Comar, Inc.

National Labor Relations Board - Board Decisions

Feb 2, 2007

349 N.L.R.B. 342 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 33
342
Comar, Inc. and United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Indus-
trial and Service Workers International Union,
AFL–CIO f/k/a American Flint Glass Workers
Union of North America, AFL–CIO. Cases 4–
CA–28570 and 4–CA–33903
February 2, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On April 3, 2006, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent and
the General Counsel filed exceptions and supporting
briefs, and the Charging Party filed cross-exceptions and
a supporting brief. The General Counsel and the Charg-
ing Party also filed answering briefs to the Respondent’s
exceptions. The Respondent also filed a response to the
General Counsel’s answering brief, to the General Coun-
sel’s exceptions, and to the Charging Party’s cross-
exceptions, to which the Charging Party also filed a re-
sponse.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions3

1 Pursuant to Reliant Energy, 339 NLRB 66 (2002), the Respondent
called to the Board’s attention its recent decision in Wal-Mart Stores,
348 NLRB 327 (2006), and the Charging Party called to the Board’s
attention its recent decision in Cadillac Asphalt Paving Co., 349 NLRB
6 (2007).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Charging Party has excepted to the judge’s failure to make a
number of additional procedural and factual findings. We find it un-
necessary to pass on these exceptions because any additional findings
in this regard would be cumulative. Similarly, because we are adopting
the judge’s finding of violations, we find it unnecessary to pass on the
General Counsel’s motion to strike the Respondent’s brief in support of
exceptions. However, we do find merit in the Charging Party’s excep-
tions concerning certain inadvertent errors in the judge’s decision,
which we shall correct.
3 Chairman Battista agrees with the judge that, as of September 2001
and December 2002, the Respondent had not remedied the antecedent
violations. Accordingly, and in further agreement with the judge,
Chairman Battista concludes that any changes on those dates cannot be
relied on to alter the remedial obligation. In view of this, Chairman
Battista finds it unnecessary to rely on the judge’s alternative rationale
that the changes were not significant. In addition, Chairman Battista
notes that the alleged changes of December 2002 were raised for the
first time in the posthearing brief in this case.
and to adopt the recommended Order as modified and set
forth in full below.4
ORDER
The Respondent, Comar, Inc., Buena, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and/or refusing to provide the Union,
United Steel, Paper and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Workers Inter-
national Union, AFL–CIO, f/k/a American Flint Glass
Workers Union of North America, AFL–CIO, with re-
quested information that is relevant and necessary for the
Union to fulfill its role as the collective-bargaining repre-
sentative of the unit employees.
(b) Unreasonably delaying the provision of informa-
tion requested by the Union that is relevant and neces-
sary for the Union to fulfill its role as collective-
bargaining representative of the unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole the individuals named below for the
backpay period up through December 31, 2004, by pay-
ing them the amounts following their names, plus interest
accrued from September 27, 1999, to the date of pay-
ment, as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), minus tax withholdings required
by Federal and State law:5

Chairman Battista additionally notes that because the Board has pre-
viously decided to award the remedy prescribed in Transmarine Navi-
gation Corp., 170 NLRB 389 (1968), to all employees (i.e., those who
transferred and those who did not transfer), this matter is res judicata.
However, he does not construe the Transmarine remedy to require the
Respondent to pay any employee more than he/she would have earned
if there had been no violations of the Act.
4 We find merit in the General Counsel’s and the Charging Party’s
exceptions to the judge’s inadvertent failure to include interest in his
recommended Order. We shall also modify the recommended Order to
include a computation of the total amount owed by the Respondent as
of the most recent compliance specification. We shall also include a
new notice to employees that does not reference a specific amount
owed to each employee.
5 The amounts specified in this Order represent the Respondent’s
backpay obligation as of the Board’s most recent compliance specifica-
tion, which covers the period beginning from the commencement of the
Respondent’s backpay obligation in 1999 through the fourth quarter of
2004. As noted in the judge’s decision, the Respondent’s backpay
obligation continues to run, with certain exceptions set forth in the
compliance specification. Interest on these amounts will continue to
accrue to the date of payment pursuant to the Board’s Order.
COMAR, INC. 343
Kristine
Armstrong $9,300.55
James Massey $4,102.80
Ruth Benowitz 14,119.96 Doris McGaha 9,403.30
Barbara Bryant 18,275.44 Michael Munson 6,398.40
Linda Caudill 4,942.81 Theresa Morgan 17,740.73
Mary Cione 13,029.46 Rita Ojeda 16,010.49
Lea Clark 9,245.65 Arlene Pollock 15,203.83
Margaret
Creelman 13,375.42
Joe Ann Saul 15,080.39
Sarah Hannah 6,681.54 Florence
Simione 6,056.73
Beatrice
Ingegneri 12,497.45
Debra Stamm 13,616.38
Norma Loatman 21,341.66 Lenell Stewart 7,172.16
Carole Loguidice 15,666.06 Joy West
(Ballurio) 14,035.04
Theresa Capaldi 5,867.04 Gail Paulaitis 41,095.80
Judith Carney 57,568.32 Ella Percev 697.86
Shelley Carney 30,812.51 Linda Pierce 39,674.88
Nancy Fairman 104,850.64 Helena Pollock 37,935.45
Vessi Gargoff 62,429.37 Ingrid Regalbuto 35,338.98
John Gray 10,419.65 Rhonda Rio 84,538.96
Catherine
Guilford 196,744.89
Sandra Thurston 8,013.12
Michele Guilford 124,265.04 June Walko 128,799.02
Sheila Heck 88,985.83 Alice
Weddington 7,467.82
Robert Joslin 2,023.62 Anthony
Weissner 57,230.45
Latanya Mack 28,661.72
(b) Compensate the individuals named below for the
Respondent’s effects bargaining violation, pursuant to
Transmarine Navigation Corp., 170 NLRB 389 (1968),
for the period up to December 31, 2004, with interest, as
prescribed in New Horizons for the Retarded, above,
minus tax withholdings required by Federal and State
law:
Name
Amount
Owed Name
Amount
Owed
Kristine
Armstrong 33,906.24
James
Massey 38,942.40
Ruth Benowitz 33,584.16 Doris
McGaha 33,584.16
Barbara Bryant 33,584.16 Theresa
Morgan 33,584.16
Theresa Capaldi 917.60 Michael
Munson 48,136.32
Judith Carney 33,584.16 Rita Ojeda 33,437.76
Shelley Carney 33,584.16 Gail Paulaitis 917.60
Linda Caudill 33,613.44 Ella Percev 905.60
Mary Cione 24,722.88 Linda Pierce 33,584.16
Lea Clark 33,584.16 Arlene
Pollock 33,232.80
Margaret
Creelman 33,906.24
Helena
Pollock 33,642.72
Nancy Fairman 33,642.72 Ingrid
Regalbuto 33,584.16
Vessi Gargoff 33,584.16 Rhonda Rio 33,642.72
John Gray 1,069.60 Joe Anne Saul 33,906.24
Catherine
Guilford 33,584.16
Florence
Simione 33,906.24
Michele
Guilford 917.60
Debra Stamm 34,374.72
Sarah Hannah 34,608.96 Lenell
Stewart 6,399.84
Sheila Heck 33,584.16 Sandra
Thurston 917.60
Beatrice
Ingegneri 33,144.96
June Walko 35,327.60
Robert Joslin 34,608.96 Alice
Weddington 917.60
Norma Loatman 33,437.76 Joy West
(Ballurio) 35,327.60
Carole
Loguidice 33,144.96
Anthony
Wiessner 36,775.20
Latanya Mack 33,584.16
TOTAL: $2,625,663.78
(c) Provide the Union with the information that it re-
quested, but which was unlawfully withheld, including,
but not limited to, the names of all hourly paid nonunit
employees at the Buena, New Jersey facility, and the
complete terms and conditions of employment for these
employees.
(d) Within 14 days after service by the Region, post at
its Buena, New Jersey facility copies of the attached no-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD344
tice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 4, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 cur-
rent employees and former employees employed by the
Respondent at any time since September 1, 2004.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to provide the Union,
United Steel, Paper and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Workers Inter-
national Union, AFL–CIO, f/k/a American Flint Glass
Workers Union of North America, AFL–CIO, with re-
quested information that is relevant and necessary for the
Union to fulfill its role as the collective-bargaining repre-
sentative of the unit employees.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT unreasonably delay the provision of in-
formation requested by the Union that is relevant and
necessary for the Union to fulfill its role as collective-
bargaining representative of the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL make whole the individuals named in the
Board’s Order, with interest.
WE WILL provide the Union with the information that it
requested, but which we unlawfully withheld, including,
but not limited to, the names of all hourly paid nonunit
employees listed at our Buena, New Jersey facility, and
the complete terms and conditions of employment for
these employees.
COMAR, INC.
Elana R. Hollo, Esq., for the General Counsel.
Joel E. Cohen, Esq. and Kimberly B. Nerenberg, Esq. (McDer-
mott, Will & Emery LLP), of New York, New York, for the
Respondent.
James R. LaVaute, Esq. (Blitman & King, LLP), of Syracuse,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This proceeding
consolidates a compliance specification with a complaint alleg-
ing additional unfair labor practices. On September 27, 1999,
Comar, Inc. (the Respondent or Comar) relocated the histori-
cally recognized bargaining unit from its facility in Vineland,
New Jersey, to the Respondent’s nonunion facility in Buena,
New Jersey, approximately 10 miles away. Upon relocating the
unit, the Respondent refused to recognize the unit’s longtime
bargaining representative—the American Flint Glass Workers
Union of North America, AFL–CIO1—and reduced the unit
employees’ wages and benefits. The Union filed a charge, a
complaint was issued, and on August 2, 2001, after a hearing,
Administrative Law Judge William G. Kocol issued a decision
finding the Respondent guilty of multiple violations of Section
8(a)(5) and (1) of the Act. On July 31, 2003, the National La-
bor Relations Board (the Board) affirmed Judge Kocol’s rul-
ings, findings, and conclusions, 339 NLRB 903 (2003). The
Respondent filed a petition for review with the U.S. Court of
Appeals for the D.C. Circuit, but on May 19, 2004, the court
denied that petition and enforced the Board’s Order in its en-
tirety. 111 Fed.Appx. 1 (2004).

1 Subsequent to the relocation, the bargaining representative affili-
ated or merged with another entity and at the time of the hearing was
known as the United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union,
AFL–CIO. In this decision, I refer to both this entity, and its prior
manifestation, as “the Union.”
Also, concerning this decision, corrections have been made accord-
ing to an errata issued on April 24, 2006.
COMAR, INC. 345
On April 25, 2005, the Regional Director for Region 4 of the
Board issued a compliance specification stating the amount of
backpay that the Region had concluded the Respondent owed
as of December 31, 2004, and which also reiterated the Re-
spondent’s obligations, set forth in the enforced Board Order, to
bargain with the Union, engage in effects bargaining, and pro-
vide requested information. The Region issued amendments to
the compliance specification on June 15 and September 27,
2005. The Respondent filed answers, and various amended
answers on May 16, June 28, July 5, and October 11, 26, and
31, 2005. The Respondent orally amended its answer further at
the start of the hearing.2 In its amended answer, the Respon-
dent disputes the amount of backpay set forth in the specifica-
tion and also argues that it is not required to comply with the
paragraphs reiterating the Respondent’s obligation, under the
enforced Order, to recognize and bargain with the Union.
Consolidated with the proceeding regarding the compliance
specification, is one pursuant to a complaint in which the Re-
gional Director alleges the Respondent committed unfair labor
practices subsequent to the hearing before Judge Kocol. The
Union filed the charge on May 20, 2005, and amended the
charge on July 19, 2005, and the Region issued the complaint
on August 24, 2005. The complaint alleges that the Respon-
dent violated Section 8(a)(5) and (1) by refusing to provide
requested information about nonunit employees and by delay-
ing the provision of requested information regarding unit em-
ployees. The Respondent filed its answer to the complaint on
September 6, 2005, in which it denies that it has violated the
Act as alleged.
A consolidated hearing on the compliance specification and
the unfair labor practices complaint was held before me in
Philadelphia, Pennsylvania, on November 2, 3, and 4, 2005.
On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by the
parties, I make the following
FINDINGS OF FACT3
I. JURISDICTION
The Respondent, a corporation, manufactures packaging
products and medical device components for pharmaceutical,
health care, and personal care customers at its facility in Buena,
New Jersey, where it annually sells and ships goods valued in
excess of $50,000 directly to points outside the State of New
Jersey. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),

2 At my direction, the General Counsel filed a master consolidated
compliance specification that incorporates the various amendments, and
the Respondent filed a master consolidated answer that incorporates all
of the amendments to the answer, including those made orally at the
start of the hearing. The master consolidated compliance specification
was received at trial as administrative law judge’s exhibit (ALJ Exh.) 1.
The Respondent’s master consolidated answer was submitted after the
close of the hearing, and is hereby received as ALJ Exh. 2.
3 The General Counsel appended two motions to its posthearing
brief: (1) a motion to correct the transcript, and (2) a motion to correct
the court reporter’s misdesignation of several of Respondent’s exhibits
as the General Counsel’s exhibits. Both of these motions are granted. I
have directed the court reporter to correct the exhibit designations.
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
Prior to September 27, 1999, a bargaining unit of approxi-
mately 50 employees existed at the Respondent’s applicator
division in Vineland. The Union represented employees at the
Vineland applicator division for over 40 years, beginning in
1955. The primary work of the Vineland applicator division
was assembling droppers that are used to dispense liquid medi-
cations. The Respondent’s droppers come in a wide variety of
sizes and styles, but generally consist of three components—a
pipette (small glass or plastic tube), a bulb that can be squeezed
to extract liquid, and a cap/closure. The applicator division
also produced at least two other items: a “combo stopper,”
which is a cap with a removable rubber stopper in it; and, a
“bellows bulb” which is a cap with a specialty bulb.
On September 27, 1999, the Respondent relocated the appli-
cator division from Vineland to another Comar facility about 10
miles away in Buena, New Jersey. The Buena facility has a
number of departments, one of which, the finishing department,
was assembling droppers at the Buena location before the Vine-
land applicator division was moved there.4 Although both the
Vineland applicator division and the Buena finishing depart-
ment assembled droppers prior to the relocation, there were
differences in the methods of production and capabilities at the
two facilities. The Vineland applicator division assembled
droppers using two types of machines. One type, a “rotary
machine,” can be used to assemble about 40 droppers per min-
ute and requires an employee to manually insert the pipette into
each assembly. There were 16 of these machines at the Vine-
land facility. The other type was as an “auto dropper assembly
machine” or (ADAM).5 An ADAM is a higher production
machine than the rotary machine, and it assembles all three
dropper components, including the pipette, automatically. The
record indicates that there were approximately three ADAMs in
operation at the Vineland facility before the relocation. Unit
members at the Vineland location also assembled some drop-
pers manually at hand-assembly benches. Employees who
assembled droppers at Vineland were responsible for visually
inspecting the quality of the product.
At the Buena facility, on the other hand, droppers were as-
sembled prior to September 27, 1999, using what the Respon-
dent calls “high speed machines.”6 The high-speed machines
can assemble up to 300 droppers per minute and have comput-
erized quality inspection mechanisms that eliminate the need

4 Prior to the relocation, the Vineland applicator division had fewer
employees than the Buena finishing department. The record does not
establish, however, what portion of the Buena finishing department
employees were engaged in the same type of work as the Vineland unit
employees prior to the relocation.
5 Particular ADAMs are also sometimes referred to in the record as
“West Machines” or “Bent Assembling Machines” (BAM). In this
decision, all of these machines will be referred to generically as AD-
AMs.
6 After September 1999, the Respondent continued using high-speed
machines to assemble droppers at the Buena facility, but also began
using other types of machines that had been moved there from the
Vineland facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD346
for visual inspections by operators. While they are faster than
the rotary machines and ADAMS, the high-speed machines
also have certain limitations. Most notably, the high-speed
machines are not practical for use on small production runs
because of the effort that is required to changeover those ma-
chines from one set of dropper specifications to another. It is
easier to make such adjustments to the types of machines that
were used at the Vineland facility. In addition, the high-speed
machines cannot be used to assemble droppers with glass pi-
pettes due to the likelihood of breakage, whereas the rotary
machines and ADAMs are used to assemble both glass and
plastic droppers. There was testimony that glass droppers ac-
count for 10 to 15 percent of the Respondent’s dropper busi-
ness.
When the Respondent relocated the Vineland applicator divi-
sion to Buena in September 1999, it offered almost all of the
unit employees at the Vineland operation positions in the Buena
finishing department. However, the wages and other terms that
the Respondent offered to the relocating unit employees were
substantially less advantageous to those employees than what
they had been receiving pursuant to the collective-bargaining
agreement at the Vineland facility. Of the 47 unit members
who were offered positions at the Buena facility, 23 accepted
them.7 In addition to moving the unit employees, the Respon-
dent also moved equipment those employees had been working
on at the Vineland facility. The Vineland equipment that the
Respondent transferred to Buena included: 12 to 14 rotary ma-
chines; 3 ADAMs; 3 cap-punching machines that prepare caps
for dropper assemblies; a re-knobbing machine that shortens
pipettes; a machine that assembles the bellows bulbs; a shrink
wrapper; a machine that assembles combo stoppers; the
benches used for hand assembly; and stamping machines that
decorate various components. The Respondent placed the
transferred rotary machines and ADAMs in the manufacturing
building at the Buena facility. This was a different part of the
facility than the finishing building, where the high-speed ma-
chines already being used at the Buena location to assemble
droppers were situated.
After the relocation to Buena, the transferred Vineland em-
ployees continued to perform the same work on the same
equipment, under essentially the same supervision as they had
at Vineland. They assembled, stamped, and wrapped the same
products as before. As was the case before the relocation, the
Respondent continued to assign the unit employees the short-
run projects that were more efficiently produced on the rotary
machines and ADAMs than on the high-speed machines oper-
ated by the nonunit employees in the finishing building. The
unit employees had little daily interaction with nonunit em-
ployees. The Respondent did not show that the relocation re-
sulted in an appreciable increase in the degree of integration of
the work of the former Vineland employees with that of the
Buena employees. Indeed, the Respondent had no plans to
fully integrate the unit employees into the operation at Buena.

7 The unit employees who did not transfer to the Buena facility
ceased performing work for the Respondent as of the September 1999
relocation.
Immediately upon relocating the unit employees to Buena,
the Respondent refused to recognize their Union, and ceased
applying the terms of their collective-bargaining agreement.8
The Respondent stopped paying the former Vineland employ-
ees the wages they had been receiving at Vineland, and began
paying them lower wages equivalent to those received by the
nonunit employees at Buena. The Respondent also brought the
terms and conditions of the unit employees into conformity
with the mostly lesser terms and conditions of the nonunit em-
ployees by: eliminating one of the unit employees’ holidays;
eliminating the unit employees’ personal day benefit; eliminat-
ing the unit employees’ sick pay; reducing the unit employees’
bereavement leave benefit; increasing the unit employees’ va-
cation time; eliminating the unit employees’ coverage under a
union pension plan; eliminating the unit employees’ discrete
seniority list and merging their seniority list with that of the
finishing department employees at Buena; and eliminating the
unit employees’ separate 401(k) retirement plan and placing
them in the same 401(k) as the nonunit employees. Under the
Vineland contract, the unit employees enjoyed job tenure pro-
tections and preferences in the case of reductions in force or
other reductions in personnel.9 When the unit employees began
work at Buena, however, the Respondent required them all to
sign forms acknowledging that they were now “at will” em-
ployees. Prior to the relocation, the unit employees were not
subject to an evaluation program, but at Buena the unit employ-
ees were covered by the same evaluation system as the nonunit
employees. The Respondent made all of these changes unilat-
erally and without the consent of the Union.
III. THE BOARD’S DECISION AND ORDER
A hearing was held before Judge Kocol on May 21 and 22,
2001. On August 2, 2001, he issued a decision that was subse-
quently affirmed by the Board in the decision and order that
gives rise to the compliance specification in this case. The
judge found that the unit recognized at Vineland continued to
be appropriate for bargaining after the relocation, and had not
been accreted into the Buena finishing department. He con-
cluded that the “Respondent essentially relocated the unit intact
while reducing employee wages and benefits and ridding itself
of the Union.” The judge rejected the Respondent’s claim that
the company had “a well-defined plan or timetable established
for achieving a functional integration of operations.” To the
contrary, the judge found, at the time of trial “the unit employ-
ees still worked in isolation, performing the same work on the

8 The collective-bargaining agreement stated an expiration date of
September 30, 1999, but also provided that it would remain in full force
and effect after that date while negotiations for a new contract contin-
ued. J. Exh. 1 at p. 35 (Collective-Bargaining Agreement, art. XXVII).
Since September 30, 1999, the Respondent has refused to recognize the
Union or engage in negotiations for a new contract.
9 For example, art. XIV, sec. 1, of the contract states that during a
reduction in force the more senior employees will be retained if other
factors are substantially equal. Sec. 5 of that article states that when
personnel is decreased “due to changes in methods of operations or
business conditions, employees with the greatest length of service shall
be given preference.” Art. XIV, sec. 6 states that during temporary lay-
offs, employee requests for other jobs will be granted based on senior-
ity, subject to certain requirements.
COMAR, INC. 347
same equipment as they had at Vineland.” Moreover, the Re-
spondent itself had acknowledged the separate identity of the
relocated applicator division, informing employees that the
operation would be moved to Buena “like a beehive” and reas-
suring customers that nothing about the operation was changing
except the physical location. The judge stated that although the
Respondent had made some changes “detracting from the dis-
tinctiveness of the unit,” the Respondent could not benefit from
those changes that it had made unlawfully.
The judge modified the unit definition because the existing
definition described the unit as being located at the Vineland
facility. He set forth the following modified unit description:
All hourly paid production workers who are performing the
work that was formerly done as part of the Applicator Divi-
sion of Comar, Inc. at its facility then located in Vineland,
New Jersey, except plant executives, salesmen, office em-
ployees, janitors, watchmen and foremen, as excluded by the
provisions of the Labor Management Relations Act of 1947
as amended.
The judge stated that this new unit description would continue
to be appropriate “until the parties themselves agree to modify
the unit description.”
The judge went on to find that the Respondent had violated
its bargaining obligations under Section 8(a)(5) and (1) by:
failing to recognize the Union; changing the terms and condi-
tions of employment covered by the collective-bargaining
agreement without obtaining the Union’s consent; unilaterally
changing other terms and conditions of employment without
providing the Union with notice and an opportunity to bargain;
failing to meet its obligation to bargain in good faith for a new
collective-bargaining agreement; and conditioning continued
employment of unit employees on their acceptance of wages
and benefits that were lower than those reached through collec-
tive bargaining (thereby, effectively discharging 24 unit em-
ployees who refused to accept employment under the unlaw-
fully implemented terms). In addition, the judge found that the
Respondent violated its obligations under Section 8(a)(5) and
(1) by refusing to provide the Union with information concern-
ing: the locations where unit employees and the equipment used
by those employees would be placed at the Buena facility; the
identities of the employees who were assigned to operate that
equipment; the supervisors of the unit employees; and the terms
and conditions of unit employees at Buena.
The judge also held that the Respondent failed to meet its ob-
ligation to bargain with the Union concerning the effects of the
relocation of unit work from Vineland to Buena. That obliga-
tion, he observed, includes the duty to bargain over the terms
and conditions of employment under which the unit employees
are initially to be employed at the new location. Although the
Respondent had offered to bargain over the effects of the relo-
cation, it had failed to meet its obligation in two respects. First,
the Respondent had refused to supply the Union with informa-
tion relevant to bargaining over the effects of the relocation.
Second, the Respondent had unlawfully imposed working con-
ditions on the unit employees at Buena and had not rescinded
those changes. Until that unlawful conduct was rectified, the
judge concluded, good-faith bargaining over the effects of the
relocation was precluded and “the Union was justified in sus-
pending [effects] bargaining.”
In his recommended Order, the judge required the Respon-
dent to, inter alia: cease changing the terms and conditions of
employment of unit employees covered in the collective-
bargaining agreement without obtaining the Union’s consent;
cease changing other terms and conditions of employment of
unit employees without providing the Union with notice and an
opportunity to bargain; recognize the Union as the representa-
tive of the unit employees; bargain in good faith with the Union
for a new collective-bargaining agreement; bargain in good
faith with the Union concerning the effects on unit employees
of the relocation of unit work to the Buena facility; rescind the
unlawful changes made to unit employees’ terms and condi-
tions of employment; offer the 24 discharged unit employees
reinstatement to their former jobs or, if those jobs no longer
existed, to substantially equivalent positions; make the unit
employees whole for any loss of earnings or benefits they suf-
fered as a result of the unlawful changes and discrimination
against them; provide the unlawfully withheld information; and
post a notice. Despite the finding that the Respondent had
failed to bargain in good faith regarding the effects of the relo-
cation, the judge rejected the General Counsel’s request for a
blanket Transmarine10 remedy. He concluded that such a rem-
edy would constitute a windfall for unit employees who were
already receiving make-whole relief under the other aspects of
the order. Instead, the judge ordered the Transmarine remedy
only for “those unit employees, if any, who would not have
accepted the transfer to Buena for reasons unrelated to the
unlawful conditions of employment,” or would not be rein-
stated because of the lack of a sufficient number of positions or
substantially equivalent positions. His recommended order
provided that an employee’s net interim earnings would be
deducted from any Transmarine award.
The Respondent filed exceptions to the judge’s decision, and
the General Counsel and the Charging Party filed cross-
exceptions. On July 31, 2003, the Board issued a decision af-
firming Judge Kocol’s rulings, findings, and conclusions.
However, the Board modified the remedy by extending the
Transmarine remedy to all unit employees, including those
already being provided with make-whole relief. In place of the
paragraph in the judge’s recommended Order concerning the
Transmarine remedy, the Board substituted a new paragraph
that made the remedy available to all unit employees, and de-
leted the reference to a deduction for interim earnings. The
new paragraph stated that it was the Respondent’s obligation to:
(j) Pay to the unit employees their normal wages when
in the Respondent’s employ from 5 days after the date of
this decision until the occurrence of the earliest of the fol-
lowing conditions: (1) the date the Respondent bargains to
agreement with the Union on those subjects pertaining to
the effects of the relocation of the unit employees from
Vineland to Buena, New Jersey; (2) the date a bona fide
impasse in bargaining occurs; (3) the failure of the Union
to request bargaining within 5 business days after receipt

10 Transmarine Navigation Corp., 170 NLRB 389 (1968).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD348
of this decision, or to commence negotiations within 5
business days after receipt of the Respondent’s notice of
its desire to bargain with the Union; or (4) the subsequent
failure of the Union to bargain in good faith; but in no
event shall the sum paid to any employee exceed the
amount that he or she would have earned as wages from
the date of the relocation of the unit employees to the time
he or she secured equivalent employment; provided, how-
ever, that in no event shall this sum be less than these em-
ployees would have earned for a 2-week period at the rate
of their normal wages when last in the Respondent’s em-
ploy at Vineland, with interest.
In a footnote to its decision, the Board rejected the Respon-
dent’s motion to reopen the record, but noted that during com-
pliance proceedings a party was free to introduce “evidence of
changes in its operations that occurred after the hearing, to the
extent that such changes might affect the remedy.”
The Respondent filed a petition for review of the Board’s
Order with the United States Court of Appeals for the District
of Columbia Circuit. On May 19, 2004, the court of appeals
rejected the Respondent’s petition and granted enforcement of
the Board’s Order in its entirety.
IV. UNION’S DEMANDS FOR BARGAINING
On August 9, 2001, 7 days after Judge Kocol issued his deci-
sion, the Union demanded, in writing, that the Respondent
“recognize and bargain with the Union as the representative of
the bargaining unit, rescind its unlawful unilateral changes in
terms and conditions of employment, and engage in effects
bargaining.” The Union made another written demand for bar-
gaining on August 5, 2003, after receiving the Board’s July 31
decision. In that letter, the Union requested that the Respon-
dent “engage in good-faith bargaining, and that the Employer
otherwise comply with the requirements of the Board’s Order.”
After the court of appeals May 19, 2004 judgment enforcing
the Board’s Order in its entirety, the Respondent still refused to
recognize the Union. The Respondent, in a July 30, 2004 letter
to the Union, stated that “the Union does not represent any
Comar employees.” On August 18, 2004, subsequent to the
court of appeals judgment, the Union again demanded that the
Respondent engage in bargaining. The Union stated that, pur-
suant to court of appeals judgment, the Respondent should:
recognize and bargain with the Union; bargain in good faith
concerning the effect on unit employees of the relocation of
unit work from Vineland to Buena; and rescind the unlawful
changes that the Respondent made to unit employees terms and
conditions of employment.
Despite the Board’s decision and the court of appeals judg-
ment, the Respondent: has continued to refuse to recognize the
Union as the bargaining representative of the unit employees;
has not bargained with the Union for a new collective-
bargaining agreement; has not bargained in good faith regard-
ing the effects of the relocation; has not rescinded the unlawful
unilateral changes covered by the Board’s Decision and Order;
has not provided any backpay at all to unit employees under
any section of the enforced Board Order; has not made valid
reinstatement offers to any of the unit employees;11 and has not
posted a notice.
V. CHANGES THAT RESPONDENT IMPLEMENTED TO ITS FINISHING
DEPARTMENT OPERATIONS SUBSEQUENT TO MAY 2001 HEARING
In this compliance proceeding, the Respondent argues that it
is excused from many of the most important elements of the
Board’s enforced Order because changes that the company
made to its operations after the May 21–22, 2001 hearing
eliminated the bargaining unit approximately 4 months later on
September 30, 2001. The record shows that operations at the
Respondent’s finishing department were not static either before
or after May 22, 2001. The Respondent introduced evidence at
the compliance hearing which showed that the Respondent was
engaged in an ongoing effort to reduce costs and improve qual-
ity by replacing more labor-intensive means of production with
faster, more highly automated, processes. Most notably, the
Respondent was reducing reliance on the labor-intensive rotary
machines to assemble droppers and was shifting that work to
the ADAMs and high-speed machines. As part of the reloca-
tion of the Vineland applicator operation, the Respondent ini-
tially moved 12 to 14 rotary machines to Buena. Over the next
approximately 6 years, all but two of those machines were
eliminated. At the time of the May 2001 hearing, the number
of rotary machines in operation at the Buena facility had
dropped to 11. In July 2002, the Respondent reduced the num-
ber of rotary machines in operation to 9–10 machines; in Octo-
ber 2002 it reduced the number to 8 machines; in December
2002 to 6–7 machines; in January 2004 to 5 machines; in Octo-
ber 2004 to 3 machines; and as of the time of the November
2005 hearing there were 2 rotary machines still in operation.12
As one would expect, the cumulative number of hours that the
group of rotary machines was in operation also declined. As of
the May 2001 hearing, the Respondent was operating its rotary
machines for a cumulative total of approximately 2000 hours
per month. In September 2001, and some other months at the
end of that year, the total of numbers hours of operation of the
rotary machines increased to over 2500 per month, but since
that time the evidence shows a general decline. The number of
employees also has declined. During the period from 2001 to
2005, the number of hourly employees at the Buena facility has
decreased from 203 to 164, and within that facility’s finishing
department the number of hourly employees has decreased
from 90 to 65.
As the rotary machines were eliminated, former Vineland fa-
cility employees were not terminated or laid off, but rather were
given other assignments at the Buena facility. Nearly all re-
mained within the finishing department and began operating

11 On August 29, 2003 (prior to the court of appeals judgment), the
Respondent sent letters to the discharged employees offering them
positions at the Buena facility. For reasons discussed elsewhere in this
decision, I conclude that those letters did not constitute valid offers of
reinstatement.
12 This information is contained in supporting documents included as
part of R. Exh. 12, which I receive into evidence. The General Counsel
and the Union originally lodged objections to the admission of this
exhibit, but they withdrew those objections on the basis of compro-
mises reached between the parties after the hearing.
COMAR, INC. 349
automatic machines, such as the ADAMs. The record indicates
that, as of the time of the hearing, few of the positions of em-
ployees in the finishing department were specific to a particular
machine. In most instances, the employee was assigned to
work on particular equipment based on the needs of the Re-
spondent. Employees in the finishing department were some-
times required to work in other areas of the Buena operation—
for example, in the manufacturing department—but apparently
such outside assignments are very rarely given to employees
who, like the former Vineland employees, were not previously
employed in the Buena facility’s manufacturing department.
During the period after the relocation, the Respondent also
increased its reliance on ADAMs. Immediately after the relo-
cation of the applicator division, there were three ADAMs in
operation at Buena, all of which had been transferred from
Vineland. Over the next 6 years, that number doubled. There
were still three ADAMs at Buena as of the May 2001 hearing.
By September 2004, the Respondent had increased the number
of ADAMs at Buena to five, and by the time of the compliance
hearing it had increased the number of ADAMs to six. The
ADAMs in operation at the time of the compliance hearing
incorporated computerized quality assurance equipment that
eliminated the need for visual inspections by the employees
operating them. The record shows that for the years 2002 to
2005 the Respondent approved the following amounts for capi-
tal expenditures in the finishing department: $368,000 in 2002;
$160,000 in 2003; $320,000 in 2004; and at least $355,000 in
2005.
The Respondent moved some of the finishing department
equipment operated by the unit employees to other locations
within the Buena facility after the May 2001 hearing. At the
time of the May 2001 hearing, most of the equipment that had
been relocated from the Vineland facility was in the manufac-
turing building. In April 2002, however, the ADAMs machines
in the manufacturing building were moved to the finishing
building, close to the high-speed machines. In 2002 or 2003,
the Respondent also moved the bellows machine from the
manufacturing building to the finishing building. That machine
had been among the items relocated from the Vineland facility.
Shortly before the November 2005 hearing, the Respondent
also moved a cap-punching machine from the manufacturing
building to the finishing building. This cap-punching machine
had originally come to the Buena facility from the Vineland
applicator division.
Subsequent to the May 2001 hearing, the Respondent also
made a change in the way it staffed the ADAMs. In the past,
both an operator and a setup mechanic had assigned tasks on
each ADAM. In 2003, the Respondent began to use a com-
bined position called “setup operator” for the ADAMs. The
setup operator would perform the tasks that the operators had
previously done on the ADAMs, plus many of the changeover
and basic troubleshooting work that the setup mechanics had
formerly performed. The unit members were free to apply, and
be considered, for the setup operator positions. Even after the
Respondent began assigning setup operators to ADAMs, it
would, in some instances, assign regular operators to those
machines. The change in the way ADAM-related tasks were
distributed among employees did not change the tasks that had
to be done in order to run the ADAMs. The Respondent also
made changes to employees work hours and shifts, but did not
notify the Union or give it an opportunity to bargain over those
changes.
At the same time that the Respondent has been making the
above-discussed changes in its finishing department operation,
much has remained unchanged. As discussed above, the Board
found that despite the relocation and changes the unit was ap-
propriate for bargaining as of the May 2001 hearing. Since
then, the Respondent has continued to make the same types of
products. Virtually all of the droppers that the Respondent
presently classifies as “standard” and “stock” either were
manufactured at Vineland or could have been manufactured
there.13 Similarly, as was the case at Buena in May 2001, and
as had been the case at Vineland, the Respondent continues to
make most of its droppers on a “custom” basis. The Respon-
dent also continues to produce combo stoppers and bellows
bulbs. The customer base that the Respondent sells to from the
Buena facility has remained essentially the same, as has the
means by which it obtains supplies for production. The under-
lying decision finds that many of the supervisors from the
Vineland applicator division became supervisors of the Buena
finishing department after the relocation and that the unit em-
ployees continued working under essentially the same supervi-
sion. The Respondent did not establish that this continuity of
supervision changed significantly after May 2001.14
In addition, the record shows that most of the types of
equipment that unit employees operated at Vineland, and some-
times the very same equipment, were still in operation at Buena
as of the time of the compliance hearing. As noted previously,
the ADAM capacity that had come from the Vineland facility
to the Buena facility continued and was expanded upon at
Buena. Vineland machines that are still in use at Buena also
include a cap-punching machine, the bellows machine, the
shrink wrap machine, one or more of the benches used for hand
assembly, a roll stamper, a combo stopper machine, and a re-
knobbing machine. Two of the rotary machines transferred
from the Vineland facility remain in operation, and both of
those are still located in the manufacturing building in the area
where they had been placed after being moved to the Buena
facility. There were three high-speed machines in operation at
the Buena facility as of the time of the May 2001 hearing, and
the record does not show that that number has ever changed.
Indeed, as of September 2004, there were still three high-speed
machines in operation.
VI. POTENTIAL FOR BARGAINING OVER CHANGES IN OPERATIONS
The Respondent did not give the Union prior notice or an
opportunity to bargain before making any of the post-May 22,
2001 changes through which it now claims to have brought
about the elimination of the unit. The Respondent contends,

13 The only exception appears to be a few products made with child-
resistant closures.
14 The Respondent presented some general testimony about the cur-
rent supervisory structure at the Buena facility finishing department,
but did not show that this was a significant departure from the supervi-
sion that Judge Kocol discussed in his decision finding that the unit
continued to exist at the Buena facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD350
inter alia, that it had no obligation to bargain because those
changes were not susceptible to collective bargaining. To sup-
port that contention, the Respondent relied on the testimony of
Gregory Bianco, who was plant manager and operations man-
ager of the Buena facility for approximately 5 years starting in
July 2000 and who became the Respondent’s program manager
in April 2005. Bianco testified that nothing the former Vine-
land employees or their representatives could have offered in
bargaining would have altered the decision to make the changes
in equipment, assignments, and location of equipment and unit
employees discussed above. For the reasons discussed below, I
do not credit that testimony.
First, Bianco conceded that he was not one of the officials
who decided to make the capital expenditures for the new ma-
chines and equipment upgrades. Bianco made annual recom-
mendations for such changes, but the record shows that senior
management frequently rejected many, and in some cases most,
of those recommendations. Bianco did not claim to have been
party to the deliberations that led senior management to pur-
chase any of the new machines or equipment upgrades that
Bianco had recommended, and none of those senior manage-
ment officials testified in the compliance hearing.15
Second, Bianco’s statement that no proposal by the Union
could have altered the Respondent’s decisions is speculation,
and, it appears, speculation largely unmoored in objective fact.
Bianco, himself, cited the desire to cut labor costs as a primary
motivation for the changes at issue here, and decisions in which
labor costs are a factor are particularly susceptible to bargain-
ing. Bianco did not claim to know what proposals the Union
would have made regarding the changes, or what alternative
solutions the give-and-take of bargaining might have generated.
He did not even claim to have calculated the labor cost savings
that would have resulted from specific alternative proposals
that he suspected might be made and/or agreed to by the Union.
Given Bianco’s acknowledgment that labor cost savings were a
major motivation for the changes, his conclusory claim that he
somehow knew in advance that no alternative the Union might
have offered could have alleviated the need for those changes is
unworthy of credence. Moreover, the record suggests that Bi-
anco had a bias in favor of viewing bargaining as futile. For
example, he testified on direct examination that the Respondent
would have moved the ADAMs to the finishing department
even if the unit employees had offered to accept minimum
wage in order to stop the change. However, on cross-
examination, Bianco conceded that he did not even know what
the applicable minimum wage was and so, clearly, he could not
have known what savings would have been realized from ac-
cepting such a proposal. For the above reasons, I do not credit
Bianco’s self-serving and conclusory pronouncements that
there was no possibility that collective bargaining would have

15 Indeed, while Bianco testified, in response to questions by the Re-
spondent’s counsel, that his recommendations were not influenced by a
desire to eliminate the Union, the Respondent did not offer the testi-
mony of senior management officials about whether they were influ-
enced by antiunion considerations when they decided which of Bi-
anco’s recommendations to accept.
altered the course of the unilateral changes by which the Re-
spondent now claims to have eliminated the unit.16
VII. LETTERS OFFERING EMPLOYMENT TO
DISCHARGED EMPLOYEES
On August 29, 2003, the Respondent sent letters by certified
mail to 22 individuals who the Board had found were effec-
tively discharged.17 In those letters, the Respondent stated that
it was offering the individuals positions at the Buena facility.
The letters all follow the same form, and state in relevant part:
You are hereby offered a position as a [job title] at our
Buena NJ facility at the same compensation you were
earning at the time you were laid of [sic] in 1999. This of-
fer is made unconditionally.
If you accept the offer, please notify us in writing by
September 15, 2003. If we do not hear from you by that
time, we shall assume you are not accepting the offer.
The job title stated in 17 of the letters was “operator,” in 2 let-
ters it was “warehouse person,” in 2 it was “mechanic,” and in
1 it was “laborer.”18 Anthony Wiessner, one of the discharged
unit members, started as a “warehouse attendant” at the Buena
facility shortly after receiving a letter offering to employ him as

16 To argue that it was permitted to the make the changes unilater-
ally, the Respondent also quotes a portion of a management-rights
provision in the collective-bargaining agreement, art. XVIII, which
states:
The management of the Plant and the direction of the working
force, including the right to hire, assign, suspend, transfer, pro-
mote, discharge or discipline for just cause, and to maintain disci-
pline and efficiency of its employees and the right to relieve em-
ployees from duty because of lack of work or other legitimate rea-
sons, the right to determine the extent to which the Plant shall be
operated, and to change methods or processes or to use new
equipment, the right to establish schedules of production, to intro-
duce new or improved products, methods or facilities, and to ex-
tend, limit or curtain its operations, is vested exclusively in the
Company.
The management-rights clause also contains the following language,
not mentioned by the Respondent:
The above statement of Management functions shall not be
deemed to exclude other functions not herein listed. In no case
shall the exercise of the above prerogatives of Management be in
derogation of terms and conditions of this Agreement.
17 The Respondent did not send such letters to two of the individuals
who the Board found were effectively discharged—James Smart and
Michele Guilford. The parties agree that Smart is not entitled to rein-
statement or backpay because he left the bargaining unit for a salaried
position prior to the events involved in the underlying unfair labor
practice proceeding. The General Counsel continues to seek relief for
the estate of Michele Guilford, who died prior the Board’s decision.
18 The record indicates that these are not complete job titles. Opera-
tors are designated either as “A”, “B,” or “C” operators depending on
their skill levels, and also receive a designation of “glass” or “plastics.”
Each mechanic is designated as either a “senior maintenance me-
chanic,” a “finishing maintenance mechanic,” a “maintenance me-
chanic,” a “finishing set up mechanic,” an “injection set up mechanic,”
a “blow molding set up mechanic,” a “mold and die mechanic,” a “fin-
ishing setup mechanic,” a “setup mechanic,” a “lead mold mechanic.”
It does not appear that any current employee is designated simply as a
“laborer.”
COMAR, INC. 351
a warehouse person. The evidence suggests that none of the
other unlawfully discharged employees returned to work with
the Respondent as a result of the letters.
VIII. UNION’S SEPTEMBER 1, 2004 AND JANUARY 18, 2005
INFORMATION REQUESTS
After the court of appeals decision, the Union, in a Septem-
ber 1, 2004 letter to the Respondent, requested information that
it stated was relevant to bargaining over the effects of the relo-
cation of unit work from the Vineland facility to the Buena
facility. That letter states in relevant part:
Effects bargaining includes the terms and conditions of
employment at the Buena location of relocated and relo-
cating employees, including their physical work locations;
and severance and other benefits for employees not relo-
cating to Buena. In order to consider what proposals to
make along the above lines, and to assist us in effects bar-
gaining, we will need the following information in detail,
for each hourly-paid employee at Buena:
1. Their name, specific job, physical job location,
hourly wage rate, any hourly premiums, and all benefits
including but not limited to retirement and health benefits
and health insurance contribution (the company’s and the
employees’);
2. Their immediate supervisor;
3. The equipment they work on;
4. Their shift hours;
5. Their average weekly hours of work for the last 12
months.
Additionally, please provide us with the terms of any
plant closing or relocation benefit packages paid to em-
ployees of Comar since April 1999. Include the details as
to the employees involved, what they received and the
plant(s) involved, and any other terms of the package(s).
The next day, September 2, the Respondent replied by letter,
stating that the Union’s information request was “too broad in
that it seeks information about Comar employees the Union has
never represented.” The Respondent did not object to provid-
ing information on the employees “who were represented by
the Union and who transferred from Vineland to Buena,” and
stated that it hoped to forward such information to the Union
“within two or three weeks.” In the same letter, the Respondent
made a four-part request for information to the Union.
In a September 15, 2004 letter, the Union explained its posi-
tion regarding information on nonunit employees. The Union
stated that the “request for that information was not based on a
claim to represent all the Buena employees.” Rather, the Union
needed the information because it could not “intelligently bar-
gain over the rates and benefits for Vineland employees to
work at Buena, without knowing how a possible proposal com-
pares to the wages, benefits, and other terms and conditions of
employment of other hourly workers at the same location
(Buena).” The Union also stated that “effects bargaining in-
cludes the physical location at Buena of the relocated Vineland
employees,” and that the way the work areas were configured,
and the locations of all workers, were relevant to that issue. At
the hearing, Timothy Tuttle (the union official assigned to lead
the bargaining effort) testified that another reason the Union
wanted this information was for use in negotiations over the
placement of bargaining unit employees in other positions at
Buena as part of effects bargaining. With the September 15
letter, the Union provided the Respondent with the information
sought in the Company’s September 2 information request.
Although the Respondent had indicated that it would provide
the Union with all the information regarding the former Vine-
land unit employees within 2 or 3 weeks of the request, the
Respondent did not provide any of that information for over 4
months. The correspondence between the parties indicates that
the Respondent did not provide the information until the Union
resubmitted the September 1 request on December 28, and
brought the matter to the Respondent’s attention again in a
January 3, 2005 letter. On January 6, 2005, when it first pro-
vided information in response to the September 1 request, the
Respondent turned over a total of 13 pages of documents,
which the Respondent said represented “the majority of the
information” requested.19 On January 24, 2005, the Respon-
dent provided the Union with additional information—
insurance plan description documents and pay stubs showing
employees’ annual medical insurance contributions. According
to Tuttle there was no other information that the Union was
seeking at that time regarding the unit employees.20
William Hughes—who as the Respondent’s human re-
source’s director coordinated the collection of the informa-
tion—testified concerning the delay. He did not attempt to
explain the delay by claiming that the information requested by
the Union was voluminous or that it took many days or weeks
to gather. Rather, he testified that he had been preoccupied
responding to requests from the Board’s Regional Office for
information relating to the preparation of a compliance specifi-
cation. The Regional Office made the first such request on
September 8—after the Union’s September 1 information re-
quest. Hughes stated that he believed the Board’s information
request took precedence over the Union’s earlier request. On
October 1, 2004, the Respondent supplied the Board’s agent
with information responsive to the September 8 request, but
additional information requests followed. Hughes stated that
during the period from early September 2004 to January 2005
he was spending 60 to 65 percent of his worktime responding to

19 Those 13 pages were: a memorandum transmitting the information
(1 p.); a list of the Vineland employees who accepted transfer to Buena
(1 p.); a spreadsheet showing each transferred employees’ job title, job
location within the plant, assignment, shift, average hours worked,
immediate supervisor, and shift differential (2 pp.); a list showing the
average weekly hours worked for each transferred employee (1 p.); a
payroll printout for the transferred employees (4 pp.); a statement of the
terms and conditions of employment for the transferred employees (2
pp.); a statement of the weekly insurance contributions paid by the
transferred employees for their medical coverage (1 p.); and a list of the
two other Comar plant closings since April 1999, with information on
severance benefits (1 p.).
20 On July 15, 2005, the Respondent provided the Union with a
company handbook, which Hughes said he had inadvertently failed to
include with the materials supplied earlier. This had not been specifi-
cally requested by the Union in its September 1 information request,
and Tuttle’s testimony indicated that the Union did not consider it to be
covered by that request.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD352
the Board’s requests. Hughes also testified that he sustained a
brain injury in February 2004 and that, as a result of that injury,
he has cognitive problems and has to “take a lot of notes and
write things down in order to stay on track.” These factors, he
testified, accounted for the Respondent’s delay in providing the
Union with the requested information regarding employees who
had formerly worked in bargaining unit positions at Vineland.
On January 18, 2005, the Respondent and the Union met for
the purpose of bargaining over the effects of the relocation of
unit work to the Buena facility. At that meeting, counsel for
the Union renewed the request for information about nonunit
employees and expressly stated that by meeting the Union was
not waiving its right to that information. Counsel for the Re-
spondent reaffirmed the Company’s position that it was refus-
ing to provide any information on nonunit employees. Counsel
for the Respondent did, however, make a statement that “all
employees at Buena are paid the same rates for the same job.”
The record indicates that this representation by Respondent’s
counsel was inaccurate, or at least misleading. Documents
subsequently produced by the Respondent show that employees
at Buena were often paid different rates even when they held
the same positions in the same departments. (See R. Exh. 58.)
On November 1, 2005—the eve of the hearing—the Respon-
dent surrendered much of the information sought in the com-
plaint. This was over 9 months after the Union’s January 18
verbal request for the information, and 14 months after the
Union’s September 1, 2004 written request. The Respondent
still refused to provide the names of the individual nonunit
employees—referring to them only by initials—and did not
reveal the amount of contributions made by the employees and
the Respondent towards healthcare benefits. At the hearing,
Tuttle testified regarding the Respondent’s last-minute produc-
tion of information regarding nonunit employees. On cross-
examination, Tuttle was asked why the Union needed to know
the names of the nonunit employees. He responded, “It was
important to know who we were talking about and where these
individuals worked and what equipment they worked on,” and
“who worked on a specific machine” so that “we were in-
formed as to . . . the operation in Buena.”21

21 In its brief, the Respondent alleges that certain events occurred af-
ter the close of the hearing. The Union has moved to strike these asser-
tions, which are found in fns. 34 and 36 of the Respondent’s brief. I
grant the Union’s motion to strike those assertions which are com-
pletely unsubstantiated by any record evidence in this case. The Union
also moves to strike fn. 29 in the Respondent’s brief, which makes an
argument based on an offer of proof that Respondent’s counsel made
after I excluded testimony concerning the Union’s alleged misconduct
in unrelated dealings with a different employer. That testimony is
outside the record, and I grant the Respondent’s motion to strike fn. 29.
The Union and the General Counsel also move to strike multiple other
defenses and contentions raised by the Respondent in its answer to the
compliance specification and its brief. Most of those additional re-
quests to strike are, in reality, nothing more than arguments about how
to analyze the facts and law in this matter, and the remaining requests
to strike are mooted by my other findings and conclusions. Therefore,
the Union’s motion to strike is denied, except to the extent stated
above, and the General Counsel’s motion to strike is denied in its en-
tirety. The Respondent’s motion, which asks me to strike portions of
IX. BARGAINING CONCERNING EFFECTS OF RELOCATION
On August 18, 2004—subsequent to the court of appeals de-
cision enforcing the Board’s Order—the Union made a written
request that the Respondent “bargain in good faith with the
[Union] concerning the effects on unit employees of the reloca-
tion of unit work from Comar, Inc.’s Vineland, NJ facility to its
Buena, NJ facility.”22 This set off a round of correspondence in
which both sides offered dates for bargaining regarding effects,
but were unable to settle on a bargaining date for almost 5
months.
The record indicates that the Respondent did not answer the
Union’s August 18 request to bargain directly, but that in an
August 26 letter to the Board’s Regional Office, the Respon-
dent expressed a willingness to engage in effects bargaining
“if” the Union requested such bargaining. The Respondent
provided a copy of this letter to the Union on August 27. In a
September 1, 2004 letter, the Union again requested that the
Respondent bargain over the effects of the relocation. The
Respondent replied in a September 2 letter by stating that it was
willing to engage in effects bargaining and asked for dates
when the Union could meet in September and October. In the
same letter, the Respondent stated that it was refusing to pro-
vide the Union with information regarding any employees who
had not been unit members at the Vineland facility. The Union
responded by letter on September 15, stating that it could meet
for effects bargaining on September 30 or October 1. The Un-
ion also stated that it viewed the Respondent’s refusal to pro-
duce the requested information as a failure to bargain, and that
“[b]y meeting, the Union [was] not waiving its rights to re-
quested information for bargaining.” In a September 27 letter,
the Respondent stated that it was unavailable to meet on the
dates offered by the Union, but that it could meet on October 8.
The Union responded that it was available to meet on October
27. The correspondence indicates that the Respondent rejected
that date, but offered to meet on November 8 or December 13
or 14. In an October 18 letter, the Union stated that it was will-
ing to meet on any of those dates and asked the Respondent to
respond. As of November 22, the Respondent had not an-
swered the Union’s October 18 letter, and the Union wrote to
the Respondent again to try to arrange a meeting on either of
the December dates. In a letter dated November 23, 2004, the
Respondent’s attorney stated that he had not received the Un-
ion’s October 18 letter, and that the Company was not available
to bargain on December 13 and 14. The letter stated that when
the Respondent’s attorney returned from vacation he would
contact the Union regarding new dates for bargaining. The
Respondent’s attorney apparently did not contact the Union
with new dates until over a month later, on December 28. On
that date, according to correspondence in the record, the Re-
spondent’s attorney asked the Union to provide dates when it
could meet in January 2005 for effects bargaining. In a letter
dated January 3, 2005, the Union responded that it was avail-

the Union’s motion to strike is moot, given my decision to deny the
relief sought in those portions of the Union’s motion.
22 As discussed above, the Union had previously requested bargain-
ing shortly after the issuance of the judge’s decision and again shortly
after the issuance of the Board’s decision.
COMAR, INC. 353
able to meet on January 18, 24, or 26, 2005. The Respondent
agreed to meet on January 18.
That meeting took place, as agreed, on January 18. Attend-
ing for the Union were: Tuttle; James LaVaute (attorney for
the Union), John Shinn (staff representative), Anthony (Skip)
Wiessner (officer with union local), and Catherine Guilford
(officer with union local). Present for the Respondent were
Joel Cohen (attorney for the Respondent) and Hughes. At the
meeting, LaVaute stated that the Union needed the information
regarding nonunit employees at the Buena facility for purposes
of effects bargaining as explained in the September 15 letter,
and that the Union could not make proposals without it. Cohen
responded that the Union did not represent the nonunit employ-
ees and that the Respondent refused to provide information
regarding them. Cohen did, however, agree to provide addi-
tional information regarding the Vineland unit employees.
LaVaute suggested that the parties could resolve their dispute if
the Union agreed to a substantial reduction in backpay in ex-
change for the Respondent recognizing the Union, entering into
a new contract, and reinstating those unit employees who had
not already been reinstated. Cohen answered that the Respon-
dent would not recognize the Union or enter into a new con-
tract. He stated that the employees who were in the unit at the
Vineland facility had been “comingled” at the Buena facility,
and that the Union no longer represented them.
LaVaute asked if the Respondent had any proposals of its
own to make, and Cohen responded that the Respondent would
not make any proposals until it received backpay calculations
from the Board.23 There was some discussion of the amount of
backpay that was due. LaVaute expressed the view that the
Union could not go any further until the Respondent supplied
the information that had been requested. Cohen asked the Un-
ion to state additional dates when it could bargain, and LaVaute
responded that the Union would bargain when the Respondent
provided the information the Union was seeking. Subse-
quently, the Respondent continued to withhold information
regarding nonunit employees at Buena.24 No additional dates
for effects bargaining were suggested by either side.
At the time of the 2004–2005 discussions regarding effects
bargaining, the Respondent had not rescinded the new working
conditions that it unilaterally imposed on the unit employees
who transferred to Buena. The Board has already found, and

23 Tuttle testified that Cohen made this statement at the January 18
meeting. Tr. 51. Hughes, on the other hand, testified that he did not
recall Cohen making such a statement, Tr. 464, 471–472, but he also
indicated that he was not certain the statement was not made, Tr. 473.
As discussed above, Hughes also candidly stated that his cognitive
functioning was compromised due to a brain injury. Based on their
demeanor and testimony, I believe that both Tuttle and Hughes testified
honestly to the best of their recollections regarding the January 18
meeting. However, under the circumstances, I credit Tuttle’s clear and
certain testimony regarding the statement by Cohen greater weight than
Hughes’ less than emphatic testimony that he did not remember Cohen
making the statement.
24 As discussed above, on the eve of the hearing concerning the in-
formation requests, the Respondent surrendered most of the informa-
tion that the Union had been seeking regarding nonunit employees.
the court of appeals affirmed, that those changes were in viola-
tion of the Act.
Analysis and Discussion
I. THE UNFAIR LABOR PRACTICES COMPLAINT
The unfair labor practices complaint alleges that the Respon-
dent has failed to bargain in violation of Section 8(a)(5) and (1)
of the Act: from September 1, 2004, until on or about January
7, 2005, by failing to furnish the Union with requested informa-
tion concerning unit employees that is necessary for bargaining;
from September 1, 2004, until on or about July 15, 2005, by
failing to furnish the Union with requested information con-
cerning unit employees’ benefits that is necessary for bargain-
ing; since about January 18, 2005, by failing and refusing to
furnish the Union with requested information regarding all
nonunit hourly employees at the Buena facility. For the reasons
discussed below, I conclude that the Union was entitled to the
information it sought from the Respondent in its September 1,
2004 written request, and its January 18, 2005 verbal request,
and that the Respondent violated the Act by refusing to provide
some of that information and supplying other information only
after an unreasonable delay.25
With respect to the information that the Union sought about
unit employees, the Respondent does not contest the Union’s
entitlement and indeed such information is presumptively rele-
vant to bargaining. See Quality Building Contractors, 342
NLRB 429, 431 (2004); Western Massachusetts Electric Co.,
234 NLRB 118, 118–119 (1978), enfd. 589 F.2d 42 (1st Cir.
1978). Nevertheless, the Respondent did not provide any of
that information until over 4 months after the Union requested
it. An employer’s “unreasonable delay in furnishing such in-
formation is as much of a violation of Section 8(a)(5) of the Act
as a refusal to furnish the information at all.” Amersig Graph-
ics, Inc., 334 NLRB 880, 885 (2001); see also Britt Metal
Processing, Inc., 322 NLRB 421, 425 (1996), affd. mem. 134
F.3d 385 (11th Cir. 1997); Leland Stanford Junior University,
307 NLRB 75, 80 (1992); Valley Inventory Service, 295 NLRB
1163, 1166 (1989). “Absent evidence justifying an employer’s
delay in furnishing a union with relevant information, such a
delay will constitute a violation . . . inasmuch ‘[a]s the Union
was entitled to the information at the time it made its initial
request, [and] it was [the employer’s] duty to furnish it as
promptly as possible.’” Woodland Clinic, 331 NLRB 735, 737
(2000), quoting Pennco, Inc., 212 NLRB 677, 678 (1974).
The Board evaluates the reasonableness of an employer’s de-
lay in supplying information based on “the complexity and
extent of the information sought, its availability and the diffi-
culty in retrieving the information.” Samaritan Medical Cen-
ter, 319 NLRB 392, 398 (1995), citing Postal Service, 308
NLRB 547 (1992). I have reviewed the 13 pages that the Re-
spondent provided on January 6—following a delay of over 4
months—and conclude that the information could readily have
been prepared within a few days or weeks of the Union’s re-

25 The Respondent’s answer to the complaint includes, as an affirma-
tive defense, an assertion that the “allegations of the complaint are
time-barred.” The Respondent did not press, or explain, this defense in
its brief or at the hearing and I conclude that it has been abandoned.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD354
quest. The Respondent has not introduced any evidence to
show that, contrary to appearances, this information was par-
ticularly complex, voluminous, or burdensome to provide. The
provision of other responsive information was delayed even
longer—until January 24, 2005, when it was too late for use by
the Union at the January 18 bargaining session. The Board has
consistently found delays of considerably less than 4 months
duration to be unreasonable. See Pan American Grain Co., 343
NLRB 318 (2004), enfd. in relevant part 432 F.3d 69 (1st Cir.
2005) (3-month delay unreasonable); Bundy Corp., 292 NLRB
671 (1989) (delay of 2.5 months violates the Act); Woodland
Clinic, 331 NLRB at 737 (delay of 7 weeks violates the Act).
The Respondent has not identified any cases in which the
Board has approved a delay of over 4 months, and certainly
none in which the Board excused such a delay where the infor-
mation sought was not unusually complex, voluminous, or
difficult to retrieve.
The Respondent contends that its delay in supplying the Un-
ion with information was reasonable because the Company was
busy responding to information requests from the Board’s Re-
gional Office. This argument is not supported as a matter of
law or, given the facts, as a matter of common sense. First, as
noted above, the Board evaluates the reasonableness of delays
in supplying information based on the burdensomeness of the
information requested. An employer cannot justify delays in
supplying information on the basis of other, unrelated, demands
on its time. See, e.g., DaimlerChrysler Corp., 344 NLRB.
1324, 1330 (2005); Samaritan Medical Center, supra at 398;
Bundy Corp., supra at 672. From a practical standpoint, the
Union’s request in this case was made 7 days before the Re-
gional Office’s September 8 request. Therefore, the Respon-
dent could have compiled much, if not all, of the information
eventually provided to the Union on January 6, 2005, even
before the Regional Office made the information request on
which the Respondent tries to blame the delay.
For the reasons stated above, I find that the Respondent vio-
lated Section 8(a)(5) and (1) by unreasonably delaying the pro-
vision of information regarding unit employees that the Union
requested in its September 1, 2004 letter.26
Regarding the Union’s information request for information
about nonunit employees, the Respondent argues that the Union
is not entitled to such information because it is “not relevant.”
For employees outside the bargaining unit, the Union bears the
burden of establishing relevancy. Tri-State Generation &
Transmission Assn., 332 NLRB 910 (2000). However, that
burden is not an exceptionally heavy one, requiring only a
showing of “probability that the desired information [i]s rele-
vant, and that it would be of use to the union in carrying out its
statutory duties and responsibilities.” NLRB v. Acme Industrial
Co., 385 U.S. 432, 437 (1967); Shoppers Food Warehouse, 315

26 Given the finding that the Respondent unreasonably delayed pro-
viding information on unit employees when it waited until January 6
and 24, 2004, to respond to the Union’s September 1, 2004 request, it is
not necessary for me to reach the issue of whether the Respondent’s
further delay until July 15, 2005, before supplying other information on
unit employees was also unreasonable. Such a further finding would be
cumulative and would not affect the remedy. See DaimlerChrysler
Corp., above.
NLRB 258, 259 (1994); Postal Service, 310 NLRB 391, 391–
392 (1993). “The Board uses a broad, discovery-type of stan-
dard in determining relevance in information requests, includ-
ing those for which a special demonstration of relevance is
needed, and potential or probable relevance is sufficient to give
rise to an employer’s obligation to provide information.” Shop-
pers Food Warehouse, supra at 259; see also Acme Industrial,
supra at 437 fn. 6; see also Kathleen’s Bakeshop, LLC, 337
NLRB 1081, 1093 (2002), enfd. 2003 WL 22221353 (2d Cir.
2003).
As discussed above, the Union informed the Respondent that
it was seeking the information regarding nonunit employees
because it could not “intelligently bargain over the rates and
benefits for Vineland employees to work at Buena, without
knowing how a possible proposal compares to the wages, bene-
fits, and other terms and conditions of employment of other
hourly workers at the same location (Buena).” The Union
stated that it needed information about nonunit employees’
work locations and assignments so that it could negotiate over
the physical locations where the relocated Vineland unit em-
ployees would be working at the Buena facility, and over the
transfer of unit employees into nonunit positions at Buena.
Tuttle explained the request for the names of the nonunit em-
ployees by stating that “[i]t was important to know who we
were talking about and where these individuals worked and
what equipment they worked on,” and “who worked on a spe-
cific machine” so that the Union would be informed about “the
operation at Buena.” The Union also states that it needs to
contact those employees about the specifics of their nonunit
positions so that it can decide whether it is desirable to transfer
members to nonunit positions. According to the Union, it also
requires the names of the nonunit employees in order to verify
the information that the Respondent has provided about those
employees.
With respect to the information that the Union requested
about the terms and conditions of employment of nonunit em-
ployees at Buena, the evidence clearly shows a “probability that
the desired information is relevant, and that it would be of use
to the union in carrying out its statutory duties and responsibili-
ties.” NLRB v. Acme Industrial Co., supra. Even if one were to
accept the Respondent’s claim that the unit ceased to exist sub-
sequent to the May 2001 hearing, the Company would still have
an obligation to bargain over the effects of the relocation of unit
work from the Vineland facility to the Buena facility. That
obligation includes bargaining over the relocated workers’
wages, work locations, schedules, carryover of seniority, and
other terms and conditions of employment at the new plant, as
well as over the conditions of the transfer. Comar, supra at
913; Sea Jet Trucking Corp., 327 NLRB 540, 547 (1999), re-
view denied mem. 221 F.3d 196 (D.C. Cir. 2000); Holly Farms
Corp., 311 NLRB 273, 279 fn. 25 (1993), enfd. 48 F.3d 1360
(4th Cir. 1995), affd. 517 U.S. 392 (1996); Allied Mills, Inc.,
218 NLRB 281, 286–287 (1975), enfd. mem. 543 F.2d 417
(D.C. Cir. 1976), cert. denied 431 U.S. 937 (1977); Cooper
Thermometer Co., 160 NLRB 1902, 1911–1912 (1966), enfd.
376 F.2d 684 (2d Cir. 1967). In Kathleen’s Bakeshop, supra at
1093, the Board ruled that a union was entitled to information
regarding the wages and benefits of nonunit employees for
COMAR, INC. 355
purposes of negotiating over the effects of an employer’s deci-
sion to relocate unit work. See also Frito-Lay, Inc., 333 NLRB
1296 (2001), vacated 51 Fed.Appx. 482 (5th Cir. 2002) (union
is entitled to information about employees at facilities outside
the bargaining unit in order to bargain knowledgeably about the
employer’s wage policy). In the instant case, the information
sought by the Union regarding the terms and conditions of
other employees working at the Buena facility is not only of
probable relevance to those issues, but it is hard to imagine how
the Union could bargain intelligently about such issues without
that type of information. After the Union made its January 18,
2005 verbal request for the information regarding the nonunit
employees, the Respondent unreasonably delayed providing
any of the information for over 9 months—relenting only a day
before the hearing in this matter.
With respect to the Union’s request that the Respondent pro-
vide the names of the nonunit employees who occupy the vari-
ous positions at the Buena facility, the question is somewhat
closer. On balance, I conclude there is a probability that such
information, by helping the Union to investigate the positive
and negative aspects of specific positions outside the unit,
would be of use to the Union in negotiations over the transfer
of its members to such positions at the Buena facility. Western
Electric, Inc., 225 NLRB 1374, 1377–1378 (1976), enf. denied
559 F.2d 1131 (8th Cir. 1977) (names of nonunit employees
must be provided where relevant to issue of transfer of person-
nel between nonunit and unit positions); see also AGA Gas,
Inc., 307 NLRB 1327 (1992) (employer required to provide
names of nonunit workers allegedly performing unit work);
Westinghouse Electric Corp., 304 NLRB 703, 708 (1991) (em-
ployer required to provide names of nonunit members where
information is relevant to grievance over discipline of unit
member); Depository Trust Co., 300 NLRB 700, 704 (1990)
(employer required to provide names of nonunit workers alleg-
edly performing unit work). Information associating particular
individuals with the positions they hold would assist the Union
in deciding which nonunit employees to contact, and in discuss-
ing specific nonunit positions with employees who were willing
to provide information. I recognize that the Union could at-
tempt such inquiries without knowing the identities of the indi-
viduals who hold particular nonunit positions, however, I be-
lieve that such a limitation would unnecessarily hamper the
Union’s efforts. I also conclude that the Union is entitled to the
names of nonunit employees for use in verifying the accuracy
of the information provided by the Respondent regarding the
terms and conditions that nonunit employees are working un-
der. As discussed above, the Respondent previously made an
inaccurate or misleading representation to the Union regarding
the wages of nonunit employees at Buena. Moreover, the
document that the Respondent provided to the Union showing
the terms of nonunit positions is a summary document—
apparently created for purposes of supplying the information—
and therefore is somewhat less reliable than original business
records would have been. Under these circumstances, I con-
clude that the Union should not have to take the employer’s
word that information provided is an accurate or complete re-
sponse to the request, but rather is entitled to information from
which it is possible to verify the response. See New York Tele-
phone Co., 299 NLRB 351, 357 (1990), enfd. 930 F.2d 1009
(2d Cir. 1991) (union does not have to take the employer’s
word that information provided is complete, but is entitled to
information from which it may verify the response).
The Respondent asserts confidentiality concerns as a basis
for withholding the names of the employees. Such concerns
must be “legitimate and substantial” in order to outweigh the
Union’s entitlement to relevant information. International
Protective Services, 339 NLRB 701, 704 (2003); Pennsylvania
Power Co., 301 NLRB 1104, 1105–1106 (1991). In this case,
the record provides no basis for suspecting that the Union in-
tends to use the employees’ names for improper purposes or in
any other manner that would disseminate confidential informa-
tion. The evidence does not show that the Respondent is en-
gaged in an effort to organize nonunit employees at Buena.
Although the disclosure of individual employees’ wage and
benefit information to the Union implicates privacy concerns to
some extent, the Board has generally found that, without more,
such concerns do not justify withholding information that is
relevant to the Union’s role as bargaining representative. See,
e.g., King Broadcasting Co., 324 NLRB 332, 338 (1997); AGA
Gas, Inc., supra: Westinghouse Electric Corp., supra; Deposi-
tory Trust Co., supra; Western Electric, supra. In the instant
case, the terms under which individual employees are working
were not shown to be so personalized as to raise substantial
privacy concerns.27 There is no reason to believe that disclo-
sure of the names would somehow reveal medical history or
other sensitive information about the individuals. The Respon-
dent did not show that nonunit employees objected to having
the information regarding their individual terms and conditions
of employment shared with the Union. Nor was there testi-
mony showing that the Respondent generally made special
efforts to keep such information secret within the Buena facil-
ity, or that nonunit employees had a reasonable expectation of
privacy with respect to such information.28

27 The Respondent cites Times-Herald, Inc., 258 NLRB 1041, 1041–
1042 (1981), in which the Board refused to order the employer to pro-
vide a union that represented newspaper writers with information show-
ing the specific amounts that non-unit columnists and correspondents
were being paid. In that case, the Union claimed that it needed the
information to make wage proposals for writers who were part of the
unit, but the Board found that the union was, in fact, premising its wage
proposals on factors other than the compensation of nonunit employees,
and that the amounts paid to the nonunit employees such as columnists
were not “directly translatable” to the hourly compensation of the unit
employees. Given the doubts raised in Times-Herald regarding the
relevance of the employee-specific information requested there, it is
likely that the Board would have declined to order the production of the
employee-specific wage information, even aside from any concerns
about privacy. Moreover, the columnist compensation arrangements
appear to have been more personalized, and therefore, arguably more
private, than the wage information for hourly employees at the Respon-
dent’s Buena facility.
28 In its brief, the Respondent raises the specter that complying with
the Union’s information request will result in the release of employees’
social security numbers. That argument is a red herring. The Union’s
request does not specifically or implicitly encompass social security
numbers and there is no allegation in the complaint that the Respondent
violated the Act by withholding such information.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD356
For the reasons stated above, I find that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unreasonably delay-
ing the provision of information regarding nonunit employees
that the Union verbally requested on January 18, 2005. In addi-
tion, I find that the Respondent violated Section 8(a)(5) and (1)
of the Act by withholding the names of the nonunit employees,
and information regarding the amount of contributions made by
employees and the Respondent towards healthcare benefits,
both of which were encompassed by the Union’s verbal request
on January 18, 2005.
II. COMPLIANCE SPECIFICATION
The compliance specification implements the remedy or-
dered by the Board’s decision in Comar, Inc., 339 NLRB 903
(2003), enfd. 111 Fed.Appx. 1 (D.C. Cir. 2004). It sets forth
specific monetary awards for the two groups of employees
who, under the Board’s Order, are entitled to relief as victims
of the Respondent’s unlawful conduct. One of those groups—
referred to in the compliance specification as “class A”—is
comprised of the unit employees who accepted transfers from
the Vineland facility to the Buena facility. The other group—
referred to as “class B”—is comprised of those who were effec-
tively discharged at the time of the relocation. The calculations
in the compliance specification cover the period beginning on
September 27, 1999, and continuing, for most employees,
through the fourth quarter of 2004, although the General Coun-
sel’s position is that relief continues to accrue subsequent to
that period. The monetary relief for employees includes both
make-whole relief (net backpay, 401(k) contributions, medical
insurance premiums, unreimbursed medical expenses, and life
insurance) and a concurrent Transmarine remedy.29 The com-
pliance specification also reiterates the Respondent’s obliga-
tion, under the Board’s order, to recognize and bargain with the
Union, to bargain with the Union over the effects of the reloca-
tion, and to provide information.30
The Respondent admits to the appropriateness of the formu-
las employed in the compliance specification, as well as to the
accuracy of the data used. However, the Respondent makes a
number of arguments that, if accepted, would dramatically
reduce the monetary awards. First, the Respondent argues that
the bargaining unit was eliminated as of September 30, 2001,
because of changes in the Company’s operations and that no
backpay should accrue after that date. The Respondent also

29 For most of the employees, the compliance specification accrues
the Transmarine remedy for a period beginning after the issuance of the
Board’s decision and continuing through the rest of the backpay period.
An exception is made in the case of Michele Guilford, who died on
April 6, 2003, and for whom the Transmarine remedy is limited to 2
weeks. The backpay period is also terminated for two individuals,
Mary Cione and Lenell Stewart, as of the dates of their retirements.
30 The Respondent expresses concern that the General Counsel is
somehow attempting to bring the entire finishing department at the
Buena facility within the bargaining unit. That concern is misplaced.
The compliance specification does not seek relief for any individuals
other than those who were part of the bargaining unit at the Vineland
facility. Neither the General Counsel nor the Charging Party has asked
that I alter the unit definition set forth in the underlying decision. That
decision directs that the unit description will remain in effect “until the
parties themselves agree to modify [it].”
argues that, because the bargaining unit has been eliminated,
the company is not required to comply with the Board’s Order
to recognize the Union, bargain for a new collective-bargaining
agreement, and refrain from making unilateral changes to unit
employees’ terms and conditions of employment. Second, the
Respondent contends that even if the backpay period continues,
relief for the group of discharged employees should cease as of
August 29, 2003, because on that date the Company sent letters
to employees offering them employment. For the same reason,
the Respondent argues that reinstatement is no longer an appro-
priate remedy for those individuals. Third, the Respondent
contends that the discharged employees are not entitled to rein-
statement because downsizing at the Buena facility caused their
positions to be eliminated and open positions are not available.
Fourth, the Respondent argues that the Transmarine remedy for
each employee should accrue for no more than the 2-week
minimum period stated in the order because requiring the pay-
ment of an ongoing Transmarine remedy for the same periods
as for make relief would be punitive. The Respondent argues
that if the Transmarine remedy is not limited to the 2-week
minimum period the calculations in the compliance specifica-
tion are still excessive because those calculations do not deduct
the amount of employees’ interim earnings, or recognize that
employees have secured equivalent employment. The Respon-
dent further argues that the Transmarine remedy should be
tolled because the Company was willing to engage in effects
bargaining, but the Union failed to adequately pursue such
bargaining.
The burden is on the employer who committed the unfair la-
bor practice to establish facts that reduce the amount due for
gross backpay. Atlantic Limousine, Inc., 328 NLRB 257, 258
(1999), enfd. 243 F.3d 711 (3d Cir. 2001); Florida Tile Co.,
310 NLRB 609 (1993), enfd. mem. 19 F.3d 36 (11th Cir. 1994).
Any uncertainty about how much backpay should be awarded
to a discriminatee is resolved in his or her favor and against the
respondent whose violation caused the uncertainty. Alaska
Pulp Corp., 326 NLRB 522 (1998), enfd. in part and principle
approved 231 F.3d 1156 (9th Cir. 2000); Intermountain Rural
Electric Assn., 317 NLRB 588, 590–591 (1995), enfd. mem. 83
F.3d 432 (10th Cir. 1996). For the reasons discussed below, I
reject each of the Respondent’s arguments for limiting the rem-
edy set forth in the compliance specification.
A. Respondent has not Established That the Bargaining
Unit Ceased to Exist as of September 30, 2001
As discussed above, the Respondent previously argued to
Judge Kocol, to the Board, and to the court of appeals, that the
longstanding bargaining unit that was relocated from the Vine-
land facility had lost its identity in the larger Buena work force,
and ceased to exist as of the time of the prior hearing in May
2001. That argument was rejected at each of those levels of
consideration. In this compliance proceeding, the Respondent
raises the same argument again, changing only the date—
contending now that if the bargaining unit did not cease to exist
as of the prior hearing, then it ceased to exist approximately 4
months later on September 30, 2001. I conclude that this line
of argument is precluded by the Respondent’s failure to meet
its obligations, previously established under the Board’s order,
COMAR, INC. 357
to recognize the Union, bargain in good faith for a new con-
tract, bargain over the effects of the relocation, and rescind the
unlawful unilateral changes it made to the terms and conditions
of unit employees. In the alternative, I conclude that the Re-
spondent has failed to establish that the unit ceased to exist.
The Board held, in Holly Farms Corp., 311 NLRB 273, 279
(1993), enfd. 48 F.3d 1360 (4th Cir. 1995), affd. 517 U.S. 392
(1996), that when an employer withdraws recognition based on
a claim that the unit has been assimilated into the employer’s
larger work force, “the changed nature of the operations should
be assessed at the time the withdrawal of recognition occurred,”
unless “there is a well-defined plan or timetable for achieving
full functional integration of operations.” In the instant case,
the Respondent withdrew recognition from the Union at the
time of the relocation in September 1999 and has never restored
that recognition, despite the Board’s Order requiring it to do so.
Moreover, the Board has already ruled that the Respondent
withdrew recognition without a well-defined plan for integra-
tion of operations. Comar, supra at 911. Thus under the prin-
ciple stated in Holly Farms, the Respondent’s argument in this
compliance proceeding that the unit has been assimilated must
still be evaluated as of the time the Respondent withdrew rec-
ognition—that is, as of September 1999. The Board has al-
ready decided that question unfavorably to the Respondent in
the underlying unfair labor practices proceeding, and I am
bound by that decision in the compliance stage. Therefore, I
conclude that under the law of the case and applicable Board
precedent, any argument by the Respondent that changes it
made to operations entitle it to withdraw recognition from the
Union is precluded until the Respondent restores recognition
and bargains for a reasonable period of time as required by the
Board’s enforced Order.
The conclusion that the Respondent must first comply with
the Board’s existing Order to recognize and bargain with the
Union and to rescind the unlawful changes before attempting,
once again, to argue that the unit has been assimilated is also
supported by analogous precedent in cases involving employer
claims that a union has lost majority support. In those cases,
the Board has held that when a bargaining relationship is re-
stored after an employer unlawfully withdraws recognition
from an incumbent union, the bargaining relationship “‘must be
given a reasonable time to work and a fair chance to succeed’
before the union’s representative status can properly be chal-
lenged.” Lee Lumber & Building Material Corp., 334 NLRB
399, 401 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002); see also
Williams Enterprises, 312 NLRB 937, 941 (1993), enfd. 50
F.3d 1280 (4th Cir. 1995) (When employer unlawfully refuses
to recognize a bargaining relationship rightfully established,
that bargaining relationship must be permitted to exist and
function for a reasonable period in which it can be given a fair
chance to succeed.).
This rule has two related, important, purposes. The first is to
ensure that the lingering effects of the employer’s unlawful
refusal to recognize the union and bargain have been overcome
before the union’s representative status is re-evaluated. Lee
Lumber, supra; see also Williams Enterprise, supra at 940–941
(when employer unlawfully withdraws recognition, the rule
prevents “the employer from profiting from predictably adverse
effects of its wrongdoing”). Similarly, it is necessary in the
instant case to eliminate the lingering effects of the Employer’s
unlawful refusal to recognize and bargain with the Union be-
fore the continuing status of the unit can be fairly evaluated. It
is clear that the Respondent’s unlawful withdrawal of recogni-
tion, refusal to bargain, and unilateral changes detracted from
the distinctness of the unit. That was recognized by Judge Ko-
col in the underlying decision. Comar, supra at 910. For ex-
ample, if the Respondent had not unlawfully eliminated the unit
employees’ unique terms and conditions of employment under
the collective-bargaining agreement—including their special
wages, leave benefits, pension system, seniority rights, and job
tenure protections and preferences—those terms and conditions
would weigh on the side of judging the unit as distinct from the
rest of the work force at the Buena facility. See Mirage Ca-
sino-Hotel, 338 NLRB 529, 532 (2002); Skyline Distributors,
319 NLRB 270, 270 fn. 2, 278 (1995); Super K Mart Center,
323 NLRB 582, 588 (1997). Indeed, in arguing that the unit
has been assimilated, the Respondent relies on its unlawful and
unremedied changes to unit employees’ compensation—stating
that the unit is no longer appropriate, in part, because unit and
nonunit members now share common compensation. (R. Br.
32.) Moreover, although one cannot know with any precision
what the results would have been if the Respondent had met its
obligation to bargain with the Union for a new collective-
bargaining agreement31 and over the effects of the relocation, it
is safe to assume that whatever those results were, they would
have been more likely to bolster the distinct character of the
unit than are the results that followed from the Respondent’s
unlawful exercise of its unilateral will on the terms and condi-
tions of the unit employees. The unilateral changes and other
unlawful conduct must be remedied, as required by the Board’s
enforced Order, before the state of the unit can be evaluated
fairly.
Secondly, permitting an employer that unlawfully denies
recognition to a union to challenge that union’s representative
status again at a later date in the proceedings without first com-
plying with its obligation to recognize and bargain, would per-
mit that employer to indefinitely postpone compliance with its
bargaining obligations. In Williams Enterprises, supra at 940–
941, the Board recognized this problem, and held that it justi-
fied the imposition of a requirement that the employer first
meet its statutory obligation to bargain before the Board would
consider whether the union had subsequently lost its representa-
tive status. To explain its holding, the Board quoted at length
from Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944), in which
the Supreme Court stated:
The Board might well think that, were it not to adopt this type
of remedy, but instead order elections upon every claim that a
shift in union membership had occurred during proceedings
occasioned by an employer’s wrongful refusal to bargain, re-
calcitrant employers might be able by continued opposition to
union membership indefinitely to postpone performance of

31 Even under the Respondent’s argument in this compliance pro-
ceeding, the Company had an obligation from September 27, 1999, to
September 31, 2001, to bargain with the Union for a new contract. The
Respondent did not do so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD358
their statutory obligation. In the Board’s view, procedural de-
lays necessary fairly to determine charges of unfair labor
practices might in this way be made the occasion for further
procedural delays in connection with repeated requests for
elections, thus providing employers a chance to profit from a
stubborn refusal to abide by the law. That the Board was
within its statutory authority in adopting the remedy which it
has adopted to foreclose the probability of such frustrations of
the Act seems too plain for anything but statement.
Above at 705, quoted in Williams Enterprises, supra at 940–
941. The same problem is present in the instant case. The Re-
spondent first unlawfully withdrew recognition from the Union
in September 1999 and has never restored that recognition and
bargained with the Union. The Respondent has not even re-
scinded the unlawful changes already found by the Board in the
underlying decision. Nevertheless, it argues in this compliance
proceeding that it should now be excused from ever complying
with the order to recognize and bargain with the Union because
the unit ceased to exist during the period of the Company’s
continued refusal to abide by the law. In its answer to the com-
pliance specification, the Respondent argues that the unit went
out of existence on September 31, 2001, and in its brief it con-
tends that if the unit did not go out of existence on that date,
then it did so in December 2002. Assuming the Board consid-
ered and rejected those dates, what would stop the Respondent
from continuing to refuse to bargain based on a claim that the
unit ceased to exist at an even later date? All the while, the
Respondent’s recalcitrance would work to its advantage by
continuing to delay bargaining, create the opportunity for uni-
lateral changes, and otherwise permit degradation of the unit.
Under these circumstances, I conclude that the Respondent
must recognize the Union, rescind the unilateral changes, and
give the bargaining relationship between the Respondent and
the Union “a reasonable time to work and a fair chance to suc-
ceed” before reasserting its challenge to the viability of the unit.
Any other result will allow the Respondent to use the fruits of
its unlawful withdrawal of recognition and unilateral changes to
legitimize continuing that conduct indefinitely. See Superior
Protection, Inc., 341 NLRB 614, 615 fn. 5 (2004), enfd. 401
F.3d 282 (5th Cir. 2005), cert. denied mem. 546 U.S. 874
(2005); Georgia-Pacific Corp., 329 NLRB 67, 74–75 (1999);
Holly Farms, 311 NLRB at 279.32

32 This holding is not contrary to the statement in the underlying de-
cision that “the Respondent can offer, in the compliance proceedings,
evidence of changes to its operations that occurred after the hearing, to
the extent that such changes might affect the remedy.” Comar, supra at
903 fn. 1. First, the Board’s decision merely stated that the Respondent
could introduce evidence of changes that “might” affect the remedy, it
did not state that any particular types of changes necessarily would
affect the remedy. At any rate, my ruling is only that the Respondent is
precluded at this juncture from attempting to limit the remedy based on
an argument that the unit has ceased to exist—an argument already
rejected by the Board. The Respondent can, and does, still seek to limit
the remedy based on evidence of changed circumstances unrelated to
the alleged assimilation of the unit. For example, as discussed below,
the Respondent argues that the remedy should be limited for the dis-
charged employees because they would have been discharged subse-
quently for lawful reasons. Moreover, lawful posthearing changes
In the alternative, I conclude that the Respondent has failed
to demonstrate that the character of the unit had changed sig-
nificantly between the time of the May 2001 hearing before
Judge Kocol and September 31, 2001,—the date the Respon-
dent gives in its answer as marking the elimination of the unit.
The Respondent points to nothing that occurred during that
approximately 4-month period that rendered the unit any less
appropriate. The Respondent discusses the Company’s reduced
use of the rotary machines in favor of more automated equip-
ment, and the movement of much of the relocated applicator
division operation from the manufacturing building to the fin-
ishing building; however, those changes had not occurred as of
September 31, 2001. Indeed, the record indicates that on Sep-
tember 31, 2001, the Respondent was using the same number of
rotary machines as it had in May 2001, and was operating those
machines for even more hours than it had at the earlier time.
In its brief, the Respondent posits December 2002 as another
alternative date to mark the elimination of the unit. I believe it
would be inappropriate to consider whether the unit lost its
separate character on some date other than September 31, 2001.
In its answer to the compliance specification, the Respondent
claimed only the September 31, 2001 date and to consider a
newly raised cut-off date, of which the General Counsel and the
Charging Party did not have notice at the time of the compli-
ance hearing, would deprive those parties of a reasonable op-
portunity to respond and would not comport with due process
requirements. Moreover, the Board’s Rules and Regulations
require that a respondent’s answer “specifically state the basis”
of any disagreement with the “premises” of the compliance
specification and “[set] forth in detail the respondent’s position
as to the applicable premises and [furnish] the appropriate fig-
ures.” Section 102.56(b), Rules and Regulations of the Board.
Allegations not denied in this manner are to be deemed admit-
ted. Section 102.56(c). Considering the Respondent’s dis-
agreement based on another cut-off date, over a year later than
the date claimed in the answer to the compliance specification
and first alleged in the Respondent’s posthearing brief, would
deprive the General Counsel and the Charging Party of the
procedural guarantees provided by the Board’s regulations. Cf.
Weinacker Bros., Inc., 166 NLRB 14, 15 (1967) (where the
General Counsel alleges a new factual basis, postcompliance
hearing, that would constitute an amendment of the compliance
specification, the matter has not been fully litigated, and con-
sideration of the new facts is denied).
I observe, moreover, that it appears that the Respondent
made many of the post-May 2001 operational changes in viola-
tion of the existing Board Order, which prohibits the Respon-
dent from changing unit employees’ terms and conditions of
employment without either obtaining the Union’s consent or
giving it proper notice and an opportunity to bargain. The
changes made by the Respondent include modifications of unit
employees’ shifts, work hours, duties, assignments, and duty
stations within the Buena facility—terms and conditions of

could have been considered in determining whether the unit had ceased
to exist if the Respondent had first met its obligations under the Board’s
order to rescind its unilateral changes, recognize the Union, bargain for
a new contract and so on.
COMAR, INC. 359
employment that are generally subject to bargaining.33 The
Union was not given notice or an opportunity to bargain over
any of those changes or their effects. The Respondent claims
that it is relieved of the obligation to bargain over the changes
for a number of reasons, but none of those reasons have any
real merit. First, the Respondent contends that the Union,
through inaction, waived the right to protest the changes. “[A]
union may be found to have waived its rights if, upon being
notified of a proposed change in terms and conditions of em-
ployment, it ‘fails to act diligently in seeking bargaining.’” Sea
Jet Trucking Corp., above at 546, quoting Intermountain Rural
Electric Assn., 305 NLRB 783 (1991). In this case, however,
not only did the Respondent fail to give the Union prior notice
of any of the specific changes, but its position during the rele-
vant time period was that the unit had ceased to exist and that
Comar would not bargain over changes.34 Despite the Respon-
dent’s refusal to recognize the Union, representatives of the
Union repeatedly requested that the Respondent recognize and
bargain with the Union, and otherwise comply with the Board’s
Order. In light of these facts, the Respondent’s argument based
on waiver is utterly without merit.
Also lacking merit is the Respondent’s assertion that the
changes are exempted from bargaining under an exception that

33 See Dallas & Mavis Specialized Carrier Co., 346 NLRB 253, 259
(2006) (bargaining required over transfer of work out of the bargaining
unit); SFX Target Center Arena Management, LLC, 342 NLRB 725,
736 (2004) (bargaining required over change in work assignments)
Artesia Ready Mix Concrete, Inc., 339 NLRB 1224, 1225 (2003)
(same); Sheraton Hotel Waterbury, 312 NLRB 304, 307 (1993) (bar-
gaining required over change to shifts); Tuskegee Area Transportation
System, 308 NLRB 251 (1992), affd. 5 F.3d 1499 (11th Cir. 1993), cert.
denied 511 U.S. 1083 (1994) (same); Our Lady, Of Lourdes Health
Center, 306 NLRB 337, 339 (1992) (same); San Antonio Portland
Cement Co., 277 NLRB 338 (1985) (bargaining required over transfer
of unit employees to new assignment and location at facility); Plymouth
Locomotive Works, Inc., 261 NLRB 595, 602 (1982) (bargaining re-
quired regarding automation that will result in elimination of unit jobs);
Richland, Inc., 180 NLRB 91 (1969) (bargaining required regarding
automation of bargaining unit work); Seven-Up Bottling Co. of Sacra-
mento, 165 NLRB 607, 608 (1967), enfd. 420 F.2d 495 (9th Cir. 1969)
(change that would eliminate unit jobs is a mandatory subject of bar-
gaining); General Electric Co., 137 NLRB 1684, 1686 (1962) (bargain-
ing required over change to work hours).
34 The Respondent, while it concedes that it refused to recognize the
Union during the period it made these changes, contends that the Union
had prior notice because a union official was present during the hearing
before Judge Kocol, when the Respondent presented testimony about
some planned changes. The Respondent did not show that the union
official heard testimony about any of the specific changes that are at-
issue here, or that whatever the official heard was specific or reliable
enough to constitute meaningful notice. The Respondent also claims
that notice was somehow provided by way of the motion to reopen the
record that it submitted to the Board after Judge Kocol’s decision. That
motion discusses changes that the Respondent claims it had already
made and, therefore, at best provided the Union with notice of a fait
accompli. Waiver cannot be predicated on notice that presents the
change as a fait accompli or that does not give sufficient advance notice
of the change. Gratiot Community Hospital v. NLRB, 51 F.3d 1255,
1259–1260 (6th Cir. 1995); Gulf States Mfg. v. NLRB, 704 F.2d 1390,
1397 (5th Cir. 1983); Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013, 1017–1018 (1982), enfd. 722 F.2d 1120 (3d Cir. 1983).
applies to relocation decisions when the employer shows that
“the union could not have offered labor cost concessions that
could have changed the employer’s decision to relocate.” Du-
buque Packing Co., 303 NLRB 386, 391 (1991), 1 F.3d 24
(D.C. Cir. 1993). That exemption is inapplicable here because
it applies only to relocation decisions,35 and the post-May 2001
operational changes at issue were not a relocation. The impact
of the relocation itself has already been evaluated by the Board,
and the Board ruled that the unit continued to exist after being
moved to the Buena facility.36 The Respondent’s argument
also fails because, as Bianco was forced to concede, a desire to
reduce labor costs was a major factor in the operational deci-
sions and decisions based on labor costs are “‘peculiarly suit-
able for resolution within the collective-bargaining frame-
work.’” Holly Farms Corp., supra at 278, quoting First Na-
tional Maintenance v. NLRB, 452 U.S. 666, 680 (1981). More-
over, as discussed above, Bianco’s self-serving and conclusory
testimony that the operational changes could not have been
altered by bargaining is not credible and is insufficient to estab-
lish that the changes were not a mandatory subject of bargain-
ing. See Geiger Ready-Mix Co., 315 NLRB 1021, 1032 (1994)
(“employer must offer something more than a self-serving as-
sertion that there was nothing the bargaining agent of its union-
ized employees could do to change its mind”),and Pertec Com-
puter, 284 NLRB 810, 811 fn. 3 (1987), decision supplemented
298 NLRB 609 (1990), enfd. in relevant part 926 F.2d 181 (2d
Cir. 1991), cert. denied 502 U.S. 856 (1991) (“[T]o conclude in
advance of bargaining that no agreement is possible is the an-

35 See Rock-Tenn Co., 319 NLRB 1139, 1144 (1995), enfd. 101 F.3d
1441 (D.C. Cir. 1996) (Board states that Dubuque “test was devised for
determining the nature of relocation decisions, and we did not purport
to extend it to other types of management decisions that affect employ-
ees.”); Mid-State Ready Mix, 307 NLRB 809, 810 (1992) (same).
36 For the same reason, I am unpersuaded by the Respondent’s cita-
tion to Kelly Business Furniture, 288 NLRB 474 (1988), in which a
unit was invalidated based on the impact of a relocation. Indeed, the
Board already considered the Kelly holding in the context of the Vine-
land unit’s relocation, and the Board found that the unit survived that
relocation, and, in fact, was still appropriate at the time of the hearing
over 18 months removed from the completion of the relocation. The
Board declined to follow Kelly because, inter alia, the unit in that case
did not have the long bargaining history of the Vineland unit, and,
unlike in the instant case, none of the changes implemented by the
Respondent in the merger process were found to be unlawful. Comar,
339 NLRB at 911. Similarly inapposite is the holding of Frito-Lay,
177 NLRB 820 (1969), another case in which the unit did not have the
lengthy bargaining history of the Vineland unit and the employer was
not shown to have implemented any changes unlawfully. Frito-Lay is
also inapplicable because the invalidation of the unit there was based
on a major overhaul of the employer’s national management structure,
which the Board found completely eliminated the level of organiza-
tional control upon which the unit was premised and was “clearly not
for the purpose of avoiding compliance with the Board’s unit finding.”
The production improvements that the Respondent relies on here were
not nearly as significant, and were not shown to have altered the conti-
nuity of supervision that was discussed in the underlying decision.
Moreover, the credible evidence in this case does not establish that the
operational changes by which the Respondent claims to have elimi-
nated the unit were “clearly not for the purpose of avoiding compliance
with the Board’s unit finding.” See, above at fn. 15.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD360
tithesis of the Act’s objective of channeling differences, how-
ever, profound, into a process that promises at least the hope of
mutual agreement.”).
Equally without merit is the Respondent’s related claim that
the operational changes were exempt from bargaining under
First National Maintenance Corp. v. NLRB, supra, which af-
fords special treatment to managerial decisions that signifi-
cantly alter the scope and direction of a business. The changes
that the Respondent made after May 2001 do not begin to ap-
proach that level. They were incremental improvements to the
Respondent’s production process and, as the Respondent ad-
mits, did not alter the nature of its business—the manufacture
of packaging products and medical device components for
pharmaceutical, health care, and personal care customers.37
I also reject the Respondent’s claim, raised for the first time
in its posthearing brief, that the post-May 2001 operational
changes were exempted from bargaining under a management-
rights clause in the expired collective-bargaining agreement. I
doubt that this contention has been fully litigated, but, in any
case, the Board has held that the effect of such a provision,
unlike other terms in a contract, does not survive the expiration
of that contract absent evidence of the parties’ contrary inten-
tions. Long Island Head Start Child Development Services,
345 NLRB 973, 973 (2005); Blue Circle Cement Co., 319
NLRB 954, 954 (1995).38 Therefore, it appears that the provi-
sion relied upon by the Respondent cannot authorize the post-
expiration changes at issue here.
Even if I were to consider the current state of the unit, in-
cluding all of the changes—whether lawful or unlawful—that
the Respondent has made to the former Vineland employees’
working conditions from the time of the relocation until the
compliance hearing, I would not invalidate the unit. Most cur-
rent employees who formerly worked at Vineland as part of the
bargaining unit continue to produce the same types of products,
for the same types of customers, using many of the same types
of machines and processes that they did at the Vineland facility.
The sort of ongoing, incremental, improvements that the Re-
spondent has made to production at the Buena facility are com-
monplace in the manufacturing industry and generally do not
justify withdrawal of recognition from a union that represents a
longstanding, established, unit. See, e.g., Leach Corp., 312
NLRB 990, 995 (1993), enfd. 54 F.3d 802 (D.C. Cir. 1995);
Allied Mills, Inc., 218 NLRB 281, 285 (1975), enfd. mem. 543
F.2d 417 (D.C. Cir. 1976), cert. denied 431 U.S. 937 (1977);

37 That is the way the Respondent’s business was described in the
underlying decision, and the Respondent has admitted that the descrip-
tion is still valid. See Comar, 339 NLRB at 905; GC Exh. 1(s), com-
plaint par. 2(a); GC Exh. 1(w), answer par. 2(a).
38 It does not appear that the contract provision that extends the
agreement’s expiration date during bargaining for a new contract is
applicable here, since there have been no such negotiations. In addi-
tion, the management-rights clause provides that it shall not be exer-
cised “in derogation of terms and conditions of [the collective-
bargaining] agreement.” I note, however, that the Respondent did not
raise the management-rights clause issue until after the hearing, and the
parties did not present significant evidence regarding the proper inter-
pretation of either the provision providing for extensions of the con-
tract’s expiration date or the management-rights clause.
Columbia Tribune Publishing Co., 201 NLRB 538, 550 (1973),
enfd. in relevant part 495 F.2d 1384 (8th Cir. 1974). As found
in the underlying unfair labor practices decision, the unit has a
“deeply absorbed” bargaining history of well over 40 years.
Comar, 339 NLRB at 910. Where there is such a lengthy his-
tory of collective bargaining for a unit, the Board has required
continued recognition even when operational changes result in
the unit employees doing the same type of work on the same
equipment as nonunit employees within a broader facility or
group. Radio Station KOMO-AM, 324 NLRB 256, 262–263
(1997); Serramonte Oldsmobile, 318 NLRB 80, 104 (1995),
enfd. in relevant part 86 F.3d 227 (D.C. Cir. 1996); Children’s
Hospital, 312 NLRB 921, 928–930 (1993), enfd. sub nom.
California Pacific Medical Center v. NLRB, 87 F.3d 304 (9th
Cir. 1996). Absent “compelling circumstances” the history of
meaningful bargaining in this case is sufficient to establish the
continued appropriateness of a separate unit, even if other fac-
tors support a contrary result. See KOMO-AM, 324 NLRB at
262. Such “compelling circumstances” are not evident here,
and are certainly not established by the assorted incremental
improvements that the Respondent made to its manufacturing
process over a period of approximately 5 years.
For the reasons discussed above, I reject the Respondent’s
argument that the remedy should be limited because the unit
has ceased to exist.
B. Respondent’s August 29, 2003 Letters were Insufficient
to Toll the Backpay Period
The Respondent contends that backpay liability is tolled for
the discharged employees (class B) as of August 29, 2003,
when the Company sent those employees letters offering them
employment at the Buena facility “at the same compensation”
they were earning when they were “laid of[f] in 1999.” The
letters stated that the offers were “made unconditionally,” and
that the employees had until the following September 15 to
respond. In order to toll backpay liability, an employer’s offer
“must be specific, unequivocal, and unconditional in offering a
discriminatee his or her previous position, at the same rate of
pay, with seniority and benefits intact.” Midwestern Personnel
Services, 346 NLRB 624, 624–625 ,633 (2006). An employer
does not meet that standard if it fails to offer the individual the
same shift and starting time. Id. at 624; Pinnacle Metal Prod-
ucts Co., 337 NLRB 806, 816 (2002). The offer must “clearly
remove” any previously stated unlawful conditions that the
Respondent placed on employment. Tony Roma, 325 NLRB
851, 852 (1998). The employer is required to offer the individ-
ual the “same position,” unless it shows that such position is
not available, in which case the offer of a substantially equiva-
lent position will toll backpay, assuming the other requirements
are met. Murbo Parking, Inc., 276 NLRB 52 (1985).
As discussed above, the Board found that the Respondent ef-
fectively discharged the class B employees when it offered
them transfers to the Buena facility, but unlawfully changed the
wages and benefits that had resulted from the collective-
bargaining process. In the August 29 letters, the Respondent
again offered those employees employment at the Buena facil-
ity, but did not clearly lift the unlawful conditions, as required
by Board precedent. See Tony Roma, supra. The letters state
COMAR, INC. 361
that returning employees will receive the same compensation as
before the relocation, but makes no mention of restoring the
employees’ bargained-for seniority system, job tenure protec-
tions and preferences, and distinct retirement system. To the
contrary, upon transferring to the Buena facility, unit employ-
ees were required to sign agreements stating that they were at-
will employees, a significant change from their predischarge
status. In addition, the Respondent has made changes to unit
employees’ shifts and work hours, but the August 29 letters
made no mention of offering returning employees the same
shifts and working hours that they had prior to being unlawfully
discharged. Nor did the Respondent’s offer state that returning
class B employees would receive the bargained-for holiday,
sick day, bereavement, and other leave benefits that the Re-
spondent had refused them at the time they were unlawfully
discharged.
For these reasons, I conclude that the August 29 letters did
not constitute valid offers of reinstatement and do not limit the
remedy.39
C. Respondent has Failed to Show That Unlawfully
Discharged Employees Would Have Been Laid Off
for Lawful Reasons at a Later Date
The Respondent asserts, as an affirmative defense, that:
“Class B Employees are not entitled to reinstatement because
. . . downsizing at the Buena, New Jersey facility, due to legiti-
mate business reasons, caused their positions to be eliminated
and open positions are not available.” Under Board law, a re-
spondent may limit its backpay liability and duty to reinstate
unlawfully terminated employees by showing that the employ-
ees would have been laid off for lawful reasons at a later date.
Weldun International, Inc., 340 NLRB 666, 674 (2003); So-
White Freight Lines, 301 NLRB 223 (1991), enfd. 969 F.2d
401 (7th Cir. 1992). However, “the burden [is] on [the respon-
dent] to prove with certainty when the discriminatees would
have been laid off, absent discrimination.” Id., quoting Fruin-
Colnon Corp., 244 NLRB 510, 512 (1979); see also Daniel
Construction Co., 276 NLRB 1093, 1097 (1985); Masco Prod-
ucts, Inc., 198 NLRB 424 (1972). A respondent cannot suc-
ceed in closing the backpay period based on mere speculation
that the discriminatee would have subsequently been laid off
for legitimate reasons. Weldun, supra; F & W Oldsmobile, 272
NLRB 1150, 1151 (1984).
The record shows that from 2001 forward, there has been a
steady decline in the number of employees at the Buena facil-
ity. In 2001, there were 203 hourly employees at the facility
and 90 in the finishing department, and by 2005 there were 164
hourly employees at the facility and 65 in the finishing depart-
ment. However, the Respondent failed to show that this rather
gradual contraction in its work force would have led to involun-
tarily layoffs for any of the class B employees. To the contrary,

39 In light of these conclusions, I do not address the further conten-
tions of the General Counsel and the Charging Party that the offers
were invalid because: the Respondent did not show that the class B
employees’ former positions were unavailable at the time of the August
29 letters; the letter did not describe the positions being offered with
adequate specificity; and, the letters improperly set forth a deadline
after which the offers would lapse if the recipients did not respond.
the record shows that during the period covered by the compli-
ance specification, the Respondent did not lay off any of the
unit employees who accepted transfers to the Buena facility. In
fact, the Respondent did not introduce evidence showing that
lack of work resulted in any forced layoffs at all at the Buena
facility. Nor did the Respondent show that it had refrained
from hiring new hourly employees for the Buena facility after
2001. Indeed, as late as August 29, 2003, the Respondent sent
letters to all of the discharged unit employees offering them
employment at the Buena location. Thus, it appears likely that
the contraction in the Buena facility work force was accom-
plished through turnover and attrition, not layoffs or termina-
tions. Given this record, I conclude that the Respondent has
failed to show that if the class B employees had not been
unlawfully discharged in 1999, there would have been a lawful
layoff at some later date. Even assuming that a layoff of some
sort would have been necessary, the Respondent has not shown
when that layoff would have occurred, how many employees it
would have affected, or that any of the unlawfully discharged
employees would have been among those selected. On this
record, the Respondent has clearly failed to meet its burden of
proving “with certainty” the dates when particular class B em-
ployees would have been lawfully laid off.
For the reasons discussed above, I reject the Respondent’s
contention that the remedy for the unlawfully discharged em-
ployees is limited because those employees would have been
terminated for lawful reasons at a later date.
D. Respondent has not Shown That Transmarine
Calculations are Inconsistent With the Board’s Order
or Prior Precedent
The Respondent makes a number of arguments for limiting
the Transmarine remedy to the 2-week period that the Board’s
Order sets forth as a minimum, rather than accruing that rem-
edy on a continuing basis as the compliance specification does.
First, the Respondent contends that the ongoing Transmarine
remedy is impermissible because it is punitive, rather than re-
medial, inasmuch as it overlaps the make-whole backpay rem-
edy also provided by the order. The Respondent identifies no
Board decisions that support this contention. At any rate, the
logic of the Respondent’s argument is faulty because regardless
of whether the Transmarine remedy accrues for just 2 weeks, or
for an open-ended period, it will overlap with the make-whole
backpay remedy for that period of time. Thus, the 2-week
Transmarine remedy that the Respondent advocates is subject
to the same criticism that the Respondent lodges against the
ongoing Transmarine remedy. The Board has already consid-
ered the overlapping recovery issue in its underlying decision
and ordered that the Transmarine remedy be provided even to
those employees who were receiving make-whole relief—
reversing Judge Kocol’s ruling that the Transmarine remedy
would provide an inappropriate windfall for such employees.
The Board’s Order was enforced by the court of appeals with-
out modification in this regard. Thus, the Respondent’s argu-
ment that an ongoing Transmarine remedy is impermissible
because it provides overlapping recovery is precluded by the
Board’s decision authorizing overlapping recovery.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD362
I conclude, moreover, that, given the purposes of the Trans-
marine remedy, it is more appropriate in this instance to con-
tinue such relief during the backpay period than to limit it to the
2-week minimum. First, I note that the Transmarine remedy
and the make-whole remedy compensate the employees for
different losses. The make-whole relief is a remedy for the
Respondent’s failure to provide victims with the compensation
that resulted from the collective-bargaining process. The
Transmarine remedy, on the other hand, compensates victims
for the Respondent’s failure to engage in effects bargaining
over the relocation—a type of violation that causes harm to
employees that is not addressed by the make-whole backpay
remedy. As the Board has recognized, when an employer
unlawfully fails to engage in effects bargaining it is proper to
take into account potential losses resulting from the fact that
“the Union might have secured additional benefits for employ-
ees had the Respondent engaged in timely effects bargaining.”
Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
“[T]he [u]nion can hardly hope to obtain the same benefits
from bargaining that might have helped ease the unit employ-
ees’ transition into their employment with their new employer
or new employment had ‘effects’ bargaining taken place at the
time required by law.” Signal Communications, 284 NLRB
423, 428 (1987). Moreover, if the Respondent had met its obli-
gation to pay the unit workers their higher, bargained-for,
wages at the time of the relocation, then the percentage raises
granted since that time would have resulted in the unit employ-
ees receiving wages even higher than the prerelocation bench-
mark. Such losses are not remedied by the make-whole back-
pay remedy in this case, which is calculated based on the dif-
ference between the prerelocation benchmark and what the
Respondent paid employees after the relocation. The Board has
found that the Transmarine remedy is appropriately employed
to address such losses, even if the employees are already re-
ceiving what they were paid prior to the employer’s failure to
bargain. See Live Oak, supra at 1040, 1042. Such losses are
uncertain, but “it is reasonable to require that ‘the employees
whose statutory rights were invaded by reason of the Respon-
dent’s unlawful . . . action, and who may have suffered losses
in consequence thereof, be reimbursed for such losses until
such time as the Respondent remedies its violation by doing
what it should have done in the first place.’” Live Oak, supra at
1042, quoting Royal Plating & Polishing Co., 160 NLRB 990,
999 (1966); see also Gannett Co., Inc., 333 NLRB 355, 359
(2001).
More importantly, the Board’s purpose in creating the
Transmarine remedy is not merely to reimburse employees for
losses, but as the Board explained in Sawyer of Napa, Inc., 321
NLRB 1120 (1996):
[T]o create in some practicable manner a situation in which
the parties’ bargaining is not entirely devoid of consequences
for the respondent. It provides that if there are delays in the
bargaining process, backpay increases until one of the stated
conditions is met, thereby, insuring that the consequences to
the respondent are progressively greater and that there is a
corresponding enhancement of the union’s bargaining
strength.
See also First National Maintenance Corp. v. NLRB, supra at
681–682 (“[U]nder Sec. 8(a)(5), bargaining over the effects of a
decision must be conducted in a meaningful manner and at a
meaningful time, and the Board may impose sanctions to insure
its adequacy.”). In this case, I conclude that limiting the
Transmarine remedy to the 2-week minimum would be incon-
sistent with that purpose. I note, first, the Respondent’s recalci-
trance. The Board issued its order over 2-1/2 years ago, and the
court of appeals affirmed the Board’s Order nearly 2 years ago.
Yet at the time of the compliance hearing the Respondent had
still failed to meet the obligations under that order to bargain
over the effects of the relocation40 and for a new collective-
bargaining agreement, and had never rescinded the unilateral
changes that the Board has already found to be violations.
Indeed, the Respondent has the audacity to claim in this com-
pliance proceeding that the lengthy delay occasioned by its
continued resistance to its statutory obligations has rendered the
Board’s enforced bargaining order stale and unenforceable,41
and seeks to rely on the Company’s unlawful and unremedied
changes to employees’ conditions of employment to argue that
the bargaining unit the Board validated in the underlying deci-
sion must now be invalidated.42
Moreover, as found above, the Respondent has committed
further violations of the Act by withholding information from
the Union that is necessary for effects bargaining. It is clear
that consequences of the type described in Sawyer of Napa,
supra, are necessary in this case to convince the Respondent to
take its obligations under the Act and the Board’s enforced
Order seriously. That end will not be met by a fixed 2-week
Transmarine remedy, which would not impose progressively
greater consequences on the Respondent for continued refusal
to bargain in good faith. Nor do I believe that adequate pro-
gressive consequences are imposed by the make-whole element
of the remedy since wage increases granted outside of the bar-
gaining process during the 5-year period covered by the com-
pliance specification have largely eliminated the differences
between the bargained-for compensation and the initially lower
compensation paid to unit employees who transferred to the
Buena facility. Thus further noncompliance by the Respondent
will generate smaller and smaller amounts of additional make-
whole relief, and progressively less incentive for the Respon-
dent to fulfill its obligations under the Act and the Board’s

40 The Respondent’s failure to bargain in good faith over the effects
of the relocation is discussed, infra.
41 In its answer to the compliance specification, the Respondent
states, as an affirmative defense, that “the passage of time and the sig-
nificant changes that have occurred, including, but not limited to the
automation of the Respondent’s finishing operations,” have rendered
the underlying decision “stale” and the “bargaining order moot.”
42 If permitted to succeed, such a tactic would provide a template for
any employer that wished to unlawfully withdraw recognition from a
union. Simply withdraw recognition, begin making unlawful unilateral
changes that diminish the distinctive nature of the unit, delay compli-
ance with unfavorable decisions, and then argue that the passage of
time and the unilateral changes have destroyed the unit and rendered
the Board’s bargaining order unenforceable. If the Board rejects that
argument, argue that the further passage of time and subsequent
changes have eliminated the unit and continue to refuse to recognize
the union.
COMAR, INC. 363
Order. Once the employees who refused transfer under the
unlawful conditions are reinstated, as required by the Board’s
Order, the same will be true for any make-whole relief previ-
ously being generated for them. For these reasons, I believe
that an ongoing Transmarine remedy is necessary to provide
the Union with the leverage anticipated in Sawyer of Napa,
supra.
The Respondent also argues that the calculations in the com-
pliance specification improperly fail to deduct the amount of
the employees’ interim earnings from the Transmarine relief.
The Respondent cites a number of cases in which interim earn-
ings were deducted from the amount of the Transmarine rem-
edy, but in other cases the Board has declined to do so. Com-
pare, Sawyer of Napa, Inc., supra at 1121 fn. 3 (severance pay
deducted), and W. R. Grace & Co., 247 NLRB 698, 699 fn. 5
(1980) (severance pay deducted) with Dallas Times Herald,
315 NLRB 700, 702 (1994) (employer’s payments to termi-
nated employees under the Worker Adjustment and Retraining
Notification Act are not deducted), and Live Oak Skilled Care
& Manor, supra at 1040 (employees awarded Transmarine
remedy equal to their normal rates of pay, for period when they
are already receiving normal rates of pay from the employer).
In this case, the Board has, in my view, already decided that
interim earnings should not be deducted from the Transmarine
remedy. In his recommended order in the underlying proceed-
ing, Judge Kocol explicitly provided that the Transmarine rem-
edy would be reduced by the amount of any interim earnings,
but the Board modified that order by striking the language re-
garding the interim earnings deduction. It would be presump-
tuous of me to simply assume, without any basis in the Board’s
Order, that the Board’s modification of Judge Kocol’s recom-
mended Order was unintentional or otherwise of no signifi-
cance. I am particularly circumspect about discounting that
change given that the Board also overruled Judge Kocol’s con-
clusion that a blanket Transmarine remedy should be denied
because it would constitute overlapping recovery for employees
who had already been made whole.
The Respondent also argues that the Transmarine remedy
calculated in the compliance specification is improper because
employees have secured “equivalent employment,” and the
amount of the remedy therefore exceeds “the amount that [each
employee] would have earned as wages from the date of the
relocation of the unit employees to the time he or she secured
equivalent employment.” Respondent’s Brief at 41–42, quoting
Comar, 339 NLRB at 903. The Respondent does not reveal
which of the unit employees it believes obtained “equivalent
employment” or when it believes they did. Nor does the Re-
spondent cite any authority indicating that the standard for what
constitutes equivalent employment in this context is any lower
than the standard applied in evaluating the validity of rein-
statement offers. As discussed previously, the employment that
the Respondent has made available to unit members at the
Buena facility is not equivalent to their employment at the
Vineland facility because it does not provide the same job ten-
ure protections and preferences, seniority system, retirement
system, leave benefits, shifts, and working hours.
For these reasons, I conclude that the Respondent has failed
to show that any of the unit employees have secured equivalent
employment, or that the Transmarine remedy should be limited
on that basis.
Lastly, the Respondent contends that the Transmarine rem-
edy should be tolled because it attempted to engage in effects
bargaining, but was thwarted by the Union. Under the Board’s
Order, the Transmarine remedy will be tolled if the Union ei-
ther fails to “commence negotiations within 5 business days
after receipt of the Respondent’s notice of its desire to bargain
with the Union” on those subjects pertaining to the effects of
the relocation, or fails “to bargain in good faith.” I find that the
Respondent has not shown that the Union failed to timely at-
tempt effects bargaining, or to pursue such bargaining in good
faith. The record shows that the Union requested bargaining
shortly after Judge Kocol’s decision, again shortly after the
Board’s decision, and again after the court of appeals enforced
the Board’s order. The Respondent does not claim that it
agreed to engage in effects bargaining in response to either of
the first two of those requests by the Union. In response to the
Union’s August 18, 2004 request following the court of ap-
peals’ decision, the Respondent indicated that it was willing to
bargain over effects as required by the Act and the Board Or-
der. It took the parties almost 5 months of haggling over bar-
gaining dates before they actually met, but this delay was more
the result of the Respondent’s actions than of the Union’s, and
certainly does not establish bad faith on the Union’s part. The
record shows that when the Respondent received the August 18
letter from the Union requesting bargaining, the Respondent did
not respond directly to the Union, but, rather, sent a letter to the
Board stating its own willingness to bargain over effects, “if”
the Union requested it. On two occasions thereafter, the Union
proposed bargaining dates, but in both instances the Respon-
dent rejected those dates. When the Respondent proposed three
dates of its own, the Union answered that it was willing to meet
on any of those dates. The Respondent, however, did not con-
firm any of those dates, and when the Union contacted the Re-
spondent again to arrange to meet on either of the two remain-
ing dates, the Respondent refused to meet on the very dates that
the Respondent itself had previously proposed. Counsel for the
Respondent stated that he would contact the Union with addi-
tional dates when he returned from vacation, but he did not re-
contact the Union for over a month. Under these circum-
stances, any effort to lay the blame for the delay at the Union’s
doorstep must be rejected.
As discussed above, when the parties finally met, on January
18, 2005, the Respondent unlawfully refused to provide infor-
mation that was necessary to bargaining over the effects of the
relocation, and provided other necessary information only after
an excessive delay. It failed, moreover, to rescind the unlawful
changes in unit employees’ terms and conditions of employ-
ment, as required by the Board’s enforced Order. In the under-
lying decision, the Board held that, under precisely such cir-
cumstances, “good-faith bargaining over the effects of the relo-
cation was precluded by Respondent’s unlawful conduct.” Co-
mar, Inc., 339 NLRB 903, 913 (2003). Good-faith effects bar-
gaining was still precluded on January 18, 2005, and at the time
of the hearing, because the relevant circumstances included the
same unlawful conduct by the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD364
I conclude that the Respondent has failed to establish that it
was willing to bargain over the effects of the relocation, but
that the Union failed to bargain in good faith, or that the Trans-
marine remedy should be tolled.
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).
3. The Respondent violated Section 8(a)(5) and (1) of the
Act by: unreasonably delaying the provision of information
regarding unit employees that the Union requested in its Sep-
tember 1, 2004 letter; unreasonably delaying the provision of
information regarding nonunit employees that the Union ver-
bally requested on January 18, 2005; and, refusing to supply
other information regarding nonunit employees that the Union
verbally requested on January 18, 2005.
4. The Respondent has not established any basis for reducing
or altering the relief set forth in the compliance specification.
[Recommended Order omitted from publication.]