               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0207n.06

                                         No. 12-1455                                 FILED
                                                                                  Feb 28, 2013
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


INTERNATIONAL UNION, UNITED                    )
AUTOMOBILE, AEROSPACE AND                      )
AGRICULTURAL IMPLEMENT                         )
WORKERS OF AMERICA, UAW; UAW,                  )
LOCAL 1832,                                    )
                                               )    ON PETITION FOR REVIEW OF AN
       Petitioners,                            )    ORDER OF THE NATIONAL LABOR
                                               )    RELATIONS BOARD
v.                                             )
                                               )
NATIONAL LABOR RELATIONS BOARD,                )
                                               )
       Respondent.                             )


       Before: COOK, WHITE, and DONALD, Circuit Judges


       COOK, Circuit Judge. Unions challenge the National Labor Relations Board’s (“the Board”)

conclusion that an employer’s improper withholding of bargaining information did not render a

lockout unlawful under the National Labor Relations Act. Previously, an administrative law judge

(ALJ) concluded otherwise. Because substantial evidence supported the Board’s judgment, we

DENY the petition.


                                               I.


       This petition arises from the tumultuous negotiations for a new collective bargaining

agreement at the Madison, Tennessee truck assembly plant (the “Madison plant”) operated by
No. 12-1455
Int’l Union et al. v. NLRB


PACCAR, Inc., d/b/a Peterbilt Motors Company (“Peterbilt”). We briefly highlight the relevant

events.


          Discussions began in April 2008, approximately two months before the prior collective

bargaining agreement (CBA) was to expire. Peterbilt proposed a number of “economic” and

“noneconomic” changes to the CBA, including a new tiered wage system; higher employee

healthcare contributions; the designation of senior “key operators” with employees structured into

teams; and greater outsourcing authority for management. During the course of these meetings,

Peterbilt representatives commented on the Madison plant’s high labor costs, prompting union

negotiators to request information, on or about June 19, regarding operating costs at the employer’s

other facilities. After resisting the unions’ initial requests for this information, Peterbilt refused it

on July 16 claiming that its proposals relied on the wages and benefits offered by other Nashville-

area employers, and not the operating costs of its other facilities. After weeks of fruitless

negotiations, Peterbilt locked out the employees on June 23, 2008. The parties ceased negotiations

in August, and the Madison plant closed for good in 2009.


          After the unions filed an unfair labor practice charge against Peterbilt, the Board’s Regional

Director filed a complaint alleging unlawful nondisclosure of relevant bargaining information and

unlawful lockout under the Act. See 29 U.S.C. § 158(a)(1), (a)(5), (d) (prohibiting employers from

“interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of” their collective-

bargaining rights and requiring good-faith negotiations); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153


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(1956) (holding that the Act’s duty of good faith includes the disclosure of information relevant to

the employer’s bargaining position); Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 308–09 (1965)

(distinguishing between lawful lockouts used “solely as a means to bring economic pressure to bear

in support of the employer’s bargaining position,” and unlawful lockouts “used . . . as a means to

injure a labor organization or to evade [the employer’s] duty to bargain collectively”). The ALJ

agreed on both counts, finding that Peterbilt’s refusal to divulge comparative costs violated the Act

and rendered its lockout unlawful as of July 16, 2008.


       On appeal, a three-member panel of the Board sustained the ALJ’s unlawful nondisclosure

judgment,1 but overruled the unlawful-lockout finding, holding that the withheld information “did

not materially affect the progress of the negotiations.” PACCAR, Inc., 357 N.L.R.B. No. 13, 2011

WL 2784214, at *5–6 (2011); cf. 29 U.S.C. § 158(a)(1); Globe Bus. Furniture, 290 N.L.R.B. 841,

841 n.2 (1988) (finding lockout unlawful where the employer withheld “crucial information central

to bargaining”), enforced 889 F.2d 1087 (6th Cir. 1989) (unpublished table decision). The unions

timely petition for review of the Board’s adverse judgment on the lockout claim, arguing that the

Board (1) ignored substantial evidence that the requested information was the sticking point of the

negotiations, and (2) improperly discounted the ALJ’s credibility findings.


                                                 II.




       1
           One member dissented from the Board’s unlawful nondisclosure finding.

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       Despite its disagreement with the ALJ, we review the Board’s judgment for substantial

evidence. Exum v. NLRB, 546 F.3d 719, 724–25 (6th Cir. 2008). Under this standard, “[t]he

Board’s findings of fact and its application of the law to those facts are conclusive ‘if supported by

substantial evidence on the record considered as a whole.’” United Paperworkers Int’l Union v.

NLRB, 981 F.2d 861, 865 (6th Cir.1992) (per curiam) (quoting 29 U.S.C. § 160(e)). “Evidence is

substantial when it is adequate, in a reasonable mind, to uphold the [NLRB’s] decision.”

Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d 747, 752 (6th Cir. 2003) (internal quotation

marks omitted).


       The following evidence reasonably supported the Board’s conclusion here:


       [T]he parties were far apart in bargaining on issues both parties deemed to be
       fundamentally important. The parties continued to meet and bargain after the lockout
       began and after the Respondent refused to provide the requested information. There
       is no evidence that the outstanding information request was a stumbling block to
       bargaining. Although the Union reiterated its request on July 8, there is no evidence
       that it ever claimed, after the Respondent refused on July 16 to provide the requested
       information, that it was precluded from evaluating the Respondent’s proposals or
       formulating its own counterproposals because it lacked the requested information.
       In fact, the parties held three additional bargaining sessions after July 16, and there
       is no evidence that the Union even raised the outstanding information request as an
       issue at any of these sessions. In a communication to its members after the lockout
       began, the Union claimed there were over 150 issues that remained to be resolved,
       but it did not claim that the Respondent was failing to provide necessary information.


PACCAR, Inc., 2011 WL 2784214, at *6. The unions generally do not dispute these findings,

conceding that “as of June 22, 2008 [the day before the lockout], there were many unresolved issues



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Int’l Union et al. v. NLRB


on the table.” Still, they challenge the Board’s claim that they failed to present evidence that the

subject of the withheld information arose at post-lockout bargaining sessions.


       They raised a similar objection to the Board in a motion for reconsideration, citing testimony

that their negotiator, Tim Bressler, told Peterbilt representatives at the final bargaining sessions

(August 19 and 20, 2008) that the withheld information “would make a difference” to the union’s

assessment of bargaining proposals. The Board denied reconsideration, noting that the ALJ did not

credit the cited testimony, and that the testimony did not undermine its conclusion:


       At best, the Union has shown that it made a few passing references to the outstanding
       information request as being something that would “make a difference” with respect
       to the Respondent’s wage and benefit proposals. Viewing the record as a whole, as
       we must, the fact remains however that the parties were far apart on many economic
       and noneconomic issues, including not only wages and benefits, but also a
       management rights clause, health and safety issues, and the designation of (and
       superseniority for) key operators. The outstanding information did not form the basis
       of the Respondent’s proposals on any of those other matters and was not central to
       resolving the parties’ differences.


PACCAR, Inc., No. 26-CA-23225, 2011 WL 6394140 (NLRB Dec. 20, 2011).


       Even accepting that the unions made “passing references” to the withheld information during

these negotiations, that does not demonstrate that the nondisclosure impeded the negotiations or

otherwise materially affected their progress.        Tellingly, despite ample record evidence of

philosophical objections to Peterbilt’s nonecomonic proposals, the unions point to no evidence




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during the relevant post-lockout negotiation period—July 16 to August 20, 20082—that they objected

to these proposals on account of the withheld information.


       Instead, they rely on the trial testimony of union representative Terry Bolte, who claimed that

the withheld information “affect[ed] every issue,” because “all” of the outstanding proposals

(economic and noneconomic) were “intertwined.”            But his post hoc speculation about the

significance of the withheld information does not prove that it served as a sticking point during post-

lockout negotiations, and thus does not undermine the Board’s determination.


       Finally, the unions point to the ALJ’s credibility determination accepting their witnesses’

description of a June 19, 2008 letter requesting the withheld information. (Peterbilt’s witnesses had

disputed this claim, arguing that they understood the document to be a “sample” information

request.) But, as the Board noted, the ALJ did not specifically credit the unions’ vague testimony

about Bressler’s later comments at the August meetings. Indeed, it does not appear that the ALJ

made credibility findings about specific post-lockout events. Regardless, as explained above, the

unions offer little evidence that the lack of information materially affected the post-lockout

negotiations, and substantial evidence supports the Board’s view that it did not. Under the

circumstances, the Board could reasonably conclude that Peterbilt did not unlawfully use the lockout




       2
         Because the administrative complaint did not allege unlawful lockout from inception, we
look to the date that Peterbilt officially denied the unions’ request for the withheld information.

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“to injure [the unions] or to evade [its] duty to bargain collectively.” See Am. Ship Bldg. Co., 380

U.S. at 308–09.


                                                III.


       We DENY the petition.




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