier statements, including those referred to in its
notes of the bargaining sessions prior to November 9, documents about
which the dissent says nothing. We agree that the bargaining notes are
not a word-for-word transcript of the negotiations; they are, after all,
notes. But our reading of the notes is both objectively reasonable—for
example, the Respondent’s statement that its goal was to “stay in busi-
ness” necessarily suggests that it might not be able to do so, despite the
dissent’s efforts to avoid this obvious conclusion—and consistent with
the record as a whole, which confirms the Unions’ understanding that
the Respondent was claiming it could not remain in business without
the concessions it demanded.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pay but only a competitive disadvantage, are distinguish-
able from this case in several respects. First, in Nielsen,
the employer never claimed that it was not making a
profit; in fact, it insisted that it was profitable.22 Here, in
contrast, the Respondent said to both the Unions and the
employees that it was suffering substantial, multiyear
losses. Second, in Nielsen, the Board found that there
was no evidence that competitive disadvantage would
lead to inability to pay during the term of the contract
being negotiated. Here, the Respondent made it abun-
dantly clear that it needed the wage and benefit conces-
sions to show to the bank by February that it had reduced
its labor costs—which the bank was demanding as a
condition of extending the Respondent’s line of credit.
Spendlove communicated on November 4 that the Re-
spondent was “out of reserves,” and “in debt.”23 Dietz’s
testimony that the Respondent would max out its line of
credit if it continued operating at a loss, although not
discussed by the judge, is uncontroverted. And, in nego-
tiations, Spendlove expressly connected the Respond-
ent’s financial difficulties to the company’s “viability.”24
Finally, in Nielsen, the majority found that the possibility
of layoffs was mentioned only as a long-term, amor-
phous prospect; here, most of the unit employees had
already been laid off. The Respondent contends that it
was not unable to meet its obligations under the collec-
tive-bargaining agreement, because, it asserts, it could
continue laying off employees when it could not obtain
work.25 But it had nearly run out of actively working

22 See also ConAgra, Inc. v. NLRB, 117 F.3d 1435 (D.C. Cir. 1997)
(employer’s statements in connection with its demand for wage reduc-
tions were not assertions of an inability to pay in the context of its
repeated statements that it remained profitable).
23 This contrasts with North Star Steel Co., 347 NLRB 1364, 1370
(2006), cited by the Respondent. The Board’s finding that the employ-
er there had not asserted an inability to pay turned on the fact that its
bargaining statements “stayed completely clear of the subject of com-
pany assets and its ability to pay employees.”
24 See Shell Co., 313 NLRB 133, 133–134 (1993) (employer “plead-
ed a present inability to pay” when it stated that it was “losing busi-
ness” and its financial situation was “bad” and “a matter of survival”).
The Respondent and the dissent cite Richmond Times-Dispatch, 345
NLRB 195, 197 (2005) and AMF Trucking & Warehousing, 342 NLRB
1125, 1126 (2004), in which the Board found no obligation to provide
financial information. But in those cases, the Board distinguished Shell
Co. and Lakeland Bus Lines, expressly based on the presence or ab-
sence of employer language indicating that the company had insuffi-
cient assets to pay and therefore could not survive if it met the union’s
economic demands.
25 The Respondent appears to mistakenly interpret ability to pay as
relating to its ability to meet its payroll and benefit obligations on any
given day (and the dissent seems to join in that error), rather than
whether the Respondent could sustain itself at a proposed compensation
level throughout the contract’s duration.
Unlike our colleague, we are unpersuaded by the judge’s inference
that Spendlove discussed the Respondent’s $4.5 million break-even
point, $2 million deficit, and need to secure a line of credit, not to
employees to lay off and, in any event, it would still have
had to pay fixed costs, such as rent and utilities. This
case thus demonstrates, in a way that Nielsen did not, a
persistent claim of competitive disadvantage that more
accurately would have been described as an inability to
pay.26
Consistent with Nielsen, Shell Co., and Lakeland Bus
Lines, among other precedents, we find that even absent
express assertions of an inability to pay, the Respond-
ent’s statements demonstrate that it effectively asserted
that it could not afford to pay even the wages and bene-
fits of the expiring contract, let alone the increases that
the Unions sought in a new contract. The Respondent
claimed it had been unprofitable operating with its exist-
ing labor costs for several years running; it had no corpo-
rate parent willing or able to sustain losses; and its exter-
nal source of financial resources, the bank that provided
its line of credit, was no longer willing to fund such loss-
es without significant cost reductions. In short, the Re-
spondent’s demand for concessions in compensation
amounted to a claim that it could not pay the existing
rates, not that it would not pay them.27

communicate an inability to pay but to convince the Unions and em-
ployees that concessions were needed for the purpose of returning laid-
off employees to work. Those purposes are not mutually exclusive, and
the difference between them is at most a matter of degree. The General
Counsel and the judge each strain to parse the Respondent’s interest in
“providing jobs” as relating, respectively, to operational viability or to
recalling laid-off employees, but their efforts only highlight the lack of
a clear dividing line. Further, even the judge’s strained interpretation
of “providing jobs” as recalling laid-off employees may be read as
evidence of an inability to pay. See Lakeland Bus Lines, 335 NLRB at
325 (statements regarding retention of employees’ jobs, in context,
supported finding claim of inability to pay).
26 This case also differs from Stella D’oro, supra, in which the Se-
cond Circuit denied enforcement, finding, among other things, that the
employer’s access to funding by its parent company demonstrated that
it was asserting unwillingness, rather than inability, to pay, and that
proof of its own financial status would not advance contract negotia-
tions. SDBC Holdings, Inc. v. NLRB, 711 F.3d at 288–289. See also
Stroehmann Bakeries, Inc. v. NLRB, 95 F.3d 218, 223 (2d Cir. 1996)
(denying enforcement of Board order where employer’s parent compa-
ny had “deep pockets” that could fund losses but chose not to do so).
In contrast with both of those cases, the Respondent’s only identified
source of funding to absorb its losses was the bank, which was insisting
on labor-cost reductions before extending the Respondent’s line of
credit.
27 No party has asked us to overrule the Board’s inability-to-pay de-
cisions, and we need not revisit that body of law here. Nevertheless,
this case illustrates that the Board’s post-Truitt analytical distinction
between inability-to-pay cases and less-than-inability-to-pay cases
often leads parties to become preoccupied with “magic words,” dis-
tracting them from genuine dialogue and information sharing that can
lead to productive collective bargaining. In an appropriate case, we
would consider how the Board has distinguished between “inability to
pay” and “competitive disadvantage” claims in post-Nielsen cases and
whether these distinctions best serve the Act’s goal of promoting good-
faith bargaining. See Chemical Workers v. NLRB, 467 F.3d 742, 749
fn. 4 (9th Cir. 2006), reversing American Polystyrene Corp., 341
WAYRON, LLC 7
The dissent predicts that today’s decision will under-
mine open communication by parties engaged in bargain-
ing. But collective-bargaining participants will continue
to understand that bargaining demands for drastic con-
cessions, like those at issue here, will require justifica-
tion. The dissent’s argument appears to reflect funda-
mental disagreement with the policy judgment that the
Supreme Court articulated 6 decades ago in Truitt: if a
party seeks to use its financial exigency as a bargaining
tool, it must, on request, support the asserted exigency.
Similarly, in NLRB v. American National Insurance Co.,
which the dissent quotes at length, the Court stated that
“the Act does not encourage a party to engage in fruitless
marathon discussions at the expense of frank statement
and support of his position.” Id., 343 U.S. 395, 404
(1952) (emphasis added). What we find today is simply
that the Respondent refused to support, as Truitt requires,
its central and frankly stated bargaining position that
drastic wage and benefit cuts were financially necessary.
The dissent would validate the Respondent’s apparent
belief in magic words. But good-faith bargaining in the
context of financial hardship does not follow the rules of
the game “Password,” such that the Respondent wins if it
effectively circles around a key word or phrase, success-
fully describing it without actually uttering it.
The judge, in an alternative rationale, would not have
found the violation even if the Respondent had expressly
claimed an inability to pay, because, the judge said, the
Unions made it clear that they would not have agreed to
concessions in any event and both sides knew that an
audit would have been futile. In contrast to the dissent,
we reject this analysis. It is true that the Unions ex-
pressed concern to Spendlove about the potential domino
effect of concessions; however, the judge’s finding that
the Unions would not have agreed in any event is not
supported by the record.28 The judge’s perception that an
audit would have been futile is also speculative: there is
no way to know what effect an audit may have had on
negotiations, because the Respondent unlawfully refused
to allow one. If an audit had substantiated the Respond-

NLRB 508 (2004); see also SDBC Holdings, Inc. v. NLRB, 711 F.3d at
295 (Cabranes, J., concurring) (suggesting that the Board may wish to
reconsider whether the Board’s “ability to pay” jurisprudence is con-
sistent with NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956)).
28 The judge did not specify what evidence he relied on in finding
that the Unions made clear that they would not agree to concessions
even if the Respondent permitted an audit. Hickey’s December 20
statement that he would not take a concessionary proposal to the em-
ployees, made shortly after the Respondent had refused the Unions’
requested audit, seemingly reflects only the position the Unions would
take in light of that refusal. And Spendlove testified that the Unions
never said that they would agree to concessions if they received the
information, but testimony that they did not say they would agree hard-
ly establishes that they said or implied the opposite.
ent’s claims, it seems unlikely that the Unions would
have continued to seek the impossible. Unlike our dis-
senting colleague, we will not extinguish the Unions’
rights based on such vague testimony, counterfactual
speculation, and disregard of the reasonable effects of the
Respondent’s unlawful conduct. In any event, the Board
does not divest a party of its right to requested infor-
mation, if it is otherwise relevant and required to be pro-
vided, unless the party sought the information in bad
faith.29 The arguments and evidence offer no basis for
such a finding here, and our dissenting colleague’s per-
sonal belief that the Unions were just engaged in a delay-
ing tactic does not fill that gap.
The Respondent’s brief to the Board utterly fails to
persuade us that it acted lawfully in refusing the Unions’
request for a financial audit. In recounting the facts, the
Respondent conspicuously overlooks its representatives’
statements in negotiations, described above. Further, the
Respondent simply reiterates its initial response to the
Unions: that it never stated an “inability to pay.” In oth-
er words, the Respondent insists, as it has throughout
these proceedings, that it did not recite certain “magic
words,” without which incantation, it contends, no obli-
gation can arise. In short, the Respondent misstates both
the facts and the law. For all of the foregoing reasons,
we find that the Respondent violated Section 8(a)(5) and
(1) as alleged.
Unilateral Implementation of Wages and Benefits
The judge found that the Respondent and the Unions
were at impasse on February 4 and that the Respondent
therefore acted lawfully in unilaterally implementing
new terms and conditions of employment.30 The judge
also rejected the General Counsel’s allegation that the
Respondent’s new terms and conditions had not been
specifically proposed to the Unions and thus could not
lawfully be implemented. We reverse the judge on both
issues.
We do not quarrel with the judge’s factual finding that
the negotiations were deadlocked in early February, and
the General Counsel does not contend that they were not.
But “impasse,” which privileges the Respondent to uni-
laterally implement terms and conditions of employment,
requires more than the existence of a deadlock: the Re-

29 As explained in NLRB v. Truitt Mfg., the obligation to provide in-
formation in bargaining is based on the goal that bargaining be based
on “honest claims,” i.e., that a claim of inability to pay be substantiated.
351 U.S. at 152–153.
30 The judge did, however, find that the Respondent committed nu-
merous violations thereafter, some of which, such as the discharges of
all the unit employees, occurred even before the Respondent ultimately
implemented its terms and conditions on February 8. Judge’s decision,
infra, slip op. at 32–33.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent must not have committed unfair labor practices
that substantially affected the course of bargaining.31 We
have found, contrary to the judge, that the Respondent
was obligated to allow the Unions to audit its books and
that it unlawfully failed to do so. We further find that
that violation was neither incidental to the parties’ nego-
tiations nor without consequences. The Respondent’s
financial hardship—and the extreme concessions it need-
ed from the Unions to alleviate that hardship—were in-
disputably central to the parties’ negotiations, and the
negotiations ultimately broke down over the parties’ in-
ability to reach agreement on employee compensation.
Certainty that the audit would have resulted in an agree-
ment is unnecessary; it is sufficient that the lack of an
audit, which might have confirmed the Respondent’s
assertions of dire circumstances and the need to agree to
the substantial reductions it sought, frustrated efforts to
reach agreement.32 Because the Respondent refused to
provide information that would support its central bar-
gaining demand for drastic concessions, we find that
impasse was not reached and the Respondent unlawfully
implemented changes to terms and conditions of em-
ployment.33
Moreover, even assuming, arguendo, that the parties
had reached a bona fide impasse, the Respondent could
not lawfully implement the terms it imposed on February
8, 2011. The law is clear that an employer’s post-
impasse changes cannot be substantially different from
the terms of its final proposal.34 Here, the Respondent

31 See, e.g., E.I. Du Pont de Nemours & Co. v. NLRB, 489 F.3d
1310, 1315 (D.C. Cir. 2007) (quoting Decker Coal Co., 301 NLRB
729, 740 (1991), for proposition that “a legally recognized impasse
cannot exist where the employer has failed to satisfy its statutory obli-
gation to provide information needed by the bargaining agent to engage
in meaningful negotiations”).
32 See E.I. Du Pont de Nemours & Co., supra (“As a legal matter,
although the Board has consistently suggested the necessity for some
causal connection between an unfair labor practice and an interruption
in bargaining before declaring impasse, the Board has never required
the establishment of ‘but for’ causation in absolute terms. The Board
has, however, repeatedly reiterated the principle that ‘a finding of valid
impasse is precluded where the employer has failed to supply requested
information relevant to the core issues separating the parties.’ Cald-
well Mfg. Co., 346 N.L.R.B. [1159], at [1159, 1170] (2006) (emphasis
added); see also Titan Tire Corp., 333 N.L.R.B. 1156, 1159 fn. 11
(2001); U.S. Testing Co., 324 N.L.R.B. 854, 860 (1997) [, enfd. 160
F.3d 14 (D.C. Cir. 1998)].”).
33 See Monmouth Care Center v. NLRB, 672 F.3d 1085, 1093 (D.C.
Cir. 2012) (“It was . . . reasonable for the Board to conclude that the
[employers’] failure to provide information concerning a central point
of contention between the parties—indeed, regarding an issue that the
[employers] themselves characterize as a ‘key bargaining issue’ [cita-
tion omitted]—frustrated the parties’ efforts to reach an agreement and
precluded a finding of genuine impasse.”).
34 See, e.g., Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882,
886 (D.C. Cir. 1997) (“When impasse occurs, an employer may imple-
ment only those changes reasonably falling within its pre-
acknowledges that the actual terms of its final proposal
were not determined until after negotiations had ended.35
Clearly, then, the wages and benefits that the Respondent
ultimately implemented were never presented to the Un-
ions for consideration, let alone for discussion, before
being implemented. The Unions could have expected the
implemented wages and benefits to contain drastic reduc-
tions, but they would not have known what particular
terms would be cut or by how much, given that the Re-
spondent itself did not know until it formulated specific
terms after the parties’ last bargaining session.36 We thus
find that the specific terms implemented were not “rea-
sonably encompassed” by the proposal such that the Re-
spondent was legally privileged to implement them.
We reject the Respondent’s argument that the Unions’
failure to cooperate in choosing which benefits to reduce
or eliminate left it no alternative but to unilaterally de-
termine the terms and conditions that would be imple-
mented.37 An employer may, of course, formulate its
bargaining proposals unilaterally. And, if a valid im-
passe exists, it may unilaterally implement its final pro-
posal. But it may not, consistent with the obligation to
bargain in good faith, terminate negotiations and then
implement later-formulated terms without having given
the union(s) the opportunity to respond to them.

impasse proposal.”); and Atlas Tack Corp., 226 NLRB 222, 227 (1976)
(impasse enables an employer to make unilateral changes that are “not
substantially different or greater than any which the employer . . . pro-
posed during the negotiations”), enfd. mem. 559 F.2d 1201 (1st Cir.
1977).
35 Our colleague would also find this conduct to be a violation of
Sec. 8(a)(5), although he characterizes the violation differently and
would order a more limited remedy for it. His suggestion that we order
only notice and an opportunity to bargain over the precise allocation of
reductions, without even rescission of the reductions unlawfully im-
plemented, is insufficient to return either the employees or the Unions
to the status quo ante. We therefore reject his contention that our
standard make-whole remedy, ordering rescission of unlawfully im-
posed changes, is somehow punitive.
36 The September 15 “red and blue contract” prepared by the Re-
spondent also stated or implied, among other things, that the employees
were no longer union represented and that the just-cause standard for
discipline no longer applied. The record is not clear about which non-
economic terms the Respondent actually implemented. The dissent
incorrectly contends that the noneconomic terms are not before us. The
sole reason that we do not address them is that we need not reach the
General Counsel’s allegation that the Respondent bargained in bad faith
generally. Because we do not reach that allegation, we do not pass on
the dissent’s assertion that “[o]n the record presented here, nobody can
seriously contend that Respondent’s wage and benefit proposals were
formulated in bad faith.”
37 We similarly reject the dissent’s implication that the Unions
waived a “contingent right” to choose what benefits should be reduced
or eliminated. Absent an impasse after good-faith bargaining, the Un-
ions were under no obligation to choose what form of poison they
preferred to administer to the employees they represented. Indeed,
placing a union in such a position would seriously undermine it in the
eyes of the employees.
WAYRON, LLC 9
Thus, even assuming that the Respondent wanted to be
flexible in bargaining by allowing the Unions and em-
ployees to choose which pay and benefit terms would be
cut, and even assuming further that the Unions failed to
make that choice,38 the Respondent was not without op-
tions: as the dissent acknowledges, the Respondent
could have offered the Unions a final proposal containing
specific wage rates and benefit payments, i.e., a proposal
capable of being implemented as proposed. Had it done
so (in the context of negotiations untainted by other un-
fair labor practices), it could have compelled the Unions
to respond with their own proposal or to accept that the
Respondent would unilaterally implement its proposal.39
But it did not and, therefore, even if its refusal to comply
with the Unions’ request for a financial audit had not
independently precluded the Respondent’s reliance on
the asserted impasse, it would not have been privileged
to unilaterally implement its terms and conditions of em-
ployment here.40
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.

38 The Respondent decided the amounts of individual cost items with
no input from the Unions beyond a statement that wages were a priori-
ty, a statement that was made in a bargaining session 3 months earlier.
We do not find the Respondent’s reliance on that statement to be a
defense. Cf. Hoffman Security, 315 NLRB 275, 276–277 (1994) (em-
ployer acted unlawfully in unilaterally discontinuing merit raise pro-
gram, despite union’s proposal, earlier in bargaining, to discontinue it;
no agreement had been reached, and union had not agreed to that
change absent a full agreement).
39 The judge found that the wages and benefits implemented were
close enough to an overall average compensation of $24 per hour (al-
beit without stating which party’s calculations and total he relied on) to
be consistent with the Respondent’s proposal. We need not pass on
that determination in light of the analysis above. We note, however,
that the judge’s “close enough” finding relied on the Respondent’s
uncertainty about which employees would return to work and when.
But that uncertainty was created in significant part by the Respondent’s
own conduct, not only in declaring an impasse on unspecified terms
(the lawfulness of which we do not decide), but also in unlawfully
terminating all its employees and communicating to them in the rehire
process that the Respondent had become a nonunion employer. We
would not give the Respondent the benefit of the doubt here. See, e.g.,
Whitesell Corp., 357 NLRB 1119, 1183 (2011) (citing cases).
40 In light of our findings that the Respondent’s refusal to comply
with the Unions’ request for a financial audit precluded impasse, and
that the terms the Respondent unilaterally implemented were not rea-
sonably encompassed within its pre-impasse proposals, we need not
decide whether the Respondent could lawfully insist to impasse on its
proposal to reduce wages and benefits by an aggregate amount and, as
part of the proposal, to require the Unions to determine where the cuts
will be made.
3. The Respondent has violated Section 8(a)(1), (3),
and (5) of the Act as found herein.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall be ordered to permit the Unions’
auditor to audit its financial records, as the Unions re-
quested on November 9, 2010, to verify the Respond-
ent’s claims in bargaining regarding its financial hard-
ship.41 Having implicitly declared impasse on or about
February 4, 2011, when no valid impasse existed, the
Respondent shall be ordered to rescind, on the Unions’
request, any or all of the unilateral changes to the unit
employees’ terms and conditions of employment made
thereafter and to make the unit employees whole for any
loss of earnings and other benefits attributable to its un-
lawful conduct. The make-whole remedy shall be com-
puted in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
The Respondent also will be required to make all con-
tractually required contributions to the Unions’ benefit
funds that it failed to make, including any additional
amounts due the funds on behalf of the unit employees in
accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979), and to make the employees
whole for any expenses they may have incurred as a re-
sult of the Respondent’s failure to make such payments,
as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981). Such amounts shall be computed in the manner
set forth in Ogle Protection Service, supra, with interest
as prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.42
The judge found that employees were unlawfully dis-
charged about February 7, 2011, but he did not recom-
mend the Board’s standard remedies for that violation.
We shall require the Respondent not only to rescind the

41 The Respondent’s brief states that, on February 6, 2012, the Boil-
ermakers disclaimed interest in representing the employees; however,
the record contains no evidence regarding this assertion. We leave to
compliance proceedings the determination whether any of the Unions
has disclaimed a representational interest.
42 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respond-
ent will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discharges but also to make the employees whole for any
loss of earnings and other benefits they suffered as a re-
sult of their unlawful discharges.43 Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra. The Respondent also
will be required to remove from its files and records any
and all references to the unlawful discharges and notify
the affected employees in writing that this has been done
and that the discharges will not be used against them in
any way.
The Respondent additionally shall be ordered to com-
pensate affected employees for any adverse tax conse-
quences of receiving a lump-sum backpay award and file
with the Regional Director for Region 19 a report allo-
cating the backpay awards to the appropriate calendar
years for each employee. AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016).
The Respondent also will be ordered to recognize and,
on request, bargain with Boilermakers Local 104, Ma-
chinists District Lodge 160, Local Lodge 1350, and
Painters District Council 5 as the bargaining representa-
tives of the unit employees in their respective crafts with
respect to wages, hours, and other terms and conditions
of employment and, if an agreement is reached, embody
it in a signed document.44 For the reasons set forth in
Caterair International, 322 NLRB 64 (1996), we find
that an affirmative bargaining order is warranted in this
case as a remedy for the Respondent’s unlawful with-
drawal of recognition. The Board has consistently held
that an affirmative bargaining order is “the traditional,
appropriate remedy for an 8(a)(5) refusal to bargain with
the lawful collective-bargaining representative of an ap-
propriate unit of employees.” Id. at 68. In several cases,
however, the U.S. Court of Appeals for the District of
Columbia Circuit has required the Board to justify, on
the facts of each case, the imposition of an affirmative
bargaining order. See, e.g., Vincent Industrial Plastics,
Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lum-
ber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454,

43 The record reflects that the Respondent has already, in compliance
with the consent agreement, offered all terminated employees re-
instatement, albeit reinstatement to laid-off status in some cases. We
leave to compliance proceedings the determination of which losses, if
any, are attributable to the unlawful discharges, rather than to layoffs
that were not alleged to be unlawful.
44 The parties at the time of the hearing had resumed negotiations
under a consent agreement reached after the Region announced its
intention to seek a 10(j) injunction, but the current status or outcome of
those negotiations is unknown.
If, as discussed above in fn. 41, one or more of the Unions has dis-
claimed any representational interest, there shall be no obligation to
bargain with such Union(s).
1462 (D.C. Cir. 1997); and Exxel/Atmos, Inc. v. NLRB,
28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, supra
at 738, the court summarized its requirement that an af-
firmative bargaining order “must be justified by a rea-
soned analysis that includes an explicit balancing of three
considerations: ‘(1) the employees’ Section 7 rights; (2)
whether other purposes of the Act override the rights of
employees to choose their bargaining representatives;
and (3) whether alternative remedies are adequate to
remedy the violations of the Act.’” Although we respect-
fully disagree with the court’s requirement for the rea-
sons set forth in Caterair, supra, we have examined the
particular facts of this case and find that a balancing of
the three factors warrants an affirmative bargaining or-
der.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining through their
designated representatives by the Respondent’s with-
drawal of recognition from the Boilermakers and the
Machinists and its resultant refusal to bargain collective-
ly with the Unions. It is particularly appropriate here,
where the Respondent overrode the unit employees’ ex-
ercise of their Section 7 rights, in their choice to be rep-
resented by the Unions, not only by expressly withdraw-
ing recognition from the Boilermakers and the Machin-
ists and implicitly withdrawing recognition from all three
Unions by refusing to schedule bargaining dates, but also
by terminating all the unit employees and significantly
changing their terms and conditions of employment
without notice to or bargaining with the Unions, and by
communicating to the employees, in the rehire process,
that their workplace would thereafter be nonunion. At
the same time, an affirmative bargaining order, with its
attendant bar to raising a question concerning the Un-
ions’ continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued representation by the
Unions. The duration of the order is no longer than is
reasonably necessary to remedy the ill effects of the vio-
lations. It is only by restoring the status quo ante and
requiring the Respondent to bargain with the Unions for
a reasonable period of time that the employees will be
able to fairly assess the Unions’ effectiveness as a bar-
gaining representative in an atmosphere free of the Re-
spondent’s unlawful conduct. The employees can then
determine whether continued representation by the Un-
ions is in their best interest.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. It removes the Re-
spondent’s incentive to delay bargaining in the hope of
WAYRON, LLC 11
discouraging support for the Unions. It also ensures that
the Unions will not be pressured by the Respondent’s
withdrawal of recognition to achieve immediate results at
the bargaining table following the Board’s resolution of
its unfair labor practice charges and the issuance of a
cease-and-desist order, particularly in the absence of any
record evidence of the progress or outcome of their bar-
gaining subject to the consent agreement.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations, because it would allow a challenge
to the Unions’ majority status before the taint of the Re-
spondent’s unlawful withdrawal of recognition has dissi-
pated. Such a result would be particularly unfair in cir-
cumstances such as those here, where the nature of the
Respondent’s unfair labor practices has already influ-
enced the filing of at least two decertification petitions
(subsequently dismissed) and likely created a lasting
negative impression of the Unions in the bargaining unit.
We find that those circumstances outweigh the tempo-
rary impact the affirmative bargaining order will have on
the rights of employees who oppose the Unions’ contin-
ued representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violations in this
case.
We also shall order the Respondent to post the Board’s
standard notice to employees.45 Consistent with our
standard remedial language, we require electronic post-
ing of the notice in accord with J. Picini Flooring, 356
NLRB 11 (2010), and, if the Respondent has gone out of
business or its facility has closed, mailing of the attached
notice to the Union and to the last known addresses of its
former unit employees in order to inform them of the
outcome of this proceeding. Additionally, we shall order
the Respondent to mail the notices to any unit employee
on layoff status as of February 4, 2011. We shall require
such mailing because of the lengthy passage of time
since the unfair labor practices were committed and be-
cause some of the employees who were unlawfully ter-
minated by the Respondent on or about February 7,
2011, were not recalled to work and therefore would not
see the notices physically posted at the Respondent’s
facility. In addition, those employees were unlawfully
discharged by mail, making it appropriate that they be
notified in a similar manner that the discharges, as well
as other actions by the Respondent, were unlawful.

45 As stated above, we shall substitute new notices in accordance
with Durham School Services, 360 NLRB No. 85 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Wayron, LLC, Longview, Washington, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Boilermakers
Local 104, Machinists District Lodge 160, Local Lodge
1350, and Painters District Council 5, or their successors
(the Unions) by failing and refusing to promptly furnish
them with requested information that is relevant and nec-
essary to the Unions’ performance of their duties as the
sole collective-bargaining representatives of the Re-
spondent’s unit employees described in article 1 of the
collective-bargaining agreement that was terminated on
February 4, 2011 as:
[E]ngaged in the fabrication of iron, steel, metal and
other products, the machining, repair of machinery or
manufacture of products, the preparation of or paint-
ing/coating of any product, item, or in the maintenance
work in or about the Company’s plant(s) located in
Longview, Washington or any work undertaken off-
site.
(b) Unilaterally implementing changes in the terms
and conditions of employment of its unit employees, as
provided for in the collective-bargaining agreement that
was terminated on February 4, 2011.
(c) Terminating employees and requiring them to re-
apply because of the termination of the contract and ces-
sation of collective-bargaining negotiations.
(d) Advising employees or causing them to believe
that, because of the termination of the contract and cessa-
tion of negotiations, they are no longer represented by
the Unions.
(e) Failing to notify the Unions of its intent to dis-
charge employees, implicitly withdrawing recognition
from the Unions, delaying further bargaining with the
Unions, and delaying the furnishing of relevant infor-
mation to the Boilermakers Union as the collective-
bargaining representative of boilermakers employees.
(f) Withdrawing recognition from the Boilermakers
Union or Machinists Union pursuant to decertification
petitions prior to remedying unfair labor practices that
reasonably influenced the filing of such petitions.
(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) Furnish the Unions’ auditor the financial infor-
mation that the Unions requested on November 9, 2010.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) On request, meet and bargain with the Unions as
the exclusive collective-bargaining representatives of the
unit employees in their respective crafts, as described in
paragraph 1(a), above, concerning terms and conditions
of employment and, if an understanding is reached, em-
body the understanding in a signed agreement or in
signed agreements.
(c) On request by the Unions, rescind any or all
changes in the terms and conditions of employment for
the unit employees made on and since February 8, 2011,
and restore and maintain the terms and conditions of the
contract that was terminated on February 4, 2011, unless
and until the Respondent has bargained with the Unions
in good faith to a new agreement or lawful impasse, or
the Unions agree to changes.
(d) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s unlawful unilateral changes to wages and
benefits, in the manner set forth in the amended remedy
section of this decision.
(e) Make all required pension fund and health and
welfare fund contributions that have not been made since
February 8, 2011, including any additional amounts due
to the funds as set forth in the amended remedy section
of this decision.
(f) Reimburse unit employees for any expenses result-
ing from the Respondent’s failure to make the required
payments to the funds, with interest, in the manner set
forth in the amended remedy section of this decision.
(g) Advise, by letter, all employees employed on Feb-
ruary 7, 2011, whether actively working or on layoff
status, that their terminations have been rescinded, that
they need not reapply for future employment, that their
rights and privileges as employees with regard to seniori-
ty and recall from layoff have been restored, and that
they are still represented by the Union that represented
them prior to that date.
(h) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges on or about February 7, 2011, and within 3 days
thereafter, notify the employees in writing that this has
been done and that the discharges will not be used
against them in any way.
(i) Make whole all employees unlawfully discharged
on or about February 7, 2011, for any loss of earnings
and other benefits resulting from their discharges, less
any net interim earnings, plus interest.
(j) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
19, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(k) 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, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(l) Within 14 days after service by the Region, post at
its Longview, Washington facility copies of the attached
notice marked “Appendix.”46 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
The Respondent shall take reasonable steps to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since November 9, 2010. In addition, the Respond-
ent shall mail copies of the notice to employees who
were on layoff status on February 4, 2011.
(m) Within 21 days after service by the Region, file
with the Regional Director for Region 19 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to
comply.
Dated, Washington, D.C. August 2, 2016
______________________________________
Mark Gaston Pearce, Chairman

46 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted and Mailed by Order
of the National Labor Relations Board” shall read “Posted and Mailed
Pursuant to a Judgment of the United States Court of Appeals Enfor-
cing an Order of the National Labor Relations Board.”
WAYRON, LLC 13
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting
in part.
My colleagues find that the Respondent violated Sec-
tion 8(a)(5) of the National Labor Relations Act (NLRA
or the Act) when it denied the Unions’ request for access
to its financial records, and they conclude that this viola-
tion precluded the parties from reaching a valid bargain-
ing impasse. I disagree with both findings. Applicable
precedent distinguishes between claims of inability to
pay, which generally trigger a duty to disclose, on re-
quest, substantiating financial information, and claims of
competitive disadvantage, which do not. Here, the Re-
spondent consistently made clear that it was claiming
competitive disadvantage, not inability to pay. Accord-
ingly, the Respondent lawfully denied the Unions’ re-
quest to audit its financial records. This, in turn, means
that the denial of that request did not preclude the parties
from reaching a valid impasse in bargaining, and I would
adopt the judge’s finding that the parties reached impasse
on February 4, 2011.
However, I agree with my colleagues’ finding that the
Respondent violated Section 8(a)(5) of the Act when,
postimpasse, it implemented specific wage and benefit
changes, although I believe this presents a close question.
Having bargained to impasse on an overall reduction in
labor costs of $6.51/hour (reducing total average wages
and benefits, which had been roughly $30.51/hour, to
approximately $24/hour), the Respondent then imple-
mented specific changes to employees’ wages and bene-
fits without first giving the Unions notice and the oppor-
tunity for bargaining regarding these specific changes.
In doing so, the Respondent violated the Act. I disagree,
however, with the remedies my colleagues order for this
violation. The parties had reached a valid bargaining
impasse over the Respondent’s proposal to reduce over-
all compensation by an average of $6.51/hour, and the
changes the Respondent implemented achieved that re-
duction or came close to doing so.1 The Respondent’s
unlawful act only deprived the Unions of an opportunity
to bargain over how the overall reduction was to be
achieved, not over the amount of the reduction itself.
Thus, I believe that requiring the Respondent to restore

1 I do not foreclose the possibility that Wayron may have overshot
the mark—i.e., implemented wage and benefit terms that achieved a
reduction in overall compensation of more than $6.51/hour. See fn. 20,
infra.
the wages and benefits provided for under the terminated
CBA and to give its employees more than 5 years’ worth
the $6.51/hour difference between the contractual terms
and the terms the Respondent implemented in February
2011, are remedies that exceed the scope of the violation
committed and are therefore impermissibly punitive.
Instead, I would require the Respondent to furnish the
Unions the opportunity unlawfully denied them—i.e., to
request bargaining regarding how the $6.51/hour reduc-
tion in overall compensation should be allocated.
Facts
The collective-bargaining agreement (CBA) between
Wayron, LLC (Wayron or the Respondent), a metal fab-
rication shop, and the Unions representing Wayron’s
employees2 was set to expire September 30, 2010, and
the parties began negotiating for a successor agreement
on September 15. Wayron had been experiencing and
was continuing to experience a serious decline in busi-
ness, and its employee complement had been reduced
through layoffs. Faye Dietz and Jeff Spendlove—
Wayron’s co-owners—explained that the layoffs were
due to lack of work, the lack of work was due to
Wayron’s lack of success in bidding for jobs against its
nonunion competitors, and its inability to win bids re-
sulted from its comparatively high labor costs. Going
into collective bargaining in September 2010, Wayron’s
primary objective was to lower its labor costs in order to
win more bids, secure more work, and bring employees
back from layoff.
At the September 15 bargaining meeting, Wayron of-
fered a proposal, called the “red-and-blue contract,” that
included a $10/hour reduction in labor costs. The Re-
spondent’s negotiators said that “times were tough,” but
its labor consultant and chief spokesman, Dean
Nordstrom, told the Unions that “you will never hear us
say we don’t have the ability to pay.”3 The Unions’ ini-
tial contract proposal included a $1.25/hour wage in-
crease. On September 20, the parties agreed to extend
the expiring CBA on a day-to-day basis until a new
agreement was reached and ratified or either party gave
the other 5 days’ notice of termination. The parties next
met on October 6 but made no material progress.

2 As my colleagues note, Wayron employs metalworkers, mechanics,
and painters, represented, respectively, by local affiliates of the Boiler-
makers, Machinists, and Painters Unions. When Wayron acquired the
business from its predecessor, the parties agreed to bargain jointly for a
single contract covering all three groups of employees. There is no
evidence, however, that the parties intended to merge the employees
into a single bargaining unit.
3 The red-and-blue contract also included some proposed changes to
noneconomic terms, but those are not at issue here.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the parties’ next bargaining session on November 4,
2010, Spendlove modified the Respondent’s initial pro-
posal, telling the Unions that the Respondent only need-
ed to cut labor costs by $6.51 per hour—i.e., from a cur-
rent average of $30.51/hour to an average of $24/hour.
Spendlove told the Unions they could take the reductions
from any cost items the employees chose. Spendlove
explained that there was not much work out there, the
company was having good years and bad years, and
Wayron was looking for a competitive edge and needed
to reduce the costs of the contract in order to even the
playing field with its competitors. Spendlove also told
the Unions that he had made arrangements with
Wayron’s landlord to reduce the rent and that it was im-
portant for the Unions to “get on board” by February so
that Wayron could renegotiate its line of credit with the
bank. According to the testimony of Gregory Heidal,
business representative for the Machinists, Spendlove
also said that Wayron was going to be “in financial trou-
ble” if it was unable to reach some kind of agreement
with the bank. Nobody asked Spendlove for any infor-
mation about the line of credit or for any explanation of
what he meant by “financial trouble.” The judge specifi-
cally credited Heidal’s testimony that the Respondent
was not “crying poverty” but instead said that it “can’t
compete with that contract.” Heidal added: “I don’t
believe they ever said they can’t afford the contract.”
The following day, November 5, Spendlove met with
employees (with the Unions’ acquiescence) and ex-
plained to them what he had explained to the Unions:
that he needed them to accept a significant cut in pay
and/or benefits, not because Wayron was unable to pay,
but because the cuts were needed to permit Wayron to be
competitive with nonunion shops.
On November 9, 2010, the Unions sent the Respondent
an information request. Contending that the Respondent
had taken the position that “it [was] financially unable to
pay wages and benefits equal to the wages and benefits
in the expired [CBA],” the Unions requested “[a]ccess to
all financial records by an Auditor selected by the affect-
ed Unions and any other records deemed necessary by
said Auditor to substantiate the Companies [sic] position
of inability to pay.” Spendlove replied that “Wayron is
not, nor has it previously, claimed the inability to pay
wages and benefits under any [CBA],” and that
“Wayron’s position is that it is unable to remain competi-
tive in the current global economic climate and is seek-
ing methods of reducing costs to continue to secure
work.” Spendlove concluded: “For the reasons stated
above, Wayron has no intention of allowing access for
any audits concerning this matter.”
On December 20, 2010, the Unions suggested extend-
ing the CBA for 1 year. It is unclear if this was an actual
proposal, but nothing came of it. The parties next met on
January 28, 2011, and this meeting was attended by a
mediator from the Federal Mediation and Conciliation
Service (FMCS). The Respondent held to its proposal of
an overall reduction in labor costs of $6.51/hour, and the
Union refused to reduce wages and benefits below the
status quo. Notably, at no point during negotiations did
the Unions express a willingness to consider wage or
benefit concessions, much less agree to them. Indeed, on
several occasions, the Unions’ chief spokesman, Lance
Hickey, told Spendlove that the Unions felt that giving
Wayron concessions would lead to a domino effect na-
tionwide and they could not do it. The mediator in-
formed the parties that because they were so far apart,
there was no further need for her services. Immediately
following this bargaining session, Wayron gave notice to
the Unions that it was terminating the CBA effective
February 4, 2011. On February 2, the Unions proposed a
wage increase of $0.75/hour.
The parties scheduled another negotiating session for
February 4. That morning, Hickey emailed Spendlove to
say that if Wayron’s existing proposal was its last, best,
and final offer, “nothing productive will result from
meeting today.” Nonetheless, the parties met. The Un-
ions retracted their proposal for a $0.75/hour wage in-
crease and proposed retaining the status quo. Wayron
declined, reiterating its need to get aggregate average
labor costs down to $24/hour (i.e., an average wage and
benefit reduction of $6.51/hour) to match its competitors
and to show the bank in order to secure an extension of
its line of credit. According to Hickey’s notes, Wayron
added that it “would be looking at the terms and condi-
tions for the employees this weekend and will be imple-
menting those terms and conditions on Monday,” Febru-
ary 7. The Respondent did not tell the Unions how it
would achieve an overall reduction of $6.51/hour. In-
stead, it stated that it would implement the “red-and-
blue” contract with that overall reduction.
Effective Tuesday, February 8, the Respondent unilat-
erally implemented wage and benefit changes, reducing
certain benefits while slightly increasing average wages.
Consistent with Respondent’s bargaining proposals, the
changes reduced Wayron’s average wage and benefit
costs by approximately $6.51/hour, i.e., from
$30.51/hour to approximately $24/hour.4 The judge de-

4 By letter dated February 7, 2011, the Respondent discharged all its
employees and required them to reapply for their jobs at the new wage-
and-benefit levels. There are no exceptions to the judge’s findings that
these discharges, related statements made by the Respondent, and other
post–February 7 conduct of Wayron’s violated the Act. For a complete
WAYRON, LLC 15
scribed the process by which the Respondent formulated
the changes as follows:
Spendlove testified the employees were told not
to come to work on Monday because he and Dietz
did not know at the time whether they could formu-
late the details of the economic package by then.
Thus, in the absence of any guidance from the Un-
ions, they had to decide on the wage/benefit package
generally for all employees, and specifically for each
employee, depending upon the employee’s job clas-
sification, seniority and benefits. . . .
Over the weekend the Respondent had decided
upon a new wage and benefits package that would
conform to its last and final wage and benefits pro-
posal it had offered to the Unions, namely, an aver-
age $24-per-hour figure per employee. On Tuesday,
February 8, 2011 the employees who were working
on the previous Friday were rehired after filling out
new employment applications, and began receiving
wages and benefits in accordance with the Respond-
ent’s newly instituted wage and benefits package.5
Discussion
A. Wayron Did Not Claim Inability to Pay, and Wayron
Lawfully Denied the Unions’ Request to Audit Wayron’s
Financial Records.
The legal principles that govern union requests for fi-
nancial information are well established. If an employer,
in collective bargaining, claims inability to pay, it may be
required to provide the union, on request, financial in-
formation substantiating its claim. However, “not every
claim of inability to pay will result in an obligation to
supply substantiating information.” Nielsen Litho-
graphing Co., 305 NLRB 697, 699 (1991), petition for
review denied sub nom. GCIU Local 508 v. NLRB, 977
F.2d 1168 (7th Cir. 1992). Conversely, if an employer
makes a claim of competitive disadvantage—i.e., if it
claims inability to compete—then if the union requests
financial information, “the [employer’s] claim does not
raise any obligation . . . to turn over the requested infor-
mation.” Id. (emphasis added). When evaluating wheth-
er an employer has claimed an inability to pay, the Board
has held that
the phrase “inability to pay” means, by definition, that
the employer is incapable of meeting the union’s de-
mands. That is, the phrase means more than the asser-
tion that it would be difficult to pay, or that it would
cause economic problems or distress to pay. “Inability

discussion of these issues, see judge’s decision, infra, slip op. at 28–30,
32–33..
5 Judge’s decision, infra, slip op. at 28–29.
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.
AMF Trucking & Warehousing, 342 NLRB 1125, 1126
(2004) (emphasis added). “Inability to pay need not be ex-
pressed with any particular magic words,” but the employ-
er’s “words and conduct must be specific enough to convey
such a meaning.” Atlanta Hilton & Tower, 271 NLRB
1600, 1602 (1984).
Viewing the facts of this case in light of the applicable
standard, I believe Wayron claimed competitive disad-
vantage, not inability to pay. I would therefore adopt the
judge’s finding that the Respondent had no duty to grant
the Unions’ request for access to its financial records.
In my view, this is not a close or difficult issue.
Wayron’s unvarying message to the Unions was that it
was not pleading poverty. Rather, Wayron stated that it
needed labor-cost concessions in order to be competi-
tive—i.e., to bid against its nonunion competitors more
successfully so that it could secure more work. There
was no question of Wayron claiming to have “insuffi-
cient assets to pay.” AMF Trucking, 342 NLRB at 1126.
Rather, Wayron’s negotiators referred to the manner in
which industry competition works.
At the parties’ first negotiating session on September
15, 2010, Wayron’s negotiators said that “things were
tough,” but its chief spokesman, Nordstrom, said that
“you will never hear us say we don’t have the ability to
pay.” On November 4, when Wayron first proposed re-
ducing overall compensation by $6.51/hour, co-owner
Spendlove told the Unions that there was not much work
out there, the company was having good years and bad
years, and Wayron was looking for a competitive edge
and needed to reduce the costs of the contract in order to
even the playing field with its competitors.6 On Novem-
ber 10, after the Unions requested access to Wayron’s
financial records, Spendlove replied: “Wayron is not,
nor has it previously, claimed the inability to pay wages
and benefits under any [CBA],” and “Wayron’s position
is that it is unable to remain competitive in the current
global economic climate and is seeking methods of re-
ducing costs to continue to secure work.”
Significantly, the record demonstrates that the Unions
understood that Wayron was claiming competitive dis-

6 Evidence of what Spendlove said at the November 4 bargaining
session was furnished by Machinists’ business representative Gregory
Heidal, who testified that he “remember[ed] pretty detailed what
[Spendlove] said,” and whose testimony the judge specifically credited.
See judge’s decision, infra, slip op. at 25.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
advantage, not inability to pay. This is apparent from the
following credited testimony of Machinists’ representa-
tive Heidal:
. . . they weren’t crying poverty. In fact, in our first
meeting with the company we asked them about that.
They were telling us, you know, things were tough.
And so we asked them if they were crying poverty.
And Dean Nordstrom, I believe as he said, “you will
never—you will never hear us say we don’t have the
ability to pay. Okay.”
Well, as we continued down this road they continue to
beat the same drum that they were not making any
money. So at some point you got to go, well, okay,
prove it, you know. At this point they’re not saying—
they’re not crying poverty, but they’re telling us they
can’t afford the contract. They can’t compete with that
contract. I don’t believe they ever said they can’t af-
ford the contract.
So, all right, if that’s the case, you’re telling us you
can’t compete, then we’ll request the financial records.
Judge’s decision, infra, slip op. at 26 (quoting Heidal’s tes-
timony) (emphasis added). The judge credited Heidal’s
testimony, and Heidal testified with considerable care that
Wayron’s bargaining team never claimed inability to pay.7
Heidal’s testimony also suggests that the Unions believed,
mistakenly, that Wayron’s claims of competitive disad-
vantage entitled the Unions to audit Wayron’s books
(“you’re telling us you can’t compete, then we’ll request the
financial records”). Unlike my colleagues, I believe that
when Wayron’s representatives claimed that Wayron could
not compete if it was required to pay the current contractual
wages and benefits, they meant exactly what they expressed
and no more. They were not claiming an inability to pay.
Rather, their statements reflected an awareness of the need
to avoid a competitive disadvantage given how their indus-
try works.

7 As my colleagues’ quotation from the transcript shows, Heidal ad-
hered to his testimony that Wayron claimed competitive disadvantage,
not inability to pay, despite being asked a leading question on direct
examination by the General Counsel’s attorney: “Q. And weren’t they
also saying they would go out of business if they didn’t get the cuts that
they sought? A. Yes. They said they were unable to compete and they
wouldn’t have any work.” (Tr. 141 (emphasis added).) Heidal’s initial
“yes” in response to the leading question is entitled to little weight—
see, e.g., Soltech, Inc., 306 NLRB 269, 270 (1992) (observing that
“some testimony elicited in response to leading questions has little
probative weight because it amounts to mere agreement with statements
by counsel rather than persuasive testimony by the witness”)—and the
judge omitted it when he quoted from Heidal’s testimony in his deci-
sion, indicating that he gave it no weight at all.
Applicable precedent supports a finding that Wayron
did not claim inability to pay. In Richmond Times-
Dispatch, 345 NLRB 195 (2005), the Board found that
the employer did not claim inability to pay a holiday bo-
nus, even though the employer stated it was “unable to
pay” the bonus and had “no choice” but to cancel it,
where the larger context surrounding those statements
revealed that the employer was not claiming it had insuf-
ficient assets to pay the bonus or that doing so would
threaten its survival. Here, of course, Wayron never
even said it was “unable to pay” contractual wages and
benefits. In AMF Trucking & Warehousing, supra, the
Board found no claim of inability to pay where the em-
ployer said it was “fighting to keep the business alive.”
342 NLRB at 1126. That is a much stronger statement
than anything Wayron ever said. The strongest wording
Spendlove used was when he said the Respondent was
going to be in “financial trouble” if it was unable to
reach some kind of agreement with the bank. That is a
far less dire statement than “fighting to keep the business
alive,” which the Board in AMF Trucking found was not
a claim of inability to pay.
My colleagues rely on Shell Co., 313 NLRB 133
(1993). I believe their reliance is misplaced. In Shell,
the employer characterized its financial situation as “a
matter of survival,” a claim Wayron never made. My
colleagues also rely on Lakeland Bus Lines, 335 NLRB
322 (2001), which was denied enforcement by the court
of appeals. In Lakeland, the Board found that the em-
ployer claimed inability to pay when it stated it was “try-
ing to bring the bottom line back into the black” and the
“future of Lakeland depend[ed] on” the union’s ac-
ceptance of its final offer, which would enable the em-
ployer to “retain . . . jobs and get back in the black in the
short term.” When the union requested access to the
employer’s books, the employer clarified its position and
made clear that it was not claiming financial inability to
pay. The Court of Appeals for the D.C. Circuit refused
to enforce the Board’s order requiring the disclosure of
financial information. “In view of [the employer’s] clari-
fying statements,” the court said, “the Board could not
plausibly conclude that Lakeland asserted an inability to
pay.” Lakeland Bus Lines, Inc. v. NLRB, 347 F.3d 955,
963 (D.C. Cir. 2003).
I agree with the D.C. Circuit’s rejection of the Board’s
decision in Lakeland Bus, and the court’s analysis ap-
plies with equal force in the instant case. When the Un-
ions requested access to Wayron’s financial records,
Spendlove responded with “clarifying statements,” id.,
making it clear that “Wayron is not, nor has it previously,
claimed the inability to pay wages and benefits under any
[CBA]” and that “Wayron’s position is that it is unable to
WAYRON, LLC 17
remain competitive in the current global economic cli-
mate and is seeking methods of reducing costs to contin-
ue to secure work.” Here as in Lakeland Bus, the Board
cannot plausibly conclude that the employer asserted an
inability to pay.8
I do not find persuasive my colleagues’ finding that the
Respondent claimed an inability to pay by making refer-
ence in bargaining to efforts to secure further bank fi-
nancing. The judge took this evidence into account and
nonetheless found that Wayron claimed competitive dis-
advantage, not inability to pay. For several reasons, I
agree with the judge. First, as summarized above,
Wayron’s unvarying message was that it was not crying
poverty but rather was seeking labor-cost concessions in
order to compete. On their face, Wayron’s messages
communicated competitive disadvantage, not inability to
pay. Second, the judge discredited the testimony of
Hickey (the Unions’ chief spokesman) that either Dietz
or Spendlove (Wayron’s owners) said that Wayron
would go out of business if they did not get the cuts they
were requesting. Instead, he credited Heidal’s testimony
that Spendlove said Wayron was “going to be in finan-
cial trouble” if it was unable reach an agreement with the
bank. As explained above, this statement fell well short
of an inability-to-pay claim. See AMF Trucking, supra
(no inability-to-pay claim where employer said it was
“fighting to keep the business alive”). Third, there is no
evidence that the Respondent ever told the Unions it
would not be able to make payroll if it did not receive an
extension on its line of credit.9

8 My colleagues insist, repeatedly, that my analysis rests on “magic
words.” To the contrary, my analysis involves the English language
and well-established legal principles. When someone says he is not
claiming inability to pay, one cannot reasonably conclude that he is
really saying the opposite. To the extent my colleagues derive an in-
ability-to-pay claim from Wayron’s representatives’ statements that
they were not claiming an inability to pay, the Board is effectively
eliminating the distinction between a claimed inability to compete and
an asserted inability to pay, even though this distinction is firmly em-
bedded in relevant Board and court cases. In my view, the majority
cannot properly dismiss and recharacterize the Respondent’s disclaim-
ers as mere “surface characterizations.” The cases in this area clearly
turn on what a party stated in bargaining, and the Board cannot appro-
priately support the finding of a violation by completely disregarding
what was stated and by insisting instead that the party must have
“meant” precisely the opposite of what was stated. Based on similar
reasoning, the Board could disregard and recharacterize material writ-
ten statements that appear in documentary evidence, where documents
stating “X” could be interpreted by the Board as stating “Y.” In my
view, such reasoning would turn upside down the most basic principles
that govern evidentiary proof and would be indefensible given the Act’s
requirement that Board findings be supported by a “preponderance of
the testimony” (Sec. 10(c)) and “substantial evidence on the record
considered as a whole” (Sec. 10(e)).
9 Moreover, the Unions’ request for access to Wayron’s financial
records to perform a full audit would not have shed any light on the
Although my colleagues attach significance to Wayron
representative Spendlove’s bargaining notes of February
2, 2011, I believe that a fair reading of the notes, in con-
text, does not establish that Wayron was claiming inabil-
ity to pay, and those notes certainly do not establish that
Wayron had claimed inability to pay months earlier—
i.e., on or before November 9, 2010, the date that the
Unions requested access to Wayron’s financial records.
The February 2, 2011 notes state: “Talked about the
past/current/future economy & subcontracting work –
see one anothers’ [sic] position – Wayron stay in busi-
ness – Union retain pay/benefits for guys & themselves.
Last chance to work something out but cannot continue
at current cost” (emphasis added). My colleagues lift the
phrases “stay in business” and “cannot continue at cur-
rent cost” out of context and stitch them together to draw
an inference that Spendlove admitted Wayron would go
out of business if it did not obtain the concessions it was
seeking.10 However, the notes are a shorthand summary,
they plainly do not reflect what words were actually spo-
ken, and I believe they are too cryptic to prove the infer-
ence my colleagues draw, particularly given that (i) it is
uncontroverted that Wayron repeatedly stated it was not
claiming inability to pay, and (ii) the credited testimony
of Machinists’ Representative Heidal, described above,
confirms that Wayron did not claim inability to pay.
Although my colleagues conclude that “Wayron stay in
business” means Wayron indicated it would not “stay in
business” without concessions, it is equally reasonable to
interpret this notation as a statement that Wayron fully
intended to “stay in business”—an interpretation that is
consistent with the notation that the parties “[t]alked
about the . . . future economy,” indicating that Wayron

Respondent’s statements regarding the line of credit. An audit would
not have revealed communications between Wayron and the bank. The
Unions never asked to see those communications. Instead, they went
immediately to a request for access to Wayron’s financial records, even
though Machinists’ Representative Heidal understood that Wayron was
claiming competitive disadvantage, not inability to pay (“you’re telling
you can’t compete, then we’ll request the financial records”). More-
over, regardless what an audit would have disclosed, the Unions had
already decided they could not grant concessions. The credited testi-
mony of Spendlove establishes that Hickey told him several times that
while the Unions were sympathetic to his position, they felt that giving
Wayron concessions would lead to a domino effect down the line for all
the unions nationwide and they could not do it. In these circumstances,
I believe the Unions’ request for a full audit was more likely than not a
delaying tactic to stave off impasse—which the Unions must have
known was imminent—followed by cuts to wages and/or benefits.
10 Thus, my colleagues find that “the Respondent . . . was asserting
that it could not pay, during the life of the contract being negotiated, the
existing (or higher) levels of compensation that the Unions sought”
partly on the basis that “Spendlove himself stated during the February 4
bargaining session that the Respondent’s negotiating goal was ‘to stay
in business’ and that it ‘cannot continue at current cost.’”
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meant to stay in business. Nor am I persuaded that
Wayron claimed an inability to pay based on the notation
“cannot continue at current cost” because this phrase
does not indicate what could not “continue” at the cur-
rent cost. My colleagues attach their preferred meaning,
which is that Wayron stated it “cannot continue in busi-
ness at current cost,” but it is at least equally plausible to
read the notation as indicating Wayron “cannot continue
to compete at current cost,” particularly since the latter
interpretation is consistent with the Respondent’s un-
varying message throughout the negotiations. Finally, as
noted above, these notes pertain to the parties’ meeting
on February 2, 2011. They cannot possibly support a
finding that Wayron had claimed inability to pay on or
before November 9, 2010, when the Unions requested
access to Wayron’s financial records.
I believe that my colleagues’ decision here, which ex-
tends Nielsen Lithographing to find that Wayron claimed
inability to pay, will operate in practice to discourage
parties engaged in collective bargaining from providing a
good-faith, candid assessment of industry conditions,
which is vitally important to employees, unions, and em-
ployers alike. A fundamental purpose of the Act is to
avoid industrial strife through encouraging collective
bargaining, and open communication between the parties
in negotiations is precisely what the Act encourages.
The majority’s decision encourages just the opposite.
In NLRB v. American National Insurance Co., 343
U.S. 395 (1952), the Supreme Court described the
importance of encouraging open discussion between the
parties in bargaining and the very limited role that
Congress contemplated for the Board. The Court stated
that “[t]he National Labor Relations Act is designed to
promote industrial peace by encouraging the making of
voluntary agreements governing relations between
unions and employers,” id. at 401–402, and the Court
continued:
In 1947, the fear was expressed in Congress that
the Board “ha[d] gone very far, in the guise of
determining whether or not employers had bargained
in good faith, in setting itself up as the judge of what
concessions an employer must make and of the
proposals and counterproposals that he may or may
not make.”
Accordingly, the Hartley Bill, passed by the
House, eliminated the good faith test and expressly
provided that the duty to bargain collectively did not
require submission of counterproposals. As
amended in the Senate and passed as the Taft-
Hartley Act, the good faith test of bargaining was
retained and written into Section 8(d) of the National
Labor Relations Act. That Section contains the
express provision that the obligation to bargain
collectively does not compel either party to agree to
a proposal or require the making of a concession.
Thus, it is now apparent from the statute itself
that the Act does not encourage a party to engage in
fruitless marathon discussions at the expense of
frank statement and support of his position. And it is
equally clear that the Board may not, either directly
or indirectly, compel concessions or otherwise sit in
judgment upon the substantive terms of collective
bargaining agreements.11
By holding that employers will be found to have
claimed an inability to pay whenever they truthfully de-
scribe competitive conditions and volunteer other details
such as efforts to secure additional bank financing, my
colleagues give employers a strong incentive to provide
much less information, or no explanation at all, when the
union is making unreasonable demands that may cause
severe injury to the business or when the employer seeks
concessions in bargaining. On the other hand, the Board
has held that the failure of an employer to provide an
adequate explanation in bargaining will be considered
evidence of a refusal to bargain in good faith in violation
of Section 8(a)(5) of the Act. Apogee Retail, NY, LLC,
363 NLRB No. 122, slip op. at 1 fn. 3 (2016).12 As I
have stated elsewhere, “[t]he Board cannot reasonably
adopt standards that cause parties to be in violation of the
Act regardless of the actions they take.” ARC Bridges,
Inc., 362 NLRB No. 56, slip op. at 11 (2015) (Member
Miscimarra, dissenting). In sum, I would adopt the
judge’s finding that the Respondent did not claim inabil-
ity to pay and therefore had no duty to grant the Unions
access to its financial records.13

11 343 U.S. at 404 (footnotes omitted; emphasis added).
12 In Apogee Retail, the majority found that the General Counsel
failed to prove the employer had engaged in overall bad faith in bar-
gaining, but stated that “the ‘failure to define, explain, or advocate [a]
position’ during bargaining should be considered as evidence of a par-
ty’s lack of good faith.” 363 NLRB No. 122, slip op. at 1 fn. 3 (cita-
tions omitted). I agreed with the outcome in Apogee Retail but indicat-
ed that the extent to which a party’s failure to explain its position would
support a finding of bad faith “depends on the circumstances of the
particular case,” because parties may lawfully “insist on certain pro-
posals that may be deemed critical for reasons that the negotiators may
be reluctant or unwilling to disclose, and it is likewise lawful for a party
to insist on certain proposals exclusively because it believes sufficient
leverage exists to force the other party to agree.” Id.
13 The majority quotes from NLRB v. American National Insurance,
emphasizing the Court’s statement that “the Act does not encourage a
party to engage in fruitless marathon discussions at the expense of
frank statement and support of his position” (emphasis added). To the
extent my colleagues suggest that American National Insurance im-
posed an obligation on Wayron to “support” its position by disclosing
financial information to the Unions, my colleagues are clearly wrong.
Nothing in American National Insurance deals with whether or when a
WAYRON, LLC 19
Alternatively, even if Wayron did claim an inability to
pay (which is unsupported by a preponderance of the
evidence), I would still agree with the judge that Wayron
had no obligation to disclose its financial information to
the Unions. As noted previously, an inability-to-pay
claim does not always compel an employer to grant re-
quested access to its confidential financial records. See
NLRB v. Truitt Mfg. Co., 351 U.S. at 153 (“We do not
hold . . . that in every case in which economic inability is
raised as an argument against increased wages it auto-
matically follows that the employees are entitled to sub-
stantiating evidence. Each case must turn upon its par-
ticular facts.”); Nielsen Lithographing, supra, 305 NLRB
at 699 (“[N]ot every claim of inability to pay will result
in an obligation to supply substantiating information.”).
In the instant case, the Unions made it clear that they
would not agree to concessions regardless of Wayron’s
financial condition. The record establishes that Hickey
told Spendlove several times that while the Unions were
sympathetic to his position, they felt that giving Wayron
concessions would lead to a domino effect down the line
for all the unions nationwide and they could not do it. It
is fanciful to think that an audit of Wayron’s finances
would have been anything other than what the judge
termed it—”an unproductive, time-consuming exercise in
futility.” In these circumstances, Wayron would not
have violated Section 8(a)(5) by refusing the Unions’
request even if it had claimed inability to pay.
B. Wayron and the Unions Reached a Valid
Bargaining Impasse.
In addition to finding that Wayron violated the Act by
denying the Unions’ request to audit Wayron’s financial
records, my colleagues find that this precluded the par-
ties from reaching a valid impasse in bargaining. Contra-
ry to my colleagues, as explained above, I would find
that Wayron lawfully denied the Unions’ audit request.
Therefore, in my view, Wayron’s denial of the Unions’

party is required to disclose financial information based on a claimed
inability to pay. Rather, this issue is governed by the Supreme Court’s
decision in NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), and similar
Board and court cases. In Truitt, the employer responded to the union’s
proposal for a wage increase of 10 cents per hour by stating that “it
could not afford to pay such an increase, . . . and that an increase of
more than 2 ½ cents per hour would put it out of business.” Id. at 150.
Clearly, the employer in Truitt claimed inability to pay in its express
statements. On those facts, the Court properly concluded that the em-
ployer’s refusal “to produce some evidence substantiating these state-
ments” violated Sec. 8(a)(5). Id. The facts in the instant case are mate-
rially different because Wayron’s representatives in bargaining did not
assert an inability to pay that triggered an obligation to disclose finan-
cial information to the Unions. To the contrary, as explained in the text
and in fn. 8, supra, Wayron’s representatives repeatedly stated they
were not claiming inability to pay.
request for financial information did not prevent the par-
ties from achieving a lawful impasse in bargaining.14
In my view, the evidence demonstrates that, by Febru-
ary 4, 2011, the parties had reached a bona fide impasse
over Wayron’s proposal to reduce wages and/or benefits
by an average of $6.51/hour and that the impasse on this
critical issue had led to a breakdown in the overall nego-
tiations. See, e.g., CalMat Co., 331 NLRB 1084, 1097
(2000) (setting forth the elements of single-issue im-
passe).15 Beginning with the very first bargaining ses-
sion on September 15, 2010, Wayron insisted on steep
reductions in labor costs. By November 4, it had settled
on a reduction of $6.51/hour, and Wayron held firm to
that position thereafter. On the other side, the Unions
began by proposing a $1.25/hour wage increase, and they
made small up-and-down moves after that—down to the
status quo (January 28, 2011); up by $0.75/hour (Febru-
ary 2); down to the status quo again (February 4)—but at
no time did the Unions present a concessionary offer, and
they made it clear, repeatedly, that concessions were out
of the question. As stated above, the Unions’ chief
spokesman, Hickey, told Wayron co-owner Spendlove
several times that while the Unions were sympathetic to
his position, they felt that giving Wayron concessions
would lead to a domino effect down the line for their
unions nationwide and they could not do it.
At the January 28, 2011 meeting, which was attended
by a mediator from FMCS, the Unions proposed retain-
ing the status quo on wages, and Wayron held firm to its
position. At the end of that session, the FMCS mediator
declared the parties too far apart for her services to be of
any further value. On the morning of the next scheduled
bargaining session (February 4), Hickey communicated
to Spendlove his belief both that the parties were at im-
passe over labor costs and that this impasse had pro-
duced an overall impasse in negotiations. Hickey
emailed Spendlove to say that if Wayron’s proposal was
its last, best, and final offer, “nothing productive will
result from meeting today” (emphasis added). Nonethe-
less, the parties met, the Unions again proposed retaining
the status quo, and Wayron stuck to its proposal for re-
ducing overall compensation from $30.51/hour to

14 The legality of Respondent’s postimpasse implementation presents
a close question, which I address more fully in Part C below. For the
reasons explained in Part C, I believe the Respondent’s postimpasse
implementation of wage and benefit changes violated Sec. 8(a)(5),
which warrants an appropriate remedy (but not the remedy formulated
by my colleagues).
15 A “single-issue impasse” is a situation in which “‘a single issue
looms so large that a stalemate as to it may fairly be said to cripple the
prospects of any agreement.’” CalMat, 331 NLRB at 1097 fn. 49
(quoting NLRB v. Tomco Communications, Inc., 567 F.2d 871, 881 (9th
Cir. 1978)).
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
$24/hour. Wayron’s proposal did not specify where and
how this reduction would be achieved—Wayron pro-
posed letting the employees decide that for themselves—
but it is not unlawful for an employer to propose that
concessionary changes reach a targeted figure while re-
maining flexible regarding how that target would be
achieved.
This brings us to a unique aspect of the impasse that
existed in this case. During negotiations, Wayron law-
fully proposed wage and benefit concessions that, in the
aggregate, would have totaled $6.51/hour, but Wayron
also proposed that the employees—through their bargain-
ing representatives—determine what particular changes
would be made (e.g., wage reductions versus benefit re-
ductions) to produce the aggregate $6.51/hour savings.
As noted above, the Unions were intransigently opposed
to any wage or benefit concessions. Therefore, they did
not engage in more detailed negotiations regarding pre-
cisely how the concessions would be allocated, and they
did not exercise their contingent right, as expressed in
Respondent’s wage and benefit proposal, to determine
the allocation of the $6.51/hour reduction. However, this
unique aspect of the Respondent’s proposal did not pre-
clude the parties from reaching a lawful impasse in bar-
gaining.16 Nothing in the Act makes it unlawful for a
party to propose a specified level of changes in wages
and benefits (in this case, an aggregate reduction of
$6.51/hour), and as part of the proposal, to give the other
party free rein to determine what particular wage and
benefit changes will be made to achieve that level. And
for the reasons explained above, the record clearly estab-
lishes that the parties bargained to impasse over
Wayron’s wage and benefit proposals and that this im-
passe had produced an overall impasse in negotiations by
February 4, 2011.

16 My colleagues rest their “no impasse” finding solely on their prior
finding that Wayron’s refusal to open its books to the Unions precluded
a valid impasse. As explained above, I believe Wayron lawfully re-
fused to open its books, and the parties did, in fact, bargain to overall
impasse. Preliminarily, there is no question that Respondent’s pro-
posed wage and benefit changes involved mandatory bargaining sub-
jects, as to which the parties could bargain to impasse. Sec. 8(d) de-
fines the “duty to bargain” as encompassing the “mutual obligation” of
the employer and representative of employees to meet and confer in
good faith regarding “wages, hours, and other terms and conditions of
employment.” See NLRB v. Katz, 369 U.S. 736 (1962); NLRB v. Borg-
Warner Corp., 356 U.S. 342 (1958). On the record presented here,
nobody can seriously contend that Respondent’s wage and benefit
proposals were formulated in bad faith or failed to come within Sec.
8(d)’s reference to “wages, hours, and other terms and conditions of
employment.”
C. Wayron Unlawfully Failed to Give the Unions Notice
of and Opportunity to Bargain Regarding Specific Pro-
posed Changes Prior to Their Implementation, and the
Appropriate Remedy is to Order Such Bargaining.
It is well established that “a union and an employer
have a duty to bargain in good faith” concerning manda-
tory subjects of bargaining, and “[g]enerally, once the
parties reach a good-faith impasse, the duty to bargain is
at least temporarily suspended, and the parties, typically
the employer, may enact any change in a mandatory sub-
ject reasonably contained within its final proposal.”
NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153,
1157 (D.C. Cir. 1992) (Judge Edwards, concurring); see
also Grondorf, Field, Black & Co. v. NLRB, 107 F.3d
882, 886 (D.C. Cir. 1997); Taft Broadcasting Co., 163
NLRB 475, 478 (1967).
As explained above, the parties had reached a lawful
impasse in bargaining by February 4, 2011. When an
impasse was achieved, the parameters of Respondent’s
proposal regarding wages and benefits were clear—an
overall reduction in total average labor costs of
$6.51/hour (from $30.51/hour to $24/hour)—and this
proposal had been unequivocally rejected by the Unions.
As noted above, this case involves a close question re-
garding the legality of Respondent’s postimpasse imple-
mentation because of one unique aspect of Respondent’s
wage and benefit proposal. The Respondent proposed to
allocate the desired $6.51 average savings in labor costs
whatever way the Unions and employees desired. See,
e.g., judge’s decision, infra, slip op. at 25 (“[U]nder the
Respondent’s proposal, the Unions could take cost-
cutting reductions from any cost items the employees
chose.”); id. at 27 (Spendlove “had given the Unions and
the employees the option of deciding where they would
be willing to take the cuts.”). However, based on the
Unions’ opposition to any wage or benefit concessions,
the Unions in bargaining never exercised the discretion
offered by Respondent to communicate the precise man-
ner in which the concessions should be allocated between
wages and benefits. Likewise, the Respondent, having
proposed to adopt whatever allocation was preferred by
the Unions and employees, never made a more specific
proposal regarding particular changes that would produce
the overall $6.51/hour in average wage and benefit sav-
ings.
I believe the legality of Respondent’s postimpasse im-
plementation presents a close question because the Re-
spondent bargained to a valid impasse over its two-part
proposal, where (i) Respondent only cared about the
$6.51/hour average wage and benefit savings, and (ii) it
was entirely up to the Unions how the $6.51/hour savings
would be allocated. This is not a case where the Re-
WAYRON, LLC 21
spondent desired a particular allocation of wage and ben-
efit changes to achieve a targeted reduction and failed or
refused to bargain over it. Nor does Respondent’s wage
and benefit proposal bear any resemblance to merit pay
proposals—contemplating wage changes based on “man-
agerial discretion” exercised during the agreement’s
term—that prompted the Board majority in McClatchy to
create an exception to the postimpasse implementation
rule.17 Therefore, based on the Unions’ failure to exer-
cise the discretion afforded to them under Respondent’s
proposal, one might conclude that the Respondent was
privileged, after an impasse was reached, to implement
an allocation that it deemed appropriate to achieve the
proposed $6.51/hour savings in average wage and benefit
costs.
Given the unique facts presented here, however, I be-
lieve that the Respondent—though privileged to an-
nounce the postimpasse implementation of its proposed
$6.51/hour reduction in average wage and benefit
costs—was required to give the Unions notice of and the
opportunity to bargain over the specific allocation of
wage and benefit savings ultimately implemented by the
Respondent. Contrary to the majority, the Respondent
implemented “changes reasonably falling within its pre-
impasse proposal.” Grondorf, Field, Black & Co. v.
NLRB, 107 F.3d at 886. However, the record reveals that
the changes implemented by Respondent required sub-
stantial postimpasse work and subjective judgments by
Wayron’s owners, Spendlove and Dietz. As the judge
found, “in the absence of any guidance from the Unions,
they had to decide on the wage/benefit package generally
for all employees, and specifically for each employee,
depending upon the employee’s job classification, sen-
iority and benefits.”18 Thus, prior to implementation, I
believe Section 8(a)(5) required the Respondent to pro-
vide reasonable notice of and the opportunity for bar-
gaining over the wage and benefit changes formulated by
the Respondent to effectuate its $6.51/hour average sav-
ings. This could have occurred had the Respondent pro-
posed one or more specific potential allocations at the
same time it expressed its willingness to adopt any allo-
cation preferred by the Unions and employees. Alterna-
tively, the Respondent could have provided the requisite
notice and opportunity for bargaining after reaching an
impasse regarding the Respondent’s proposal for an

17 See McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. 131
F.3d 1026 (D.C. Cir. 1997). Because the instant case does not involve
any merit pay proposal or any other proposal that similarly would have
afforded the Respondent discretion to decide for itself, during the term
of the agreement, what further changes it might make in wages or bene-
fits, I do not reach or pass on whether the Board’s decisions in
McClatchy and similar cases were correctly decided.
18 Judge’s decision, infra, slip op. at 29.
overall average savings in wages and benefits of
$6.51/hour. It is likely—indeed, on the record before us,
perhaps a near certainty—that the Unions would have
responded the same way, which was to reject any con-
cessions. However, there are many ways in which wages
and benefits may be changed to achieve an overall aver-
age savings of $6.51/hour (for example, the Respondent
ultimately decided to grant a small wage increase offset
by even greater reductions in benefits). Even though
bargaining over such details may not produce an agree-
ment, I believe these details are sufficiently distinct from
Respondent’s proposal for a reduction in total average
wage and benefit costs of a certain targeted amount to
warrant notice and the opportunity for negotiation prior
to their implementation.
However, because the parties were clearly at a valid
impasse regarding Respondent’s proposed $6.51/hour
reduction in average wage and benefit costs—with the
Respondent indicating that any allocation by the Unions
and employees would be acceptable–—I believe the
Board cannot reasonably order the Respondent to rescind
the $6.51/hour in average wage and benefit concessions
implemented on February 8, 2011, and restore the wage
and benefit levels of the expired CBA. As noted previ-
ously, the Respondent’s wage and benefit proposal was
lawful, it involved mandatory subjects of bargaining, and
the record leaves no doubt that the parties were at an
impasse, which included an impasse regarding Respond-
ent’s proposed $6.51/hour wage and benefit savings. For
these reasons, I believe the Board cannot properly “veto”
the substance of Respondent’s wage and benefit proposal
by compelling Wayron to rescind it. Detroit Typograph-
ical Union No. 18 v. NLRB, 216 F.3d at 119. It is espe-
cially unwarranted to award the Respondent’s employees
5 years of backpay at the rate of $6.51/hour, plus interest,
given that the Board’s remedial authority, though broad,
is strictly limited to measures that are “remedial.”19 Ac-
cordingly, in the unique circumstances presented here, I

19 Republic Steel Corp. v. NLRB, 311 U.S. 7, 11–12 (1940) (citing
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 235–236 (1938));
NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 267–268
(1938). The Board is not “free to set up any system of penalties which
it would deem adequate” to “have the effect of deterring persons from
violating the Act.” Republic Steel, 311 U.S. at 12. The Board’s author-
ity to devise remedies “does not go so far as to confer a punitive juris-
diction enabling the Board to inflict upon the employer any penalty it
may choose because he is engaged in unfair labor practices, even
though the Board be of the opinion that the policies of the Act might be
effectuated by such an order.” Consolidated Edison, 305 U.S. at 235–
236. As the Supreme Court stated in Republic Steel: “We do not think
that Congress intended to vest in the Board a virtually unlimited discre-
tion to devise punitive measures, and thus to prescribe penalties or fines
which the Board may think would effectuate the policies of the Act.”
311 U.S. at 11.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
believe the appropriate remedy is an order requiring the
Respondent to bargain to impasse or agreement regard-
ing the precise wage and benefit changes to achieve the
$6.51/hour reduction in average wage-and-benefit
costs.20
CONCLUSION
For the reasons stated above, as to the issues presented
in this case, I respectfully dissent in part, and I concur in
part.
Dated, Washington, D.C. August 2, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with Boil-
ermakers Local 104, Machinists District Lodge 160, Lo-
cal Lodge 1350, and Painters District Council 5, or their
successors (the Unions) by failing and refusing to
promptly furnish them with requested information that is
relevant and necessary to the Unions’ performance of
their duties as the sole collective-bargaining representa-

20 As my colleagues note, the judge found that the wage and benefit
terms Wayron implemented on February 8, 2011, were close enough to
the overall compensation figure of $24/hour to be consistent with
Wayron’s pre-impasse proposal. The majority does not pass on that
finding, and I do not foreclose the possibility that Wayron may have cut
more deeply than the $6.51/hour it proposed. If so, I would hold the
Respondent liable to make up the difference between $24/hour and any
lower overall compensation figure its unilaterally implemented terms
may have actually effected, and I would leave the determination of
these matters to compliance.
tives of our unit employees described in article 1 of the
2006–2010 collective-bargaining agreement as:
[E]ngaged in the fabrication of iron, steel, metal and
other products, the machining, repair of machinery or
manufacture of products, the preparation of or paint-
ing/coating of any product, item, or in the maintenance
work in or about the Company’s plant(s) located in
Longview, Washington or any work undertaken off-
site.
WE WILL NOT unilaterally implement changes in your
terms and conditions of employment as provided for in
the 2006–2010 collective-bargaining agreement that was
terminated on February 4, 2011, until a new contract is
concluded or good-faith bargaining leads to an impasse,
or the Unions agree to changes.
WE WILL NOT terminate employees and require them to
reapply because of the termination of the contract and
cessation of collective-bargaining negotiations.
WE WILL NOT advise employees or cause them to be-
lieve that, because of the termination of the contract and
cessation of negotiations, the Unions no longer represent
them.
WE WILL NOT unlawfully fail to notify the Unions of
our intent to discharge employees, implicitly withdraw
recognition from the Unions, delay further bargaining
with the Unions, or delay the providing of relevant in-
formation requested by the Boilermakers Union as the
collective-bargaining representative of boilermaker em-
ployees.
WE WILL NOT withdraw recognition from the Boiler-
makers Union or Machinists Union pursuant to decertifi-
cation petitions before we have remedied the unfair labor
practices that reasonably influenced the filing of such
petitions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish the Unions’ auditor the financial in-
formation that the Unions requested on November 9,
2010.
WE WILL, on request, meet and bargain with the Un-
ions as the exclusive collective-bargaining representa-
tives of our employees in their respective crafts, as de-
scribed above, concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement or in signed
agreements.
WE WILL, on request by the Unions, rescind any or all
changes in the terms and conditions of employment for
our unit employees made on and since February 8, 2011,
and restore and maintain the terms and conditions of the
WAYRON, LLC 23
2006–2010 contract that was terminated on February 4,
2011, unless and until we bargain with the Unions in
good faith to a new agreement or lawful impasse, or the
Unions agree to changes.
WE WILL make unit employees whole for any loss of
earnings and other benefits suffered as a result of our
unlawful unilateral changes to wages and benefits, plus
interest.
WE WILL make all delinquent pension fund and health
and welfare fund contributions that have not been made
since February 8, 2011, including any additional amounts
due the funds as provided for in the Board’s Order.
WE WILL reimburse, with interest, any of you who in-
curred out-of-pocket expenses because of our discontinu-
ation of contributions to health and welfare funds.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the February 7, 2011 terminations of all
employees. You will receive, or have already received, a
letter advising you that your terminations have been re-
scinded, that you need not reapply for future employ-
ment, and that your rights and privileges as an employee
with regard to seniority and recall from layoff have been
restored.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges on or about February 7, 2011, and WE
WILL, within 3 days thereafter, notify each discharged
employee in writing that this has been done and that the
discharges will not be used against them in any way.
WE WILL make employees unlawfully discharged on or
around February 7, 2011, whole for any loss of earnings
and other benefits resulting from their discharges, less
any net interim earnings, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 19, within 21 days of the date the
amount of backpay is fixed, either by agreement or by
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WAYRON, LLC
The Board’s decision can be found at
www.nlrb.gov/case/19–CA–032983 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Sara Pring Karpinen, Esq., for the General Counsel.
Kristen Bremer, Esq. (Tonkon Torp, LLP), of Portland, Oregon,
for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to a notice of hearing in this matter was held before me in Van-
couver, Washington on October 25, 26, and 27, 2011. The
hearing was closed by order dated November 28, 2011. The
initial charge was filed by International Brotherhood of Boil-
ermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers
of America, Local 104 (Boilermakers) on March 2, 2011.
Thereafter, various amended charges were filed by the Boiler-
makers on behalf of itself and the International Association of
Machinists and Aerospace Workers, AFL-CIO, District Lodge
160, Local Lodge 1350 (Machinists), and the International
Union of Painters and Allied Trades, District Council 5 (Paint-
ers). Thereafter, on June 23, 2011, the Regional Director for
Region 19 of the National Labor Relations Board (Board) is-
sued a complaint and notice of hearing alleging a violation by
Wayron, LLC (Respondent) of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act). The Respondent, in
its answer to the complaint,1 duly filed, denies that it has violat-
ed the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the Acting General Counsel (the
General Counsel) and counsel for the Respondent. Upon the
entire record, and based upon my observation of the witnesses
and consideration of the briefs submitted, I make the following.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a State of Washington corporation with
an office and place of business in Longview, Washington,
where it is engaged in the fabrication and nonretail sale of met-
al products. In the course and conduct of its business operations
the Respondent annually purchases and receives at its
Longview, Washington facility goods valued in excess of
$50,000 directly from points outside the State of Washington,
and sells and ships from its Longview, Washington facility
goods valued in excess of $50,000 directly to points outside the

1 The Respondent was permitted to amend its answer to the com-
plaint at the hearing.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
State of Washington. It is admitted and I find that the Respond-
ent is, and at all material times has been, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the named Unions are, and at
all times material herein have been, labor organizations within
the meaning of Section 2(5) of the Act,
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent has violated and is violating Section 8(a)(1), (3) and
(5) of the Act by bad-faith bargaining, refusal to furnish infor-
mation, withdrawing recognition from certain unions, and dis-
charging employees.
B. Facts
The Respondent, a metal fabrication shop, is owned and op-
erated by Faye Dietz and Jeff Spendlove who purchased the
company from its previous owner in 2002. Both were former
employees of the predecessor company: Dietz was employed as
an engineer and Spendlove was employed as a union painter.
Dietz is currently CEO and a 51-percent owner of the Respond-
ent, and continues to perform engineering work; and Spendlove
owns the remainder and continues to perform painting work.
The predecessor company was a union shop having three
separate labor agreements with the three Unions involved here-
in, each contract expiring at different times. In order to save
time and money the Respondent proposed that one set of nego-
tiations covering all employees in one contract would be a more
convenient way to negotiate. The Unions agreed. Both Dietz
and Spendlove testified that by creating a “wall to wall” con-
tract they had no intention, nor were there any discussions with
the Unions, that the parties intended to merge all the employees
into a single bargaining unit. There is no contrary evidence.
The most recent contract extended from the “date of ratifica-
tion”2 to September 30, 2010. The recognition/union security
clause contained in the contract is, inter alia, as follows:
The company recognizes the International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, Local 104; the International Association of Machin-
ists and Aerospace Workers District Lodge 160, Local Lodge
1350; and the International Union of Painters and Allied
Trades District Council Number 5 as the sole bargaining
agents for the employees classified herein engaged in the fab-
rication of iron, steel, metal and other products, the machin-
ing, repair of machinery or manufacture of products, the prep-
aration of or painting/coating of any product item, or in the
maintenance work in or about the Company’s plant(s) located
in Longview, Washington or any work undertaken off-site.
It is agreed that all employees under this agreement shall con-
tinue to perform their respective craftwork as described by
their previously established craft jurisdiction.

2 It is unclear whether the ratification took place in 2006 or 2007.
Where specific items to a particular craft may be identified, it
may be necessary to negotiate a separate understanding.
The union-security clause of the contract provides that all
employees shall make application “to join the Union which
represents their trade. . . .” The contract provides that each
Union may appoint a steward for each shift. There is no re-
striction in the contract precluding each Union from filing
grievances on behalf of the workers it represents. Further, the
Respondent agrees to contribute a percentage of gross wages
into “the individual Union Pension Trusts.”
The contract contains separate articles entitled “Field Work
Painters,” providing that painters’ field work is to be governed
in accordance with the current “Master Area Agreement Arti-
cles for the painting industry”; “Field Work Boilermakers,”
providing that the current “Western States Field Agreement
Articles shall govern boilermakers. . .”; and “Field Work Ma-
chinists,” a lengthy article with six sections, inter alia providing
for overtime and double time compensation, straight time com-
pensation at 115 percent of normal shop rate, travel pay, vehi-
cle pay, and company-provided arrangements for overnight
trips. The contract contains an addendum with different pay
scales for different crafts.
The Boilermakers, Machinists and Painters each sent sepa-
rate contract-reopener letters to the Respondent. The Boiler-
makers’ letter requested information limited to employees rep-
resented by that particular union. In addition the Boilermakers
and Machinists sent separate FMCS forms to the FMCS with
the intention of describing the number of “Bargaining Unit
Members” as limited to the employees within their particular
craft.3 Attached to the Machinists’ reopener letter is a form
submitted to the FMCS specifying that there were 3 “Bargain-
ing Unit Members” and 3 “Total Employees at Affected Loca-
tion(s)” for which the Machinists Union was bargaining, even
though at the time there was a total of some 13 or more work-
ing employees covered by the contract. There is no reference
in any of the letters that any union is intending to bargain on
behalf of employees of any other union. There is no showing
that contract ratification voting is conducted among all employ-
ees as a single unit; rather, according to Boilermakers’ Assis-
tant Business Agent Lance Hickey, the Boilermakers would
vote as a separate group and he does not know what would
happen if one of the three unions voted the contract down.
With regard to the initial charge in this case, filed by the
Boilermakers, Hickey testified the charge was filed only on
behalf of the Boilermakers, and that the Painters and Machin-
ists were not included because it was believed ”They would file
their own [charges] separately.”
Counsel for the General Counsel stated:
Our position is it’s a joint unit of all the Unions with separate
classifications and the Unions separately representing their
classifications, but bargaining as a group for one contract.
The parties began negotiations for a successor agreement on
September 15, 2010. Dean Nordstrom, a labor consultant, ac-
companied by Dietz, was the chief spokesman for the Respond-
ent. Lance Hickey, assistant business manager for the Boiler-

3 There is no similar FMCS form in the record from the Painters.
WAYRON, LLC 25
makers, was the chief spokesman for the three Unions; Busi-
ness Representative Gregory Heidal represented the Machin-
ists; Business Representative Jeff Brooke represented the Paint-
ers.
At the September 15, 2010 session the Respondent and Un-
ions exchanged their initial proposed contracts. The Respond-
ent’s initial proposed contract, inter alia, included a proposed
$10-per-hour average cut in pay and/or benefits. The Union’s
initial proposed contract, inter alia, provided for a $1.25 hourly
wage increase. Business Agent Hickey testified that at one
point during the session, Dietz, who was discussing difficulties
the Respondent was having, stated, “How are we going to pay
the employees if there is no work? We can’t even pay them
with a sandwich, or something thereabouts.”4 Also, according
to Hickey, “a couple” of contract items proposed by the Unions
were discussed.
On September 20, 2010, prior to the next bargaining session,
the parties entered into a written agreement extending the con-
tract beyond its September 30, 2010 expiration date; the agree-
ment provides for a day to day extension of the contract until an
agreement is reached and ratified, or until either party served on
the other party a 5-day notice to terminate the agreement.
The next bargaining session occurred on October 6, 2010. In
addition to the aforementioned participants, Bill McCain, the
Boilermakers’ chief steward was also present. Neither the Re-
spondent nor the Unions deviated from their initial economic
proposals. According to Hickey, the parties “reviewed back and
forth the proposal from the Unions, and then also from the
company.”
The next session occurred on November 4, 2010. In addition
to the aforementioned participants, Jeff Spendlove was also
present. This is the first negotiating session Spendlove attend-
ed. At this session Spendlove set out the Respondent’s rationale
for its revised requested contract concessions, namely a $6.51-
per-hour average decrease in wages and/or benefits. Spendlove
presented the Unions with a chart which, according to Hickey,
“showed the hourly rate, full package, and then where they
needed to be at to stay competitive.” Thus the Respondent had
moved from its initial September 15 proposal of a $10-per-hour
average cut in pay and/or benefits, to the $6.51-figure. This
would reduce the total compensation package from the current
contract compensation package averaging $30.51-per-employee
per hour, to a proposed compensation package averaging $24-
per-employee per hour; under the Respondent’s proposal, the
Unions could take cost-cutting reductions from any cost items
the employees chose. The extent of Hickey’s testimony regard-
ing this presentation by Spendlove, is as follows:
Basically we sat down and started with [Spendlove] review-
ing the company’s position, talking about how much they
needed to make for—to be competitive. I think $4.5 million.
They were at 2.5, so they were 2 million short. There was talk
about they were basically working on a line of credit. They
were going to have to go see the bank in February. If they

4 I do not credit Hickey’s version of this alleged statement, upon
which the General Counsel relies in support of the argument that the
Respondent was pleading an inability to pay. Rather, I credit the ver-
sion given by Business Representative Agent Heidal, infra.
couldn’t get cuts that they needed that they didn’t think they
could secure a new loan at that time to continue business.
Painters’ business representative Jeff Brooke testified that
proposals were exchanged at the September 15, 2010 session,
and that Nordstrom discussed the “financial hardship” the com-
pany was having. Brooke testified the Respondent’s proposal
was discussed at the October 6, 2010 negotiating session. At
the November 4, 2010 meeting, according to Brooke,
Spendlove said that “the company had an amount of money and
however it wanted to be broken up from labor’s side, this is all
they could afford to pay for his employees.” At this session,
according to Brooke, Spendlove “presented the six dollar and
change rollback that he would need to keep the company
afloat.” According to Brooke, Spendlove said if the company
was not able to achieve that $24-per-hour number “they would
have to close the doors.”
Machinists’ Business representative Gregory Heidal was
designated as the Unions’ “scribe” to memorialize the meetings
he attended. Heidal testified that Dietz spoke up “a little bit” at
the meetings but for the most part was “pretty quiet.” At the
September 15, 2010 meeting the parties began to question each
other concerning the respective proposals they had exchanged.
Nordstrom talked about “the hopper and bucket of money” that
was available for the employees, but did not seem to be well
acquainted with the Respondents’ specific proposals. Heidal
does not recall if the Unions asked Nordstrom if he had the
authority to agree to contract changes. Dietz, according to
Heidal, essentially was claiming that there was no work out
there, and stated, “If I was just paying a sandwich and there
was no work, I could not even pay a sandwich.”5
Regarding the November 4, 2010 session, Heidal, when
asked by the General Counsel whether he remembered “gener-
ally” what Spendlove said at that session, answered, “Yeah, as
a matter of fact. Not general, I remember pretty detailed what
he said.”6 Heidal then went on to recount Spendlove’s presen-
tation:
You know, he came in and pretty much laid of what he felt
the condition of the company was, and that really backing up
some of what Faye [Dietz] had said before, that they were
having a hard time, having difficulties. There’s not a lot of
work out there, getting some bids. And the company was
having good years and having bad years. And that they were
looking for a competitive edge or an even playing field, if you
will, with his competitors, and that he needed to reduce the
costs of the contract.

5 The rather obvious meaning of Dietz’ remark, given the context, is
that no matter what the contract wages and benefits, even if the contract
provided that the employees should be paid a sandwich rather than
$30.51 cents per hour, the employees would be receiving nothing, not
even a sandwich, if there was no employment for them.
6 Heidal appeared to have a relatively thorough recollection of
Spendlove’s remarks at the November 4, 2010 meeting, reinforced by
the notes he had taken. I credit his testimony unless otherwise noted. I
do not credit the testimony of business agents Hickey and Brooke to the
extent their testimony differs from Heidal’s account of meeting.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Spendlove then presented the Unions with a little spreadsheet
or matrix, and said the Respondent was “looking at a reduction
of something like six-something an hour.”
Asked about whether Spendlove explained what he meant
about a February deadline with the bank and the landlord,
Heidal testified:
Yeah, but not in as much detail as I would like. Essentially. . .
they had to come to an agreement with the bank and the land-
lord,7 and they were looking for us, giving us the impression
that it was important for us to get on board for them to make
some sort of agreement so that they could go to the bank and
say, hey, this is where we’re at.
Regarding this, Heidal testified, “I believe Jeff [Spendlove]
said they were going to be in financial trouble”8 if they were
unable to make some agreement with the bank.9
Heidal testified the Unions asked to look at the Respondents
books, infra, based on what the Respondent was telling them
about its predicament. Asked why the Unions made this re-
quest, Heidal testified:
. . . they weren’t crying poverty. In fact, in our first meeting
with the company we asked them about that. They were tell-
ing us, you know, things were tough. And so we asked them
if they were crying poverty. And Dean Nordstrom, I believe,
as he said, “you will never—you will never hear us say we
don’t have the ability to pay. Okay.”
Well, as we continued down this road they continue to beat
the same drum that they were not making any money. So at
some point you got to go, well, okay, prove it, you know. At
this point they’re not saying—they’re not crying poverty, but
they’re telling us they can’t afford the contract. They can’t
compete with that contract. I don’t believe they ever said they
can’t afford the contract.
So, all right, if that’s the case, you’re telling you can’t com-
pete, then we’ll request the financial records. Where are you
at? Are you going broke or not? . . . they said they were una-
ble to compete and they wouldn’t have any work.10

7 I find that Spendlove said that in fact they had already made ar-
rangements with the landlord to reduce the rent.
8 This is different than what Hickey understood, namely that they
needed a new loan to “continue in business.”
9 There is no evidence that during negotiations anyone questioned
Spendlove about his statements regarding the line of credit or about the
annual gross volume of business the Respondent needed to break even,
or about the significance of these matters in relation to Spendlove’s
attempt to convince the Unions of the Respondent’s inability to com-
pete under the wages and benefits of the current contract. Indeed, at the
hearing, neither the General Counsel nor the Respondent’s counsel
asked either Spendlove or Dietz to explain the significance or interrela-
tionship of these concerns with the Respondent’s repeated assertions of
inability to compete.
10 This final statement was in response to a leading question from the
General Counsel, “And weren’t they also saying they would go out of
business if they didn’t get the cuts that they sought?” To this question
Heidal testified, “Yes, they said they were unable to compete and they
wouldn’t have any work.” Accordingly, I find that Heidal did not
testify that either Dietz or Spendlove said that the Respondent would go
Spendlove testified that the Respondent had approached the
Unions in 2009, the year before the expiration of the contract,
with this very same problem. The Respondent had wanted to
open up certain areas of the contract for concessions to get the
costs down. The Unions were not interested, and refused to
reopen the contract for this purpose. Without concessions the
Respondent was unable to win bids and secure sufficient work
for its employees, and layoffs necessarily followed.
Spendlove testified regarding his presentation at the Novem-
ber 4, 2010 meeting. He presented the issues that the company
was facing with “securing jobs, future jobs, that is, work for
employees.” The Respondent had been struggling for some
time with securing work, and was not being competitive. It was
bidding but losing a significant number of bids, “significantly
more than in the past.” Spendlove told the Unions that what the
Respondent was proposing would not get the company com-
pletely competitive but would get them closer, and he handed
out the matrix of costs. The current average was $30.51 per
hour. This, according to Spendlove, was an average of wages
and benefits based on simple arithmetic; some wages, and ap-
parently benefits, were higher for certain employees, and some
were lower.
Spendlove testified he did not convey to the Unions that the
Respondent was either unable to pay current contract benefits
to the employees who were working or even unable to pay cur-
rent employees more money. Rather, he testified the Respond-
ent could pay the wages and benefits for the employees who
were working. There was never a time when the company could
not make payroll and benefits. Spendlove tried to convey to the
Unions that “Wayron as a company wasn’t in jeopardy . . . [but]
that what we were not going to be able to provide was jobs.”
He said this several times. He said that so long as he could be
competitive he could provide jobs. Spendlove stated the reduc-
tion was necessary so that the Respondent could compete with
the nonunion competitors in the area, and conveyed to the Un-
ions that the Respondent needed the cost reductions “in a short
term fashion” due to the need to acquire a new line of credit.
Further, Spendlove made it clear to Hickey that the Respondent
was seeking a contract that could be signed no later than Febru-
ary 2011. Hickey said the Unions would have to talk about it,
as $6.51 was a pretty drastic cut, and that the Unions would get
back to the Respondent.
Spendlove testified that from the tenor of the discussions at
that meeting it seemed to him the Unions understood the situa-
tion and were receptive; they said they could appreciate his
position. He requested an opportunity to talk with the employ-
ees the following day, November 5, 2010, to explain to them
what he had told the Unions, because it was a very significant
reduction that they were being asked to accept and he wanted
the employees to understand why such a significant reduction
in wages and/or benefits was essential. He invited the union
business representatives to attend. The Unions had no objec-
tions to the holding of such a meeting, and Hickey indicated he
would be attending. Spendlove left the meeting “with a very

out of business if they did not get the cuts they were requesting. Rather,
this was Heidal’s assumption.
WAYRON, LLC 27
good feeling,” and was optimistic over the prospects of reach-
ing agreement.
The following day, November 5, 2010, Spendlove held the
aforementioned meeting with the employees at the Respond-
ent’s shop. Hickey had notified Spendlove that he was unable
to attend, and no union representatives were present for the
meeting. At the meeting Spendlove told the employees what he
had proposed to the Unions during negotiations: that he needed
the employees to take a large cut in pay and/or benefits of over
$6 per hour, that he had given the Unions and the employees
the option of deciding where they would be willing to take the
cuts, and that the cuts were needed in order to permit the Re-
spondent to be competitive with the nonunion shops in town.
He told them that Wayron had to pull “X” number of dollars
per year to cover overhead. It was not that they couldn’t pay, it
was that the Respondent could not be competitive, and he was
worried about providing jobs.11
During the hearing Spendlove and Dietz attempted to explain
Spendlove’s November 4 and 5, 2010 statements to the Unions
and employees regarding the Respondent’s need for $4.5 mil-
lion per year to cover “overhead.” Dietz testified that under the
then-current contract (apparently assuming a full complement
of approximately some 13 employees) the break-even point was
$4.5 million. The “overhead” amount was based on all fixed
costs, including labor costs, and the Respondent wanted to
bring this down. With the reduced $24-per-hour wage and
benefits package, the Respondent would no longer need to do
$4.5 million per year with a full complement of employees to
break even; rather, it could break even with much less gross
revenue. Accordingly, regarding the bank line of credit, it ap-
pears that the Respondent would not have to ask the bank to
continue the line of credit based on $4.5 million gross revenue
(that is, the current contract rates), but on a much lesser
amount, thus being able to request and obtain a substantially
reduced line of credit.12
On November 9, 2010, Hickey wrote to the Respondent as
follows:
Re: Information Request
Boilermakers Local 104, on behalf of the Unions (sic) Bar-
gaining Committee, is requesting the following information as
a result of the position the Company has taken during contract
negotiations. Specifically the Companies (sic) position that it
is financially unable to pay wages and benefits equal to the
wages and benefits in the expired Collective Bargaining
Agreement and the Companies (sic) position during the Bar-
gaining process that it needs wage and benefit concessions to
remain in business.
1. Access to all financial records by an Auditor selected by
the affected Unions and any other records deemed necessary

11 I do not credit the testimony of any employees who testified to the
contrary.
12 As noted, no one questioned Spendlove or Dietz about these mat-
ters during negotiations.
by said Auditor to substantiate the Companies (sic) position of
inability to pay.
Please give your response to this request no later than No-
vember 30, 2010.
Spendlove replied immediately on the following day, No-
vember 10, 2010, as follows:
1. Wayron is not, nor has previously, claimed the inability to
pay wages and benefits under any Collective Bargaining
Agreement. During the course of our negotiations Mister
Nordstrom has, for the record, stated several times that there
is no inability to any [sic] contractual obligations.
Wayron’s position is that it is unable to remain competitive in
the current global economic climate, and is seeking methods
of reducing costs to continue to secure work.
2. For the reasons stated above, Wayron has no intention of
allowing access for any audits concerning this matter.
Hickey did not directly disagree with this response from
Spendlove. Thus, Hickey was asked by the General Counsel
whether he agreed with Spendlove’s characterization of the
Respondent’s position in the aforementioned letter that the
Respondent was “merely not competitive” rather than unable to
pay. Hickey responded as follows:
. . . I mean I understand with the economic climate seeking a
reduction, but the eliminating all, you know, basically all ben-
efits was something that was out of the norm. We haven’t
seen it from any other Collective Bargaining Agreement we
represent. Like I stated earlier, we’ve seen some small reduc-
tions. I mean, less than a dollar reductions, but something this
significant amount, you know, was unheard of. So you know,
in his statement claiming the inability to pay was still in ques-
tion. . . .13
The next meeting was held on December 20, 2010. Only
Nordstrom, Dietz, and Hickey were present at this meeting. At
this time the Respondent employed only three employees, two
boilermaker employees and one other employee, either a paint-
er or machinist.14 It was a very brief meeting, less than about
10 minutes. Hickey testified he “mentioned” that it would help
if the parties extended the contract for 1 year.15 The parties
agreed that the next meeting would not be held until sometime
in January 2011 due to the upcoming holidays.

13 It appears that Hickey was not stating that the Respondent had
professed an inability to pay, but rather was articulating his belief that a
request for such steep reductions in wages and benefits was, on its face,
tantamount to an inability to pay, and that whether or not Spendlove
was “claiming an inability to pay was still in question.” Apparently the
letter clarified this for Hickey, as no further requests for financial in-
formation were forthcoming from the Unions.
14 Although the record is unclear, it appears that at one point there
were some 20 employees working for the Respondent among the three
crafts, the great majority of whom were boilermaker employees. Be-
cause of a lack of work these employees had been laid off, some for
very long periods of time, and by December 2010, the employee com-
plement had declined to three employees.
15 Hickey testified he believes he “proposed” this, but he did not
necessarily want it to be characterized as a formal, written “proposal.”
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The next meeting was held on January 28, 2011. The Re-
spondent scheduled this meeting with a FMCS mediator. Hick-
ey and the various union business representatives were present,
as was Bill McCain, the Boilermakers’ chief steward.
Nordstrom, Dietz, and Spendlove were present for the Re-
spondent. The parties did not meet face to face. The mediator
shuttled several times from one group to the other. Hickey un-
derstood from the mediator that the Respondent continued to
propose the reduction to a $24-per-hour wage and benefits
package, and the Unions advised the mediator that they refused
to reduce the benefits package below the status quo. Hickey
testified his “understanding” of what the mediator was telling
him was that “without an agreement on the economics from the
mediator none of the other parts of the proposal would be dis-
cussed.”16 No change in either position was made at this meet-
ing. The mediator indicated that because the parties were so far
apart there appeared to be no further need for her services, and
no further sessions with the mediator were scheduled.
Immediately following the aforementioned meeting with the
mediator the Respondent advised the Unions by email that it
was terminating the collective-bargaining agreement on Febru-
ary 4, 2011. On February 2, 2011, Hickey sent a counterpro-
posal to the Respondent providing for, inter alia, a 75-cent-per
hour wage increase for each classification for each year of the
agreement. This was a reduction from the Unions’ initial pro-
posal of a $1.25-per-hour wage increase for each classification
for each year of the contract, but an increase from its recent
December 20, 2010 and January 28, 2011 verbal proposal to
retain the status quo.
Another negotiating session was scheduled for February 4,
2011. On the morning of the scheduled date Hickey emailed
Spendlove as follows:
I just got off the phone with Dean Nordstrom, he feels that the
Company is not willing to move from your original proposal
back in November he believes today meeting would be un-
productive. Just to confirm with you is that indeed the posi-
tion of the Company is that their last offer is the last best and
final offer, if that is the case we agree nothing productive will
result from meeting today, however if you are willing to con-
tinue to bargain and propose changes to the Company’s posi-
tion we are still willing to meet today. We have the Wood-
workers hall reserved for 2:30pm today. (Syntax in original.)
Spendlove replied by email, “We will see you at 2:30”
The parties met again that afternoon. The same participants
were present. The Union’s February 2, 2011 proposal was
reviewed. There is no contention that the Respondent refused
to discuss anything the Unions wanted to discuss. Hickey be-
lieves the Unions retracted their February 2, 2011 proposal,
requesting a 75-cent-per hour wage increase, by stating they
were willing to forgo any wage increase and simply retain the
status quo in a new contract as they had proposed at the earlier
sessions. The Respondent declined, and again reiterated its

16 This hearsay testimony was objected to by Respondent’s counsel
and was received as hearsay not for the truth of the matter but only to
permit Hickey to present his understanding of what he understood the
mediator to be saying.
need for the $24-figure because of the average benefits package
of their competitors in the area17 and, in addition, to show this
reduction to its bank in order to get an extension of the line of
credit. The Respondent said it would be implementing new
terms and conditions of employment on Monday. Hickey’s
computer notes of the meeting state that as of today the compa-
ny has not shown any movement from its November 4, 2010
proposal, and “the company would be looking at the terms and
conditions for the employees this weekend and will be imple-
menting those terms and conditions on Monday.”18
Spendlove testified that throughout negotiations the Unions
did not attempt to negotiate contract language with him. Fur-
ther, Spendlove testified that on several occasions Hickey told
him that while the Unions were sympathetic to his position,
they just felt that giving Wayron concessions was going to lead
to a domino effect down the line for all the Unions nationwide,
and they could not do this.
On Friday afternoon, February 4, 2011, according to Mike
Olson, a boilermaker working foreman, he and the other two
employees who were working at the time went into the office to
punch out. They were told by Dietz and Spendlove that “We
want you to, on your way out, grab an application. Don’t come
in Monday, and go ahead and show up Tuesday with the appli-
cation. We’re going to rehire everybody. We’re going to start
new again.” They said the negotiations were terminated be-
cause “there was nothing going on,” and that the Unions were
“not just being real.” According to Olson, they did not specifi-
cally say the Respondent was going nonunion; however, be-
cause he was required to fill out a new employment application,
he was uncertain whether the Respondent was still a union shop
or not.
On Monday, February 7, 2011, without prior notification to
the Unions, the Respondent sent the following termination of
employment letter to all of its employees, including employees
on layoff status:
RE: Termination of Employment
As the Collective Bargaining Agreement, as well as all exten-
sions has (sic) been terminated, your employment with
Wayron, LLC is hereby terminated effective 7:00 a.m. Mon-
day February 7, 2011.
All rights and privileges as an employee have ended as a re-
sult of this termination as of February 7, 2011.
Your final pay and allowances (if any) will be mailed to you
at the above address on the next regularly scheduled pay date,
less standard deductions and any amount owed to Wayron,
LLC.
You are welcome to apply in person after February 8, 2011 if
you wish to seek re-employment.
Spendlove testified the employees were told not to come to
work on Monday because he and Dietz did not know at the time

17 Hickey testified he took Spendlove’s word for this and did not
question it or ask for verification because in some cases he knew it was
true.
18 After the February 4, 2011 meeting, Nordstrom had no further in-
volvement in this matter.
WAYRON, LLC 29
whether they could formulate the details of the economic pack-
age by then. Thus, in the absence of any guidance from the
Unions, they had to decide on the wage/benefit package gener-
ally for all employees, and specifically for each employee, de-
pending upon the employee’s job classification, seniority and
benefits. Spendlove testified that when he and Dietz purchased
the company from its predecessor, they terminated and rehired
all of the employees; similarly, they thought this would be a
good precedent to follow in order to make a clean break for
accounting purposes19 and start over. He testified, “It seemed to
us that the cleanest, best way to…enact the last offer before
reaching impasse, the cleanest, easiest way to do that and keep
everything clear would be to just start everybody over on a
completely new set of . . . bookkeeping books.” They had the
employees reapply because they were not sure that employees
would want to come back under the new conditions. As noted,
there were only three employees working and many more on
layoff status. Spendlove testified it just seemed like the most
direct way to let the employees know that they would be return-
ing to work under new terms and conditions of employment,
and for the employees to let the Respondent know that they
were willing to do so.
Over the weekend the Respondent had decided upon a new
wage and benefits package that would conform to its last and
final wage and benefits proposal it had offered to the Unions,
namely, an average $24-per-hour figure per employee. On
Tuesday, February 8, 2011 the employees who were working
on the previous Friday were rehired after filling out new em-
ployment applications, and began receiving wages and benefits
in accordance with the Respondent’s newly instituted wage and
benefits package.
Robert Stone, a Boilermaker employee, who apparently was
on layoff status, testified that he phoned Boilermaker Foreman
Gary Bishop about the letter. Bishop told him to come in and
reapply. He did not reapply because “Well, they fired me once,
so I figured they didn’t want me.”
Bill McCain, a 20-year Boilermaker employee with the Re-
spondent and its predecessor, had been shop steward for the
Boilermakers and had attended negotiating sessions. He had
been on layoff status since December 15, 2010. Sometime after
February 7, 2011 he received the aforementioned letter from
the Respondent. McCain testified that on Friday, February
4,2011 he had a phone conversation with Mike Olson, a Boil-
ermakers foreman, whom McCain identified as a lead man, and
asked him about the situation. Olson told him to come in and
fill out an application, adding that he too had been given an
application on Friday. Olson told him that they were “closing
on Monday and reopening on Tuesday, the following day, non-
union, that I had to re-apply for my job.” Olson did not say
where he had obtained this information. McCain testified that
upon reading the letter he assumed the Respondent was going

19 Employees whether or not they were on layoff were entitled to ac-
crued vacation pay, and they were each sent a check for this, as the
Respondent did not know whether they would be returning to work or
would be remaining on layoff status. If they wanted to be rehired by the
Respondent their vacation leave would again begin accruing at the time
they were rehired. However, they lost no vacation benefits.
to be a nonunion shop as the letter said nothing to the contrary.
He never spoke to Dietz or Spendlove about the matter, and did
not reapply because he did not want to work for a non-union
shop; nor would he have reapplied even if he knew the shop
would continue to be a union shop but not under a collective-
bargaining agreement.20
Corey Wasson, a boilermaker employee, is currently em-
ployed by the Respondent. Wasson reapplied for his job after
receiving the letter and spoke with Dietz and Spendlove. Was-
son testified that when he met with Dietz and Spendlove, he
believes they told him the shop would be working “not under a
Union contract anymore, and they decided to pay him more
money in wages but there would not be more benefits till later
on when the company was doing better.” However his Board
affidavit states that when he went in to meet with Dietz and
Spendlove, “The first thing they told me was the shop was non-
Union and . . . there would be no benefits.” Wasson attempted
to explain this discrepancy by testifying, in effect, that his affi-
davit was imprecise as it reflected his belief or understanding of
the situation rather than the explicit words of Dietz and
Spendlove.
Wasson attended a Boilermakers union meeting held for the
purpose of updating employees about the status of negotiations.
Wasson testified that one of the business representatives stated
there should be some work coming up at the shipyards and that
the employees would not be able to return to Wayron without a
contract and work in the same trade because it was against the
Boilermakers constitution; thus, the employees could not be in
the Union if they continued working for Wayron.
Brett Lafever, a boilermaker employee, had worked for the
Respondent since 2007. He reapplied on February 8, 2010 and
was rehired. His Board affidavit states: “The interview started
with Jeff and Faye thanking me for coming in and telling me
that as I may know Wayron was starting up as a non-Union
shop.” However during the course of his testimony he too at-
tempted to retract this statement by maintaining that this was
more of an assumption on his part rather than the actual state-
ments of Dietz and Spendlove. He further testified that neither
Dietz nor Spendlove said anything at all about the contract or
the Unions, and did not say the company was no longer under a
union contract. During the interview they told him about a new
package deal for each employee; he was offered more wages,
but no pension and no medical, and told that maybe these bene-
fits could be available in the future.
On February 18, 2011, and again on February 22, 2011,
Hickey wrote to the Respondent to schedule further negotia-
tions. On March 2, 2011, the Boilermakers filed its initial

20 The Respondent, in its answer to the complaint, admits the super-
visory status of Mike Olson. At the hearing however, Respondent’s
counsel stated this was an error on her part and was granted permission
to amend the answer to deny supervisory status. Thereupon the Gen-
eral Counsel was given time to investigate and provide further evidence
on this matter. While it appears from the record evidence that Olson
was not a supervisor within the meaning of the Act, it is unnecessary to
make such a determination. Thus, the statement regarding the nonunion
status of the Respondent attributed to Olson by McCain is identical to
the statements I find were made by Dietz and Spendlove, infra, and
would simply be cumulative.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
charge in this matter, and filed amended charges on March 9
and 18 alleging, inter alia, that the Respondent had withdrawn
recognition from the Boilermakers.21
Spendlove did not reply to the requests for further negotia-
tions until March 14, 2011, when he sent the following email to
the Unions:
Wayron is, and has always been, willing to meet with you for
contract negotiations. However, what appears to be more
pressing is the Boilermakers’ NLRB charges against the com-
pany, which Wayron denies. We anticipate that the subject
matters of the charges may overlap with any topics of negotia-
tion and further anticipate that the parties will not be able to
bargain beyond impasse without the resolution of such charg-
es.
Wayron hopes that negotiations will be productive in resolv-
ing the charges and moving forward with a new contract.
We have negotiated in good faith with the union and will con-
tinue to do so.
There were further emails back and forth as to which side
had the primary responsibility to furnish tentative negotiating
dates. By email dated March 24, 2011, Spendlove proposed
negotiating dates to Hickey and also stated:
I recommend that one of the first orders of discussion is dis-
mantling the wall-to-wall contracts with the three unions.
While this may have been effective and efficient several years
ago, the nature of our business has changed, and based on un-
foreseen economic factors, the Company intends to negotiate
that it separately bargains with each union.
The parties agreed to meet on April 22 and 29, 2011. How-
ever, on April 19, 2011, the Boilermaker employees filed a
decertification petition in a unit described as excluding “Paint-
ers, Machinists, Office Personnel.” Spendlove testified that
upon being advised of this decertification petition he believed
the Boilermakers Union no longer had the majority support of
the boilermaker employees. He based this belief on the fact
that he was told this by the two boilermaker employees who
filed the petition, namely, Brett Lafever and Rick Crenshaw,
“that eight people, I believe it was eight people, had signed the
petition.” At that time, according to Spendlove, the Respond-
ent had eight boilermaker employees “on its books,” four who
were working and four who were apparently on layoff status.22
By email dated April 20, 2011, Spendlove stated to Hickey:
In light of the petition Wayron received on April 19, 2011 re-
garding Boilermaker decertification, Wayron is canceling the
negotiation meeting scheduled for the 22nd of April.

21 On April 4, 2011, the Boilermakers filed its third amended charge
in this matter, for the first time specifying that it was filing on behalf of
itself and the two other Unions “as joint representatives of the bargain-
ing unit.”
22 Two boilermaker employees were hired on February 8, 2011, two
were hired on February 9, 2011, two were hired on April 25, 2011, one
was hired on April 27, 2011, and one was hired on May 23, 2011. The
two employees who filed the petition were Brett Lafever, who had been
hired on February 9, 2011, and Rick Crenshaw, who was not hired until
May 23, 2011.
At this time, we plan to continue to negotiate with the Ma-
chinist and Painter unions as scheduled on the 29th, but will
confirm this prior to meeting next week.
The scheduled April 29, 2011 meeting with the Painters and
Machinists was not held because these Unions refused to meet
without the Boilermakers also being present; the Respondent
was not agreeable to this condition.
On May 6, 2011, the machinist employees filed a decertifica-
tion petition in a unit described as excluding “Painters, Boiler-
makers.” As of that date the Respondent had only one machin-
ist employee on its books. Spendlove advised the Machinists
Union that the Respondent was “withdrawing recognition”
from that Union. Spendlove testified the Respondent felt it
would be improper and unlawful “if we bargained with two
decertified Unions.”
By May 23, 2011, all eight boilermaker employees were
working.
By emails dated June 14 and July 8, 2011, the Boilermakers
requested “hire or re-hire dates” for eight named employees
who had returned to work; they had all been working since May
23, 2011. Spendlove initially did not provide the requested
information because of the pending boilermakers employees’
decertification petition.
On June 23, 2011 the complaint in this matter was issued.
Further, sometime before July 27, 2011, the Regional Office
dismissed both decertification petitions.23
As a result of this development, Spendlove replied to the
Boilermakers by email dated July 27, 2011, giving the hire or
rehire dates of the eight employees “out of an abundance of
caution,” but further stated that the Boilermakers no longer had
majority support from the individuals in that unit, that the em-
ployees “ha[d] made it known to the NLRB and the company
that they do not want to be represented by the Boilermakers,”
and that, “Out of respect for the employees’ expressed intent,
the company does not recognize the Boilermakers and is under
no obligation to provide the requested information.” Thus, the
Respondent had delayed providing the information from June
14, 2011, to July 27, 2011.
Thereafter the Respondent was advised by the Regional Of-
fice that the Board had authorized the filing of an injunction
under Section 10(j) of the Act with the Federal district court to
require the Respondent to continue bargaining with the Unions
as the “joint” bargaining representatives of the unit employees,
and to offer four previously laid-off employees, who had been
terminated pursuant to Respondent’s aforementioned February
7 termination letter, reinstatement to their layoff status.24
On August 25, the Respondent emailed all three Unions stat-
ing that that it would agree to bargain with the Unions.
On August, 26, 2011, the Respondent and Regional Office
entered into an Agreement to Entry of a Consent Judgment
whereby the Respondent agreed, inter alia, to bargain with the
Unions, reinstate the named employees to layoff status, and

23 The record does not indicate the rationale of the Regional Office
for dismissing the petitions.
24 The employees are Karl Graichen, William McCain, Chester
Scott, and Robert Stone.
WAYRON, LLC 31
post copies of the Agreement to Entry of a Consent Judgment at
its facility.
Thereafter, the parties have negotiated pursuant to the Con-
sent Judgment agreement.
C. Analysis and Conclusions
It is clear that there was no meeting of the minds between the
Respondent and the three Unions to engage in collective bar-
gaining for a single/joint wall-to-wall unit covering all employ-
ees. Neither the contract itself nor the apparent understanding
and conduct of the parties during prior negotiations and the
current set of negotiations reflect such a meeting of the minds.
Rather, the Respondent and the three Unions were bargaining at
the same time not because they had decided to consolidate three
distinct craft units into one, but simply for purposes of conven-
ience and cost savings. Indeed, if for some unexplained reason
they had decided to establish a single unit,25 it is reasonable to
presume they would have simply said so in no uncertain terms
so that there could be no ambiguity; such as, for example, “This
contract is intended to cover all employees represented by the
individual unions as a single unit and not as three separate
units.” Here, Spendlove was insistent that there was no such
agreement, and not one union witness testified to the contrary.
"The Board does not find a merger in the absence of unmistak-
able evidence that the parties mutually agreed to extinguish the
separateness of the previously recognized or certified units."
Duval Corp., 234 NLRB 160 (1978) (emphasis in original)
(quoting Utility Workers Union of America, 203 NLRB 230,
239 (1973), enfd. 490 F.2d 1383 (6th Cir. 1974). I shall dis-
miss this allegation of the complaint.
Throughout the course of bargaining both sides essentially
adhered to their respective initial positions. The Respondent
required significant reductions in labor costs to remain com-
petitive. While not entirely clear from the record, it appears the
Respondent’s total employee complement had declined from at
one point approximately 20 employees, to a relatively steady
employee complement of some 13 employees, to 3 employees
in late 2010 and early 2011 when the current negotiations were
ongoing. Dietz and Spendlove attributed the decline to the fact
that the Respondent was unable to successfully bid jobs due to
excessive labor costs. Although the Unions acknowledged this
as the catalyst for the Respondent’s request for concessions,
they were nevertheless adamant that there would be no reduc-
tions whatsoever; thus, Hickey told the Respondent’s negotia-
tors as well as boilermaker employees that to give the Re-
spondent concessions would cause a domino effect with other
employers that would adversely impact the Unions, and that
there would be no concessions.
It is clear that throughout negotiations the Respondent never
explicitly said that it could not or would not agree to the Un-
ions’ proposals because of an inability to pay. In fact the oppo-
site is true. Thus, at the very first negotiating session, when the
Unions asked whether the Respondent was making such an
assertion, the Respondent’s negotiator, Nordstrom, immediately

25 As noted, the record is devoid of evidence that the parties decided
to establish a single unit, and there is no record evidence of any benefit
whatsoever, either to the Respondent or to the Unions, for consolidating
the three units into one for bargaining purposes.
replied in explicit terms that it was making no such claim. And
in November 2010, when the Unions asked to examine the
Respondent’s financial records, the Respondent, through
Spendlove, again immediately reiterated that it had made and
was making no such claim of an inability to pay. It is signifi-
cant that Hickey did not dispute that the Respondent was at a
competitive disadvantage; indeed, the Unions neither disputed
this assertion nor requested information supporting this specific
contention of the Respondent, such as, for example, documents
showing bids by the Respondent that it had not been awarded.
Clearly, the Unions knew why the Respondent’s employee
complement had drastically declined.
The General Counsel argues that although there was no ex-
plicit statement from the Respondent of an inability to pay,
such an inability may be gleaned from some of the remarks
made during negotiations, namely Dietz’ remark that the Re-
spondent could not even pay the employees a sandwich, and
Spendlove’s remarks about a $4.5 million break even point and
the necessity of securing a bank line of credit. I do not agree. I
find that these remarks and examples were intended by Dietz
and Spendlove to demonstrate and convince the Unions and
employees of the necessity of concessions so that the Respond-
ent could successfully return the laid-off employees to work
(and earn more than the price of a sandwich, that is, more than
nothing) and provide employment for the complement of em-
ployees it had employed in the past. To do so would require a
new break even point and a continuing line of credit sufficient
to conduct its business operations based on a full complement
of employees. I shall dismiss this allegation of the complaint.
American Polystyrene Corp., 341 NLRB 508 (2004); AMF
Trucking & Warehousing, Inc., 342 NLRB 1125 (2004); North
Star Steel Co., 347 NLRB 1364, 1369–1370 (2006); Nielsen
Lithographing Co., 305 NLRB 697, 700 (1991), affd. sub nom.
Graphic Communications Local 508 v. NLRB, 977 F.2d 1168
(7th Cir. 1992).26
Both sides began with proposals that they eventually modi-
fied. The Respondent lowered its initial demand from an ap-
proximately $10-per-hour cut in pay and/or benefits to a $6.51-
per-hour cut in pay and/or benefits.27 The Unions reduced their

26 Even if the Respondent had explicitly claimed an inability to pay,
I find that under the circumstances herein the Unions would not be
entitled to the requested financial information. Thus, in NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956) the Supreme Court states, “We do not
hold, however, that in every case in which economic inability is raised
as an argument against increased wages it automatically follows that
the employees are entitled to substantiating evidence. Each case must
turn on its particular facts.” Here, regardless of the Respondent’s finan-
cial circumstances, the Unions made it clear that for reasons unrelated
to the Respondent’s financial circumstances it could not agree to con-
cessions, particularly to the significant concessions requested by the
Respondent, because to do so would jeopardize the Unions’ bargaining
positions nationwide. Both sides knew, under the circumstances, that an
audit of the Respondent’s financial documents simply would have been
an unproductive, time-consuming, exercise in futility, and would not
have advanced the prospects for agreement.
27 The Respondent advised the Unions that it made no difference
what contract cost items were reduced to get from the contract rates,
which the Respondent calculated as amounting to a $30-per-hour aver-
age cost package, to approximately a $24-per-hour average cost pack-
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
initial demand from a pay increase to simply an extension of
the current contract pay and benefits, the status quo, over a 1-
year period. Neither the Respondent nor the Unions were will-
ing to move from their respective positions. Discussions re-
garding contract language were either nonexistent or highly
abbreviated as economics dominated the negotiations; there is
no showing that the Respondent was unwilling to discuss what-
ever the Unions wanted to discuss regarding any of the Re-
spondent’s contract proposals, including specific proposed
changes in contract language. The fact that many noneconomic
proposals had not yet been negotiated was not due to the Re-
spondent’s refusal to do so. Rather, it is clear the parties implic-
itly postponed bargaining over non-economic matters until
agreement had been reached on the overriding economic issues.
The parties bargained from September 15, 2010, through
February 4, 2011, a period of nearly 5-months, and the Re-
spondent was willing to extend the terms and conditions of the
expired collective bargaining from September 30, 2010, to
February 4, 2011, a period of over 4 months, to facilitate the
reaching of an agreement. Finally, as no progress was being
made and as time was of the essence, the Respondent, in a final
attempt to reach agreement, initiated a meeting with a Federal
mediator to assist the parties’ efforts. Clearly, the parties, after
bargaining, had reached the point at which neither side was
willing to move from its firm position. Hickey admitted as
much in his February 4, 2011 email, supra. Accordingly, an
impasse had been reached. I so find. I shall dismiss this allega-
tion of the complaint. See California Pacific Medical Center,
356 NLRB 1283, 1288–1289 (May 25, 2011).
The General Counsel maintains that the terms and conditions
of employment established and implemented by the Respondent
on or after February 7 were unilaterally implemented in viola-
tion of Section 8(a)(5) of the Act because they had not been
specifically proposed to the Unions during negotiations.
In support of this argument the General Counsel points out
that in fact after February 8, 2011, the Respondent’s payroll
reflects an average hourly pay/benefits package of its then-
current employees of less than $24 per hour, and that this estab-
lishes that the implemented economic package was less than,
and not reasonably encompassed by, what was offered the Un-
ions during negotiations. I find no merit to this contention.
Between February 4 and 8, 2011, the Respondent was attempt-
ing to establish an average hourly rate of approximately $24 per
hour based on its current and laid-off employee complement at
the time; the fact that its employee complement changed after it
instituted this pay/benefit package was simply a contingency
that it could not have accurately input into its calculations over
the weekend of February 4, 2011, as it did not know which
employees would be returning to work. Moreover, the fact that
the Respondent raised the hourly wage of some of its employ-
ees while reducing or eliminating other benefits seems to be

age, a reduction of $6.51 per hour. It furnished the Unions with a chart
identifying each of the current economic items-wages, vacation bene-
fits, holiday benefits, health and welfare benefits, pension benefits,
funeral benefits and jury duty benefits--and the average hourly amount
of each item, and suggested that the Unions survey the employees to
determine which of the economic items they would be willing to reduce
and the extent of the reductions.
consistent with the Respondent’s proposal during negotia-
tions.28 Thus the Respondent’s proposal gave the Unions a
lump sum, namely $24 per hour, to disburse among various
wage and benefit items, in the amounts selected by the Unions;
the options presented the Unions did not preclude increasing
any benefits the Unions and employees may have chosen to
increase, nor did it preclude the elimination of any benefits the
Unions and employees may have chosen to eliminate. Accord-
ingly, following the impasse, the Respondent was privileged to
unilaterally increase, reduce and/or eliminate any of the various
economic items in order to arrive at, or as close to, the $24-per-
hour average as possible. I find that the Respondent diligently
endeavored to do so.
In summary, the record evidence shows that the Respondent
attempted to reduce its wages and benefits by some $6.51 to an
average of some $24-per-hour, and that it did so within reason-
able bounds considering the difficulty of having so many varia-
bles to reconcile in order to reach that figure. Further, I find
that the terms and conditions implemented by the Respondent
were reasonably encompassed by the proposals it made to the
Unions during the course of bargaining. I shall dismiss this
allegation of the complaint.29
As I have found above, after an impasse had been reached
the Respondent advised the Unions that it would be implement-
ing new terms of employment on the following Monday, Feb-
ruary 7, 2011.
By letter dated February 7, 2011, all of the employees,
whether they were currently employed or on layoff status, were
discharged as follows:
As the Collective Bargaining Agreement, as well as all exten-
sions has (sic) been terminated, your employment with
Wayron, LLC is hereby terminated effective 7:00 a.m. Mon-
day February 7, 2011.
They were further advised that all their prior rights and privi-
leges as employees had ended; told that they would be mailed
their final paychecks; and informed that they could “apply in
person” if they wished to seek reemployment. Thus the em-
ployees were explicitly told that their discharge and the re-
quirement that they must seek reemployment by submitting
new employment applications was precipitated by the Re-
spondent’s termination of the collective-bargaining agreement;
and they reasonably believed, I find, that the Respondent termi-
nated the agreement, as well as the employees, as a result of the
Unions’ unwillingness to accede to the Respondent’s demands
during negotiations. While the Respondent maintains that it did
not intend to retaliate against the employees, and that its deci-

28 At some point during negotiations the Unions advised the Re-
spondent that the employees had been polled as to what financial items
they deemed most significant, and that wages was of primary im-
portance.
29 The record evidence supports the Respondent’s contention that it
had always recalled employees from layoff based on both seniority and
the employees’ specific abilities to perform the work in question, and it
had always hired new employees from responses to newspaper ads or
as walk-ins seeking employment. The record does not support the Gen-
eral Counsel’s contention herein that the Respondent deviated from this
modus operandi after February 7, 2011.
WAYRON, LLC 33
sion to terminate them and have them reapply was premised on
legitimate business considerations, it did not so advise the em-
ployees in the letter.
I agree with the General Counsel’s assertion that such a mes-
sage to employees announcing adverse consequences, including
termination, resulting from the refusal by their collective bar-
gaining representatives to accept the Respondent’s demands, is
inherently destructive of employees’ Section 7 rights, and on its
face constitutes unlawful retaliation against them for their un-
ion activity in violation of Section 8(a)(3) and (1) of the Act. I
so find. NLRB v. Great Dane Trailers, 388 U.S. 26, 33 (1967);
NLRB v. Erie Resistor Corp., 373 U.S. 221, 227–228 (1963).
Whatever the Respondent’s motivation for sending such a
letter, it is clear that the employees understood from the letter
that the Respondent was terminating its contractual relationship
with the Unions as well as its relationship with the employees,
that the two were interrelated, and that by reapplying in person
the employees would be acknowledging that they agreed to a
new relationship with the Respondent; and, as Respondent had
severed its relationship with the employees, it was reasonable
for the employees to believe it had similarly severed its rela-
tionship with the Unions. This conclusion is enforced by the
statements of Dietz and Spendlove who, I find, told employees
Wasson and Lafever during their reemployment interviews that
Wayron was nonunion.30 By such conduct I find the Respond-
ent has violated Section 8(a)(1) of the Act. See Eldorado, Inc.,
335 NLRB 952 (2001); Williams Enterprises, 301 NLRB 167
(1991).
In addition to failing to notify the Unions regarding the ter-
mination of all employees, as announced in its February 7,
2011 letter, the Respondent delayed its response to the Unions’
request for bargaining for nearly a month; and not until March
14, 2011, after the charge and amended charges herein had
been filed, did it finally reply to the Unions’ bargaining re-
quests. By such conduct, I find, the Respondent implicitly
withdrew recognition from the Unions from February 7, 2011
until March 14, 2011. By such conduct the Respondent has
violated Section 8(a)(5) of the Act as alleged. See Lou’s Pro-
duce, Inc., 308 NLRB 1194, 1196 (1992).
Upon receiving the boilermaker employees’ decertification
petition the Respondent immediately withdrew recognition
from the Boilermaker’s Union. Later, upon receiving the ma-
chinist employee’s decertification petition, the Respondent
immediately withdrew recognition from the Machinists Union.
I find the Respondent was not privileged to withdraw recogni-
tion from these two unions, as the probable effects of its prior
unlawful conduct had not been dissipated. Thus, as set forth
above, it had terminated its employees, required them to reap-
ply, caused them to reasonably believe they would have to give
up union representation to be assured of further employment,
and did not timely reply to the Unions’ bargaining requests.

30 In this regard I credit the corroborative statements of Wasson and
Lafever, attested to in their Board affidavits, and discount their self-
serving testimony that their affidavits were inaccurate because they
were substituting their subjective opinions and beliefs for what in fact
was actually stated to them by Dietz and Spendlove. Further, I discredit
the testimony of Dietz and Spendlove to the extent it is inconsistent
with the affidavits of Wasson and Lafever.
Such unlawful conduct reasonably would cause employee dis-
affection from the Unions. Accordingly, by refusing to contin-
ue bargaining with the Boilermakers Union and the Machinists
Union after the decertification petitions had been filed, I find
that the Respondent has violated Section 8(a)(5) and (1) of the
Act. Lee Lumber & Building Material Corp., 322 NLRB 175,
177 (1996), enfd. 117 F.3d 1454 (D.C. Cir. 1997); Ely-Brown
Co., 328 NLRB 496, 497 (1999); Pirelli Cable Corp., 323
NLRB 1009, 1010 (1997).
Because of the pending boilermaker employees’ decertifica-
tion petition the Respondent initially refused to furnish the
information requested by the Boilermakers, namely the hire or
rehire dates of the eight named employees. Clearly, as the col-
lective-bargaining representative of the boilermaker employees,
the Boilermakers Union is entitled to this relevant information.
However, the Respondent did not furnish the information until
some 6 weeks later when the decertification was dismissed by
the Regional Office. By delaying the furnishing of this infor-
mation, I find the Respondent has violated Section 8(a)(5) of
the Act.
CONCLUSIONS OF LAW AND RECOMMENDATIONS
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Unions are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a) (1) and (5) of
the Act as found herein.
THE REMEDY
Having found the Respondent Wayron, LLC has violated and
is violating Section 8(a)(1) and (5) of the Act, I recommend
that it be required to cease and desist therefrom and from in any
other like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act. I shall also recommend the posting of an
appropriate notice, attached hereto as “Appendix.”
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.31
ORDER
The Respondent, Wayron, LLC, Longview, Washintgon, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating employees and requiring them to reapply
because of the termination of the contract and impasse in col-
lective bargaining negotiations.
(b) Advising or causing employees to believe that because of
the termination of the contract and impasse in negotiations they
are no longer represented by the Unions.
(c) Failing to notify the Unions of its intent to discharge em-
ployees, implicitly withdrawing recognition from the Unions,

31 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
delaying further bargaining with the Unions, and delaying the
furnishing of relevant information to the Boilermaker Union.
(d) Withdrawing recognition from the Boilermakers Union
and Machinists Union pursuant to decertification petitions prior
to the remedying of unfair labor practices, which reasonably
influenced the filing of such petitions.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action, which is necessary
to effectuate the purposes of the Act.
(a) Advise, by letter, all employees employed or on layoff
status on February 7, 2011 that their terminations have been
rescinded, that they need not reapply for future employment,
and that their rights and privileges as an employee with regard
to seniority and recall from layoff have been restored.
(b) Within 14 days after service by the Region, post at its
Longview, Washington facility copies of the attached notice
marked “Appendix”, and mail copies of the notice to employ-
ees who were on layoff status on February, 2011.”32 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 19, after being duly signed by Respondent’s representa-
tive, shall be posted immediately upon receipt thereof, and shall
remain posted for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 19 a sworn certification
of a responsible official on a form provided by the Region at-
testing to the steps that Respondent has taken to comply.
Dated: March 29, 2012

32 If this Order is enforced by a judgment of the United States Court
of Appeals, the wording in the notice reading, “Posted by Order of the
National Labor Relations Board,” shall read, “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT terminate employees and require them to reap-
ply because of the termination of the contract and impasse in
collective bargaining negotiations.
WE WILL NOT advise or cause employees to believe that be-
cause of the termination of the contract and impasse in negotia-
tions the Unions no longer represent them.
WE WILL NOT fail to notify the Unions of our intent to dis-
charge employees, implicitly withdraw recognition from the
Unions, delay further bargaining with the Unions, or delay the
providing of relevant information requested by the Boilermak-
ers Union as the collective bargaining representative of boiler-
maker employees.
WE WILL NOT withdraw recognition from the Boilermakers
Union and Machinists Union pursuant to decertification peti-
tions before we have remedied the unfair labor practices which
reasonably influenced the filing of such petitions.
WE WILL rescind the February 7, 2011 terminations of all em-
ployees. You are hereby advised that your terminations have
been rescinded, that you need not reapply for future employ-
ment, and that your rights and privileges as an employee with
regard to seniority and recall from layoff have been restored.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the foregoing
rights guaranteed them by Section 7 of the Act.
WAYRON, LLC