Alcoa Corporation

National Labor Relations Board - Administrative Judge Opinions

Mar 27, 2019

25-CA-219925 (N.L.R.B. Mar. 27, 2019)

JD–32–19
Newburgh, IN

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

ALCOA CORPORATION

and Case 25-CA-219925

UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS LOCAL 104

Raifael Williams, Esq.,
for the General Counsel.
Sarah Rain, Esq.,
(Ogletree Deakins, Nash,
Smoak and Steward, P.C.)
Indianapolis, Indiana,
for the Respondent.

DECISION

STATEMENT OF THE CASE

PAUL BOGAS, Administrative Law Judge. This case was tried in Evansville, Indiana, on
February 5, 2019. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers Local 104 (the Charging Party or the Union) filed the original
charge on May 9, 2018, and an amended charge on August 28, 2018. The Regional Director
for Region Twenty-Five of the National Labor Relations Board (the Board) issued the Complaint
on September 27, 2018. The Complaint alleges that Alcoa Corporation (the Respondent or the
Employer) violated Section 8(a)(1) of the National Labor Relations Act (the Act) on March 19, 20
and April 3 and 5, 2018, by instructing employees who it interviewed during an investigation of a
co-worker’s conduct not to discuss the interviews with other employees. The Complaint further
alleges that the Respondent violated Section 8(a)(5) by refusing, since April 23, 2018, to provide
the Union with information requested on April 16 and again on April 26, and by unreasonably
delaying the delivery of other information the Union requested on those dates. The Respondent
filed a timely Answer in which it denied committing the violations alleged.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following Findings of Fact and Conclusions of Law
.

JD–32–19

FINDINGS OF FACT

I. JURISDICTION 5

The Respondent, a corporation, manufactures aluminum and aluminum products at its
facility in Newburgh, Indiana, from which it annually sells and ships goods valued in excess of
$50,000 directly to points outside the State of Indiana. The Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the 10
Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES

The events at-issue in this case took place at the Respondent’s Warrick Operations 15
facility, in Newburgh, Indiana. Approximately 1600 persons work at that facility, of whom
between 1100 and 1200 are represented by the Union. The most recent collective bargaining
agreement between the Respondent and the Union went into effect on May 16, 2014, and sets
forth an expiration date of May 15, 2019.
20
On April 6, 2018, the Respondent issued a 3-day suspension, pending further
disciplinary action, to Ronald Williams, a bargaining unit employee who worked in the shipping
department at the loading dock. The disciplinary notice states that the action was taken because
Williams had been “creating a hostile work environment.” The Respondent’s records indicate
that, beginning no later than March 8, 2018, the Respondent received reports that Williams had 25
repeatedly directed offensive racial and national origin-based slurs at contract truck drivers, had
exploited his position by unfairly forcing some drivers to wait inordinately long to load their
trucks, and had otherwise subjected people to disrespectful treatment. On March 8, 15, and 19,
Terrence Carr, labor relations specialist,1 interviewed three contract truck drivers who interacted
with Williams at the loading area about Williams’ conduct. A fourth contract employee, who was 30
not a driver, was interviewed by Carr on March 13. Carr then interviewed six hourly employees
about the alleged misconduct by Williams. Only Carr and the interviewee were present for
these interviews, which took place on March 19 and 20, and April 3 and 5, 2018. Carr told each
of the six hourly employees that the interviews were confidential and he directed them not to
discuss the interviews with employees or supervisors, and to decline to answer any questions 35
that others asked them about the interviews. Carr testified that he did this because “historically
hourly employees did not write out statements on other hourly employees.” When testifying at
trial, Carr did not claim that any of the employees he interviewed had, in fact, expressed
reservations about giving statements. Indeed the parties stipulate that not a single one of the
six hourly employees had requested confidentiality. Transcript at Page(s) (Tr.) 54-55. The 40
Respondent does not claim that Carr directed human resources staffers, supervisors,
managers, and others who came into possession of information about an interview that such
information was confidential.

In an April 7, 2018, email, Bruce Price, a union representative for the shipping 45
department, asked Carr to provide a variety of types of information relating to the discipline
against Williams, including “all interview notes or video or anything else the company is using
during this investigation on this supposed hostile work environment, that you are using against
Mr. Williams.” During the period of the suspension, the Union was preparing to represent

1 Carr is an acknowledged supervisor and/or agent of the Respondent within the meaning of Section
2(11) and Section 2(13) of the Act. General Counsel Exhibit Number (G Exh.) 1(g), paragraph 4.
JD–32–19

Williams in an internal process during which the Union is given an opportunity to present facts
relevant to the disciplinary decision. Carr provided a response to Price on April 8. That
response included Carr’s summaries of his interviews with 10 individuals. With respect to the
four contractors who were interviewed, the Respondent provided the name of the individual.
With respect to the six hourly employees who were interviewed, Carr withheld the interviewee’s 5
name and the date of the interview.

In a letter dated April 9, the Respondent informed Williams that his employment was
terminated effective April 10, 2018.2 On April 9 or 10, the Union submitted a grievance
challenging Williams’ termination. Subsequently, on April 16, Tim Underhill – the Union’s 10
business agent and grievance committee chairman – submitted a request to Carr for information
relating to that grievance. The request included eleven paragraphs seeking various types of
information. The General Counsel only alleges that the Respondent unlawfully failed to provide
and/or unreasonably delayed providing information in response to one of those paragraphs.
That paragraph requested: 15

Information pertaining to the interviews of the one Dayshift
Hourly employee and five afternoon shift hourly employees that were
provided by the Company per the information request by Bruce Price on
or about 4/7/2018. Information should include Name that coincides with 20
each interview, the date the interview took place, the location w[h]ere the
interview took place and a list of names of who was present when the
interviews took place.

General Counsel Exhibit Number (GC Exh.) 9, Para. 6. Underhill testified that the Union 25
needed this information in order to “investigate whether or not the interviews and the actual
process was done, and also to allow us to do an internal investigation and to check up on the
facts.”

On April 23, Carr responded to Underhill’s April 16 request. In his response, Carr 30
refused to provide the names of the hourly employees who were interviewed about Williams’
conduct. Carr stated:

Based on confidentiality request of employee’s names will not be shared
at this time. Attached we have provided 4 sworn statements from hourly 35
employees that were interviewed. All employees declined union
representation. Terrence Carr interviewed all employees with 2 of the
interviews taking place in Building 1 and 4 interviews in the Pack/Ship
conference room.
40
GC Exh. 10. Despite Carr’s claim to the Union that the six hourly employees who were
interviewed had requested confidentiality, at trial the Respondent stipulated that not a single one
of those individuals had, in fact, requested confidentiality. Tr. 54-55. In addition to withholding
the names of the bargaining unit employees who were interviewed, this response from Carr
withheld the dates when those interviews took place. Carr provided four handwritten statements 45
to Underhill; however, Carr redacted the name of the employee giving the statement and any
information showing the date of the statement.

2 Neither Williams’ suspension nor his subsequent discharge is alleged to be unlawful in this
proceeding.
JD–32–19

On April 26, Underhill wrote to Carr stating, inter alia, that the Union still needed the
names of the hourly employees who were interviewed and also the dates of the interviews.
Underhill stated that the Union had a legal right to this information, and asked that “if the
Company is refusing to provide the information, please state in writing.” Underhill informed the
Respondent that the Union “need[ed] the information in order to properly investigate this 5
grievance.”

Carr responded to that correspondence on April 30. On the subject of the names of the
hourly employees who were interviewed, Carr stated:
10
It is the Company’s position that keeping the identities of the witnesses
confidential prior to the arbitration outweighs the union’s right to know
their identities. This position is based on the fact that the employees
requested and were given, an assurance of confidentiality at the time they
gave their statements, and there is a significant risk that intimidation or 15
harassment of witnesses will occur as demonstrated by a recent incident
of misconduct reported to management. Furthermore, it is the
Company’s position that it has accommodated the Union’s request for
information by providing redacted copies [of] the witness statements that
contain the facts used by the Company to make the disciplinary decision. 20
The information contained in the statements will allow the Union to
effectively represent Mr. Williams during the grievance process.

GC Exh. 12. Although, in this communication, Carr repeated the claim that the interviewees
requested confidentiality at the time of the interviews, the Respondent stipulates that not one of 25
those interviewees did, in fact, request confidentiality. The Respondent did not offer to
accommodate the Union’s request for the names of the hourly employees by providing the
names subject to a confidentiality agreement or some other safeguard.

Regarding Carr’s claim, in the April 30 communication, that a “recent incident of 30
misconduct” demonstrated that revealing the names of interviewees would create “a significant
risk” of “intimidation or harassment of witnesses,” the record shows the following. On April 26,
Carr received an email from a shipping department supervisor, Wade Shanks, regarding a
complaint he reported receiving from John Taborn, a bargaining unit employee and union
steward. According to Shanks, Taborn stated that in the past he had stored his boots in a 35
cabinet in the break room rather than in the employee locker room. Taborn heard that the
recently elected union representative, James Cameron, had recently posted a note stating “no
boots in the cabinets” of the break room. Shanks stated that Taborn told him that the employee
who cleans the break room had recently removed his boots from the break room and put them
“out in the aisle way outside of the break room filled with garbage.” Respondent Exhibit Number 40
(R Exh.) 1.3 Shanks did not report that Taborn claimed to know why this had happened.
Shanks did not testify, but in his email he speculated to Carr that “we can read between the
lines on this issue and have an educated guess on why this behavior is happening toward Mr.
Taborn.” Shanks went on to hypothesize that Taborn’s boots were treated in this manner:
because Taborn had unsuccessfully run against Cameron in the recent union representative 45
election; and because Taborn had opposed the alleged harassment by Williams and provided

3 Neither Taborn nor Shanks were called to testify. I received Shanks’ email regarding Taborn as an
exhibit over the hearsay objection of counsel for the General Counsel, but do not consider the email for
the truth of the matters asserted regarding either the treatment of Taborn, or what Taborn communicated
to Shanks. I do, however, consider the email as evidence that, on April 26, Carr received Shanks’
account of a report from Taborn.
JD–32–19

information to the Respondent about it.4 The Respondent concedes that, prior to April 26, it did
not have any belief or knowledge that the Union or an employee had retaliated against any
employee for cooperating in the Respondent’s investigation of Williams’ conduct. Tr. 54-55. The
record does not show that the Respondent investigated the report regarding Taborn’s boots.
5
Underhill, in an email, dated May 1, 2018, to Carr, again referenced the Union’s request
for information regarding the interviews that were conducted with bargaining unit employees
about Williams’ alleged misconduct. Two months later, Carr, in a communication dated July 2,
2018, informed Underhill of the dates when hourly employees were interviewed and gave
statements. At trial, Carr testified, “I think” the Respondent’s previous failure to provide the 10
dates “was merely an oversight.” Tr. 63-64. The July 2 communication still did not disclose the
names of any of the hourly employees who Carr interviewed.

On January 24 and 25, 2019, the Union and the Employer participated in an arbitration
of the grievance regarding Williams’ discipline. During the arbitration, the Respondent 15
continued to withhold the names of the bargaining unit employees who were interviewed or
gave statements during the Respondent’s investigation of Williams’ conduct. The Union argued
to the arbitrator that no weight should be given to the interviews and statements of these
employees since the Respondent refused to provide the Union with information about them. In
his testimony before me, Underhill stated that the Union currently has approximately 18 pending 20
grievances that are scheduled for arbitration.

DISCUSSION

I. CARR’S DIRECTION THAT EMPLOYEES 25
KEEP INTERVIEW CONFIDENTIAL

The General counsel alleges that the Respondent violated Section 8(a)(1) of the Act
when Carr told the employees he interviewed about Williams’ conduct that the conversations
were confidential, should not be disclosed to supervisors or employees, and directed the 30
interviewees to decline to answer any questions about the conversations.5 Where a violation of
Section 8(a)(1) is alleged, the first question is whether the employer's conduct interferes with
the employee's rights under Section 7 of the Act. If it does, the employer may escape a finding
of violation by demonstrating a legitimate and substantial business justification that outweighs
the employee's interests under Section 7. See, e.g., Verizon Wireless, 349 NLRB 640,640 fn.5 35
and 658 (2007); Ang Newspapers, 343 NLRB 564, 565 (2004); Caesar's Palace, 336 NLRB
271, 272 fn.6 (2001).

4 On May 18, 2018, about 4 weeks after Carr refused to provide the Union with the names of hourly
employees he interviewed, Carr received an email from Taborn stating that the Union had removed
Taborn from his position as a union steward. Taborn reported that Underhill told him the reason for this
action was that Taborn had given the Respondent information about Williams’ conduct, and that Underhill
“couldn’t get past a steward doing that to another member.” Taborn did not testify, or otherwise provide
sworn testimony, regarding any statement made to him by Underhill or how he came to contact Carr on
May 18. Underhill appeared as a witness, but was not questioned about, and did not testify regarding,
the statements Taborn attributed to him in the May 18 email.
5 In its brief the Respondent contends that Carr “requested (not demanded) confidentiality.” Brief of
Respondent at Page 12. Respondent’s counsel strays into the vicinity of bad faith by making this
argument. At trial, the Respondent stipulated that Carr told the employees “that their conversations were
confidential, that employees should keep the conversations confidential, including from supervision and
other employees, and if others asked about the conversations, to decline to answer.” Tr. 54. This was a
directive from the Respondent’s acknowledged supervisor and/or agent, not a mere “request.”
JD–32–19

It is well-established that an employer interferes with Section 7 rights by prohibiting
employees from discussing workplace concerns, particularly if, as here, they relate to discipline
or potential discipline. See Fresenius USA Mfg., Inc., 358 NLRB 1261, 1261 fn.1 (2012), affd. in
relevant part after remand at 362 NLRB 1065 (2015); Verizon Wireless, 349 NLRB at 640 fn.5
and 658; SNE Enterprises, Inc., 347 NLRB 472 (2006), enfd. 257 Fed. Appx. 642 (4th Cir. 2007); 5
Westside Community Mental Health Center, 327 NLRB 661, 666 (1999). Moreover, the Board
has recognized that an employer’s restriction on employee communications regarding an
investigation is overbroad when, as here, that restriction is not limited by time or place. See,
e.g., SNE Enterprises, 347 NLRB at 472 and 492-493, Westside Community Health Center, 327
NLRB at 666. In this case, Carr interfered with employees’ Section 7 rights by prohibiting them 10
from discussing a workplace matter relating to discipline. That interference is particularly
profound because Carr’s directive was unlimited in terms of both duration and place. Carr’s
directive to the employees did not include a mitigating statement that the employees could
discuss the interviews with others once the employer’s investigation was over or at any other
time. Thus the restriction cannot be justified, and the Respondent does not claim it was 15
justified, by the need to complete its investigation without witnesses influencing one another’s
accounts. Cf. SNE Enterprises, 347 NLRB at 472 fn.4 and 493 (confidentiality rule was enforced
after the investigation was completed and therefore cannot be justified as necessary to “to
protect the sanctity of an ongoing investigation”). Moreover, Carr’s confidentiality directive
extends, on its face, to prohibit any discussions the interviewees might want to have with 20
anybody at all, including their collective bargaining representative.

Given that Carr’s confidentiality directive interfered with the employees’ Section 7 rights,
it violated the Act unless the Respondent can demonstrate a legitimate and substantial business
justification that outweighs the employees’ Section 7 rights. Verizon Wireless, supra; Caesar's 25
Palace, supra; Westside Community Health Center, supra. The Respondent has failed to do
that. The only justification offered for the confidentiality directive is Carr’s assertion that
“historically hourly employees did not write out statements on other hourly employees.” Carr’s
conclusory assertion about the historical reticence of hourly employees is not supported by
evidence of specific examples, or even the mention of specific examples. Moreover, although 30
Carr falsely claimed to the Union that the interviewees themselves requested confidentiality, the
Respondent concedes that not one of the employees interviewed actually requested
confidentiality. In fact, the testimony did not show that any of the interviewees demonstrated
discomfort or reticence about reporting on Williams’ conduct.
35
In addition to being unsupported from an evidentiary perspective, Carr’s claim that he
imposed the confidentiality directive to protect the interviewees themselves is unsupported from
a logical perspective. Specifically, I note that Carr’s directive was not that 3rd parties – either
other employees, human resources staffers, supervisors or managers – were prohibited from
discussing the interviewee’s disclosures. If that were the case, then arguably it would provide 40
some reassurance to any interviewees who might be worried that others would find out what
they said to Carr. However, the prohibition was imposed on the interviewees themselves, not
on third-parties, and therefore does not provide that reassurance, but merely interferes with the
interviewees’ own freedom to decide under what circumstances to discuss a workplace issue
with co-workers and others. 45

I find that the Respondent violated Section 8(a)(1) on March 19 and 20, and April 3 and
5, 2018, when Carr directed employees who he interviewed as part of the investigation of
Williams’ conduct that the interviews were confidential and should not be disclosed to other
employees and that the interviewees should decline to answer any questions about the 50
conversations.

JD–32–19

II. INFORMATION REQUEST

A. RESPONDENT’S REFUSAL TO PROVIDE THE NAMES OF
EMPLOYEES IT INTERVIEWED REGARDING WILLIAMS’ CONDUCT
5
On April 16, 2018, the Union requested that the Respondent supply the names of the six
hourly employees who the Respondent interviewed as part of the investigation that led to the
suspension and termination of bargaining unit employee Williams. In an April 23
correspondence, the Respondent informed the Union that it would not provide the names. On
April 26, the Union repeated its request that the Respondent supply the names and, on April 30, 10
the Respondent again expressly refused to do so. The Respondent has continued to withhold
the names, including during the arbitration of the Williams grievance.

An employer's obligation to bargain in good faith under Section 8(a)(5) of the Act,
includes the obligation to furnish the employees' bargaining representative, upon request, with 15
information relevant to and necessary for the performance of the Union's statutory duty as the
employees' bargaining representative. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436
(1967). In this case, in order to evaluate the merits of the grievance and/or to challenge the
Respondent’s claim that Williams engaged in conduct warranting his discharge, the Union
needed to identify, and likely interview, the employees whose accounts the Respondent 20
obtained in the course of its investigation. As the Board recently recognized, “Board law is clear
that a union’s request for witness names made in connection with a grievance constitutes a
request for relevant and necessary information.” American Medical Response West, 366 NLRB
No. 146, slip op. at 2 (2018); see also Transport of New Jersey, 233 NLRB 694, 694-695
(1977). “As a result, the Respondent had an obligation under Section 8(a)(5) and (1) to provide 25
the names to the Union unless it could establish a valid defense for not doing so.” American
Medical Response West, supra. In the present case the Respondent asserts that it has a
defense because it can establish a legitimate interest in confidentiality that outweighs the
Union’s need for the information. See Detroit Edison v. NLRB, 440 U.S. 301, 319-320 (1979);
Piedmont Gardens, 362 NLRB 1135 (2015), enfd. in relevant part by 858 F.3d 612 (D.C. Cir. 30
2017): Northern Indiana Public Service, 347 NLRB 210, 211 (2006). The Respondent, as the
party asserting this defense, bears the burden of proving that it had a legitimate and substantial
confidentiality interest that outweighs the Union’s need for the information. Northern Indiana
Public Service, supra; Lasher Service Corporation, 332 NRLB 834, 834 (2000); Geiger Ready
Mix Co., 315 NLRB at 1021, 1021 fn.2 (1994). Even if the Respondent is able to prove that it 35
has a legitimate and substantial confidentiality interest that outweighs the Union’s need for the
information, it violates the Act by withholding the names without offering the Union an
accommodation. Borgess Medical Center, 342 NLRB 1105, 1105-1106 (2004).

The Respondent has failed to establish a legitimate interest in confidentiality, much less 40
one that outweighs the Union’s need for the information. On April 23, when the Respondent
announced its refusal to supply the names of the six hourly employees, the only reason the
Respondent gave was that the employees themselves had requested that the interviews be kept
confidential. Now the Respondent admits that that stated justification was simply false. At trial,
the Respondent stipulated that, contrary to the confidentiality interest it claimed when it 45
announced its refusal to provide the information, not a single one of the six hourly employees
had, in fact, requested confidentiality.

Subsequent to the April 23 announcement that it was refusing to provide the names, the
Respondent asserted a different “interest in confidentiality” – i.e., that a recent incident showed 50
“there is a significant risk” of “intimidation or harassment of witnesses.” However, it is
undisputed that this concern about retaliation was not a legitimate confidentiality interest on
JD–32–19

April 23 when the Respondent announced that it would not provide the information. During the
trial, the Respondent admitted that at the time of its April 23 refusal it had no knowledge, or
even a belief, that the Union or employees were retaliating against employees for cooperating
with the investigation. The Respondent has failed to meet its burden of showing that when it
refused to provide the names of interviewed employees on April 23 it had any legitimate 5
confidentiality interest, much less that it had a confidentiality interest that was so substantial that
it outweighed the Union’s well-recognized need for witness names sought in connection with
representing an employee in a grievance proceeding. American Medical Response West,
supra, Transport of New Jersey, supra. For the reasons discussed above, I find that the
Respondent violated Section 8(a)(5) and (1) of the Act on April 23, 2018, when it refused the 10
Union’s April 16, 2018, request for the names of hourly employees who provided statements to
the Respondent as part of the investigation of Williams’ conduct.

The Complaint alleges that the Respondent unlawfully refused to provide the requested
names not merely on April 23, but since April 23. The violation that began when the Respondent 15
unlawfully failed to provide that information on April 23 has not been remedied. The information
unlawfully withheld is still being withheld and the Respondent has not posted an appropriate
notice informing employees that it would not unlawfully withhold information from the Union in
the future. To the extent that the Respondent has identified later-discovered concerns that it
claims would have justified withholding the information at time subsequent to when it announced 20
its refusal to provide the information, those later-discovered concerns cannot absolve the
Respondent either of its earlier-committed violation or of the obligation to remedy that violation
by, at a minimum, posting an appropriate notice to employees.

Even assuming that the information the Respondent obtained on April 26 and May 18 25
relating to Taborn bears on the extent to which the April 23 violation is continuing, I find that the
reports regarding Taborn do not, in fact, show that the Respondent had a legitimate
confidentiality interest. I note that Carr did not testify that the Respondent performed even the
most cursory investigation of what Shanks reported regarding Taborn’s claim about the
treatment of his boots. Carr did not testify that he talked to Taborn about the boot incident or 30
identified the date when incident is supposed to have occurred. There is no evidence that the
Respondent delved into the matter further or otherwise treated the allegations about Taborn’s
boots as a serious or persistent issue. Given that it is the Respondent’s burden to establish the
defense based on a legitimate interest in confidentiality, Lasher Service Corporation, supra, and
given that the Respondent has presented nothing beyond hearsay statements in the April 26 35
email from Shanks regarding the purported treatment of Taborn’s boots, and nothing beyond
speculation to tie any such treatment to the investigation, the Respondent’s defense cannot be
accepted. Moreover, given that the Respondent has not shown, or even claimed, that it treated
the report regarding Taborn’s boots as consequential enough to warrant investigation, it cannot
persuasively argue that the report was so consequential as to override the Union’s right to 40
obtain information needed to represent a discharged employee in a grievance proceeding.

On May 18, Carr received an email from Taborn stating that the Union had removed him
from his position as a union steward because Underhill “couldn’t get past a steward” providing
information against “another member,” i.e., Williams. As with the Shanks email, Carr received 45
this email from Taborn after he announced the Respondent’s refusal to provide interviewees’
names. And once again with respect to this matter, Carr did not testify that he investigated to
determine the veracity or circumstances regarding this report from Taborn or otherwise handled
it as one would a serious matter. At any rate, the Union’s decision about who can best serve
as a union steward to deal with the employer is an internal union matter that has no effect on 50
the steward’s employment relationship with the employer. An employer has very limited, if any,
legitimate interest in a Union’s decision regarding a purely internal union matter of this kind. See
JD–32–19

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967) (“Congress did not propose any
limitations with respect to the internal affairs of unions, aside from barring enforcement of
a union's internal regulations to affect a member's employment status.”); Office and Professional
Employees International Union, Local 251, 331 NLRB 1417 (2000) (same); Laborer’s Local No.
721, 246 NLRB 691, 693 (1979) (same), enfd. 649 F.2d 33 (1st Cir. 1981); see also Local 254, 5
Service Employees Intern. Union, AFL-CIO, 332 NLRB 1118, 1124 (2000) (a large number of
internal union disputes could fairly be characterized as disputes about how best to deal with
employers). Given the above, hearsay about the reasons for the Union’s internal decision about
who should serve as a union steward, does not provide the Respondent with a legitimate basis
for withholding the witness names that the Union needed to represent Williams in the grievance 10
proceeding regarding his discharge.

For the reasons discussed above, I find that the Respondent violated Section 8(a)(5)
and (1) since April 23, 2018, when it refused the Union’s April 16, 2018, request for the names
of the hourly employees who provided statements to the Respondent as part of the 15
investigation of Williams’ conduct.

B. RESPONDENT’S DELAY IN PROVIDING UNION
WITH THE DATES OF EMPLOYEE INTERVIEWS
20
The Complaint alleges that, in addition to violating Section 8(a)(5) by refusing to provide
the Union with the names of the interviewed hourly employees, the Respondent violated Section
8(a)(5) because it unreasonably delayed providing the Union with the dates of those interviews.
The record shows that the Union requested the dates on April 16 and that the Respondent failed
to provide that information until over 2 ½ months later on July 2, 2018. An employer’s 25
“unreasonable delay in furnishing … information is as much of a violation of Section 8(a)(5) of
the Act as a refusal to furnish the information at all.” Naperville Jeep/Dodge, 357 NLRB 2252,
2252 n.5 and 2272-2273 (2012), enfd. 796 F.3d 31 (D.C. Cir. 2015), cert. denied 136 S.Ct.
1457 (2016); Amersig Graphics, Inc., 334 NLRB 880, 885 (2001).
30
Although the Respondent denies that the delay violated the Act, it does not claim either
that the dates of the interviews were not relevant and necessary to the Union’s representation of
Williams in the grievance process or that the delay in providing the dates was justified by
legitimate confidentiality concerns. Nor does the Respondent claim that gathering the
information was so difficult or burdensome that 2 ½ months was a reasonable amount of time in 35
which to respond. Rather it argues that the delay was too short to constitute a violation, that its
failure to promptly supply the information was an “oversight,” and that the delay caused no
prejudice to the Union. As is discussed below, none of the Respondent’s arguments have merit.

Regarding the Respondent’s argument that the delay here was too short in duration to 40
constitute a violation, Board caselaw shows that, to the contrary, where, as here, the information
requested by a union is not voluminous or difficult to gather, delays of 2 ½ months or less are
unreasonable and violate the Act. In such circumstances the Board has found delays of 2 ½
months, 2 months, 7 weeks, and even a mere 6 weeks to be unreasonable and violative of the
Act. Dodge of Naperville Jeep/Dodge, supra (2 months); Woodland Clinic, 331 NLRB 735, 737 45
(2000) (7 weeks); House of the Good Samaritan, 319 NLRB 392 (1995) (2.5 months); Bundy
Corp., 292 NLRB 671, 672(1989) (6 weeks). Given how minimal the information sought by the
Union was, there is no apparent reason why the Respondent should not have been able to
easily gather the dates of the six interviews in a day or less and the Respondent has not
suggested otherwise. Under the circumstances, and Board precedent, the Respondent’s delay 50
of over 2 ½ months was unreasonable and a violation of the Act.

JD–32–19

As for the Respondent’s contention that there was no violation because the delay was
unintentional6 and was not shown to have resulted in prejudice to the Union, I begin by noting
that the precedent cited above does not require either improper intent or prejudice to establish a
violation. Rather where, as here, a union requests information that is relevant and necessary to
its representation of the bargaining unit and the employer unreasonably delays providing that 5
information, a violation of Section 8(a)(5) is shown. Naperville Jeep/Dodge, supra; Amersig
Graphics, supra; Woodland Clinic, supra. The Respondent seizes on an administrative law
judge’s passing reference to the absence of evidence of prejudice in Union Carbide Corp., a
case in which the Board found that the employer’s delay in supplying information was not a
violation. 275 NLRB 197, 200-201 (1985). However, that decision does not find that Union 10
Carbide unreasonably delayed providing information, but escaped a finding of violation because
there was no prejudice. Rather Union Carbide’s delay was not a violation because the delay
was reasonable. Specifically, the delay in that case resulted because the information was
“complex,” “most difficult, time consuming, and expensive” to gather. Ibid. Unlike the
Respondent in this case , the employer in Union Carbide began to gather the voluminous data 15
at-issue within days of the Union’s request and continued that effort without interruption until the
information was provided. “There was simply no showing” that Union Carbide’s effort to provide
the information was “not reasonable or that [Union Carbide] could have done anything else to
produce a faster result.” Ibid. The relevant circumstances in the instant case could hardly be
more different than those in Union Carbide. Here the information the Union sought was 20
minimal, simple, and easily gathered. Indeed, withholding that information actually required the
Respondent to expend additional effort by affirmatively redacting the dates from the information
supplied on April 23 and April 30. The Respondent, unlike the employer in Union Carbide, could
have “produce[d] a faster result” by immediately providing the simple, minimal, information at-
issue. 25

The Respondent violated Section 8(a)(5) and (1) of the Act because it unreasonably
delayed providing the Union with the dates of the employee witness interviews that the Union
requested on April 16, 2018, and again on April 26, 2018.
30
CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
35
2. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial
and Service Workers Local 104 (the Union) is a labor organization within the meaning of Section
2(5) of the Act.

3. The Respondent violated Section 8(a)(1) of the Act on March 19 and 20, and April 3 40
and 5, 2018, when it directed employees interviewed as part of an investigation of a bargaining
unit employee’s conduct that the interviews were confidential and should not be disclosed to
other employees and that the interviewees should decline to answer questions anyone posed to
them about the interviews.

6 I do not make a finding regarding whether or not the delay was the result of a mere “oversight” as
Carr testified that he “thinks” it was. I do, however, note that the claim that the delay was simply an
oversight is suspect given that that when Carr failed to provide that information in his initial response to
the Union’s April 16 request, the Union followed-up on April 26 with a more focused request that
reiterated to Carr that the Union needed the interview date information it previously requested.
JD–32–19

4. The Respondent violated Section 8(a)(5) and (1) of the Act since April 23, 2018, when
it refused the Union’s April 16, 2018, request for the names of the hourly employees who
provided statements to the Respondent as part of the investigation of a bargaining unit
employee’s conduct. 5

5. The Respondent violated Section 8(a)(5) and (1) of the Act when it unreasonably
delayed providing the interview dates that were requested by the Union on April 16, 2018, and
again on April 26, 2018.
10
6. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.

REMEDY
15
Having found that the Respondent engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent contends that even if it violated the Act by refusing to
provide the Union with the names of hourly employees who Carr interviewed, I should relieve it
of the obligation to provide the unlawfully withheld information because the Union no longer 20
needs it. The Respondent reasons that because the arbitral hearing regarding the Williams
grievance was held on January 24 and 25, 2019, the Union’s need for the information has
passed. In Boeing Company, 364 NLRB No. 24, slip op. at 4 (2016), the Board held that if an
employer establishes that the union no longer has any need for requested information, “the
Board will not order the employer to produce it, despite finding the violation.” The Boeing 25
decision notes that “the employer bears the burden of proof of establishing that the union has no
need for the requested information.” Ibid.

I find that the Respondent in this case failed to meet its burden of establishing that the
Union no longer has any need for the unlawfully withheld information. While it is true that the 30
arbitral hearing regarding the Williams grievance has been held, the Respondent has not
established that the arbitrator has issued a decision, that no appeal has been taken from any
such decision, and that the arbitrator has no authority to reopen the matter. Tellingly, in
Borgess Medical, the one case that the Respondent cites where the Board relieved an employer
of the obligation to provide unlawfully withheld information sought in connection with a 35
grievance, the Board specifically relied on the fact that, not only had the arbitration been held,
but that the arbitrator had already issued a decision and no appeal was taken from that
decision. 342 NLRB at 1106, citing Westinghouse Electric Corp., 304 NLRB 703, fn.1, 709
(1991) (employer not ordered to produce withheld information that was only relevant to an
arbitration and that arbitration had closed and could not be reopened). In the instant case, by 40
contrast, the Union still needs the information in order to evaluate how to proceed regarding the
pending grievance, and possibly in order to represent Williams in an appeal, request for
reopening, or other avenue that either party may choose to pursue before or after the
arbitrator’s decision. Therefore, I find that the Respondent has failed to meet the burden, under
Boeing, “of establishing that the union has no need for the requested information” and I deny its 45
request to be relieved of the obligation to provide the information it unlawfully withheld from the
Union.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.7 50

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
JD–32–19

ORDER

The Respondent, Alcoa Corporation, Newburgh, Indiana, its officers, agents,
successors, and assigns, shall 5

1. Cease and desist from

(a) Unlawfully instructing employees not to discuss investigatory interviews with other
employees and/or the employees’ collective bargaining representative. 10

(b) Refusing to provide the United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers Local 104 (the Union) with requested information
that is relevant and necessary to the Union’s statutory duty as collective bargaining
representative. 15

(c) Unreasonably delaying the provision of information, requested by the Union, that is
relevant and necessary to the Union’s statutory duty as collective bargaining representative.

(d) In any like or related manner interfering with, restraining, or coercing employees in 20
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Immediately provide the Union with the interviewee names it requested on April 16, 25
2018.

(b) Within 14 days after service by the Region, post at its facility in Newburgh, Indiana,
copies of the attached notice marked “Appendix.” 8 Copies of the notice, on forms provided by
the Regional Director for Region 25, after being signed by the Respondent’s authorized 30
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps 35
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since March 19, 40
2018.

findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–32–19

(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

5
Dated, Washington, D.C. March 27, 2019

________________________ 10
PAUL BOGAS
Administrative Law Judge

JD–32–19

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT unlawfully instruct you not to discuss investigatory interviews with other
employees or with your collective bargaining representative.

WE WILL NOT refuse to provide the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers Local 104 (the Union) with
requested information that is relevant and necessary to the Union’s statutory duty as collective
bargaining representative.

WE WILL NOT unreasonably delay providing the Union with requested information that
is relevant and necessary to the Union’s statutory duty as collective bargaining representative.

WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.

WE WILL immediately provide the Union with the interviewee names that the Union
requested on April 16, 2018.

ALCOA CORPORATION
(Employer)

Dated By
(Representative) (Title)

JD–32–19

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7381, Hours: 8:30 a.m. to 5 p.m.

The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-219925 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (317) 991-7644.