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
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

accidentfund. 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

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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 itsent 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 firstsession, 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

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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 employees 1

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. 

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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 negotiatorthat the Union would never acceptsuch

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 ofthe 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 ofthe 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 ofthe NLRA,

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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) ofthe 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 section

2

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.

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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’s 3

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 ofthe 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. 

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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 applicationsfor 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 wasreconsidered 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). 

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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. TheBoard properly read our denial ofthe 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 Whitesellfailed 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

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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 violatessections 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

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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, despiteWhitesell’s claims ofimpasse, 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

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of Whitesell’s proposed merit-pay system. At the next-to-last bargaining session on 4

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 that 5

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, although 6

The Union had initially requested $1 per hour wage increases for the second 4

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 never

5

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 also 6

supported by the NLRB’s finding, which Whitesell does not contest, that the

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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 of 7

absence and sick leave wasrelatively 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 offering 7

to use performance-based criteria to determine layoffs and recall only as a tie-breaker

between employees of comparable seniority. 

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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 thatWhitesellfailed to provide information about

the vacation plan asrequired 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 ofthe 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 sufficient 8

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 thisseniority list, Jeter estimated that one-third of its members

would lose vacation time under the new plan. When Whitesell’s negotiatorresponded

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 wassufficient. 

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. 

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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 asthe 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 thatWhitesellreimburse 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 wasto 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

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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 objectsto thisruling 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 the

9

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 (1st 9

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 ramificationsfor an unfair labor practice claim, it does

not serve to extend a contract that could be terminated via notice under section

8(d)(1).”). 

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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 ofsection 8(d)(3) requires “actual notice,” or proof

that the FMCS received the notice). Further, because Whitesell wasthe 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 duesfor the period ending 30 days after it gives the notice it isstatutorily

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 isremedied 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

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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 ofsuch 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 theNLRB’s findingsthatWhitesell 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

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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. 

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