United States v. Ruth Kane

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2934
__________
National Labor Relations Board, *
*
Petitioner, *
*
v. * On Application for
* Enforcement of an Order of the
Whitesell Corporation, * National Labor Relations Board.
*
Respondent. *
*
___________
Submitted: March 15, 2011
Filed: April 22, 2011
___________
Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
The National Labor Relations Board (“NLRB” or “the Board”) petitions for
enforcement of its order finding that Whitesell Corporation (“Whitesell”) violated
various provisions of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-
69, while negotiating a new collective-bargaining agreement (“CBA”) with the Glass,
Molders, Pottery, Plastics, and Allied Workers International Union, AFL-CIO
(“Union”). Whitesell opposes enforcement on the ground that the NLRB lacked
jurisdiction to enter a “new” decision following this court’s denial of the NLRB’s
prior application for enforcement. In the alternative, Whitesell challenges, for lack

-- 1 of 19 --

of substantial evidence, the NLRB’s determinations that Whitesell failed to (1)
bargain in good faith to impasse; (2) give the required timely notice to the Federal
Mediation and Conciliation Service (“FMCS”); and (3) bargain in good faith by
failing to provide information requested by the Union while negotiating the new
CBA.
I.
In January 2005, Whitesell purchased Fansteel Washington Manufacturing,
Inc., a wire manufacturer in Washington, Iowa. Pursuant to the purchase, Whitesell
recognized the Union that had represented the plant’s production and maintenance
employees for more than 40 years and adopted the existing CBA, which was set to
expire on June 12, 2006. The employees at Whitesell’s other facilities do not have
union representation. The expiring CBA contained a dues-checkoff provision
(whereby the employer withholds union dues from the employee’s wages and pays
them to the union), imposed a “just cause” limitation on employee discipline, based
layoff and recall on seniority, and set vacation entitlements on years of service. The
CBA also included a yearly wage increase of $0.25 per hour, a defined contribution
pension plan, medical coverage, group life insurance, and a voluntary supplemental
accident fund. In addition, the CBA defined the workweek as Monday to Friday, with
overtime pay for Saturday and Sunday, and limited the probationary period for new
employees to 60 days.
On March 2, 2006, Whitesell’s human resources manager, Cris Libera, sent the
Union a letter, declaring Whitesell’s “intent to terminate” the CBA upon its expiration
on June 12, 2006. Attached to this letter was a copy of the F-7 form that a party
seeking to modify or terminate a CBA must file with the FMCS within 30 days of
notifying the other party of the dispute. See 29 U.S.C. § 158(d)(3). However, the
FMCS never contacted the parties, a fact that both sides noted was odd during the
subsequent negotiations. When Union negotiator Dale Jeter contacted the FMCS to
-2-

-- 2 of 19 --

request a mediator on July 10, almost a month after Whitesell declared impasse and
ended the negotiations over the new CBA, the FMCS replied that it had no
knowledge of the dispute. Although Whitesell claims it mailed the F-7 form on
March 2, the same day it sent the letter to the Union, the FMCS did not receive an F-7
form from Whitesell until August 11.
On May 1, 2006, Whitesell negotiator Robert Janowitz provided Jeter with the
company’s initial proposal for a new CBA. Janowitz also informed Jeter that
Whitesell would not negotiate beyond the existing CBA’s expiration on June 12,
2006. Whitesell’s stated intention was “to negotiate a new agreement from start to
finish” and “to equalize labor costs with that of other [non-union] locations and
facilities.” Accordingly, Whitesell proposed a number of significant changes,
including: elimination of the dues-checkoff provision; elimination of the provision
prohibiting the company from discriminating against union members when making
employment decisions; replacement of the “just cause” provision with a requirement
that the Union demonstrate that Whitesell acted arbitrarily; elimination of Union
representation at disciplinary meetings other than those regarding termination or
suspension; imposition of Whitesell’s unilateral right to change any policy or
procedure affecting overtime pay, holidays, vacations, and sick pay, in accordance
with the company’s practice at its other facilities; extension of the probationary
period for new employees to 90 days; and consideration of factors in addition to
seniority for layoffs and recalls.
Beginning on May 26, the parties held eight bargaining sessions. The first and
last sessions did not involve substantive bargaining. The Union presented its initial
proposals to Whitesell on May 26, which included a yearly wage increase of $1 per
hour, two additional holidays, and increases in the company’s defined pension
contributions, sickness, and accident benefits. At the first session, Janowitz reiterated
Whitsell’s intention not to negotiate beyond the expiration of the existing CBA on
June 12. At the second meeting on June 6, Whitesell provided Jeter with the specifics
-3-

-- 3 of 19 --

of the company-wide policies that it proposed to implement. These included the
replacement of the Union-defined contribution pension plan with the company’s
401(k) plan, a four- or five-fold increase in the insurance premiums for employees1
with less than ten years of service, an increase in the number of years of service
required for certain vacation benefits, and a decrease in the number of paid holidays
from ten to eight days. Jeter requested more information about the proposed vacation
policy, which he estimated would cause approximately one-third of his bargaining
unit to lose vacation benefits. Whitesell disagreed with Jeter’s estimate and rejected
the Union’s proposal to grandfather in the employees who would lose accrued
vacation benefits under the new plan. Whitesell’s proposal also eliminated overtime
pay for weekend work.
At the third meeting on June 7, Whitesell proposed for the first time replacing
annual wage increases with a merit-based system based on annual performance
reviews. At the fourth meeting on June 8, Whitesell provided Jeter with cost
estimates for employees participating in its various benefit programs and asked the
Union to propose a final offer. At the fifth meeting on June 9, Whitesell offered a
modified wage proposal, whereby it would increase wages by $0.25 per hour for the
first year of the CBA and increase the shift differentials for those working second and
third shifts. Whitesell also conceded that the Union could represent employees
during performance evaluations. Although the parties agreed on several of
Whitesell’s proposals, the Union requested that the existing CBA be extended until
July 16 to provide the Union with time to understand some of Whitesell’s more
substantial changes. In particular, Jeter requested information regarding the impact
of the company’s proposed vacation plan. The company refused to delay the
expiration date of the existing CBA. At the sixth meeting on June 10, the Union
Under the existing pension, the company contributed $0.84 per regular hour.1
Under the proposed 401(k), Whitesell would provide a 25% match on employee
contributions up to 8% of annual compensation and the employee would not become
fully entitled to the employer’s contributions until the sixth year of employment.
-4-

-- 4 of 19 --

lowered some of its wage demands and indicated that it would be willing to accept
a modified merit-pay system. However, the Union reiterated its objection to some of
Whitesell’s proposals. With regard to the company’s proposal to replace the “just
cause” standard for employee discipline with a prohibition on “arbitrary action” by
the company, Jeter told Whitesell’s negotiator that the Union would never accept such
a standard and that this was the Union’s “final position.”
The last substantive bargaining between the parties took place at the seventh
meeting on June 11. At this meeting, the parties agreed on a number of important
issues. In exchange for Whitesell’s acceptance of the Union’s dues-checkoff
proposal, the Union accepted Whitesell’s proposals on holiday, vacation, and funeral
leave. Whitesell also made a counterproposal on seniority. On June 12, the
expiration date of the existing CBA, Whitesell presented its final offer after the Union
agreed to adopt the company’s proposed health insurance plan. Jeter was dissatisfied
with the offer and refused to present it to Union membership for a vote. Later that
evening, Jeter requested further negotiations. Whitesell refused, declaring that the
negotiations were at an impasse. At this time, the parties had reached tentative
agreements on approximately 30 issues.
Whitesell then implemented selected portions of its final offer. However,
despite Whitesell’s inclusion of the Union’s dues-checkoff provision in its final offer,
Whitesell stopped collecting Union dues after June 12. Whitesell also canceled a
voluntary accident program and refunded the money to employees who had
contributed, even though cancelling the program had not been one of the terms
presented in the company’s final offer. In addition, Whitesell prohibited Union
members from using their break and unpaid time to post notices about Union
meetings on the company’s bulletin boards.
The Union subsequently filed a complaint. After an administrative law judge
(“ALJ”) determined that the company had committed several violations of the NLRA,
-5-

-- 5 of 19 --

Whitesell appealed these findings to the NLRB. The NLRB, at that time consisting
of only two members, adopted a number of the ALJ’s findings. First, the NLRB
found that Whitesell had violated section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1),
by prohibiting Union members from posting notices about Union meetings on
company bulletin boards during their break and unpaid time. Second, the NLRB
found that Whitesell violated section 8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(5), by
terminating the existing CBA and implementing portions of its final offer without
providing notice to the FMCS as required by section 8(d)(3) of the NLRA, 29 U.S.C.
§ 158(d)(3). Third, the NLRB found that Whitesell violated section 8(a)(5) by failing
to provide relevant information requested by the Union concerning Whitesell’s
administration of the merit-pay proposal at the company’s other facilities and by
failing to provide information concerning the impact of Whitesell’s vacation
proposal. Fourth, the NLRB determined that Whitesell had violated sections 8(a)(1)2
and (a)(5) by unilaterally implementing certain provisions of its final offer without
first bargaining to a valid impasse.
Based upon these findings, the NLRB ordered Whitesell to cease and desist
from its termination of the previous CBA and to restore the previous CBA until the
parties sign a new agreement or, in good faith, reach a valid impasse. The NLRB
petitioned this Court for enforcement of the order. After briefing and presentation of
oral argument but before the filing of an opinion, the Supreme Court held in New
Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) that two members of the NLRB
may not exercise delegated authority when the total Board membership falls below
three because “the delegation clause [in section 3(b) of the NLRA, 29 U.S.C.
§ 153(b)] requires that a delegee group maintain a membership of three in order to
exercise the delegated authority of the Board.” Id. at 2644. In light of the New
The NLRB also affirmed the ALJ’s finding that Whitesell had violated section2
8(a)(5) by failing to provide information requested by the Union on August 10
concerning Whitesell’s relocation of some bargaining unit employees to other
facilities.
-6-

-- 6 of 19 --

Process decision, this Court denied the NLRB’s application for enforcement. NLRB
v. Whitesell Corp., 385 F. App’x 613 (8th Cir. 2010) (unpublished per curiam). We
subsequently denied the NLRB’s motion for remand or clarification, and we also
denied Whitesell’s petition for a writ of mandamus to prevent the NLRB from
reconsidering its decision in light of our denial of enforcement. With a three-member
delegee group, the NLRB again considered the case and adopted the ALJ’s
conclusions for the reasons explained in the prior decision, which it incorporated by
reference.
The NLRB now petitions this court for enforcement of its order. Whitesell
opposes the petition, arguing: (1) the NLRB lacks jurisdiction to issue a new decision
and order following this Court’s denial of its previous application for enforcement;
(2) substantial evidence does not support the NLRB’s findings that Whitesell failed
to bargain in good faith; (3) contrary to the NLRB’s finding, Whitesell provided
proper notice to the FMCS and therefore the NLRB improperly ordered Whitesell to
reimburse the Union’s dues; and (4) substantial evidence does not support the
NLRB’s finding that Whitesell improperly failed to provide further information
concerning its vacation proposal.3
Whitesell does not oppose the NLRB’s order with respect to the NLRB’s3
determination that: (1) Whitesell violated the NLRA by prohibiting Union members
from posting notices about Union meetings on company bulletin boards during their
break and unpaid time; (2) Whitesell failed to bargain in good faith by failing to
provide information concerning Whitesell’s administration of the merit-pay proposal
at the company’s other facilities; and (3) Whitesell failed to provide information
concerning Whitesell’s relocation of some bargaining unit employees to other
facilities.
-7-

-- 7 of 19 --

II.
As an initial question, we consider whether our prior opinion denying the
NLRB’s application for enforcement precludes the NLRB’s from reconsidering this
action. See 29 U.S.C. § 160(e). We hold that it does not.
Although many courts around the nation vacated the Board’s decisions and
remanded for further consideration in light of the New Process decision, we chose to
deny the respective applications for enforcement in this case and in a companion case.
See Whitesell Corp., 385 F. App’x at 614; NLRB v. Am. Directional Boring, Inc.,
383 F. App’x 594, 595 (8th Cir. 2010) (unpublished per curiam). We were not alone
in that action; both the First and Second Circuits also denied enforcement of
applications without reference to remand. See NLRB v. Metro Mayaguez, Inc., 617
F.3d 13, 14 (1st Cir. 2010) (per curiam); NLRB v. Domsey Trading Corp., 383 F.
App’x 46, 47 (2d Cir. 2010) (summary order); NLRB v. Talmadge Park, 608 F.3d 913
(2d Cir. 2010) (per curiam). Although the Talmadge Park court was amenable to an
NLRB motion to clarify that the matter could be reconsidered by the Board, the
Domsey Trading court declined the invitation to clarify its denial decision. The
Domsey Trading court anticipated further proceedings before the NLRB and that a
new petition for enforcement could be filed. Indeed, the case was reconsidered by the
Board, and after the Board followed the same procedure as here by incorporating the
prior decision, the Second Circuit addressed the merits of the Board’s decision. See
NLRB v. Domsey Trading Corp., Nos. 10-3356-ag, 08-5165-ag, 08-4845-ag, 2011
WL 563688 (2d Cir. Feb. 18, 2011).
In the prior action, the only question presented was whether to enforce the
NLRB’s order. Relying on the New Process decision, we denied the application for
enforcement because the prior NLRB decision, reached while there were only two
members of the Board, was invalid. On that issue, our decision is final. See 29
U.S.C. § 160(e).
-8-

-- 8 of 19 --

We have yet to determine whether Whitesell violated the NLRA. Our prior
denial does not preclude the Board, now properly constituted, from considering this
matter anew and issuing its first valid decision. As the Second Circuit acknowledged
in Domsey Trading, we expected that the Board would visit the merits of this case
again. Had we expected otherwise, we would have likely granted Whitesell’s petition
for mandamus. The Board properly read our denial of the application for enforcement
as based solely on the New Process decision. We now address the merits of the
Board’s decision for the first time.
III.
First, we address the issue of whether substantial evidence supports the
NLRB’s findings that Whitesell failed to negotiate to a valid impasse. Section 8(a)(5)
of the NLRA makes it an unfair labor practice for an employer “to refuse to bargain
collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5).
“Mandatory areas of collective bargaining include ‘wages, hours, and other terms and
conditions of employment.’” TruServ Corp. v. NLRB, 254 F.3d 1105, 1113 (D.C.
Cir. 2001) (quoting 29 U.S.C. § 158(d)). The duty to bargain in good faith under
section 8(a)(5) includes both the duty to bargain to impasse and the “affirmative
obligation to furnish the recognized employee representative with information it
needs.” NLRB v. St. Clair Die Casting, L.L.C., 423 F.3d 843, 847 (8th Cir. 2005)
(citing NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967)).
We review the NLRB’s factual findings under the deferential “substantial
evidence” standard of review. See 29 U.S.C. § 160(e); Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477-78 (1951). “We will enforce the NLRB’s order as long as
the Board has correctly applied the law and its factual findings are supported by
substantial evidence on the record as a whole.” Cintas Corp. v. NLRB, 589 F.3d 905,
912 (8th Cir. 2009) (citing NLRB v. Rockline Indus., Inc., 412 F.3d 962, 966 (8th
Cir. 2005)). “To meet the requirement of ‘substantial evidence,’ the Board must
-9-

-- 9 of 19 --

produce more than a mere scintilla of evidence; it must present on the record such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion, taking into consideration the record in its entirety including the body of
evidence opposed to the Board’s view.” Pac. Micronesia Corp. v. NLRB, 219 F.3d
661, 665 (D.C. Cir. 2000) (citations and quotations omitted). Courts have long
recognized that “in the whole complex of industrial relations few issues are less
suited to appellate judicial appraisal than evaluation of bargaining processes or better
suited to the expert experience of a board which deals constantly with such
problems.” Dallas Gen. Drivers, Warehousemen & Helpers v. NLRB, 355 F.2d 842,
844-45 (D.C. Cir. 1966).
In NLRB v. Katz, 369 U.S. 736 (1962), the Supreme Court held that an
employer violates sections 8(a)(1) and (a)(5) of the NLRA when the employer makes
a unilateral change in a term or condition of employment without first bargaining to
an impasse on that term. Id. at 743. An impasse occurs when “good faith
negotiations have exhausted the prospects of concluding an agreement, leading both
parties to believe that they are at the end of their rope.” TruServ, 254 F.3d at 1114
(quotations and citation omitted). “Whether the parties have reached this point is a
case-specific inquiry; there is no fixed definition of an impasse or deadlock which can
be applied mechanically to all factual situations.” Id. (quotation omitted). “Among
the factors that the [NLRB] considers in evaluating the existence of an impasse are
‘the bargaining history, the good faith of the parties in negotiation, the length of the
negotiations, the importance of the issue or issues as to which there is disagreement,
[and] the contemporaneous understanding of the parties as to the state of
negotiations.” Id. (quoting Taft Broad. Co., 163 N.L.R.B. 475, 478 (1967)).
The NLRB’s finding that Whitesell did not negotiate to a valid impasse is
supported by substantial evidence. The NLRB based its decision, in particular, on the
fact that “although [Whitesell] sought substantial changes from the parties’ existing
agreement, it imposed an arbitrary deadline on the negotiations by stating that it
-10-

-- 10 of 19 --

intended to present its final offer by a specific date and engaged in only a limited
number of bargaining sessions before declaring impasse[,] . . . [and Whitesell]
declared impasse even though the parties exchanged proposals and reached
agreements the day before and the day of the impasse declaration.” Whitesell Corp.,
352 N.L.R.B. 1196, 1197 (2008).
The record clearly supports the NLRB’s findings. Whitesell’s negotiator,
Janowitz, informed the Union of Whitesell’s intention not to negotiate beyond the
expiration of the existing CBA when he sent the company’s initial proposals to the
Union, and he reiterated this intention at the first bargaining session. Whitesell
acknowledges that it desired to implement substantial changes to the existing CBA
and that it wanted “to negotiate a new agreement from start to finish.” While there
were eight bargaining sessions, the parties spent much of the time caucusing with
their respective sides, and two of these sessions did not involve any substantive
bargaining. Whitesell first presented its proposal to replace the Union’s system of
annual wage increases with a merit-based system at the third meeting. See Newcor
Bay City Div. of Newcor, Inc., 345 N.L.R.B. 1229, 1239 (2005) (finding that a party
failed to bargain in good faith when that party sought extensive changes to an existing
agreement, but imposed “an artificial, relatively short, deadline for concluding a new
agreement and then declared impasse when that deadline could not be met”); see also
Ead Motors E. Air Devices, Inc., 346 N.L.R.B. 1060, 1063-64 (2006).
Moreover, despite Whitesell’s claims of impasse, the parties came to agreement
on 30 issues and were continuing to come to agreement on important issues up until
the final meeting on June 12. For instance, on June 10, the Union compromised on
some of its wage demands, decreasing its proposed wage increases for the second and
third years of the contract and indicating its willingness to accept a modified version
-11-

-- 11 of 19 --

of Whitesell’s proposed merit-pay system. At the next-to-last bargaining session on4
June 11, Whitesell agreed to the Union’s dues-checkoff proposal, and the Union
accepted the company’s proposals on holiday, vacation, and funeral leave. The
parties also came to an agreement on the safety equipment, strike and lockout, and
bereavement pay provisions. On the final day, the Union accepted Whitesell’s group
health insurance plan.
Whitesell claims that the parties were deadlocked on a number of important
issues on the final day, in particular the standard for disciplinary action, retirement
plan, wage increases, the company’s insurance plan, vacation, seniority, overtime, and
the leave of absence and sick leave provisions. However, the disagreements over the
standard for disciplinary action and overtime are the only issues over which the
parties were clearly deadlocked. Concerning the retirement plan, Jeter testified that5
he did not understand the parties to be “at the end of their rope” because they had not
yet fully discussed the differences between the Union’s existing defined contribution
pension and Whitesell’s 401(k), or how the company’s plan would affect the benefits
accrued under the existing plan. Nothing in the record contradicts Jeter’s belief that
the parties were not at an impasse over the retirement plan. Whitesell’s claim that the
parties were deadlocked over wage increases is belied by the fact, already discussed
above, that the Union reduced its proposed wage increases for the second and third
year of the CBA and agreed to accept a modified version of the company’s proposed
merit-pay system two days before Whitesell declared impasse. Similarly, although6
The Union had initially requested $1 per hour wage increases for the second4
and third years of the CBA but reduced this to $0.50 per hour.
Union representative Jeter stated at his deposition that the Union would never5
have accepted Whitesell’s proposed “arbitrary action” standard for employee
discipline and that he understood the parties to be deadlocked with regard to the
overtime issue by the time Whitesell declared impasse.
The fact that the parties were not deadlocked over the wage provision is also6
supported by the NLRB’s finding, which Whitesell does not contest, that the
-12-

-- 12 of 19 --

the parties had not reached an agreement on the time frame within which to introduce
the increases in employee insurance premiums, at their final meeting the parties came
to the more fundamental agreement that the Union would accept Whitesell’s group
health insurance proposal. Moreover, Whitesell compromised on its proposal to use
performance evaluations in addition to seniority to determine layoffs and recall, a fact
that undermines Whitesell’s contention that the parties were deadlocked concerning
seniority. Finally, Whitesell concedes that the provision concerning leaves of7
absence and sick leave was relatively unimportant to the parties, thereby diminishing
the relevance of any disagreement over this provision to the question of whether the
entire bargaining process had broken down. See TruServ, 254 F.3d at 1114 (noting
that “the importance of the issue or issues to which there is disagreement” is a factor
used in determining whether an impasse exists (quotation omitted)).
Further, the cases cited by Whitesell do not support its claims of impasse. In
TruServ, the court reversed the NLRB’s finding that the parties had not bargained to
a valid impasse. 254 F.3d at 1115-17. However, unlike the company in TruServ,
Whitesell has made no demonstration of economic exigencies that justified the haste
with which it wanted to conclude the bargaining process. See 254 F.3d at 1115; see
also Pub. Serv. Co. of Okla. v. NLRB, 318 F.3d 1173, 1181(10th Cir. 2003) (noting
that demonstration of economic exigency justifies prompt implementation of a
company’s proposals); RBE Elecs. of S.D., Inc., 320 N.L.R.B. 80, 81-82 (1995)
(discussing economic-exigency exception to duty to bargain to impasse). Moreover,
the parties in TruServ had an extensive bargaining history with one another, whereas
company violated section 8(a)(5) by not providing information concerning the
implementation of the merit-pay system at Whitesell’s other facilities which Jeter
requested on July 17, more than a month after Whitesell declared impasse. See
Whitesell Corp., 352 N.L.R.B. at 1197, n.8.
Whitesell made a counterproposal at the June 11 bargaining session offering7
to use performance-based criteria to determine layoffs and recall only as a tie-breaker
between employees of comparable seniority.
-13-

-- 13 of 19 --

the parties here were negotiating for the first time. See 254 F.3d at 1116 (noting
importance of the parties’ bargaining history). Similarly, in AMF Bowling Co. v.
NLRB, 63 F.3d 1293 (4th Cir. 1995), the court held that the parties had reached a
genuine impasse where the union had twice voted on and rejected the company’s final
offer without making any counteroffers that would indicate a willingness to
compromise. Id. at 1300. There is no such indication of obstinacy on the part of the
Union here.
Whitesell’s claim that the parties were at a good-faith impasse is further
undermined by the NLRB’s finding that Whitesell failed to provide information about
the vacation plan as required by section 8(a)(5) of the NLRA. NLRB v. Acme Indus.8
Co., 385 U.S. 432, 435-36 (1967) (recognizing “the general obligation of an employer
to provide information that is needed by the bargaining representative for the proper
performance of its duties”). Although the Union ultimately accepted Whitesell’s
vacation proposal, the parties continued to disagree over whether, and to what extent,
the company’s plan would deprive employees of the vacation benefits they had earned
under the expiring CBA. This disagreement was prolonged by Whitesell’s failure to
provide the information requested by the Union.
Whitesell challenges this finding on the ground that it provided sufficient8
information to the Union. Whitesell’s proposed vacation plan increased the years of
service required for an employee to become entitled to additional vacation leave.
Whitesell had provided the Union with a seniority list that stated each employee’s
date of hire. Based on this seniority list, Jeter estimated that one-third of its members
would lose vacation time under the new plan. When Whitesell’s negotiator responded
that this estimate was incorrect at their second bargaining session on June 6, the
Union requested the information on which Whitesell based its disagreement. The
Union renewed this request on June 9. Whitesell never provided any additional
information and insisted that the seniority list it had already submitted was sufficient.
The fact that Whitesell disagreed with the Union’s estimates provides substantial
evidence for the NLRB’s finding that Whitesell failed to bargain in good faith in
violation of section 8(a)(5) by not accounting for the basis of its disagreement.
-14-

-- 14 of 19 --

Finally, Whitesell also cancelled the voluntary supplemental accident fund
without bargaining for the issue or including such a provision in its final offer. See
United Paperworkers Int’l Union v. Champion Int’l Corp., 81 F.3d 798, 802 (8th Cir.
1996) (“[W]hen the parties have bargained to an impasse, the employer may
unilaterally change terms and conditions of employ, so long as these changes are
consistent with offers that the union has rejected.”); Emhart Indus. v. NLRB, 907
F.2d 372, 376 (2d Cir. 1990) (“It is settled law that where an employer bargains in
good faith to impasse, . . . it may implement unilateral changes in working conditions
so long as the changes are reasonably comprehended within its pre-impasse proposals
to the union.”).
In conclusion, the record provides substantial evidence for the NLRB’s
determination that Whitesell failed to bargain in good faith in violation of sections
8(a)(1) and (a)(5) when it terminated the existing CBA and implemented its proposals
without bargaining to a valid impasse.
IV.
Whitesell also contests the NLRB’s finding that it failed to provide notice to
the FMCS as required by section 8(d)(3) of the NLRA, 29 U.S.C. § 158(d)(3). This
finding resulted in the requirement that Whitesell reimburse the Union for uncollected
dues from July 13, 2006 (the day after the CBA expired) to September 30, 2006 (30
days after Whitesell provided the proper notice to the FMCS).
Relying on Petroleum Maintenance Co., 290 N.L.R.B. 462 (1988), the NLRB
found that the failure to provide the requisite section 8(d)(3) notice constituted a
separate violation of the duty to bargain under section 8(a)(5) and that the remedy for
this violation was to extend the dues-checkoff provision until 30 days after the FMCS
received the proper notice from Whitesell. See Whitesell Corp., 352 N.L.R.B. at
1198 (citing Petroleum Maint., 290 N.L.R.B. at 462-63 (holding that the failure to
-15-

-- 15 of 19 --

provide notice to the FMCS as required by section 8(d)(3) violates sections 8(a)(1)
and (a)(5) and that, in such circumstances, a dues-checkoff provision extends beyond
the CBA until 30 days after the proper notice is ultimately delivered)).
Whitesell objects to this ruling on a number of grounds. First, Whitesell argues
that, under NLRB precedent, it sufficiently demonstrated that it mailed timely notice
to the FMCS. Second, Whitesell alternatively argues that the remedial period for
reimbursing the Union should end 30 days after the Union contacted the FMCS
requesting a federal mediator on July 10, claiming that, at this point, the FMCS was
effectively put on notice of the dispute. Third, Whitesell argues “there is no sound
reason” for Petroleum Maintenance’s remedy of extending the dues-checkoff
provision through 30 days after notice is received because, citing to a number of
cases, a violation of the notice requirement of section 8(d)(3) does not extend the9
terms of a CBA beyond the expiration.
We reject each of these arguments. As to the first and second arguments, the
obligation is on “the party desiring such termination or modification” to “notif[y] the
[FMCS] within thirty days after such notice of the existence of a dispute.” 29 U.S.C.
§ 158(d)(3). Whitesell bears the burden of showing that the FMCS received the
notice that a dispute had arisen between Whitesell and the Union. Merely stating that
See New England Cleaning Servs., Inc. v. SEIU, Local 254, 199 F.3d 537 (1st9
Cir. 1999); Commc’ns Workers v. Sw. Bell Tel. Co., 713 F.2d 1118 (5th Cir. 1983);
Proctor & Gamble Indep. Union v. Proctor & Gamble Mfg. Co., 312 F.2d 181 (2d.
Cir. 1962); Lone Star Producing Co., 85 N.L.R.B. 1137, 1138 n.2 (1949). These
cases are not quite on point for Whitesell, however, because they explicitly note that
they are not dealing with claims that failing to provide notice in violation of section
8(d)(3) also constitutes an unfair labor practice in violation of sections 8(a)(1) and
(a)(5). See, e.g., New England Cleaning, 199 F.3d at 540 (“While a failure to notify
mediation services might have ramifications for an unfair labor practice claim, it does
not serve to extend a contract that could be terminated via notice under section
8(d)(1).”).
-16-

-- 16 of 19 --

the notice was mailed does not show that notice was received by the FMCS. See
Chauffeurs, Salesmen and Helpers, Local 572, 223 N.L.R.B. 1003, 1008 (1976)
(holding that the notice provision of section 8(d)(3) requires “actual notice,” or proof
that the FMCS received the notice). Further, because Whitesell was the party seeking
to modify the CBA, the obligation rested with Whitesell to perfect the notice. Thus,
the Union’s communication with the FMCS on July 10 to request a mediator does not
meet the clear mandate of section 8(d)(3) that Whitesell serve as the notifying party.
Whitesell challenges the NLRB’s reliance on Petroleum Maintenance in
imposing the remedy for the violation of section 8(d)(3). As the NLRB found in
Petroleum Maintenance, dues-checkoff provisions are not terms or conditions of
employment that will continue to be in effect until the parties reach a new agreement
or bargain to a genuine impasse. Therefore, Whitesell is only required to reimburse
uncollected dues for the period ending 30 days after it gives the notice it is statutorily
obligated to provide. See Petroleum Maint., 290 N.L.R.B. at 462-63 & n.4 (ruling
that the termination of a dues-checkoff provision without providing proper notice to
the FMCS constitutes a violation of the duty to bargain collectively under sections
8(a)(1) and (a)(5) that is remedied by reimbursing uncollected dues until 30 days after
such notice is given). If the dues-checkoff provision was a term or condition of
employment, Whitesell would be expected to comply with the provision until it
reached a bargain or impasse, rather than for the finite period ending 30 days
following proper notice. Whitesell, of course, could have avoided this obligation
altogether had it insured that the proper notice was timely given to the FMCS.
V.
Finally, we address the claim that Whitesell failed to bargain in good faith by
not providing information regarding changes in Whitesell’s proposed vacation plan
as requested by the Union during the negotiation of the new CBA in violation of 29
U.S.C. § 158(a)(1) and (a)(5). “There can be no question of the general obligation of
-17-

-- 17 of 19 --

an employer to provide information that is needed by the bargaining representative
for the proper performance of its duties.” Acme Indus. Co., 385 U.S. at 435-36.
“Similarly, the duty to bargain unquestionably extends beyond the period of contract
negotiations and applies to labor-management relations during the term of an
agreement.” Id. at 436; see also WCCO Radio, Inc. v. NLRB, 844 F.2d 511, 514 (8th
Cir. 1988) (“The duty extends to data requested in order properly to administer and
police a collective bargaining agreement as well as to requests advanced to facilitate
the negotiation of such contracts.” (quotation omitted)). Where a party requests such
information, the request should be evaluated under a “more liberal standard” of
relevancy similar to that applicable to the discovery stage of litigation. Acme Indus.
Co., 385 U.S. at 437 n.6.
We agree with the NLRB’s findings that Whitesell violated sections 8(a)(1) and
(a)(5) by not providing the requested information concerning how its vacation
proposal would impact the employees. Prior to the negotiations, Whitesell provided
the Union with a seniority list and indicated the Union would be able to determine,
using the list, how the vacation proposal would impact the employees. When the
Union stated it calculated that one-third of the employees would be adversely
impacted by the vacation proposal, Whitesell responded that the Union’s calculation
was close but not accurate. This response resulted in the Union’s request for a
complete list of employees along with an explanation of how the vacation proposal
would affect each employee.
Whitesell argues we should not enforce this part of the NLRB’s findings
because Whitesell provided the Union with a seniority list and the Union “was as
fully capable as [Whitesell] of determining who would be affected immediately and
in the future by [Whitesell]’s vacation proposal.” This argument is belied by
Whitesell’s response that the Union’s calculation was close but not accurate. The
Union was entitled to the information upon which Whitesell was basing its individual
vacation calculation. Accordingly, we find substantial evidence supports the NLRB’s
-18-

-- 18 of 19 --

finding that Whitesell violated sections 8(a)(1) and (a)(5) when it failed to provide
the requested information.
VI.
Accordingly, we enforce the NLRB’s order as supported by substantial
evidence.
______________________________
-19-

-- 19 of 19 --