Guideline Memorandum

OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 11-13

May 17, 2011

TO: All Regional Directors, Officers-in-Charge,

and Resident Officers

FROM: Lafe E. Solomon, Acting General Counsel

SUBJECT: Guideline Memorandum Concerning Parties’ Obligation

to Provide Information Related to Assertions Made

in Collective Bargaining

I.

Introduction

One of the obligations of good-faith collective

bargaining is to provide, upon request, relevant

information necessary for bargaining. In enforcing this

obligation, two related lines of cases have developed: one

addressing an employer’s general claim of an inability to

pay certain wages or benefits; and another addressing more

limited bargaining claims and requests for specific

information related to those claims. These two lines of

cases may sometimes appear to be similar, and the

analytical distinction between them has not always been

recognized. Some cases have been litigated solely with

regard to whether the employer’s statements amount to a

claim of an inability to pay, without any consideration of

whether there were requests for information that were

directly related to specific claims made in bargaining.

This memorandum explains the appropriate analytical

framework to be applied in all such cases.

Moreover, the analysis discussed below implicates the

obligation to provide relevant and necessary information by

both employers and unions. Thus, we have authorized

complaints against both employers and unions where

requested information was made relevant by a party’s

assertions in bargaining. For example, the Division of

Advice recently found that an employer violated Section

8(a)(5) of the Act by refusing to provide information

concerning its ability to compete for business. The

employer stated in bargaining that it was having problems

getting and keeping customers, given the significance of

labor costs in pricing and bidding

de relevant by a party’s

assertions in bargaining. For example, the Division of

Advice recently found that an employer violated Section

8(a)(5) of the Act by refusing to provide information

concerning its ability to compete for business. The

employer stated in bargaining that it was having problems

getting and keeping customers, given the significance of

labor costs in pricing and bidding. Thus, the employer

directly linked its difficulty getting and keeping

customers and outbidding competitors to its bargaining unit

labor costs. Similarly, the Office of Appeals recently

found that a union violated Section 8(b)(3) of the Act by

refusing to provide certain specific provisions in its

2

contracts with other employers that it had used to develop

the bargaining proposals it made to the requesting

employer. The requested contract provisions were relevant

because the union had asserted in bargaining that its

proposal was reasonable because other employers had agreed

to the same provisions.

II.

Generally Applicable Principles

All parties engaged in collective bargaining have a

general statutory obligation to provide, upon request,

information which is relevant for the purpose of contract

negotiations or the administration of a collective-

bargaining agreement.1 The duty to furnish information

“stems from the underlying statutory obligation imposed on

employers and unions to bargain in good faith with respect

to mandatory subjects.”2 Thus, an employer is obligated “to

furnish a union, upon request, information relevant and

necessary to enable [the union] to intelligently carry out

its statutory obligations as the employees’ exclusive

bargaining representative,”3 including information related

to contract negotiations.4

Information about bargaining unit employees’ terms and

conditions of employment is presumptively relevant.5 In

contrast, where the requested information concerns matters

outside the bargaining unit, the union bears the burden of

1 See, e.g., NLRB

obligations as the employees’ exclusive

bargaining representative,”3 including information related

to contract negotiations.4

Information about bargaining unit employees’ terms and

conditions of employment is presumptively relevant.5 In

contrast, where the requested information concerns matters

outside the bargaining unit, the union bears the burden of

1 See, e.g., NLRB v. Acme Industrial Co., 385 U.S. 432, 435-

36 (1967); Shoppers Food Warehouse Corp., 315 NLRB 258, 259

(1994).

2 Cowles Communications, Inc., 172 NLRB 1909, 1909 (1968).

3 Florida Steel Corp., 235 NLRB 941, 942 (1978), enfd. in

relevant part 601 F.2d 125, 129 (4th Cir. 1979).

4 See, e.g., Day Automotive Group, 348 NLRB 1257, 1257, 1262

(2006); Newcor Bay City Division, 345 NLRB 1229, 1237

(2005); Public Service Electric & Gas Co., 323 NLRB 1182,

1186 (1997), enfd. 157 F.3d 222 (3d Cir. 1998).

5 See, e.g., Boston Herald-Traveler Corp., 110 NLRB 2097

(1954), enfd. 223 F.2d 58 (1st Cir. 1955); (“[i]t is enough

. . . that the information relate to the wages or fringe

benefits of the employees. Such information is obviously

related to the bargaining process, and the union is

therefore entitled to ask and receive it”); Timken Roller

Bearing Co., 138 NLRB 15 (1962), enfd. 325 F.2d 746, 750

(6th Cir. 1963), cert. denied 376 U.S. 971 (1964); Pfizer,

Inc., 268 NLRB 916, 918 (1984), enfd. 763 F.2d 887 (7th

Cir. 1985).

information relate to the wages or fringe

benefits of the employees. Such information is obviously

related to the bargaining process, and the union is

therefore entitled to ask and receive it”); Timken Roller

Bearing Co., 138 NLRB 15 (1962), enfd. 325 F.2d 746, 750

(6th Cir. 1963), cert. denied 376 U.S. 971 (1964); Pfizer,

Inc., 268 NLRB 916, 918 (1984), enfd. 763 F.2d 887 (7th

Cir. 1985).

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showing the potential relevance of the requested

information.6 However, “that burden is not exceptionally

heavy.”7 The standard for relevance is a “liberal

discovery-type standard.”8 The requested information “need

not be dispositive of the issue between the parties but

must merely have some bearing on it,”9 and the union need

show only “potential or probable relevance . . . to give

rise to an employer’s obligation to provide information.”10

A union’s statutory duty to provide information is

“commensurate with and parallel to an employer’s obligation

to furnish it to a union pursuant to Section 8(a)(1) and

(5) of the Act.”11

Thus, for example, the Board has held

that: (1) a “most favored nations” clause establishes both

the necessity and relevancy of information regarding

agreements that a union has with other employers;12

6 See, e.g., Shoppers Food Warehouse Corp., 315 NLRB at 258-

259; E.I. Du Pont de Nemours, 264 NLRB 48, 51-52 (1982),

enfd. 744 F.2d 536 (6th Cir. 1984) (without information on

wage rates of non-unit employees working at comparable

employer facilities, union could not intelligently

formulate its wage proposal); Leland Stanford Junior

University, 262 NLRB 136, 145 n.13 (1982), enfd. 715 F.2d

473 (9th Cir. 1983) (union entitled to non-unit job

description to enable the union to bargain over a related

unit classification); Lamar Outdoor Advertising, 257 NLRB

90, 93-94 (1981) (union entitled to compensation data for

other plants because the employer’s proposals reflected its

consideration of its other plants’ wages and benefits)

ersity, 262 NLRB 136, 145 n.13 (1982), enfd. 715 F.2d

473 (9th Cir. 1983) (union entitled to non-unit job

description to enable the union to bargain over a related

unit classification); Lamar Outdoor Advertising, 257 NLRB

90, 93-94 (1981) (union entitled to compensation data for

other plants because the employer’s proposals reflected its

consideration of its other plants’ wages and benefits).

7 Leland Stanford Junior Univ., 262 NLRB at 139; Duquesne

Light Co., 306 NLRB 1042, 1043-1044 (1992).

8 Acme Industrial Co., 385 U.S. at 435-436; Pfizer Inc., 268

NLRB 916, 918 (1984), enfd. 763 F.2d 887 (7th Cir. 1985).

9 Pennsylvania Power & Light Co., 301 NLRB 1104, 1105

(1991).

10 Shoppers Food Warehouse, 315 NLRB at 259. See also,

e.g., Acme Industrial, 385 U.S. at 437 n.6; Press Democrat

Publishing Co., 237 NLRB 1335, 1338 (1978), enfd. 629 F.2d

1320 (9th Cir. 1980).

11 Teamsters Local 500 (Acme Markets), 340 NLRB 251, 252

(2003); Iron Workers Local 207 (Steel Erecting

Contractors), 319 NLRB 87, 90 (1995). See also Fireman &

Oilers Local 288 (Diversy Wyandotte), 302 NLRB 1008, 1009

(1991); Teamsters Local 851 (Northern Air Freight), 283

NLRB 922, 925 (1987).

12 Service Employees Local 144 (Jamaica Hospital), 297 NLRB

1001, 1002-1003 (1990).

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(2) information relating to the operation of an exclusive

hiring hall and its referral of employees is relevant;13 and

(3) an employer’s “legitimate interest” in determining

whether the union continues to exist may make related

information relevant.14

III. NLRB v. Truitt Mfg. Co.

In addition to the presumptive or demonstrated

relevance of information related to unit members’

terms and condition of employment, a party’s

statements and bargaining proposals may make other

information relevant to negotiations. The Board has

noted that, if a party asserts a claim and then

refuses to provide requested information to

substantiate the claim, collective bargaining is

frustrated and rendered ineffective.15

In NLRB v. Truitt Mfg

nce of information related to unit members’

terms and condition of employment, a party’s

statements and bargaining proposals may make other

information relevant to negotiations. The Board has

noted that, if a party asserts a claim and then

refuses to provide requested information to

substantiate the claim, collective bargaining is

frustrated and rendered ineffective.15

In NLRB v. Truitt Mfg. Co.,16 the Supreme Court held

that an employer violated Section 8(a)(5) of the Act by

refusing to provide the union with information requested to

substantiate the employer’s claim that it could not afford

to grant its employees a wage increase sought by the union

and that such an increase would put the employer out of

business. The Court explained that:

Good-faith bargaining necessarily requires that

claims made by either bargainer should be honest

claims. This is true about an asserted inability

to pay an increase in wages. If such an argument

is important enough to present in the give and

take of bargaining, it is important enough to

require some sort of proof of accuracy.17

The Court noted, however, that it does not automatically

follow that a union is entitled to substantiating evidence

13 Graphic Communications Workers Union, Local 13 (Oakland

Press), 233 NLRB 994, 996 (1977), enfd. 598 F.2d 267 (D.C.

Cir. 1979).

14 Service Employees International, Local 715 (Stanford

Hospital), 355 NLRB No. 65, slip op. at 3-4 (August 6,

2010).

15 Leland Stanford Junior Univ., 262 NLRB at 145.

16 351 U.S. 149 (1956).

17 Id., at 152–153.

13 Graphic Communications Workers Union, Local 13 (Oakland

Press), 233 NLRB 994, 996 (1977), enfd. 598 F.2d 267 (D.C.

Cir. 1979).

14 Service Employees International, Local 715 (Stanford

Hospital), 355 NLRB No. 65, slip op. at 3-4 (August 6,

2010).

15 Leland Stanford Junior Univ., 262 NLRB at 145.

16 351 U.S. 149 (1956).

17 Id., at 152–153.

5

in every case in which economic inability is raised as an

argument against increased wages:

Each case must turn on its particular facts. The

inquiry must always be whether or not under the

circumstances of the particular case the

statutory obligation to bargain in good faith has

been met.18

Thus, the Supreme Court in Truitt not only made it

clear that an employer’s assertion in collective bargaining

of an inability to pay certain wages or benefits may

require it to provide the union with information on its

overall financial condition, but also emphasized more

generally that, when either party in collective bargaining

makes factual assertions, it may be obligated to provide

the other party with information related to those specific

assertions.19

IV.

Employer Claims of an Inability to Pay

No “magic words” are required to establish an

obligation to provide general financial information, but

the obligation arises whenever the employer’s statements

and actions convey an inability to pay.20 In determining

whether there has been a claim of inability to pay, the

Board evaluates an employer’s claims “in the context of the

particular circumstances in that case.”21

In Nielsen Lithographing Co.,22 the Board held that the

Truitt requirement that an employer provide general

financial information to verify a claim of an inability to

pay does not apply to an employer’s claim that maintaining

18 Id., at 153-154

m of inability to pay, the

Board evaluates an employer’s claims “in the context of the

particular circumstances in that case.”21

In Nielsen Lithographing Co.,22 the Board held that the

Truitt requirement that an employer provide general

financial information to verify a claim of an inability to

pay does not apply to an employer’s claim that maintaining

18 Id., at 153-154.

19 See, e.g., Leland Stanford Junior Univ., 262 NLRB at 145

n.13 (“the Truitt principle is ‘not limited to cases in

which the Company makes an actual plea of poverty, but

[applies] to other situations in which the company

possesses data ‘relevant’ to its bargaining position,’”

citing NLRB v. Pacific Grinding Company, 572 F. 2d 1343,

1348 (9th Cir. 1978)).

20 Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984).

21 Lakeland Bus Lines, 335 NLRB 322, 324 (2001), enf. denied

347 F.3d 955 (D.C. Cir. 2003).

22 305 NLRB 697 (1991), affd. sub nom. Graphic

Communications Local 50B v. NLRB, 977 F.2d 1169 (7th Cir.

1992).

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existing employee benefits is necessary to avoid placing

the employer at a competitive disadvantage in the future.

Thus, in Nielsen, the employer acknowledged that it was

still making a profit and was not pleading poverty or an

inability to pay. Rather, it maintained that concessions

were necessary in order to be competitive in the future.

The union requested certain information it deemed necessary

to evaluate the claim that the employer was losing its

ability to compete, including the employer’s balance

sheets, bank loan documents, and analyses of working

capital.23 Although the Board initially found that the

employer was required to provide the requested

information,24 after the Seventh Circuit refused enforcement

of that decision,25 the Board held that “an employer’s

obligation to open its books does not arise unless the

employer has predicated its bargaining stance on assertions

about its inability to pay during the term of the

bargaining agreement under negotiation.”26 The Bo

found that the

employer was required to provide the requested

information,24 after the Seventh Circuit refused enforcement

of that decision,25 the Board held that “an employer’s

obligation to open its books does not arise unless the

employer has predicated its bargaining stance on assertions

about its inability to pay during the term of the

bargaining agreement under negotiation.”26 The Board

emphasized that the obligation to provide general financial

does not arise where the employer “is simply saying that it

does not want to pay.”27

As the Supreme Court did in Truitt, the Board in

Nielsen also cautioned that an employer’s claims must be

evaluated in the context of the particular circumstances in

that case. The Board stated:

We do not say that claims of economic hardship or

business losses or the prospect of layoffs can

never amount to a claim of inability to pay.

Depending on the facts and circumstances of a

particular case, the evidence may establish that

the employer is asserting that the economic

problems have led to an inability to pay or will

do so during the life of the contract

negotiated.28

23 Id., 305 NLRB at 698.

24 279 NLRB 877 (1986).

25 854 F.2d 1063 (7th Cir. 1988).

26 305 NLRB at 700.

27 Ibid. See also, e.g., AMF Trucking & Warehousing, 342

NLRB 1125, 1126 (2004) (“‘[i]nability to pay’ means that

the company presently has insufficient assets to pay or

that it would have insufficient assets to pay during the

life of the contract that is being negotiated. Thus,

inability to pay is inextricably linked to nonsurvival in

business”).

28 305 NLRB at 700.

).

26 305 NLRB at 700.

27 Ibid. See also, e.g., AMF Trucking & Warehousing, 342

NLRB 1125, 1126 (2004) (“‘[i]nability to pay’ means that

the company presently has insufficient assets to pay or

that it would have insufficient assets to pay during the

life of the contract that is being negotiated. Thus,

inability to pay is inextricably linked to nonsurvival in

business”).

28 305 NLRB at 700.

7

Since Nielsen, however, there has been no clear

delineation as to what exactly constitutes a statement of

an inability to pay. Indeed, the Board appears to have

often come to differing conclusions on facts that are

difficult to distinguish. For example, in Burruss

Transfer,29 the Board found that the employer did not claim

inability to pay where it said it would “not be able to

survive” if it increased wages or benefits. The following

year, in Shell Co.,30 the Board found that the employer did

claim inability to pay where it characterized its financial

situation as “a matter of survival.” In Lakeland, above,31

the Board found an inability-to-pay claim where the

employer told its employees that acceptance of its offer

would enable it to “retain your jobs and get back in the

black in the short term,” and that the “future of Lakeland

depends on it” while, in AMF Trucking & Warehousing,32 the

Board found no inability-to-pay claim where the employer

said it was “fighting to keep the business alive.” More

recently, in Stella D’oro Biscuit Co.,33 the Board found an

inability-to-pay claim despite the employer’s clear

indications during negotiations that its parent entity

possessed ample funds to pay the Union’s demands, but would

be unwilling to do so without labor-cost concessions.

These seemingly inconsistent results as to what

constitutes an inability-to-pay claim that would require

the providing of general financial information have been

echoed by Circuit Courts. Thus, for example, in Stroehmann

Bakeries v

ions during negotiations that its parent entity

possessed ample funds to pay the Union’s demands, but would

be unwilling to do so without labor-cost concessions.

These seemingly inconsistent results as to what

constitutes an inability-to-pay claim that would require

the providing of general financial information have been

echoed by Circuit Courts. Thus, for example, in Stroehmann

Bakeries v. NLRB,34 the Second Circuit denied enforcement

and found no inability-to-pay claim where the employer

conveyed to the union that it would go out of business but

for its parent company willing to bail it out financially.

In Lakeland Bus Lines v. NLRB,35 the D.C. Circuit denied

enforcement based on evidence that the employer explicitly

stated that it was not asserting an inability to pay, but

was only asserting the existence of short-term business

29 307 NLRB 226, 228 (1992).

30 313 NLRB 133, 133 (1993).

31 335 NLRB at 324-325.

32 342 NLRB at 1126.

33 355 NLRB No. 158, slip op. at 4 (August 27, 2010).

34 95 F.3d 218, 220 (2d Cir. 1996), denying enforcement in

relevant part to 318 NLRB 1069 (1995).

35 347 F.3d 955, 963 (D.C. Cir. 2003), denying enforcement

to 335 NLRB 322.

8

losses. On the other hand, in International Chemical

Workers Union v. NLRB,36 the Ninth Circuit granted review

and remanded the Board’s finding of no inability-to-pay

claim where the employer had said it couldn’t afford to pay

for the Union’s proposals and would “go broke,” and failed

to adequately disavow such statements by subsequent

conduct.

Notwithstanding the above, we recognize that it may be

difficult to fully articulate a clear bright-line test,

given the necessarily fact-intensive nature of the Truitt

analysis. Thus, as noted above, the Court in Truitt itself

stated that each case must turn on its particular facts,37

and the Board has similarly emphasized that the evaluation

of the employer’s claims must be made in the context of the

particular circumstances in the case.38

V

difficult to fully articulate a clear bright-line test,

given the necessarily fact-intensive nature of the Truitt

analysis. Thus, as noted above, the Court in Truitt itself

stated that each case must turn on its particular facts,37

and the Board has similarly emphasized that the evaluation

of the employer’s claims must be made in the context of the

particular circumstances in the case.38

V.

Claims Other than an Inability to Pay

Other than broad requests for general financial

information in response to alleged employer claims of an

inability to pay, however, the Board has articulated a

clear standard for determining parties’ obligation to

provide specific requested information related to more

limited bargaining claims. In Caldwell Manufacturing Co.,39

the employer asserted that concessions were necessary to

make the facility a viable option to locate contemplated

new products and justified its proposals by claiming a need

to be more competitive in the industry. The Board ordered

the employer to provide competitor data, labor costs, and

other information that was relevant to the claims it had

made during bargaining. The Board stated that while the

information was not presumptively relevant, relevancy was

established because it would have assisted the union in

verifying the employer’s claims regarding its proposals and

allowed the union to make counter proposals.40

Significantly, the Board also noted that while the employer

did not claim an inability to pay, the union did not

request general access to the employer’s financial records.

Instead, the union’s request was tailored to allow the

union to evaluate and verify specific assertions made by

36 467 F.3d 742, 749-754 (9th Cir. 2006), granting review to

American Polystyrene Corp., 341 NLRB 508 (2004).

37 351 U.S. at 153.

38 Lakeland, 335 NLRB at 324; Nielsen, 305 NLRB at 700.

39 346 NLRB 1159, 1160 (2006).

40 Id.

s to the employer’s financial records.

Instead, the union’s request was tailored to allow the

union to evaluate and verify specific assertions made by

36 467 F.3d 742, 749-754 (9th Cir. 2006), granting review to

American Polystyrene Corp., 341 NLRB 508 (2004).

37 351 U.S. at 153.

38 Lakeland, 335 NLRB at 324; Nielsen, 305 NLRB at 700.

39 346 NLRB 1159, 1160 (2006).

40 Id.

9

the employer and assist the union in developing its own

proposals.41

The standard articulated in Caldwell is consistent

with earlier cases applying Truitt's general holding that

good-faith bargaining necessarily requires that claims

important enough to make in the give and take of bargaining

are important enough to require proof of accuracy. For

example, in E. I. du Pont & Co.,42 the Board held that the

employer unlawfully refused to furnish the union with

specific financial information it had made relevant by its

representations during bargaining, such as comparative

production cost data for its other plants, even though the

employer had not pled financial hardship.

More recently, the Board reached a similar result in

A-1 Door and Building Solutions.43 In A-1 Door, the

employer justified its bargaining proposals by contending

that it was not competitive with other companies because it

was paying too much in wages and benefits which affected

its ability to get and receive job bids.44 The union

requested specific information regarding job bidding by the

employer, which the employer refused to provide.45 The

Board, citing Caldwell, above, found that the information

was relevant because it would assist the union in

evaluating the employer’s claims, and that the union had

requested specific information to evaluate the accuracy of

the Respondent’s specific claims, rather than general

financial data.46 Accordingly, the Board found that the

union was entitled to the information that would either

support or disprove the employer’s representations

formation

was relevant because it would assist the union in

evaluating the employer’s claims, and that the union had

requested specific information to evaluate the accuracy of

the Respondent’s specific claims, rather than general

financial data.46 Accordingly, the Board found that the

union was entitled to the information that would either

support or disprove the employer’s representations. The

Board in A-1 Door expressly noted that its holding was

based on the employer’s specific claim -- an inability to

compete – and not on any asserted inability to pay.47

41 Ibid.

42 276 NLRB 335, 335 (1985)

43 356 NLRB No. 76 (2011).

44 Id., slip op. at 3.

45 Id., slip op. at 4.

46 Ibid. The Board in A-1 Door also cited E. I. du Pont &

Co., above, as well as several other cases, in support of

its statement that it “has consistently required the

production of similar information, including information

concerning competitors, labor costs, production costs,

restructuring studies, and income statements.” Ibid.

47 Id., slip op. at 4 n.13.

10

VI.

Conclusion

While both the obligation to provide general financial

information after an employer claim of an “inability to

pay” and the obligation to provide more specific

information made relevant by other bargaining claims arise

out of the good-faith bargaining obligation discussed in

Truitt, it is important to distinguish the two doctrines

and keep them analytically distinct. Although an

employer’s claim of an inability to pay uniquely requires

the employer to furnish general financial information,

because that is what is required to substantiate the

employer’s broad claim, the significance of other requested

information directly related to more limited claims must

not be overlooked

important to distinguish the two doctrines

and keep them analytically distinct. Although an

employer’s claim of an inability to pay uniquely requires

the employer to furnish general financial information,

because that is what is required to substantiate the

employer’s broad claim, the significance of other requested

information directly related to more limited claims must

not be overlooked. It must be remembered that any

particular case may present one or the other issue or, in

some cases, both -- care must be taken to make sure the

appropriate analysis is applied in determining a party’s

obligation to provide information in response to any

particular request. Indeed, within a single information

request, both types of claims may be presented and both

must be evaluated.

This problem is illustrated in North Star Steel Co.,48

where the Board found that a union’s request for

information regarding the employer’s competitors was not

relevant because the employer had not made a claim of an

inability to pay, but instead had only claimed a

“competitive disadvantage” or an “inability to compete.”

The Board in North Star, however, restricted its analysis

solely to whether or not the employer had claimed an

inability to pay. It therefore did not even discuss

whether the employer’s specific claims regarding its

competitors made relevant any of the requested information,

despite the fact that the union there requested both

general financial information and a list of the employer’s

competitors.49 Having so limited its inquiry, the Board did

not separately consider the relevance of the list of

competitors.

In contrast, in E. I. du Pont & Co., above, the Board

appropriately considered both of the contentions at issue

e relevant any of the requested information,

despite the fact that the union there requested both

general financial information and a list of the employer’s

competitors.49 Having so limited its inquiry, the Board did

not separately consider the relevance of the list of

competitors.

In contrast, in E. I. du Pont & Co., above, the Board

appropriately considered both of the contentions at issue.

Thus, although the Board did “not find that the [employer]

made a plea of financial hardship in bargaining over its

proposal,” and therefore found no violation as to the

employer’s refusal to provide general financial

information, the Board nonetheless found that the employer

violated Section 8(a)(5) by refusing to provide specific

48 347 NLRB 1364, 1369-1370 (2006).

49 Id., at 1390-1391.

11

information that was made relevant by the employer’s

bargaining proposals, including comparative production cost

data.50 As in Caldwell and A-1 Door, the Board made it

clear that an employer may be required to provide relevant

information in response to specific information requests,

regardless of whether or not it is found to have actually

made an inability–to-pay claim.

Thus, in evaluating information requests related to

claims made during bargaining, Regions should consider both

general claims of an inability to pay and other more

limited claims that could be subject to specific

verification. Regions should examine the particular

information requests at issue and determine whether they

are targeted to the bargaining claims made by the other

party and are specifically tailored to those claims. Any

questions should be directed to the Division of Advice.

/s/

L.S.

cc: NLRBU

Release to the Public

MEMORANDUM GC 11-13

50 276 NLRB at 335, 341.