Bohemia, Inc

National Labor Relations Board - Board Decisions

Nov 15, 1984

272 N.L.R.B. 1128 (N.L.R.B. 1984)

1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bohemia, Inc and International Wood Workers of
America, Local Union No 3-246, AFL-CIO
Case 36-CA-4404
15 November 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 February 1984 Administrative Law Judge
Timothy D Nelson issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings and
conclusions only to the extent consistent with this
Decision and Order
The Respondent operates a plywood plant in
Culp Creek Oregon where employees have been
represented by the Union since 1970 The Respond
ent also operates a nonunion plant in Drain
Oregon 30 miles from Culp Creek
In 1982 during the middle of the then current
contract the Respondent requested the Union to
agree to a reduction in contractually required wage
increases for employees at Culp Creek The Union
refused that request In December 1982 the Re
spondent began a phased layoff of plywood em
ployees at Culp Creek That operation did not
reopen until about July 1983 1 A new contract be
tween the Respondent and the Union was in effect
when Culp Creek reopened At approximately the
same time as the Culp Creek layoff the employees
at Drain had their wages reduced by approximately
25 percent The Respondent s Drain plant remained
open during the time its Culp Creek operation was
closed
While Culp Creek was closed laid off Culp
Creek employees expressed to Rockwell the
Union s financial secretary business agent their
suspicion that work had been transferred to
Drain because of the reduction in wages at that fa
aft)/ On 5 April during the Culp Creek shut
down the Union sent a letter to the Respondent
requesting infermation necessary for the represen
tation of members at the Culp Creek operation
and for enforcement of the contractor The
Union s information request was directed to oper
ations at both Culp Creek and Drain and sought
information concerning such items as inter aim
' All dates hereinafter are in 1983 unless otherwise indicated
production and sales figures payroll and hours
booking records shipping invoices and production
nrojections 2 The Respondent replied by letter
dated 15 April The Respondent agreed to provide
a list as req iested of “11 laid off employees at Culp
Creek but stated it was unable to find any rdl
evance in the other requested information The
Union responded by letter dated 18 April setting
forth its belief tbat employees were being deprived
of work in violation of the collective bargaining
agreement between the parties and also in violation
of the labor laws The Union indicated that it
was attempting to determine whether or not a di
version of work has occurred in order that we can
protect the work of the members of the bargaining
unit 3 The Respondent did not reply to the
Union s 18 April letter
The judge concluded that the Respondent violat
ed Section 8(a)(5) and (1) of the Act by refusing to
provide the requested information The judge
noted that the Union s requested information as it
pertained to employment of nonunit employees
e those employees at Drain and about data con
cerning production and sales at both Drain and the
Culp Creek plant was not presumptively relevant
to the Union s representation of unit employees
The judge found that the burden was on the Union
to demonstrate the relevance of that information
and that the Union had established such relevance
He concluded that the Union s statement that it
wanted the information to determine whether work
had been diverted from Culp Creek to Drain so
that it could protect the work of the members of
the bargaining unit was sufficient to show the nec
essary relevance requiring the Respondent to
produce the information requested The judge fur
ther found the Union s good faith basis for suspi
cion was sufficient justification to require produc
tion of data concerning operations outside the unit
represented by the Union In this regard the judge
noted that the Respondent furnished the informa
tion to the General Counsel during investigation of
charges that the Respondent violated the Act by
actually transferring the work 4 The judge found
this to be an indication of the Respondent s
knowledgement of the relevance of the requested
information The judge also noted that at the time
of the information request the parties were to
begin bargaining for a new contract The judge
The full text of the letter is set forth in the judge s decision
3 Both the Respondent s 15 April letter and the Union s 18 April letter
are set forth in the judge s decision
The allegation under consideration here was originally combined in a
charge which also alleged that the Respondent violated Sec 8(a)(3) and
(5) of the Act by unilaterally modifying the contract by transferring bar
gaining unit work to Drain The Regional Director dismissed this latter
allegation and his dismissal was upheld on appeal
272 NLRB No 178
BOHEMIA INC 1129
reasoned that the information requested would
have been relevant to bargainable subjects and
thus was relevant information that should be pro
vided Accordingly the judge found the Respond
ent s refusal to provide the requested information
was unlawful For the reasons that follow we re
verse the judge s decision
The applicable legal principles are not in dispute
in this case It is well established that an employer
must provide a union with requested information
if there is a probability that such data is relevant
and will be of use to the union in fulfilling its statu
tory duties and responsibilities as the employees
exclusive bargaining representative Associated
General Contractors of California 242 NLRB 891
893 (1979) enfd 633 F 2d 766 (9th Cir 1980)
NLRB v Acme Industrial Co 385 U S 432 (1967)
The Board uses a liberal discovery type standard
to determine whether information is relevant or
potentially relevant to require its production
NLRB v Truitt Mfg Co 351 U S 149 (1956) In
formation about terms and conditions of employ
ment of employees actually represented by a union
is presumptively relevant and necessary and is re
quired to be produced Ohio Power Co 216 NLRB
987 (1975) enfd 531 F 2d 1381 (6th Cir 1976) In
formation necessary for processing grievances
under a collective bargaining agreement including
that necessary to decide whether to proceed with a
grievance or arbitration must be provided as it
falls within the ambit of the parties duty to bar
gain NLRB v Acme Industrial supra Bickerstaff
Clay Products 266 NLRB 983 (1983)
However when a union s request for information
concerns data about employees or operations other
than those represented by the union or data on fi
nancial sales and other information there is no
presumption that the information is necessary and
relevant to the union s representation of employees
Rather the union is under the burden to establish
the relevance of such information Ohio Power
supra We conclude contrary to the judge that the
Union has not established the relevance of the in
formation requested here
As conceded by union agent Rockwell the
Union s request for information was based solely
on the suspicion of some Culp Creek employees
that work had been transferred to Drain because of
the wage cut there The Union does not contend
nor does the record demonstrate that it had any
objective factual basis for believing such a transfer
had occurred A(lthough claiming a contract viola
tion the Union never indicated to the Respondent
which contract provision was alleged to have been
violated Further there was no pending grievance
or arbitration to which the information request per
tamed Moreover there is no evidence that the
Union raised the subject matter of the information
request during negotiations for a new contract 5 In
all the circumstances here including the absence of
any objective basis for believing unit work was
being diverted the absence of a pending grievance
or arbitration concerning the matter as to which
the information was requested and the fact that
such information has not been shown to have been
relevant to the parties negotiations we conclude
that the Union has failed to establish the relevance
of the information requested 6 Accordingly we
conclude that the Respondent has not violated Sec
non 8(a)(5) of the Act as alleged and we shall dis
miss the complaint
ORDER
The complaint is dismissed
MEMBER DENNIS dissenting
I would find that the Respondent violated Sec
lion 8(a)(5) by refusing to furnish the information
the Union requested
I do not agree with the majority that the Union s
request was based on mere suspicion and that the
Union failed to show relevance In my opinion
there is sufficient circumstantial evidence here to
support the Union s concern that work was being
transferred out of the unit and to warrant efforts to
obtain information about that concern The Union
had previously refused to agree to the Respond
ent s proposed give back of a contract wage in
crease Several months later the Respondent began
a layoff of unit employees in the plywood plant
\
As presented without ' objection by the Respondent at the hearing
neither the Industry settlement agreement nor the final draft copy of the
agreement between the Respondent and the Union contained a work
preservation provision
6 We further find the cases retied on by the judge to be distinguishable
from the present case In Btnswanger Glass Co 245 NLRB 253 (1979)
the Board found the union made a sufficient showing of relevance of re
quested information where it discovered that a truck from a newly
opened facility picked up material at the facility represented by the
union which normally would be used in work covered by the union s
contract and where the union demanded arbitration In National Clean
mg Co 265 NLRB 1352 (1982) enfd 723 F 2d 746 (9th Cm 1984) the
Board found that the union had established the relevance of the requested
information concerning an employer s relationship with other companies
where there were specific indications based on employee complaints that
they were not receiving contract wages or health and welfare benefits
and an employee produced a pay slip showing the name of a company
other than the employer Similarly we note that in Doubarn Sheet Metal
Inc 243 NLRB 821 (1979) Loral Corp 253 NLRB 851 (1978) Design
craft Jewel Industries 254 NLRB 791 (1981) enfd 675 F 2d 493 (2d Cir
1982) and Hawg N Action 268 NLRB 616 (1984) relied on by the judge
the relevance of the information requested by the unions was supported
by objective facts and related to specific contract clauses or pending
grievances or arbitrations
We also disavow the judge s reliance on the fact that the Respondent
provided the requested information to the Region during its investigation
of the charges filed by the Union Contrary to the judge we conclude
that this fact has no bearing in determining the relevancy of the informa
tion
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and shut down the operation for a substantial
period About the same time the Respondent re
duced wages at its unorganized plywood plant 30
miles away The unorganized plant continued to
operate Faced with these facts the Union had
reason to question whether the Respondent had
consolidated all plywood work at the nearby loca
tion The information it requested was needed to
resolve that question and was thus relevant to the
Union s legitimate interest in seeking to recover
lost bargaining unit work
Because the majority is dismissing the complaint
I need not reach the remedy question the Respond
ent raises
DECISION
STATEMENT OF THE CASE
TIMOTHY D NELSON Administrative Law Judge
This case arose when unfair labor practice charges were
filed on May 6 1983 ' against Bohemia Inc (Respond
ent) by International Wood Workers of America Local
Union No 3-246 AFL-CIO (Union) Following an ad
ministrative investigation the Regional Director for
Region 19 of the National Labor Relations Board
(Board) issued a complaint and notice of hearing against
Respondent on July 14
The complaint alleges in substmce that Respondent re
fused to furnish the Union with certain requested infor
mation relevant and necessary to the Union s function as
the exclusive representative of certain of Respondent s
employees and that by so refusing Respondent violated
Section 8(a)(5) of the Act
Respondent duly answered admitting that it is proper
ly subject to the Board s jurisdiction that the Union is
the exclusive representative of certain of its employees
and that it refused to provide the information in contro
versy Respondent denies that the information was rele
vant to the Union s representative function or that it was
otherwise required by law to disclose such information
to the Union
The Union s original unfair labor practice charges had
also included independent allegations under Section
8(a)(5) and (3) respectively that Respondent had divert
ed Culp Creek work to Drain to avoid terms in the labor
agreement at Culp Creek and to punish Culp Creek em
ployees for refusing to grant Respondent s request for
contract Tvebacks These charges did not survive the in
vestigation and were formally dismissed by the Office of
the General Counsel
Respondent concededly furnished to the General
Counsel during the investigation of those charges the
same information which was the subject of the Union s
information request
I heard the matter in trial at Eugene Oregon on No
vembr 29 1983 Appearances were as noted supra The
General Counsel and Respondent thereafter submitted
timely posttnal briefs which I have studied
1 All dates are in 1983 unless otherwise specified
THE ISSUES
The central question is whether Respondent was under
a statutory duty to accede to the Union s request for in
spection for certain company records pertaining to Re
spondent s unionized Culp Creek Oregon plywood plant
and its nonunion plywood plant located nearby at Drain
Oregon under circumstances ‘There the Union s purpose
was to determine whether production work was being
diverted from the Culp Creek to the Drain plant
On the entire record including my observaton of de
meanor of the witnesses and after consideration of the
brief filed by the General Counsel the Company andtthe Union I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent an Oregon corporation operates a saw
mill and plywood plant at Culp Creek Oregon 2 whose
production employees have been represented by the
Union since 1970 During material periods employees in
the Culp Creek operation were covered by a labor
agreement due to expire on May 31 Respondent also
had a nonunion plywood plant at Drain Oregon about
30 miles from Culp Creek
A Background
In 1982 Respondent had sought unsuccessfully to get
the Union s agreement to reduce the amount of a con
tractually mandated wage increase for Culp Creek em
ployees scheduled to occur in June Following that failed
effort Repsondent began a phased layoff in December
1982 of the approximately 180 plywood plant employees
at Culp Creek with the ultimate result that the entire op
eration was shut down for several months The plywood
operation reopened at Culp Creek in July under a new
staffing and wage arrangement sanctioned by a successor
labor agreement to the one which expired on May 31 In
January roughly coincidental with the shutdown at Culp
Creek Respondent had reduced the wages of plywood
plant employees at Drain by 25 percent
The Union s financial secretary busines agent Charles
Rockwell credibly testified that he bagan to receive in
formation from laid off Culp Creek employees that their
work was being transferred from Culp Creek to Drain
Rockwell did not explain how Culp Creek employees
might have reliable information on this point and when
asked a second time about the source of this information
he clarified that the Culp Creek workers had merely ex
pressed a suspicion that their own work had been cur
tailed because of a reduction in wages at the Drain plant
After consulting with counsel and during the period
that the Culp Creek plywood plant was still shut down
the Union per Rockwell sent a written request for infor
mation to Respondent s director of personnel Neil Ham
mond That letter stated in pertinent part
2 In the representative 12 month period before the complaint Issued
Respondent sold and shipped finished products worth more than $50 000
directly to customers located outside Oregon
BOHEMIA INC 1131
I am requesting that you make available for inspec
tion by a representative of this Local Union the fol
lowing information which is necessary for the rep
resentation of our members at the Culp Creek Oper
ation and for enforcement of the contract there
1 Monthly plywood production and sales figures
by product size and grade at the Culp Creek opra
tion and separately at the Drain operation for the
period January 1 1982 to the date of inspection
2 Bimonthly payroll or other original records re
fleeting the number of production and maintenance
work hours allocated to plywood production at the
Culp Creek operation and separately at the Drain
operation for the period January 1 1982 to the date
of inspection
3 Booking order or other records reflecting for
the Culp Creek and Drain operations for the period
January 1 1982 to the date of inspection
a buyer
b employee who took order (including name
job and location)
c description of order — specification and
quantity
d date order placed/commitment made by Bo
hernia
e anticipated delivery date
f where product to be produced
g where product to be delivered
h cancellation of order (and date of action)
i change in location order to be filled or dein/
ered (and date of action)
4 Invoices for shipments of plywood from the
Culp Creek and Drain operations reflecting custom
er specification and quantity and shipment date
5 A list of employees laid off at the Culp Creek
operation on or after April 1 1982 by name togeth
er with the date of layoff date of recall (if any)
and the employer s job classification immediately
prior to layoff
6 All memoranda or other writings produced on
or after January 1 1982 reflecting Bohemia s pro
duction projections for the Culp Creek and Drain
operations
We recognize that some time may be required to as
semble this information However please contact
me no later than 10 days from receipt of this letter
to set a date for inspection and to discus any objec
tion you may have to any portion of the request
Failure to contact me within this time period will
be treated as a refusal to provide any of the item
'zed information
Hammond replied by letter of April 15 in pertinent
part as follows
This will acknowledge receipt of your letter
dated April 5 1983
We have reviewed your request for information
and are unable to find any relevance of the request
ed information to the terms of the labor agreement
between Bohemia Culp Creek and IWA Local 3-
246 other than item #5
We will be willing to meet with you at a conven
lent time and location for you to review Item #5
We are also available to meet with you for the pur
pose of discussing the terms of the labor agreement
between Bohemia Culp Creek and IWA Local 3-
246 and any problems you believe may exist
The Union s attorney wrote to Hammond by letter
dated April 18 in pertinent part as follows
I am writing to confirm our telephone conversa
tion of this morning concerning Junior Rockwell s
Information request of April 5 1983 and your re
sponse to it
I explained to you and to Mr Brislin the basis of
the Union s belief that it is entitled to the informa
tion requested Briefly I stated to you that the
Union believes that the Culp Creek bargaining unit
has been deprived of plywood work in violation of
the labor laws and the collective bargaining agree
ment In other words the Company has entered
into a collective bargaining agreement with the
Union covering the Culp Creek plywood plant
When the employer decided it did not want to pay
the wages established in the agreement it wiped out
the operation We believe that action if it in fact
occurred violated the agreement and the law I fur
ther stated to you that we believe the Union is enti
tled to information necessary to determine whether
or not a diversion of work has occurred in order
that we can protect the work of the members of the
bargaining unit
There have been no other pertinent communications
between Respondent and the Union Respondent contin
ues to insist as in Hammond s April 15 letter that the
Information sought by the Union has no relevence to
the terms of the labor agreement other than the infor
mation sought in item 5 of the Union s request (i e a
listing of Culp Creek employees who were lard off the
dates of each employee s layoff and recall and the pre
layoff job classification of each such employee) The
Union has not acted on Respondent s limited offer to fur
nish item 5 information it being evident that such data
about Culp Creek employees standing alone would be
useless for the Union s declared purpose of determining
whether or not a diversion of work has occurred
At the trial Respondent s agent Hamn ond testified ad
ditionally that the information sought by the Union was
confidential in that it involved the kind of proprietary
information which if known by other plywood manufac
turers would give the latter a competitive edge in secur
ing sales orders from customers served by Respondent
II ANALYSIS AND CONCLUSIONS
An employer s statutory duty to bargain collectively in
good faith with the exclusive union representative of his
employees includes the duty on request to provide rele
vant information needed by the Union for the proper
performance of its representative functions Detroit
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edison Co v NLRB 440 U S 301 303 (1979) See also
NLRB v Acme Industrial Co 385 U S 432 435-436
(1967) and authorities cited Some requests for informa
non—notably those calling for data about terms and con
ditions of employment within the bargaining unit—are
presumed to be relevant and necessary to the union s
representative function and therefore require no particu
lamed justification before an employer must disclose
such data See generally e g Ohio Power Co 216
NLRB 987 991 (1975) enfd 531 F 2d 1381 (6th Cir
1979)
Here however the conntroversial portions of the
Union s information request were those which called for
data pertaining to employment of nonunit (i e Drain
plant) employees and for data about production and sales
at the Drain plant as well as at the Culp Creek plant
Under those circumstances there was no presumption
that the information was needed for the Union s repre
sentation of unit employees rather the Union was under
a burden of explaining somewhat more prescise[ly] the
relevance of such information to its proper function in
representing unit employees at Culp Creek Ohio Power
supra at 991
But the burden on the Union in these circumstances is
not great rather here as elsewhere the standard of rel
evance is the liberal discovery type standard Acme
Industrial Co supra at 437 See also National Cleaning
Co 265 NLRB 1352 (1982) enfd 723 F 2d 746 (9th Or
1984) And the Union made clear at an early stage
through its attorney s letter to Respondent that it de
sired the information in question to determine whether
or not a diversion of work has occurred in order that we
can protect the work of the members of the bargaining
unit
This statement I conclude was sufficient to make the
necessary showing of the relevance of the requested in
formation to matters which properly do concern the
Union as the representative of Culp Creek employees
Diversion or erosion of bargaining unit work is a matter
of obvious concern to a union in its representative role
And the Board has consistently held where there is a
good faith basis for suspicion that a union may seek in
formation bearing on that subject even if it requires out
side the unit data Binswanger Glass Co 245 NLRB
1334 fn 1(1979) Hawg N Action 268 NLRB 616 (1984)
National Cleaning Co supra Doubarn Sheet Metal 243
NLRB 821 (1979) Neither is there any doubt that even
sales and production data must be disclosed where
relevant to a determination whether unit work is being
diverted or lost to other operations of the same employ
er Binswanger Glass supra see also e g Loral Corp
253 NLRB 851 (1978) Designcraft Jewel Industries 254
NLRB 791 (1981) enfd 675 F 2d 493 (2d Or 1982)
Indeed by furnishing the information in dispute to the
General Counsel for the investigation of the independent
8(a)(5) and (1) charges which the Union had filed Re
spondent implicitly acknowledged the relevance of that
information to the question whether—and if so to what
extent—Culp Creek work had been diverted to Drain
And despite the General Counsel s eventual dismissal of
all but the information aspects of the Union s charges
it can hardly be claimed that the Union s initial request
for information was not made in good faith The comb'
nation of phenomena—loss of work at Culp Creek after
the Union s refusal to concede givebacks at that plant
and continuation of work at Drain after employees there
had taken a substantial paycut—were sufficient to ground
a reasonable suspicion that work was being diverted by
Respondent to avoid costs under the Culp Creek union
contract
The real issue ultimately dividing the parties appears
to be whether or not the Union should have indicated to
Respondent with greater specificity how it would use the
data in question before Respondent had any duty to dis
close the same Although Respondent s overall position
is somewhat opaque 3 the thrust of Respondent s particu
lar arguments seems to be that the Union was too vague
about its purpose Here Respondent contends it was not
enough merely for the Union to say (a it did in the ini
tial request) that the information was necessary for the
representation of our members at the Culp Creek oper
anon and for enforcment of the contract there or to
say (as it did in the Union s attorney s followup letter)
that the Union believes that the Culp Creek bargaining
unit has been deprived of plywood work in violation of
the labor laws and the agreement And in making the
contention that this was not enough Respondent stresses
that there was no apparent bar in the union contract
against such suspected diversion of work and therefore
no obvious ground for using the request information to
prove a violation of the agreement 4
Respondent s position ignores that the Union invoked
other purposes in the information requests but more
fundamentally I see no warrant in the authorities for re
quiring disclosure by a union of its precise tactical pur
poses so long as it can be shown that grounds exist for
suspecting that the bargaining unit employees it repre
sents are suffering detriment from possible diversion of
traditional unit work Thus while it is true as the Ninth
Circuit said in Newspaper Guild Local 95 v NLRB 548
F 2d 863 (1977) that the Union must show that the re
quested information is relevant to bargainable issues (id
at 868) this showing is satisfied by a reasonably grounded
claim that bargaining unit work is being diverted
It need not be decided in this case whether the labor
agreement bars Respondent from diverting unit work
elsewhere or permits it to do so At least at the time that
this dispute was ripening there were ampe legal grounds
for the Union to believe that such diversion amounted to
a proscribed unilateral change under Section 8(a)(5) of
the Act more specifically that it would involve a unilat
eral modification of (implied) contractural terms in viola
tion of the provisions of Section 8(d) of the Act Los An
geles Marine Hardware Co 235 NLRB 720 (1978) enfd
On brief Respondent puts it this way
The Employer takes the position that none of the information
sought in the April 5 letter with the exception of paragraph 5 of
that letter [which is not in contention in this case] does not Include
matters that are presumptively relevant and that the Union through
the General Counsel has failed to state a prima facie case which
would entitle it to the information in question
The Union s representative Rockwell conceded that he did not have
any particular contractual provision in mind when he sought the informa
bon
BOHEMIA INC

1133
602 F 2d 1302 (9th Cir 1979) Milwaukee Spring 265
NLRB 206 (1982)
Since this case was tried of 'course the newly consti
tuted Board has redecided Milwaukee Spring and has re
jected the rationale in the original decision and that in
Los Angeles Marine Hardware supra 5 The Board s deci
sion in Milwaukee Spring II does not necessarily imply
however that a union will not have a right to informa
tion about diversion of bargaining unit work unless it can
show to the employer in advance that such diversion
was a contract violation and/or that it would violate the
current labor agreement If that were the necessary hold
ing of Milwaukee Spring II then the orderly processes of
collective bargaining which are the policy goal of the
statutory duty to furnish information 6 might not be well
served For it is difficult to conceive of a more cumber
some process than a requirement that a unoin somehow
demonstrates to an employer s satisfaction that its con
tract—or the nation s labor laws—make certain suspected
work divi_ sion practices unlawful all as a condition to
the union s right to obtain information which would
enable the union to determine whether such diversion
was in fact occurring
Moreover insofar as the Milwaukee Spring II Board
believed that its interpretation of the statute would en
courage greater candor by employers leading to realis
tic and meaningful bargaining about an employer s pro
posed diversion of unit work (id at 603) the Board ap
pears to presume that the types of information at issue
herein will be freely disclosed in the process of such
frank bargaining (iM)
There are ultimately questions for the Board It is suf
ficient here to observe that there was never any real
ground for debate about the relevancy of the disputed
data to the Union s representative function It was shown
to be relevant despite its outside the unit features as
soon as tin. Union revealed that it wisned to determine
whether the employees it represented were being laid off
because of possible work diversion practices which could
be detected through examination of the requested infor
mation To require any more particularized showing for
e ample identification by the Union of the precise legal
purpose to which might put the requested data would be
to impose a burden well beyond that liberal discovery
type standard Acme Industrial supra
Finally and if it be otherwise determined somehow
that the Union was not entitled to that information
during the term of the labor agreement 7 it must be re
called that the Union s contract with Respondent was
due to expire in less than 2 months from the point it
made its request for data Under these circumstances the
information would have been clearly relevant to subjects
which would be bargainable wi hin the meaning of
Newspaper Guild supra within the framework of negoti
5 See 268 NLRB 601 (1984) hereafter called Vlil aukcc Spring II
6 See generally Morris The Developing Labor Law (2d Ed ) Vol II at
606 607
I here anticipate a refinement of Respondent s current somewhat in
conclusive arguments in the light of the Board s decision in Milwaukee
Spring II
ations for a successor labor agreement 8 No one contends
that the Union could not have sought to negotiate in
such contract bargaining exactly the kind of work pres
ervation clause which was since the issuance of Mil
waukee Spring II assumed critical significance to unions
who wish to avoid the phenomenon of diversion of unit
work by an employer to another of his plants
Accordingly where as here the Union s request was
timed to enable it to prepare for bargaining for a con
tract to replace the one which was about to expire Re
spondent was not privileged to withhold the information
simply because Respondent did not detect any possible
theory under the current contract on which the Union
might challenge any work diversion practices which Re
spondent might be engaging in
Finally and despite the testimony of its agent Ham
mond that Respondent was concerned about the confi
dentiality of the data which the Union sought Re
spondent does not appear to contend on brief that this
concern rises to the level of a statutory defense As the
General Counsel correctly notes Respondent never in
yoked this concern at the time it refused to furnish the
information neither was there any showing that the
Union would have refused to negotiate in good faith
over alternative means of getting at the diversion ques
tion without requiring disclosure of sensitive sales and
production data Accordingly without deciding whether
the balancing principles of Detroit Edison (supra at
318-320) might properly be applied herein to resolve any
debate over the precise form in which the information
must be disclosed I conclude that Respondent violated
Section 8(a)(5) and (1) of the Act when it refused entire
ly to furnish the kinds of comparative data which the
union legitimately needed to determine whether Culp
Creek bargaining unit work was being diverted
On the foregoing I reach these ultimate
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 At all times material herein the Union has been and
is the exclusive collective bargaining representative of
Respondent s emplyees at its sawmill and plywood oper
ation at Culp Creek Oregon excluding office clerical
employees professional employees guards and supervi
sors as defined in the Act
4 By failing and refusing since April 15 1983 to fur
nish the Union with certain information identified in the
Union s letter to Respondent dated April 5 1983 Re
spondent has failed to bargain collectively in good faith
with the Union at d thereby has engaged in and is engag
mg in unfair labor practices within the meaning of Sec
tion 8(a)(5) and (1) of the Act
The Union s agent Rockwell credibly testified inter alia that the
Union wished to know for such future bargaining purposes as well as
whether Respondent had been diverting Culp Creek work to the Drain
plant
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has violated the Act as
alleged Respondent should cease and desist therefrom
and should immediately furnish to the Union the infor
motion which it unlawfully withheld It should also post
an appropriate remedial notice to employees
[Recommended Order omitted from publication ]
e