Whitesell Corp.

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1196 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 138
1196
Whitesell Corporation and Glass, Molders, Pottery,
Plastics and Allied Workers International Un-
ion, Local 359. Cases 18–CA–18143, 18–CA–
18168, and 18–CA–18203
August 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On March 2, 2007, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision, finding that
the Respondent had violated Section 8(a)(1) and (5) in
various respects. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions only to the extent consistent with
this Decision and Order.3
The judge found that the Respondent violated Section
8(a)(1) by prohibiting employees from distributing union
meeting notices in the plant during their breaktime and
separately violated Section 8(a)(1) by prohibiting the
employees from distributing such notices during their
unpaid time. Although the judge did not fully explain
the basis for these findings, we agree that the Respondent
violated Section 8(a)(1) by prohibiting distribution of

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 In the absence of exceptions, we adopt the judge’s dismissal of the
allegations that the Respondent violated Sec. 8(a)(1) by denigrating the
Union’s representative and threatening bargaining futility and plant
closure; and violated Sec. 8(a)(5) by prohibiting the Union from post-
ing materials in the plant on June 13, 2006, failing to provide the Union
with all postings on or after that date, and engaging in surface bargain-
ing.
Further, we adopt the judge’s finding that the Respondent violated
Sec. 8(a)(5) by failing and refusing to process a series of grievances
concerning the Respondent’s June 13 unilateral changes and requesting
a return to the status quo. In doing so, we have considered the Respon-
dent’s argument that it lawfully refused to process this specific class of
grievances, but we nonetheless adopt the judge’s finding of a violation
as it is consistent with Board precedent. See Martin Marietta Energy
Systems, 316 NLRB 868, 869 (1995) (respondent violated Sec. 8(a)(5)
by failing to process grievances challenging unilateral changes in em-
ployees’ working conditions).
3 We have modified the judge’s recommended Order to conform to
the violations found and to the Board’s standard remedial language.
We have also substituted a new notice for that of the judge.
union notices during breaktime.4 It is well established
that employees may distribute union materials during
nonworking hours, such as breaktimes and lunch periods.
See, e.g., Republic Aviation v. NLRB, 324 U.S. 793
(1945). The testimony of Human Resources Manager
Betsy Milam, on which the judge relied, establishes that
employees were precluded from distributing union no-
tices on their breaktime. We, therefore, agree with the
judge that Respondent’s prohibition violated Section
8(a)(1). See Tawas Industries, 321 NLRB 269, 277
(1996).
We also agree with the judge that the Respondent vio-
lated Section 8(a)(1) by promulgating a policy prohibit-
ing employees from posting union materials on the facil-
ity’s bulletin boards. The Respondent does not dispute
that the posting prohibition constituted the promulgation
of a policy. Moreover, the record reflects no reason for
the Respondent’s posting prohibition other than that the
postings were from the Union. In these circumstances,
we find that the Respondent violated Section 8(a)(1).
See Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722
F.2d 405 (8th Cir. 1983) (respondent’s policy discrimi-
nating against employer bulletin board postings based on
their union-related nature violated Section 8(a)(1)).
The judge found that the Respondent violated Section
8(a)(5) of the Act by terminating the parties’ existing
collective-bargaining agreement and implementing parts
of its final contract offer without first providing the req-
uisite 8(d)(3) notice to the Federal Mediation and Con-
ciliation Service (FMCS). In adopting the judge’s find-
ing of a violation, we reject the Respondent’s argument,
not addressed by the judge, that it did not violate the Act
because it mailed the notice to the FMCS on March 2,
2006,5—3 months prior to the agreement’s termination
date—and thus was entitled to presume that the FMCS
timely received the notice in the due course of mail. As-
suming that the Respondent mailed the notice on March
2, and was entitled to presume that the FMCS timely
received the notice, the judge found that the FMCS sub-
sequently notified the Respondent, by letter, that it did
not receive the 8(d)(3) notice until August 11. Under
extant precedent, the FMCS letter rebuts any presump-
tion that the agency timely received the notice. See
Chauffeurs Local 572 (Dar San Commissary), 223
NLRB 1003, 1007 (1976). Moreover, the Respondent
did not produce any probative evidence establishing ac-
tual delivery of the notice to the FMCS. In these circum-

4 We thus find it unnecessary to pass on the judge’s finding that the
Respondent also violated Sec. 8(a)(1) by prohibiting distribution on
employees’ unpaid time, as such finding would be cumulative and
would not materially affect the remedy.
5 Unless otherwise stated, all dates are 2006.
WHITESELL CORP. 1197
stances, we agree with the judge that the Respondent
violated Section 8(a)(5) by terminating the existing
agreement without notifying the FMCS as required by
Section 8(d)(3).6
The judge found that the Respondent violated Section
8(a)(5) by failing to provide information requested by the
Union concerning layoff and recall, merit pay, retire-
ment, vacation, and assignment of unit employees to per-
form work at the Respondent’s new facility. We find
that the information requested by the Union involving
unit employees’ terms and conditions of employment
was presumptively relevant and necessary7 and, with the
exception of certain merit pay information8 and the re-
quests regarding layoff and recall and retirement, dis-
cussed below, we adopt the judge’s findings.
At the bargaining table, the Respondent proposed that
layoffs and recalls be conducted by evaluating the em-
ployees’ seniority, as well as other criteria, such as skills,
qualifications, and disciplinary record. The Union re-
quested information on how each of the criteria would
factor into a layoff or recall decision. The Respondent
provided the Union with the layoff and recall evaluation
form and stated that there was no formula for determin-
ing layoff and recall, but that any such decisions would
be discretionary based on an evaluation of the Respon-
dent’s business needs and an evaluation of each em-

6 Chairman Schaumber adopts the judge’s finding of a violation
based on the specific facts presented in this case.
7 See LBT, Inc., 339 NLRB 504, 505 (2003) (layoff and retention);
H. J. Scheirich Co., 300 NLRB 687, 688 (1990) (merit pay); Interna-
tional Protective Services, 339 NLRB 701, 704 (2003) (retirement
plan); U.S. Family Care San Bernardino, 315 NLRB 108 (1994) (vaca-
tion); and Mercywood Health Building, 287 NLRB 1114, 1124 (1988),
enf. denied on other grounds 885 F.2d 341 (6th Cir. 1989) (relocation
of unit employees).
8 In adopting the judge’s findings regarding merit pay information,
we do so only as to certain information requested on July 17. Specifi-
cally, consistent with the Board’s broad relevancy standard, the Re-
spondent had an obligation to provide the Union with copies of the unit
employees’ practice merit pay evaluations and violated Sec. 8(a)(5) by
failing to do so. In addition, because the Respondent consistently
maintained that it intended to treat unit employees in the same manner
as its nonunit employees at other facilities, the Union established that
information requested regarding the administration of the merit pay
plan to nonunit employees is relevant and necessary. See E. I. du Pont
& Co. v. NLRB, 744 F.2d 536, 538 (6th Cir. 1984). The Respondent
thus violated Sec. 8(a)(5) by failing to provide such information.
We reverse the judge’s findings as to the other merit pay information
requested. As to the June 6 request, the Respondent provided the Un-
ion with the merit pay evaluation form and explained that pay increases
would be discretionary based on the evaluation score. Accordingly, we
find that the Respondent satisfied its duty to provide the requested
information. Regarding the July 17 requests not discussed above, the
Respondent credibly testified that it did not have any supervisory train-
ing materials involving merit pay or any documents projecting labor
costs. The Respondent is not obligated to provide information it does
not have. See Day Automotive Group, 348 NLRB 1257, 1263 (2006).
ployee’s layoff and recall criteria rating. The Union did
not subsequently renew its information request or other-
wise indicate that it expected more information. More-
over, the judge did not identify any outstanding informa-
tion requested by the Union. In these circumstances, we
find, contrary to the judge, that the Respondent satisfied
its duty to provide the information requested. See Day
Automotive Group, supra at 1263 (respondent did not
violate Sec. 8(a)(5) where it provided the union with the
requested information and the union did not renew the
information request or identify topics about which it
needed more information).
The Union also requested information on the effect of
the Respondent’s proposed changes to its retirement
plan. The Respondent sought the information requested
by the Union from its plan provider, but did not receive
the information until early October. The judge found
that the Respondent violated Section 8(a)(5) because the
information was requested in June. We disagree.
The Respondent did not have the requested informa-
tion in June. See Day Automotive Group, supra at 1263
(respondent not expected to provide information it does
not have). It provided the information to the Union as
soon as it received it in October and there is no indica-
tion that this delay in providing the information was un-
reasonable. In this regard, the Respondent’s uncontra-
dicted testimony establishes that getting information
from the plan provider was a time-consuming process
because the provider required that the plan questions be
submitted in writing. The Respondent then had to wait
for the plan administrators to prepare a response to the
questions, which was subject to several layers of review
by the plan provider to ensure compliance with relevant
legal and tax authority. In these circumstances, we re-
verse the judge’s finding and conclude that the Respon-
dent satisfied its 8(a)(5) duty to provide the information
requested.
The judge found that the Respondent violated Section
8(a)(5) by unilaterally implementing certain provisions
of its final offer on June 13 without first bargaining with
the Union to a valid impasse. We adopt the judge’s find-
ing of a violation. In doing so, we particularly note that,
although the Respondent sought substantial changes from
the parties’ existing agreement, it imposed an arbitrary
deadline on the negotiations by stating that it intended to
present its final offer by a specific date and engaged in
only a limited number of bargaining sessions before de-
claring impasse. We also note that the Respondent de-
clared impasse even though the parties exchanged pro-
posals and reached agreements the day before and the
day of the impasse declaration. Under similar circum-
stances, the Board has declined to find that a lawful im-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1198
passe existed.9 See Newcor Bay City Div., 345 NLRB
1229, 1238–1239 (2005) (no impasse where, e.g., re-
spondent sought drastic changes, yet imposed the con-
tract expiration date as an artificial deadline for negotia-
tions, bargained for only a short period, and declared
impasse at a time when the parties were reaching agree-
ments on bargaining issues); accord: Ead Motors Eastern
Air Devices, 346 NLRB 1060, 1063–1064 (2006).
We also adopt the judge’s finding that the Respondent
subsequently violated Section 8(a)(5) by unilaterally dis-
continuing dues checkoff prior to providing the FMCS
with the appropriate 8(d)(3) contract termination notice.
In finding this violation, the judge relied on Petroleum
Maintenance Co., 290 NLRB 462, 463 (1988). Under
that extant precedent, although the dues-checkoff provi-
sion expired when the parties’ existing agreement termi-
nated on June 12, Section 8(d)(3) required the Respon-
dent to maintain dues checkoff until September 10–30
days after it provided the requisite notice to the FMCS on
August 11.10 Id. at 463. We further adopt the judge’s
finding that the Respondent separately violated Section
8(a)(5) by unilaterally discontinuing the employees’ sup-
plemental accident insurance fund. See Reapp Typo-
graphical Service, 204 NLRB 792, 795 (1973).

9 In adopting the judge’s finding of this violation, Chairman
Schaumber finds it unnecessary to rely on the judge’s conclusion that
the parties were not at a good faith impasse because the Respondent
failed to provide the Union with certain information it requested during
the course of bargaining.
Further, it appears from his recommended Order that the judge
found that the Respondent separately violated Sec. 8(a)(5) by unilater-
ally implementing changes to its medical insurance, wage evaluation
system, and 401(k) plan. However, these changes were some of the
provisions of its final offer the Respondent unilaterally implemented
after unlawfully declaring impasse on June 12. We thus find that sepa-
rate reference to these changes in the Order is unnecessary and we
modify the Order accordingly.
10 In Member Liebman’s view, dues-checkoff provisions, like other
contractually established terms and conditions of employment, survive
the expiration of an agreement and continue until the parties reach a
new agreement or a valid impasse. See her dissenting opinion in Haci-
enda Resort Hotel & Casino, 351 NLRB 504 (2007) (Board affirmed
conclusion reached in 331 NLRB 665 on alternative grounds). For
institutional reasons, however, she agrees to apply the extant precedent
in Petroleum Maintenance and find that the Respondent was required to
maintain dues checkoff only until 30 days after providing the FMCS
with the requisite 8(d)(3) notice.
The Respondent contends that Petroleum Maintenance should be
overruled because it is inconsistent with circuit court precedent, holding
that a failure to adhere to the 8(d)(3) notice requirements does not serve
to extend the terms of an agreement. However, the cases cited by the
Respondent involve situations where the union claimed that the em-
ployer’s failure to provide the requisite 8(d)(3) notice rendered an
attempt to terminate an agreement ineffective, not situations, such as
here and in Petroleum Maintenance, where the union merely asserts
that the employer violated Sec. 8(a)(5) by failing to maintain the terms
of the agreement until it provided the requisite 8(d)(3) notice.
The judge found that the Respondent violated Section
8(a)(5) by unilaterally changing its attendance policy. In
doing so, the judge found that the Respondent did not
dispute that it unilaterally implemented a 10-point sys-
tem for evaluating attendance under its merit pay system.
However, at the hearing and in its posthearing brief, the
Respondent asserted that it did not implement a new at-
tendance policy. Instead, the Respondent contended that
the 10-point system was developed by Supervisor Steve
Hesseltine for his own personal use in rating his supervi-
sees on the attendance factor of the Respondent’s merit
pay evaluation form. To establish a violation, the Gen-
eral Counsel must prove that the 10-point system consti-
tuted a substantial and material change in the employees’
terms and conditions of employment. See, e.g., Fergu-
son Enterprises, 349 NLRB 617, 617–618 (2007). The
General Counsel did not, however, present any probative
evidence establishing that the alleged system amounted
to anything more than Hesseltine’s informal, personal
notations.11 In these circumstances, we find that the
General Counsel has not demonstrated a substantial and
material change to the Respondent’s attendance policy
over which the Respondent was required to bargain. See
Associated Services for the Blind, 299 NLRB 1150
(1990) (supervisor’s personal notes regarding production
written on employees’ timecards did not constitute a
change in work rules significant enough to require bar-
gaining). Accordingly, we reverse the judge’s finding of
a violation.
ORDER
The Respondent, Whitesell Corporation, Washington,
Iowa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating its collective-bargaining agreement
with the Union and making unilateral changes in terms
and conditions of employment without giving the proper
notice required by Section 8(d)(3) of the Act.
(b) Unilaterally changing terms and conditions of em-
ployment of unit employees by implementing certain
provisions of its final contract without having first bar-
gained with the Union in good faith to impasse.
(c) Unilaterally discontinuing its supplemental acci-
dent insurance fund.
(d) Refusing to accept and process grievances filed by
the Union in accordance with the procedures set forth in
the expired 2006 contract with the Union.

11 In his posthearing brief, the General Counsel asserts that Hes-
seltine told Georgia Fort, a unit employee and the local Union’s presi-
dent, that the 10-point system was “new” and that he had discussed it
with the facility’s general manager. The judge did not, however, rely
on Fort’s testimony in this regard, and we find it not to be probative as
it is uncorroborated hearsay.
WHITESELL CORP. 1199
(e) Prohibiting employees from distributing union
meeting notices in the plant during their breaktime.
(f) Implementing a policy prohibiting the employees
from posting union materials on the facility’s bulletin
boards.
(g) Refusing to provide necessary and relevant infor-
mation to the Union.
(h) In any like or related matter interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive bargaining representative of the employees
in the following unit:
All full-time and regular part-time production and
maintenance employees employed at its plant in Wash-
ington, Iowa, excluding office and clerical employees,
salesmen, professional employees, guards, supervisory
and managerial employees as defined in the National
Labor Relations Act.
(b) On request, rescind the unlawful changes since
June 13, 2006, and restore, honor, and continue the terms
and conditions of the contract with the Union that was set
to expire on June 12, 2006, until the parties sign a new
agreement or good-faith bargaining leads to a valid im-
passe.
(c) Make any employees whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of the decision.
(d) Reimburse the Union for all membership dues
which the Respondent failed to withhold and transmit to
the Union prior to September 10, 2006, pursuant to the
signed dues-deduction authorizations, with interest.
(e) On request, process the grievances at issue in this
proceeding in accordance with the procedures set forth in
the expired 2006 contract with the Union.
(f) On request, furnish to the Union in a timely manner
the information requested concerning vacation, merit
pay, and assignment of unit employees to the new facility
on June 9, July 17, and August 9, 2006.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Washington, Iowa, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since June 9, 2006.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT terminate our collective-bargaining
agreement with the Union and make unilateral changes in
terms and conditions of employment without giving the
proper notices required by Section 8(d)(3) of the Act.
WE WILL NOT make unilateral changes in wages, hours,
and other terms and conditions of employment of our

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1200
employees without having first bargained with the Union
in good faith to a bona fide impasse.
WE WILL NOT unilaterally discontinue the supplemental
accident insurance fund.
WE WILL NOT refuse to process grievances in accor-
dance with the procedures set forth in the expired 2006
contract with the Union.
WE WILL NOT prohibit employees from distributing un-
ion meeting notices in the plant during their breaktime.
WE WILL NOT promulgate a policy prohibiting employ-
ees from posting union materials on the facility’s bulletin
boards.
WE WILL NOT refuse to provide necessary and relevant
information to the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following unit:
All full-time and regular part-time production and
maintenance employees employed at its plant in Wash-
ington, Iowa, excluding office and clerical employees,
salesmen, professional employees, guards, supervisory
and managerial employees as defined in the National
Labor Relations Act.
WE WILL, on request, rescind the unlawful changes
since June 13, 2006, and restore, honor, and continue the
terms and conditions of the contract with the Union that
was set to expire on June 12, 2006, until the parties sign
a new agreement or good-faith bargaining leads to a valid
impasse.
WE WILL make any employees whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them.
WE WILL reimburse the Union for all membership dues
which we failed to withhold and transmit to the Union
prior to September 10, 2006, pursuant to the signed dues-
deduction authorizations, with interest.
WE WILL, on request, process any grievances filed by
the Union in accordance with the procedures set forth in
the expired 2006 contract with the Union.
WE WILL, on request, furnish to the Union in a timely
manner the information requested concerning vacation,
merit pay, and assignment of unit employees to the new
facility on June 9, July 17, and August 9, 2006.
WHITESELL CORP.
Nichole L. Burgess-Peel, Esq. and James L. Fox, Esq., for the
General Counsel.
Charles P. Roberts III, Esq., of Winston-Salem, North Caro-
lina, and David A.Tomlinson, Esq., of Muscle Shoals, Ala-
bama, for the Respondent-Employer.
Jay M. Smith, Esq., of Sioux City, Iowa, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on January 9 through 11, 2007, in Wash-
ington, Iowa, pursuant to a consolidated complaint and notice
of hearing in the subject cases (the complaint) issued on No-
vember 28, 2006,1 by the Regional Director for Region 18 of
the National Labor Relations Board (the Board). The underly-
ing charges were filed on various dates in August, September,
and October 2006, by Glass Molders, Pottery, Plastics and Al-
lied Workers International Union Local 359 (the Charging
Party or the Union) alleging that Whitesell Corporation (the
Respondent or the Employer) has engaged in certain violations
of Section 8(a)(1) and (5) of the National Labor Relations Act
(the Act). The Respondent filed a timely answer to the com-
plaint denying that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent engaged in a
number of independent violations of Section 8(a)(1) of the Act
including threatening that bargaining was futile, informing
employees that the plant may not remain in Washington, Iowa,
if they continued to support the Union and prohibiting employ-
ees from distributing union meeting notices in the plant during
their break and unpaid time. The complaint further alleges that
the Respondent engaged in a number of violations of Section
8(a)(1) and (5) of the Act by refusing to provide necessary and
relevant information to the Union, unilaterally implementing a
number of mandatory subjects of bargaining without notice or
affording the Union an opportunity to bargain absent an overall
impasse in good-faith bargaining and failing under Section
8(d)(3) of the Act to provide timely notice of the existence of a
dispute to the Federal Mediation and Conciliation Service
(FMCS).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the manufacture
and distribution of wire form products as its plant in Washing-
ton, Iowa, where it annually purchases and receives goods val-
ued in excess of $50,000 from points located directly outside
the State of Iowa. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.

1 All dates are in 2006, unless otherwise indicated.
WHITESELL CORP. 1201
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On or about January 1, 2005, Respondent purchased the as-
sets of Fansteel Washington Manufacturing, Inc. It recognized
the Union and assumed the existing collective-bargaining
agreement, which was effective by its terms from June 13,
2002, to June 12, 2006.
On or about March 2, the Respondent served written notice
on the Union of its intention to terminate the parties’ collective-
bargaining agreement upon its expiration.
The parties commenced negotiations for their initial collec-
tive-bargaining agreement on May 26, and the Respondent
notified the Union during this session of its intent to present a
final contract offer to the Union on June 8 or 9. The parties,
thereafter, engaged in eight bargaining sessions when the Re-
spondent declared that they were at impasse on June 12.2
On June 13, Respondent implemented certain provisions of
its final offer.3 The Union did not consent to implementation.
Respondent’s chief negotiator was Robert Janowitz and the
Union’s chief negotiator was Dale Jeter. At all material times,
Robert Wiese served as Respondent’s chief operations officer
while David Tomlinson held the position of the general coun-
sel. Cris Libera held the position of corporate human resources
director until November 22, while Betsy Milam served as the
human resources manager at the Washington, Iowa facility.
Employee Georgia Fort held the position of union president and
served along with employee Mary Westfall on the Union’s
bargaining committee.
By letter dated April 17, Janowitz informed the Union that
while the Respondent is willing to consider some language
from the current agreement, it intends to negotiate a new
agreement from start to finish. Additionally, the letter stated
that the Respondent is not interested in extending negotiations
past the expiration date of the current agreement (GC Exh. 16).
On May 26, at the parties’ first negotiation session, Janowitz
stated that the Respondent’s plan is to reach a tentative agree-
ment or give its final proposal no later then Friday, June 9. He
further stated that the Respondent did not intend to treat Wash-
ington, Iowa facility employees any different from the 400–500
employees in the corporation, 95 of which were in the bargain-
ing unit, and they were going to be consistent in applying
common policies, procedures, and terms and conditions of em-
ployment to all employees.

2 The parties met on May 26 from 9 a.m. to 12 noon; on June 6, from
8:30 a.m. to 3 p.m.; on June 7, from 9:45 a.m. to 4:10 p.m.; on June 8,
from 9:40 a.m. to 5:30 p.m.; on June 9, from 9:40 a.m. to 6 p.m.; on
June 10, from 10:05 a.m. to 6:20 p.m.; on June 11, from 10:15 a.m. to
approximately 4 p.m.; and on June 12, from 8:30 a.m. to 1 p.m.
3 Art. 8, disciplinary action, sec. 8.1; art. 9, probationary period of
employment, sec. 9.1; art. 10, seniority, sec. 10.1 and 10.5; art. 11,
applicability of personnel policies; art. 12, work hours/overtime; art.
13, holidays; art. 14, vacation; art. 15, bereavement pay; art. 16, rest
periods; art. 18, leaves of absence and sick leave; art. 19, group insur-
ance; art. 20, jury duty and witness duty; art. 21, drug testing; art. 22,
wage rates and night-shift differential; art. 23, personal protective
equipment; art. 24, safety; art. 26, retirement plan; art. 27, military
leave; art. 28, tuition reimbursement; and art. 29, credit union.
B. The 8(a)(1) Allegations
The General Counsel alleges in paragraphs 5(a)–(e) of the
complaint that the Respondent engaged in a number of viola-
tions of the Act.
1. Allegations concerning Robert Wiese
The General Counsel asserts in paragraph 5(a) of the com-
plaint that Wiese on about June 13, in meetings with employ-
ees, denigrated Union Representative Jeter and threatened that
bargaining was futile by referring to the closure of another
plant where employees were represented by a union.
The General Counsel called three employees to support this
allegation. Julie Mesenger stated that she, along with approxi-
mately 75 other first-shift employees, attended a meeting on
June 13, around 9:30 a.m. on the shop floor, where Wiese ap-
prised those in attendance that the Respondent had just imple-
mented portions of its final contract offer. Wiese informed the
employees of some of the significant changes including an
immediate 25-cent-an-hour raise for all employees, those with
10 years or more of continuous employment would not have to
pay for their health insurance but those employees with less
then 10 years would see an increase in their insurance premi-
ums. Wiese also told the employees that their vacation entitle-
ment would be subject to a new formula and their 401(k) plan
matching benefits would be reduced. According to Mesenger,
Wiese said, “Where is Dale Jeters, I don’t see Dale Jeters here.”
She had no further recollection of Wiese saying anything else
about Jeter or referring to any other facilities being closed be-
cause of Jeter or the Union.
Fort, who also attended the same meeting as Messenger, con-
firmed that Wiese reviewed portions of Respondent’s imple-
mented final contract offer during his presentation. She testi-
fied that Wiese stated, “Where was Mr. Jeters, was he at the
other empty factory across town over at Crane or Calendar or
was he somewhere else shutting a place down?”
Westfall, who was also present at the June 13 meeting, testi-
fied that Wiese stated, “Where Dale Jeters was that day, is he at
the old Calendar factory or is he at Crane or somewhere else
closing a factory?”
Wiese admitted in his testimony that he conducted two sepa-
rate meetings with the employees on June 13 to review the
recently implemented portions of the Respondent’s final con-
tract offer. He discussed issues such as the wage increase and
shift premiums that employees would immediately see in their
pay checks and reviewed some of the adverse changes that
employees could expect in their health insurance, holiday pay,
and vacation entitlement. During the course of the meeting,
Wiese admits that he stated, “I am here today, where is Dale
Jeter today?” He testified that he made no comments about the
Calendar or Crane factories during his presentation on June 13.
Rather, he asserts that he held a second set of meetings with
employees on August 29 and 30 to discuss some labor relations
issues including a recently filed unfair labor practice charge and
the status of a decertification petition that was also filed. Dur-
ing the meeting, Wiese read portions of a letter that Jeter had
recently sent him. He told the employees that he thought Jeter
was the union representative for the Calendar and Crane facto-
ries and that you know him. One of the employees attending
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1202
the meeting said Jeter was not the union representative at the
Calendar factory and another employee stated that it does not
matter because both of those plants were shut down because of
Unions.
Tomlinson, who likewise attended the June 13 meeting, testi-
fied that Wiese stated during the course of the meeting that
“I’m here today, where is Dale Jeter?” He asserts that nothing
was stated about Jeter and the Calendar or Crane factories dur-
ing this meeting. Tomlinson, also attended the August 29 and
30 meetings and testified that Wiese said, “You know Dale
Jeter, he is the international representative for the GMP and
also for the Calendar and Crane factory.” Tomlinson asserts
that one of the employees at the meeting stated that Jeter was
not the representative at the Calendar factory and another em-
ployee said it does not matter because they are closed now too
because of the Union.
Based on the above recitation, I find that Wiese did not make
the statement that bargaining was futile or denigrate Jeter as
alleged in paragraph 5(a) of the complaint. In this regard, I
note that of the 75 employees who attended the June 13 meet-
ing, the General Counsel only called 3 employees to testify
about this allegation. One of the employees did not confirm
that Wiese connected Jeter with the closing of the Calendar or
Crane factories and did not testify that Wiese threatened that
bargaining was futile. The other two employees, while alluding
to the connection of Jeter and the closing of those two factories
never testified that Wiese stated that bargaining was futile when
referring to the closure of the Calendar and Crane facilities.
Moreover, none of the General Counsel’s witnesses testified
about the August 29 and 30 meetings, when a discussion of the
Calendar and Crane facilities occurred. Further, the General
Counsel did not elicit any testimony to refute the Respondent’s
assertions of what was discussed at the August 29 and 30 meet-
ings.
For all of the above reasons, I am not convinced that Wiese
denigrated Union Representative Jeter at the June 13 meeting or
threatened that bargaining was futile by referring to the closure
of either the Calendar or Crane facilities where employees were
represented by a union.
Therefore, I recommend that the allegations in paragraph
5(a) of the complaint be dismissed.
The General Counsel alleges in paragraph 5(b) of the com-
plaint that during the same meeting as referred to in paragraph
5(a) of the complaint, Wiese threatened employees that the
plant may not remain in Washington, Iowa, if they continued to
support the Union.
Mesenger testified that a comment was made that the Re-
spondent was not going to move and probably would stay in
Washington, Iowa. She did not testify that Wiese threatened
employees that the plant may not remain in Washington, Iowa,
if they continued to support the Union. Neither Fort nor
Westfall testified that Wiese threatened employees by stating
that the plant may not remain in Washington, Iowa, if they
continued to support the Union. Rather, both of these employ-
ees testified that a fellow employee asked Wiese, during the
meeting, whether the plant will remain in Washington. Wiese
replied, according to Fort, that it was up to us and Westfall
testified that Wiese stated in response to the same question, that
it depended on the people.
Neither Wiese nor Tomlinson were asked questions about
this allegation during the course of there testimony.
Based on the forgoing, I am not convinced that Wiese made
the statements alleged in the complaint by the General Counsel.
None of the General Counsel’s witnesses testified that Wiese
stated that the plant might not remain in Iowa if the employees
continued to support the Union nor did they confirm that Wiese
threatened employees. Rather, it appears that a coworker in-
quired of Wiese whether the plant would remain in Washing-
ton, Iowa, and he replied that it is up to us or that it depended
on the people. This statement is vague and can be subject to
numerous interpretations. In any event, the jump that if em-
ployees continue to support the Union the plant may not remain
in Washington, Iowa, is not supported by the testimony of the
General Counsel’s witnesses.
Accordingly, I recommend that the allegations in paragraph
5(b) of the complaint be dismissed.
2. Allegations concerning Betsy Milam
The General Counsel alleges in paragraphs 5(c), (d), and (e)
of the complaint that Human Resources Manager Betsy Milam,
on about July 27, prohibited an employee from distributing
union meeting notices in the plant during either the employee’s
unpaid or breaktime. Additionally, the General Counsel alleges
that during the same conversation, Milam promulgated a policy
prohibiting employees form posting any union materials in the
plant.
The evidence discloses that the Respondent has three bulletin
boards at the plant. One of the bulletin boards is glass enclosed
while the other two are located by the timeclocks and are un-
covered. Prior to November 2006, employees had unfettered
access to the two uncovered bulletin boards and could post
notices at will without seeking permission to do so. Examples
of such notices include items for sale, recipes, bake sales, or
local information of interest. The Union was permitted to post
materials on either of the two uncovered bulletin boards and on
occasions, did so.
Fort testified that due to an upcoming union meeting on July
31, she asked Milam whether she could post a written notice of
the meeting on the bulletin board (GC Exh. 59). Milam stated
that she would check with headquarters in Alabama and later
informed Fort that she could not post the notice on the bulletin
board.
Milam testified that on July 27, Fort inquired of her whether
she could post a union notice on the bulletin board. Milam
informed Fort that she could not post the notice on the bulletin
board but could pass out the notice on her unpaid time.
Washington, Iowa, Plant Manager Misty Bruders testified
that prior to November 2006, employees were free to post no-
tices on the two uncovered bulletin boards without seeking
permission. In November 2006, due to a notice that was posted
on one of the bulletin boards that had the perception of being
insensitive to certain employees, Bruders promulgated a policy
that all postings without exception must be approved by her
including for sale items, bake sales and menus (GC Exh. 60).
WHITESELL CORP. 1203
Bruders admitted that this policy was undertaken without notice
or bargaining with the Union.
Based on Bruders testimony, it is apparent that prior to No-
vember 2006, employees had an unfettered right to post materi-
als on the two uncovered bulletin boards and did not need per-
mission to do so. Such notices included items for sale, menus,
or other matters of local interest to employees. Accordingly,
when Fort sought to post a notice announcing an upcoming
union meeting and was precluded from doing so, despite the
presence of other notices posted on the two bulletin boards, the
Respondent engaged in disparate treatment. Such a policy
precluding the posting of union notices, when other notices of
general interest are permitted to be posted interferes with Sec-
tion 7 rights under the Act.
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act when it prevented Fort from posting a notice
on the bulletin board to announce an upcoming union meeting
on her unpaid or breaktime. Additionally, by establishing such
a policy, when other employees had unfettered access to post
general notices on the bulletin boards without seeking permis-
sion, the Respondent also violated the Act. Publix Super Mar-
kets, 347 NLRB 1433 (2006).
Therefore, the allegations in paragraphs 5(c), (d), and (e) of
the complaint are sustained.
C. The 8(a)(1) and (5) Allegations
1. Allegations concerning FMCS
The General Counsel alleges in paragraph 11 of the com-
plaint that the Respondent failed to provide notice of the exis-
tence of a dispute to the FMCS within 30 days of its notifica-
tion to the Union that it intended to terminate the parties’ col-
lective-bargaining agreement upon its expiration.
a. Facts
By letter dated March 2, Respondent notified the Union of its
intent to terminate the parties’ collective-bargaining agreement
upon its expiration and apprised the Union that it sent a copy of
the enclosed F-7 notice to the FMCS (GC Exh. 4). Libera testi-
fied that she signed the F-7 notice and placed it in an envelope
addressed to the FMCS that was stamped with the Respon-
dent’s postal meter. Libera then placed the letter in the United
States mail. She acknowledged, however, that the letter was
sent by regular mail rather than registered or certified mail, but
the Respondent never received the letter back from the postal
service as undeliverable to the FMCS.
Both Jeter and Janowitz, during the parties’ June 8 collec-
tive-bargaining session, commented that it was unusual that
neither of them had been contacted by a mediator from the
FMCS prior to the commencement of their negotiation sessions.
Jeter testified that after the expiration of the parties’ collec-
tive-bargaining agreement and the implementation of the Re-
spondent’s final contract offer, he contacted the FMCS on July
10, to discern if they had knowledge of the dispute between the
parties (GC Exhs. 5, 6, and 7).
By letter dated August 10, Jeter apprised the Respondent that
the FMCS informed him that it has no record of receiving the
required F-7 notice that the parties’ collective-bargaining agree-
ment was open for negotiations (GC Exh. 8). Jeter requested
the Respondent to provide proof that it properly and timely
filed the required notice with the FMCS.
By letter dated August 17, Tomlinson informed Jeter that the
Respondent not only provided the required notice to the Union
but simultaneously filed the notice with the FMCS by deposit-
ing it in the United States mail (GC Exh. 9). Tomlinson further
apprised Jeter that on August 10, the Respondent sent a cour-
tesy copy of the March 2 letter and notice to the FMCS. By e-
mail dated August 17, Jeter challenged Tomlinson’s assertion
that the Union’s request for proof has been satisfied (GC Exh.
10).
By fax transmission dated August 22, Tomlinson sent the
FMCS another copy of its August 10 letter and the F-7 notice
that it previously sent on March 2 (R. Exh. 3).
By letter dated September 21, the FMCS notified the Board
that it had no record of receiving an F-7 notice from the Re-
spondent in or about March 2006. The FMCS informed the
Board that it had received two F-7 notices from the Respondent
dated August 11 and 22 (GC Exh. 13).
b. Analysis
Section 8(d), in defining the duty to bargain collectively, in-
cludes notice requirements that must be satisfied prior to termi-
nation or modification of a labor contract. Section 8(d)(1) re-
quires that the party desiring termination or modification of the
agreement must serve upon the other party to the contract a
written notice of the proposed termination or modification 60
days prior to the expiration date of the agreement, or in the
event such contract contains no expiration date, 60 days prior to
the time it is proposed to make such a termination or modifica-
tion. Section 8(d)(3) provides that the party desiring to termi-
nate or modify the agreement must notify the FMCS within 30
days after such notice of the existence of a dispute. Amax Coal
Co. v. NLRB, 614 F.2d 872 (3d Cir. 1980), revd. on other
grounds 453 U.S. 322 (1981) (failure to provide written notice
to FMCS violative of Sec. 8(d)(3), despite FMCS actual knowl-
edge of the dispute).
The Board now holds that the burden of notifying the media-
tion service of a dispute under Section 8(d)(3) rests exclusively
with the initiating party and that the initiating party’s failure to
file such a notice does not preclude the noninitiating party from
undertaking otherwise lawful economic action. Thus, in
Nabors Trailers, 294 NLRB 1115 (1989), affd. in part 910 F.2d
268 (5th Cir. 1990),4 the Board held that the employer unlaw-
fully implemented its wage reduction proposal without giving
FMCS notice required by the Act because the employer was the
initiating party in opening talks pursuant to the contract’s pro-
visions for notice and termination.5

4 Accord: NLRB v. Mar-Len Cabinets, 659 F2d 995 (9th Cir. 1981),
enfg. in relevant part 243 NLRB 523 (1979), on remand 262 NLRB
1398 (1982) (employer that failed to give required 8(d)(3) notice vio-
lated Sec. 8(a)(5) by unilateral changes after impasse in bargaining), the
Board held that the employer unlawfully implemented its wage reduc-
tion proposal without giving FMCS notice required by the Act because
the employer was the initiating party in opening talks pursuant to the
contract’s provisions for notice and termination.
5 See also Z-Bro, Inc., 300 NLRB 87 (1990). In Mar-Len Cabinets,
243 NLRB 523 (1979), the employer unilaterally implemented its bar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1204
The Respondent argues that it made a good-faith effort and
took all reasonable steps to satisfy the 8(d)(3) requirements by
filing the required F-7 notice with the FMCS. Indeed, it estab-
lished that it prepared the appropriate form and deposited same
in the United States mail on March 2, while simultaneously
sending the required notice to the Union by fax transmission.
Thus, it opines that the Union was on notice of the Respon-
dent’s intent that a dispute existed between the parties and it
intended to terminate the parties’ collective-bargaining agree-
ment upon its expiration.
The Board has held, however, that to be effective such notice
must actually be received. Freeman Decorating Co., 336
NLRB 1, 3–4, 39 fn. 26 (2001); Ohio Oil Co., 91 NLRB 759,
761 (1950).
There is no dispute that the Respondent did not mail the re-
quired FMCS form by certified or registered mail, return re-
ceipt requested nor did it make any effort to ascertain whether
the notice was actually delivered to the FMCS. Moreover, the
letter on FMCS stationery dated September 21, and signed by a
representative of that agency, shows that the required F-7 no-
tice was not received in or about March 2006, nor was it on
file.6 The September 21 letter confirms that two FMCS forms
were received from the Respondent on August 11 and 22.
These notices, however, do not comply with the requirements
of Section 8(d)(3) because the Respondent did not notify the
FMCS within 30 days after serving the 60-day notice on the
Union, as required.
Therefore, in agreement with the General Counsel, I find that
the Respondent has engaged in unfair labor practices within the
meaning of Section 8(d)(3), thereby violating Section 8(a)(1)
and (5) of the Act. Petroleum Maintenance Co., 290 NLRB
462 (1988). Under these circumstances, it was incumbent
upon the Respondent to continue in full force and effect all the
terms and conditions of the parties’ existing collective-
bargaining agreement pursuant to Section 8(d)(4) of the Act.
2. Allegations concerning requests for information
The Board explained in Asarco, Inc., 316 NLRB 636, 643
(1995), enfd. in relevant part 86 F.3d 1401 (5th Cir. 1996), that:
In dealing with a certified or recognized collective-
bargaining representative, one of the things which em-
ployers must do, on request, is to provide information that
is needed by a bargaining representative for the proper
performance of its duties. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). Following an appropriate request,
and limited only by considerations of relevancy, the obli-
gation arises from the operation of the Act itself. Ells-
worth Sheet Metal, 224 NLRB 1506 (1976). In each case,
the inquiry is whether or not both parties meet their duty to
deal in good faith under the particular facts of the case.

gaining proposals after failing to comply with Sec. 8(d)(3). Its mis-
taken reliance on the union’s alleged compliance with the notice re-
quirements was held no defense.
6 The General Counsel, by letter dated December 14, informed Re-
spondent of its intent to offer the letter pursuant to FRE 807. The
FMCS letter gives a guarantee of trustworthiness and the interests of
justice will be served by relying on its contents. Chauffeurs Local 572,
223 NLRB 1003, 1008 (1976).
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1973). The legal
standard concerning just what information must be pro-
duced is whether or not there is “a probability that such
data is relevant and will be of use to the union in fulfilling
its statutory duties and responsibilities as the employees’
exclusive bargaining representative.” Bohemia, Inc., 272
NLRB 1128 (1984).
The General Counsel alleges in paragraph 13(a) of the com-
plaint that about June 7, the Union verbally requested that the
Respondent provide it with information regarding the criteria it
intended to use to determine employee layoff and recall.
The parties’ existing agreement established that seniority
would prevail insofar as layoff, rehire, and choice of vacation
dates are concerned (GC Exh. 3, art. 11). During the parties
June 6 collective-bargaining session, Janowitz informed the
Union that the Respondent did not intend to be bound by sen-
iority for its layoff and recall procedures. Rather, the Respon-
dent proposed that seniority would be a factor to be considered
with respect to the layoff and recall of bargaining unit employ-
ees, as are other appropriate criteria such as, but not limited to,
skills, qualifications, abilities, attendance record, tardiness re-
cord, disciplinary record, and team work. Where all appropri-
ate criteria are relatively equal, seniority for the purposes noted
will prevail (GC Exh. 38, art. 10 and GC Exh. 56, art. 11).
a. Facts
During the June 6 collective-bargaining session, and after
Janowitz confirmed that the Respondent intended to rely on
other factors besides seniority in the layoff and recall proce-
dures for employees, both Jeter and Fort requested information
with respect to how the criteria would be applied and relied
upon by the Respondent. Jeter requested information on how
supervisors would rate employee qualifications and abilities,
apply their attendance, tardiness, and disciplinary record to
reach a consensus on how to differentiate between employees.
Jeter explained to the Respondent that this was an entirely new
approach for determining which employees would be laid off
and recalled and a thorough explanation and analysis of these
criteria was necessary before the Union could totally compre-
hend the proposal and commence meaningful negotiations.
The Respondent takes the position that the parties were miles
apart on this issue and the Union steadfastly refused to com-
promise its long-term position that seniority must control when
considering layoff and recall procedures for employees.
b. Analysis
The record discloses that the Respondent did not make a
good-faith effort to independently explain to the Union how it
would apply the criteria that it intended to rely upon when con-
sidering employees for layoff and recall. It must be noted that
the Respondent’s proposal on layoff and recall was a dramatic
change from the practice the parties had followed for many
years. Moreover, the discussion on this issue occurred on June
6, a mere 6 days before the Respondent declared impasse and
implemented numerous contract articles including its final con-
tract offer covering seniority. The subject information request
went to the core issues that the parties were discussing and the
WHITESELL CORP. 1205
information should have been provided to the Union prior to
the Respondent’s declaration of impasse on June 12.
Accordingly, I find that the Respondent’s refusal to provide
the Union with detailed information in response to its June 6
oral request, is violative of Section 8(a)(1) and (5) of the Act.
The General Counsel alleges in paragraphs 13(b) and 17(a)
of the complaint that about June 7, the Union verbally, and
again on July 17 in writing, requested information regarding the
criteria proposed to use in evaluating employees in Respon-
dent’s evaluation system and how Respondent proposed to
determine employees wage rates under its merit wage proposal.
The past practice of the parties was to negotiate structured
across the board wage increases for employees. For the first
time, the Respondent proposed to institute a merit wage system
with an annual written performance evaluation for each em-
ployee on or about their anniversary date as the sole factor to
determine wage increases.
(1) Facts
The newly proposed evaluation system was presented to the
Union during the parties June 7, collective-bargaining session.
The evidence shows that the evaluation system had been in
effect for supervisory and managerial employees of the Re-
spondent for at least 11 years and for its hourly nonunion em-
ployees for the last 3 years. The Union had numerous ques-
tions about the impact of such a system on employees’ terms
and conditions of employment. For example, the Respondent
presented the Union with a proposed employee performance
evaluation form that listed 15 personal traits with 5 possible
factors on a numerical rating of 0–4.7 The Union pointed out
inconsistencies with the Respondent’s proposal and the factors
listed in the employee performance evaluation form and sought
answers to there questions. In addition, the Union sought a list
of employees in each job classification at other Respondent
facilities and a copy of other hourly employees’ evaluations,
redacted, so they could evaluate how other supervisors had
applied the personal traits on the evaluation form to other simi-
larly situated employees. The Union, on July 17, submitted a
6-page letter to the Respondent detailing with specificity their
concerns regarding the Respondent’s proposed evaluation sys-
tem and outlined additional requests for information to assist
the Union in making comprehensive counterproposals on this
significant issue (GC Exh. 30).
The Respondent, during the June 7 collective-bargaining ses-
sion, provided a number of responses to the Union’s oral ques-
tions about the newly proposed evaluation system. However,
it was not able to respond in detail to each and every question.
Some of these questions and answers are set forth in the Un-
ion’s July 17 letter.
By letter dated September 19, the Respondent provided a
number of answers to the Union regarding the evaluation sys-
tem, but it did not address each and every request for informa-

7 The personal traits included knowledge, quantity, accuracy, judg-
ment, innovation, appearance and habits, orderliness, courtesy, coop-
eration, initiative, reliability, perseverance, stability, attendance, and
alertness. The rating factors included unsatisfactory (0), some defi-
ciencies evident (1), satisfactory (2), exceptional (3), and clearly out-
standing (4).
tion that the Union made orally and later in writing (GC Exh.
31). For example, the Respondent declined to provide copies
of evaluations for employees at the Washington, Iowa facility,
based on the fact that these were practice session evaluations.
However, the record evidence shows that evaluations did occur
and supervisory meetings to discuss them took place with em-
ployees (GC Exhs. 63 and 64). Likewise, the Respondent de-
clined to provide appraisals for other similarly situated employ-
ees at other facilities despite the Union’s agreement to have the
name of the employee and supervisor redacted.
(2) Analysis
Based on the record evidence and the testimony of the par-
ties, it is evident to me that the while the Respondent made an
effort to respond to some of the Union’s questions concerning
the evaluation system and its impact on the determination of
wage increases for employees, it only provided cursory re-
sponses and did not fully respond to the Union’s relevant re-
quests for information. It must be noted that the subject of a
newly introduced evaluation system for employees, who have
not previously been formally evaluated, is a stark and dramatic
change. Thus, moving to such a system had to be thoroughly
evaluated by the Union before any agreement could be reached.
To raise a number of questions and request information on such
a dramatic change in conditions of employment, and particu-
larly noting that the request immediately followed the June 7
presentation of the proposal, deserves a comprehensive re-
sponse by the Respondent. In finding that the Respondent did
not fully respond to or provide all of the information requested,
I also note that after the Respondent implemented the evalua-
tion system on June 13, and commenced practice evaluations
for employees in July and August 2006, a number of supervi-
sors changed the rating factors from a scale of 0–4 to a scale of
1–10. Thus, the Respondent’s final contract proposal provided
to the Union during negotiations was unilaterally changed after
June 13.
For all of the above reasons, I find that the Respondent did
not fully and completely provide the necessary and relevant
information concerning the criteria Respondent proposed to use
in evaluating employees and how it proposed to determine em-
ployee wage rates, to the Union.
Accordingly, I conclude that the General Counsel sustained
the allegations in paragraphs 13(b) and 17(a) of the complaint,
and therefore, Respondent violated Section 8(a)(1) and (5) of
the Act by not providing necessary and relevant information to
the Union.
The General Counsel alleges in paragraph 13(c) of the com-
plaint, as amended at the hearing that about June 7, the Union
verbally requested that Respondent provide it with information
regarding vesting and the ability of employees to rollover loan
balances under its proposed retirement plan, and on June 12, in
writing, requested information on Respondent’s proposed re-
tirement plan.
The retirement plan that previously existed in the parties’
collective-bargaining agreement was a defined contribution
plan with a match of 84 cents for each hour worked by the em-
ployee. The Respondent proposed to change the existing re-
tirement plan and wanted all employees to participate in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1206
Respondent’s current 401(k) plan with a match of 25 percent of
an eligible employee’s contribution up to 8 percent of annual
compensation and a 6-year vesting schedule. When comparing
both plans, the newly proposed 401(k) retirement plan was less
generous that the previous plan.
(3) Facts
During the parties June 7, collective-bargaining session, the
Union requested information on the Respondent’s newly pro-
posed retirement 401(k) plan specifically seeking answers
about the ability of employees to rollover loan balances and
whether employees would be vested in the new retirement plan.
While the Respondent provided some answers, it did not have
the specific answers to questions concerning vesting and how
loan balances would be treated. By letter dated June 12, the
Union confirmed that the Respondent had not provided infor-
mation to its questions regarding the Respondent’s retirement
plan proposals and it needed the information to offer counter
proposals at the next bargaining session (GC Exh. 32).
On or about October 5, the Respondent provided comprehen-
sive information regarding the Respondent’s group 401(k) plan
to employees in an attachment to their paychecks (GC Exh. 62).
In pertinent part, the announcement confirmed that on June 13,
the 401(k) plan was not ready to receive all the participants and
the Employer allowed the employees that were under the old
retirement plan to keep contributing temporarily to that plan
until the new retirement plan was ready for them to be rolled
over. In a portion of the announcement the Respondent specifi-
cally responded, in question and answer fashion, to issues con-
cerning the roll over of existing loans under the old plan and
what it means when you are 100-percent vested.
(4) Analysis
Based on the forgoing, it is apparent that there were out-
standing requests for information on June 7 and 12, regarding
the ability of employees to rollover loan balances under the
Respondent’s newly proposed group 401(k) plan and on vesting
in the new plan. Indeed, specific answers were not provided to
the Union and the employees until October 5.
Contrary to the Respondent’s argument that on June 9, it re-
sponded to the Union’s requests for information by posting an
update to employees on the status of negotiations, I find that the
information on retirement stating, “Standard Whitesell Benefits
for all Employees, Existing accounts will be maintained sepa-
rately,” does not adequately respond to the Union’s detailed
questions on the rollover of loan balances or vesting (GC Exh.
44). Moreover, the June 9 posting predates the Union’s June 12
letter that informs the Respondent that it has not provided in-
formation on its questions concerning the rollover of loan bal-
ances in the proposed 401(k) plan and questions concerning
vesting.
Accordingly, I find that the refusal of the Respondent to pro-
vide necessary and relevant information to the Union regarding
the rollover of loan balances and vesting, violates Section
8(a)(1) and (5) of the Act.
The General Counsel alleges in paragraph 13(d) of the com-
plaint, as amended at the hearing, that on or about June 6 the
Union verbally and again on June 9 in writing, requested that
Respondent provide it with information regarding which em-
ployees would immediately lose vacation time under Respon-
dent’s vacation proposal.
The past practice of the parties, as established under article
15 of their then existing collective-bargaining agreement, pro-
vides employees with a vacation entitlement based on their
years of service (GC Exh. 3). Respondent’s vacation proposal
provides similar benefits in part but it increased the number of
years of service required for certain employees to earn their
vacation benefits. For example, under the old formula an em-
ployee with continuous service of 15 years would be entitled to
4 weeks of vacation. Under the Respondent’s final contract
proposal, employees could only enjoy 4 weeks of vacation after
20 years of service.
(5) Facts
During the parties June 6 bargaining session, the Union in-
formed the Respondent that it estimated that approximately one
third of the bargaining unit would lose vacation benefits under
their vacation proposal. Accordingly, Jeter requested that the
Respondent provide a list of the employees along with an ex-
planation of the impact. In addition, the Union requested in-
formation on how employees would transition from the prior
practice of vacation entitlement to the new proposed formula.
In the Union’s June 9 written counterproposals, it requested the
same information from the Respondent (GC Exh. 36).
The Respondent, prior to the commencement of negotiations,
provided a seniority list to the Union that listed the dates of hire
for each employee and it asserts that this would enable the Un-
ion to figure which employees would lose vacation benefits.
(6) Analysis
The Union acknowledges that they received a current senior-
ity list from the Respondent prior to the commencement of
negotiations. Based on this list, it was the Union’s best esti-
mate that one-third of the bargaining unit would be adversely
impacted by the Respondent’s vacation proposal. According to
Jeter, and not rebutted by Wiese, when he estimated the number
of employees that would be impacted Wiese stated that was
close but not accurate. This was the predicate that caused the
Union to request accurate information so Jeter could independ-
ently respond to each member of the bargaining unit who might
inquire about their individual entitlement under the Respon-
dent’s vacation proposal.
There is no dispute that the Union was provided the seniority
list prior to negotiations. However, the evidence establishes
that the Respondent did not provide any information to the
Union in response to their June 6 and 9 requests. Under these
circumstances, and particularly noting Wiese’s statement that
the Union’s estimate on the impact of the vacation proposal on
the bargaining unit was close but not accurate, I conclude that
the Respondent owed a duty to supply accurate information to
the Union.
Therefore, I find that the Respondent’s refusal to respond to
the Union’s two requests for information regarding the vacation
proposal gives rise to a violation of Section 8(a)(1) and (5) of
the Act.
The General Counsel alleges in paragraph 17(b) of the com-
plaint, as amended at the hearing, that on or about August 9, the
Union requested that Respondent furnish it with a copy of all
WHITESELL CORP. 1207
postings concerning conditions of employment that Respondent
posted after June 12.
(7) Facts
By letter dated August 9, Jeter informed the Respondent that
Fort asked for a copy of a posting that was posted shortly after
July 13 that related to conditions of employment but she was
denied a copy of the posting. Jeter requested that the Union be
provided with any and all postings relative to conditions of
employment that have been posted since June 12 (GC Exh. 53).
By letter dated September 19, the Respondent informed the
Union that all postings relative to conditions of employment
since June 12 have been provided to Fort.
(8) Analysis
The General Counsel did not rebut that Fort received post-
ings impacting on conditions of employment after June 12. In
this regard, Fort did not deny in her testimony that the Union
received postings relative to conditions of employment that
were posted after June 12. In fact, the only testimony Fort
provided on this issue concerned the refusal of the Respondent
to provide the Union a copy of its work rules that were posted
on the glass bulletin board.8
Therefore, I recommend that the allegations in paragraph
17(b) be dismissed.
The General Counsel alleges in paragraph 17(c) of the com-
plaint, as amended at the hearing, that on or about August 9, the
Union requested in writing that Respondent provide it with
information regarding, among other things, the assignment of
certain unit employees to work at another facility and the terms
and conditions of employment that applied to those employees
while working at the other facility.
(9) Facts
By letter dated August 9, Jeter informed the Respondent that
the Union learned that some bargaining unit employees have
been assigned duties at the old calendar factory location (GC
Exh. 53). Accordingly, he requested information such as the
names of the employees, the dates they were assigned such
duties, the hourly pay and how the employees were selected,
the duties each employee performed, whether the assignment
was mandatory or voluntary, whether the employees had to
provide their own transportation, and whether they would be
reimbursed for the costs of such transportation to the calendar
factory.
Westfall testified that employees were assigned to work at
the calendar factory in July and August 2006, to put up shelves
and perform other duties in anticipation of employees moving
to this location in October 2006. Presently, all employees are
now located in this location.
By letters dated August 30 and September 27, the Respon-
dent notified the Union regarding the rental of the Norwood

8 While Fort was not provided a copy of the Respondent’s work
rules, they were posted behind the glass enclosed bulletin board and
were not distributed independently to employees. Thus, Fort could
have read or hand copied the rules for her use. Since the record dis-
closes that this was the only notice concerning conditions of employ-
ment that was not directly provided to the Union after June 12, the
impact on conditions of employment is not greater than de minimis.
building across town and its intent of moving operations to that
facility (R. Exhs. 1 and 2). In those letters, the Respondent
apprised the Union that there would not be any changes in
terms or conditions of employment and they intended to use
existing employees to conduct as much of the equipment and
materials preparation, packing and transfer as well as doing
other tasks, as possible.
In another letter dated September 19, the Respondent par-
tially replied to the Union’s August 9 letter seeking information
about the job duties of employees that were asked to perform
certain tasks at the calendar factory (GC Exh. 31). The Re-
spondent informed the Union that the employees were involved
in installing storage racks that were within their normal job
functions and were paid their regular rate for the assignment.
(10) Analysis
Based on the above discussion, and even assuming that the
reference to the calendar and Norwood buildings are the same,
it is apparent to me that the Respondent did not fully respond to
the requests for information that the Union made on August 9.
For example, the names of the employees assigned, how they
were selected and whether the assignment was mandatory or
voluntary as well as information regarding transportation and
reimbursement was not addressed or provided.
Under these circumstances, I conclude that the Respondent
did not provide all of the information requested in paragraph
17(c) of the complaint, and therefore find that the Respondent
violated Section 8(a)(1) and (5) of the Act.
3. Allegations concerning implementation of conditions
of employment
The General Counsel alleges in paragraph 18(a) of the com-
plaint that on or about June 13, Respondent implemented a
policy prohibiting the Union from posting materials in the
plant.
a. Facts
Fort testified that when she went to work on June 13, she ob-
served a copy of a letter posted on one of the uncovered bulle-
tin boards that the Respondent had faxed to her attention on
June 12, after the parties completed negotiations that day (GC
Exh. 57). Fort then posted a letter on the same bulletin board
that summarized the status of negotiations and informed em-
ployees that the Union still had not received information from
the Respondent regarding their medical insurance and retire-
ment bargaining proposals (GC Exh. 32). Shortly after Fort
posted this letter, it was removed from the bulletin board.
Washington, Iowa Plant Manager Misty Bruders testified
that prior to November 2006, employees were free to post no-
tices on the two uncovered bulletin boards without seeking
permission. In November 2006, due to a notice that was posted
on one of the bulletin boards that had the perception of being
insensitive to certain employees, Bruders promulgated a policy
that all postings without exception must be approved by her
including for sale items, bake sales, and menus (GC Exh. 60).
Bruders admitted that this policy was undertaken without notice
or bargaining with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1208
b. Analysis
Based on Bruders testimony, it is apparent that prior to No-
vember 2006, employees had an unfettered right to post materi-
als on the two uncovered bulletin boards and did not need to
seek permission to do so. Such notices included items for sale,
menus, or other matters of local interest to employees. Fort,
however, was unable to conclusively establish that the Respon-
dent was responsible for removing the June 12 letter, and the
General Counsel did not call any other witnesses to establish
how the letter was removed from the bulletin board. Under
these circumstances, the removal of the June 12 letter cannot be
attributed to the Respondent and therefore, the evidence does
not support that the Respondent promulgated a policy on June
13 that prohibited the Union from posting materials in the plant.
Accordingly, I find that the Respondent did not violate Sec-
tion 8(a)(1) and (5) of the Act when it allegedly promulgated a
policy on June 13, that prohibited the Union from posting mate-
rials in the plant without any advance notice or bargaining with
the Union.9
The General Counsel alleges in paragraph 18(b) of the com-
plaint that the Respondent, on or about June 13, announced to
employees and implemented changes in their medical insur-
ance, wage evaluation system, and 401(k) employee contribu-
tion plan.
I previously discussed the parties’ positions as it concerned
the evaluation system and the retirement plan. With respect to
group medical insurance for employees, the Respondent pro-
posed to utilize the plan that it presently has in place for all of
its nonunion employees. The Employer supplements part of the
overall cost of the insurance and the employee contributes part
of the cost. The Union objected to the Employer’s group medi-
cal insurance plan because while part of its proposal provided
free medical insurance to those employees with more than 10
years of service, it would require those employees with less
than 10 years of service to increase their costs significantly.
While the Union, after additional bargaining and significant
evaluation, was willing to agree to the above framework, they
stood firm on a gradual phase-in of the increased premium for
employees with less than 10 years of service, a position that the
Respondent vigorously opposed.
(1) Facts
By letter dated June 13, the Respondent acknowledged that it
presented a final contract offer on June 12, and asserted that it
bargained in good faith during the parties’ eight collective-
bargaining sessions that resulted in approximately 30 tentative
agreements (GC Exh. 41). Based on the Respondent’s position
that a clear impasse existed, it informed the Union that consis-
tent with its final offer that it intended to implement 20 contract
articles that were specified in the letter including group insur-
ance, wage rates that included the evaluation system, and the
retirement plan that included the 401(k) plan.

9 While it appears that a posting policy might have been promulgated
in November 2006, no such allegation is alleged in the complaint and I
decline to make a finding on this issue.
(2) Analysis
Since the allegations in this paragraph are consistent and
parallel to the allegations in paragraph 15(b) of the complaint, I
will defer any discussion and finding until later in the decision.
The General Counsel alleges in paragraph 18(c) of the com-
plaint that on or about June 20, the Respondent discontinued its
supplemental accident fund.
(3) Facts
By letter dated June 20, the Respondent informed employees
that they have been having a deduction taken out of their
checks for a fund that would help supplement them in the event
the employee or someone in their family would have an acci-
dent (GC Exh. 45). The fund was estimated to have in excess
of $2000. The letter went on to state that the Respondent did
not intend to continue the fund and that it would be calculating
the amount due to each employee that participated in the fund
and a check would be sent from the balance in the account.
By letter dated June 21, the Union acknowledged receipt of
the Respondent’s June 20 letter and warned the Employer
against unilaterally discontinuing the accident fund and distrib-
uting the funds. The Union opined that the fund was a manda-
tory subject of bargaining and requested to bargain over the
content of the June 20 letter (GC Exh. 46).
By letter dated July 11, the Respondent provided the Union
with a list of the amounts distributed to current employees
based on their participation in the fund (GC Exh. 47).
(4) Analysis
The Respondent acknowledges that the supplemental acci-
dent fund was part of the expired contract at article 20.4. Un-
der these circumstances, it was a mandatory subject of bargain-
ing whose terms and conditions continued beyond the expira-
tion of the collective-bargaining agreement.
Based on the forgoing discussion, it is apparent that the Re-
spondent unilaterally discontinued the supplemental accident
fund without engaging in bargaining despite the Union’s timely
request to do so. Moreover, the Respondent distributed the
funds to participating employees without bargaining with the
Union.
Under these circumstances, and in agreement with the Gen-
eral Counsel, I find that the Respondent violated Section
8(a)(1) and (5) of the Act.
The General Counsel alleges in paragraph 18(d) of the com-
plaint that on or about June 29, and again on July 18, the Re-
spondent failed and refused to accept and process grievances
filed by the Union.
(5) Facts
On June 29, on the Union’s official grievance form, Fort
filed a series of grievances protesting not maintaining the status
quo since June 12, on wages, vacation policy, supplemental
accident insurance, union dues, seniority, overtime, and holi-
days (GC Exhs. 49 (a)–(f)). Although Fort signed these griev-
ances on the line designated for the aggrieved employee, the
top of the form designated the Union as the grievant.
By letter dated July 7 to Fort, the Respondent characterized
the grievances as complaints and offered to discuss them if Fort
wanted to pursue them further (GC Exh. 50).
WHITESELL CORP. 1209
By letter dated July 15, Jeter protested that the Respondent
was not processing the previously filed grievances under the
agreed-upon procedure and was referring to them as complaints
(GC Exh. 42). Jeter informed the Respondent that he expected
them to follow the grievance and arbitration procedure and
reply to the grievances.
On July 18, Fort filed two additional grievances signing her
name in the appropriate place as the designated union official
and noting on the grievance form that the Union was the griev-
ant (GC Exhs. 51 (a) and (b)).
By letter dated July 21, the Respondent replied to the July 18
Union filing but again characterized the grievances as com-
plaints (GC Exh. 52).
(6) Analysis
There is no disagreement that the grievances filed on June 29
and July 18 were not accepted or processed under the parties’
grievance and arbitration procedure. In this regard, the Re-
spondent’s final contract offer provided to the Union on June
12 contained an article on grievances (GC Exh. 38, art. 17). In
addition, counsel for the Respondent during the course of the
hearing, agreed that there was a grievance procedure in effect
and even if article 17 was not implemented on June 13, con-
cedes that the expired contract grievance procedure would con-
tinue in full force and effect.
The Respondent argues that it has accepted grievances filed
by the Union and points to a December 28 grievance that was
filed by Fort and was processed (R. Exh. 50). The evidence
shows that this was the first grievance filed since July 18.
Based on the forgoing, and particularly noting that the Re-
spondent accepted and processed the December 28 grievance,
there is no dispute that a grievance procedure was in effect after
June 12. Under these circumstances, it was incumbent on the
Respondent to accept and process grievances that were filed on
the Union’s grievance form. Since the Respondent summarily
rejected eight grievances filed by the Union as described above,
I find that they violated Section 8(a)(1) and (5) of the Act.
The General Counsel alleges in paragraph 18(e) of the com-
plaint that on or about August 1, Respondent implemented
changes in its attendance policy.
(7) Facts
Both Fort and Westfall testified that during their August
2006 practice performance evaluation meetings with admitted
Supervisor Steve Hasseltine, they were informed that a new 10-
point system on attendance was in effect. In this regard, when
evaluating employee attendance as part of the performance
evaluation criteria, one-half point would be deducted for each
missed day.
(8) Analysis
The Respondent did not dispute that the point system was
implemented as part of their performance evaluation system.
Likewise, the Respondent offered no evidence that the Union
was notified in advance of this change or given an opportunity
to negotiate about the attendance policy.
Therefore, in the absence of notice and an opportunity to ne-
gotiate, the Respondent’s action in unilaterally changing the
attendance policy, is violative of Section 8(a)(1) and (5) of the
Act.
4. Was there a bona fide impasse
In Bottom Line Enterprises, 302 NLRB 373 (1991), the
Board held that during negotiations, “an employer’s obligation
to refrain from unilateral changes extends beyond the mere duty
to give notice and an opportunity to bargain, it encompasses a
duty to refrain from implementation at all, unless and until an
overall impasse had been reached in bargaining as a whole.”
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd.
sub nom. Television Artists, AFTRA v. NLRB, 395 F.2d 622
(D.C. Cir. 1968), the Board defined an impasse as a situation
where “good-faith negotiations have exhausted the prospects of
concluding an agreement.” See also Newcor Bay City Division,
345 NLRB 1229, 1238 (2005). This principle was restated by
the Board in Hi-Way Billboards, Inc., 206 NLRB 22, 23 (1973),
enf. denied on other grounds 500 F.2d 181 (5th Cir. 1974), as
follows:
A genuine impasse in negotiations is synonymous with a
deadlock; the parties have discussed a subject or subjects in
good faith, and, despite their best efforts to achieve agreement
with respect to such, neither party is willing to move from its
respective position.
The burden of demonstrating the existence of impasse rests
on the party claiming impasse. The question of whether a valid
impasse exists is a “matter of judgment” and among the rele-
vant factors are “[t]he bargaining history, the good faith of the
parties in negotiations, the length of the negotiations, the im-
portance of the issue or issues as to which there is disagree-
ment, [and] the contemporaneous understanding of the parties
as to the state of negotiations.” Taft Broadcasting Co., supra at
478.
I find that the Respondent has not met its burden to establish
a valid impasse. In this regard, the Respondent imposed an
arbitrary and unreasonable deadline for the completion of nego-
tiations for a new collective-bargaining agreement and did not
exhaust the collective-bargaining process. First, I note that the
Respondent set the tone for the negotiations from their incep-
tion, and was in a rush to reach an agreement on or before the
expiration of the parties’ collective-bargaining agreement on
June 12. Indeed, at the initial bargaining session on May 26,
the Respondent informed the Union that it intended to present a
final contact offer on June 8 or 9. Second, on June 8, both chief
negotiators agreed that the parties were not at impasse. Third,
the Union on June 9, requested a contract extension until July
16, but this was rejected by the Respondent. It is noted that the
Respondent never gave any reasons to the Union for rejecting
this request and never revealed any economic exigencies that
required it to complete negotiations on or before June 12.
Fourth, it is not disputed that this was the initial collective-
bargaining agreement to be negotiated between the parties. In
fact, the Respondent informed the Union at the outset of nego-
tiations that it intended to make numerous changes in their
existing agreement. Thus, it is inconceivable that impasse was
declared on June 12, after eight collective-bargaining sessions
that consumed approximately 52 hours of negotiations, much of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1210
which was taken up by caucuses between the parties (GC Exh.
2). Lastly, while I note that the parties appeared to have real
disagreements on a number of subjects including seniority, the
disciplinary standard to be used in arbitrations, overtime, vaca-
tions, the merit pay system, the retirement plan and group in-
surance, the Union and the Respondent not only reached 30
tentative agreements during the course of bargaining but also
reached agreements and exchanged counterproposals as late as
June 11. For example, even on June 11, the parties reached
agreement on a dues-checkoff procedure (art. 11); personal
protective equipment (art. 23); strike and lockout (art. 6); and
bereavement pay (art. 15). Likewise, the Respondent made a
counterproposal to the Union on leave of absence and sick
leave, a proposal on voluntary layoff, and counterproposals on
wages, vacations, and holidays. The Union also showed move-
ment by reducing its wage proposal in the second and third year
of the proposed contract. Therefore, I find that the Respondent
did not give enough time for the Union to consider these coun-
terproposals before declaring impasse on June 12.
For all of these reasons, I am of the opinion that the Respon-
dent did not reach a bona fide impasse but rather rushed to
judgment in an effort to unilaterally implement its final contact
offer on June 12, including the provisions alleged in paragraph
18(b) of the complaint.10
I am also in agreement with the General Counsel’s argument
that under the Board’s holding in Decker Coal, 301 NLRB 729
(1991), the Respondent’s failure to provide necessary and rele-
vant information precluded impasse, and therefore, prevented
lawful implementation of a final contract offer. Indeed, the
refusal of the Respondent to specifically provide layoff and
recall, employee evaluation, wage rate, vacation, and retirement
plan information to the Union directly impacts on the core is-
sues separating the parties in this case. See Caldwell Mfg. Co.,
346 NLRB 1159 (2006).

10 While I have found that the Respondent implemented its final con-
tact offer without having reached a bona fide impasse (see par. 15(b) of
the complaint and Janowitz’ June 13 letter to Jeter for the specific
provisions that were implemented), I reject the General Counsel’s
position that the Respondent engaged in surface bargaining which lead
to and caused the unlawful impasse. In this regard, the parties’ met
face-to-face for eight bargaining sessions, reached agreement on ap-
proximately 30 tentative contract articles, exchanged numerous coun-
terproposals on agreed-upon open issues and were legitimately dead-
locked on a number of mandatory subjects of bargaining. Thus, I do
not find that the Respondent engaged in dilatory tactics and refused to
negotiate with the Union for an initial collective-bargaining agreement.
Therefore, I do not find that the Respondent maintained a state of mind
inconsistent with a willingness to reach a genuine agreement. People
Care, Inc. 327 NLRB 814, 826–827 (1999). Additionally, I find merit
in the General Counsel’s allegation in the complaint that the Respon-
dent failed to bargain in good faith by ceasing to deduct union dues on
and after June 12. The Board has held that an employer’s dues-
checkoff obligation terminates at contract expiration. Hacienda Resort
Hotel & Casino, 331 NLRB 665, 667 (2000). However, in the particu-
lar circumstances of this case, the Respondent was obligated to main-
tain the checkoff provisions at least until 30 days after it gave appropri-
ate 8(d)(3) notices. Based on my above finding that the Respondent
failed to timely give notice to the FMCS, a make-whole remedy for
authorized dues not deducted is proper. Petroleum Maintenance Co.,
290 NLRB 462 (1988).
Based on the forgoing, I find that the Respondent has failed
to meet its burden of establishing the existence of a valid im-
passe. Accordingly, the Respondent violated Section 8(a)(1)
and (5) of the Act when it unilaterally implemented the provi-
sions of its final contract offer on June 12,11 refused to provide
necessary and relevant information to the Union that was re-
quested prior to the expiration of the parties’ collective-
bargaining agreement, and without first providing notice to the
FMCS of the existence of a dispute.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by prohibiting an em-
ployee from distributing union meeting notices in the plant
during the employee’s unpaid and breaktime and by promulgat-
ing a policy prohibiting employees from posting any union
materials in the plant.
4. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act by refusing to
furnish the Union with necessary and relevant information re-
garding layoff and recall, the criteria used in evaluating em-
ployees and how wage rates would be determined, vesting and
the ability of employees to rollover loan balances under the
retirement plan, the assignment of certain unit employees to
work at another facility, by eliminating its supplemental acci-
dent fund and ceasing dues checkoff, by implementing changes
in medical insurance, the wage evaluation system, and the
401(k) plan, by failing and refusing to accept and process
grievances filed by the Union, by implementing changes in its
attendance policy, by unilaterally implementing its final con-
tract offer without first providing notice to the FMCS, and uni-
laterally implementing on June 13, 2006, its final contract offer
without having exhausted the collective-bargaining process and
without having reached a bona fide impasse in negotiations and
without the Union’s consent.
5. Respondent did not violate Section 8(a)(1) of the Act by
denigrating a union representative or threatening that bargain-
ing was futile and did not threaten employees that the plant may
not remain in Washington, Iowa, if they continued to support
the Union.
6. Respondent did not violate Section 8(a)(1) and (5) of the
Act by refusing to furnish the Union with a copy of all postings
concerning conditions of employment that Respondent posted
after June 12, 2006, or by implementing a policy on June 13,
2006, prohibiting the Union from posting materials in the plant.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.

11 See Day Automotive Group, 348 NLRB 1257, 1269–1271 (2006).
WHITESELL CORP. 1211
Since the Respondent unilaterally implemented its final con-
tract offer on June 13, 2006, without first providing notice to
the FMCS, without first providing the Union with requested
information and without having reached a bona fide impasse in
negotiations, I shall order it to cease and desist from engaging
in such conduct, return to the status quo, and to bargain on
request with the Union about these matters. In regard to the
wage increases and the other unilateral changes, the Union may
use its discretion as to whether the changes should be re-
scinded. The Respondent shall also make whole any employee
for any loss of earnings and other benefits suffered as a result
of its unlawful action. Backpay shall be computed in the man-
ner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest to be computed in the manner set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987). The Re-
spondent shall rescind and remove from employees’ files all
discipline issued to them as a result of Respondent’s unilateral
implementation of the attendance policy and make employees
whole for any loss they may have suffered as a result of such
discipline in the manner set forth in the above cases. Finally,
Respondent shall be ordered to give effect to all of the existing
terms and conditions of employment of the expired collective-
bargaining agreement until, on request of the Union, it bargains
in good faith and a new agreement or a valid impasse is
reached.12
[Recommended Order omitted from publication.]

12 Contrary to the General Counsel, I decline to grant its request to
require the Respondent to pay the Union its expenses incurred in the
subject collective-bargaining negotiations. In this regard, the parties
reached numerous tentative agreements including a grievance and
arbitration procedure and dues-checkoff provisions, and for the most
part negotiated in good faith with an intention of trying to reach an
agreement. Waterbury Hotel Management LLC, 333 NLRB 482 (2001)
(denying costs where “[t]he Respondent’s defenses, although generally
meritless, were debatable rather than frivolous and therefore do not
warrant the extraordinary remedy requested”], enfd. 314 F.3d 645 (D.C.
Cir. 2003).