FirstEnergy Generation, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 15, 2017

06-CA-163303 (N.L.R.B. Mar. 15, 2017)

JD–18–17
Akron, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FIRSTENERGY GENERATION, LLC A WHOLLY OWNED
SUBSIDIARY OF FIRSTENERGY CORP.1
and Cases 06–CA–163303
06–CA–170901
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 272, AFL-CIO
David Shepley, Esq.,
for the General Counsel,
Brian W. Easley, Esq.,
for the Respondent
Marianne Oliver, Esq.,
for the Charging Party,
DECISION
I. INTRODUCTION
Andrew S. Gollin, Administrative Law Judge. These consolidated cases were tried
before me on December 1-2, 2016, in Pittsburgh, Pennsylvania. The International Brotherhood
of Electrical Workers, Local 272, AFL--CIO (“Union” or “Local 272”) filed the underlying charges
alleging FirstEnergy Generation, LLC a wholly owned subsidiary of FirstEnergy Corp.
(Respondent or the Company) committed unfair labor practices affecting the unit employees at
its Shippingport, Pennsylvania power plant.
The first case involves Respondent’s partial implementation of its final pre-impasse offer
to the Union. Respondent implemented certain proposals, including the elimination of retiree
health benefits, but not its proposed increases to wages and shift differentials, stating those
increases would be effective only upon contract ratification. The complaint presents two
theories for why Respondent’s failure to implement the proposed increases to wages and shift
differentials violated Sections 8(a)(5) and (1) of the National Labor Relations Act (Act). First, the
General Counsel argues that because Respondent proposed the increases as part of a package
to compensate for the elimination of the retiree health benefits, it was obligated to also
implement those proposed increases when it eliminated the retiree health benefits. Second, the
General Counsel alleges that contract ratification is a permissive subject of bargaining, and
Respondent was prohibited from making it a condition precedent to implementing the

1 At the hearing, the parties stipulated to amending the pleadings to correct the employer’s name to be
FirstEnergy Generation, LLC a wholly owned subsidiary of FirstEnergy Corp.
increases. Respondent denies the alleged violations. Based upon the evidence and applicable
law, I find Respondent committed the violations as alleged, under both theories.
The second case involves Respondent’s subcontracting of scheduled maintenance work
historically performed by unit employees. The complaint alleges Respondent violated Sections
8(a)(5) and (1) of the Act when: (1) it subcontracted this unit work without providing the Union
with notice and an opportunity to bargain over the decision to subcontract or its effects; and (2)
when it failed or refused to provide the Union with the wages and material costs paid by the
subcontractor. Respondent denies the allegations. I find Respondent breached its duty to
bargain over the decision to subcontract because it announced its decision as a fait accompli. I
also find the Union has met its burden of establishing the relevance of the requested
subcontracting information.2 Based on the evidence and applicable law, I find Respondent
committed these violations as alleged.3
II. STATEMENT OF THE CASE
On November 4, 2015, the Union filed an unfair labor practice charge against
Respondent, docketed as Case 06--CA--163303. On February 29, 2016, the Union filed an
amended unfair charge against Respondent in Case 06--CA--163303. Based on its
investigation, on May 27, 2016, the Acting Regional Director for Region 6 of the Board, issued a
complaint in Case 06--CA--163303, alleging that Respondent violated Sections 8(a)(5) and (1)
of the Act.4 On June 9, 2016, Respondent filed its answer in Case 06--CA--163303, denying all
alleged violations of the Act.
On March 2, 2016, the Union filed an unfair labor practice charge against Respondent,
docketed as Case 06--CA--170901. Based on its investigation, on July 29, 2016, the Regional
Director for Region 6 of the Board issued a complaint in Case 06--CA--170901, alleging that
Respondent violated Sections 8(a)(5) and (1) of the Act. On August 11, 2016, Respondent filed
its answer in Case 06--CA--170901,denying all alleged violations of the Act.
On November 10, 2016, the Regional Director for Region 6 issued an Order
Consolidating Cases in Cases 06--CA--163303 and 06--CA--170901.

2 Specific citations to the record are provided to aid review, and are not necessarily exclusive or
exhaustive. In making credibility findings, all relevant factors have been considered, including the
interests and demeanor of the witnesses; whether their testimony is corroborated or consistent with the
documentary evidence and/or the established or admitted facts; inherent probabilities; and reasonable
inferences that may be drawn from the record as a whole. See, e.g.,Daikichi Corp., 335 NLRB 622, 633
(2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed Leasing Corp. v. NLRB, 111 F.3d 1460,
1465 (9th Cir.), cert. denied 522 U.S. 948 (1997).
3 I make no finding regarding Respondent’s alleged failure to engage in effects bargaining because the
General Counsel appears to have abandoned that allegation by failing to raise or address it during the
hearing or in his posthearing brief.
4 On March 11, 2016, the Acting Regional Director issued a partial dismissal letter in Case 06—CA--
163303, dismissing, among others, the allegation that the Company violated Sections 8(a)(5) and (1) of
the Act when it failed to implement its proposed wage increases. On April 22, 2016, the Regional Director
issued an amended dismissal letter rescinding the earlier dismissal, stating the allegations that the
Company “failed to implement a proposed wage increase when it implemented its other terms of
employment contained in its last comprehensive offer and, conditioned the implementation of this wage
and shift differential increase upon membership ratification, are being retained for further processing.”
Both allegations are contained in the complaint in Case 06--CA--163303.
At the hearing, all parties were afforded the right to call, examine, and cross-examine
witnesses, present any relevant documentary evidence, and argue their respective legal
positions orally. Respondent and General Counsel both filed posthearing briefs, which I have
carefully considered. Accordingly, based upon the entire record, including the posthearing
briefs and my observation of the credibility of the witnesses, I make the following5
III. FINDINGS OF FACT
A. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent has been a corporation with an office and place of business in Akron, Ohio,
and has been engaged in the operation of power generation plants in several states, including
at its Bruce Mansfield plant located in Shippingport, Pennsylvania (“Bruce Mansfield facility”). In
conducting its operations during the 12-month period ending February 29, 2016, Respondent
derived gross revenues in excess of $250,000. During the 12-month period ending February
29, 2016, Respondent purchased and received goods at its Bruce Mansfield facility valued in
excess of $50,000 directly from points outside the Commonwealth of Pennsylvania.
Respondent admits, and I find, that it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Respondent also admits, and I find, that the
Union has been a labor organization with the meaning of Section 2(5) of the Act. Based on the
foregoing, I find this dispute affects commerce and that the Board has jurisdiction over this case,
pursuant to Section 10(a) of the Act.
B. RESPONDENT’S OPERATIONS
Respondent operates coal-fired power generating plants throughout Ohio and
Pennsylvania, including its Bruce Mansfield facility. The Bruce Mansfield facility contains three
identical power generating units, referred to as Unit 1, Unit 2 and Unit 3. Each unit consists of a
turbine, a generator, a boiler, valves, and other auxiliary equipment. Each unit operates as an
integrated system. The system begins with the burning of coal to boil water to create highly
pressurized steam; the steam is then pumped into the turbine-generator to produce electricity;
and that electricity is released to the power grid for distribution and consumption. Respondent
supplies power to the Pennsylvania, New Jersey, and Maryland Interconnection (“PJM
Interconnection”), a federally regulated transmission organization that oversees the regional
electricity markets.
C. COLLECTIVE-BARGAINING RELATIONSHIP
The Union represents a unit of approximately 230 production and maintenance
employees at the Bruce Mansfield facility.6 The parties’ most recent collective-bargaining
agreement was dated from December 5, 2009 to February 15, 2013. On August 16, 2012, the
parties entered into a memorandum of agreement extending their collective-bargaining

5 Abbreviations in this decision are as follows: “Tr.___” for transcript; “GC Exh.__” for General Counsel’s
Exhibit; “R. Exh. __” for Respondent’s Exhibit; “Jt. Exh. __” for Joint Exhibit; “G.C. Br.____” for General
Counsel’s brief; and “R. Br. ___” for Respondent’s brief.
6 The Union has been the exclusive collective-bargaining representative, within the meaning of Section
9(a) of the Act, of all production and maintenance employees, including control room operators,
employees in the stores, electrical, maintenance, operations, results, and yard departments, employed at
Respondent’s Shippingport, Pennsylvania facility, excluding technicians, office clerical employees and
guards, professional employees and supervisors as defined in the Act.
agreement, with certain modifications, until February 15, 2014. The Union never held a
ratification vote over this extension agreement.7
The parties began negotiations over a successor agreement on December 19, 2013,
and those negotiations continued until September 18, 2015. The Company’s negotiation
committee included Anthony Gianatasio, Labor Relations Representative. Gianatasio reported
to Charles Cookman, the Company’s Executive Director of Labor Relations and Safety.
Cookson participated in the negotiations beginning in late 2014. Gianatasio and Cookman are
supervisors and/or agents of the Company within the meaning of Sections 2(11) and 2(13) of
the Act. The Union’s negotiation committee was led by Herman Marshman, Union President.
The parties failed to reach a successor agreement prior to the expiration of the extension
agreement, but they continued to negotiate, as detailed below, until reaching an impasse as of
October 27, 2015.8
IV. UNFAIR LABOR PRACTICES
A. 06–CA–163303
1. Background
As previously stated, the parties began negotiations for a new agreement in December
2013, and those negotiations continued into 2014. On September 25, 2014, the Company gave
the Union its Comprehensive Offer of Settlement, which detailed the Company’s offer for an
overall agreement. (R. Exh. 1). One of the key changes the Company sought during these
negotiations was to eliminate retiree health benefits. Article XVIII, Section 3 of the parties’
collective-bargaining agreement allowed current employees who retired during the term of the
agreement to continue to participate in their chosen health benefit plan until the expiration of the
agreement in effect at the time of their retirement, with the Company paying a portion of their
health care and prescription drug coverage costs. The parties refer to these as “in-the-box”
retirees because the amount the Company paid was set forth in a box chart in Article XVIII of
the collective-bargaining agreement. Upon expiration of the agreement, these retirees then
come out of the box.9 “Out-of-the-box” retirees are eligible to enroll in a different, higher-cost
company health care plan.10

7 The Union did not submit this extension for ratification because it was not a new agreement. (Tr. 158).
8 At the hearing, the General Counsel and Respondent entered into a stipulation that the parties were at a
good-faith impasse in their negotiations as of October 27, 2015. The Union did not participate in, but did
not object to, this stipulation, stating that its position has been and remains that the parties were not at
impasse. Regardless, the General Counsel controls the complaint, and the Union may not enlarge upon
or change the General Counsel's theory of the case. See Smoke House Restaurant, 347 NLRB 192, 195
(2006), enfd. mem. 325 Fed. Appx. 577 (9th Cir. 2009). Based upon the stipulation, I will accept, without
further analysis, the parties were at a good-faith impasse when Respondent implemented the changes at
issue on October 27, 2015.
9 Charges over retiree health benefits were the subject of prior litigation. See FirstEnergy Generation
Corp., 358 NLRB 842 (2012), affd. 362 NLRB No. 66 (2015) (Board reaffirmed prior Board decision which
was decided without a quorum under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013)).
10 The record does not address what, if any, amounts Respondent pays towards “out-of-the-box” retiree
health benefits.
The Company’s Comprehensive Offer of Settlement proposed eliminating health benefits
for “in-the-box retirees” as of December 31, 2014.11 This Offer also proposed annual wage
increases, referred to as General Wage Increases (“GWI”), that would go into effect following
contract ratification. The proposed increases were scheduled to go in effect as follows: one and
one half percent (1½%) GWI effective the date of ratification; an additional one percent (1%)
GWI effective 1 year following the date of ratification; and an additional one percent (1%) GWI
effective 2 years following the date of ratification. This Offer also proposed increasing the shift
differentials paid to employees for hours worked during the afternoon and evening shifts, and on
Sundays, all effective upon ratification.12 (R. Exh. 1). The Union did not present this Offer to its
members for ratification.
2. December 8, 2014 Bargaining Session13
On December 8, 2014, the parties’ committees met at the Radisson Hotel in Beaver
Falls, Pennsylvania for bargaining. The evidence about this December 8 bargaining session
consisted of the testimony of Charles Cookson, Respondent’s Executive Director of Labor
Relations and Safety, and the notes of Respondent’s bargaining committee member, Tony
Gianatasio.14
At this December 8 session, the parties discussed several topics, including Company’s
proposal to eliminate “in-the-box” retiree health benefits. The Union, through President Herman
Marshman, stated the Company should provide some compensation for the loss of the retiree
health care subsidies, and asked what percentage of the cost savings from the elimination of
these subsidies was the Company willing to share with the Union. There was some discussion.
Gianatasio’s notes reflect the Company then orally made the following proposal:
1. A contribution of $500 for those with individual health care coverage and
$1000 for employee/spouse, employee/child and family coverage to [the
employee’s health savings accounts] HSAs. If they do not participate in a
FirstEnergy HSA, the money would be placed in their 401(k) account. This
would be in each year of the contract in addition, you can choose one of the
options from below:
2. If you end the new retiree health care box 12/31/14 we would provide a
general wage increase in each year of the contract as follows:
a. 3% at ratification
b. 2.5% one year after ratification
c. 2.5% 2 years after ratification

11 Hereinafter the terms “in-the-box” retiree health benefits and retiree health benefits will be used
interchangeably to refer to the health benefits paid to employees for the remainder of the agreement in
effect at the time of their retirement.
12 All the Company’s wage proposals stated any increases would be effective upon ratification. Cookson
testified the Company has an internal policy that it will not pay increases retroactively. (Tr. 173).
13 There was no detailed evidence presented regarding bargaining prior to December 8, 2014.
14 Gianatasio’s notes provide more detail and context as to what was discussed, and nothing in
Cookson’s testimony contradicted Gianatasio’s notes. Gianatasio was not called to testify. No other
witness was called to testify about this bargaining session.
d. In addition we would provide a $.75 equity adjustment15 to all
classifications at the time of ratification
3. If you end new retiree health care box 12/31/15 we would provide a general
wage increase in each year of the contract as follows:
a. 2.5% at ratification
b. 2.0% one year after ratification
c. 2.0% 2 years after ratification
d. In addition we would provide a $.75 equity adjustment [to] all
classifications at the time of ratification
(G.C. Exh. 11).16
In response to Marshman’s earlier question about how much of the savings was the
Company willing to share with the Union, Cookson stated that the Company would save $1.25
million a year by ending the retiree health care benefits by the end of 2014, and its proposed
offer (discussed above) would cost it $1 million a year. The parties then discussed other topics,
including safety, before returning to retiree health benefits. Marshman told Cookson he wanted
to see if there was a reasonable way to distribute the savings, and Cookson responded that the
Company’s offer shows it was flexible. Marshman asked if Cookson would seriously entertain a
counter offer, and Cookson said he would. Cookson then asked if the Union was rejecting the
Company’s offer, and that he (Cookson) had just shown how the Company was offering the
Union back 80 percent of the savings it would receive from eliminating retiree health benefits.
There was some additional discussion about Respondent’s proposal, and the Union asked
questions about the Company’s calculations regarding the amount of the savings. Marshman
explained that the Union “can’t even get a compromise to formally compensate for what is being
lost.” Cookson responded, “I’ve offered you a way to extend the new box to the end of 2015. I
offered contributions to the HSA as a way to deal with that going forward.” (G.C. Exh. 11).
The discussion then moved to the wage disparity that existed between the employees
working at Bruce Mansfield and the employees working at the Company’s Sammis facility. The
Union wanted to bring wages at the Bruce Mansfield facility closer to those at the Sammis
facility. Cookson pointed out that the Company was offering a $.75 per hour equity adjustment
across the board to help “bridge that gap” for every employee at the Bruce Mansfield facility.
Marshman questioned why the Bruce Mansfield employees should be paid less for the same
work. In the end, Marshman rejected the Company’s proposal, stating that the parties had a
number of other matters to address. That was the end of the session. The Union never
presented the Company’s oral offer to its members for consideration.

15 As discussed below, Bruce Mansfield unit employees earn less per hour than their counterparts at the
Company’s Sammis power plant in Stratton, Ohio. This “equity adjustment” refers to the Company’s offer
to increase wages for Bruce Mansfield unit employees to bring them closer to the Sammis employees.
16 Cookson confirmed the Company made this December 8 oral proposal because the Union had
objected to the Company’s proposal in its Comprehensive Offer of Settlement to eliminate “in-the-box”
retiree health benefits by the end of 2014, and that the Company made this December 8 oral proposal to
offer higher wage increases if the Union agreed to end retiree health benefits by the end of 2014, and
lower wage increases if it agreed to end them by the end of 2015. (Tr. 162-163).
3. Cookson and Marshman One-On-One Meetings in July and August 2015
The parties had no further bargaining sessions scheduled following their December 8,
2014 session. In the spring 2015, Cookson contacted Marshman about the two meeting alone.
Cookson hoped this would help facilitate the resumption of bargaining. The two agreed to meet
on July 7, 2015, at a Perkins Restaurant in Austintown, Ohio.
On July 7, 2015, Cookson and Marshman met as planned. Because the proposals
discussed at the December 8, 2014 bargaining session were verbal, Cookson prepared a
written summary of where the parties were as of that meeting, and he gave that written
summary to Marshman at the start of their July 7 meeting. The summary tracked what the
Company had previously verbally proposed, including what the Company was offering in
exchange for eliminating retiree health benefits for “in-the-box” retirees. However, because the
December 31, 2014 deadline had passed, the Company was now only offering that portion of its
proposal that related to the retiree health benefits ending by December 31, 2015. Also, in the
Company’s Comprehensive Offer of Settlement, it proposed maintaining the current pension
plan for existing employees, but moving to a cash-balance retirement savings account (or
defined contribution benefit plan) for new employees hired in the future. Cookson reiterated the
Company’s desire to implement this for future new hires during his July 7 meeting with
Marshman.
The two went over Cookson’s written summary. Marshman then countered, proposing
that the Company keep retiree health benefits until the end of 2017, offer a 12-percent equity
adjustment to wages, plus a 3-percent general wage increase, both at ratification, and no cash-
balance retirement plans. Cookson responded, stating there was no way the Company could
go beyond 2015 for retiree health care; that while the Company was interested in providing an
equity adjustment, Marshman’s proposed amount was too large; and that the Company had to
have cash-balance retirement plans for new hires.
During this July 7 meeting, Cookson also informed Marshman that the Company was
going to need to expand its earlier proposals regarding resource sharing and mobile
maintenance. Resource sharing is an established procedure that allows the Company to send
Bruce Mansfield employees to its other facilities to perform work. Mobile maintenance is a
department of employees at one of the Company’s other facilities who travel around to the
Company’s facilities to perform maintenance work. These employees have similar knowledge
and skills as the unit maintenance employees, but perform the work at a lower cost. Cookson
told Marshman he would be providing written proposals on expanded use of resource sharing
and mobile maintenance at their next meeting.
Cookson and Marshman next met on July 21, 2015, at the Perkins Restaurant in
Austintown, Ohio. At this meeting, Cookson handed Marshman a multi-page document entitled
“Summary of New Proposals and Revisions to 9/25/14 Company Comprehensive Proposal and
12/8/14 proposals provided to Union 7/21/15.” (R. Exh. 2). The Company continued to propose
an end to “in-the-box” retiree health benefits, now to be effective October 31, 2015, as opposed
to the previously proposed December 31 date, as that date had already passed. The Company,
however, increased the equity adjustment from $.75 to $1 per hour for all classifications,
effective at ratification, and it now offered a general wage increase of 5.5 percent at ratification
and 2.0 percent 1 year after ratification. The Company maintained its earlier proposal to make
$500/$1,000 annual contributions into employees’ HSA or 401(k) accounts to help employees
save for their health care upon retirement, and it continued to propose having new hires (hired
after January 1, 2016) be placed in a cash balance plan, as opposed to the Union’s pension
plan. Cookson also provided the Company’s proposals addressing resource sharing and mobile
maintenance.17
Cookson went through the document, explaining the changes. Cookson testified about
this meeting, and his meeting notes also were introduced into evidence. (G.C. Exh. 9).
Cookson’s notes provide the most detail about what was discussed. On the issue of wages,
Cookson explained to Marshman that, with the equity adjustments and the general wage
increases, the Company was now proposing an 8.5-percent increase in wages upon ratification.
Cookson emphasized the Company was not proposing any retroactive pay, and the wage
increases would be effective at ratification, with the additional increases effective 1 year
thereafter. Marshman did not respond to Cookson’s comment about ratification.
Marshman responded that the retiree health benefits had to go until 2017; the Company
needed to provide a means to compensate the current and future retirees for the loss of their
health benefits; the Union was not going to agree to a cash balance plan; and the Union had
issues with the Company’s proposals regarding resource sharing and mobile maintenance.
Cookson asked Marshman to take the proposal to the Union’s bargaining committee to review.
The two agreed to meet again on August 20, 2015, at the same location.
On August 20, 2015, Cookson and Marshman met as scheduled. Cookson’s notes from
this meeting again provide the most detail about what was discussed. (G.C. Exh. 9).
According to the notes, Cookson began with where the parties stood, noting that they left the
July 21 meeting with clear disagreements on the following: (1) ending health benefits for in-the-
box retirees (the Company proposed ending it as of 10/31/15, and the Union would not accept
unless coverage went until 2017); (2) cash balance pension plan for new hires (the Company
proposed, and the Union rejected); and (3) making $500/$1000 annual contributions to
HSA/401(k) accounts (the Union wanted contributions to for retirees as well, and the Company
only was willing to do it for active employees). Cookson then stated that the Company could
move on the term of the agreement and still had room to move in the wage area. Marshman
responded that retiree health care has a monetary value, and that the Company should provide
the savings from the termination of this benefit to the retirees. Cookson’s notes reflect he (CC)
and Marshman (HM) had the following exchange regarding the termination of health benefits for
“in-the-box” retirees:

17 Although the proposals and discussions over the increased use of non-unit mobile maintenance
employees do not directly relate to the allegations in Case 06--CA--163303, they do provide context to the
allegations in Case 06--CA--170901, involving subcontracting. In particular, these proposals sparked an
exchange between Cookson and Marshman over the current and future size of the bargaining unit and
the contracting out of unit work. (GC Exh. 9, pg. 4). During this July 21 meeting, Marshman pointed out
that the Company had not replaced the nearly 130 employees that had left the bargaining unit since 2008.
Cookson did not deny this, stating that a reduced headcount through attrition would give the plant a
chance to survive. Marshman replied that could not come at the expense of the Union, and that the
Union would need some type of an agency fee arrangement and/or contingency plan for contractors who
come to the Bruce Mansfield plant. Marshman stated that a lot can be negotiated between the Company
and its contractors. But Marshman stated he could not knowingly or willingly allow the Company to
impact headcount long term like this, adding that, “I can’t let you impact my ability to represent my
members[;] we need to maintain the union as a whole.” (GC Exh. 9, pg. 4). It was during this exchange
that Cookson also informed Marshman that the Company planned to reduce another 40-50 employees
from the unit, primarily in the mechanical and electrical departments. [At the hearing, Cookson estimated
that in the last 5 years the unit has gone from 275-300 employees to 230 employees, and the unit size
has been steadily declining every year. (Tr. 189-190).]
(CC) Our position is that it (the box) will end and go away. We are proposing to
give $$ to the active employees. We have a fundamental disagreement. We are
eliminating this across the board.
(HM) Not trying to be unreasonable, this is not favorable to us. If I could get
something, we could move on.
(CC) In this area I cannot do any more than I have already offered.
(HM) How do we get around this?
(CC) We have offered other things—like an initial 8.5% wage increase.
(G.C. Exh. 9).
The two discussed the Company’s other proposals, including resource sharing and the
mobile maintenance department. In the end, they agreed they were not near an agreement and
the parties should return to the bargaining table with their full committees. They agreed to
resume bargaining on September 17 and 18, 2015.
4. The September 17-18 Bargaining Sessions
The parties’ committees met on September 17 and 18, at the Radisson Hotel in Beaver
Falls, Pennsylvania. At the September 17 session, the Company gave the Union its “Second
Comprehensive Offer of Settlement.” The document was a red-lined version of the parties’
collective-bargaining agreement with the revisions Cookson had presented to Marshman during
their one-on-one meetings. There were no substantive changes. The parties discussed the
Company’s offer, and the Union’s response remained essentially the same. The Union never
presented this Second Comprehensive Offer of Settlement to its members for ratification.
At the September 18 session, the parties focused on the use of the Company’s mobile
maintenance department and the use of contractors. The Union gave the Company a counter-
proposal regarding the Company’s use of outside contractors. The Union sought to revise the
language in Article IV, addressing Management Responsibilities, to prohibit the use of
contractors if it deprived unit employees of overtime work. The Company considered and
rejected the Union’s proposal. The parties ended the September 18 session apart on several
key issues, including, wages, retiree health care, cash balance pension plans, mobile
maintenance, and resource sharing. The parties scheduled another bargaining session for
October 19, 2015. The Union later cancelled the meeting because Marshman was unable to
attend due to an illness, and Marshman was unwilling to have negotiations continue without
him. The Company requested alternate dates, but the Union provided none.
Thereafter, Company internally concluded that the parties were at impasse. Without
further bargaining sessions scheduled, the Company decided to implement certain terms from
its Second Comprehensive Offer of Settlement.
5. Announced Partial Implementation
On October 27, 2015, Cookson and other Company representatives met with Union
representatives following a scheduled labor-management meeting. Cookson explained to the
Union representatives that the parties were at impasse and the Company was implementing
certain terms from its Second Comprehensive Offer of Settlement. Cookson provided written
documents explaining what proposals the Company was implementing. Among the
implemented terms, the Company was ending retiree health subsidies for all in-the-box retirees
by December 31, 2015; it would begin making annual contributions for current employees of
$500/$1000 (depending on the type of health insurance coverage) toward Health Savings
Accounts (or 401(k) account if no Health Savings Accounts) beginning in 2016; and all
employees hired or rehired on or after January 1, 2016, would participate in the Company’s
cash balance retirement plan (and not in the existing pension plan).18 Cookson handed the
Union a package of documents related to the impasse and the implemented terms. One of the
documents the Company gave the Union was entitled “Summary of Implemented Terms.” This
document states the following regarding the Company’s proposed increases to wages and shift
differentials:

Wages (Article XVII, Appendix A-1, A-2, Articles XVII, IX) - Wage updates only
effective upon ratification of the contract by membership
· Equity adjustment-one dollar per hour increase applied to all
wages in effect July 1, 2015, only upon Ratification
· Effective the date of ratification, a General Wage Increase of
five and one half percent (5.5%) will be granted on the wage
rates in effect after equity adjustments
· Effective one year following the date of ratification, a General
Wage Increase of two percent (2.0%)
· Upon ratification, increase Sunday Shift Premium to Two
Dollars Five Cents ($2.05) per hour, Afternoon Shift Premium
to One Dollar Fifty ($1.50) per hour, Night Shift Premium to
One Dollar Fifty Five ($1.55) per hour.
As previously stated, the General Counsel and Respondent stipulated that the parties
were at impasse as of October 27, 2015.
B. 06-CA-17901
1. Background
As previously stated, the Bruce Mansfield facility has three identical power-generating
units: Unit 1, Unit 2, and Unit 3. Each unit consists of a turbine, a generator, a boiler pump,
valves, and other auxiliary equipment. The Company shuts down a unit for periodic
maintenance, which is referred to as a scheduled outage. A full-train overhaul is a larger scale
outage that includes opening and disassembling the entire turbine-generator unit, inspecting
and cleaning the parts, and then reassembling and closing the unit.19 The bargaining unit
employees at Bruce Mansfield historically have performed all the open/clean/close work. (Tr.
47-48). The Company has contracted out certain specialized work, such as engineering,
sandblasting, coating, painting, insulation, pipefitting, non-destructive testing, etc.

18 Respondent did (not) implement other proposals from its Second Comprehensive Offer of Settlement.
It is unnecessary to discuss them as they are irrelevant to deciding the matters at issue.
19 Throughout the hearing, various terms were used to describe this work, including, but not limited to, the
open/clean/close work, the turbine/generator overhaul, the turbine rebuild, the turbine outage, etc.
2. M116 Outage
In the spring 2016, the Company performed a full-train overhaul of Unit 1. This type of
outage occurs approximately every 9 years. This particular outage involved nearly 600 tasks.20
Christopher Cox, Respondent’s Maintenance Manager, testified the Company internally
evaluated the project and determined, after consulting with the Pennsylvania, New Jersey, and
Maryland Interconnection (“PJM Interconnection”), that it could complete the project within 56
days. (Tr. 203-204). The project was referred to as M116, because it involved Unit 1 at the
Bruce Mansfield facility in 2016.
Planning for this particular outage began back in January 2015, when the Company’s
higher-level managers met to begin discussing the project. One of the topics discussed was
who should perform the open/clean/close work. The Company’s higher-level managers
considered the following three alternatives: (1) have the work performed by bargaining-unit
maintenance employees; (2) have the work performed by the Company’s mobile maintenance
department; or (3) have the work performed by outside contractors. According to internal
emails, these managers concluded there were not enough available unit maintenance
employees to perform the open/clean/close labor for a full-train turbine outage, while still
performing the day-to-day maintenance work on the other two units and related equipment. The
managers considered having the mobile maintenance employees perform the open/clean/close
work, but the Company’s industrial relations department believed it “would be too risky to use
[mobile maintenance] in that capacity because the [turbine/generator] work was always
performed in house and using [mobile maintenance] at this time would jeopardize ongoing
negotiations with the [U]nion.” (G.C. Exh. 12). Ultimately, the managers focused on
subcontracting out the work. There is no dispute the Company never involved the Union in this
decision-making process.
The Company contacted General Electric (“GE”) in early 2015 to request its bid to
perform the M116 open/clean/close work. The Company contacted GE because GE originally
manufactured the turbine generator units, and the Company continued to use GE to provide
technical direction during outages. Additionally, GE provides a two-year warranty on any work it
performs for the Company. GE provided warranties for work performed during prior outages.
In late February 2015, GE provided the Company with its bid to perform the work. Over
the next several months, the Company had ongoing discussions with GE about its bid to
perform the work. Christopher Cox was involved in overseeing the M116 project, making sure
that it was executed on budget, on time, and safely. He testified that by about September 10,
2015, the Company made the decision and received approval to have GE perform the work at
issue. Cox worked with GE over the next month or so on additional proposals to try to reduce
the costs for the Company.21 (Tr. 204-205). On around November 13, 2015, the Company
entered into a purchase order to have GE perform the open/clean/close work on Unit 1. (G.C.

20 The General Counsel introduced an internal report identifying each task performed during the outage,
as well as the estimated man hours it would take to complete the each task. (G.C. Exh. 2). The General
Counsel presented two witnesses who testified that approximately 140-150 of the tasks were previously
performed by unit employees. (Tr. 70-71)(Tr. 100-101).
21 At the hearing, Cox testified that the labor costs were actually more to use GE to perform the work at
issue. (Tr. 205). Cox provided no explanation or basis for his statement. The Company also did not
introduce any documentary evidence to support or explain his statement.
Exh. 17). There is no dispute that the Company did not inform the Union that it contracted with
GE to perform this work until February 10, 2016.
Article IV of the parties’ expired collective-bargaining agreement contained the
management rights provision, which addressed subcontracting. It stated, in pertinent part, that:
It is the policy of the Company not to employ outside contractors for work
ordinarily and customarily done by its regular employees where such contracting
would result in layoff or demotion of employees or the reduction of hours of work
below forty (40) hours per week. Except in emergencies, the parties agree to
meet prior to contracting work out and discuss the scope of the work (as to
description, location, and estimated duration) involved, and the portion, if any, to
be performed by bargaining unit employees.
As part of this process, the Company faxed the Union a weekly spreadsheet report with
the work the Company has assigned (on an emergency basis) or may assign to outside
contractors. The Company continued this practice after the parties’ agreement and extension
both expired. The Company faxed the Union these reports on Friday, and then parties meet the
following Wednesday at a contractors’ meeting to discuss the work at issue.
Respondent introduced 10 of these weekly spreadsheet reports, covering certain weeks
from June 5, 2015 through November 20, 2015 (specifically, the reports were for 2/6/15, 6/5/15,
7/7/15, 9/4/15, 9/18/15, 9/28/15, 10/2/15, 10/9/15, 11/6/15, and 11/20/15). Some of these
reports refer to M116. Some identify the subcontractor and the type of work being performed.
However, only two refer to M116 and turbine or generator. (R. Exh. 5). The first is the June 5,
2015 report, which indicates Thomas Cowher, a higher-level consultant for the Company,
requested a contractor for a job described as “Turbine Area General NDE M116.” Christopher
Cox testified that “NDE” stands for non-destructive examination. Non-destructive examination
refers to when the turbine is apart and on the floor, and there is ultrasonic testing to inspect the
area for cracks and erosion. Cox confirmed that bargaining unit employees do not perform this
non-destructive testing. (Tr. 212-213). The second is the November 6, 2015 report, which
indicates that Thomas Cowher requested a contractor for a job described as “Generator labor
M116.” (R. Exh. 12). Neither entry provides any additional information about the nature or
scope of the project, when it was going to be performed, and/or who was going to perform it.
None of the witnesses present for these weekly meetings could recall any discussions about the
subcontracting of the open/clean/close work or the turbine/generator outage work for Unit 1.
The Company holds periodic “all hands” meetings with maintenance department
employees. On June 15, 2015, the Company held “all hands” meetings for each of the shifts in
which the M116 outage was raised. The Company gave a power-point presentation that
generally addressed the outage. Only one of the witnesses, Devin Miller, a senior engineer
consultant for Respondent, testified about the meeting, and he could not offer any specifics
about what details were shared with employees. Miller confirmed that while the employees in
attendance learned that an outage would be occurring in 2016, they were not informed who was
going to be doing any of the particular work during the outage, including who was going to
perform the open/clean/close work. (Tr. 271).
On January 11, 2016, the Company held a managerial meeting with its outage planners.
No Union representative was present for this meeting. At this meeting, there was a power-point
presentation, and one of the slides read, “Turbine-Generator Labor. GE will provide project
management, supervision and craft labor to open/clean/close the main turbine, turbine valves,
and generator under the alliance contract. Final approval for the GE PO [Purchase Order] was
received on 11/12/15. Project team will start planning and scheduling as soon as GE receives
the PO.” (G.C. Exh. 3).
On February 10, 2016, the Company held a contractors information meeting with the
Union. At this meeting, Paul Rundt, the Maintenance Superintendent, and Christopher Cox met
with Union representatives to inform them that the Company had contracted out the
open/clean/close work to GE. Dennis Bloom, the Union recording secretary, and Frank Snyder,
Union steward, were present for the meeting. Bloom testified that Rundt identified each of the
jobs and which contractor was going to be performing the work. Specifically, Rundt stated that
the Unit 1 turbine outage work was going to be given to GE. Rundt stated the Unit 1 boiler feed
pump work may also go to GE. Bloom responded that the mechanical maintenance employees
had performed the outage work in the past, and that it should be done by the unit employees.
Rundt replied that the outage work was going to be contracted out to GE.22 Rundt, however, left
open the issue of who would perform the boiler feed pump work, stating that he would check
into it and get back to the Union. (Tr. 64-65). Snyder then requested the contractor information
sheets, which would list the contractor, the particular tasks, the estimated man hours, and the
estimated costs. As for the costs, Bloom testified Cox responded that the information was
proprietary, that the Union was not entitled to that, and the information was not available. (Tr.
66-67). Cox did not recall any request for information being made during this meeting. (Tr.
226). Following the meeting, the Company decided to have the unit employees perform the
boiler feed pump work, and Rundt informed the Union of this decision.
3. Information Request
Later, Bloom reported to Marshman what had occurred at this meeting. Thereafter,
Marshman sent the Company a letter dated February 10, 2016, requesting information. The
letter, in pertinent part, stated:
This is a reaffirmation letter of the company’s obligation to provide all information,
upon request by Local 272, for contractors working at the Bruce Mansfield Plant.
This would include:
• Name
• Number of employees
• Estimated man/hours
• Wages
• Material costs

22 Cox and Rundt both testified that Rundt informed the Union that the Company “was intending” to
contract out the turbine outage work and auxiliary equipment work, including the boiler feed pump work,
to GE. I do not credit that Rundt said the Company “was intending” to subcontract out the turbine outage
work to GE. I find the Company had already made that decision, and it was final. The Company made
the decision to subcontract this work in early 2015. It solicited and received GE’s bid in the early spring of
2015. Cox testified the Company made the final decision to subcontract this work to GE on around
September 10, 2015, and he continued to negotiate with GE for several more weeks to try to further
reduce the cost to the Company. On November 13, 2015, the Company and GE entered into a purchase
order to perform the work. At the January 11, 2016 outage readiness meeting, the Company informed
managers that it had contracted with GE to perform the “labor to open/clean/close the main turbine,
turbine valves, and generator under the alliance contract.” In light of these circumstances, I credit
Bloom’s testimony that the Company presented its decision to subcontract the turbine outage work to GE
as a final decision.
(But not limited to).
This letter is also a formal request for all information from paragraph above for
the Unit One Outage.
In a letter dated March 14, 2016, Christopher Cox, the Maintenance Manager,
responded to Marshman’s information request, providing the Union with a three-page chart
containing the work order number for the contracted-out job, the abbreviation for the contractor’s
name on the order, a short description of the work the contractor was to perform, and the
estimated number of man-hours to perform the work described. The Company did not provide
the wages the contractor paid to the individuals performing the work or the material costs.
There is no mention of this information in the Company’s response, and no explanation as to
why the information was not being provided to the Union.
Marshman testified that after receiving Cox’s March 14 letter he called Cox to tell him the
response was insufficient. Marshman testified that he complained to Cox about not receiving
the requested wage and material cost information. Marshman testified that he kind of gave Cox
a summary why the Union needed it, stating that if the Union was going to try to negotiate the
work that was performed, it “would need to know apples to apples” of what it was negotiating.
(Tr. 124-125).23 The Company never provided the requested wage or material cost information,
did not inform the Union that it was not going to provide it, or explain why it was not going to
provide it. (Tr. 246-248).
The Unit 1 scheduled outage lasted from around March 20, 2016 through May 14, 2016.
GE performed the open/clean/close work on the turbine-generator unit. There were no unit
employees were involved in this turbine overhaul work. (Tr. 201). The bargaining unit
employees performed the boiler feed pump work. During this period of time, all available
bargaining unit employees worked, including voluntary and involuntary overtime. Some of the
unit employees turned down opportunities to work overtime.
V. LEGAL ANALYSIS
1. Did Respondent violate Sections 8(a)(5) and (1) of the Act when it failed to also
implement its proposed increases to wages and shift differentials from its final, pre-
impasse offer while implementing other proposals from that same offer.
The General Counsel contends Respondent violated Sections 8(a)(5) and (1) of the Act
when, after the parties reached an impasse, it failed to implement its proposed increases to
wages and shift differentials when it eliminated “in-the-box” retiree health benefits.24 It is well-

23 Marshman could not recall if he initially spoke with Cox or left him a voicemail message, but he did
have this conversation with Cox about the Company’s response. Cox testified that he does not recall any
further communication with Marshman about this information request. (Tr. 228). But Cox did recall
having conversations with Marshman in the past on the topic of obtaining information from
subcontractors, and that Respondent informed Marshman this information is proprietary to the
subcontractor, and Respondent will not provide it. (Tr. 248-249). I credit Marshman’s specific recollection
of telling Cox that he (Marshman) needed the requested information for negotiations and he needed to
know “apples to apples” of what he was negotiating.
24 Paragraph 12 of the complaint in Case 06--CA--163303 alleges that Respondent violated Sections
8(a)(5) and (1) of the Act when it “failed to implement the wage adjustments and shift differential
proposals contained in its [Second Comprehensive Offer of Settlement] notwithstanding that it
implemented the remaining terms from that proposal.” As previously established Respondent
established that after the parties reach a good-faith impasse during contract negotiations, an
employer may unilaterally implement changes to existing terms and conditions of employment
provided those changes are “reasonably comprehended” within the employer's pre-impasse
proposal to the union. See NLRB v. Katz, 369 U.S. 736 (1962); Taft Broadcasting Co., 163
NLRB 475, 478 (1976), enfd. 395 F.2d 622 (D.C. Cir. 1968). See also Winn-Dixie Stores v.
NLRB, 567 F.2d 1343 (5th Cir. 1978) (implemented terms cannot be “significantly different” than
those proposed to and rejected by the union). Moreover, an employer is not required to
implement all aspects of its final, pre-impasse offer, but may choose to implement portions of it.
Presto Casting Co., 262 NLRB 346, 354 (1982) (unilateral raises that encompassed automatic
progressions and merit increases held reasonably comprehended in pre-impasse proposals on
merit wages even though employer gave higher wages and increased wages for a larger portion
of employees than in the past). See also Hi-Way Billboards, Inc., 206 NLRB 22, 23 (1973)), enfd
in relevant part, 708 F.2d 495 (9th Cir. 1983), cert. denied 464 U.S. 994 (1983); Emhart Indus.
v. NLRB, 907 F.2d 372, 377 (2d Cir. 1990). The Board, however, has held that an employer
cannot selectively implement proposals that are “inextricably intertwined” with unimplemented
proposals. See Plainville Ready Mix Concrete Co., 309 NLRB 581, 588 (1992); and Cleveland
Cinemas Management Co., 346 NLRB 785 (2006).
In Plainville Ready Mix, supra, the employer proposed during contract negotiations to
change the wage structure and health insurance plan offered to employees. As for wages, the
employer proposed to lower fixed hourly wage rates but introduced gain sharing and incentive
pay plans to help employees make up the difference. The union rejected the proposal. In its
final pre-impasse offer, the employer offered to withdraw the gain sharing and incentive pay
plans and, instead, offer a higher fixed hourly wage rate. However, after reaching impasse, the
employer did not implement the higher hourly wage rate or the gain sharing or incentive pay
plans; it simply implemented the lower fixed hourly wage rates. The Board adopted the
administrative law judge’s finding that the employer violated the Act by doing so, holding that the
lower wage rate was not reasonably comprehended in the employer’s final offer because the
lower hourly wage rate was presented as part of a package with the gain sharing and the
incentive pay plans—it was not offered as a stand-alone proposal.
As for health insurance, the employer proposed a new plan that limited certain covered
benefits, such as drug and alcohol treatment and psychological treatment, and it increased the
employees’ premiums, deductibles, and copays. But the new plan also added benefits, such as
vision care, emergency care, and a prescription drug card. After reaching impasse, the
employer partially implemented the proposed health insurance plan, without the added benefits.
The Board adopted the judge’s finding that the employer violated the Act when it implemented
the proposed plan without the added benefits, stating that, “the plan was presented as a health
insurance plan; that the elements of the plan do bear an economic and functional relationship to
each other; and that to implement only parts of the plan, a fortiori those parts of the plan
principally detrimental to the employees, is an unlawful implementation …” See id. at 585.
In Cleveland Cinemas Management Co., supra, the successor employer acquired a
movie theater that employed union-represented projectionists. During negotiations, the
successor employer informed the union that it wanted to eliminate the dedicated projectionist

implemented some but not all of the proposals from its Second Comprehensive Offer of Settlement. In its
posthearing brief, the General Counsel made clear that it was alleging that Respondent violated Sections
8(a)(5) and (1) of the Act when it failed to implement the general wage increases, equity adjustments, and
shift differentials when it eliminated health benefits for “in-the-box” retirees. (G.C. Br. 23).
positions and have that work performed by supervisors. The union objected. The employer
then offered to enter into a service technician agreement which would have two of the
projectionists working fulltime covering all three of the employer’s area theaters in exchange for
eliminating the dedicated projectionist positions. The union rejected this proposal, stating it
wanted both the dedicated projectionist positions and the service technician agreement. The
employer was unwilling to do this, and it gave the union its written proposal regarding the
service technician agreement. Thereafter, the parties reached an impasse, and the employer
partially implemented its final offer. The employer eliminated the dedicated projectionist
positions and had that work performed by supervisors, but it did not implement the proposed
service technician agreement. Applying Plainville Ready Mix, the Board adopted the judge’s
finding that the employer violated the Act by failing to implement the proposed service
technician agreement, holding that it was presented to the Union in its final, pre-impasse offer
as a “quid pro quo” for the union giving up the dedicated projectionist positions.
Here, the General Counsel relies upon the “inextricably intertwined” theory to support his
position that Respondent was obligated to also implement the proposed increases to wages and
shift differentials contained in its Second Comprehensive Offer of Settlement because they were
presented as part of an overall package to compensate the Union for the elimination of “in-the-
box” retiree health benefits.25 I agree. I find that from December 8, 2014 forward, Respondent
proposed the wage increases at issue, as well as annual contributions into employees’ HSA or
401(k) accounts, as a quid pro quo for the elimination of “in-the-box” retiree health benefits.26
There is no dispute that Respondent’s December 8 oral proposal directly tied the wage
increases to the elimination of the “in-the-box” retiree health benefits. (Tr. 162-163). Also, it was
during this December 8 bargaining session when Marshman asked how much of the savings
from the elimination of these retiree health benefits was the Company willing to share with the
Union, Cookson responded that the Company would save $1.25 million a year by ending the
benefits by the end of 2014, and that the Company’s oral proposal to the Union would cost it $1
million a year. When Marshman continued to assert that the Union was not getting enough in
return for the elimination of the retiree health benefits, Cookson responded that he had already
explained how the Company’s oral proposal was offering the Union back 80 percent of the
savings from the elimination of those benefits.
The Company continued to tie the proposed wage increases to the elimination of the “in-
the-box” retiree health benefits when Cookson met one-on-one with Marshman in July and
August 2015. At the July 7, 2015 meeting, Cookson reduced the Company’s December 8 oral
proposal to writing. At the July 21, 2015 meeting, the Company increased the equity adjustment
portion of its proposal from $.75 an hour to $1 an hour, but the quid pro quo nature of the
proposal remained the same.27 Cookson pointed out to Marshman at this July 21 meeting that

25 Respondent did implement its proposal to make annual contributions to the employees’ HSA or 401(k)
accounts as set forth in its Second Comprehensive Offer of Settlement.
26 The term “proposed wage increases” as used in this Decision encompasses the proposed equity
adjustments, general wage increases, and shift differentials referred to in the Company’s Second
Comprehensive Offer of Settlement.
27 At the hearing, Cookson confirmed the December 8 oral proposal tied the wage increases to the
elimination of the “in-the-box” retiree health benefits, and those increases were higher if the Union agreed
to eliminate the benefits by the end 2014, as opposed to the end of 2015. However, he claims the
Company abandoned its proposal tying the wage increases to the elimination of the retiree health benefits
after the December 31, 2014 deadline passed. (Tr. 137-138). I do not credit this testimony. Although the
proposed incentive to get the Union to agree to end the benefits by the end of 2014 went away with the
passage of time, the proposals and discussions continued to tie the wage proposals and elimination of
the Company was now proposing an 8.5 percent wage increase, consisting of the combined 7.5
percent general wage increases and the $1 per hour equity adjustment. At their August 20,
2015 meeting, when Marshman continued to challenge that the Union was not getting enough in
return for the elimination of the retiree health benefits, Cookson pointed out that the Company
was offering an 8.5 percent increase in wages if the retiree health benefits ended in 2015.
When the parties met again for bargaining on September 17 and 18, 2015, there is no
dispute that the Company made the same package proposal to the Union that Cookson had
presented to Marshman. The Company never modified its proposal as it related to increases to
wages and shift differentials and the elimination of retiree health benefits, and it never informed
the Union that it would eliminate retiree health benefits without implementing the proposed
increases. It was not until October 27, 2015, when Respondent announced it was implementing
portions of its Second Comprehensive Offer of Settlement, that the Union learned Respondent
was not also implementing the proposed increases to wages or shift differentials.
In its posthearing brief, Respondent initially contended its wage proposals were not
linked to any other aspect of its proposal, but a sentence later Respondent claimed that, if
anything, its proposals were in response to the Union’s stated concerns over the wage gap
between the Bruce Mansfield facility and the Sammis facility. (R. Br. 28).28 I reject this
contention, largely because it is contrary to the overwhelming evidence, including the express
language in the Company’s oral and written proposals, which, as previously stated, directly tied
the wage proposals to the elimination of the “in-the-box” retiree health benefits. While
Respondent’s wage proposals included an equity adjustment, in the form of a flat dollar amount,
it was only one aspect of its overall quid pro quo proposal. Another aspect of the proposal was
the general wage increase (GWI), which was in the form of percentage increases. If
Respondent’s wage proposal was limited to bridging the wage gap between the two facilities, it
is unclear why it needed to distinguish between an equity adjustment and a general wage
increase when it submitted its proposal.
Moreover, while it is true Marshman and the Union complained that the Company was
not offering enough to equalize the wages between the two facilities, Marshman never
abandoned the Union’s position that the Company was not offering enough to compensate for
the elimination of the “in-the-box” retiree health benefits. And, as previously stated, when
Cookson and Marshman met on August 20, 2015, and Marshman continued to complain that
the Company was not offering enough, Cookson responded that the Company was offering the
Union an 8.5 percent wage increase. In other words, while the parties discussed the equity
adjustments, it was never in isolation or at the exclusion of the other aspects of Respondent’s
integrated proposal. And when the Union rejected the Company’s Second Comprehensive

retiree health benefits together. The Company never withdrew its proposal, and it never informed the
Union that it was no longer proposing the wage increases and annual contributions to employees’ HSA or
401(k) accounts to compensate for the elimination of the retiree health benefits. On the contrary, as
previously stated, Cookson continued to make statements showing that the proposals were related when
he met with Marshman one-on-one in July and August 2015.
28 In its posthearing brief, Respondent addressed arguments it anticipated the General Counsel might
make as to how or to what it (Respondent) tied these wage increases to when making its proposals. For
example, Respondent anticipated the General Counsel might argue the wage proposals were tied to new
productivity standards and/or new work rules. (R. Br. 30-33). Respondent curiously does not address the
argument that the wage proposals were exchange for the elimination of the retiree health benefits.
Offer of Settlement, it did so because it objected to several of the Offer’s provisions, including
aspects of Respondent’s quid pro quo proposal. (Tr. 179-181).
Contrary to Respondent’s contentions, I find it proposed an integrated package, which
consisted of an equity adjustment, the general wage increases, the shift differentials, and the
annual contributions to the employees’ HSA or 401(k) accounts, as a quid pro quo for the
elimination “in-the-box” retiree health benefits. The fact that the proposal included an aspect
that also helped bridge the wage gap between the two facilities does not alter this conclusion,
because a proposed wage increase certainly can, and in this case did, serve two objectives.
Accordingly, I find that by implementing the elimination of “in-the-box” retiree health
benefits without implementing the general wage increases, the equity adjustments, and the shift
differentials, Respondent implemented a change in terms and conditions of employment not
contemplated in its Second Comprehensive Offer of Settlement. Respondent either could have
maintained the “in-the-box” retiree health benefits or implemented the proposed increases to
wages and shift differentials.
2. Did Respondent violate Sections 8(a)(5) and (1) of the Act when it conditioned
implementation of the wage adjustments and shift differentials on contract ratification.
The General Counsel’s second argument is that Respondent violated Sections 8(a)(5)
and (1) of the Act when it conditioned implementation of the proposed wage increases upon
contract ratification. Contract ratification is a permissive subject of bargaining, and a party may
not insist to impasse or condition negotiations or overall agreement on ratification. See NLRB v.
Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349-350 (1958). Requiring ratification
substantially modifies or weakens the independence of the representative chosen by the
employees by enabling the employer, in effect, to deal with its employees rather than with their
statutory representative. Id. at 350. It is because “employee ratification marginally diminishes
the statutory rights that Congress has bestowed on unions as exclusive bargaining
representatives both in the negotiation of labor contracts and in the governance of its internal
affairs … it is entirely fitting that the Board insist on clear evidence that a union has agreed as a
contractual matter to surrender a degree of its prerogatives.” New Process Steel, 353 NLRB
111, 114 (2008), revd on other grounds, 560 U.S. 674 (2010) (quoting Beatrice/Hunt-Wesson,
Inc., 302 NLRB 224, 226 (1991) (Chairman Stephens concurring)). Thus, the Board requires
the parties have an express agreement to make ratification a condition precedent, and that such
an agreement “is not established casually or equivocally.” Id. at 114-115. Absent evidence of
such an agreement, the union retains sole discretion over whether to ratify the contract or not.
Id.
Respondent argues that it repeatedly indicated in its proposals that increases to wages
and shift differentials would be effective upon ratification, and the Union did not object or
request to bargain over the ratification language. I do not find that constitutes an express
agreement binding on the Union.29 Beatrice/Hunt-Wesson, Inc., supra. Absent such an

29 In its posthearing brief, Respondent claims that it never actually required contract ratification as a
condition precedent to paying the increases, and that its use of the phrase “contract ratification” was
“merely a proxy” for when the parties reached an agreement, and the intent was that the increases would
be effective the same time as the new agreement was reached. (R. Br. 33-34). Respondent presented no
evidence the Union or employees shared this understanding of the use of the term “contract ratification.”
Moreover, I find Respondent’s claim to be disingenuous in light of the fact it distributed a document to the
agreement, Respondent violated the Act when it conditioned implementation of the proposed
wage increases on contract ratification.
In its defense, Respondent argues that under Board law it is not unlawful to combine
mandatory and permissive bargaining subjects in a proposal, so long as the employer does not
insist to impasse on the permissive bargaining subjects. While generally accurate, I find
Respondent did, in fact, unlawfully insist on contract ratification when it implemented portions of
its pre-impasse offer but withheld the inextricably intertwined wage increases, and then
informed the Union and the employees in its October 27, 2015 correspondence that those
increases would only be implemented upon contract ratification.
Respondent cites to White Cap, Inc., 325 NLRB 1166 (1989), enfd 206 F.3d 22 (D.C.
Cir. 2000), as supporting its position. In that case, the employer and union negotiated an
agreement, but the employees failed to ratify it. The employer offered monetary incentives to
facilitate ratification, but the employees again voted it down. The employer again proposed the
added incentives but warned the union that they would be withdrawn if the employees again
failed to ratify the agreement within a set time period. When the employees again failed to
ratify, the employer followed through and withdrew the added incentives from its offer. A charge
was filed, and the Board found that employer acted lawfully.
Respondent argues that if it is lawful to threaten to withdraw—and actually withdraw—
wage proposals based upon a union’s failure to ratify a new agreement, an employer does not
commit an unfair labor practice by timing its wage proposals to coincide with ratification.
Respondent further argues that its non-implementation of the wage proposals was an
inducement to convince the Union to finalize a new agreement. I reject these arguments. In
White Cap, the employer was transparent when it informed the union that it was only offering
the added incentives as an inducement to get the employees to timely ratify the agreement, and
that it would withdraw those incentives if the employees failed to do so. In this case,
Respondent never indicated to the Union prior to or when it submitted its Second
Comprehensive Offer of Settlement that it would eliminate “in-the-box” retiree health benefits
without also implementing the proposed wage increases. Moreover, White Cap, Inc. involved
the withdrawal of proposed monetary incentives unrelated to any other proposals. In the
present case, Respondent proposed the wage increases part of a quid pro quo package to
compensate for the elimination of the “in-the-box” retiree health benefits, and, as previously
explained, it became obligated to implement those increases when it eliminated the retiree
health benefits.
Respondent also argues it was merely abiding by its understanding as to the Union’s
established practice of submitting agreements to its members for ratification. I reject this
argument as well. First, Board law requires the parties have an express agreement on
ratification, and there was no such agreement in this case. Second, the parties reached an
impasse, not an agreement. As such, there was nothing for the members to ratify. Finally,
there is no evidence that this type of situation has happened before, so Respondent has no

Union and employees on October 27, 2015, entitled “Summary of Implemented Terms” which specifically
states, “Wages (Article XVII, Appendix A-1, A-2, Articles XVII, IX) - Wage updates only effective upon
ratification of the contract by membership.” (Jt. Exh. 8, pg. 2) (emphasis added).
basis for asserting that it was simply abiding by the Union’s established policy or practice when
it required ratification.30
Based on the foregoing, I find that Respondent violated Sections 8(a)(5) and (1) of the
Act when it conditioned implementation of the proposed wage increases on contract ratification.
3. Did Respondent violate Sections 8(a)(5) and (1) of the Act when it
subcontracted the outage maintenance work on Unit 1 without providing
the Union with notice or an opportunity to bargain over the decision.
The General Counsel alleges Respondent violated Sections 8(a)(5) and (1) of the Act
when it subcontracted out bargaining unit work associated with the Unit 1 outage without
providing the Union with notice or an opportunity to bargain. Section 8(d) requires that the
parties meet at reasonable times and confer in good faith regarding wages, hours, and terms
and conditions of employment. An employer violates Section 8(a)(5) when, without consulting
the union, it unilaterally institutes changes in mandatory terms of employment. NLRB v. Katz,
369 U.S. 736, 743 (1962). In general, good-faith bargaining requires the employer provide
timely notice and a meaningful opportunity to bargain over the change at issue. See First
National Maintenance, 452 U.S. 666, 682 (1981). Once notice is given, the union must request
bargaining with due diligence or else it waives bargaining. Kansas Education Assn., 275 NLRB
638, 639 (1985). In general, if notice is given too short a time before implementation of the
change, that is, without time for meaningful bargaining to take place, the notice is nothing more
than announcement of a fait accompli. Toma Metals, Inc., 342 NLRB 787, 787 fn. 1 (2004). The
same is true when an employer has no intention of changing its mind. UAW-DaimlerChrysler
National Training Center, 341 NLRB 431, 433 (2004); Ciba-Geigy Pharmaceuticals Division,
264 NLRB 1013, 1017 (1982), enfd. 722 F.2d 1120 (3d Cir. 1983). When faced with a fait
accompli, a union cannot be held to have waived bargaining. Gulf States Mfg. v. NLRB, 704
F.2d 1390, 1397 (5th Cir. 1983).
It is well established that a decision to subcontract unit work is a mandatory subject of
bargaining where the employer is merely replacing employees in the bargaining unit with
employees of a contractor to do the same work under similar working conditions. Fibreboard
Paper Products Corp. v. NLRB, 379 U.S. 203, 215 (1964). See also Mi Pueblo Foods, 360
NLRB 1097 (2014); O.G.S. Technologies, Inc., 356 NLRB 642, 644-647 (2011); Sociedad
Espanola de Auxilio Mutuo y Beneficencia de P.R., 342 NLRB 458, 467-469 (2004), enfd. 414
F.3d 158 (1st Cir. 2005); Torrington Industries, Inc., 307 NLRB 809, 810–811 (1992).31

30 When the parties extended their collective-bargaining agreement to February 15, 2014, they made
certain modifications. The Union did not submit the extension for ratification because it was not
considered a new agreement. Cookson acknowledged he was made aware of this fact at or around the
time of the extension. Respondent, therefore, was aware the Union does not require ratification of when
something less than a new agreement is involved.
31 In Torrington Industries, the Board noted that while there may be non-labor cost reasons for
subcontracting that may provide a basis for concluding the decision to subcontract is not a mandatory
subject of bargaining, the employer's reason for subcontracting must implicate a matter of core
entrepreneurial concern defined by a fundamental change is the “scope and direction” of its business,
which would then trigger a balancing of the sort described in First National Maintenance Corp. 307 NLRB
at 811. There is no contention the subcontracting at issue amounted to a core entrepreneurial decision or
involved a fundamental change in the scope or direction of Respondent’s business.
Here, Respondent subcontracted work historically performed by bargaining unit
employees without first bargaining with the Union. Respondent, however, contends that it had
no obligation to bargain because the decision to subcontract was not based on labor costs.32
Respondent contends it subcontracted the work to GE because there were not enough unit
employees available to perform the work at issue within the timeframe set to complete the
project. Additionally, Respondent argues that it had no obligation to bargain because
subcontracting the work to GE did not result in any material change or detrimental impact for
any of the unit employees. Specifically, Respondent contends no unit employee lost work and,
in fact, employees worked or were offered (and some refused) extensive overtime during the
outage. Finally, Respondent contends that its decision to subcontract to GE was based, in part,
on the fact that GE offered a warranty on the work it performed.
For the reasons stated below, I find Respondent had a duty to bargain, and that the
decision to subcontract was based, at least in part, on labor costs.
I find the Board’s decision in Mi Pueblo Foods, 360 NLRB 1097 (2014), particularly
instructive and applicable in response to Respondent’s arguments. In that case, the employer
operated a chain of grocery stores and a distribution center. The distribution center employees
would load food shipments and grocery items onto trucks, and then unit drivers would deliver
them to the employer’s stores. The employer used a third-party trucking company to deliver
products from certain suppliers to the distribution center, where the products would be unloaded
and reloaded onto the employer’s trucks for the unit drivers to deliver to the stores. Later, in an
effort to increase productivity and efficiency, the employer began having the third-party trucking
company deliver the supplies directly to certain stores, bypassing the distribution center and the
unit drivers. The union representing the drivers filed a charge alleging the employer had an
obligation to bargain over the subcontracting of this work. The judge found no violation because
no unit drivers were laid off and the drivers’ wages and hours were not significantly affected.
The Board reversed, holding that bargaining is not excused simply because there was no
evidence of immediate impact on the employees’ terms and conditions of employment. The
Board held that whenever bargaining unit work is assigned to outside contractors, the
bargaining unit is adversely affected, and there is an obligation to bargain, because absent an
obligation to bargain, an employer “could continue freely to subcontract work and not only
potentially reduce the bargaining unit but also dilute the [u]nion’s bargaining strength.” 360
NLRB at 1099. In reaching this conclusion, the Board cited to its decision in Overnite
Transportation, Co., 330 NLRB 1275 (2000), affd. in part, reversed in part mem. 248 F.3d 1131
(3d Cir. 2000), in which it held that the employer had an obligation to bargain even though the
subcontracting involved an influx of new work that unit employees could not handle, and where
none of the unit employees lost any work. In so finding, the Board in Overnite Transportation
held:
At issue here is a decision to deal with an increase in what was indisputably
bargaining unit work by contracting the work to outside subcontractors rather

32 Respondent also argues it had no obligation to bargain because it was actually more expensive to
subcontract the work to GE than it would have been to have the unit employees perform it. Respondent’s
only support for this is the testimony of Christopher Cox, who was asked on direct examination whether
labor costs played a role in the decision to use GE to perform the work, and he replied “labor costs are
actually more for GE.” (Tr. 205-206). Cox provided no explanation or support for this statement, and
Respondent offered nothing more. I find Cox’s single, conclusory statement insufficient to prove that it
was, in fact, more expensive to subcontract the work to GE.
than assigning it to unit employees. We think it plain that the bargaining unit is
adversely affected whenever bargaining unit work is given away to nonunit
employees, regardless of whether the work would otherwise have been
performed by employees already in the unit or by new employees who would
have been hired into the unit.
330 NLRB at 1276.
The Board reached similar conclusions in Spurlino Materials, LLC, 353 NLRB 1198,
1218–1219 (2009), affd. 355 NLRB 409 (2010), enfd. 645 F.3d 870 (7th Cir. 2011), and Clear
Channel Outdoor, Inc., 346 NLRB 696, 702–703 (2006). In both cases, the Board concluded
that even absent an affirmative showing that subcontracting caused the layoff or job loss of
current employees, issues amenable to the collective-bargaining process remained, such as the
adjustment of unit employees’ workloads or the reemployment of terminated bargaining unit
members. In Mi Pueblo Foods, the Board noted another possible topic for negotiation with the
union was expanding the bargaining unit. 360 NLRB at 1099.
Respondent claims it had no obligation to bargain because the decision to subcontract
was not based on labor costs, but rather on its need to get the project completed within the
established time frame, and it would not be able to do so using unit employees.33 However, as
the cases cited above make clear, that does not authorize Respondent’s unilateral action--the
Board still imposes a duty to bargain in those situations.
The same is true regarding Respondent’s claim that it did not have an obligation to
bargain because no unit employee experienced a reduction in hours or loss of overtime
opportunity as a result of the subcontracting. As the Board held in Overnite Transportation and
Mi Pueblo Foods, evidence of an immediate impact on employees’ terms and conditions of
employment is not required. The duty to bargain is triggered by concern that the subcontracting
could potentially affect the size of the unit or dilute the union’s strength. In this case, these are
not hypothetical concerns. During negotiations, Respondent raised concerns over the
profitability of the Bruce Mansfield facility and the need to reduce labor costs, which included the
need to reduce the size of the bargaining unit. Respondent also proposed changes, including
the increased use of mobile maintenance employees, which would allow it to increase the
amount of unit work it could assign to non-unit employees. Cookson and Marshman discussed
these matters during their July 21, 2015 meeting. It was in this meeting that Marshman raised
concerns over the dwindling size of the bargaining unit, noting that Respondent had not
replaced the nearly 130 employees that had left the unit since 2008. Cookson replied that a
reduced headcount through attrition would give the plant a chance to survive, and he added that
the Company planned to reduce another 40-50 employees from the unit, primarily in the
mechanical and electrical departments. Marshman stated he could not knowingly allow the
Company to impact headcount long term like this, adding that, “I can’t let you impact my ability
to represent my members[;] we need to maintain the union as a whole.” In light of this evidence,

33 In its posthearing brief, Respondent argues its decision to subcontract was motivated by its concerns
about completing the work within “the tight timeframe mandated by the PJM Interconnection.” (R. Br. 43).
Cox, however, testified the Company was involved in setting the “internal benchmark” for how long it
would take to complete the outage. Then, based on the information it received from PJM, including how
long comparable outages took, the Company reported to that PJM that it could complete the project within
the 56-day timeframe. (Tr. 203-204). In light of this evidence, I find it misleading for Respondent to
suggest it had no control over the amount of time available to it to perform the Unit 1 outage work.
I find the continued diminution of the size and strength of the unit as an adverse effect,
particularly when Respondent’s stated reason for subcontracting to GE was there were not
enough unit employees to do the work.
Finally, I reject Respondent’s argument that it had no obligation to bargain because its
decision to subcontract to was, in part, because GE offered a warranty on the work it performed.
The extent or scope of this warranty is unclear from the record, and it appears that GE has
warranted other work in the past, including when the unit employees performed the outage
work. Regardless, Respondent has cited no authority that the existence of a warranty excuses
to a failure to bargain.
Respondent next argues even if it had an obligation to bargain over the decision to
subcontract the work at issue, the Union waived that right by failing to timely request bargaining.
A union cannot have waived bargaining where it did not receive clear and timely notice of
change, nor can it have waived bargaining by failing to pursue negotiations over changes that
were presented as a fait accompli. Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023 (2001);
Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013, 1017-1018 (1982), enfd. 722 F.2d 1120
(3d Cir. 1983). In order to determine whether the employer has presented the union with a fait
accompli, the Board considers objective evidence regarding the presentation of the change and
the employer's decision-making process. Bell Atlantic Corp., 336 NLRB 1076, 1087 (2001).
Respondent claims it gave the Union timely notice of its decision to subcontract outage
work beginning in February 2015, when it began providing the Union with weekly contracting
reports addressing the M116 outage, and when it met with the Union during their weekly
contractor meetings. Respondent, however, fails to differentiate between work associated with
the outage and bargaining unit work associated with the outage. There is no dispute that
Respondent had a history of subcontracting out work during outages, usually specialized work.
Notice that Respondent intended to continue subcontracting out that work during the M116
outage is not notice of a change. The change requiring clear and timely notice is the
subcontracting of the open/clean/ close work to GE. None of the weekly notification reports in
evidence refer to GE or the open/clean/close work. The only weekly notification report
Respondent specifically refers to in its posthearing brief is the June 5, 2015 weekly report,
which indicates a need for a contractor for a job described as “Turbine Area General NDE
M116.” As previously stated, Cox testified that “NDE” stands for non-destructive examination,
which was work historically performed by an outside contractor, not bargaining unit
employees.34
Respondent also argues that it provided notice of the change at issue during the June
15, 2015 “all hands” meetings in which the M116 outage was raised. However, Devin Miller
testified that while the employees in attendance learned that an outage would be occurring in
2016, they were not informed who was going to be doing any of the particular work during the
outage, including who was going to perform the open/clean/close work. Moreover, even if

34Although Respondent does not raise it in its posthearing brief, there is the November 6, 2015 weekly
notification report, which references a job described as “Generator labor M116.” I do not find this limited
entry constitutes clear notice to the Union of the Company’s decision to subcontract the open/clean/close
work, because the report contains no other information about the scope or nature of the project, when it
was going to be performed, and/or who was going to perform it. Additionally, none of the witnesses
present for these weekly contractors meetings between the Company and the Union could recall any
discussions about the subcontracting of the turbine/generator outage or open/clean/close work for Unit 1.
actual information had been shared about who was going to be performing the work, these were
employee meetings, and the Board has held that notice to employees does not constitute
sufficient notice to the union. Bridon Cordage, Inc., 329 NLRB 258, 259 (1999); Ciba-Geigy
Pharmaceuticals Division, 264 NLRB at 1017.
I find the first notice Respondent gave the Union that it was going to subcontract the
work at issue to GE was on February 10, 2016, when Rundt announced the decision to Bloom
and Snyder after the labor-management meeting. The General Counsel alleges, and I so find,
that Rundt announced this change as a fait accompli based on the statements and surrounding
circumstances. The evidence establishes that Respondent began negotiating with GE to
perform the work in February 2015, and they continued their discussions over the next several
months. Cox testified that Respondent made the final decision to subcontract the work at issue
to GE on around September 10, 2015, and Respondent entered into a formal purchase order
with GE on around November 13, 2015. The surrounding circumstances, including the
statements made to managers during the January 11, 2016 outage readiness meeting, confirm
this was settled. And when Rundt met with Bloom and Snyder on February 10, 2016, he was
informing them of the decisions that had been made. He made it clear that Respondent was
subcontracting the turbine outage work to GE. There was nothing tentative about that in what
he said. What was not settled was who was going to perform the boiler feed pump work.
Rundt indicated that work also may go to GE. The Union inquired about having unit employees
perform that work, and Rundt said he would check and get back to the Union. He did, and the
Union ended up handling the feed pump work. I conclude that while Respondent indicated it
was open to discussing the feed pump work, it informed the Union the other work was going to
be done by GE. As a result, I find Respondent first informed the Union of its decision to
subcontract the work at issue on February 10, 2016, as a fait accompli.35
I, therefore, find Respondent violated Sections 8(a)(5) and (1) of the Act when it failed to
provide the Union with timely notice and a meaningful opportunity to bargain over the decision
to subcontract unit work to GE.36

35 Respondent contends that after receiving this notice the Union should have requested bargaining, and,
if it had, Respondent would have bargained over the decision to subcontract the turbine/generator outage
work, as evidenced by its willingness to re-assign the boiler feed pump work to unit employees after the
Union asked for them to perform it. I find this contention rings hollow. Respondent knew in early 2015
that it was going to subcontract the turbine/generator outage work, but it withheld that information from
the Union for almost a year. In early September 2015, when Respondent made the final decision to
subcontract the turbine/generator outage work to GE, Respondent withheld that information from the
Union, even though the parties were still bargaining over a new contract, in which one of the contested
issues was the performance of unit work by non-unit employees. Respondent continued to withhold
information from the Union regarding its subcontracting decision after it entered into the purchase order
with GE in November 2015. Respondent waited three more months, and when it informed the Union it
presented the decision as final. Under these circumstances, I reject Respondent’s claim that it was
willing to, or the Union would have been able to, engage in meaningful bargaining over the decision to
subcontract this work as of this date.
36 The complaint in 06-CA-163303 alleges that Respondent also failed to bargain over the effects of its
decision to subcontract this unit work. In its posthearing brief, the General Counsel does not mention the
effects bargaining allegation. As such, I need not reach the effects bargaining issue. See Michigan
Ladder Co., 286 NLRB 21, 22 (1987).
4. Did Respondent violate Sections 8(a)(5) and (1) of the Act when it failed to
provide the Union with the contractor’s wage data and material costs?
The General Counsel alleges Respondent violated Sections 8(a)(5) and (1) of the Act
when it failed or refused to provide the Union with the requested wage and material cost
information referred to in the Union’s February 10, 2016 letter. An employer's duty to bargain
collectively under Section 8(a)(5) of the Act includes the duty to supply requested information to
the union representing its employees if the requested information is relevant and reasonably
necessary to the union's performance of its responsibilities. NLRB v. Acme Industrial Co., 385
U.S. 432, 435-436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979). Where the union's request is for information pertaining to
employees in the bargaining unit, that information is presumptively relevant and the employer
must provide the information. However, where the information requested is not presumptively
relevant to the union's performance as the collective-bargaining representative, the burden is on
the union to demonstrate the relevance of the information requested. Disneyland Park, 350
NLRB 1256, 1257-1258 (2007). This burden is satisfied when the union demonstrates a
reasonable belief, supported by objective evidence, that the requested information is relevant.
Disneyland Park, supra at 1258.
The Board has held requested information pertaining to subcontracting, even if it relates
to the bargaining unit employees' terms and conditions of employment, is not presumptively
relevant, and therefore a union seeking such information must demonstrate its relevance.
Disneyland Park, supra at 1258. Specifically, on the subject of subcontracting, the Board has
held that a broad, discovery-type standard is utilized in determining the relevance of requested
information, and that potential or probable relevance is sufficient to give rise to an employer's
obligation to provide the requested information. Id. In that regard, in Disneyland Park, the Board
held that to demonstrate relevance, the General Counsel must present evidence either (1) that
the union demonstrated relevance of the non-unit information, or (2) that the relevance of the
information should have been apparent under the circumstances. Disneyland Park, supra at
1258; See also Allison Co., 330 NLRB 1363, 1367 fn. 23 (2000). The Board also has held that
“[t]he union's explanation of relevance must be made with some precision; and a generalized,
conclusory explanation is insufficient to trigger an obligation to supply information.” Disneyland
Park, supra at 1258, fn. 5. See also Schrock Cabinet Co., 339 NLRB 182 fn. 6 (2003); Island
Creek Coal, 292 NLRB 480, 490 fn. 19 (1989).
In applying this standard, I find the Union has met its burden of establishing potential or
probable relevance of the information at issue based on the statements and circumstances
surrounding the request. Marshman submitted the written information request on February 10,
2016, the same day the Union first learned Respondent had subcontracted the work to GE.
This written request was made after Union Steward Snyder orally requested essentially the
same information, including the subcontractor’s cost information. When Cox responded to
Snyder’s oral request, he did not raise any concern as the relevance of the requested
information. Rather, he stated the information was proprietary, the Union was not entitled it, and
the information was not available.
After receiving the Company’s partial response to the request, Marshman contacted Cox
and stated the Union needed the wage and material cost information because it if was going to
try to negotiate the work that was to be performed, it “would need to know apples to apples”
what it was negotiating. (Tr. 124-125). I find this sufficient to put the Respondent on notice that
the Union wanted to negotiate subcontracting of this work, and that it wanted the contractor’s
wage information and material costs for comparative purposes to facilitate those negotiations.
In its defense, Respondent argues that, in addition to not being relevant, it had no
obligation to produce the information because it was not in its possession. An employer's duty
to supply relevant information also “extends to situations where the information is not in the
employer's possession, but where the information can likely be obtained from a third party with
whom the employer has a business relationship.” Earthgrains Co., 349 NLRB 389, 397-399
(2007), enfd. in pertinent part 514 F.3d 422, 429 (5th Cir. 2008). See also Public Service Co. of
Colorado, 301 NLRB 238, 246 (1991) (employer failed to meet its burden of demonstrating the
information requested by the union was unavailable where there was no evidence it asked the
third party subcontractor for the information). At the hearing, Cox acknowledged that the wage
and material cost information could be requested from GE, but that he did not make that request
or ask someone else to make the request. I find that Respondent has a long-standing, ongoing
business relationship with GE, and it should have requested that information from GE in order to
respond to the Union’s information request.37
Consequently, I find that Respondent violated Sections 8(a)(5) and (1) of the Act when it
failed or refused to provide the Union with the requested wage and material cost information
from GE, which includes failing to request the information from GE.
CONCLUSIONS OF LAW
1. The Respondent, FirstEnergy Generation, LLC, A Wholly Owned Subsidiary of
FirstEnergy Corp., is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, the International Brotherhood of Electrical Workers, Local Union
No. 272, AFL–CIO (Union), is a labor organization within the meaning of Section 2(5) of the Act.
3. At all material times, the Union has been and is the designated collective-bargaining
representative of the following appropriate unit of employees:
All production and maintenance employees, including Control Room Operators,
employees in the Stores, Electrical, Maintenance, Operations, I&T, and Yard
Departments at the Bruce Mansfield Plant, excluding technicians, office clerical
employees and guards and other professional employees and supervisors as
defined in the National Labor Relations Act as amended
4. On or around October 27, 2015, Respondent violated Sections 8(a)(5) and (1) of the
Act by implementing certain provisions from its Second Comprehensive Offer of Settlement
dated September 17, 2015 that were inconsistent with its pre-impasse proposal to the Union
when it implemented the elimination of “in-the-box” retiree health benefits without also
implementing the proposed general wage increases, equity adjustments, and shift differentials.
5. On or around October 27, 2015, Respondent violated Sections 8(a)(5) and (1) of the
Act when it conditioned implementation of the general wage increases, equity adjustments, and
shift differentials proposed in its Second Comprehensive Offer of Settlement dated September
17, 2015 on contract ratification.

37 Respondent makes no contention in its posthearing brief that the information at issue was proprietary
or confidential.
6. On or around January 1, 2016, Respondent violated Sections 8(a)(5) and (1) of the
Act when it unilaterally subcontracted bargaining unit work during the 2016 Unit 1 outage
without providing the Union with notice and an opportunity to bargain about the decision to
subcontract that work.
7. On or around February 10, 2016, Respondent violated Sections 8(a)(5) and (1) of
the Act by failing and refusing to provide the Union with the requested wage and material cost
information from GE that is relevant and necessary to the Union’s role as the unit’s collective-
bargaining representative.
8. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it is
ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
Affirmatively, the Respondent shall, upon request from the Union, either reinstitute the
“in-the-box” retiree health benefits and make whole any affected individual for any loss suffered
from any loss of coverage resulting from the elimination of those benefits or implement the
general wage increases, equity adjustments, and shift differentials proposed in its Second
Comprehensive Offer of Settlement dated September 17, 2015, retroactive to the date it
implemented the elimination of the “in-the-box” retiree health benefits. The Respondent shall
rescind any proposal conditioning the implementation of the general wage increases, equity
adjustments, and shift differentials on contract ratification. The Respondent shall make
employees make employees whole, with interest, for any loss of earnings resulting from
Respondent’s unilateral subcontracting of bargaining unit work during the outage of Unit 1 in
2016. The Respondent will compensate employees for any adverse tax consequences for
receiving lump-sum backpay awards by payment to each employee of the amount of excess tax
liability owed, and will file a report with the Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each employee. The Respondent shall provide
the Union with the remaining information requested in its February 10, 2016 information request.
The Respondent shall post an appropriate informational notice, as described in the
attached Appendix. This notice shall be posted at the Respondent's facility wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the
event that, during the pendency of these proceedings the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees and former employees employed
by the Respondent at any time since October 27, 2015. When the notice is issued to
Respondent, it shall sign it or otherwise notify Region 6 of the Board what action it will take with
respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended38
ORDER
The Respondent, FirstEnergy Generation, LLC, A Wholly Owned Subsidiary of
FirstEnergy Corp., shall
1. Cease and desist from:
(a) Failing or refusing to bargain with Union is the designated collective-bargaining
representative of the following bargaining unit of the employees:
All production and maintenance employees, including Control Room Operators,
employees in the Stores, Electrical, Maintenance, Operations, I&T, and Yard
Departments at the Bruce Mansfield Plant, excluding technicians, office clerical
employees and guards and other professional employees and supervisors as
defined in the National Labor Relations Act as amended
(b) Making unilateral changes to wages, hours, or other terms and conditions of
employment of the bargaining unit employees without first providing the Union with notice and
an opportunity to bargain, including, but not limited to, the subcontracting of bargaining unit
work.
(c) Unilaterally implementing provisions from our Second Comprehensive Offer of
Settlement dated September 17, 2015 that were inconsistent with our final, pre-impasse offer
made to the Union by implementing the elimination of “in-the-box” retiree health benefits without
also implementing the proposed general wage increases, equity adjustments, and shift
differentials.
(d) Conditioning changes to wages, hours, and other terms and conditions of
employment of the bargaining unit employees on contract ratification.
(e) Failing or refusing to provide the Union with requested information, such as the
wages and material costs paid by subcontractors, that is relevant and necessary to the Union’s
role as collective-bargaining representative.
(f) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Provide the Union with notice and an opportunity to bargain before unilaterally
making changes to wages, hours, or other terms and conditions of employment of bargaining
unit employees, including, but not limited to, the subcontracting of bargaining unit work.

38 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
(b) Upon request by the Union, either reinstitute the “in-the-box” retiree health benefits
and make whole any affected individual for any loss suffered from any loss of coverage resulting
from the elimination of those benefits, or implement the general wage increases, equity
adjustments, and shift differentials proposed in its Second Comprehensive Offer of Settlement
dated September 17, 2015, retroactive to the date it implemented the elimination of the “in-the-
box” retiree health benefits.
(c) Make employees whole, with interest, for any loss of earnings resulting from
Respondent’s unilateral subcontracting of bargaining unit work during the outage of Unit 1 in
2016.
(d) Compensate the bargaining unit employees for any adverse tax consequences for
receiving lump-sum backpay awards by payment to each employee of the amount of excess tax
liability, and file a report with the Social Security Administration allocating the backpay awards to
the appropriate calendar quarters for each employee.
(e) Rescind any proposal conditioning the implementation of the general wage
increases, equity adjustments, and shift differentials on contract ratification.
(f) Provide the Union with the requested information sought in its February 10, 2016
request related to the wages and material costs paid by GE during the outage of Unit 1 in 2016.
(g) Within 14 days after service by the Region, post at its facility in Shippingport,
Pennsylvania, copies of the attached notice marked "Appendix."39 Copies of the notice, on
forms provided by the Regional Director for Region 6, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
October 27, 2015.
(h) Within 21 days after service by the Region, file with the Regional Director for
Region 6 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

39 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board."
Dated, Washington, D.C. March 15, 2017.
_____________________________________
Andrew S. Gollin
Administrative Law Judge
m4akr4-11—
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights
WE WILL NOT fail or refuse to bargain in good faith with the International Brotherhood of
Electrical Workers, Local No. 272, AFL-CIO (Union) as the exclusive collective-bargaining
representative of the following appropriate unit:
All production and maintenance employees, including Control Room Operators,
employees in the Stores, Electrical, Maintenance, Operations, I&T, and Yard
Departments at the Bruce Mansfield Plant, excluding technicians, office clerical
employees and guards and other professional employees and supervisors as
defined in the National Labor Relations Act as amended.
WE WILL NOT fail or refuse to provide the Union with notice and an opportunity to bargain
regarding changes to wages, hours, and other terms and conditions of employment, including,
but not limited to, the subcontracting of bargaining unit work.
WE WILL NOT unilaterally implement changes to wages, hours, or other terms or conditions of
employment that are inconsistent with our final, pre-impasse offer made to the Union by
implementing the elimination of “in-the-box” retiree health benefits without also implementing the
proposed general wage increases, equity adjustments, and shift differentials.
WE WILL NOT condition implementation of changes to wages, hours, and other terms and
conditions of employment of the bargaining unit employees on contract ratification.
WE WILL NOT fail or refuse to provide the Union with requested information that is relevant and
necessary to its role as collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL provide the Union with notice and an opportunity to bargain over changes to wages,
hours, or other terms and conditions of employment of bargaining unit employees, including, but
not limited to, the subcontracting of bargaining unit work.
WE WILL, upon request by the Union, either reinstitute the “in-the-box” retiree health benefits and
make whole any affected individual for any loss suffered from any loss of coverage resulting from
the elimination of those benefits, or implement the general wage increases, equity adjustments,
and shift differentials proposed in our Second Comprehensive Offer of Settlement dated
September 17, 2015, retroactive to the date we implemented the elimination of the “in-the-box”
retiree health benefits.
WE WILL make employees whole, with interest, for any loss of earnings resulting from our
unilateral subcontracting of bargaining unit work during the outage of Unit 1 in 2016.
WE WILL rescind any proposal conditioning the implementation of the general wage increases,
equity adjustments, and shift differentials on contract ratification.
WE WILL provide the Union with the remaining information requested in its February 10, 2016
information request.
FIRSTENERGY GENERATION, LLC
A WHOLLY OWNED SUBSIDIARY
OF FIRSTENERGY CORP.
(Employer)
Dated _________________________________ By __________________________________________
Representative Title
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1000 Liberty Avenue, Federal Building, Room 904, Pittsburgh, PA 15222-4111
(412) 395-4400, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/06-CA-163303 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (412) 690-7117.