CENTER CITY INTERNATIONAL TRUCKS, INC.

National Labor Relations Board - Administrative Judge Opinions

Sep 2, 2011

09-CA-045338 (N.L.R.B. Sep. 2, 2011)

JD–52–11
Columbus, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CENTER CITY INTERNATIONAL TRUCKS, INC.

and Cases 9-CA-45338
9-CA-45402
INTERNATIONAL ASSOCIATION OF 9-CA-45437
MACHINISTS & AEROSPACE WORKERS, AFL–CIO, 9-CA-45820
DISTRICT LODGE 54, LOCAL LODGE 1471 9-CA-45975
9-CA-46081
9-CA-46136
9-CA-46183
Eric V. Oliver and Jamie L. Ireland, Esqs.,
for the Acting General Counsel.
Ronald L. Mason and Aaron T. Tulencik, Esqs.
(Mason Law Firm Co., L.P.A.), of Dublin, Ohio,
for the Respondent.
Sorrell Logothetis, Esq. (Cook, Portune & Logothetis,
LLC), of Cincinnati, Ohio, for the Charging Party.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This matter arises out of an order
consolidating cases, order revoking settlement agreement, and consolidated complaint and
notice of hearing (complaint) issued on January 28, 2011, against Center City International
Trucks, Inc. (the Respondent or the Company), stemming from unfair labor practice (ULP)
charges filed by International Association of Machinists & Aerospace Workers, AFL–CIO,
District Lodge 54, Local 147 (the Union). The complaint alleges that the Respondent violated
Section 8(a)(3), (5), and (1) of the Act, by conduct related to ongoing negotiations that began in
September 2009 for a succeeding collective-bargaining agreement.
Pursuant to notice, I held a trial in Columbus, Ohio, from April 4–8 and May 17–19,
2011, at which I afforded the parties full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence. As of May 19, 2011, the parties continued to engage in
collective bargaining.
Issues
1. Did the Respondent, on November 30, 20101 discharge journeyman mechanic
Russ Mason,2 a member of the Union’s negotiating committee, for the stated basis of
failing to timely reacquire his commercial driver’s license (CDL), or because of union
animus?

1 All dates hereinafter occurred in 2010, unless otherwise indicated.
2 Hereinafter, he will be referenced as “Mason,” and Attorney Ronald Mason as “Attorney
Mason.”
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2. Did this constitute a unilateral change in the Respondent’s policy regarding
discipline of mechanics for losing a CDL?
3. Did the Respondent’s refusal to reemploy Mason after he reacquired his CDL
constitute a unilateral change in the Respondent’s policy?
4. Did the Respondent, on January 27, issue a written reprimand to journeyman
mechanic Jeff Ward, a member of the Union’s negotiating committee, for the stated basis of
tardiness, or because of union animus?
5. Did Manager Dan Shepherd violate Section 8(a)(1) when he stated that Ward was
receiving the reprimand because of the Respondent’s dislike of the Union’s stance on
attendance/tardiness during the course of negotiations?
6. Did the Respondent, on about November 24, 2009, announce a unilateral change to
its policy of allowing employees to carry over 3 days of vacation leave into the following year
without restriction as to dates of use?
7. Did the Respondent, after September 24, fail and refuse to timely provide the
Union with information that it requested regarding employees’ health Insurance
benefits?
8. Did the Respondent, on November 1, unilaterally implement new health insurance
benefits?
9. Did the Respondent, on March 12, April 2, and July 16, issue memoranda to
employees that misrepresented the status of negotiations, disparaged the Union so as to
undermine employee support for the Union, and/or interfered with the Union’s internal
processes?
10. Did the Respondent, during the period from January 20, 2010 through
February 28, 2011, fail and refuse to bargain in good faith, by its conduct set out in
paragraphs 5–8 above; by repeatedly submitting its prior proposals in response to new union
proposals; by giving perfunctory consideration to and/or failing to consider union proposals;
by proposing, in bad faith, elimination of the union-security provision and voluntary check-off
clause; and by its “overall conduct”? In sum, did the Respondent engage in bad-faith or
surface bargaining?
On April 22, the Regional Director approved a bilateral informal settlement agreement
encompassing Ward’s reprimand, Shepherd’s statement, and the change in policy on carryover
vacation days.3 He later revoked that agreement on the basis of the Respondent’s alleged
post-settlement violations of the Act. The correctness of his revocation is not before me.
Witnesses and Credibility
The following witnesses testified on the General Counsel’s behalf: Mason and Ward;
Business Representative Mark Chema and Grand Lodge Representative William Rudis;
journeyman mechanic Joseph Gerchy; leadman mechanic William Graves; mechanic Robert
Romine; and mechanic John “Jack” Danhauer and job applicant Barak Dorr, whose testimony

3 GC Exh. 21.
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was limited to their interviews for employment (in reference to the Respondent’s proposals to
eliminate union-security and dues-checkoff provisions).
The Respondent called the following managers/supervisors: General Manager James
Ray and Service Manager Dale Mosholder, who testified about Mason’s discharge; retired
Service Manager Jay Shepherd, who testified about Ward’s reprimand and how the union-
security clause and dues-checkoff provisions impacted on the Respondent’s ability to recruit
mechanics; Assistant Manager Joel Crist, who attended Ward’s reprimand meeting; Senior
Administrator Diane Taylor, who testified about records pertinent to Mason’s and Ward’s
disciplines; Parts Director Pat Pesta, who testified on the subject of negotiations concerning
health insurance benefits; and Government Sales Manager Nick Wahoff, who testified about
negotiations concerning health insurance benefits and the information that the Respondent
provided to the Union on the subject. The Respondent also called Attorney Ronald Mason, who
attended bargaining sessions on its behalf.
Some facts, such as the proposals that the parties exchanged during negotiations, are
undisputed. Further as to bargaining, four sets of notes taken at negotiations were admitted into
evidence, with the understanding that none of them purported to be verbatim accounts of
everything that was said. The first was Attorney Tulencik’s detailed typewritten notes of
negotiations that he attended from September 9, 2009–December 8, 2010.4 The second was
Wahoff’s typewritten notes for meetings from January 20–28, 2011 at which Tulencik was not
present. 5 The third was Gerchy’s handwrote notes for meetings from January 20–28, 2011.6
The fourth was Mason’s handwritten bargaining notes for July 22 and November 7, 2010.7

I have no reason to doubt the overall accuracy of the notes. Significantly, Tulencik’s and
Wahoff’s notes of certain pivotal meetings were not necessarily inconsistent with Gerchy’s and
Mason’s. As a general proposition, contemporaneous written notes are more reliable than later
recollection, and I take this into account in making findings of fact as to what was said during
bargaining. More specific to this case, neither Tulencik’s nor Gerchy’s notes appear to have
excised or sugarcoated what was said in the clearly intense and often heated negotiations, in
which accusations of bad faith and improper conduct repeatedly flew back and forth,
interspersed with ad hominem attacks. This is an appropriate point to reiterate what I stated at
trial: the only allegations of bad-faith bargaining before me are on the part of the Respondent,
despite its continuing contention that the Union engaged in such. Nonetheless, I will consider
the Union’s conduct to the extent that it bears on the issue of surface bargaining.
In contrast to the 8(a)(5) allegations, determining the merits of the 8(a)(3) charges,
especially Mason’s termination, hinges largely on credibility resolution.
Mason was not a stellar witness in that he did not seem fully forthright at times during
cross-examination, particularly as to why he delayed getting his CDL after he became eligible in
July. I attribute part of this to a natural and understandable reticence to answer questions about
the marital and financial difficulties that he was experiencing. However, he appeared candid for
the most part and was consistent in relating events that took place on the job regarding his CDL.
In any event, the defects in his credibility paled in comparison to the conflicting and unbelievable
testimony of Ray and Mosholder on the matter, which I will subsequently detail. I also note that
the Respondent did not call Owner Tim Reilly, who Ray testified played a role in Mason’s

4 R. Exh. 1, 344 pages.
5 R. Exhs. 2–8, covering meetings from October 5–January 21, 2011.
6 R. Exh. 264, 196 pages (excluding legends page).
7 R. Exh. 278.
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discharge and who Ward testified made post-discharge statements about Mason. I draw an
adverse inference that his testimony would not have supported and, indeed, might have
contradicted the Respondent’s proffered version of what occurred. See International Automated
Machines, 285 NLRB 1122, 1122–1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988) ("[W[hen a
party fails to call a witness who may reasonably be assumed to be favorably disposed to the
party, an adverse inference may be drawn regarding any factual question on which the witness
is likely to have knowledge.”).
Danhauer displayed obvious reticence, even antagonism, on the General Counsel’s
direct examination, reflecting a clear reluctance to testify. The affidavit he gave to the General
Counsel on November 9,8 with his personal attorney present, was not fully consistent with the
later affidavit that he gave to the Respondent’s counsel on March 31, 2011,9 concerning what
he stated about union dues and checkoff at one of his interviews for employment. The former
was closer in time to the interview, he swore to it when he had his own legal representation, and
he affirmed its version in his testimony. I therefore believe his NLRB affidavit and testimony to
be more reliable and credit their account over the second affidavit.
Other witnesses on both sides appeared generally credible, given natural difficulties of
precise recall, especially when having to address events that in some cases occurred as far
back as September 2009, and/or involved numerous details. I also recognize the normal
tendency to hear, remember, and recount conversations in a light most favorable to the witness,
which in some cases may diminish the reliability of the testimony but not necessarily reflect
dishonesty. In a couple of particular instances, I have credited one witness over another for the
reasons stated.
I find it appropriate here to cite the well-established precept that “‘[N]othing is more
common in all kinds of judicial decisions than to believe some and not all’ of a witness’
testimony.” Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951).
The trier of fact must consider the plausibility of a witness’ testimony and appropriately weigh it
with the evidence as a whole. Golden Hours Convalescent Hospitals, 182 NLRB 796, 787–799
(1970).
Facts
Based on the entire record, including testimony and my observations of witness
demeanor, documents, and stipulations, as well as the thorough post-trial briefs that the
General Counsel and the Respondent filed, I find the following.
Background
At all times material, the Respondent has been a corporate entity engaged in the sale,
service, and maintenance of tractor trailers and buses at its facilities located in Pataskala and
Columbus, Ohio (the East and West Facilities, respectively). The Respondent has admitted
jurisdiction, and I so find.
The Respondent employs about 100 employees, of whom 30–35 are in the following unit
that the Union has represented for decades: all full-time and regular part-time mechanics,
leadmen, mechanic’s helpers, and mechanic’s apprentices employed at the two facilities.

8 GC Exh. 18.
9 R. Exh. 257.
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The most recent collective-bargaining agreement was effective from November 1, 2006
to October 31, 2009 (the agreement).10 Pursuant to its article 31, both parties gave timely
notice of termination. The parties subsequently agreed to extend it for 2 weeks. Bargaining
over a succeeding contract commenced on September 9, 2009, and has continued to date.
Article 7 of the agreement sets out disciplinary procedures, providing in relevant part that
discipline can be imposed in the form of a warning, suspension, or discharge, and that in
general progressive discipline will be imposed for minor offenses. The Employee Handbook
(handbook) also has a provision on discipline, providing for oral or written warnings, probation,
suspension without pay, or immediate termination, depending upon the facts and
circumstances, with each situation to be considered “in light of a variety of factors including, but
not limited to, the seriousness of the situation, the employee’s past conduct and length of
service, and the nature of the employee’s previous performance or incidents involving the
employee.”11 These are the only written instruments setting out the Company’s disciplinary
policies.
Article 10 of the agreement provides for a probation period of 60 calendar days, subject
to a 30-calendar days’ extension by mutual agreement if requested by the Company.
Employees retained after their probationary period are considered permanent.
Other provisions of the agreement will be set out as they specifically apply to Mason’s
discharge and Ward’s reprimand.
Mason’s Discharge
Before setting out my finding of fact regarding Mason’s discharge, I will explain why I do
not credit either Ray or Mosholder on what occurred and the reasons for the discharge.
Evaluating whether a witness’ demeanor reflects negatively on his or her credibility is not
always easy. However, my observations of Ray and Mosholder lead me to believe that they
were uncomfortable at not being candid. Ray is a manager over approximately 100 employees,
and I would expect him to be more accustomed to speaking in public situations, such as a trial
setting. Yet, he appeared uneasy throughout his testimony, especially when he was testifying
about the circumstances behind his averred decision to discharge Mason. Interestingly,
Mosholder seemed quite comfortable as he testified—until he was asked about the events of
November 30, at which point he clenched his hands on the witness stand, and his relaxed
manner markedly changed.
Demeanor aside, neither Ray nor Mosholder were reliable witnesses. Their testimony
contained internal inconsistencies, they were not fully consistent with one another, aspects of
their testimony did not gibe with the Respondent’s actions, and portions of their testimony were
incredible. In this regard, I bear in mind that the Respondent admittedly allowed Mason to
continue working for nearly 17 months after he lost his ability to drive vehicles that required a
CDL.
The following are flaws in Ray’s testimony that undermine my faith in his credibility.
Ray’s testimony of why he made the decision in late October to issue a letter giving Mason 30
days to get his CDL or face termination (a 30-day letter) was ambiguous: “It was becoming

10 GC Exh. 2.
11 GC Exh. 17 at 24.
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apparent to me that progress was not being made. . . . During the time period leading up to that,
he had even taken a week off with . . . the full intent intention of gaining the CDL, but didn’t
happen. That was kind of a determining factor.”12
Ray first testified that the Company allowed Mason to continue to work after issuance of
the 30-day letter, rather than be suspended without pay as was the normal practice, because he
was a member of the Union’s bargaining committee and “we wanted to be absolutely sure” that
he was “treated fairly.”13 On cross-examination, Ray offered different reasons for Mason’s
special treatment: to avoid financial hardship to Mason and based on “his value to the company
as an employee.”14 However, this testimony that the reason was to avoid financial hardship to
Mason was inconsistent with his earlier testimony indicating that he did not know of Mason’s
financial difficulties until after the discharge.15
Ray testified on direct examination that he had the authority to fire and was the one who
made the decision to terminate Mason. His answer to the question of why he made that
decision was vague to the point of meaningless:16
You know, I’ve—I’m a manger that has 99 other people that—that report to work to that
building every day. And at some point when I give a specific employee specific
instructions with a specific time frame and a specific outcome if they don’t do it, they
really leave me no choice. Because if I don’t take action in that case, I really lose control
in all cases. And if don’t have a standard, I have no standards.
His testimony that he made the decision was further undermined by his testimony on cross-
examination that, prior to the discharge, he consulted with Reilly.17 He provided no specifics of
what they said to one another. As noted, the Respondent chose not to have Reilly testify.
Ray further testified that he first learned from Mosholder as they were going into the
termination meeting that day, that Mosholder had given Mason permission to use a company
truck on December 1 and that Mosholder had suspended him effective December 1 until he got
the CDL.18 This testimony was inconsistent with both his testimony and Mosholder’s that
Mosholder kept him well informed on a regular basis of what was going on with Mason’s CDL.19
As Mosholder put it, they talked about Mason “Every other day.”20 Rather incredibly, Ray also
testified that learning these facts had no impact on his decision.21
Too conveniently, Ray could not recall when he last spoke with Mosholder about Mason
prior to November 30, testifying that he “may have” spoken with him within a week” thereof.22
He further testified that during the 30-day period, Mosholder reported that Mason was not

12 Tr. 855.
13 Tr. 851.
14 Tr. 879–880.
15 Tr. 862.
16 Tr. 857.
17 Tr. 875, 881–882.
18 Tr. 858.
19 Tr. 848–849, 883, 885, 1400–1401, 1437.
20 Tr. 1437.
21 Tr. 860.
22 Tr. 886.
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making progress;23 Mosholder, however, testified that Mason informed him that he had a
scheduled driving test on December 1.
On direct examination, Ray did not testify at all about a conversation with Mosholder on
the morning of November 30. Only on cross-examination did he state that at some point prior to
1:45 p.m. that day, Mosholder recommended that Mason be terminated.24 Suspiciously, he
could not provide a precise time, any other specifics, or even where the purported conversation
occurred.25 On the other hand, Mosholder testified as follows.26 That morning, they had a
conversation in Ray’s office about what to do that day with Mason. They reviewed what had
transpired and determined that they had given Mason 145 days to obtain his CDL (I question
whether they would have had to do this if, as they both testified, they were in regular and
frequent contact about Mason and his CDL). At the conclusion of the meeting, Ray stated that
he wanted some time to think of what his response would be that day.
Mosholder’s testimony was also faulty for many reasons. First, when Mosholder started
working for the Company on July 27, 2009, Ray told him that Mason had lost his CDL. I find
wholly unbelievable Mosholder’s testimony that at least 70 percent of Mason’s duties required a
CDL. Had that been the case, it is inconceivable that Mosholder would have treated Mason’s
lack of a CDL so cavalierly and waited until October 29 of the following year to issue him a 30-
day letter. This is especially unfathomable in light of Mosholder’s following testimony. He had
three journeyman mechanics under his supervision in July, two of whom had CDL licenses. In
late July, when one of the two quit, he hired as a replacement a journeyman mechanic who did
not have a CDL (Cary Reaves). Thus, by Mosholder’s own testimony, he had only one
mechanic who could perform CDL work—despite his testimony that at least 70 percent of their
work necessitated possession of such a license.
In this regard, Mosholder testified about this situation as it existed when he held a staff
meeting on September 7: “[T]he one mechanic was doing all the work, and the other two were, I
wouldn’t say not doing work, but they were not—they were getting out of having to go out on lots
and do different things like that.” 27 If at least 70 percent of the mechanics’ work required a
CDL, then I must seriously question why the Respondent would have been willing to keep
Mason and Reaves on the payroll.
Mosholder’s calendar has notations suggesting conversations with Mason about the
CDL on six dates prior to October 30 (from July 8 to October 29).28 However, his following
testimony causes me to doubt what he said about their contents, except to the extent that
Mason corroborated him. Thus, the notation for July 8 clearly has the word “money.”29 Yet,
Mosholder testified “‛Monday,’ is what it’s supposed to be” and explained that the following
Monday Mason was going to have the answer of why his CDL was not returned back to him with
his regular driver’s license.30 Several factors lead me to believe that this testimony was wholly
contrived: after a year of Mason’s not having a CDL, such testimony makes no sense on its
face; when Mosholder initially related the July 8 conversation, he testified that Mason said he

23 Ibid.
24 Tr. 893–894.
25 Tr. 894–895.
26 Tr. 1409, et. seq.
27 Tr. 1384.
28 R Exh. 277.
29 R Exh. 277 at 1.
30 Tr. 1439.
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was now eligible for his CDL and would be working on getting it;31 and Mason and Mosholder
had no conversation on the following Monday.

Mosholder’s testimony that on the morning of November 30, he recommended that
Mason be discharged does not gibe with the fact that he issued Mason a suspension that
afternoon and said that he could still use a company vehicle to take the test. This is especially
so because Mosholder testified that Ray was “on the same page basically” as far as terminating
Mason.32 If, indeed, Ray told Mosholder in the morning that he (Ray) would decide that day and
was at least leaning toward discharge, I simply cannot fathom why Mosholder admittedly took
the actions he did later that afternoon without waiting to hear Ray’s decision.
Accordingly, for all of the reasons stated, I do not credit Ray or Mosholder as far as their
internal communications concerning Mason or the reasons they proffered for his discharge. As
facts, I find the following.
Mason was employed from July 22, 2000, until his discharge on November 30, or over
10 years. At the time of his termination, he was a journeyman mechanic (also called
journeyman technician) at the West Facility in the Idealease side, one of three under the direct
supervision of Mosholder, who reported to Ray. He worked the first shift, 7 a.m. to 3:30 p.m.,
Monday through Friday. Idealease is a component of the Company that works on trucks that
are leased and rented to customers, as opposed to the International side, which works on
customer-owned trucks. It also performs contract maintenance on customer-owned vehicles.
Mason has served and continues to serve in a number of union positions. He has been
vice president of the local Lodge and delegate to IAM District 54 since August, and chief
steward for the West Facility since July. Previously, since about July 2009, he was the alternate
steward. He also attended bargaining sessions on a regular basis from September 2009, until
approximately August.
Article 29 of the collective-bargaining agreement (GC Exh. 2) provides:
[A]ny new employee . . . will have up to ninety (90) days to apply for [a CDL]. If said
employee has not applied for a CDL License within this time frame, said employee will
be sent home and not allowed to return to work at the Company until they [sic] comply.
The Company and/or the Union can request a thirty (30) day extension. All union
members shall maintain a current CDL and physical card. . . .
The Company has no other written rules or policies addressing the CDL requirement. Both
Gerchy and Ray testified that the disciplinary procedures set out in article 7 of the collective-
bargaining agreement do not apply to the CDL provision.
As a mechanic for Idealease, Mason went out to customers’ locations to work on their
trucks. His job duties included performing preventive maintenance, which encompassed oil
changing and checking brake linings and tire pressure; and repairing or replacing engine
components. After completing repairs, he routinely road-tested a truck to make certain that the
problems were corrected. For vehicles over approximately 26,000 gross vehicle weight,
including tractors and certain straight trucks, a CDL was needed in order to road test them.
Mason testified that 90 percent of his work was mechanical, 10 percent road testing, and that

31 Tr. 1370, 1372. Mosholder also testified that he informed Ray of this on the same day.
Tr. 1372.
32 Tr. 1412.
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about 5 percent of the work he did required a CDL license (prior to July 2, 2009.) After the
Respondent acquired Dayton Freight as a customer in July, about 20 percent of the trucks were
of a CDL size, but most of the work Mason performed on their trucks was on their lot.
Because Mosholder’s testimony on the scope of work that required a CDL was
unreliable, Mason never drove Dayton Freight vehicles when a CDL was required, and no
Idealease technicians who have driven since July 2, 2009 testified about what percentage of
their work is CDL, a precise estimate thereof is impossible. Romine testified that mechanics on
the West Facility’s International side spend approximately 5–15 percent of their time on work
requiring a CDL; Gerchy set the amount as 10 percent. The figure may be higher for Idealease
mechanics but, if so, the Respondent failed to establish this by reliable evidence.
Mason was in possession of a CDL until July 2, 2009, when he lost it for a year due to a
DUI. Mason informed Ray of this the following Monday, Ray responded that this kind of thing
had happened in the past and that they would work through it. Ray professed not to recall what
was said in the conversation and thus did not deny Mason’s account, which I have credited.
Mason’s regular driver’s license was restored after 9 months, but for restoration of his
CDL, he had to retake the written and driving tests after 1 year. During the period that Mason
did not have his CDL, he continued to perform all of his functions other than road testing
vehicles that required such a license.
In late July 2009, Mosholder arrived as his new supervisor. The following July, they had
a conversation about the CDL in the context of the Company’s acquisition of a new customer,
Dayton Freight, a majority of whose trucks were tractors. Mosholder stated that it would be a
good idea for Mason to start looking into reacquiring his CDL. Mason replied that he would.

In another conversation, the date of which Mason could not recall, Mosholder asked
where he was with getting his CDL. Mason also recalled a conversation in late September, in
which he told Mosholder that he would be taking the written test during his vacation the
following week.
Mason testified that he did not immediately take steps to get his CDL because of
financial hardship, in particular costs associated with his DUI, including legal fees. He obtained
his temporary CDL in October, after passing the written test during a vacation week. It allowed
him to drive tractors/large flat trucks as long as someone with a CDL accompanied him in the
passenger seat (he never, in fact, drove with anyone else). He advised Mosholder of this after
returning to work. Mosholder said “good job” and to work toward the next step, the driving
test.33 Mason replied that he would.
On October 29, Mason met with Mosholder, who said that he needed to get the CDL.
Mason replied that he understood that the collective-bargaining agreement required it.
Mosholder gave him a letter dated October 30, stating that he had 30 calendar days to acquire a
CDL or face disciplinary action up to and including discharge.34
In late November, Mason scheduled the driving test for December 1. On about
November 28 or 29 (November 24, according to Mosholder), he told Mosholder this and asked if
he could use a company vehicle rather than have to rent one (the Company had allowed

33 Tr. 47.
34 GC Exh. 3. Mosholder dated it October 30 because that was the end of the month.
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employees in the past to do this, saving them an expense that almost doubled the cost of the
test). Mosholder replied yes. This fact is undisputed.
On the mid-morning of November 30, Mason returned from a job and reported to
Mosholder for his next assignment. Mosholder gave him the key to a brand new cab and
chassis and said this was the truck that Mason would be taking for his CDL test the following
day and that Mason needed to make certain that it was fully prepared. Doing so took Mason
1–1-1/2 hours. He then went back to Mosholder, who gave him job assignments for the rest of
the day.
At about 2 p.m., Mason was working in the shop when Mosholder asked to see him in
the latter’s office. When there, Mosholder said that since today was the deadline, he could not
pay Mason to take the test the following day. Mason replied that he understood and was okay
with that. Mosholder also said that if Mason did not pass the test, he would not be able to return
to work until he acquired his CDL. Mason responded that he was okay with that and had seen
that happen with new hires. Mosholder stated that he did not think Mason would have any
problems passing the test and that Danhauer would drive him to the testing facility. It is
undisputed that Mosholder said that Mason could still use the company truck to take the test.
Mason returned to the job on which he had been working. Within minutes,
Mosholder again came over and asked Mason to accompany him. They went into the
conference room at about 3:15 p.m. Mosholder stated that Mason had made a mistake on a job
and that it was necessary to get his attention with a reprimand. Mason signed it and went back
to work. The Respondent does not contend that this reprimand played any role in the decision
to discharge him.
At about 3:35 p.m., at the time clock, Mosholder told Mason that Ray needed to see him.
They went to the large conference room in the front of the building. Ray and Mosholder told
Robert Romine that he was there solely as a witness. Ray stated that because Mason had not
met the deadline set out in the 30-day letter, his employment was terminated. Mason explained
that financial hardship had caused his delay. Romine and Mason brought up the fact that
Mason had his driving test scheduled the following morning. Ray left and returned with a
termination notice, stating what he had said orally.35 Mason signed it.
A couple of days later, Ward was working when Ray approached and asked how he was
doing. Ward replied that the men were extremely upset over Mason’s discharge. Ray
responded that there were factors about which he could not speak. Ward pointed out that
Mason had the CDL test scheduled for the very next day. Ray stated that he was aware of that,
but there were factors he could not discuss. About 15 minutes later, Ray returned. He said that
if Ward had any further questions about the reasoning for the discharge, Ward had Reilly’s cell
phone number.36 Ward asked if Ray was implying that the decision came from a higher up such
as Reilly or Attorney Mason. Ray nodded and repeated that there were things about which he
could not talk.37
Mason filed a grievance on his discharge.38 The following facts are based on Ward’s
credible and unrebutted testimony of a conversation he had with Reilly on about the date of the
second-step grievance meeting on December 7. Ward was working when Reilly came over.

35 GC Exh. 5.
36 Ray confirmed this portion of Ward’s testimony. Tr. 870.
37 Ray did not deny this gesture or these words.
38 GC Exh. 6.
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They talked about business and morale. Ward stated that the men were very irritated with him
for firing Mason. He asked Reilly if he knew that Mason had his test scheduled for the very next
day. Reilly replied yes. Ward stated that Mosholder had told Mason that if he did not pass, he
would have to acquire a CDL before he returned to work. Reilly replied that he did not know
such conversation had taken place, but either way, Mason was terminated. Ward said that
Mosholder had arranged to use one of their trucks and to have the day off for the test. Reilly
responded that he knew that. Ward asked if Reilly would hire Mason back into his same
position if he acquired his CDL, as the Company had done in the past. Reilly said no, he could
not do it like that any longer, that the Company had to put a stop to rehiring those who did not
get their CDL on time. Gerchy’s testimony confirmed Reilly’s statement regarding the
Company’s past practice of reemploying mechanics suspended for not having a CDL once they
had obtained it.
By January 11, 2011, Mason had passed all components of the CDL test, and he
received his license on January 13, 2011. The following day, he sent a letter to Ray by email,
fax, and regular mail, enclosed a copy of the CDL, and requested reinstatement.39 He never
received any response.
At the second step meeting on December 7, Ray provided documentation relating to two
new employees who received reprimands40 for not acquiring their CDL pursuant to article 29:
David Fyffe and Joseph Oman. The reprimands directed them to receive their CDL’s within 30
days, put them on suspension until they obtained such, and threatened them with discharge if
they did not.
At trial, the Respondent furnished evidence regarding a third new employee, Josh Rose,
who received a reprimand for not having his CDL.41 He was given until December 31, 2009 to
obtain it or face disciplinary action. It is unclear from the record whether he was suspended in
the interim. I will credit Mosholder’s uncontroverted testimony that Rose received his CDL by
the stated deadline and that Reaves quit prior to issuance of a 30-day letter.
The Respondent provided no evidence that any long-term employee, other than Mason,
who had and then lost the CDL was discharged. At no time during negotiations did the
Respondent propose any change to the language in article 29 or to existing policy regarding its
application.
Ward’s Written Reprimand
Discipline for attendance is not mentioned in the agreement’s article on discipline, in the
article on hours of work, or elsewhere in the agreement. On the other hand, the handbook
provides that disciplinary action, up to and including termination, can be imposed for unexcused
absences or repeated failure to provide timely notice of absence or tardiness.42 The
Respondent maintains no other written policy on discipline for absence/tardiness and utilizes no
point system or other method of fixed penalties. Rather, an employee’s immediate supervisor
has the discretion to determine when to impose discipline for attendance matters. At 6 minutes
after the start of the shift time, an employee is considered tardy.

39 GC Exh. 10.
40 GC Exhs. 7, 9, dated March 27 and 26, 2008, respectively.
41 R. Exh. 249, dated December 2, 2009. Mosholder testified that Rose was a new
technician who was approaching his 90-day limit. Tr. 1430.
42 GC Exh. 17 at 12.
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Ward has been employed by the Respondent for nearly 7 years and is one of about
seven journeyman mechanics on the first shift. At times relevant, Shepherd was his immediate
supervisor.
Ward has held several positions with the Union and was chairman of the Union’s
negotiating committee from the outset of bargaining in September 2009, until he resigned from
all union positions in November. In that role he appointed Gerchy, Graves, Mason, and Rodney
Schultz as members of the committee. He was the Union’s lead negotiator from November
2009 to January, when Chema assumed that role.
On or about July 30, 2008, Shepherd issued Ward a written reprimand for unsatisfactory
attendance and punctuality.43 The Respondent’s absentee calendar for Ward for 2008–2009
shows that he was late on August 6, September 11, and October 3, 2008, and on January 9 and
15, April 13 and 22, May 4, 5, and 26, June 2 and 12, July 27, August 31, September 3, and
December 18 and 30, 2009.44 It does not show how tardy he was, and I credit Ward’s
uncontroverted testimony that he was 5–10 minutes late on those occasions.
The record contains four other written reprimands that Shepherd issued to other
employees for attendance/tardiness.45 He has also given oral reprimands to employees for that
reason.
On January 18, the Union made a lengthy information request for a variety of records
pertaining to the Company’s health insurance program, performance reviews, personnel and
attendance policies, and health and safety conditions.46
The following facts concerning subsequent negotiations sessions are based on
Tulencik’s notes, which are very similar to Gerchy’s notes and consistent in substance with the
testimony of Chema, Gerchy, Graves, Mason, and Ward. At the January 25 negotiating
session, during discussion of the above items, Attorney Mason accused the Union of bringing
them up to harass the Company, pointing out that none of them were raised in 2009
negotiations. He also stated that “If you wish to play these games we can play these games
. . . . You can continue to have us scurry around and gather up documents and we will continue
to answer your questions but this has nothing to do with the remaining issues.”47
At this meeting, Rudis stated that employees complained about disparate treatment by
managers. Chema raised the situation of an employee whose performance review indicated
that his attendance record met the guidelines, and Chema asked what those guidelines were.
After a caucus, Attorney Mason returned and stated the Respondent’s attendance policy had
never been a problem in the past. At a later point, Mason stated that, basically, service
managers used their own discretion in determining what is or is not reasonable as far as
absenteeism and tardiness. He further stated that the Respondent had no record of anyone
being discharged and that 6 minutes was the guideline for tardiness. He pointed out that there
was no written policy but that the Union was talking as though they wanted to go down the road
of having a written attendance policy; if so, the Respondent could set up a point system. He

43 GC Exh. 19.
44 GC Exh. 20.
45 R. Exhs. 220, 221, 229, 230.
46 Jt. Exh. 74.
47 R. Exh. 1 at 94.
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added, “This is a double edged sword. All this discretion and no one has yet to be terminated
for an attendance issue. Be darn sure this is the road you want to go down.”48
On January 26, Ward, whose starting time was 7 a.m., clocked in at 7:06 a.m. The
following day, he clocked in at 7:07 a.m.49
On January 27, Service Manager Shepherd, in his office, issued Ward a reprimand for
attendance; specifically, for being late 2 days in a row, on January 26 and 27.50 Mason was
present as Ward’s union representative, and Crist attended as management’s witness.
Ward appeared to be a candid witness, and because he had the greatest personal stake
in what was occurring, I believe that he naturally would have retained the best recollection of
what was said. Moreover, Mason’s more abbreviated testimony was similar. Accordingly, I
credit Ward’s testimony and find as follows.
Shepherd asked if Ward agreed to the arrival times shown in R. Exh. 268, and Ward
replied yes. After receiving the reprimand, Ward asked if he was being picked on for being the
chief steward, the [negotiating committee] chairman, and “everything that was going on,” to
which Shepherd replied, “[Y]ou guys can’t be starting shit at negotiations and not expect it to
trickle down. . . from [my] superiors.”51
As noted above, Mason’s account was similar in substance; to wit, Shepherd said,
“[W]ell, you guys want to make an issue of attendance in negotiations, we’re going to start
enforcing it.”52
By Shepherd’s own testimony, he concededly asked Ward, “Are you trying to make a
point with the Union and trying to set me up as a bad manager in the light of the Union and the
Negotiating Committee, that I don’t discipline on [sic] employees?”53 Thus, even by his own
account, Shepherd admittedly linked the reprimand with the negotiations. Crist did not
corroborate Shepherd or refute Ward’s version because he testified that he had no specific
recollection of the meeting, not even of whether he was there.
Announced Change in Carrying Over Vacation Days
Past practice prior to November 24, 2009, as embodied in article 15 of the most recent
collective-bargaining agreement, was that employees could carry over 3 days of vacation leave
into any dates the following year.
On November 24, 2009, Ray sent an email to supervisors, stating that employees’ use of
the carryover days would have to be “by March 31.”54 After Mason saw it on top of his toolbox
the same or following day, he asked Ray about it. Ray stated that this was going to be the new
policy. Graves also saw the new policy set out, in a document taped on or by the clock that
employees used to punch in and out.

48 Id. at 96.
49 R. Exh. 268; Tr. 622, 1202.
50 GC Exh. 12(b).
51 Tr. at 624–625.
52 Tr. 112.
53 Tr. 1199.
54 GC Exh. 11.
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The Company never notified or bargained with the Union over the change. Ray testified
that he promulgated the change in response to a request from the accounting office and a
recommendation from HR but that after a ULP charge was filed, he rescinded the change and
instructed managers not to implement it.55 The change was never put into effect.
The Long, Arduous Road of Negotiations
Joint Exhibits 1–195 are stipulated to represent all of the written documents exchanged
between the Respondent and the Union pertaining to negotiations through January 28, 2011,
including but not limited to all contract proposals and the information requests that the Union
made. From the outset, both parties expressly stated that they reserved the right to modify or
delete their proposals during the course of negotiations.56
After both parties gave timely notice to terminate the existing contract in August 2009,
their subsequent correspondence discussed meeting dates, with the Respondent advising the
Union that Attorney Mason would be its lead negotiator.57 Attorney Mason was the Company’s
chief negotiator until January 2011, when Reilly assumed the role. At various times, Chema,
Gerchy, Rudis, and Ward served as the Union’s lead negotiator.
The sequence of events that follows is based on the written proposals that were
exchanged, as well as the notes I earlier described. I have omitted certain discussions, several
meetings, and several information requests that I find unnecessary to describe for purposes of
this decision. Nor will I detail all of the acrimonious accusations that flew back and forth almost
from the start of negotiations and intensified as time went on. To avoid a needless number of
footnotes, when more than one joint exhibit pertains to a particular meeting, their numbers will
be set out in a single footnote at the heading of the meeting.
I will not repeat what the parties said on the subject of attendance at meetings prior to
Ward’s reprimand. Encompassed in this section are facts pertaining to the allegations of
unilateral implementation of new health insurance benefits and failure to timely provide the
Union with information regarding the same.
September 9, 2009 Meeting
In its first proposal, the Union stated that it was “comfortable with all of the current
contract language as is with the exception of the wage levels,” and proposed a 5 percent
increase on November 1, 2009, and 4 percent increases on November 1, 2010 and November
1, 2011.58
The parties discussed the IAM trust fund, in particular its financial situation and the
Respondent’s liability for withdrawal.

55 R. Exh. 266, a March 18 email.
56 See Jt. Exh. 9 at 1, Jt. Exh. 12 at 1.
57 Jt. Exhs. 4–7.
58 Jt. Exh. 9.
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October 1, 2009 Meeting59
In its first proposal, the Company orally proposed elimination of the union-shop and
dues-checkoff provisions (articles 2 and 3), as well as the following changes in health and
welfare (article 26). In the expiring contract, employees had a monthly copayment of $22.15 for
individual coverage, and $56.30 for family coverage, which amounted to 20 percent of the cost.
The Respondent proposed a percentage split, with employees paying 30 percent of the
premium on the standard plan and all additional costs for the upgraded plan. It further proposed
a switch in insurance carrier from Medical Mutual to United Healthcare and provided a
comparison of their costs and benefits. The Company also proposed a few modifications in
other provisions in the contract. The proposal placed “No change T/A 10-01-09” under articles
on which it agreed with the Union that they remain unchanged. Wages were deferred for
discussion. The Union made a verbal counter-offer, not agreeing to the Respondent’s
proposals for an open shop, cessation of dues checkoff, or health insurance but agreeing to
some of its more minor proposed changes.
October 5, 2009 Meeting60
The Union essentially adhered to its position at the previous meeting; the Company
modified its earlier proposal on medical insurance to provide that employees pay 28 percent of
the premium for the standard plan. The Union later reduced its wage proposal to 4 percent on
November 1, 2009, and 3 percent on November 1, 2010 and November 1, 2011, and proposed
that employees pay 27 percent of the premiums for both standard and upgraded plans. Still
later in the meeting, the Union proposed that employees pay 25 percent of the premiums for the
standard plan, and all additional costs for the upgraded plan.

October 12, 2009 Meeting61
The Company agreed to the last union proposal on the costs of premiums for health care
insurance, and a tentative agreement was reached on all portions of article 26. However, the
Union refused to agree to implementation of the change in insurer on October 15 until there was
an agreement on wages, and Attorney Mason declared “an emergency under exigent
circumstances” and that implementation would proceed.62 The Respondent proposed
elimination of pension plan contributions ($2.50 per hour) under article 25 and suggested that
such moneys could go toward 401(k) plan contributions.63 The Respondent also made its first
written wage proposal at this meeting, proposing $2.55 for the first year, 1 percent the second
year, and a wage reopener the third year.
October 15, 2009 Meeting64
The Union agreed to delete the pension plan provision, provided that the Company pay
all unvested employees all amounts of the hourly wages they had contributed, and return the

59 Jt. Exhs. 12, 13.
60 Jt. Exhs. 18–21.
61 Jt. Exhs. 23, 24.
62 R. Exh. 1 at 15. The new health insurance went into effect on November 1, 2009 without
the Union’s agreement.
63 R. Exh. 1 at 14.
64 Jt. Exhs. 25–28.
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contribution amount of $2.55 an hour to employees in the form of wages. The Respondent
added voluntary dues-check off language. Later in the meeting, the Union reduced its proposed
wage increases to 3 percent on November 1, 2009, 2.5 percent on November 1, 2010, with a
wage opener on November 1, 2011. The Company responded with a wage proposal of $2.55
for the first year after the unvested employees were refunded contributions on their behalf, 1
percent for the second year, and a wage reopener in the third.
Chema emphasized the importance of union security and dues checkoff to the Union.
He also accused the Respondent of using what would be pension contributions to pay for the
wage increases.
November 5, 2009 Meeting65 and Aftermath
The parties agreed, pursuant to the Union’s October 22 request, that the current
collective-bargaining agreement be extended 14 days, to November 14, 2009. The Union
changed its wage proposal in that wages for the third year would be increased 2 percent, and it
withdrew its previous pension proposal and replaced it with $2.60 per hour on November 1,
2009, $2.65/hour on November 1, 2010, and $2.70/hour on November 1, 2011. The
Respondent proposed that the $2.55/hour wage increase would not go into effect until moneys
up to $130,000 was divided among employees who were not vested in the pension plan. The
Respondent also raised from 1 percent to 1.5 percent its wage increase offer for the second
year. The Union returned to its October 15, 2009 wage proposal, and the Respondent repeated
its latest proposal. Finally, the Union submitted a proposal that did not change its previous
proposals but added that the agreement would be subject to reopening by either party on
November 1, 2010 for purpose of negotiation of health insurance benefits and on November 1,
2011, for the purpose of negotiation of health insurance benefits and wages, with such notice to
be given at least 60 calendar days in advance.
Ward asked why the Company felt the need for an open shop, and Attorney Mason
responded that skilled mechanics were difficult to obtain and that approximately 25 percent of
the applicants did not want to work for the Company when they learned it was a union shop.
On November 6, 2009, Ward requested, as soon as possible, information that included a
summary of current medical and other health insurance benefits, the number of unit employees
and their dependents in each insurance classification, and a breakdown of total cost coverage
for such benefits.66
On November 9, 2009, Ward requested an assortment of documents that related to 1)
applicants for unit positions who had refused offers of employment because there was a union
shop; 2) benefits to the Company from eliminating the IAM pension plan and having employees
contribute to 401(k) plans; 3) wages and other benefits, including medical and other health
insurance, paid to nonunit employees; 4) how the Company determined a new employee’s level
of classification; and 5) work rules currently in force.67
By letter dated November 19, 2009 to Ward, Attorney Mason stated that the information
he had requested would be available at the November 20, 2009 bargaining session. No such
meeting in fact took place, but Attorney Mason subsequently furnished information responsive

65 Jt. Exhs. 31–37.
66 Jt. Exh. 38.
67 Jt. Exh. 39.
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to the request.68 As to item 1 above, Attorney Mason represented that over the past 3 years,
the Company had interviewed only six of the approximately 18 applicants for unit positions and
that it had documentation that two of the six had advised that they did not want to pay union
dues: Danhauer and Dorr.69
November 12, 2009 Meeting70
The Company proposed that the agreement be subject to reopening by either party on
November 1, 2011 for negotiation of wages only. The Union changed its pension proposal to
provide that pensions for the third year would be determined at the pension reopener, and it
modified its reopener language to drop the subject of health insurance and to add the subject of
wages. The Company resubmitted its prior offer.
Attorney Mason stated that the Respondent would continue to honor the terms and
conditions of employment set out in the collective-bargaining agreement but would no longer
deduct union dues effective November 15. The Company, in fact, stopped doing so at the
expiration of the agreement.
December 7, 2009 Meeting71 and Aftermath
The Union changed its last wage proposal to provide for a wage reopener in the second
year, instead of a 1.5 percent wage increase. The Respondent proposed $2.55/hour increase
the first year and reopeners the second and third years, and added that no pay raises would be
retroactive. The Union dropped from 3 percent to 2.9 percent its wage increase proposal for the
first year. The Respondent resubmitted its prior proposal.
The Union requested the Company’s financial records. Ward stated that the Union
was continuing to propose retention of the union-security, dues-checkoff, and pension
provisions in the agreement.
By letter dated December 8, 2009 to Ward, Attorney Mason stated that the Company
would not produce its financial records because the Company was not claiming economic
hardship or inability to pay in response to the Union’s proposal for a 2.9 percent wage increase;
rather, the Company did not see any reason why it should pay increased wages that would
make it less competitive.72 He accused the Union of engaging in ULP’s.
The next day, Ward sent Reilly a “negotiations update and information request,” wherein
he voiced objections to the way Attorney Mason was conducting negotiations, and requested
information pertaining to: 1) business plans and reviews; 2) how removing the IAM pension fund
and union-security provisions would benefit employees and the Company; 3) verification that the
Respondent’s proposed pension payouts to unvested employees were accurate; and 4) labor
rates and other charges paid by customers at both locations.73

68 Jt. Exhs. 43, 44.
69 Jt. Exh. 44 at 1–2.
70 Jt. Exhs. 40–42.
71 Jt.Exhs.45–49.
72 Ibid.
73 Jt. Exh. 50. Attorney Mason responded to his by letter dated December 29, 2009 to
Ward. Jt. Exh. 69.
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December 11, 2009 Meeting74
The Union reduced its first-year wage rate proposal from 2.9 to 2.7 percent. The
Respondent eliminated language about wage rates not going to effect until unvested employees
were refunded. The Union then reduced its first-year wage rate proposal to 2.6 percent. The
Respondent resubmitted its prior proposal, the Union reduced it wage rate proposal to 2.5
percent for the first year, the Respondent resubmitted it last proposal, and the Union lowered its
first-year wage increase proposal to 2.4 percent. The parties continued to voice their
disagreement over union-security and dues-checkoff provisions.
December 14, 2009 Meeting75
The Union proposed keeping the status quo for 1 year in union security, union-dues
checkoff, job classifications and wages, and pensions; the Respondent resubmitted its last
proposal; the Union dropped the wage increase proposal to 2.5 percent; the Respondent
resubmitted its last proposal; the Union lowered its proposed wage increase to 2.2 percent; the
Respondent resubmitted its last proposal; the Union reduced its proposed wage increase to 2.1
percent; the Respondent resubmitted its last proposal; the Union reduced its proposed wage
increase to 2 percent; and the Respondent resubmitted its last proposal.
January 7 Meeting
Chema orally proposed that the Union would accept the Company’s proposal, including
both health insurance and cessation of the pension plan, if the Company agreed to union-
security and dues-checkoff provisions.76 Attorney Mason checked with “the highest levels of the
Company,” 77 i.e., Reilly, and then informed Chema that his offer was rejected.
As detailed hereinafter. the Union subsequently submitted a number of new proposals
on matters on which the parties had previously reached TA’s.78
January 11 Meeting79 and Aftermath
The Union proposed a wage increase of 2 percent increase effective on November 1,
2009, with COLA’s on November 1, 2010 and November 1, 2011, based on the consumer price
increase; and staying with the current contract language on pensions. The Respondent
resubmitted its last proposal (of December 11, 2009).
By letter dated January 13 to Chema, Attorney Mason accused the Union of engaging in
a pattern of delaying negotiations; Chema denied this in a letter dated January 14.80

74 Jt. Exhs. 51–57.
75 Jt. Exhs. 59–68.
76 Gerchy’s testimony, Tr. 312, which was consistent with Attorney Mason’s account. I
credit them over Chema’s denial that he said such.
77 Tr. 1294.
78 See GC Exh. 15, which lists them.
79 Jt. Exhs. 70, 71.
80 Jt. Exhs. 72, 73.
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On January 16, Chema made an information request regarding overtime hours from
November 1, 2009, through January 17; hourly wage increases since November 24, 2009;
vacations taken in 2009; and various types of insurance benefits paid to employees in 2009.81
On January 18, Chema made an additional information request, asking for 1) attendance
policy and records of employees suspended or terminated for 2007, 2008, and 2009;
2) performance reviews for the same period; and 3) complaints about unsafe conditions and
other documents showing such for 2007–2009.82
By letter dated January 18, Attorney Mason responded to both requests, stating that
some of the information was nonexistent and that available records would be furnished the next
day.83
On January 22, Chema requested information concerning the Respondent’s estimated
withdrawal liability from the IAM pension fund and the effect on employees; and detailed
information about the Company’s 401(k) plan.84
On January 25, Chema requested information regarding 1) the Company’s estimated
liability for withdrawal from the IAM pension plan; 2) its workers’ compensation costs since
2007; 3) transfers of unit employees since 2007; and 4) transfer/temporary assignments policies
and/or practices.85 Chema made another information request on January 31, relating to health
and safety investigations conducted the Respondent’s vendor on about January 29 and
thereafter.86
January 22 Meeting
The Union brought up what it described as a list of health and safety concerns. The
parties also discussed open shop and pensions.
January 25 Meeting
The parties discussed health and safety issues, as well as the Company’s policies on
attendance.

February 4 Meeting87
The Union proposed a new article entitled “Joint Health and Safety Committee.” The
Respondent resubmitted its last offer.

81 Jt. Exh. 76. All of the Union’s information requests were addressed to Reilly, unless
otherwise specified.
82 Jt. Exh. 74.
83 Jt. Exh. 75.
84 Jt. Exh. 194.
85 Jt. Exh. 77.
86 Jt. Exh. 78.
87 Jt. Exhs. 79, 80.
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The parties discussed health and safety matters, and pension and 401(k) contributions.
Attorney Mason stated that the Respondent would not pay the $1000 the trust fund required to
calculate the Company’s pension withdrawal liability.
The parties also discussed attendance/tardiness. Rudis accused the Respondent of
disparate treatment in discipline for attendance, in particular against the men on the bargaining
committee, and Attorney Mason accused the Union, in so many words, of instigating employees
to test the attendance policy and “to become a martyr.”88

February 24 Meeting89
The Union proposed a new article, “Attendance at Work,” including a schedule of
progressive discipline for unexcused absences. The Respondent continued to propose its offer
of December 11, 2009. The parties continued discussing attendance/tardiness, alluding to
Ward indirectly if not by name.

February 26 Meeting90
The Union proposed a new article, “Injured Employee,” regarding pay and other benefits
for injured employees. The Respondent resubmitted its December 11, 2009 proposal. The
parties further discussed health and safety issues. Rudis said to the effect that TA’s had no
meaning without a full agreement.
March 5 Meeting91
The Union proposed a new article, “Discharge and Discipline,” articulating a “just and
sufficient cause” standard and procedures for its adjudication. The Respondent resubmitted its
December 11, 2009 offer. The Union next proposed a new article, “Follow All Work,”
concerning the temporary or permanent relocation of unit work to other locations, or
establishment of such work elsewhere. The Company again resubmitted its December 11,
2009 proposal. The Union then proposed another new article, “Information to be Furnished to
the Union,” providing that the Respondent furnish a variety of employee records on request.
March 10 Meeting92 and Aftermath
The Respondent proposed that the first year’s wage increase be $2.55 plus a .75
percent increase. The Union proposed a new article, “Attendance Incentive Vacation Time and
Pay,” providing added vacation time for good attendance, as well as procedures for putting in for
vacation time. The Respondent presented what it entitled its “Last and Final,” in which it raised
the .75 percent increase to 1.25 percent.

88 R. Exh. 1 at 106.
89 Jt. Exhs. 82, 83.
90 Jt. Exhs. 85, 86.
91 Jt. Exhs. 88–92.
92 Jt. Exhs. 93–95.
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That same day, Chema requested that a representative of KPA, the Company’s
contracted safety vendor, meet with the Union’s negotiating committee and answer questions
concerning its safety inspection on about January 29 and thereafter.93
Attorney Mason, by letter of March 15 to Chema, advised that the Federal mediator was
withdrawing from participation in negotiations, and rejected the Union’s request to have a
representative from KPA attend negotiations.94 Chema, by letter of March 18, reiterated the
Union’s request and set out why.95 He also requested information regarding unit employees’
current contributions to the Respondent’s 401(k) plan and unit employees employed for 2008,
2009, and 2010, including classifications and pay.
March 18 Meeting96
The Union proposed a new article, “Hourly Job Evaluation Plan,” providing a procedure
for the Union to play a systematic role in job training, planning, and development. The
Respondent resubmitted its last and final offer from March 10. The Union also proposed a new
article, “Job Classifications,” providing descriptions of each of the 10 job classifications. The
Respondent resubmitted its last and final offer of March 10.
The Company’s 401(k) plan representative answered questions about the plan.

March 26 Meeting97
The Union proposed a new article, “Apprenticeship,” which included institution of a joint
management-labor apprenticeship committee, as well systemizing their selection and
progression. The Respondent resubmitted its last and final offer of March 10. The Union
proposed another new article, “Wellness Benefit,” providing employees reimbursement for
physical fitness services and medical/preventative services. The Respondent resubmitted its
last and final offer. The Union proposed a third new article, “Shift Hours,” setting out hours of
work, including lunch and break times, for the first, second, and split shifts. The Respondent
resubmitted its last and final offer.98
The Union presented a slide presentation showing what it contended were health and
safety deficiencies at the facilities.
April 1 Meeting and Aftermath
The parties discussed prior proposals. Following the meeting, Chema requested
documents pertaining to health and safety inspections of the facilities on January 29 and March

93 Jt. Exh. 195.
94 Jt. Exh. 96.
95 Jt. Exh. 97.
96 Jt. Exhs. 98–101.
97 Jt. Exhs. 102–105.
98 Jt. Exh. 107.
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29, and thereafter.99 On April 7, Chema asked for reports relating to those inspections, as well
as information pertained to what the Union characterized as health and safety hazards that it
had identified.100
April 9 Meeting101
The Union resubmitted its February 4 proposal for a joint health and safety committee
article, and the Respondent again resubmitted its March 10 last and final offer.
April 15 Meeting and Aftermath
The parties discussed health and safety matters. The director of the Machinists’ High
Performance Work Organization gave a presentation on how his organization could work with
management and the Union to enhance employee performance.
Following the meeting, Chema requested the following:102
1. April 17 – documents for the past 5 years concerning workers compensation, OSHA
reports and other environmental and health records, and equipment inspection and repair
reports.
2. April 18 – all evaluations and pay increases since January 1.
3. April 20 – information and access to KPA concerning KPA’s inspections on January
29 and March 29, and thereafter; the Company’s records of the March 29 inspection; and
actions the Company had taken to correct the health and safety defects that the Union had
uncovered.
April 22 Meeting and Aftermath
At the meeting, the parties discussed Company policies on performance evaluations and
shift transfers.
On April 24, Chema requested performance evaluations for eight-named employees,
which Tulencik provided by mail and email on April 28.103 On April 30, he requested copies of
training materials and the timeframe of each training class on hazardous materials.104
May 4 Meeting
The parties again discussed performance evaluations and shift transfers. as well as
health and safety.

99 Jt. Exh. 108.
100 Jt. Exh. 109.
101 Jt. Exhs. 110, 111.
102 Jt. Exhs. 112–114.
103 Jt. Exh. 115.
104 Jt. Exh. 117.
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May 6 Meeting
The Union resubmitted its March 18 proposal on hourly job evaluation plan, based on
information that different managers were using different sets of standards.105 Attorney Mason
stated that the current system was fine, and he orally repeated the Company’s March 10 final
offer.
May 7 Information Request and Response
Chema repeated the Union’s requests at negotiations for documents pertaining to the
safety and health inspections that were completed at the facilities on about March 29.106 By
letter of May 10, Attorney Mason responded with a reiteration of his response at negotiations:
the requested report, prepared in anticipation of possible litigation, was privileged and therefore
would not be provided.107
May 10 Meeting
The Union proposed a new article, “Sale, Transfer and/or Closure of the Business,”
providing that the Union receive advance notice of such and that any successor recognize the
Union and comply with the terms and conditions of the existing collective-bargaining
agreement.108
May 25 Meeting109
The Company resubmitted its March 20 last and final offer. The Union proposed a
revised version of the successorship article that it had presented at the previous meeting. The
Company submitted a new proposal on health and safety, including language on formation of a
joint safety and health committee. The parties discussed KPA as the Company’s safety vendor.
June 4 Meeting and Aftermath
The Union made a counter-proposal agreement (39 pp.) to the Company’s proposals
through and including June 4, and incorporating all of the Union’s proposals to date.110 Attorney
Mason questioned whether this had the result of the parties starting all over. Chema stated that
the Union was withdrawing all of the TA’s, just as the Company had done.111

By June 25 letter, Attorney Mason asked Chema to identify all the changes and/or
differences between the expired collective-bargaining agreement, the Union’s previous
proposal, and the June 4 proposal.112 Chema responded by letter of June 27, accusing the
Respondent of bad-faith bargaining over the past 9 months.113

105 Jt. Exh. 118.
106 Jt. Exh. 119.
107 Jt. Exh. 120.
108 Jt. Exh. 121.
109 Jt. Exhs. 124–126.
110 Jt. Exh. 127.
111 R. Exh. 1 at 251; Tr. 1052–1053.
112 Jt. Exh. 129.
113 Jt. Exh. 131.
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June 28 Meeting and Aftermath
Attorney Mason reiterated that the parties were starting over. Chema responded no,
that the Union’s proposal was a counter-offer that incorporated provisions that brought the
contract up to current times and made it consistent with other labor agreements. He also
responded that the parties no longer had TA’s.
That same day, Chema made an information request asking for 1) any changes in safety
and health policies since September 2009; 2) current list of bargaining-unit employees; 3) unit
employees who sustained any work-connected injuries or accidents for the last 3 years; 4)
workers compensation claims for the last 3 years; 5) costs associated with correction of unsafe
conditions since September 2009; 6) attendance records and disciplines for such issued to unit
employees since January; 7) disciplines issued since September 2009; 8) unexcused absences
since January; 9) starting wage rates of all unit employees and any changes made in wages or
job classifications since September 2009; 10) estimated costs of all of the above; 11) costs
associating with complying with safety and health standards set by law; and 12) KPA and any
other reports identifying unsafe conditions since January, and corrective actions taken by the
Respondent to address such.114
July 16 Meeting115
The Union proposed a new article, “Machinists Custom Choices Worksite Benefits,”
providing employees with supplemental insurance benefits. The Company made a last and final
offer, incorporating all of its proposals through May 25, but withdrawing the joint safety and
health committee proposal it had made on May 25.
July 22 Meeting and Aftermath
Attorney Mason stated that the Company’s last and final offer remained the same and
that provisions that had been TA’ed were now the Company’s proposals.
On July 23, Chema requested information relating to safety and health: conditions,
violations, training, and reports, including those of KPA.116 On August 4, Chema requested
information relating to instructions and actions the Company had taken since January 10
concerning a variety of safety conditions.117

By August 11 letter to Chema, Attorney Mason responded to the Union’s information
requests of July 22 and 23 and August 4 and 6.118 He opined that the Union’s repeated
information requests reflected the Union’s engagement in surface bargaining. By letter of
August 12, Tulencik provided documents concerning recent safety training.119

114 Jt. Exh. 130. He repeated this request by a letter of August 6, in which he expanded on
some of the information sought. Jt. Exh. 138.
115 Jt. Exhs. 132–133.
116 Jt. Exh. 135.
117 Jt. Exh. 137.
118 Jt. Exh. 139.
119 Jt. Exh. 140.
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By August 19 letter, Chema contended that the Company’s responses to portions of the
information requests concerning safety and health and wages and job classifications were
incomplete, and he reiterated those requests.120
August 19 Meeting121 and Aftermath
The Union resubmitted its June 4 and July 16 proposals, and the Company resubmitted
its last and final offer of July 16. At this meeting, many of the statements were in the form of
accusations. Attorney Mason mentioned that if the Union refused to make any changes, the
parties might be at an impasse.
By letter of August 24, Chema repeated that information the Respondent had provided in
response to the Union’s July 22 and 23 and August 4, 8, and 20 [sic] requests was incomplete
as to safety and health and employee wages and job classifications, and he reiterated such
requests.122
August 27 Meeting123 and Aftermath
The Union proposed a safety and health provision concerning the OSHA Voluntary
Protection Program (VPP). The Respondent resubmitted its July 16 last and final offer. The
parties’ leveling of accusations against one another continued.
Chema brought up the expiration of health care coverage and expressed the Union’s
desire to get information as soon as possible so that the situation that had occurred in 2009
would not be repeated. Attorney Mason stated that the Company could not get quotes until 60
or 90 days at the earliest. Rudis requested that the information be provided to the Union as
soon as it was available, and Attorney Mason agreed.
After the meeting, Chema requested information concerning the Respondent’s
compliance with OSHA laws and regulations.124

September Correspondence
By September 12 letter to Attorney Mason, Rudis stated that he was assuming the role
of the Union’s chief negotiator, and he suggested dates for future bargaining sessions.125 In a
series of subsequent correspondence, they discussed their availability, as well as traded
accusations concerning their respective positions over past practice concerning union presence
at grievance meetings.126

120 Jt. Exh. 141.
121 Jt. Exhs. 142, 143.
122 Jt. Exh. 144.
123 Jt. Exhs. 146, 147.
124 Jt. Exh. 145. The attachments appear to represent information that the Company
provided in response. In any event, Attorney Mason and Tulencik also sent responses on
September 17 and 21, respectively. Jt. Exhs. 155, 159.
125 Jt. Exh. 148.
126 Jt. Exhs. 149–154, 156, 157.
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September 23 Meeting
Gerchy raised the subject of health insurance coverage. Attorney Mason responded that
current coverage expired on October 31, and that the Company was in negotiations with United
Health Care (UHC)and another provider, with an increased cost likely. Rudis asked when the
Company would have information to share, and Pesta replied by the end of the month. He also
stated that the Union would get it the minute that the Company did. Rudi suggested interim
bargaining over continued health insurance coverage. Later in the meeting, Attorney Mason
stated that there would be an 8.9 percent increase in employees’ out-of-pocket costs for UHC
but that the company was also looking at Medical Mutual. At some point during the meeting,
Attorney Mason stated that the Company was going to be ready by the end of October to
institute a new insurance plan for both unit and nonunit employees and that it typically took 30
days for an insurance carrier to process the paperwork.
September 24 Information Request and Response
Rudis sent an email to Attorney Mason, Tulencik, and Pesta, requesting information on
medical coverage, including 1) employee census information; 2) any claims over $75,000 during
the past 12 months; 3) monthly claim experience for the past 12 months; and 4) monthly
enrollment for the past 12 months.127 He stated that the Union needed an immediate response
due to the pending expiration of current medical coverage.
Tulencik responded by letter of September 29, providing information that the Company
maintained and indicating that other information was not available.128 It did not have
information about nonunit employees or medical and drug expenses.
October 5 Meeting and Aftermath
The day before the meeting, via an email, the IAM Benefits Trust Fund advised Rudis
that in order for the fund to provide a binding quote, it would need a completed medical profile
form and a benefit summary of current benefits, and that the cost of the current plan would be
“exceedingly helpful.”129
At the meeting, the Respondent proposed the following, as described by Colston and
Taylor.130 There would be a 14-month health care plan beginning on November 1 and ending
on December 31, 2011, with a 10.7 percent increase from the current plan, shared 25 percent
by the employee and 75 percent by the employer in the base plan. Rudis said that he was not
happy at not being provided information for the total number of bargaining and nonunit
employees using the plan, because it was a combined plan, and the Union needed information
for both groups to “value” the program.131
Rudis testified that Pesta stated that the Company would accept only a single proposal
that included nonunit employees. Pesta denied saying this. Gerchy’s notes reflect that Pesta
said that the Company would not entertain a proposal that would provide for no increase to unit

127 Jt. Exh. 161.
128 Jt. Exh. 163.
129 GC Exh. 27.
130 See Jt. Exh. 165; Jt. Exh. 177 at 2, 3.
131 R. Exh. 2 (Wahoff’s notes); R. Exh. 264 at 113 (Gerchy’s notes).
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employees but an almost 16 percent increase for those not in the unit.132 Wahoff’s notes on the
point are more summary in nature. In all of the circumstances, especially considering that
Gerchy’s notes were taken at the time, I find them to be the most accurate account of what
Pesta said.
After the meeting, Rudis sent Pesta an email, stating that he had spoken with Wahoff
and had follow-up questions, 1) the total number of plan participants, including unit and nonunit
employees; and 2) how many dependents were covered in the plan.133 He also sent Attorney
Mason a letter requesting additional information in order for the Union to understand the
specifics of the Company’s proposal and to provide a timely response.134 He asked for non-
bargaining unit employees using the plan, because it was a combined plan, and the Union
needed information for both groups.
Attorney Mason replied by letter of October 7.135 He stated that a summary of the
current plan would be provided at the next day’s negotiations but that medical profiles of
individual employees would not be furnished. He further said that the Company had requested
information from the insurance company that would enable the Union to get quotes for the unit
but that he doubted the Union could secure coverage for employees this late in the process.
Attorney Mason also stated that the number of covered unit employees and dependents would
be furnished to the Union the following day but that the Union did not represent nonunit
employees, for whom the Company intended to secure health insurance coverage. Finally, he
said that the Respondent was “declaring an emergency regarding the insurance for the
bargaining unit,” because there had to be an agreement with an insurance carrier by October
15, since the normal enrollment period was 30 days before the effective date (which would be
November 15).
Rudis responded by an October 7 email, complaining about the way the Company had
notified the Union about its health insurance proposals and stating that the Union had made
repeated requests for such information prior to September 23.136 He further stated that it was
the Company’s determination to include nonunit employees and that without the needed
information, the Union was unable to rate and determine if the Company’s proposal had merit.
Rudis also sent an email that day to Reilly, repeating his request for copies of the current
summary plan and the new summary plan, as well as the other information in the October 5
information request.137
October 8 Meeting and Aftermath
The Union made a group health insurance proposal that the parties agree, commencing
on November 1, to retain the current health care coverage without any changes for the full term
of the negotiated contract; the Union further proposed a joint labor-management health and
hospital benefits provider search committee.138 The Company provided benefit summaries for
the new 14-month health insurance plan and how it compared with the existing plan. Wahoff

132 R. Exh. 264 at 113–114.
133 Jt. Exh. 164.
134 Jt. Exh. 167.
135 Jt. Exh. 168.
136 Jt. Exh. 169.
137 Jt. Exh. 170.
138 Jt. Exhs. 171, 172.
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stated that the cost would go up 16 percent with the grandfathered carrier, but only 10.7 percent
with the new 14-month plan.
Attorney Mason responded on October 11, rejecting the Union’s proposal and
resubmitting its 14-month insurance proposal.139 He reminded the Union that the parties had
until October 15 to agree upon insurance. That same day, Wahoff emailed Rudis the dates the
Company had received insurance information regarding renewal.140
October 14 Meeting and Aftermath
The Union made another group health insurance proposal, conditionally agreeing to the
Company’s proposed 14-month group health care coverage commencing on November 1.141
The conditions were: 1) On November 1, the Respondent institute the Union’s wage proposal of
June 4 retroactive to November 1, 2009; 2) no later than November 15, the Respondent agree
to meet with the Union for the purpose of forming a joint labor-management health and hospital
benefits provider search committee and then work cooperatively to obtain comparable coverage
at competitive rates. Taylor provided the number of unit employees in both the standard and
premium health insurance plans.

By letter dated October 14, Attorney Mason rejected this offer and resubmitted the
Company’s 14-month insurance proposal originally submitted to the Union on October 5.142
On October 15, Attorney Mason sent Rudis a letter, stating that having received no
further union proposals for health insurance, he was declaring an impasse and unilaterally
implementing the Company’s last offer, rather than leave unit employees with no health
insurance.143 Accordingly, he had notified the insurance company of the Respondent’s
acceptance of its proposal and requested that it begin their enrollment as soon as possible.
Rudis replied by letter of the same date, stating that the Union believed the subject was
still open and on the table, and suggesting that the Company maintain the status quo until such
time as they reached an agreement.144 He criticized the way Attorney Mason had handled the
matter.
Later that day, Attorney Mason responded, objecting to Rudis’ characterization of his
motives and repeating that the Respondent had only the two options he described in his earlier
letter.145
By letter of October 20 to Attorney Mason, Rudis again requested that the Respondent
maintain the status quo without modification until such time as the parties reached agreement,
and proposing meeting in negotiations until the group insurance matter was resolved.146
Attorney Mason, by letter of October 28, replied that there was no need to meet on insurance

139 Jt. Exh. 173.
140 Jt. Exh. 174. Apparently, Company representatives met with the current insurance
carrier on August 26 and were advised of a 17 percent increase in costs.
141 Jt. Exhs. 175, 176.
142 Jt. Exh. 177.
143 Jt. Exh. 178.
144 Jt. Exh. 179.
145 Jt. Exh. 180. The new plan went into effect on November 1.
146 Jt. Exh. 181.
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because the Respondent had unilaterally implemented its proposal on October 15 for 1 year.147
In response, Rudis sent a letter later that day, contending that the Respondent had refused to
provide necessary information in a timely manner and unlawfully unilaterally implemented the
new group health care plan.148
November 4 Meeting
The Union proposed that it would agree to the Company’s October 14 group health care
coverage, conditioned under reimbursement retroactive to November 1 to employees for their
increased out of pocket costs, and establishment of a joint labor-management health and
hospital benefits provider search committee.149
November 7 Meeting and Aftermath
The Union presented a proposed complete agreement, incorporating its prior proposals
and providing that the Company bear all expenses for group health insurance except for a $15
per pay period for single coverage and $25 per day for family coverage, to be paid by
employees.150 Rudis stated that he was not satisfied with the Company’s proposed new plan
because of its extra costs and benefit limitations.
Attorney Mason, by letter of November 7, repeated that health insurance was a moot
issue and submitted a last and final offer incorporating the Respondent’s previous proposals.151

November 11 Meeting
The Union proposed another complete agreement,152 substantially similar to the one it
proposed on November 4, with a few modifications or additions. Tulencik’s notes of November
11 and December 8 reflect that the Respondent also submitted a last and final offer, but it is not
in the record.
Attorney Mason suggested that the parties were at impasse, to which Rudis voiced
disagreement. Attorney Mason stated that the Union had given no proposals on health
insurance from a carrier even though the Company had provided it with the information. Rudis
responded that the Union had been unable to get quotes because the Company had a
combined plan. The parties engaged in extensive discussions regarding safety and health.
November 11 Information Request and Response
Rudis requested all correspondence that the Respondent had had with insurance
carriers, including their responses and bids.153
By letter of November 11, Attorney Mason stated that he saw no movement toward any

147 Jt. Exh. 182.
148 Jt. Exh. 183.
149 Jt. Exh. 184.
150 Jt. Exh. 185.
151 Jt. Exh. 187. Rudis responded in a letter of November 7, repeating his earlier
contentions. Jt. Exh. 186.
152 Jt. Exh. 188.
153 Jt. Exh. 189.
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agreement, that the parties were at an impasse, and that further negotiations were
unnecessary.154 He re-sent the Respondent’s last and final offer of November 7.
2011 Meetings
In January 2011, the parties held several meetings, with Reilly present in lieu of Attorney
Mason. They discussed union security, mitigation of the Respondent’s liability from pension
fund withdrawal, and health insurance. At the January 26 meeting, Reilly presented a contract
proposal, according to both Wahoff’s and Gerchy’s notes, but it is not in evidence.
On February 7, 2011, Pesta provided the Union with information that included census
information for all employees, unit and nonunit; all types of coverage they had (employee only,
employee-spouse, and employee-family); and the totals of their medical and drug coverage.155
The Respondent’s Basis for Eliminating the
Union-Security and Dues-Checkoff Provisions
Statements made during negotiations were covered above. Former Manager Shepherd
was the sole witness with first-hand knowledge of this matter to testify on the Respondent’s
behalf. He interviewed about 25–30 applicants for the mechanic position for the 3-year period
prior to October 31, 2009. Of the approximately 20 who were offered positions, 13 declined. Of
those, about half cited union considerations and other factors such as benefits (wages) and shift
preferences. None of those who gave reasons for their declination cited only union dues. The
other 50 percent provided no reasons. He reported to Reilly that the number one reason for
declinations was wages, the second union considerations.
Technician Danhauer had a prehire interview with Teresa Pekarcik of human resources
in early November 2009. In relevant part, she asked if he would be willing to work there if the
shop was not union, and he replied yes.156
Applicant Dorr applied for the entry-level mechanic position in 2009. Pekarcik
interviewed him. In relevant part, she asked if he wanted to pay union dues, and he replied that
he would prefer not to but that it would not be a determining factor in whether he would take the
job.
The Respondent’s Memoranda to Employees
During the lengthy process of negotiations, the Respondent issued to employees nine
memoranda on the subject.157 The Union also circulated such memoranda, four of which are in
evidence.158
The General Counsel alleges that three of the Respondent’s memoranda
misrepresented the status of negotiations, had the effect of disparaging the Union so as to

154 Jt. Exh. 192.
155 GC Exh. 29.
156 Based on his testimony at Tr. 540, as refreshed by the NLRB affidavit he gave on
November 9 with his personal attorney present. GC Exh. 18.
157 GC Exhs. 14–16 (those the General counsel contends unlawful) & R. Exhs. 206–208,
212, 213.
158 R. Exhs. 215, 216, 244, 245.
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undermine employee support for the Union, and/or interfere with the Union’s internal processes:
the March 12, April 2, and July 16 “negotiations update.”
The March 12 memorandum, from Pesta, stated, inter alia, the following. On January 7,
the parties were very close to agreement, with the Union having agreed to freeze wages the first
year, terminate the pension plan, and take the $2.55 from the pension contribution and place it
into the basic wage rate, if the Company continued a closed shop and mandatory dues
deductions. The Company rejected that offer. Since then, the Union had refused to drop those
two issues. The Union had other contracts with open-shop provisions. On March 10, the
Company increased its wage proposal to add a 1.25 percent increase on top of the $2.55. The
Company also made a “last and final” proposal and asked the Union to submit it to employees
as soon as possible; “We urge you to vote for this proposal.”
The memorandum went on to say why employees should vote for the proposal; that
since January 7, the Union had submitted proposal after proposal; that by its latest mailer, the
Union was preparing for a strike, claiming the Company had not bargained in good faith (a
charge that the NLRB had dismissed); and that the normal practice was that a union would take
a company’s last and final offer to the membership for a vote, but the Union had advised the
Company that it would not do so.
The April 2 memorandum, again signed by Pesta, stated that the Federal mediator had
withdrawn from negotiations. It listed 15 new items that the Union put on the table after January
7, stating that each new proposal placed the parties further apart from a new agreement, that
the Company had rejected them since they were TA’ed or not an issue as of January 7, and that
the Company continued to resubmit its last and final offer and requested a vote by the members
thereon. It went on to repeat that the only issues on January 7 were the open shop and dues
deductions and that the Company had raised its wage proposal since then. The memorandum
ending by urging employees to notify the Union that they wanted a vote on the Company’s last
and final offer, saying that the Company could not force such a vote but urged employees to
vote for it.
Reilly and Pesta signed the July 16 negotiations update. It stated that on June 4, the
Union made an entirely new proposal, scrapping all of the past TA’s and rewriting almost
everything in the contract, in essence starting negotiations from scratch. The memorandum
accused the Union of engaging in surface bargaining, over which the Company would be filing
an ULP charge. It further said that the Union had filed numerous ULP charges, which had been
dismissed by the NLRB and withdrawn by the Union. Finally, the memorandum reiterated what
the March 12 memorandum stated about the status of negotiations on January 7.
The Union had previously filed charges against the Respondent. At the time the July 16
memorandum was issued, the Region had dismissed the 8(a)(3) allegations, but the bargaining
charges against the Respondent remained pending.159 The Union subsequently withdrew
them.160

159 GC Exh. 25.
160 GC Exh. 26.
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Analysis and Conclusions
The 8(a)(3) Allegations
The framework for analyzing alleged violations of Section 8(a)(3) is Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must make a prima facie showing sufficient to support an
inference that the employee’s protected conduct motivated an employer’s adverse action. The
General Counsel must show, either by direct or circumstantial evidence, that the employee
engaged in protected conduct, the employer knew or suspected the employee engaged in such
conduct, the employer harbored animus, and the employer took action because of this animus.
Under the Wright Line framework, if the General Counsel makes a prima facie case of
discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the
evidence, that protected activity was a motivating factor in the employer’s action. Once this is
established, the burden of persuasion shifts to the employer to show that it would have taken
the same adverse action even in absence of the protected activity. NLRB v. Transportation Mgt.
Corp., 462 U.S. 393, 399, 403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir.
2002); Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per
curiam). To meet this burden, “an employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.” Serrano Painting, 332 NLRB 1363,
1366 (2000), citing Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
If the employer’s proffered defenses are found to be a pretext, i.e., the reasons given for
the employer’s actions are either false or not, in fact, relied on, the employer fails by definition to
show that it would have taken the same action for those reasons, and there is no need to
perform the second part of the Wright Line analysis. On the other hand, further analysis is
required if the defense is one of “dual motivation,” that is, the employer defends that, even if an
invalid reason might have played some part in the employer’s motivation, the employer would
have taken the same action against the employee for permissible reasons. Palace Sports &
Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
Mason’s Discharge
Mason was delegate to the Union’s district office and chief steward for the West Facility
at the time of his termination. As a member of the Union’s negotiating committee, he had
attended bargaining sessions on a regular basis from September 2009 until approximately
August. Thus, Mason engaged in union activity of which the Respondent had knowledge.
There is no direct evidence of employer animus against Mason due to his union
activities. I do note, however, the following. Shepherd told Ward in January that his reprimand
was related to the Union’s “starting shit at negotiations” and came at the direction of Shepherd’s
superiors. Quite similarly, Ray more or less told Ward that higher management, i.e., Reilly
and/or the Company’s counsel, had directed him to terminate Mason.
This leads me to cite the principle that inferences of animus and discriminatory
motivation can be warranted under all the circumstances of a case, even in the absence of
direct evidence. Electronic Data Systems Corp., 305 NLRB 219, 219 (1991), enfd. in relevant
part 985 F.2d 801, 805 (5th Cir. 1993); Fluor Daniel, Inc., 304 NLRB 970, 970 (1991), enfd. 976
F.2d 744 (11th Cir. 1992).
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In determining whether animus can be inferred, a dischargee’s long duration of
employment is a factor to consider, as is whether he was considered a good employee. Rood
Trucking Co., 342 NLRB 895, 900 (2004). In this regard, Mason was employed for over 10
years. Moreover, the Respondent’s progressive discipline procedure, more specifically the
handbook, provides that the employee’s length of service is a factor in determining the penalty
to be imposed for misconduct.
That the Respondent allowed Mason to continue to work from early July 2009, through
November 30, 2010, or approximately a year and 5 months after he lost his CDL must lead to
the conclusion that management thought highly enough of his performance to keep him for a
long period without it. Although Ray was not a reliable witness overall, he testified at one point
that he afforded Mason special treatment in allowing him to work during his 30-day suspension
because of “his value to the company as an employee,” testimony that can be construed as an
admission. I therefore conclude that Mason was a long-term and well-regarded employee.

The timing of the discharge is also suspicious, not vis-à-vis when Mason engaged in
union activity but in other respects. He was terminated the same afternoon that Mosholder
suspended him without pay until he reacquired his CDL and told him that he could still use a
company vehicle to take the test the following day. Although the Respondent had allowed him
to work for 17 months without the CDL, it would not afford him 1 additional day to take the test
beyond the 30-day time period he had been given.
The Respondent provided evidence that new employees who were hired without having
a CDL were required to obtain one, pursuant to the terms of the collective-bargaining
agreement. However, the Respondent offered no evidence to show that it ever discharged
employees who had the CDL but lost it during the course of their employment. Past practice
was that such employees were suspended without pay pending their reacquisition of the CDL,
but they were not terminated. Moreover, they were allowed to return to work once they had
obtained it, in contrast to the Respondent’s refusal to reemploy Mason after he did so. Such
evidence of disparate treatment of Mason and the Respondent’s deviation from past practice
supports an inference of unlawful motivation. See Case Farms of North Carolina, Inc., ibid;
Sysco Food Services, LLC, ibid.
Finally, the post-discharge conversation between Ray and Ward clearly indicated that
Ray was directed to discharge Mason and did not do so on his volition, strongly suggesting that
the termination was based on reasons other than Mason’s job performance.
The circumstances described above lead me to conclude that the actions of the
Respondent prior to the termination were inconsistent with the alleged basis for it, leading to an
inference of improper motive. See Case Farms of North Carolina, Inc., 353 NLRB 257, 260
(2008); Sysco Food Services, LLC, 343 NLRB 1183, 1184 (2004). I therefore further conclude
that the General Counsel has established the element of animus for the Respondent’s
discharge of Mason and thus satisfied all of the elements necessary to establish a prima facie
case.
The next step is to determine whether the Respondent has met its burden of persuasion
to show that it would have taken the same adverse action even in the absence of the protected
activity.
Granted, Mason did not act with the greatest diligence in speedily reacquiring his CDL
after he became eligible to apply for it. However, I attribute this in part to the casual manner in
which management treated his lack of a license during the period between early July 2009, and
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October 29, 2010, at the earliest. Although Mason was eligible to reapply for the CDL on about
July 2, the Company took no action to impel him to obtain it until October 29, or almost 4
months later. Further, Mason was allowed to continue to work between October 30 and
November 30 and, when he informed Mosholder in late November that he had the driving test
scheduled for December 1, Mosholder not only failed to raise any objections but even
authorized him to use a company vehicle to take the test.
Ray and Mosholder utterly failed to articulate a cogent, consistent, and convincing
account of the reasons that Mason was terminated on November 30. This, along with the
factors I set out above, lead to the conclusion that the asserted reason for the discharge—
failure to timely reacquire a CDL—was pretextual. In reaching this determination, I also take
into account Shepherd’s statement that Ward’s reprimand was motivated by the Union’s stance
on attendance at bargaining, in the context of what can well be characterized as bitter
negotiations. If the Respondent retaliated against one member of the Union’s negotiating
committee because of its displeasure at the Union’s actions at the bargaining table, it could
certainly do the same to another.
In light of the above, I find that the proffered reason for Mason’s discharge—his lack of a
CDL—was a mere pretext and that antiunion animus motivated the Respondent’s action:
retaliation against him for being on the Union’s negotiating committee, which had taken
positions at negotiations that the Respondent did not like. Accordingly, no further analysis of
the Respondent’s defenses is necessary for, as the Board stated in Rood Trucking Co., 342
NLRB 895, 898 (2004):
A finding of pretext defeats any attempt by the Respondent to show that it would have
discharged the discriminatees absent their union activities. This is because where ‘the
evidence establishes that the reasons given for the Respondent’s actions are
pretextual—that is, either false or not in fact relied upon—the Respondent fails by
definition to show that it would have taken the same action for those reasons, absent the
protected conduct, and thus there is no need to perform the second part of the Wright
Line analysis.” Golden State Foods Corp., 340 NLRB 382, 385 (2003). . . .
See also SPO Good-Nite Inn, LLC, above.
Accordingly, I conclude that Mason’s discharge violated Section 8(a)(3) and (1) of the
Act.

The 8(a)(5) Allegations Pertaining to Mason
Another issue is whether the Respondent’s discharge of Mason constituted a change in
past practice without affording the Union notice and an opportunity to bargain. Related to this is
whether the Respondent’s refusal to reemploy Mason after he reacquired his CDL was an
unlawful change in past practice.
An employer violates Section 8(a)(5) and (1) of the Act when it unilaterally makes
substantial changes on subjects of mandatory bargaining; to wit, employees’ wages, hours, or
other terms and condition of employment, without first affording notice and a meaningful
opportunity to bargain to the union representing employees. NLRB v. Katz, 369 U.S. 736
(1962); United Cerebral Palsy of New York City, 347 NLRB 603, 608 (2006).
It is well established that an employer’s disciplinary system constitutes a mandatory
subject of bargaining. Toledo Blade Co., 343 NLRB 385, 387 (2004); Migali Industries, 285
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NLRB 820, 821 (1987); Electri-Flex Co., 228 NLRB 847, 847 (1977), enfd. as modified 570 F.2d
1327 (7th Cir. 1978), cert. denied 439 U.S. 911 (1978).
Because I have concluded that Mason’s discharge was discriminatory under Section
8(a)(3), and there is no evidence that any other employees were treated differently than in the
past, the unilateral change in discipline allegation is essentially subsumed by the 8(a)(3)
allegation. In other words, Mason was targeted for union considerations and not treated
differently because the Respondent was changing a policy in general. Therefore, I do not
conclude it appropriate to find that the discharge itself was also an 8(a)(5) unilateral change.
That said, I do conclude that the Respondent violated Section 8(a)(5) and (1) by failing
and refusing to reemploy Mason after he reacquired his CDL, which Reilly admitted to Ward
was a change in the Company’s policy and over which the Respondent failed to give the Union
notice and an opportunity to bargain.
Ward’s Reprimand
Ward held several union positions known to management, most notably, chair of the
Union’s bargaining committee, on whose behalf he spoke regularly at negotiations and made a
number of information requests. The elements of union activity and employer knowledge are
thus satisfied. Direct evidence of animus is established by Shepherd’s statement when he
issued the reprimand that higher management had initiated it because of the Union’s stance on
attendance/tardiness during negotiations. Accordingly, the General Counsel has established a
prima facie case under Wright Line.
I now turn to the second prong of Wright Line and whether the Respondent had met its
burden of persuasion to show that it would have taken the same adverse action even in
absence of the protected activity.
Adverse action occurring shortly after an employee has engaged in protected activity
raises an inference of unlawful motive. State Plaza, Inc., 347 NLRB 755, 756 (2006); La Gloria
Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71 Fed. Appx. 441 (5th Cir. 2003). The principle
applies here in the context of the adverse action vis-à-vis the Union’s conduct in bargaining.
On January 18, the Union made a lengthy information request, which included
documents pertaining to attendance/tardiness policies. At the January 25 negotiations, Attorney
Mason accused the Union of bringing up new subjects to harass the Company, there was
lengthy discussion of the Company’s attendance policies, and Attorney Mason warned the
Union about pursuing an attendance point system. Two days later, in issuing Ward the
reprimand for being late on January 26 and 27, Shepherd stated that it constituted higher
management’s retaliation for the Union’s bargaining stance on attendance/tardiness.
Even in the absence of Shepherd’s admission, the timing of Ward’s reprimand raises
suspicion. Thus, after Ward received a written reprimand for attendance on July 28, 2008, he
was 5–10 minutes late on three additional occasions in 2008 and 14 times from January–
December 2009 (twice during 3 months and three times in another), yet he never received even
an oral reprimand. Shepherd offered no explanation of why he overlooked all of these 17
instances. In sum, the timing of Ward’s reprimand leads to the conclusion that his tardiness on
January 26 and 27 was a mere pretext and not a bona fide reason for discipline.
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The severity of the discipline that an employer imposes in proportion to the seriousness
of the offenses may also raise a red flag of pretext. See Detroit Paneling Systems, Inc., 330
NLRB 1170, 1170 (2000); KNTV, 319 NLRB 447, 452 (1995).
Since the Respondent has a 6-minute grace period for employees punching in, Ward
was at most a minute late on January 26, and 2 minutes late the next day—hardly egregious
misconduct or dereliction that would justify a written rather than an oral reprimand under the
Respondent’s progressive discipline system, especially when he was not disciplined at all for
being 5–10 minutes late on at least 17 prior occasions. Therefore, I find this to be another
indication of pretext.
In view of the above, I determine that the proffered reason for Ward’s written
reprimand—tardiness on January 26 and 27—was pretextual and that antiunion animus (the
same I found for Mason) motivated the Respondent’s action. Hence, no further analysis of the
Respondent’s defenses is necessary. See Rood Trucking Co., supra,
Accordingly, I conclude that Ward’s written reprimand violated Section 8(a)(3) and (1) of
the Act.
Shepherd’s January 27 Statement
Shepherd told Ward and Mason on January 27 that higher management’s anger at the
Union’s bargaining stance on attendance/tardiness was behind Ward’s receipt of the reprimand.
Such a statement was patently coercive, sending the clear and chilling message that employees
serving on the Union’s negotiating committee would be punished because the Respondent did
not like the way the committee was bargaining.
Accordingly, I conclude that Shepherd’s statement constituted an unlawful threat and
that the Respondent thereby violated Section 8(a)(1) of the Act.
Announced Unilateral Change in Carrying Over Vacation Days
I previously stated the law with respect to an employer’s obligation to provide a
bargaining representative with notice and an opportunity to bargain over mandatory subjects of
bargaining. Vacation policies are such a subject. United Cerebral Palsy of New York City, 347
NLRB 603, 606 (2006); Blue Circle Cement Co., 319 NLRB 954, 954 (1995), enfd. mem. in
relevant part 106 F.3d 413 (10th Cir. 1997).
Past practice was that employees could carry over 3 days of vacation leave into the
following year, with no restrictions on date. Ray’s November 24, 2009 announcement that
employees would have to use their carryover days by March 31 was a clear change in this past
practice. The Respondent admittedly never gave the Union notice or an opportunity to bargain
over such a change.
True, the change was rescinded before it was put into effect, and thus no unilateral
change ever occurred. Nevertheless, the Board has held that an announced unilateral
reduction in employee benefits in and of itself damages the bargaining relationship and violates
Section 8(a)(5) of the Act, even in the absence of implementation. Kurdziel Iron of Wauseon,
327 NLRB 155, 156 (1998), enfd. 208 F.3d 214 (6th Cir. 2000); ABC Automotive Products
Corp., 307 NLRB 248, 250 (1992).
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Ergo, I concude that the announced unilateral change in carryover of vacation day
violated Section 8(a)(5) and (1) of the Act.
The Respondent’s Memoranda of March 12, April 2, and July 16
The General Counsel contends that these memoranda misrepresented the status of
negotiations, disparaged the Union so as to undermine employee support for the Union, and/or
interfered with the Union’s internal processes, evidencing bad-faith bargaining and
independently violating Section 8(a)(1). The General Counsel does not expressly assert that
they constituted an attempt at direct bargaining with employees, but I will consider that an
implied argument. The memoranda essentially criticized the Union’s conduct during
negotiations and accused the Union of surface bargaining and of filing meritless charges, in the
context of urging employees to support the Respondent’s last and final offer in a ratification
vote.
Under Section 8(c), an employer has a fundamental right to communicate with its
employees concerning its position in collective-bargaining negotiations and the course of such
negotiations. United Technologies Corp., 274 NLRB 1069, 1074 (1985), enfd. sub nom. NLRB
v. Pratt & Whitney Air Craft Division, 789 F.2d 121 (2d Cir. 1986) (“An employer is not required
to watch passively as a union conducts ‘public’ negotiations through one-sided distributions
which denigrate the employer, raise expectations, and engender fear that the employer's
position is sinister or unfair.”).
However, such right is not absolute. An employer’s communication cannot be coercive
or undermine the statutory collective-bargaining representative by directly bargaining with
employees. Armored Transport, Inc., 339 NLRB 374, 376 (2003); Putnam Buick, 280 NLRB
868, 869 (1986), affd. 827 F.2d 557 (9th Cir. 1987). A review of precedent reflects that this
determination is generally made based on an analysis of all of the facts and circumstances
present, rather than on one single overriding element of paramount importance. See Armored
Transport, above at 378.
The General Counsel specifically points to two misrepresentations of fact: the March 12
memorandum incorrectly stated that the parties were only two issues away from reaching an
agreement as of January 7; and the July 16 memorandum erroneously stated that all of the
Union’s charges had been withdrawn or dismissed. GC Br. at 69, 86.
Misrepresentations of contract proposals do not necessarily violate Section 8(a)(5) and
(1) as evidencing an intent to bypass, undermine, or subvert the union, or constitute
independent violations of Section 8(a)(1). Adolph Coors Co., 235 NLRB 271, 276–277 (1978).
See also McClatchy Newspapers, 307 NLRB 773, 773 (1992). In terms of Section 8(a)(5), the
test is whether the nature of the misrepresentations was calculated to create the impression that
the Respondent was the true protector of the employees’ interests, or was part of an unlawful
bargaining table strategy. Adolph Coors, above at 277. As far as an independent 8(a)(1)
violation, the misstatement must contain a threat, express or implied, to interfere with
employees’ rights, or promise benefits. Laverdiere’s Enterprises, 297 NLRB 826, 826 (1990),
enfd. in part 933 F.2d 1045 (1st Cir. 1991); see also Daniel Construction Co., 257 NLRB 1276,
1276 (1981), enfd. 732 F.2d 139 (1st Cir. 1984), and Adolph Coors, ibid.
I conclude that the two cited misrepresentations did not expressly or implicitly threaten
employees or promise them benefits and that they were not in any other way coercive of
employees’ rights. Nor, in the context of the length of negotiations can they be deemed to have
been part of a bargaining strategy to undermine the Union. I note that although they were not
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entirely accurate, neither misstatement was based on total fabrication. Thus, the parties were
several issues apart, rather than two, on January 7; and as of July 16, the Region had
dismissed some charges and had not issued complaint on the others, which the Union
subsequently withdrew. In short, the two misstatements appear to have been inadvertent
errors, at most exaggerations, as opposed to glaring falsehoods made to mislead employees.

An important indication of direct bargaining is that the employer’s communications set
forth proposed contract terms which it had not presented to the union. See Armored Transport,
above at 377; United Technologies Corp., above at 1074. That did not happen here.
Turning to the alleged disparagement of the Union, as a general proposition, an
employer’s words of disparagement alone pertaining to union officials are insufficient to
constitute violations of Section 8(a)(1), absent other coercive statements, since “It is well settled
that the Act countenances a significant degree of vituperative speech in the heat of labor
relations,” Trailmobile Trailer, LLC, 343 NLRB 95, 95 (2004), citing Sears, Roebuck & Co., 305
NLRB 193, 193 (1991); see also Atlas Logistics Group Retail Services (Phoenix) LLC, 357
NLRB No. 37, slip op. at 1 (2011). I am not entirely convinced that the memoranda can be
characterized as “derogatory” to the Union but, in any event, I conclude that they were not
otherwise coercive.
Disparagement of the union is also a factor that is considered in determining whether the
employer’s communications seek to undermine the union’s role as collective-bargaining
representative. Armored Transport, above at 377–378, 379 fn. 9. In view of the tone of the
Union’s memoranda and the three memoranda read in their totality, I cannot conclude that the
latter rose to the level of undermining employee support for the Union.
Finally, as to the Respondent’s alleged interference in the ratification process, urging
employees to discuss the course of negotiations with their union representatives and to attend
and participate in the ratification vote is permissible. Ibid. On the other hand, contract
ratification votes and procedures are “internal union affairs upon which an employer is not free
to intrude.” London Chop House, Inc., 264 NLRB 638, 639 (1982); see also Sheridan Manor
Nursing Home, 329 NLRB 476, 477 (1999). However, the facts of both of those cases, in which
violations were found, are distinguishable. London Chop House dealt with the termination of an
employee who opposed ratification. The employer’s memorandum in Sheridan Manor solicited
employees to oppose the union’s announced procedure for ratification and discouraged
membership in the union, and the Board found it relevant that “the memorandum did in fact
disrupt the ratification procedure.” Ibid.
I conclude that the Respondent’s statements urging employees to notify the Union that
they wanted a ratification vote on the Respondent’s proposed agreement did not amount to
unlawful interference in the ratification process or violate Section 8(a)(5) or (1) independently.
Based on the above, I recommend dismissal of the charges relating to the memoranda
in question.
Issues Pertaining to Health Insurance Benefits
The failure to provide information allegation concerns health insurance benefits and is
interrelated with the alleged unilateral change in such in 2010.
I earlier stated the applicable law concerning unilateral changes. I now turn to that
regarding an employer’s obligation to furnish information.
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An employer is obliged to supply information requested by a collective-bargaining
representative that is relevant and necessary for the latter’s performance of its responsibilities to
the employees it represents. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). When the requested information concerns terms and conditions
of employment of bargaining-unit employees, that information is presumptively relevant, and the
respondent must provide it. Chrysler, LLC, 355 NLRB No. 54, slip op. at 13 (2010); Contract
Flooring Systems, 344 NLRB 925, 928 (2005). Indisputably, health insurance is an important
term and condition of employment. KSM Industries, 336 NLRB 133, 136 fn. 6 (2001); ABA
Automotive Products Corp., 307 NLRB 248, 250 (1992), supplemented 319 NLRB 874 (1995).
The employer must furnish the information in a timely fashion. Beverly California Corp., 326
NLRB 153, 157 (1998); Interstate Food Processing, 283 NLRB 303, 306 (1987).
Several factors lead me to conclude that the Respondent unlawfully unilaterally
implemented new health insurance benefits and failed in its duty to timely provide information on
such. First, in 2009, the Respondent announced proposed changes in health insurance on
October 1, including a change in carrier on October 15 and in benefits on November 1—
affording the Union little opportunity to meaningfully negotiate or seek alternative carriers. As a
result, on October 15, 2009, just 2 weeks after proposing the health insurance changes, the
Respondent declared impasse and unilateral implementation. In light of this, I would reasonably
expect that the Respondent in 2010 would have been more diligent in earlier furnishing the
Union with information and in negotiating over any changes in health benefits. Yet, the Union
was the party to initiate discussion on the subject, on August 23, 2010, expressing concern that
there not be a repeat of what had occurred in 2009.
Second, although the Respondent indicated that insurance coverage for both unit and
nonunit employees was connected, information on both was necessary for the Union to secure
a binding quote, and the Union requested such information on September 24, the Respondent
did not provide information on nonunit employees until February 11, 2011. The same holds true
for census information and other information that the Union requested on September 24. The
Respondent offered no explanation of why the information was available by February 11, 2011
but not before then.
Third, the Respondent declared an “emergency” on October 5 and an impasse on
October 15 without having afforded the Union the benefit of information that would have enabled
it to get alternative quotes.
In sum, the Respondent bore the responsibility for creating the emergency situation that
it proclaimed was necessary for unilateral implementation of new insurance coverage.
As stated above, the Respondent, on February 11, 2011, provided additional health
insurance which, in combination with information that the Respondent earlier provided, appears
to have responded fully to the Union’s September 24 request. The General Counsel’s brief
does not contend otherwise.
Accordingly, I conclude that the Respondent violated Section 8(a)(5) and (1) by
unilaterally implementing new health insurance benefits on November 1, 2010. I further
conclude that the Respondent violated Section 8(a)(5) and (1) by, after on about September 24,
2010, failing to timely furnish the Union with relevant and necessary information pertaining to
such benefits.
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Bad-Faith or Surface Bargaining
The final—and most analytically complex—issue is whether the Respondent engaged in
bad-faith or surface bargaining; put another way, went through the motions of bargaining without
any intention of reaching an agreement.
In deciding whether an employer engaged in legitimate “hard bargaining” or unlawful
surface bargaining, the totality of the employer’s conduct is examined, including its conduct both
at and away from the bargaining table, and the proposals themselves. U.S. Ecology Corp., 331
NLRB 223, 225 (2000), enfd. 26 Fed. App. 435 (6th Cir. 2011) (unpub.); Regency Service Carts,
345 NLRB 671, 671 (2005); Liquor Industry Bargaining Group, 333 NLRB 1219, 1220–1222
(2001), enfd. 50 Fed.App. 444 (D.C. Cir. 2002) (unpub.).
Determining where “hard bargaining ends and obstructionist intransigency begins” is “an
inescapably elusive inquiry.” NLRB v. Big Three Industries, 497 F.2d 43, 46 (5th Cir. 1974). As
the Board stated in Borg-Warner Corp., 198 NLRB 726, 726 (1972), “[N]o case involving an
allegation of surface bargaining presents an easy issue to decide.”
My role is to ascertain the Respondent’s state of mind during negotiations, not to
substitute my judgment with respect to the substantive terms that were proposed by the parties.
See NLRB v. American National Ins. Co., 343 U.S. 395, 402 (1952); Tritac Corp., 286 NLRB
522, 523 (1987).
The General Counsel contends that the Respondent’s actions at and away from
negotiations constitute evidence of bad-faith bargaining. I have found that the Respondent
committed several ULP’s at the facility and will consider them in weighing the totality of
circumstances. The General Counsel further asserts that the Respondent’s bad-faith bargaining
is demonstrated by its “overall conduct” at the bargaining table, including proposing in bad faith,
elimination of the union-security provision and voluntary check-off clause; repeatedly submitting
its prior proposals in response to new union proposals; and giving perfunctory consideration to
and/or failing to consider union proposals.
Preliminarily, I note that an employer’s proposals for elimination of union security and
dues checkoff are not per se indicative of bad-faith bargaining. Logemann Bros. Co., 298
NLRB 1018, 1020 (1990); Challenge-Cook Bros., 288 NLRB 387, 388 (1988). Rather, the
question is whether the reasons advanced for the proposal to eliminate them are “so illogical as
to warrant an inference that . . . Respondent has evinced an intent not to reach agreement . . .
in order to frustrate bargaining.” Phelps Dodge Specialty Cooper Products Co., 337 NLRB 455,
457 (2002), citing Hickinbotham Bros. Ltd., 254 NLRB 96, 102–103 (1981); see also National
Steel & Shipbuilding Co., 324 NLRB 1031, 1044 (1997).
Similarly, withdrawal of a proposal or tentative agreement, or adherence to a proposal
do not necessarily evince bad-faith bargaining. Logemann Bros. at 1020; Challenge-Cook Bros.
at 389.
In the Respondent’s favor, the parties met over 50 times between September 2009, and
January 2011 and engaged in lengthy discussions over their respective proposals, reaching
some agreements. See Tritac Corp., supra at 524 fn. 5. Moreover, although the Union made
most of the concessions, the Respondent did modify its original proposals on several subjects,
including pension, wage increases, and health care in response to the Union’s counter-
proposals.
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Contrariwise, I have found that the Respondent committed a number of ULP’s related
directly or indirectly to the bargaining; the Respondent demonstrated a general unwillingness
after January 7 to accept or to offer counter-proposals to the Union’s new proposals, instead
usually resubmitting its last offer; and Reilly rejected Chema’s oral proposal on January 7 that if
the Respondent agreed to union-security and dues-checkoff provisions, the Union would accept
the rest of the Company’s proposal in its entirety, including both health insurance and cessation
of the pension plan.
I also take into account the following. After January 7, the Union made numerous new
proposals and information requests on an ongoing basis. Although the Union certainly had a
legal right to do so, these actions complicated negotiations and were perceived by the
Respondent as harassment. In any event, they obviously did not bring the parties closer to a
final agreement and had the effect of prolonging negotiations. Moreover, the tenor of
negotiations grew increasingly strained as time went on, to the point where both parties
demonstrated something of a retaliatory stance and many of the exchanges consisted of
personal attacks rather than discussion of the merits of proposals.
I have carefully considered the many factors present in this case and conclude that, on
balance, they weigh against the Respondent. Three considerations are especially determinative
in reaching this decision.
The first is that during the course of negotiations, the Respondent committed ULP’s
directly or indirectly related to the bargaining, including discrimination against two members of
the Union’s negotiating committee, threatening them because of their membership on that
committee, making unilateral changes in health insurance benefits, and failing to timely provide
relevant and necessary information on health insurance. Contrast Litton Systems, 300 NLRB
324, 330 (1990) (unilateral changes not linked to ongoing negotiations).
The cumulative effect of these ULP’s on the bargaining relationship cannot by any
reasonable stretch of the imagination be deemed de minimis or trivial. Regarding the unilateral
change in health insurance coverage that resulted in decreased benefits to employees, the
Board, in Intermountain Rural Elec. Ass’n, 305 NLRB 783, 789 (1991), enfd. 984 F.2d 1562
(10th Cir. 1993), found that the employer’s unlawful implementation of new terms and conditions
affecting take home pay precluded a lawful impasse, stating:
[Those changes] were not isolated or insignificant matters, but rather were areas in
which the entire bargaining unit was affected in the most fundamental way—in their
paychecks. These actions would likely place the union at a serious bargaining
disadvantage in terms of maintaining the support and trust of the employees. This would
serve to undercut the Union’s authority at the bargaining table.
Similarly, in the context of a declared impasse, the Board has recognized the detrimental
impact that discharging members of the union’s negotiating committee can have on the Union’s
ability to bargain: “[It] would tend not only to hinder the committee’s ability to negotiate, but also
would reasonably lead it to believe that its very existence was under attack.” Dynatron/Bondo
Corp., 333 NLRB 750, 756 (2001).
The second is the Respondent’s rejection of Chema’s oral proposal on January 7.
Significantly, this occurred before the Union began submitting a series of new proposals and
information requests and the argument could be made that the Union was at least partially
responsible for the parties’ failure to reach an agreement. The Respondent’s summary rejection
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of an informal offer that essentially would have given the Respondent all of the contractual
changes it wanted as far as provisions directly affecting its business operation strongly suggests
that the Respondent’s intent was not to reach an agreement with favorable economic terms but
to discourage the Union from continuing to represent unit employees. Reilly did not testify and
therefore did not offer another explanation. Additionally, the evidence that the Respondent
presented failed to show that its ability to hire mechanics was seriously affected by the union
dues requirement. In fact, the foremost reason voiced by those who turned down job offers was
the pay that the Respondent offered.

The third is Shepherd’s statement that higher management was issuing Ward a
reprimand as retaliation for the Union’s conduct in negotiations, and Ray’s nonverbal assent to
Ward’s accusation that higher management was behind Mason’s discharge, which I have found
unlawful. These actions by managers raise the suspicion that top management (Reilly) had an
antagonistic attitude toward the Union rather than a desire to continue the parties’ collective-
bargaining relationship in a harmonious manner.
Accordingly, based on the totality of circumstances, I conclude that the Respondent
engaged in surface or bad-faith bargaining in violation of Section 8(a)(5) and (1) of the Act.
Having reached this conclusion, I need not further address the other conduct of the Respondent
that the General Counsel contends reflected bad-faith bargaining.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By discharging Russ Mason and issuing a written reprimand to Jeff Ward, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(3) and (1) of the Act.
4. By making unilateral changes in health insurance benefits and in the practice of
reemploying mechanics who reacquire their CDL’s, announcing a unilateral change in vacation
carryover days, failing to timely provide the Union with information it requested regarding health
insurance benefits, and engaging in surface bargaining, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and
violated Section 8(a)(5) and (1) of the Act.
5. By threatening employees with discipline as retaliation for their membership on the
Union’s negotiating committee, the Respondent has engaged in an unfair labor practice
affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section
8(a)(1) of the Act.
Remedy
Because I have 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 discriminatorily discharged Russ Mason, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
compounded daily, Kentucky River Medical Center, 356 NLRB No. 8 (2010), with an applicable
rate of interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
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The General Counsel seeks additional remedies for Mason regarding the manner in
which he should receive backpay (GC Br. at 98). The General Counsel also seeks an order
prohibiting the Respondent from stating to any employer, prospective employer, or responding
to any credit, reference or similar inquiry that Mason was discharged for cause. Ibid. The
General Counsel’s position may be meritorious but, in the absence of any Board decisions
adopting such remedies, I decline to order them.
Since the Respondent unilaterally implemented new health insurance benefits and
changed the policy of reemploying mechanics who reacquire their CDL’s, the Respondent shall
be ordered to make any unit employees whole for any loss of earnings and other benefits they
may have suffered. The make-whole remedy shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest
compounded daily, Kentucky River Medical Center, 356 NLRB No. 8 (2010), with an applicable
rate of interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Since the Respondent failed to bargain in good faith, the Respondent shall be ordered to
meet with the Union and bargain in good faith concerning the terms and conditions of
employment of bargaining unit employees and, if an agreement is reached, embody such
agreement in a signed contract.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended161
ORDER
The Respondent, Center City International Trucks, Inc., Columbus, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, reprimanding, or otherwise discriminating against any employee for
engaging in activities on behalf of the International Association of Machinists & Aerospace
Workers, AFL–CIO, District Lodge 54, Local Lodge 1471 (the Union) or to retaliate against them
for positions on terms of employment that the Union has taken during collective bargaining.
(b) Threatening employees with discipline as retaliation for their membership on the
Union’s negotiating committee.
(c) Making or announcing any changes in terms and conditions of employment without
first affording the Union notice and an opportunity to bargain.
(d) Failing to timely provide the Union with information it requests that is relevant and
necessary for it to fulfill its role as a collective-bargaining representative.
(e) Bargaining without a good-faith intent to reach agreement on a new collective-
bargaining agreement.
(f) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

161 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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2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Russ Mason full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Russ Mason whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Russ Mason, and within 3 days thereafter notify him in
writing that this has been done and that the discharge will not be used against him in any way.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
references to the unlawful written reprimand issued to Jeff Ward, and within 3 days thereafter
notify him in writing that this has been done and that the reprimand will not be used against him
in any way.
(e) Bargain in good faith with the Union as the exclusive representative of all regular full-
time and regular part-time mechanics, leadmen, mechanic’s helpers, and mechanic’s
apprentices employed at its two facilities, concerning terms and conditions of employment and,
if an understanding is reached, embody the understanding in a signed agreement.
(f) On request by the Union, restore the health insurance benefits that existed prior to
the unilateral changes that were implemented on November 1, 2010, and maintain those terms
until the Union agrees to the changes or the parties bargain to a new collective-bargaining
agreement or reach an overall valid impasse.
(g) Make employees whole by reimbursing them, in the manner set forth in the remedy
section of the decision, for any loss of benefits and additional expenses they incurred as a result
of the unilateral changes in health insurance benefits that were implemented on November 1,
2010.
(h) 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.
(i) Within 14 days after service by the Region, post at its facilities in Columbus, Ohio,
copies of the attached notice marked “Appendix.”162 Copies of the notice, on forms provided by
the Regional Director for Region 9, 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. In
addition to physical posting of paper notices, notices should be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. 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 November
24, 2009.

162 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.”
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(j) 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 be dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. September 2, 2011

____________________
Ira Sandron
Administrative Law Judge
JD–52–11
Columbus, OH
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 recognize the International Association of Machinists & Aerospace Workers, AFL–
CIO, District Lodge 54, Local Lodge 1471 (the Union) as the exclusive representative of all
regular full-time and regular part-time mechanics, leadmen, mechanic’s helpers, and mechanic’s
apprentices employed at our two facilities (unit employees).
WE WILL NOT discharge, reprimand, or otherwise discriminate against employees for
engaging in activities on behalf of the Union or to retaliate against them for positions on terms of
employment that the Union has taken during collective bargaining.
WE WILL NOT threaten employees with discipline as retaliation for their membership on
the Union’s negotiating committee.
WE WILL NOT make changes in health care benefits, in our practice of reemploying
mechanics who reacquire their CDL’s, or in any other terms and conditions of employment,
without first affording the Union notice and an opportunity to bargain.
WE WILL NOT announce changes in our policy of allowing employees to carry over 3
days of vacation leave into the following year without a restriction on dates, or in any other
terms and conditions of employment, without first affording the Union notice and an opportunity
to bargain.
WE WILL NOT fail and refuse to timely provide the Union with information it requests
that is relevant and necessary for it to fulfill its role as the collective-bargaining representative of
unit employees, including health insurance benefits.
WE WILL NOT negotiate with the Union without a good faith intent to reach agreement
on a new collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL offer Russ Mason full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to his seniority or any other rights
or privileges previously enjoyed, and make him whole for any loss of earnings and other
benefits he suffered as a result of his unlawful discharge.
WE WILL remove from our records all references to Russ Mason’s discharge and to Jeff
Ward’s unlawful reprimand, and notify them in writing that this has been done and that those
actions will not be used against them in any way.
WE WILL bargain in good faith with the Union as the exclusive representative of unit
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employees, concerning terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement.
WE WILL timely provide the Union with information it requests that is relevant and
necessary for it to fulfill its role as the collective-bargaining representative of unit employees.
WE WILL, on the Union’s request, restore the health insurance benefits that existed prior
to the unilateral changes that were implemented on November 1, 2010, and maintain those
terms until the Union agrees to the changes or the parties bargain to a new collective-bargaining
agreement or reach an overall valid impasse.
WE WILL make employees whole by reimbursing them for any loss of benefits and
additional expenses they incurred as a result of the unilateral changes in health insurance
benefits that were implemented on November 1, 2010.
CENTER CITY INTERNATIONAL TRUCKS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
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, (513) 684-3750.