holding that statements that a company’s business condition was “bad” and “a matter of survival” implicitly asserted an inability to pay, the Board concluded that Lakeland’s statements “reasonably conveyed a present inability to pay.” Id. at 325 (citing Shell Co., 313 N.L.R.B. 133 (1993)). It is debatable whether these three statements, viewed in isolation, imply an inability to pay, as opposed to a mere unwillingness to pay. When considered in light of the record as a whole, however, it is absolutely clear that the statements do not provide a sufficient basis for the Board’s decision. The Board purports to consider the letter “in context.” Order, 335 N.L.R.B. at 325, 326. Indeed, its own precedents require that it do so. See, e.g., Burruss Transfer, Inc., 307 N.L.R.B. 226, 228 (1992) (<HOLDING>). Nevertheless, the Board decision focuses
holding that the defendant had abandoned any possessory or privacy interest in bags found in the truck he was driving where he stated that he did not own the bags did not know who did and did not know what was in them holding that the movants assertion that he failed to advise the plea court of counsels alleged deficiencies because he blamed himself for his lack of funds was undermined by the fact that the plea court advised the movant that he had the right to appointed counsel if he could not afford to pay for counsel holding that the need to look to the cba to determine the plaintiffs rate of pay did not trigger preemption holding that the pretrial order did not adequately disclose a theory because it did not give notice of that theory holding that an employers statement that he did not feel that he could afford the unions proposals did not trigger a duty to disclose because the overall context of bargaining did not suggest an inability to pay