Bud Antle, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 2013

359 N.L.R.B. 1257 (N.L.R.B. 2013)

BUD ANTLE, INC. 1257

359 NLRB No. 140
Bud Antle, Inc. and Teamsters Local Union No. 890,
International Brotherhood of Teamsters. Case
32–CA–078166
June 26, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On January 16, 2013, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Acting
General Counsel, the Respondent, and the Charging Par-
ty each filed exceptions. The Respondent and the Charg-
ing Party also filed supporting briefs and the Charging
Party filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,

find-
ings,
1
and conclusions, to amend the remedy, and to
adopt the recommended Order as modified and set forth
in full below.
2

1 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by failing to provide information requested by the Un-
ion regarding subcontracting, we find that the Union established the
relevance of this information under the legal standard set forth in Dis-
neyland Park, 350 NLRB 1256, 1257–1258 (2007):
[W]here the information requested by the union is not presumptively
relevant to the union’s performance as bargaining representative, the
burden is on the union to demonstrate the relevance. A union has sat-
isfied its burden when it demonstrates a reasonable belief, supported
by objective evidence, that the requested information is relevant.
Information about subcontracting agreements . . . is not pre-
sumptively relevant. Therefore, a union seeking such information
must demonstrate its relevance.
The Board uses a broad, discovery-type standard in deter-
mining the relevance of requested information. Potential or prob-
able relevance is sufficient to give rise to an employer’s obliga-
tion to provide information. To demonstrate relevance, the Gen-
eral Counsel must present evidence either (1) that the union
demonstrated relevance of the nonunit information, or (2) that the
relevance of the information should have been apparent to the Re-
spondent under the circumstances.
[Footnotes and citations omitted.] We do not rely here on Disneyland
Park’s application of this standard to the facts of that case.
2 We shall amend the remedy and modify the judge’s recommended
Order to conform to the Board’s standard remedial language, and as
follows. We shall include the Respondent’s Yuma, Arizona location as
a notice-posting location. We shall require the Respondent to mail
notices to all current and former employees employed by the Respond-
ent at any time from the onset of the unfair labor practices until the date
the notices are mailed. See Graphic Communications Workers Local
735-S (Quebecor Printing), 330 NLRB 32, 35–36 (1999). This group
is the appropriate one to receive a mailing where, as here, mailing is
ordered on the ground that posting alone will not adequately communi-
cate the notice to employees. We shall also add a notice-reading re-
quirement, for the reasons discussed in the “Amended Remedy” sec-
tion. We otherwise deny the Union’s request for special remedies. We
shall substitute a new notice to conform to the Order as modified.
AMENDED REMEDY
Typically, the Board orders a respondent employer to
post the remedial notice at places in its facility where
notices to employees are customarily posted. In accord-
ance with J. Picini Flooring, 356 NLRB 11 (2010), the
Board additionally orders distribution of the notice elec-
tronically if the respondent customarily communicates
with its employees by such means. Here, the judge addi-
tionally recommended that the notice be mailed to em-
ployees because “the work force moves from place to
place harvesting various crops throughout the year.” No
party disputes this finding, and we agree with the judge
that notice-mailing is appropriate here. Because the Re-
spondent does not maintain any facilities to which all
unit employees report, notice-posting alone is insuffi-
cient to ensure that employees will see the notice, as the
judge found. See Chino Valley Medical Center, 359
NLRB 980, 981 fn. 4 (2013).
The Charging Party further requested that the notice be
read to employees when they gather at the start of the
harvest at each location for the reading of the seniority
list. The judge denied this request, finding that the rem-
edies ordered “fully remedy the violations.” We disagree
with the judge and find merit in the Charging Party’s
request. Unit employees harvest crops in Oxnard, Huron,
and Salinas Valley, California, at various locations in
California’s Imperial Valley, and in Yuma, Arizona.
These harvests take place at different times of the year,
and unit employees move from place to place harvesting
crops throughout the year at the Respondent’s various far
flung harvesting locations.
3
Although mailing the notice
to each employee’s last known address will increase the
likelihood that employees will see it, many unit employ-
ees may not reside at that address at the time the notices
are mailed. Unit employees do, however, gather as a
group for the reading of the seniority list at each harvest-
ing location.
4
Ordering that the notice be read aloud at
those gatherings is consistent with the Respondent’s es-
tablished method of communicating with employees, and
we find that it is necessary to effectuate the policies of
the Act because the notice cannot otherwise be “ade-

3 We take administrative notice that Salinas, California, is approxi-
mately 257 and 574 miles from Oxnard, California and Yuma, Arizona,
respectively. These distances are taken from Google Maps, a source
“whose accuracy cannot reasonably be questioned,” Fed.R.Evid.
201(b)(2), at least for determining approximate distances. See McCor-
mack v. Hiedeman, 694 F.3d 1004, 1008 fn. 1 (9th Cir. 2012); Rind-
fleisch v. Gentiva Health Systems, Inc., 752 F.Supp. 2d 246, 259 fn. 13
(E.D.N.Y. 2010), and cases cited there.
4 Experienced employees bid on crew assignments by seniority; this
process is referred to as the “reading of the seniority list.” The record
shows that applicants also appear at these gatherings to obtain work.
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

quately communicated” to employees. J. Picini Floor-
ing, above, slip op. at 2.
ORDER
The National Labor Relations Board orders that the
Respondent, Bud Antle, Inc., Salinas Valley, Oxnard,
Huron, and Imperial Valley, California, and Yuma, Ari-
zona, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Refusing to bargain collectively with Teamsters
Local Union No. 890 (the Union) by failing and refusing
to furnish it with requested information that is relevant
and necessary to the Union’s performance of its func-
tions as the collective-bargaining representative of the
Respondent’s unit employees.
(b) Failing and refusing to provide the Union with the
information described in the Union’s February 17 and
March 12, 26, and 29, 2012 written requests.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in 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) Furnish to the Union in a timely manner the infor-
mation requested by the Union on February 17 and
March 12, 26, and 29, 2012.
(b) Within 14 days after service by the Region, post at
its facilities in Salinas Valley, Oxnard, and Huron, Cali-
fornia, in California’s Imperial Valley, and in Yuma,
Arizona, copies of the attached notice marked “Appen-
dix” in both English and Spanish.
5
Copies of the notice,
on forms provided by the Regional Director for Region
32, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, after being signed by
the Respondent’s authorized representative, copies of the

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted and Mailed by Order
of the National Labor Relations Board” shall read “Posted and Mailed
Pursuant to a Judgment of the United States Court of Appeals Enforc-
ing an Order of the National Labor Relations Board.”
attached notice marked “Appendix” in both English and
Spanish to all current and former employees employed
by the Respondent at any time from February 23, 2012,
until the date the notices are mailed.
(d) At the next scheduled reading of the seniority list at
the Respondent’s harvesting locations in Salinas Valley,
Oxnard, and Huron, California, in California’s Imperial
Valley, and in Yuma, Arizona, read aloud, in English and
Spanish, the attached notice to the unit employees. The
notice shall be read by a responsible management official
or by a Board agent in the presence of a responsible
management official.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED AND MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post, mail, 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to bargain collectively
with Teamsters Local Union No. 890 (the Union) by fail-
ing and refusing to furnish it with requested information
that is relevant and necessary to the Union’s performance
of its functions as the collective-bargaining representa-
tive of our unit employees.
WE WILL NOT fail and refuse to provide the Union with
the information described in the Union’s February 17 and
March 12, 26, and 29, 2012 written requests.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on February 17 and
March 12, 26, and 29, 2012.
BUD ANTLE, INC.

BUD ANTLE, INC. 1259

Gabriela Teodorescu Alvaro, for the General Counsel.
David N. Buffington, for the Respondent.
David A. Rosenfeld and Sarah Wright-Schreiberg, for the
Charging Party.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. This
case involves allegations that Bud Antle, Inc. (Respondent)
violated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act1) by failing to provide information that was re-
quested by Teamsters Local Union No. 890, International
Brotherhood of Teamsters (the Union) in order to process
grievances.2 Respondent asserts in its answer to the complaint
that the information is not necessary for and relevant to the
Union’s performance of its duties as the exclusive representa-
tive of Respondent’s employees, that the information requested
is protected by attorney-client or work product privilege, that
the requests were overly broad, and that the requested infor-
mation is protected by confidential trade secret, proprietary
information, and third-party privacy concerns. The hearing was
held in Oakland, California on November 20, 2012.3
On the entire record, including my observation of the de-
meanor of the witnesses,4 and after considering the briefs filed
by counsel for the Acting General Counsel, counsel for the
Charging Party, and counsel for the Respondent, I make the
following.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a wholly owned subsidiary of Dole Fresh Vege-
tables, Inc., is a California corporation engaged in harvesting
and processing of vegetables at various facilities located in
Salinas Valley, Oxnard, Huron, and Imperial Valley, Califor-
nia. In conducting its operations during 2011, Respondent sold
and shipped from its California facilities goods valued in excess
of $50,000 directly to points outside the State of California.
Respondent also sold and shipped from its California facilities
goods valued in excess of $50,000 directly to enterprises inside
the State of California who are directly engaged in interstate
commerce. For purposes of this proceeding, Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent also admits, and I find, that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.

1 The National Labor Relations Act, as amended (the Act), 29 U.S.C.
Sec. 158(a)(1) and (5).
2 The underlying unfair labor practice charge was filed by the Union
on April 4, 2012. Complaint and notice of hearing issued on August 14,
2012.
3 All dates are in 2012, unless otherwise referenced.
4 Credibility resolutions have been made based on a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
II. BARGAINING RELATIONSHIP5
The parties have had a collective-bargaining relationship for
about 50 years6 and have entered into successive contracts over
the years. The most recent contract is the 2011–2014 Master
Agricultural collective-bargaining agreement (the CBA) in
effect during all times relevant to this proceeding. The parties
agree that article I, section 1.2, “Scope of Union Recognition,”
sets forth the unit description which is appropriate for the pur-
poses of collective bargaining. The CBA covers a non-
agricultural7 unit of all employees involved in harvesting head
lettuce, broccoli, cauliflower, and celery. The contractual unit
description is as follows:

[Respondent] recognizes the Union and only the Union as the
exclusive Collective-Bargaining representative for a single
bargaining unit of all employees of [Respondent] covered by
Agricultural Labor Relations Board Certification No. 75–RC–
19-M and the order of the National Labor Relations Board in
Case No. 32–UC–263, plus employees engaged in similar
functions in Arizona and California, excluding employees of
all vacuum-cooling plants. The terms of this contract do not
extend to office and sales employees, security guards, or pro-
fessional or supervisory employees as such job classifications
are defined and interpreted under the Labor-Management Re-
lations Act, as amended. The Union may service this contract
with its own full-time employees without the prior written
consent of [Respondent].

At all times relevant, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining representa-
tive of unit employees. In addition to the CBA, the parties also
entered into a May 5, 2000 Letter of Understanding (LOU)
regarding subcontracting of bargaining unit work during har-
vest operations. Specifically, paragraph 2 of the LOU provides:

[Respondent] shall not utilize subcontractors, including labor
contractors, to perform bargaining unit work in harvest opera-
tions until it has first called the seniority list at the beginning
of the season in accordance with current practice, has placed
all returning seniority employees who respond to the call in
accordance with [the CBA] in a Company crew and has made
a bona fide effort to hire new employees. Such subcontractors
may not be utilized in harvesting operations where harvesting
employees are laid off, including discontinued operations
from which harvesting employees were laid off. [Respondent]
shall use its best efforts to assign harvesting work so that sub-
contractors do not work longer hours than [Respondent]
crews.

5 The allegations regarding the parties’ bargaining relationships were
admitted at hearing for purposes of this proceeding only.
6 Union Representative and Vice president Fritz Conle testified
without contradiction that the Union has represented Respondent’s
employees since the late 1950s. He estimated the parties have executed
about 20 collective-bargaining agreements.
7 Administrative notice is taken of Case 32–UC–263 (1992) incorpo-
rated in the unit description holding, inter alia, that Respondent’s field
harvesting employees are not agricultural employees because a regular
portion of their work effort is directed towards harvest and harvest
support for crops of a grower other than their employer.
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Timeliness—Section 10(b) of the Act
Before turning to the merits of this case, it is necessary to
address Respondent’s argument that the Board lacks jurisdic-
tion to hear it. Section 10(b) of the Act provides that “no com-
plaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge . . . .”
Respondent argues that the complaint alleging failure to pro-
vide information bears “no relevant relationship or causal con-
nection” to the April 4 unfair labor practice charge which un-
derlies issuance of the complaint. The charge claims that Re-
spondent violated Section 8(a)(1) and (5) of the Act as follows:

Since on or about February 19, 2012, the employer has failed
and refused to provide the Union with information necessary
and relevant to collective bargaining.

Since on or about February 19, 2012, the employer has failed
and refused to provide the Union with information relevant to
the subcontracting of bargaining unit work.

Since on or about March 19, 2012, the employer has failed
and refused to provide the Union with information relevant to
a new operation located in Gonzales, California, which may
displace bargaining unit workers, and may provide work op-
portunities to bargaining unit members currently on lay-off.

All parties agree that the third paragraph above regarding
Gonzales, California, bears no relation to the case before me.
Thus, the first two paragraphs must be considered as the basis
for issuance of complaint. The literal reading of these two para-
graphs describes the allegations contained in paragraph 7 of the
complaint8 and I find there is no basis for challenge of that
portion of the complaint.
Complaint paragraphs 8, 9, and 10 set forth the alleged re-
fusals to provide information on March 12 (par. 8), March 26
(par. 9), and March 30 (par. 10). It has long been recognized
that “the Board is not precluded from dealing adequately with
unfair labor practices which are related to those alleged in the
charge and which grow out of them while the proceeding is
pending before the Board.” NLRB v. Fant Milling Co., 360 U.S.
301, 308–309 (1959). In order for the complaint allegations in
paragraphs 8, 9, and 10 to be supported by the charge language,
it is necessary to show that these allegations are “closely relat-
ed.” Carney Hospital, 350 NLRB 627, 628–629 (2007), incor-
porating and clarifying the factors enunciated in Redd-I, 290
NLRB 1115, 1118 (1999), enf. denied in relevant part 235 F.3d
669 (D.C. Cir. 2001), paraphrased as follows:

(1) The common legal theory prong: whether the otherwise
untimely allegations involve the same legal theory as the alle-
gations in the timely charge;
(2) The chain or progression of events prong: whether the two
sets of allegations demonstrate similar conduct during the
same time period with a similar object or there is a causal
nexus between the allegations; and

(3) The common defense prong: whether a respondent would
raise the same or similar defenses to both the untimely and

8 Although the actual date of the first information request was Feb-
ruary 17, the date in the charge, February 19, is not materially different.
timely charge allegations.

Examination of the factors clearly illustrates that the allega-
tions of paragraphs 8, 9, and 10 are closely related to the allega-
tions in the underlying unfair labor practice charge: refusal to
provide information on February 19. Thus, the complaint alle-
gations in paragraphs 7, 8, 9, and 10 involve alleged refusal to
furnish information—the same legal theory set forth in the un-
derlying unfair labor practice charge; all of the allegations arise
from the 2012 spring harvesting hiring process and are related
to the Union’s concern regarding subcontracting during the
2012 spring harvesting; and, Respondent has raised the identi-
cal defenses to these allegations. Thus, I find that the allega-
tions in paragraphs 8, 9, and 10 are closely related to those in
the underlying charge and the allegations in paragraph 7 are
identical to the allegations in the charge. Thus, I find jurisdic-
tion to consider the complaint allegations.
III. INFORMATION REQUESTS
The General Counsel and the Union contend that the infor-
mation requested9 deals with subcontracting of bargaining unit
work. Respondent, on the other hand, asserts that two of the
four information requests relate only to individual grievances
for failure to hire and the information is irrelevant to those
grievances because the individuals were discharged for cause
prior to their making the applications leading to the grievances.
Thus, subcontracting information has nothing to do with
whether the individuals named in the grievances were qualified
applicants. Additionally, Respondent asserts that the infor-
mation sought was confidential trade secret and proprietary
information relating to volume, protected by attorney-client
privilege, and attorney work product doctrine, and that produc-
ing it would violate third-party privacy rights.
Endorsing a liberal “discovery-type standard,” the Supreme
Court held in NLRB v. Acme Industrial Co., 385 U.S. 432, 437,
438 (1967), that an employer is obligated to furnish information
pertaining to grievances during the term of the collective-
bargaining agreement. An employer’s refusal to supply such
information is a violation of the duty to bargain in good faith.
Curtiss-Wright, 145 NLRB 152, 156–157 (1963), enfd. 347
F.2d 61 (3d Cir. 1965). A request for information regarding
bargaining unit employees’ terms and conditions of employ-
ment is “presumptively relevant” to a union’s collective-
bargaining duties. Southern California Gas Co., 342 NLRB
613, 614 (2004). A request for information regarding matters
outside the bargaining unit, such as information about subcon-
tracting, is not considered presumptively relevant and thus the
relevance is required to be established somewhat more precise-
ly. Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531
F.2d 1381 (6th Cir. 1976). Thus, the standard for determining
the duty to provide such information has been described as
follows:

When [a] union asks for information which is not presump-
tively relevant, the showing by the union must be more than a

9 All references to requested information relate to the information set
forth in the complaint. The Union’s actual information requests contain
additional requests which are not included in the complaint.
BUD ANTLE, INC. 1261

mere concoction of some general theory which explains how
the information would be useful to the union in determining if
the employer has committed some unknown contract viola-
tion . . . . Conversely, however, to require an initial, burden-
some showing by the union before it can gain access to in-
formation which is necessary for it to determine if a violation
has occurred defeats the very purpose of the “liberal discovery
standard” of relevance which is to be used. Balancing these
two conflicting propositions, the solution is to require some
initial, but not overwhelming, demonstration by the union that
some violation is or has been taking place.

San Diego Newspaper Guild Local 95 v. NLRB, 548 F.2d
863, 868 (9th Cir. 1977). Although the burden “is not an excep-
tionally heavy one,” it does require a showing of probability
that the desired information is relevant and . . . would be of use
to the union in carrying out its statutory duties and responsibili-
ties. Saginaw Control & Engineering, Inc., 339 NLRB 541
(2003).
Finally,

[I]n assessing the relevance of the information, the Board
does not pass on the merits of the union’s claim that the em-
ployer breached the collective-bargaining contract . . . thus,
the union need not demonstrate that the contract has been vio-
lated in order to obtain the desired information.

Island Creek Coal Co., 292 NLRB 480, 487 (1989).

A. February 17 Request
On February 17, 2012, Juan Heredia, described as an experi-
enced celery harvester and former employee of Respondent,
who claimed to be ready and available to work in the Oxnard
area, filed a grievance alleging that Respondent used Farm
Labor Contract crews instead of hiring him. Union Representa-
tive and Vice President Conle himself was aware that there
were numerous farm labor contractor crews engaged in harvest-
ing celery in the Oxnard area. The grievance claimed that fail-
ure to hire Heredia violated article II, section 2.3 (nondiscrimi-
nation), article IX, section 9.9 (provisions relating to grievances
including compensation and discrimination), article XIII (sub-
contracting is allowed but will not be used “for the purpose of
subverting the bargaining unit”), and the LOU. On the griev-
ance form in the space reserved for information requested, Con-
le, on behalf of the Union, requested on February 17 and again
on February 29, that Respondent furnish, inter alia, the follow-
ing information for the weeks of November 6, 2011, through
February 19, 2012, “in order to determine whether contractors
are performing bargaining unit work, and under what condi-
tions, and how they are being scheduled”:10

1. Hours worked each day by each labor contractor or “cus-
tom harvesters” crew engaged in harvesting celery under the
Dole label.

2. Number and type of boxes harvested each day by each la-

10 Other documents were requested in the grievance of February 17.
However, the documents listed above are the ones at issue in this litiga-
tion. Complaint was not issued regarding the remaining information
requested.
bor contractor or “custom harvester” crew engaged in harvest-
ing celery under the Dole label.

3. Copies of all contracts between Bud of California . . . and
each and every labor contractor or “custom harvester” or other
entity engaged in harvesting fresh vegetables under the Dole
label or for Dole Fresh Vegetables or performing any other
bargaining unit work.

4. A list of the blocks where non-Bud of California employees
harvested Dole label produce in November and December
2011, and January and February 2012.

5. A list of the farmers for whom non-Bud of California em-
ployees harvested Dole label produce in November and De-
cember 2011, and January and February 2012, and the crews
assigned to each farmer.

6. Copies of all applications for work submitted to Bud of
California and/or Dole Fresh Vegetables and/or other Dole re-
lated entities involved in harvesting in the Oxnard area from
October 1, 2011 to date.

Conle explained that he asked for the number of hours
worked by each labor contractor in order to determine how
much contracting out of bargaining unit work was occurring.
He asked about the number and type of boxes because there are
different hourly and/or piece rates by the box and different
piece rates for different types of boxes. This information would
illustrate the extent of subcontracting and whether subcontrac-
tor crews were being assigned more remunerative, better-
paying boxes. Conle explained that the Union required copies
of contracts between Respondent and labor contractors, custom
harvesters, or other entities engaged in harvesting celery in
order to determine if subcontractors were custom harvesters or
whether the subcontractors were contracted by the farmers
rather than Respondent. Conle explained that the Union re-
quired a list of farmers for whom non-Respondent employees
harvested and the crews assigned to each farmer because Re-
spondent harvests on some fields owned and controlled by in-
dividual farmers.
As to “blocks” information, Conle explained that “blocks”
refers to the fields where the actual work is performed. He and
other union representatives had observed labor contractor crews
working in the same field on the same day or on successive
days as bargaining unit employees. The request for a list of
blocks where nonunit employees harvested and the crews as-
signed to each farmer would indicate who is utilizing subcon-
tracting and how much subcontracting is being used. Similarly,
the Union requested a list of farmers who utilized nonunit em-
ployees and the crews assigned to each farmer in order to dis-
cover which entities were using subcontractors and where. The
Union requested harvesting applications in the Oxnard area
from October 1, 2011, to date in order to determine how many
individuals applied for work and which applicants were turned
down, in order to discern whether Respondent was making a
bona fide effort to recruit employees consistent with the terms
of the LOU.
Liborio Rodriguez, Respondent’s labor relations manager,
replied by letter of February 23 stating that the grievance
lacked merit. An employment termination document for job
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

abandonment for Heredia dated May 6, 2010, was attached. As
to the information request, Respondent stated that the infor-
mation was not relevant to “this case” and, further, that the
information was “considered Dole’s operational business deci-
sion”—not subject to disclosure. Rodriguez further asserted
that Respondent was in full compliance with the subcontracting
provisions of the parties’ agreements. The Union’s email of
February 29 noted that Heredia denied driving in an unsafe
manner and also stated that he did not receive any warn-
ing/termination letter. The email concluded, “Furthermore, in
order to determine if the [Respondent] in its celery operations is
in violation of the contract provisions . . . and the LOU . . . the
Union will need all of the information requested in the original
grievance.” Rodriguez responded to the email stating that he
would formally reply by letter. However, no letter was sent. To
date, the Union has not received the requested information nor
has it received a request for any type of accommodation or
confidentiality agreement regarding the requests or a request
for explanation of the relevance. Rodriguez agreed that he had
not provided any of the information requested because, “I
didn’t see any relevance to [the Juan Heredia] case.”
March 12 Request
On March 12,11 pursuant to a grievance filed by the Union
on behalf of all Bud of California Yuma cauliflower crews
claiming that Respondent sent home its cauliflower crews
around 3 p.m. on Friday, March 9, and Monday, March 12
while the labor contractor and/or “custom harvester” crews
worked more hours in violation of article VII, section 7.6 (job
assignments), article II, section 2.3 (nondiscrimination) and
article 13 (subcontracting) of the CBA “and understandings
between the parties,” the Union requested, inter alia,12 the fol-
lowing information for the weeks ending March 10 and 17:

1. Hours worked each day by each labor contractor or “cus-
tom-harvester” crew engaged in harvesting Cauliflower under
the Dole label.

2. Number and type of boxes harvested each day by each la-
bor contractor or “custom harvester” crew engaged in harvest-
ing Cauliflower under the Dole label.

3. Copies of all contracts between Bud of California “and
each and every farmer, grower, partner, corporation, labor
contractor or “custom harvester” or other entity engaged in
harvesting Cauliflower under the Dole label or for Dole Fresh
Vegetables.”

4. A list of the blocks where non-Bud of California employees
harvested Dole label produce during the Yuma/Imperial Val-
ley 2011/2012 Harvesting season.

5. A list of the Farmers for whom non-Bud of California em-
ployees harvested Dole label produce during the Yu-

11 Although the date on this request shows as “March, 12, 2011,” all
parties agree that it was actually March 12, 2012.
12 Other information was requested by the Union pursuant to the
March 4 grievance. However, complaint was not issued with regard to
the other information. The information set forth above is the only in-
formation at issue regarding the March 4 grievance.
ma/Imperial Valley 2011/2012 Harvesting season, and the
crews assigned to each farmer.

Conle explained that the Union had received information that
on 2 different days, labor contractor crews worked more hours
than the bargaining unit crews. The Union requested all of the
above information in order to determine whether contractors
were performing bargaining unit work. The hours worked each
day by each labor contractor or custom harvester crew was
requested to determine to what extent bargaining unit work was
being subcontracted. The number and type of boxes harvested
each day was necessary in order to determine how much sub-
contracting was occurring. This information is different than
the hours worked because the harvesters are paid either on an
hourly basis or by the box. The contracts between Respondent
and labor contractors or custom harvesters would indicate
whether subcontracting was occurring and the list of blocks
would tell the Union what fields unit employees were working
and what fields subcontractors were working. The list of farm-
ers for whom nonunit employees harvested and the crews as-
signed to each farmer would enable the Union to determine
whether subcontracting was going on in Respondent controlled
field and which crews were working in the fields.
Respondent replied on March 30 stating that Respondent was
not in violation of the subcontracting agreement of the parties
and further stating, “In regards to your request for information,
please understand that Company operation business decision
and information are not subject to disclosure.” The Union re-
sponded on April 4 reasserting that the subcontracting provi-
sions of the contract were being violated and stating that the
Union needed all of the information requested in the grievance.
Conle testified that the information has never been provided
and that Respondent did not request any type of accommoda-
tion or explanation of relevance with respect to the information
requested nor did Respondent have any further communication
with the Union about the information. Rodriguez agreed that he
had not provided the information testifying that the grievance
was open and pending and still needed to be discussed with the
Union.
March 26 Request
Union Vice President Conle had observed nonbargaining
unit crews and Respondent crews working in the same areas
performing bargaining unit work. The Union filed a grievance
on March 26 on behalf of Pedro De Anda, a lettuce cutter,
claiming that Respondent failed and refused to hire De Anda,
an experience lettuce harvester ready and available for work in
the Huron and Salinas areas, and instead hired additional har-
vest employees using Farm Labor Contractor crews. The Union
claimed that Respondent violated article II, section 2.3, article
IX, section 9.9 (Compensation and Discrimination), article XIII
(Subcontracting), and the LOU. The grievance requested, inter
alia,13

1. Hours worked each day by each labor contractor or “cus-

13 Numerous other documents were requested. The documents listed
above are the ones at issue in this litigation. Complaint was not issued
regarding the remaining information requests.

BUD ANTLE, INC. 1263

tom-harvester” crew engaged in harvesting head lettuce under
the Dole label.

2. Number and type of boxes harvested each day by each la-
bor contractor or “custom harvester” crew engaged in harvest-
ing head lettuce under the Dole label.

3. Copies of all contracts between Bud of California “and
each and every farmer, grower, partner, corporation, labor
contractor or “custom harvester” or other entity engaged in
harvesting head lettuce under the Dole label or for Dole Fresh
Vegetables.

4. A list of the blocks where non-Bud of California employees
harvested Dole label produce during March 2012.

5. A list of the farmers for whom non-Bud of California em-
ployees harvested Dole label produce in March 2012, and the
crews assigned to each farmer.

6. Copies of all applications for work submitted to Bud of
California and/or Dole Fresh Vegetables and/or other Dole re-
lated entities involved in harvesting in the Huron and Salinas
areas, from March 1, 2012 to date.

Conle explained that the Union requested the information for
the period from March 17 to date in order to determine whether
contractors are performing bargaining unit work and, if so,
under what conditions. The Union requested information about
hours worked each day by each labor contractor or custom
harvester and boxes harvested each day by each labor contrac-
tor or custom harvester in order to determine the extent of sub-
contracting, whether hourly paid or piece rate. Contracts of
labor contractors and custom harvesters were necessary to de-
termine working conditions, scheduling and other terms and
conditions of subcontracting. The Union requested a list of the
blocks where nonunit employees harvested because Conle had
seen unit crews as well as contractor crews in the same areas.
The list of the blocks would confirm his visual observations
and show whether subcontracting occurred in those fields. The
list of farmers who used contract crews would indicate whether
individual farmers were using subcontractors or whether Re-
spondent was using subcontractors. The applications for work
would indicate whether any other individuals were denied work
while subcontractors were being utilized.
On March 30, Respondent denied the Union’s information
request stating that the information requested was considered
Dole’s operational business decision and thus not subject to
disclosure. Respondent asserted that it was fully compliant with
subcontracting provisions and also noted that De Anda was
terminated in January for job abandonment. The Union re-
sponded on April 4 reasserting its need for the information and
stating that De Anda had not been terminated. Conle testified
that the Union had not received the requested information ex-
cept for a list of employees actually hired, for a 1-month period,
which partially responded but did not completely respond to
item 6 above. Conle further testified that the Union had not
been contacted by Respondent for any accommodation regard-
ing the information requested. Rodriguez testified that he did
not provide the information because it was not related to the
January termination of De Anda. He did not ask the Union to
explain the relevance of the information. Rodriguez further
testified that although his letter of March 30 stated that he
would refer the information request to legal counsel, he had in
fact not done so.
March 29 Request
On March 29, Conle filed a grievance on behalf of all “ap-
plicants, Local 890” grieving failure to hire unit applicants in
the celery harvesting, lettuce harvesting, broccoli harvesting,
cauliflower harvesting, greenhouse and transplant operations,
and field haul trucking. The grievance claimed that instead of
hiring unit employees, Respondent used Farm Labor Contractor
crews and FLC employees in violation of article II, section 2.3
(Non-discrimination), article XIII (Subcontracting), and the
LOU. Conle had personally observed bargaining unit crews and
contractor crews working in the same celery fields in Oxnard
and Salinas and lettuce fields in Salinas and Huron and be-
lieved that those fields were controlled by Dole. Other union
agents had observed the same thing in other areas. The Union
was aware that about 150 former unit employees were referred
to Respondent to apply for work. Many of them reported back
that they were denied work. Conle was also concerned that the
Huron recall of unit employees was handled badly14 and might
constitute a failure to make a bona fide effort to rehire. Among
the documents requested pursuant to this grievance are the fol-
lowing complaint documents:15

1. Hours worked each day by each labor contractor or “cus-
tom-harvester” crew engaged in harvesting fresh vegetables
under the Dole label or performing other bargaining unit
work.

2. Number and type of boxes harvested each day by each la-
bor contractor or “custom harvester” crew engaged in harvest-
ing fresh vegetables under the Dole label.

3. Copies of all contracts between Bud of California . . . and
each and every farmer, grower, partner, corporation, labor
contractor or “custom harvester” or other entity engaged in
harvesting fresh vegetables under the Dole label or for Dole
Fresh Vegetables, or performing any other bargaining unit
work.

4. A list of the blocks where non-Bud of California employ-
ees harvested Dole label produce in November and December
2011, and January, February, and March 2012.

5. A list of the farmers for whom non-Bud of California em-
ployees harvested Dole label produce in November and De-
cember 2011, and January, February, and March 2012 and the
crews assigned to each farmer.

6. Copies of all applications for work submitted to Bud of

14 According to Conle, Respondent advised employees to call a
phone number for recall information. The recording on this phone was
from last year and did not provide recall information for the current
year. Further, the reading of the seniority list, by which employees
select their supervisor and position, was delayed.
15 Numerous other documents were requested. The documents listed
above are the ones at issue in this litigation. Complaint was not issued
regarding the remaining information requests.

1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

California and/or Dole Fresh Vegetables and/or other Dole re-
lated entities involved in harvesting fresh vegetables under the
Dole label or performing other bargaining unit work, from
October 1, 2011 to date.

7. Copies of any logs, memos, or notes listing applicants
maintained by any Bud of California supervisors or office
personnel.

Conle explained that the information requested was specifi-
cally limited to the period November 6, 2011, through the end
of March 2012, so that the Union could determine whether
contractors were performing bargaining unit work and, if so,
under what conditions and how it was being scheduled. Conle
explained that the Union told about 150 individuals to apply for
work with Respondent and many of them reported back that
they were denied work. Conle also noted that the reading of the
seniority list, which allows employees to choose their crew and
machine in order of seniority, in Huron was delayed. In Conle’s
view, delay in reading the seniority list meant that employees
went elsewhere in order to guarantee immediate employment
for the short lettuce season. This, in turn, would result in more
subcontracting.
As with the other requests, Conle explained that the hours
worked and the number and type of boxes information requests
were geared to determining how much subcontracting was go-
ing on, the type of work being subcontracted, and the type of
boxes being subcontracted. The type of boxes is an important
factor in determining income. Some boxes are complicated and
time consuming and take a long time to harvest while other
boxes are easier and quicker to harvest. Therefore, the type of
work subcontracted is an important factor. The contracts were
requested in order to determine what kind of subcontracting
was occurring. Block information was requested in order to
determine in what fields subcontracting was taking place. The
information regarding farmers working nonunit employees and
the crews assigned to each farmer was necessary, according to
Conle, because unit crews and contractor crews had been ob-
served in the same fields. The Union believed these fields were
controlled by Dole but needed the contracts in order to deter-
mine if the subcontracting was attributable to Respondent. Ap-
plications for work and documents listing applicants were nec-
essary to determine whether Respondent was making a bona
fide effort to hire employees before resorting to subcontracting.
Respondent replied by letter of April 5 denying the Union’s
information request because the information was not relevant
and stating that the information requested was considered
Dole’s operational business decision and not subject to disclo-
sure. On April 21, the Union reasserted its need for the request-
ed information. By letter of May 7, Respondent provided the
names of those hired from April 9–21 as well as various indi-
viduals hired in prior years. Thus, Respondent partially re-
sponded to one item in the information request. Respondent
also reiterated its “operational business decision” rationale for
refusing to provide the information. To date, the Union has not
received the requested information nor has Respondent request-
ed any accommodation regarding production of the infor-
mation. Rodriguez agreed that he had not provided the infor-
mation stating, “I didn’t see any relevance to that, because we
had not recalled all the employees by that time.” Rodriguez
explained that usually all employees are recalled by the second
week of April. In fact, Rodriguez further explained, Respondent
had not yet started the recall at the time the grievance was filed.
However, Rodriguez agreed that by April 5, the date of his
letter to Conle refusing to provide the information, there had
been hiring in Oxnard and Huron and employees were begin-
ning to be recalled in Salinas for broccoli. According to Conle,
Respondent did not seek any clarification of the Union’s re-
quest for information.
Analysis
I find there is a probability that the information sought is rel-
evant and necessary to the Union’s collective-bargaining duties.
As to the February 17 request, former employee Heredia, an
experienced celery harvester, informed the Union that he had
been turned down for a job with Respondent. At the same time,
the Union was aware that numerous farm contract laborer crews
were engaged in harvesting celery in the Oxnard area. These
facts sufficiently indicate that a violation of the CBA or the
LOU may have been taking place. The documents requested in
the Union’s grievance of February 17 are relevant to the issue
of whether Heredia and other applicants were not being utilized
in violation of the CBA and the LOU. Respondent’s characteri-
zation of the February 17 grievance as the “Heredia grievance”
selectively focuses only on certain parts of the grievance. How-
ever, reading the entire grievance, it is clear that utilization of
farm labor contractor crews rather than hiring additional celery
harvest employees is a basis for the grievance. The documents
requested directly relate to this contention.
Similarly, the Union was informed by Yuma cauliflower
crews that Respondent sent them home around 3 p.m. on Fri-
day, March 9, and Monday, March 12 while the labor contrac-
tor and/or “custom harvester” crews continued working. The
March 12 grievance was filed and documents requested were
directly related to whether contractors were performing bar-
gaining unit work. The March 26 grievance was filed when
Respondent refused to hire De Anda, a lettuce cutter, and in-
stead hired additional farm labor contractor crews. The Union
had De Anda’s information as well as having observed nonbar-
gaining unit crews in the same area performing bargaining unit
work. The information requested directly relates to whether
contractors were performing bargaining unit work. Finally,
after observing bargaining unit and contractor crews working in
the same fields, the Union filed the March 29 grievance was
claiming Respondent failed to hire for its harvesting operations
and instead used contract crews. The information requested was
directly related to this grievance.
In United Graphics, 281 NLRB 463 (1986), the parties’ col-
lective-bargaining agreement allowed the employer to acquire
temporary workers from an employment agency whenever it
was unable to obtain such employees through the union. After
being informed by unit employees that the employer was utiliz-
ing temporary workers but learning that these temporary work-
ers might not be receiving wages and benefits in accord with
the collective-bargaining agreement, the union asked the com-
pany for the names and addresses of the temporary employees
and the hourly rate and fringe benefits they received. The com-
BUD ANTLE, INC. 1265

pany refused to provide the information stating that the tempo-
rary employees were not employees of the company and the
union was not entitled to this information. The Board held that
even assuming that the temporary employees were nonunit
employees, “it is clear that information regarding individuals
who are engaged in performing the same tasks as rank-and-file
employees within the bargaining unit ‘relates directly to the
policing of contract terms.’” Id. at 465, quoting Globe Stores,
227 NLRB 1251, 1253–1254 (1977).
Similarly, in Island Creek Coal Co., supra, 292 NLRB at
490–491, the union sought budget reports which it thought
contained information concerning past and prospective coal
production. That information could have helped the union as-
sess whether subcontracting of unit work was occurring and
would influence its decision on whether to file a grievance. The
Board found that by failing to provide this information, the
employer violated Section 8(a)(1) and (5) of the Act.
Thus, based upon the record as a whole, it has been estab-
lished that the Union needs the information to determine if
Respondent has committed a violation of the CBA or the LOU
and the information requested is relevant.
Confidentiality and Privilege
The finding of relevance and necessity does not end the
question before me. Respondent claims that even if the infor-
mation is relevant and necessary, Respondent was not obligated
to produce it because it constitutes confidential trade secret or
proprietary information. In Detroit Edison Co. v. NLRB, 440
U.S. 301, 314 (1979), the Court stated that there is no absolute
rule relating to disclosure of information:

A union’s bare assertion that it needs information to pro-
cess a grievance does not automatically oblige the em-
ployer to supply all the information in the manner request-
ed. The duty to supply information under §8(a)(5) turns
upon “the circumstances of the particular case” . . . and
much the same may be said for the type of disclosure that
will satisfy that duty.

A generalized contention that information is confidential or
privileged because of business needs does not warrant complete
refusal to provide that information. Rather, the parties must
bargain in good faith to reach an accommodation of interests.
See SBC California, 344 NLRB 243 (2005). The party asserting
confidentiality has the burden of proof. Postal Service (Main
Post Office), 289 NLRB 942 (1988), enfd., 888 F.2d 1568 (11th
Cir. 1989).
In its responses to the information requests, Respondent as-
serted that the information sought by the Union was considered
Dole’s operational business decision—not subject to disclosure.
In its answer to the complaint, Respondent asserted that the
information sought was confidential trade secret and proprie-
tary information relating to volume and pricing, that it was
protected by attorney-client privilege and/or attorney work
product, and that it violated third-party privacy rights. No evi-
dence was offered in support of these confidentiality or privi-
lege claims and, on that basis, I find no confidential or privilege
warranted refusal to furnish the information.
CONCLUSION OF LAW
By failing and refusing to furnish the information set forth in
complaint paragraphs 7, 8, 9, and 10, Respondent has engaged
in unfair labor practice within the meaning of Section 8(a)(1)
and (5) of the Act. These unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, it shall be ordered to produce the
information and post and mail a notice to employees in both
English and Spanish attached as the appendix. Mailing is a
necessary remedy in this case as the work force moves from
place to place harvesting various crops throughout the year.
The Charging Party requests additionally that the Notice post-
ing period be extended, that Respondent be required to toll the
time limits for filing grievances regarding any further grievanc-
es arising from the requested information, that the Notice be
read to employees at the next reading of the seniority list, and
that the description of Section 7 rights not refer to the right to
refrain from engaging in Section 7 activities. I decline to rec-
ommend these additional remedies in that those ordered fully
remedy the violations.
[Recommended Order omitted from publication.]