National Labor Relations Board v. Whitesell Corp., 638 F.3d 883

Whitesell bought Fansteel Washington Manufacturing and adopted its unionized plant’s existing CBA expiring June 12, 2006.
The expiring CBA included dues-checkoff, just-cause discipline, seniority-based layoff/recall, vacation benefits, and modest wage/benefit provisions.
Whitesell declared intent to terminate or modify the CBA and sought to negotiate a new agreement with the Union; FMCS notice procedures were improperly followed.
Negotiations spanned eight sessions with Whitesell proposing broad changes and a firm final-offer deadline; the Union proposed its own terms and sought information from Whitesell.
Whitesell ultimately implemented portions of its final offer after declaring impasse; the NLRB found violations of 8(a)(1) and 8(a)(5) and ordered restoration of the prior agreement pending a new one or impasse, plus other remedies including deductions and notices.
The NLRB sought enforcement; the court previously denied enforcement due to New Process Steel, but later allowed merits consideration by a properly constituted Board.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the NLRB may reconsider and issue a new enforcement decision after the prior denial.	Whitesell argues Board jurisdiction was extinguished by this court’s denial.	NLRB contends a valid decision can be rendered by a properly constituted Board.	No preclusion; merits addressed anew by a valid Board.
Whether substantial evidence supports the Board’s finding Whitesell failed to bargain to a valid impasse.	Whitesell argues impasse existed due to urgency and negotiations.	NLRB found no impasse given ongoing proposals and partial agreements.	Substantial evidence supports that Whitesell failed to bargain in good faith to impasse.
Whether the Board correctly held Whitesell violated 8(d)(3) by improper FMCS notice and the remedy of extending dues-checkoff to 30 days after notice is proper.	Whitesell mailed timely notice; alternative remedy timing argued.	Whitesell bore burden to show FMCS received notice; Petroleum Maintenance supports remedy.	Notice deficiency exists and the dues-checkoff extension remedy is proper.
Whether Whitesell violated 8(a)(1) and (a)(5) by failing to provide information about the vacation plan as requested by the Union.	Union needed information to assess impact of the vacation plan.	Whitesell provided a seniority list; Union could calculate impact.	Substantial evidence supports violation for failure to provide requested information.

NLRB v. Katz, 369 U.S. 736 (1962) (unilateral changes without impasse breach 8(a)(1) and (a)(5))
TruServ Corp. v. NLRB, 254 F.3d 1105 (D.C. Cir. 2001) (impasse factors; no fixed impasse definition; bargaining history and urgency matter)
Acme Indus. Co., 385 U.S. 432 (1967) (duty to provide information during bargaining; broad information-relevancy)