Whitesell Corporation

National Labor Relations Board - Administrative Judge Opinions

Mar 2, 2007

18-CA-018143 (N.L.R.B. Mar. 2, 2007)

JD–15–07
Washington, IO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WHITESELL CORPORATION
and Cases 18-CA-18143
18-CA-18168
18-CA-18203
GLASS, MOLDERS, POTTERY, PLASTICS AND
ALLIED WORKERS INTERNATIONAL UNION
LOCAL 359
Nichole L. Burgess-Peel, Esq., and James L. Fox, Esq.,
of Minneapolis, MN, for the General Counsel.
Jay M. Smith, Esq., of Sioux City, IA,
for the Charging Party.
Charles P. Roberts III, Esq., of Winston-Salem, NC, and
David A.Tomlinson, Esq., of Muscle Shoals, AL,
for the Respondent-Employer.
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on
January 9 through 11, 2007, in Washington, Iowa, pursuant to a Consolidated Complaint and
Notice of Hearing in the subject cases (complaint) issued on November 28, 20061, by the
Regional Director for Region 18 of the National Labor Relations Board (the Board). The
underlying charges were filed on various dates in August, September and October 2006 by
Glass Molders, Pottery, Plastics and Allied Workers International Union Local 359 (the Charging
Party or Union) alleging that Whitesell Corporation (the Respondent or 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 complaint 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 employees from distributing Union meeting notices in the plant during
there 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

1 All dates are in 2006 unless otherwise indicated.
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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 demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent is a corporation engaged in the manufacture and distribution of wire
form products as its plant in Washington, Iowa, where it annually purchases and receives goods
valued 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
Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
On or about January 1, 2005, Respondent purchased the assets 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.
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 collective 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 Respondent declared that they were at impasse on June 12.2
On June 13, Respondent implemented certain provisions of its final offer3. The Union
did not consent to implementation.

2 The parties met on May 26 from 9 a.m. to 12 noon, on June 6, from 8:30 a.m. to 3:00
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 6:00 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 4:00 p.m., and on June 12, from 8:30 a.m. to 1:00 p.m.
3 Article 8, Disciplinary Action, Section 8.1, Article 9, Probationary Period of Employment,
Section 9.1, Article 10, Seniority, Section 10.1 and 10.5, Article 11, Applicability of Personnel
Policies, Article 12, Work Hours/Overtime, Article 13, Holidays, Article 14, Vacation, Article 15,
Bereavement Pay, Article 16, Rest Periods, Article 18, Leaves of Absence and Sick Leave,
Article 19, Group Insurance, Article 20, Jury Duty and Witness Duty, Article 21, Drug Testing,
Article 22, Wage Rates and Night Shift Differential, Article 23, Personal Protective Equipment,
Article 24, Safety, Article 26, Retirement Plan, Article 27, Military Leave, Article 28, Tuition
Reimbursement, and Article 29, Credit Union.
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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 General Counsel. 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 agreement or give its final proposal no later then
Friday, June 9. He further stated that the Respondent did not intend to treat Washington, Iowa,
facility employees any different from the 400-500 employees in the corporation, 95 of which
were in the bargaining unit, and they were going to be consistent in applying common policies,
procedures and terms and conditions of employment to all employees.
B. The Section 8(a)(1) Allegations
The General Counsel alleges in paragraph 5 (a)-(e) of the complaint that the
Respondent engaged in a number of violations of the Act.
1. Allegations Concerning Robert Wiese
The General Counsel asserts in paragraph 5(a) of the complaint that Wiese on about
June 13, in meetings with employees, 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 approximately 75 other first shift employees, attended a meeting on
June 13, around 9:30 a.m. on the shop floor, where Wiese apprised those in attendance that the
Respondent had just implemented 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 premiums. Wiese also told the employees that their vacation entitlement 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 because of Jeter or the Union.
Fort, who also attended the same meeting as Messenger, confirmed that Wiese
reviewed portions of Respondent’s implemented final contract offer during his presentation.
She testified 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?”
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Westfall, who was also present at the June 13 meeting, testified 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 separate meetings with the
employees on June 13 to review the recently implemented portions of the Respondent’s final
contract 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. During 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 factories and that you know him. One of the employees attending 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, testified 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 during 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 employee 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 meeting, the General Counsel
only called three 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 meetings.
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.
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The General Counsel alleges in paragraph 5(b) of the complaint 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 Respondent 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 employees 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 co-
worker inquired of Wiese whether the plant would remain in Washington, 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 employees 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 break
time. 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 time clocks and
are uncovered. 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.
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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 notices 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.
Based on Bruders testimony, it is apparent that prior to November 2006, employees had
an unfettered right to post materials on the two uncovered bulletin boards and did not need
permission 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 Section 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 break time. Additionally, by establishing such a policy, when other
employees had unfettered access to post general notices on the bulletin boards without seeking
permission, the Respondent also violated the Act. Publix Super Markets, Inc., 347 NLRB No.
124 (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 complaint that the Respondent
failed to provide notice of the existence of a dispute to the FMCS within 30 days of its
notification to the Union that it intended to terminate the parties’ collective-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 testified that she signed the
F-7 notice and placed it in an envelope addressed to the FMCS that was stamped with the
Respondent’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 then registered or
certified mail, but the Respondent never received the letter back from the Postal Service as
undeliverable to the FMCS.
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Both Jeter and Janowitz, during the parties’ June 8 collective 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’ collective-bargaining agreement and
the implementation of the Respondent’s final contract offer, he contacted the FMCS on July 10,
to discern if they had knowledge of the dispute between the parties (GC Exh. 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
agreement 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
depositing it in the United States mail (GC Exh. 9). Tomlinson further apprised Jeter that on
August 10, the Respondent sent a courtesy 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 Respondent 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, includes notice requirements
that must be satisfied prior to termination or modification of a labor contract. Section 8(d)(1)
requires 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
modification. Section 8(d)(3) provides that the party desiring to terminate or modify the
agreement must notify the FMCS within 30 days after such notice of the existence of a dispute.
Amax Coal Co. Div. v. NLRB, 614 F. 2d 872, (3rd Cir. 1980), rev’d on other grounds, 453 U.S.
322 (1981) (failure to provide written notice to FMCS violative of § 8(d)(3), despite FMCS actual
knowledge of the dispute).
The Board now holds that the burden of notifying the mediation service of a dispute
under Sections 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), aff’d in part, 910 F.2d
268, (5th Cir. 1990),4 the Board held that the employer unlawfully implemented its wage

4 Accord NLRB v. Mar-Len Cabinets, 659 F2d 995, (9th Cir. 1981), enforcing in relevant part
243 NLRB 523 (1979), on remand, 262 NLRB 1398 (1982) (employer that failed to give required
Continued
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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 provisions for notice and
termination.5
The Respondent argues that it made a good faith effort and took all reasonable steps to
satisfy the section 8(d)(3) requirements by filing the required F-7 notice with the FMCS. Indeed,
it established 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 Respondent’s intent that a dispute existed
between the parties and it intended to terminate the parties’ collective-bargaining agreement
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 n. 26 (2001); The Ohio Oil Company, 91 NLRB
759, 761 (1950).
There is no dispute that the Respondent did not mail the required FMCS form by
certified or registered mail, return receipt 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 notice 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.
_________________________
§ 8(d)(3) notice violated § 8(a)(5) by unilateral changes after impasse in bargaining), the Board
held that the employer unlawfully 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 provisions for notice and termination.
5 See also Z-Bro Inc., 300 NLRB 87 (1990). In Mar-Len Cabinets, 243 NLRB 523, the
employer unilaterally implemented its bargaining proposals after failing to comply with §8(d)(3).
Its mistaken reliance on the union’s alleged compliance with the notice requirements was held
no defense.
6 The General Counsel, by letter dated December 14, informed Respondent 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, Salesmen and
Helpers Local 572, 223 NLRB 1003, 1008 (1976).
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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 employers 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 obligation arises from the operation of the Act itself. Ellsworth 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. NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1973). The legal standard concerning just what information must be produced 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 complaint 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, Article 11). During the parties
June 6 collective bargaining session, Janowitz informed the Union that the Respondent did not
intend to be bound by seniority for its layoff and recall procedures. Rather, the Respondent
proposed that seniority would be a factor to be considered with respect to the layoff and recall of
bargaining unit employees, as are other appropriate criteria such as, but not limited to, skills,
qualifications, abilities, attendance record, tardiness record, disciplinary record, and team work.
Where all appropriate criteria are relatively equal, seniority for the purposes noted will prevail
(GC Exh. 38, Article 10, and GC Exh. 56, Article 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
procedures 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 there 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 comprehend 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 compromise its long term position that seniority must control
when considering layoff and recall procedures for employees.
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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 considering 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 six days
before the Respondent declared impasse and implemented numerous contract articles including
its final contract offer covering seniority. The subject information request went to the core
issues that the parties were discussing and the 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 Respondent’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 employee on or about their
anniversary date as the sole factor to determine wage increases.
a. 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 Respondent for at least eleven
years and for its hourly non-union employees for the last three years. The Union had numerous
questions 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 five possible factors on a
numerical rating of 0-47 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 similarly situated employees. The Union, on July 17, submitted a six page letter to the
Respondent detailing with specificity there concerns regarding the Respondent’s proposed
evaluation system and outlined additional requests for information to assist the Union in making
comprehensive counter-proposals on this significant issue (GC Exh. 30).

7 The personal traits included knowledge, quantity, accuracy, judgment, innovation,
appearance & habits, orderliness, courtesy, cooperation, initiative, reliability, perseverance,
stability, attendance and alertness. The rating factors included unsatisfactory (0), some
deficiencies evident (1), satisfactory (2), exceptional (3), and clearly outstanding (4).
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The Respondent, during the June 7 collective-bargaining session, provided a number of
responses to the Union’s oral questions 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 Union’s July 17 letter.
By letter dated September 19, the Respondent provided a number of answers to the
Union regarding the evaluation system, but it did not address each and every request for
information 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 employees (GC Exh. 63 and 64). Likewise, the Respondent declined to provide appraisals
for other similarly situated employees at other facilities despite the Union’s agreement to have
the name of the employee and supervisor redacted.
b. Analysis
Based on the record evidence and the testimony of the parties, 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 responses and did not fully respond to the Union’s relevant
requests 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 particularly noting that the request
immediately followed the June 7 presentation of the proposal, deserves a comprehensive
response 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
evaluation system on June 13, and commenced practice evaluations for employees in July and
August 2006, a number of supervisors changed the rating factors from a scale of 0-4 to a scale
of 1 to 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 employee 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 complaint, 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 roll over loan balances under its
proposed retirement plan, and on June 12, in writing, requested information on Respondent’s
proposed retirement 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 employee. The Respondent proposed to change the existing retirement plan and wanted all
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employees to participate in the Respondent’s current 401(k) plan with a match of 25% of an
eligible employee’s contribution up to 8% 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.
a. Facts
During the parties June 7, collective-bargaining session, the Union requested
information on the Respondent’s newly proposed retirement 401(k) plan specifically seeking
answers about the ability of employees to roll over 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
information 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 comprehensive information regarding
the Respondent’s Group 401(k) plan to employees in an attachment to their pay checks (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 specifically responded, in question and answer fashion, to issues concerning the
roll over of existing loans under the old plan and what it means when you are 100% vested.

b. Analysis
Based on the forgoing, it is apparent that there were outstanding requests for information
on June 7 and 12, regarding the ability of employees to roll over 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 responded 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 separately”, does not adequately respond to the Union’s
detailed questions on the roll over of loan balances or vesting (GC Exh. 44). Moreover, the
June 9 posting pre-dates the Union’s June 12 letter that informs the Respondent that it has not
provided information on its questions concerning the roll over of loan balances in the proposed
401(k) plan and questions concerning vesting.
Accordingly, I find that the refusal of the Respondent to provide necessary and relevant
information to the Union regarding the roll over 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 complaint, 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 employees would immediately lose
vacation time under Respondent’s vacation proposal.
The past practice of the parties, as established under Article 15 of their then existing
collective-bargaining agreement, provides employees with a vacation entitlement based on
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there 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 employee with continuous service of
15 years would be entitled to four weeks of vacation. Under the Respondent’s final contract
proposal, employees could only enjoy four weeks of vacation after 20 years of service.
a. Facts
During the parties June 6 bargaining session, the Union informed the Respondent that it
estimated that approximately one-third of the bargaining unit would lose vacation benefits under
there vacation proposal. Accordingly, Jeter requested that the Respondent provide a list of the
employees along with an explanation of the impact. In addition, the Union requested
information on how employees would transition from the prior practice of vacation entitlement to
the new proposed formula. In the Union’s June 9 written counter proposals, 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 Union to figure which employees would lose vacation benefits.
b. Analysis
The Union acknowledges that they received a current seniority list from the Respondent
prior to the commencement of negotiations. Based on this list, it was the Union’s best estimate
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 independently
respond to each member of the bargaining unit who might inquire about their individual
entitlement under the Respondent’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 complaint, as amended at the
hearing, that on or about August 9, the Union requested that Respondent furnish it with a copy
of all postings concerning conditions of employment that Respondent posted after June 12.
a. 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
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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.
b. Analysis
The General Counsel did not rebut that Fort received postings 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 complaint, 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.
a. 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 Respondent notified the Union
regarding the rental of the Norwood building across town and its intent of moving operations to
that facility (R Exh. 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.

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 discloses that
this was the only notice concerning conditions of employment that was not directly provided to
the Union after June 12, the impact on conditions of employment is not greater than de minimis.
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In another letter dated September 19, the Respondent partially 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 Respondent informed the
Union that the employees were involved in installing storage racks that were within their normal
job functions and were paid their regularly rate for the assignment.
b. 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 complaint 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 observed a copy of a letter
posted on one of the uncovered bulletin 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
employees that the Union still had not received information from the Respondent regarding their
medical insurance and retirement 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 notices 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.
b. Analysis
Based on Bruders testimony, it is apparent that prior to November 2006, employees had
an unfettered right to post materials 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 Respondent
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
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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 Section 8(a)(1) and (5) of the Act
when it allegedly promulgated a policy on June 13, that prohibited the Union from posting
materials in the plant without any advance notice or bargaining with the Union.9
The General Counsel alleges in paragraph 18 (b) of the complaint that the Respondent,
on or about June 13, announced to employees and implemented changes in their medical
insurance, wage evaluation system, and 401(k) employee contribution 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
proposed to utilize the plan that it presently has in place for all of its non-union 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 medical 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.
a. 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
consistent with its final offer that it intended to implement 20 contract articles that were specified
in the letter including group insurance, wage rates that included the evaluation system, and the
retirement plan that included the 401(k) plan.
b. 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 complaint that on or about June
20, the Respondent discontinued its supplemental accident fund.
a. 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 accident (GC Exh. 45). The fund
was estimated to have in excess of $2000. The letter went on to state that the Respondent did

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.
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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
distributing the funds. The Union opined that the fund was a mandatory 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).
b. Analysis
The Respondent acknowledges that the supplemental accident fund was part of the
expired contract at Article 20. 4. Under these circumstances, it was a mandatory subject of
bargaining whose terms and conditions continued beyond the expiration of the collective-
bargaining agreement.
Based on the forgoing discussion, it is apparent that the Respondent 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 General 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 complaint that on or about June
29, and again on July 18, the Respondent failed and refused to accept and process grievances
filed by the Union.
a. 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 holidays (GC Exh. 49 (a)-
(f)). Although Fort signed these grievances 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).
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
grievant (GC Exh. 51 (a) and (b)).
By letter dated July 21, the Respondent replied to the July 18 Union filing but again
characterized the grievances as complaints (GC Exh. 52).
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b. 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 Respondent’s final contract offer provided to the Union on June 12 contained an article on
grievances (GC Exh. 38, Article 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, concedes that the expired contract grievance procedure would
continue 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 Respondent 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 complaint that on or about
August 1, Respondent implemented changes in its attendance policy.
a. 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.
b. Analysis
The Respondent did not dispute that the point system was implemented as part of there
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 negotiate, 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.”
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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 No. 104, slip op. at 10 (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 relevant factors are “[t]he bargaining history, the good faith of the parties in negotiations, the
length of the negotiations, the importance of the issue or issues as to which there is
disagreement, [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
negotiations 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
there inception, 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 negotiations 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 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, vacations, the merit pay
system, the retirement plan and group insurance, 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 check-off procedure (Article 11), Personal Protective
Equipment (Article 23), Strike and Lockout (Article 6) and Bereavement Pay (Article 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 movement 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 counterproposals before declaring impasse on June 12.
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For all of these reasons, I am of the opinion that the Respondent 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 relevant 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 issues separating the parties in this case. See Caldwell
Manufacturing Company, 346 NLRB No. 100 (2006).
Based on the forgoing, I find that the Respondent has failed to meet its burden of
establishing the existence of a valid impasse. Accordingly, the Respondent violated Section
8(a)(1) and (5) of the Act when it unilaterally implemented the provisions of its final contract offer
on June 12,11 refused to provide necessary and relevant information to the Union that was
requested prior to the expiration of the parties’ collective bargaining agreement, and without first
providing notice to the FMCS of the existence of a dispute.

10 While I have found that the Respondent implemented its final contact offer without having
reached a bona fide impasse (see paragraph 15 (b) of the complaint and Janowitz’s 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 approximately 30 tentative contract articles, exchanged numerous
counterproposals on agreed upon open issues and were legitimately deadlocked 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
Respondent 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-check off obligation terminates at contract
expiration. Hacienda Resort Hotel & Casino, 331 NLRB 665, 667 (2000). However, in the
particular circumstances of this case, the Respondent was obligated to maintain the check-off
provisions at least until 30 days after it gave appropriate Section 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).
11 See Day Automotive Group, 348 NLRB No. 90, slip op. at 13-15 (2006).
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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 employee from distributing Union meeting notices in the
plant during the employee’s unpaid and break time and by promulgating 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 regarding layoff and recall, the criteria used in evaluating employees and
how wage rates would be determined, vesting and the ability of employees to roll
over loan balances under the retirement plan, the assignment of certain Unit
employees to work at another facility, by eliminating its supplemental accident fund
and ceasing dues check-off, 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 contract offer without first providing notice
to the FMCS, and unilaterally 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 bargaining 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 unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Since the Respondent unilaterally implemented its final contract 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
rescinded. 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
manner 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
Respondent shall rescind and expunge 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
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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
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
ORDER
The Respondent, Whitesell Corporation, Washington, Iowa, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing terms and conditions of employment of our employees
by implementing provisions of our final contract offer on June 13, 2006,
without having first bargained with the Union in good faith to impasse,
implementing changes in its medical insurance, wage evaluation system and
401(k) plan, discontinuing its supplemental accident fund and the withholding
of dues, refusing to accept and process grievances filed by the Union,
implementing a policy prohibiting the Union from posting materials in the
plant, and implementing changes in its attendance policy.
(b) Refusing to negotiate with the Union over mandatory subjects of collective
bargaining.
(c) Prohibiting employees from distributing Union meeting notices in the plant
during the employee’s unpaid or break time.
(d) Refusing to provide necessary and relevant information to the Union.
(e) Implementing provisions of its final contract offer on June 13, 2006, without
first providing notice to the FMCS.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive representative of the
employees concerning terms and conditions of employment and provide
necessary and relevant information to the Union.
(b) Rescind, at the Union’s discretion, the changes in wages, hours, and other
terms and conditions of employment unilaterally implemented on June 13,

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 check-off 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 (221) (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”], enf’d 314 F.3d 645 (C.C. Cir. 2003).
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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2006, return to the status quo, and negotiate with the Union in good faith until
we reach a bona fide impasse after bargaining in good faith.
(c) Make any employees whole for any loss of earnings and other benefits
suffered as a result of the discrimination 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 the dues to the Union pursuant to the employee’s
signed dues-deduction authorizations with interest.
(e) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records and reports, and all
other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after service by the Region, post at its facility in Washington,
Iowa, copies of the attached notice marked “Appendix.”14 Copies of the
notice, on forms provided by the Regional Director for Region 18, after being
signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent
at any time since June 6, 2006.
(g) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. March 2, 2007
____________________
Bruce D. Rosenstein
Administrative Law Judge

14 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–15–07
Washington, IO
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain with the Union as the exclusive bargaining representative of
our employees in the following appropriate unit:
All full-time and regular part-time production and maintenance employees employed
at its plant in Washington, Iowa, excluding office and clerical employees, salesmen,
professional employees, guards, supervisory and managerial employees as defined in
the National Labor Relations Act.

WE WILL NOT unilaterally change the terms and conditions of employment of our employees
without having first bargained with the Union in good faith to a bona fide impasse.
WE WILL NOT unilaterally change the terms and conditions of employment of our employees
without prior notice to the Union and without affording the Union an opportunity to bargain.
WE WILL NOT refuse to bargain with the Union by failing to give notice of the existence of any
dispute between ourselves and the Union to the Federal Mediation and Conciliation Service as
required by Section 8(d) (3) of the Act and by failing to continue in full force and effect all the
terms and conditions of our existing agreement.
WE WILL NOT refuse to negotiate with the Union over mandatory subjects of collective
bargaining.
WE WILL NOT prohibit employees’ from distributing Union meeting notices in the plant during
the employee’s unpaid or break time nor will we promulgate a policy prohibiting the Union or
employees from posting any Union materials in the plant.
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.
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WE WILL, on request, bargain with the Union as the exclusive representative of the employees
concerning terms and conditions of employment.
WE WILL rescind, at the Union’s discretion, the changes in wages, hours, and other terms and
conditions of employment unilaterally implemented on June 13, 2006, and negotiate with the
Union in good faith until we reach an agreement or a valid impasse after bargaining in good
faith.
WE WILL make any employees whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set forth in the remedy section of the
decision.
WE WILL provide the Union information that is necessary and relevant for the bargaining
process.
WE WILL, on request, process any grievances filed by the Union.
WE WILL reimburse the Union for all membership dues which we failed to withhold and transmit
the dues pursuant to the employee’s signed dues deduction authorizations, with interest.

Whitesell Corporation
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
330 South Second Avenue, Towle Building, Suite 790
Minneapolis, Minnesota 55401-2221
Hours: 8 a.m. to 4:30 p.m.
612-348-1757.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 612-348-1770.