Harmon Auto Glass

National Labor Relations Board - Board Decisions

Feb 21, 2008

352 N.L.R.B. 152 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 24
152
Leiferman Enterprises, LLC d/b/a Harmon Auto
Glass and International Union of Painters and
Allied Trades-District Council 82 and Light-
house Management Group, Inc. Receiver, Party
in Interest. Case 18–CA–18134
February 21, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On July 20, 2007, Administrative Law Judge Jane
Vandeventer issued the attached decision. The Party in
Interest filed exceptions and a supporting brief for itself
and on behalf of the Respondent.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings, and conclusions as modified and to adopt the rec-
ommended Order as modified and set forth in full be-
low.2
The judge found that the Respondent violated Section
8(a)(5) and (1) by refusing the Union’s requests for in-
formation about the Respondent’s merit pay proposal, the
dollar amount that nonunit employees contributed toward
health care insurance, and the Respondent’s financial
situation. The judge also found that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally implement-
ing the economic terms of its final offer on August 13,
2006. Finally, the judge found that the Party in Interest,
the Respondent’s State court-appointed receiver, is the
Respondent’s agent and therefore personally financially
liable to comply with her recommended Order.
As discussed below, we adopt the judge’s findings that
the Respondent violated Section 8(a)(5) and (1) by refus-

1 The General Counsel’s answering brief was rejected as untimely
and the Respondent’s reply brief was rejected as moot.
2 We have modified the judge’s recommended Order to reflect the
violations found and to limit the financial liability of the Party in Inter-
est. Additionally, we have modified the Order to require the Respon-
dent to rescind the unilateral changes only upon request of the Union,
because one of the unilateral changes benefited employees. See Hospi-
tal San Rafael, 308 NLRB 605, 609 (1992), enfd. 42 F.3d 45 (1st Cir.
1994), cert. denied 516 U.S. 927 (1995). We have also added a provi-
sion requiring the Respondent to bargain in good faith with the Union
before changing a term or condition of employment. See Provena St.
Joseph Medical Center, 350 NLRB 808, 816 (2007). We have modi-
fied the notice to conform it to the language of the Order.
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
ing to furnish the Union with requested information
about health care contributions and the Respondent’s
financial condition, and by unilaterally implementing the
terms of the Respondent’s final offer. However, for the
reasons set forth below, we find, contrary to the judge,
that the Respondent did not violate the Act by failing to
provide the Union with requested information about its
merit pay proposal, and that the Party in Interest is nei-
ther an agent of the Respondent nor personally finan-
cially liable to remedy its unfair labor practices.
I. FACTS
The relevant facts, which are fully set forth in the
judge’s decision, are briefly summarized as follows. The
Respondent purchased its business from a predecessor
employer in 2004. The Respondent immediately recog-
nized the Union and adopted the collective-bargaining
agreement between the Union and the predecessor, which
was set to expire on June 30, 2006.3 In the summer of
2006, the Respondent and the Union engaged in negotia-
tions for a successor collective-bargaining agreement.
The parties held four bargaining sessions in June and
July. During this bargaining, the Respondent announced
that it was experiencing financial stress and needed con-
cessions. The Respondent’s proposals included a merit
pay provision and another provision requiring unit em-
ployees to contribute toward health care insurance to the
same extent as the Respondent’s nonunit employees.
The Union requested information about the Respon-
dent’s merit pay proposal, nonunit employee health care
contributions, and the Respondent’s financial condition.
The Respondent never furnished any of that requested
information. The Respondent presented its final offer at
the last bargaining session, on July 24. The Union’s
membership rejected that offer in a ratification vote held
on August 9. The Respondent declared impasse on Au-
gust 10 and implemented the economic terms of its final
offer on August 13.
During contract negotiations, the Respondent defaulted
on a loan to a secured creditor. On September 20, the
secured creditor successfully petitioned a State court to
place the Respondent into receivership. The Party in
Interest was appointed as the receiver.
II. DISCUSSION
A. Information Regarding the Respondent’s Merit
Pay Proposal
During negotiations, the Respondent proposed a merit
pay provision. Under this provision, it would have been
empowered to award merit pay to employees, at its dis-
cretion, over and above a specified minimum wage, pro-

3 All dates are in 2006, unless noted otherwise.
HARMON AUTO GLASS 153
vided that it not do so in a discriminatory or arbitrary
manner. On several occasions, the Union asked the Re-
spondent’s negotiator to furnish the goals, objectives,
and standards that would govern the award of merit pay
under the Respondent’s proposal. In response, the Re-
spondent’s negotiator explained that no such goals, ob-
jectives, or standards existed and that merit pay would be
granted entirely at the Respondent’s discretion.
The General Counsel alleged, and the judge found, that
the Respondent violated Section 8(a)(5) and (1) by refus-
ing to furnish the Union with the requested goals, stan-
dards, and objectives of its merit pay proposal. The Re-
spondent excepts, arguing that its proposal was not for a
standards-based system, and that the requested informa-
tion did not exist. We find merit in these exceptions.
“[W]hen requested information is presumptively rele-
vant or has been demonstrated to be relevant, the burden
shifts to the respondent to establish that the information
is not relevant, does not exist, or for some other valid and
acceptable reason cannot be furnished to the requesting
party.” House of Good Samaritan, 319 NLRB 392, 398
(1995) (emphasis added); cf. Whittier Area Parents’
Assn., 296 NLRB 817, 817 fn. 2 (1989) (dismissing com-
plaint allegation where requested information did not
exist). The parties agree that the requested information
would be relevant to the Union’s duties if it existed.
However, we find that the Respondent satisfied its bur-
den of proving that the requested information did not
exist. Douglas Seaton, the Respondent’s attorney and
negotiator, testified without contradiction that there were
no goals, objectives, or standards that would govern the
award of merit pay under the Respondent’s proposal, and
that merit pay would be a matter within the Respondent’s
discretion. Having found that the Respondent satisfied
its burden of proving that the requested information did
not exist, we reverse the judge and dismiss this complaint
allegation.4
B. Information Regarding the Amount that Nonunit
Employees Contributed to Health Care Insurance
During the final bargaining session on July 24, the Re-
spondent proposed—for the first time—that unit employ-
ees contribute “the same share or dollar amount towards
the cost of [health] insurance benefits as is paid by simi-
larly situated non-bargaining unit employees of the Em-

4 We disavow the judge’s implied finding that the Respondent en-
gaged in bad-faith bargaining in violation of Sec. 8(a)(5) and (1) by
refusing to negotiate over goals, objectives, or standards to govern
merit pay. The complaint does not allege such a violation. Moreover,
the record does not establish that the Union asked the Respondent to
bargain over goals, objectives, or standards, or that the Respondent
thereafter refused.
ployer.”5 That proposal prompted the Union’s negotiator
to orally request that the Respondent furnish the dollar
amount contributed by such similarly situated nonunit
employees. The Respondent’s representative replied that
the nonunit employees’ current share was 50 percent of
the required contributions, and that the Respondent re-
tained discretion to increase or decrease that share. The
Respondent’s representative then stated that he could not
furnish the dollar amount of nonunit employees’ contri-
butions because that amount was dependent on an em-
ployee’s individual circumstances, including health con-
dition and number of dependents. The representative did
disclose, however, the dollar amount that he personally
contributed toward his own health care insurance. Al-
though the Union’s negotiator did not express dissatis-
faction with that response during the July 24 bargaining
session, the Union again requested the dollar amount of
the nonunit employees’ contributions in letters dated
August 18 and September 8. The Respondent never fur-
nished that information.
We agree with the judge that the Respondent unlaw-
fully failed to provide this requested information. We
reject the Respondent’s argument that its representative’s
response satisfied its duty to provide information under
Section 8(a)(5) and (1). The Respondent never informed
the Union of the dollar amounts that the similarly situ-
ated nonunit employees contributed toward their health
care insurance. Moreover, the Respondent failed to
prove that the information did not exist or provide an
otherwise valid reason for not furnishing it.
We likewise reject the Respondent’s argument that it
had no duty to furnish information regarding nonunit
employees’ dollar contributions because the Union re-
quested this information in bad faith to forestall a bar-
gaining impasse and avoid the Respondent’s unilateral
implementation of its last offer. Bad faith is an affirma-
tive defense that must be pleaded and proved by the Re-
spondent. Honda of Hayward, 314 NLRB 443, 449
(1994). In Honda of Hayward, the Board held that a
respondent was procedurally barred from raising its bad-
faith affirmative defense where it failed to plead that
affirmative defense in its answer or raise it during the
unfair labor practice hearing. Here, similarly, the Re-
spondent failed to plead the defense in its answer or raise
it during the hearing. Consequently, the Respondent is
procedurally barred from raising it in its postdecision
exceptions.
Even assuming that the affirmative defense was prop-
erly raised, we would reject it on the merits. Nothing in

5 The record is silent regarding whether the similarly situated non-
unit employees are covered by the same health-care plan that covered
unit employees under the expired collective-bargaining agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD154
the record demonstrates that the Union requested the
information in bad faith. See AK Steel Corp., 324 NLRB
173, 184 (1997) (“good-faith requirement is met if at
least one reason for the demand can be justified”). To
the contrary, the record reveals that the Union requested
the information to knowledgably evaluate the Respon-
dent’s offer.
C. Information Regarding the Respondent’s
Financial Situation
During several of the bargaining sessions, the Respon-
dent’s negotiator stated that the Respondent was experi-
encing financial difficulties. On July 24, for example, he
informed the Union’s negotiator, “We are not going to be
able to manage to continue the business unless we make
these changes,” referring to the changes contained in the
Respondent’s proposal. That day, the Union asked the
Respondent’s negotiator for financial information that
would verify the claim. The Union repeated its requests
for the information in letters dated July 31, August 14
and 18, and September 8. The Respondent never fur-
nished any financial information to the Union.
The judge found that statements made by the Respon-
dent’s negotiator triggered a duty to furnish information
about the Respondent’s financial situation. See NLRB v.
Truitt Mfg. Co., 351 U.S. 149 (1956). The Respondent
does not except to that finding and, consequently, we
adopt it pro forma.
The Respondent’s sole defense to this complaint alle-
gation is that the Union allegedly requested the financial
information in bad faith, to forestall impasse and to avoid
implementation of the Respondent’s last offer. As ex-
plained above, the Respondent is procedurally barred
from raising the bad-faith affirmative defense because it
failed to plead it in its answer or raise it at the unfair la-
bor practice hearing. Honda of Haywood, 314 NLRB at
449.
But even assuming that the bad-faith affirmative de-
fense had been properly raised, we would reject it on the
merits. The Respondent urges the Board to infer bad faith
from the fact that the Union did not request the financial
information until the final bargaining session and be-
cause several of the requested items are alleged to be
irrelevant to verifying the Respondent’s claimed inability
to pay. We find that the record does not demonstrate that
the Union lacked a good-faith reason for the information
request. In particular, we do not find it suspicious that
the Union requested financial information for the first
time on July 24. It was not until that bargaining session
that the Respondent’s negotiator clearly stated that the
Respondent could not remain in business if its proposal
was not accepted. Nor does the nature of the information
requested (e.g., lists of customers and prices, among
other information) demonstrate that the Union requested
the information solely to avoid impasse and implementa-
tion.
D. Unilateral Implementation
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally implement-
ing the economic terms of its final offer on August 13.
We agree with the judge, for the reasons she states, that
the Respondent’s unfair labor practices precluded a genu-
ine impasse and that, even apart from the Respondent’s
unfair labor practices, the Respondent failed to prove that
the parties had bargained to impasse.
We reject the Respondent’s argument that its unilateral
action should be excused because of exigent economic
circumstances. The duty to bargain in good faith in-
cludes a duty to refrain from unilaterally changing a term
or condition of employment without first bargaining to
impasse or agreement. NLRB v. Katz, 369 U.S. 736
(1962). However, an employer may lawfully make a
unilateral change “when economic exigencies compel
prompt action.” Bottom Line Enterprises, 302 NLRB
373, 374 (1991), enfd. mem. sub nom. Master Window
Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994).
The Board has limited this exception to “extraordinary
events which are ‘an unforeseen occurrence, having a
major economic effect [requiring] the company to take
immediate action.’” RBE Electronics of S.D., Inc., 320
NLRB 80, 81 (1995) (quoting Hankins Lumber Co., 316
NLRB 837, 838 (1995)). The burden is on the Respon-
dent to prove that it experienced such dire and unfore-
seen circumstances, and that burden is “heavy.” Alpha
Associates, 344 NLRB 782, 785 (2005).
We find that the Respondent failed to prove that its
economic exigency was “unforeseen,” as required by our
precedent.6 In support of its defense, the Respondent
relies on the fact that its sales revenue was down signifi-
cantly throughout 2006 when compared to 2005, result-
ing in a net loss of approximately $848,000 in 2006. It
also relies heavily on the fact that it was placed into re-
ceivership by a State court on September 20. But these
facts do not demonstrate that the Respondent experi-
enced an unforeseen economic exigency. First, we have
previously held that a similar decline in sales revenue
over many months is not the kind of unforeseen exigency
that would excuse unilateral action. Toma Metals, Inc.,
342 NLRB 787 (2004) (employer’s 50-percent decline in
sales revenue over 6 months was a chronic condition, and

6 The Respondent does not argue that we should overrule or recon-
sider our precedent relating to the unforseeability requirement. Conse-
quently, Member Schaumber expresses no view as to whether that
precedent should be reconsidered.
HARMON AUTO GLASS 155
did not excuse a unilateral layoff). Second, the Respon-
dent failed to prove that its placement into receivership
was an unforeseen event. In April, 4 months before the
unilateral implementation, the Respondent entered into a
forbearance agreement with a secured creditor on a $2.5
million loan. The Respondent failed to make “numer-
ous” payments to the secured lender and was placed into
receivership on September 20. In these circumstances,
we find that the Respondent failed to satisfy its heavy
burden of proving that the receivership or any other cus-
tomary consequence of its repayment delinquency was
unforeseen. Accordingly, we find that the Respondent
violated Section 8(a)(5) and (1) by unilaterally imple-
menting the economic terms of its final offer.
E. The Liability of the Party in Interest
The judge found that the Party in Interest, the Respon-
dent’s State court-appointed receiver, was the Respon-
dent’s agent, and therefore obligated to fully comply
with the recommended Order. The recommended Order
does not place any limit on the Party in Interest’s finan-
cial liability. Thus, to comply with the recommended
Order, the Party in Interest might have to expend its own
funds to make whole unit employees for any loss they
suffered as a result of the Respondent’s unfair labor prac-
tices.
The Party in Interest excepts to the recommended Or-
der and urges the Board to modify the Order to limit its
financial liability to the assets held in receivership. We
find merit in this exception. The judge’s agency finding
is contrary to Cone-Heiden Corp., 305 NLRB 1045
(1991). In Cone-Heiden, the Board held that an em-
ployer’s receiver was not the employer’s agent, but rather
a fiduciary of the employer’s creditors. Thus, agency
principles do not provide a basis for holding the Party in
Interest personally financially liable to remedy the Re-
spondent’s unfair labor practices.7 Accordingly, we
grant the Party in Interest’s exception and modify the
Order to limit its financial liability to the assets held in
receivership.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Leiferman Enterprises, LLC d/b/a Harmon

7 The General Counsel did not plead in his complaint or argue that
the Party in Interest is personally liable to remedy the Respondent’s
unfair labor practices as a successor under Golden State Bottling Co. v.
NLRB, 414 U.S. 168 (1973). Consequently, we need not and do not
address whether successorship principles provide a basis for finding the
Party in Interest personally financially liable in this case. Specialty
Envelope Co., 321 NLRB 828, 831 (1996), enf. denied in part on other
grounds sub nom. Peters v. NLRB, 153 F.3d 289 (6th Cir. 1998).
Auto Glass, Minneapolis, Minnesota, its officers, agents,
successors, and assigns, and its receiver Lighthouse
Management Group, Inc., shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
International Union of Painters and Allied Trades–
District Council 82 (the Union), as the exclusive collec-
tive-bargaining representative of employees in the unit
described below, by failing and refusing to furnish rele-
vant information requested by the Union.
(b) Failing and refusing to bargain collectively with
the Union by unilaterally implementing changes in terms
and conditions of employment in the absence of a lawful
bargaining impasse.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union in a timely manner the infor-
mation it requested on July 24 and 31, August 14 and 18,
and September 8, 2006, except for the requested informa-
tion regarding the merit pay proposal.
(b) Upon request of the Union, rescind the unilaterally
implemented changes in terms and conditions of em-
ployment of bargaining unit employees that were put into
effect on August 13, 2006.
(c) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain collectively and
in good faith with the Union as the exclusive representa-
tive of its employees in the following appropriate unit:
All full-time and regular part-time employees em-
ployed by the Company within the Twin Cities and
immediate suburbs; excluding all other employees of
the Company, Inside Sales Representatives (ISRs),
Business Leads, and/or Shop Managers as defined in
the Act.
(d) Upon request of the Union, resume collective-
bargaining negotiations with the Union.
(e) Make employees whole for any loss of earnings
and other benefits suffered as a result of the unlawful
actions taken against them in the manner set forth in the
remedy section of the administrative law judge’s deci-
sion, provided that the financial liability of the Party in
Interest, Lighthouse Management Group, Inc., shall be
limited to the assets in the receivership.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD156
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Minneapolis-area locations copies of the notice
marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 18, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 24, 2006.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provide by the Region attest-
ing to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

8 If this Order is enforced by a judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT fail or refuse to bargain collectively with
the International Union of Painters and Allied Trades–
District Council 82 (the Union), as your exclusive collec-
tive-bargaining representative by failing to furnish rele-
vant information requested by the Union in the following
appropriate unit:
All full-time and regular part-time employees em-
ployed by us within the Twin Cities and immediate
suburbs; excluding all other employees of the Com-
pany, Inside Sales Representatives (ISRs), Business
Leads, and/or Shop Managers as defined in the Act.
WE WILL NOT fail or refuse to bargain collectively with
the Union by unilaterally implementing changes in your
terms and conditions of employment in the absence of a
lawful bargaining impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on July 24 and 31,
August 14 and 18, and September 8, 2006, except for the
requested information regarding the merit pay proposal.
WE WILL, upon request of the Union, rescind the uni-
laterally implemented changes in terms and conditions of
employment of bargaining unit employees that were put
into effect on August 13, 2006.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain collectively and in
good faith with the Union as your exclusive representa-
tive.
WE WILL, upon request of the Union, resume collec-
tive-bargaining negotiations with the Union.
WE WILL make you whole for any loss of earnings and
other benefits you suffered as a result of the unlawful
actions taken against you, with interest.
LEIFERMAN ENTERPRISES, LLC D/B/A HARMON
AUTO GLASS
David M. Biggar, Esq., for the General Counsel.
Douglas P. Seaton, Esq. and Jon Olson, Esq., for the Party in
Interest.
DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This case
was tried on January 25 and 26, 2007, in Minneapolis, Minne-
sota. The complaint alleges Respondent violated Section
8(a)(5) of the Act by failing and refusing to provide the Charg-
ing Party Union with information which was relevant and nec-
essary to collective-bargaining negotiations. The complaint
HARMON AUTO GLASS 157
also alleges Respondent violated Section 8(a)(5) of the Act
unilaterally implementing changes in employees’ terms and
conditions of employment in the absence of a lawful impasse.
The Respondent and the Party in Interest, the receiver, Light-
house Management Group, Inc. (Lighthouse) jointly filed an
answer denying the essential allegations in the complaint. The
answer was filed by Attorney Douglas Seaton on November 15,
2006, at which time he represented both Respondent and Light-
house. At the hearing herein, Douglas Seaton stated on the
record that he was appearing as attorney for Lighthouse only,
and not for Respondent. He also gave evidence as described
below. After the conclusion of the hearing, the General Coun-
sel and Lighthouse filed briefs which I have read.
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and places of
business in Minneapolis, Minnesota, where it is engaged in the
retail sale and installation of automotive glass. During a repre-
sentative 1-year period, Respondent derived gross income in
excess of $500,000 and purchased and received at its Minnea-
polis facilities goods valued in excess of $50,000 directly from
points outside the State of Minnesota. Accordingly, I find, as
Respondent and Lighthouse admit, that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Charging Party (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent Harmon Auto Glass is a company with numer-
ous retail locations in the Minneapolis area. It was owned by a
company called The Dwyer Group until April 2004, at which
time Respondent Leiferman Enterprises, LLC purchased the
business and continued to operate it in the same manner as
previously, and using the same employees. It is undisputed that
Respondent recognized the Union and adopted the collective-
bargaining agreement which was then in effect between the
Union and Harmon Auto Glass.1 The term of that agreement
was July 1, 2003, through June 30, 2006. Subsequently, in
2005, Respondent was charged by the Union with failing to
make certain benefit payments to a 401(k) plan called for in the
collective-bargaining agreement, and a complaint was issued by
the NLRB Regional Director. That complaint was settled, and
the settlement agreement is still in existence. It was agreed by

1 While Respondent denied in its answer that it had adopted the col-
lective-bargaining agreement, the evidence at trial showed that it indeed
adopted the collective-bargaining agreement. Counsel for Lighthouse
represented on the record that Respondent had adopted the collective-
bargaining agreement.
the parties at trial that the prior settled charges have no bearing
on the instant matter.
The Union has represented Respondent’s employees in the
following unit for over 20 years:
All full-time and regular part-time employees employed by
the Company within the Twin Cities and immediate suburbs;
excluding all other employees of the Company, Inside Sales
Representatives (ISRs), Business Leads, and/or Shop Manag-
ers as defined in the Act.
The Union has been recognized as the collective-bargaining
representative of the unit employees by Respondent since Re-
spondent purchased the business in April 2004.2
It was admitted that Scott Leiferman is the owner of Re-
spondent and that Jeff Barr was the vice president of Respon-
dent through September 2006. Jeff Barr appeared at the hear-
ing as the designated representative of Lighthouse. Barr did not
testify.
2. Bargaining for a successor contract in 2006
In June 2006, the Union and Respondent met to commence
negotiations for a successor contract. There were four meetings
during June and July 20063―June 16 and 28 and July 18 and
24. A fifth bargaining session had been scheduled for July 31,
but was not held. The Union was represented by Michael Ga-
vanda, business manager and secretary-treasurer, and Russell
Pavlak, business representative.4 Respondent was represented
in bargaining by Attorney Douglas Seaton and Vice President
Jeff Barr.
On June 16, the parties met for about 2 hours. The Union
presented its bargaining proposal to Respondent. The parties
discussed the Union’s proposal and the then-outstanding com-
plaint relating to 401(k) plan benefit payments. The major
change proposed by the Union was a return to the previous
defined benefit plan for pension, rather than the 401(k) plan
which the Union had negotiated with the Dwyer Group. The
parties also discussed what Respondent intended to propose,
such as merit pay. Seaton stated that Respondent was having
financial trouble and was “bleeding money.” Seaton stated that
Respondent could make its payroll or pay the owed 401(k)
payments, but was unable to do both. Seaton also stated that
Respondent could not afford to continue the current collective-
bargaining agreement, and that its proposal, when presented at
the second meeting, would be “harsh” because of its financial
condition.
On June 28, the parties again met for about 2 hours. Most of
the session was consumed with going over Respondent’s pro-
posal article by article. Respondent’s proposal contained
changes in the pay system, both a two-tier wage scale, and a
“merit pay” proposal. At the meeting, Gavanda asked for the

2 Attorney Seaton stated at the hearing that the Respondent pur-
chased the business in February 2004, but no evidence was introduced
on this point. In any case, whether Respondent purchased Harmon
Auto Glass in February or April 2004 is not material to the findings and
conclusions below.
3 All dates hereafter are in 2006, unless otherwise specified.
4 Pavlak was present for only three of the four bargaining sessions.
He was absent from the July 18 session.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD158
goals, objectives, and standards by which merit pay was to be
awarded. Seaton responded that there were none, and that es-
sentially it was entirely within the discretion of Respondent.
Respondent’s proposal contained a 401(k) plan, but there were
no required contributions. These, too, were entirely within the
discretion of Respondent. Respondent’s proposal for health
insurance required the employees to increase the share of health
insurance they paid from 25 percent of the cost to 50 percent of
the cost. The Union stated that it needed time to evaluate Re-
spondent’s many proposed changes, and would respond at the
next bargaining session, which was scheduled for July 12. The
parties agreed to an extension of the collective-bargaining
agreement through July 13. Seaton stated that time was impor-
tant, and that Respondent needed to complete the negotiations
quickly.
Due to a funeral, the third meeting was rescheduled to July
18, and lasted about 3 hours. The Union presented responses to
Respondent’s proposals. Several agreements were reached as
the parties went through the proposals. The Union indicated
that it was willing to work out a system which would minimize
or eliminate pyramiding of overtime, and indicated a willing-
ness to agree to employees’ paying some increased portion of
health insurance premiums. The “merit pay” or production
based pay was discussed for a considerable period, along with
the proposed lower rate for new hires. Gavanda asked ques-
tions about the goals or objectives which would be applied so
that an employee would know what would qualify him for
merit pay. Gavanda stated that he needed the information in
order to explain the proposal to employees. Seaton responded
that there were no goals or objectives, and the awarding of
merit pay would be discretionary with Respondent. Seaton
testified he was aware that several of Respondent’s proposals
had legal implications, and that the Union had asked its attor-
ney to evaluate those proposals. The Union further stated that
it would drop its proposal to return to the defined benefit plan
for pensions and health coverage. Seaton again stated that Re-
spondent needed to save a great deal of money in order to con-
tinue in business. The parties agreed to two further bargaining
sessions, one on July 24 and another on July 31. Seaton testi-
fied that he stated to the Union that the parties should be able to
get to their final positions at the July 24 meeting and to be in a
position to respond to a final offer at the July 31 meeting.
The July 24 meeting was scheduled to begin at nine in the
morning. Respondent began the meeting by presenting a modi-
fied written package to the Union. Seaton stated that he would
present it and talk about it, and hear the Union’s response, that
he wanted to make a final offer during the course of the day,
and that he hoped the parties could get an agreement that day.
The parties spent about an hour going over Respondent’s modi-
fied proposal. The Union requested a caucus to consider the
proposal. After a caucus of about 3 hours, the parties recon-
vened, and the Union responded. The Union reiterated that it
was dropping its demand for a return to the defined benefit
pension plan, but countered that Respondent’s plan guaranteed
nothing to employees. The Union proposed continuing the
401(k) contribution as in the expired contract. The parties
agreed on two aspects of the modified proposal, articles 4.08
and 14.09. Seaton stated that Respondent was “hemorrhaging
money,” and that it couldn’t continue to move in the direction it
was going and stay in business. Seaton admitted that although
he did not mention bankruptcy, he said “in every other way . . .
the company is in trouble.” He admitted stating that the Com-
pany would not be “viable,” would not be “profitable,” and
would not be able to “continue the business” unless Respondent
secured all the changes to the collective-bargaining agreement
that it was seeking.5 Gavanda then requested financial informa-
tion to justify the dramatic cuts Respondent was proposing, for
example that there would be no required contributions to the
401(k) plan, and those employees would have to pay for one-
half of the cost of health insurance. Pavlak testified that he
requested the comparable cost that nonunit employees paid for
health insurance. The Union again requested information about
the operation of the proposed merit pay proposal, and Seaton
said there was no information about its operation. Seaton told
the Union that this was Respondent’s final proposal. The Un-
ion did not agree to it, but told Seaton that it would be submit-
ted to the bargaining unit employees for their approval or dis-
approval, but that the Union would not recommend it, because
of the lack of information about Respondent’s economic condi-
tion, and about the merit pay proposal. Seaton stated that there
was no need for any further meetings, and cancelled the July 31
meeting.
On July 26, Respondent sent the Union another copy of its
final contract offer from the July 24 session. On July 31, the
Union responded by letter, reiterating its request for financial
information to justify the drastic economic concessions de-
manded by Respondent.6 By letter of August 4, Respondent
refused to provide any financial information.
The bargaining unit employees rejected the Respondent’s of-
fer on August 9. Respondent apparently was informed of this
fact, and on August 10, wrote a letter to the Union stating that
the parties were at impasse and the Respondent would imple-
ment the economic portions of its final offer on August 13. By
letter dated August 14, the Union stated that it did not consider
the parties to be at impasse. The letter also informed Respon-
dent that the Union was amenable to considering certain of
Respondent’s proposals. It is undisputed that Respondent im-
plemented its July 24 economic proposals on August 13.
3. Respondent placed in receivership
On September 20, pursuant to a complaint filed in State court
by Respondent’s creditors, Respondent was placed into receiv-
ership by a State court judge in Hennepin County, Minnesota.
The Party in Interest (Lighthouse) was named the receiver. The
receiver was ordered to operate the business of Respondent,
and to take control of its financial and other records, and its

5 Much of the testimony of the bargaining witnesses for both Re-
spondent and the Union was substantially consistent. Where there are
material differences, however, I specifically find that Gavanda and
Pavlak are more worthy of credit that Seaton. Seaton’s testimony was
often couched in conclusory or argumentative language, as opposed to
straightforward factual language. His demeanor was not impressive,
and he contradicted himself on several occasions.
6 The same letter requested Respondent’s 401(k) plan, a copy of
which was later provided to the Union. The request for information
about the 401(k) plan is not an issue here.
HARMON AUTO GLASS 159
assets. Lighthouse was further ordered to sell the businesses, if
possible, and to continue to take normal actions necessary to
operation of the business. The normal powers necessary to
operate the business were conferred on Lighthouse, such as the
power to hire employees, to pay bills, to order supplies, and to
make contracts.
Seaton represented both Lighthouse and Respondent for a
period of several months after September 20, and in fact filed
an answer to the complaint herein in that capacity. At the time
of the hearing, however, he stated that he represented only
Lighthouse. Jeff Barr, the individual designated as the repre-
sentative at trial of Lighthouse, had been the vice president of
Respondent during the time of the 2006 bargaining. At the
time of the hearing, no other entity had purchased Respondent.
Since that time, the only two meetings which took place be-
tween the Union and Respondent appear from the evidence to
have been updates of the receiver’s efforts to find a new buyer
for Respondent, and efforts to settle the instant case. It is clear
from the record evidence, and I find, that no further bargaining
took place between the parties.
B. Discussion and Analysis
1. Respondent’s admitted failures to provide information
It is undisputed that the Union requested information con-
cerning Respondent’s health care insurance costs, i.e., the pre-
cise amounts unit employees would be expected to pay under
its bargaining proposal, and it is equally undisputed that Re-
spondent failed to provide the Union with this information.
There is likewise no dispute that information regarding the cost
unit employees would be required to pay is presumptively rele-
vant. Lighthouse’s witness, Seaton, defended Respondent’s
and his own conduct in failing to provide the Union with this
information by merely characterizing the Union’s request as a
stalling tactic and a “game.” The record reveals no evidence of
any bad faith on the part of the Union in making its information
requests. The Act does not regard information concerning em-
ployees’ compensation in so cavalier a manner; rather, under
settled Board law, an employer’s failure to provide such rele-
vant information violates the duty to bargain and is an unfair
labor practice. See, e.g., B & B Trucking, 345 NLRB 1, 5
(2005); V & S Schuler Engineering, 332 NLRB 1243, 1244
(2000); Beverly Health & Rehabilitation Services, 328 NLRB
959, 963 (1999); JRED Enterprises, Inc., 313 NLRB 1244 fn. 1
and 2 (1994).
The Union’s second major request for information concerned
the goals and standards to be used by Respondent in applying
its merit pay proposal. It is undisputed that this request was
made during bargaining, and Respondent admittedly provided
nothing in response to this request. Respondent stated to the
Union during bargaining and reiterated at the hearing, pre-
sumably as its defense, that there were no goals or standards,
and that there existed no information Respondent was able to
provide. Both in negotiations and at the hearing, Respondent
characterized its merit pay proposal as a way to encourage pro-
ductivity and provide an incentive to employees, yet it claimed
to have no threshold of productivity which would trigger nei-
ther additional pay, nor the amount of such pay if it were
awarded to an employee. Absent such standards or thresholds,
therefore, the merit pay proposal as written was totally within
the control of Respondent, who could decide on a whim
whether merit pay was payable or not, how much, when, and on
what basis. Respondent could change the standards at will, or
could decide never to pay any merit pay. In other words, Re-
spondent’s proposal was entirely discretionary. The Board has
held that when an employer proposes such a “merit pay” sys-
tem of compensation, there must be some governing principles
to the system, and the employer must provide the union with
information about the operation of the system. See, e.g., De-
troit Newspaper Agency, 326 NLRB 700, 706 (1998), enf. de-
nied 216 F.3d 109 (D.C. Cir. 2000); McClatchy Newspapers,
321 NLRB 1386, 1391 (1996), enfd. 131 F.3d 1026 (D.C. Cir.
1997), cert. denied 524 U.S. 937 (1998).
Where, as here, an employer is offering its merit pay pro-
posal as an alleged benefit in trade for its admittedly conces-
sionary proposal of no guaranteed contributions to the 401(k)
retirement plan, it is entirely rational for a union to try to find
out what the merit pay plan consists of. No party to negotia-
tions would knowingly trade something for nothing, or some-
thing for an unknown quantity, a “pig-in-a-poke.” If Respon-
dent had goals, standards, or definable objective procedures and
criteria to govern its proposal, Respondent was obligate to pro-
vide these to the Union. Its failure to do so violated its duty to
bargain, and Section 8(a)(5) of the Act. If Respondent had no
goals, standards, or definable objective procedures and criteria
to govern its merit pay proposal, then it was obligated to bar-
gain them with the Union. Respondent refused to do so, prof-
fering the merit pay proposal as a take-it-or leave-it choice. By
so doing, and by declaring impasse when it had failed to bar-
gain appropriately about its merit pay proposal, Respondent
showed bad faith, and violated Section 8(a)(5) of the Act.
The Union’s third request for information concerned finan-
cial data to support Respondent’s claims that its July 24 pro-
posal was all that it could afford to offer. It is undisputed that
the Union requested this information orally at the July 24 bar-
gaining session and reiterated its request in a letter dated July
31. It is likewise undisputed that Respondent refused to pro-
vide any financial information to the Union, citing in its refusal
letter the facts that it was not about to file bankruptcy, and that
it had not “pled poverty.” It is well settled that an employer
who claims that it cannot afford to pay more than is contained
in its final offer is obligated to substantiate that claim by pro-
viding financial information to the union with whom it is bar-
gaining. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). No
particular “magic words” need be stated to trigger this obliga-
tion, and each case must turn on its particular facts. Here, Re-
spondent’s apparent insistence that it did not plead poverty is
utterly contradicted by the totality of its conduct at the bargain-
ing table, such as its statement that Respondent was “hemor-
rhaging” money, and could not survive in business unless its
concessionary proposals were accepted. Seaton’s testimony as
a whole could not be clearer. He specifically testified that he
told the union negotiators in as many ways as he possibly could
that Respondent was in a dire financial condition. I find that
Respondent’s conduct at the bargaining table amounted to a
claim that Respondent could not afford to offer anything more
than what was in its final offer. Respondent was therefore ob-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD160
ligated to provide the Union with the financial justification
which the Union requested. As Respondent did not do so, it
violated its duty to bargain and Section 8(a)(5) of the Act.
AMF Trucking & Warehousing, 342 NLRB 1125, 1126 (2004);
Lakeland Bus Lines, 335 NLRB 322 (2001), enf. denied 347
F.3d 955 (D.C. Cir. 2003); Atlanta Hilton & Tower, 271 NLRB
1600, 1602 (1984).
2. Respondent’s declaration of impasse and implementation
of changed terms and conditions of employment
It is admitted that Respondent put into effect changed terms
and conditions of employment on August 13, which reflect the
economic portions of its final bargaining proposal of July 24.
Board law requires that during contract negotiations, an em-
ployer may not unilaterally implement changes or proposals
unless the union agrees to the implementation, or impasse has
been reached. Here, Respondent implemented its final proposal
which contained two particular terms about which the Union
had requested information, the health care costs and the merit
pay plan, and which Respondent had violated the Act by refus-
ing to provide. In addition, Respondent had also violated the
Act by its refusal to provide information about its financial
condition―information which was relevant to an intelligent
evaluation of its entire concessionary bargaining proposal. In
the face of violations of the Act which constituted direct and
substantial roadblocks to the progress of collective bargaining,
no valid impasse was possible. Respondent impeded the nor-
mal course of negotiations by its refusal to provide these three
vitally important types of information. Where a respondent has
committed unfair labor practices which inhibit bargaining as
Respondent did here, no lawful impasse can be reached. Cir-
cuit-Wise, Inc., 309 NLRB 905, 918 (1992).
It is appropriately Respondent’s burden to demonstrate that
an impasse exists, as Respondent is the party seeking to defend
its unilateral implementation of changed terms and conditions
of employment. The overall conduct of the bargaining herein
further undermines Respondent’s unsupported claim that the
parties had reached an impasse by the end of the day on July
24. Good-faith bargaining is a prerequisite to lawful impasse.
Here, there were only four bargaining sessions before Respon-
dent declared impasse, and three of them lasted only 2 or 3
hours each. Only one was nearly a full day, making a total of
15 or fewer hours of negotiations in a situation where one
party, Respondent, was demanding radical changes. The first
two sessions were used to present first one party’s proposal and
then the other party’s proposal. Thus, there were only two
sessions at which real give-and-take could occur. At the third
session, there was some movement by each side, and some few
agreements made. At the fourth session, Respondent presented
a modified proposal in the morning, went over it, and heard the
Union’s response. Respondent then basically converted its
modified proposal into a “take-it-or-leave it,” “last and final”
proposal, and stated that if the Union did not agree to it, there
was no need for any further bargaining, because that was all the
Respondent could afford. At the fourth session, the Union had
made some movement toward the Respondent’s proposal, and
had asked for the three types of information outlined above.
Notwithstanding the incompleteness of discussion of the sub-
jects about which information was requested, as well as the
incompleteness of discussion of other areas of the proposal,
Respondent insisted that bargaining was at an end. The Union
held a vote among employees on Respondent’s final offer, and
following the rejection of the final offer by the employees,
offered to get back together to continue negotiations. Respon-
dent was not justified in assuming the employees’ rejection was
evidence of an impasse, especially in light of the Union’s letter
offering to resume negotiations, and indicating areas where the
concessions needed by Respondent could be explored further.
The very short amount of time spent by the parties in actual
bargaining, not more than 2 8-hour days in total, along with the
large number of significant changes and concessions under
discussion militate against the likelihood of a true bargaining
impasse. See, e.g., EAD Motors Eastern Air Devices, 346
NLRB 1060, 1062–1064 (2006); Lancaster Nissan, 344 NLRB
225, 228 (2005); Royal Motor Sales, 329 NLRB 760, 761–764
(1999).
Thus, based on its conduct in prematurely terminating bar-
gaining, as well as on the impossibility of a lawful impasse
where, as here, Respondent violated the Act by refusing to
provide information necessary to the progress of bargaining, I
find that Respondent violated Section 8(a)(5) of the Act by
unilaterally implementing changed terms and conditions of
employment of the bargaining unit employees.
3. Obligations of the Party in Interest
The General Counsel named Lighthouse as a Party in Interest
in the complaint herein, but made no specific unfair labor prac-
tice allegations against Lighthouse. Notably, the General
Counsel did not plead and does not contend that Lighthouse is a
successor employer to Respondent. Instead, the General Coun-
sel argues that Lighthouse must act in its capacity as receiver to
take whatever action may be ordered by the Board, citing Sec-
tion 2(1) of the Act and Holiday Inn Coliseum, 300 NLRB 631
(1990).
Respondent argues that by virtue of its status as a receiver, it
is automatically relieved of any obligation to take any actions
to remedy Respondent’s unfair labor practices as a matter of
law. Respondent relies on a Sixth Circuit case which enforced
a Board decision, but only in part. In Peters v. NLRB, 153 F.3d
289 (6th Cir. 1998), the court considered a Board case decided
as Specialty Envelop Co., 313 NLRB 94 (1993), in which the
Board had found that an individual named Peters had acted as a
receiver for an ailing company, and subsequently had formed
another company, Specialty Envelop Company, which had
purchased the ailing company. The Board found that Peters
was a successor employer under NLRB v. Burns Security Ser-
vices, 406 U.S. 272 (1972), and that Specialty Envelop Com-
pany was a successor under Golden State Bottling Co. v. NLRB,
414 U.S. 168 (1973). The Sixth Circuit court of appeals en-
forced the Board’s order as to Peters, but denied enforcement as
to the second successor, Specialty Envelop. The court reasoned
that Specialty Envelop had not had an opportunity to bargain
with the original company about the purchase price, and there-
fore, it would be inequitable to hold it liable to remedy the
original company’s unfair labor practices as a Golden State
successor. Respondent’s contentions are far a field from the
HARMON AUTO GLASS 161
situation in this case. There has been no allegation of succes-
sorship, nor has there been a subsequent sale of the business,
and therefore the Peters case is inapposite.7 Likewise, the court
in Peters made no announcement of a bright line rule, it merely
addressed the particular factual situation it faced, a rather un-
usual factual situation. Even if Peters were to govern the in-
stant situation, Lighthouse’s role in the instant case is analo-
gous to that of Peters, the Burns successor, not to that of Spe-
cialty Envelop.8
To the extent Lighthouse argues that it did not have notice of
the unfair labor practices committed by Respondent, I find that
argument disingenuous to the point of speciousness. It is un-
disputed that Seaton represented Respondent, was the primary
agent of Respondent during bargaining negotiations, and for a
period following the appointment of Lighthouse as receiver,
represented both Respondent and Lighthouse for several
months. It is similarly undisputed that Jeff Barr, vice president
for Respondent, was also present at the bargaining negotiations,
and that he acted as Lighthouse’s representative at the trial
herein. It beggars common sense, and I refuse to find, that the
minds of either of these two individuals became tabula rasa on
September 20. The conduct they had participated in was still
contained in their memories, whether they were agents of Re-
spondent or of Lighthouse. The knowledge of the conduct of
bargaining during their tenure as agents of Respondent is there-
fore attributable to Lighthouse, of whom they are now agents,
and I so find.
A straightforward analysis in the present case must begin
with the issue of Lighthouse’s role as a receiver. The State
court designated Lighthouse as the receiver on September 20,
after the unfair labor practices found herein had occurred. As
summarized above, it was charged to manage Respondent in a
responsible manner, and was empowered to exercise normal
managerial powers in that duty. Lighthouse, as a receiver, is
therefore a kind of agent or manager of Respondent. The Act
includes receivers within the definition of a “person” within the
meaning of the Act at Section 2(1). The Board has had occa-
sion to decide this question in Holiday Inn Coliseum, above.

7 Even if the Peters case were on point, it would be merely persua-
sive, not dispositive, as it was decided in a circuit court of appeals
different from the Eighth Circuit, where the instant case arose. The
issue in Peters has not been addressed by the Supreme Court, and
Board law is to the contrary. I find that it is unpersuasive of Respon-
dent’s contention.
8 It is unnecessary to reach the issue of whether Lighthouse is a suc-
cessor under Board law, and therefore I do not decide the issue. It is
worthy of note, however, that in two recent situations bearing some
similarity to the instant case, the Board has held successors accountable
to remedy unfair labor practices of predecessor employers. Eldorado,
Inc., 335 NLRB 952 (2001); American Signature, Inc., 334 NLRB 880,
882 (2001).
The Board there pointed out that the receiver had been ap-
pointed to manage, control, and protect the hotel, and was not
only a person within the meaning of Section 2(1) of the Act, but
was likewise an agent within the meaning of Section 2(2) of the
Act. The Board stated that “where the State has a temporary
interest in the employing entity . . . we find the situation most
closely analogous to bankruptcy trustees, over whom we do
assert jurisdiction. See, e.g., Karsh’s Bakery, 273 NLRB 1131
(1984).” 300 NLRB at 631 fn. 4.
Therefore, I find that Lighthouse, as receiver for Respondent,
is an agent of Respondent within the meaning of the Act, based
on the powers and duties conferred on it by the State court or-
der, and is therefore obligated to carry out Respondent’s busi-
ness obligations in accordance with the law, including the Act.
I specifically find, and will include this finding in my recom-
mended Order, that Lighthouse is obligated to carry out the
terms of any Order issued by the Board.
CONCLUSIONS OF LAW
1. The Union is the collective-bargaining representative of
the employees in the following appropriate bargaining unit:
All full-time and regular part-time employees employed by
Respondent within the Twin Cities and immediate suburbs;
excluding all other employees of Respondent, Inside Sales
Representatives (ISRs), Business Leads, and/or Shop Manag-
ers as defined in the Act.
2. By failing and refusing to provide relevant information re-
quested by the Union, Respondent has refused to bargain with
the Union and has violated Section 8(a)(5) and (1) of the Act.
3. By unilaterally changing the terms and conditions of em-
ployment in the absence of a lawful bargaining impasse, Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
4. The violations set forth above are unfair labor practices af-
fecting commerce within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be required to cease
and desist therefrom and to take certain affirmative action nec-
essary to effectuate the policies of the Act. I shall recommend
that Respondent be ordered to rescind the changes to terms and
conditions of employment that it made on August 13, 2006, and
that it be ordered to make employees whole for any loss of
earnings and other benefits suffered as a result of the unlawful
actions taken against them in accordance with Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), plus interest as computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]