Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 424 (N.L.R.B. 1993)

424
311 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 Specifically, these employers requested that the Union provide
them with the costs per employee of coverage under the Respond-
ent’s pension plan; or, alternatively, the name, age, years of service,
and amount due under the multiemployer fund, for each of the Re-
spondent’s employees; the name, bargaining unit, last two calendar
year earnings, and percentage of pay contributed, for each employee
who elected to contribute to the Respondent’s savings plan; and the
actuarial cost estimates and underlying assumptions or the Respond-
ent’s projections of the costs of its retirement plans.
3 All dates hereafter are in 1989.
4 The Union did not indicate that the information requested by the
Respondent’s competitors was relevant and necessary to the Union’s
representation of bargaining unit employees of the Respondent.
Hondo, Incorporated d/b/a Coca-Cola Bottling
Company of Chicago and Beer, Soft Drink,
Water, Fruit Juice, Carbonic Gas, Liquor Sales
Drivers, Helpers, Inside Workers, Bottlers,
Warehousemen, School, Sightseeing, Charter
Bus Drivers, General Promotional Employees
and Employees of Affiliated Industries,
Maltsters, Laborers, Syrup, Yeast, Food, Vin-
egar, Brewery, Recycling and Miscellaneous
Workers, Local Union No. 744, affiliated with
the International Brotherhood of Teamsters,
AFL–CIO.1 Case 13–CA–28896
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 21, 1991, Administrative Law Judge Rob-
ert M. Schwarzbart issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in answer to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this deci-
sion.
Background
The following undisputed facts are based on the
stipulated record. The Respondent had been a contrib-
uting member of the Chicago Soft Drink Industry Em-
ployers-Local Union No. 744 Pension Fund. Contribut-
ing employers of the fund signed collective-bargaining
agreements with the Union in 1988. In May 1989, after
the Respondent withdrew from participation in the
fund, the Respondent and the Union executed two 7-
year collective-bargaining agreements effective through
April 30, 1996. These agreements covered units of the
Respondent’s inside and outside workers. Among other
matters, these contracts provided for the Respondent’s
cessation of participation in the fund and permitted the
Respondent to provide certain retirement benefits to
unit employees under its own company-sponsored and
administered single-employer pension and savings
plans.
A month after execution of the Respondent-Union
contracts, two fund participants and competitors of the
Respondent, Kemmerer and Canfield, invoked most-fa-
vored-nation provisions in their contracts with the
Union, and demanded that the Union furnish them with
information concerning the Respondent’s costs for pro-
viding new retirement benefits.2 These competitors
also requested that the Union use the Act, if necessary,
to obtain the desired information from the Respondent
for them so that they could assess whether the Re-
spondent’s retirement benefit expenditures justified a
reduction in their own retirement-fund contributions.
On June 13, 1989,3 when the Union’s response was
not forthcoming, Kemmerer and Canfield filed refusal-
to-bargain charges against the Union.
By letter dated July 11, the Respondent advised the
Union that it had no obligation to provide confidential
and proprietary information for use by its competition,
and that the Union’s request on its face established that
the information was not needed for the purpose of con-
tract administration. Accordingly, the Respondent stat-
ed that it would not be providing the information re-
quested by its competitors and enclosed with the
Union’s letter. Also by letter dated July 11, the Union,
having not yet received the Respondent’s July 11 an-
swer, specifically requested that the Respondent pro-
vide it with the following information claimed to be
relevant and necessary to its bargaining responsibil-
ities: data on the cost per employee of pension plan
coverage, or actuarial estimates or projections of such
costs.
Thereafter, by letter to the Respondent dated June
28, the Union brokered Kemmerer’s and Canfield’s in-
formation requests by asserting that the information
they requested ‘‘is relevant and necessary to the
Union’s responsibilities as collective bargaining rep-
resentative.’’4 The Union, enclosing Kemmerer’s and
Canfield’s demand letters, wrote and asked the Re-
spondent to provide the information requested by
Kemmerer and Canfield and to direct any questions to
them or to the Union as ‘‘intermediary.’’
By letter to the Respondent dated July 12, after hav-
ing received the Respondent’s July 11 letter, the Union
claimed that the requested information was relevant
and necessary for contract administration. The Union
also offered to negotiate appropriate provisions to pro-
tect confidential and proprietary information. On July
17, the Respondent replied that the obvious purpose of
the information request was as originally stated in the
425COCA-COLA BOTTLING CO.
Union’s June 28 letter, i.e., to provide the Respond-
ent’s retirement cost data directly or as intermediary to
the Respondent’s competitors. Moreover, the Respond-
ent asserted that the cost data is not relevant to the
Union’s interest in ensuring that contractual benefits
are being provided; therefore, there is no reason to
meet and negotiate.
On September 7, the Union filed the instant unfair
labor practice charge against the Respondent. The
Union’s charge followed notice from the Board’s Re-
gional Office that an 8(b)(3) refusal-to-bargain com-
plaint would issue against the Union pursuant to
Kemmerer’s and Canfield’s pending charges if the
Union did not file its own charge against the Respond-
ent here, Coca-Cola.
The Judge’s Decision
The judge found that the requested information was
presumptively relevant because it involved wages and
benefits paid to unit employees. He rejected the Re-
spondent’s defense that the cost information was irrele-
vant because contract negotiations had just been com-
pleted. He found that the information could be useful
to the Union’s continuing responsibilities as bargaining
representative during the contracts’ terms. The judge
also rejected the Respondent’s defense that the Union’s
sole reason for the request was to pass the cost data
on to the Respondent’s competitors. He relied on the
Union’s correspondence, which stated that the informa-
tion was relevant and necessary to its collective-bar-
gaining responsibilities. Finally, the judge concluded
that the Union’s need for the information—which
might assist it in evaluating the fund’s stability, formu-
lating future contract proposals, and suggesting im-
provements in plan administration—outweighed the
Respondent’s legitimate concern for the confidentiality
of cost data that would be provided to two of its com-
petitors.
Discussion
Contrary to the judge and our dissenting colleague,
we view this case essentially as an attempt by two
competitors of the Respondent, who are contributing
members of a multiemployer pension fund to which
the Respondent formerly contributed, to use the Union
as a vehicle to force the Respondent to provide com-
petitive cost data to them. For the reasons that follow,
we find that the Respondent has proven that the infor-
mation, as requested, is irrelevant to any legitimate
collective-bargaining responsibility of the Union as
representative of the employees, and that the Respond-
ent did not violate its statutory duty to bargain in good
faith by refusing to provide the Union with the infor-
mation requested.
Section 8(a)(5) of the Act makes it an ‘‘unfair labor
practice for an employer . . . to refuse to bargain col-
lectively with the representatives of his employees,’’
subject to the bargaining unit provisions of Section
9(a). The duty to bargain in good faith requires an em-
ployer to furnish information requested and needed by
the employees’ bargaining representative for the proper
performance of its duties to represent unit employees
of that employer. NLRB v. Acme Industrial Co., 385
U.S. 432, 437 (1967). Thus, an employer’s statutory
obligation to provide information presupposes that the
information is relevant and necessary to a union’s bar-
gaining obligation vis-a-vis its representation of unit
employees of that employer.
The obligation to supply information is determined
on a case-by-case basis, and it depends on a deter-
mination of whether the requested information is rel-
evant and, if so, sufficiently important or needed to in-
voke a statutory obligation on the part of the other
party to produce it. White-Westinghouse Corp., 259
NLRB 220 fn. 1 (1981). In making this determination,
the Board has repeatedly reiterated the following prin-
ciples enunciated by the Third Circuit in Curtiss-
Wright Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965):
[W]age and related information pertaining to em-
ployees in the bargaining unit is presumptively
relevant, for, as such data concerns the core of the
employer-employee relationship, a union is not re-
quired to show the precise relevance of it, unless
effective employer rebuttal comes forth; as to
other requested data, however, such as employer
profits and production figures, a union must, by
reference to the circumstances of the case, as an
initial matter, demonstrate more precisely the rel-
evance of the data it desires.
(Emphasis added and omitted from original.)
Thus, if the requested information goes to the core
of the employer-employee relationship, and the em-
ployer refuses to provide that requested information,
the employer has the burden to prove either lack of
relevance or to provide adequate reasons why it can-
not, in good faith, supply the information. If the infor-
mation requested is shown to be irrelevant to any le-
gitimate union collective-bargaining need, however, a
refusal to furnish it is not an unfair labor practice.
Emeryville Research Center v. NLRB, 441 F.2d 880
(9th Cir. 1971).
In this case, even assuming that the retirement bene-
fit cost data concerning unit employees is presump-
tively relevant to the Union’s bargaining responsibil-
ities, the Respondent has shown that substantial record
evidence rebuts the presumptive relevancy of the infor-
mation, as requested, and that it is irrelevant to any le-
gitimate collective-bargaining need of the Union as
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Although the costs per employee of retirement benefits received
or likely to be received is presumptively relevant and reasonably
necessary to the Union in carrying out its collective-bargaining func-
tion, particularly during ongoing negotiations, see Borden, Inc., 235
NLRB 982, 983 (1978), enfd. in relevant part NLRB v. Borden, Inc.,
600 F.2d 313 (1st Cir. 1979), the Respondent’s statutory obligation
to provide information does not extend to financial data regarding
projections of its future ability to compete, absent a claim of inabil-
ity to pay. Neilsen Lithographing Co., 305 NLRB 697 (1991). Given
the context in which the instant information request arises, i.e.,
framed by the Respondent’s competitors so that they may assess
possible competitive disadvantage, it is clear to us that we are actu-
ally dealing with some variant of the latter situation.
representative of the Respondent’s employees.5 The
Respondent has proven lack of relevancy and provided
adequate reasons why it cannot in good faith supply
the requested information. To this end, the Respondent
initially advised the Union that the request on its face
was unrelated to contract administration of the collec-
tive-bargaining agreements between the Union and
Coca-Cola, and that the Respondent has no obligation
to provide sensitive cost data for use by its competi-
tors. More importantly, the timing and circumstances
surrounding the request clearly support the legitimacy
of the Respondent’s defense that the Union is acting
as a mere conduit for the Respondent’s competitors to
whom no bargaining obligation is owed by the Re-
spondent.
First, the information requested by the Union from
the Respondent, which forms the basis for the com-
plaint allegations, is the same as that originally re-
quested by the Respondent’s competitors from the
Union. In fact, Kemmerer’s and Canfield’s demand let-
ters to the Union, enclosed with the Union’s initial de-
mand to the Respondent, form the precise basis for the
information requested.
Second, only after these competitors urged the
Union to use the Act to obtain the desired information
from the Respondent, and then filed refusal-to-bargain
charges over the Union’s intransigence, did the Union
demand that the Respondent provide the information
requested. The Union’s demand clearly conveyed its
intent to furnish the data to the Respondent’s competi-
tors. In addition, the Union requested that the Re-
spondent direct any questions concerning the informa-
tion requests to these competitors or to the Union as
their acknowledged ‘‘intermediary.’’
Finally, when the Respondent challenged the
Union’s alleged need for the requested information, the
Union merely reiterated its conclusory statement that
the information was relevant and necessary for its use
as bargaining representative. It did not specify support-
ing facts or otherwise articulate how this was so. Thus,
it did not ‘‘demonstrate more precisely the relevance
of the data it desires.’’ Curtiss-Wright, supra.
In these circumstances, where it is obvious that the
Union is seeking the information from the Respondent
because of its separate bargaining obligation under
contractual most-favored-nation provisions executed
with the Respondent’s competitors, the Union must do
more than provide general avowals of relevance in
order to establish its need for the information. Rather,
the Union must articulate how it would use the infor-
mation to fulfill its duties as the collective-bargaining
representative of the Respondent’s employees. As the
Supreme Court explained in NLRB v. Truitt Mfg. Co.,
351 U.S. 149, 152–153 (1956), ‘‘[g]ood-faith bargain-
ing necessarily requires that claims made by either bar-
gainer be honest claims’’ and if a need is important
enough to present in bargaining, it is important enough
to require some sort of proof of its accuracy. As noted
above, the Union here failed to substantiate its pur-
ported need for the information.
The cases relied on by the judge for the proposition
that the Union need not articulate a legitimate purpose
for requesting presumptively relevant wage and benefit
information (see Marshalltown Trowel Co., 293 NLRB
693 (1989)), or for the principle that a legitimate re-
quest may also be made for other purposes (see Asso-
ciated General Contractors of California, 242 NLRB
891, 894 (1979), enfd. 633 F.2d 766 (9th Cir. 1980);
Utica Observer-Dispatch, 111 NLRB 58, 63 (1955),
enfd. 229 F.2d 575 (2d Cir. 1956)), are inapposite. In
those cases, unlike here, the presumption of relevancy
had not been rebutted, and more importantly the record
clearly established that the information was requested
to fulfill a bargaining responsibility of the union vis-
a-vis the employees of the respondent employer, and
the union established that it had a legitimate need for
the requested information for ongoing contract negotia-
tions or to administer its collective-bargaining relation-
ship with the respondent employer. It was in that fac-
tual context that the Board iterated the foregoing gen-
eral principles relied on by the judge and our dissent-
ing colleague.
In this case by contrast, the record does not even
suggest that the Union’s request was made for a proper
and legitimate bargaining purpose vis-a-vis unit em-
ployees of the Respondent. Rather, as demonstrated
above, substantial record evidence indicates that the
Union was motivated by concerns unrelated to its stat-
utory bargaining relationship with the Respondent;
concerns that arose from contractual most-favored-na-
tion provisions pertaining to other bargaining units.
There is no indication in the record that employees are
not being paid negotiated benefits or that the Respond-
ent is unable or will be unable to pay negotiated bene-
fits during the present contract. There is no evidence
that negotiations or relevant grievances are pending be-
tween the parties, and more than 6-1/2 years remain
under the current contract. In sum, there is no basis in
the record to conclude that the requested information
is relevant and necessary for performance of the
Union’s function as statutory bargaining representative
427COCA-COLA BOTTLING CO.
6 This is so because the Union and the Respondent had negotiated
a defined-benefit plan, under which the Respondent promised to pay
a determinable monthly benefit based on a formula (a specific dollar
amount per years of service) set forth in the bargaining contract and
the pension plan. The cost of those benefits to the employer (in the
form of periodic contributions to the plan) is calculated on the basis
of a number of actuarial factors, whose values may vary over time
depending on changed circumstances (as examples, the life expect-
ancy of the participants and the rate of return on investment). Yet,
an employer’s obligation under the collective-bargaining contract is
defined (and remains fixed) in terms of benefits payable to the par-
ticipant employees, not in terms of the employer’s cost of funding
those benefits.
It may well be that during the course of contract negotiations over
the level of benefits in a defined-benefit pension plan, a union can
establish the relevance of projected cost data which the employer
may have. However, that question is not before us, and our holding
that the Respondent need not provide that information to the Union
under the circumstances here should not be understood as resolving
that question.
1 Contrary to my dissenting colleague’s suggestion otherwise, the
judge did recognize the Respondent’s showing that its proprietary
cost data was confidential. The Respondent has excepted to the
Continued
of the Respondent’s employees. We are left with the
judge’s conjecture on behalf of the Union, as to how
it could validly use the data for bargaining purposes.
Nor is there any evidence, apart from the Union’s
self-serving correspondence, that the Union initiated
any contact with the Respondent in any bargaining
context regarding the matters contained in the informa-
tion request. The fact that the Union ostensibly and
generally proclaimed in its correspondence that the in-
formation was ‘‘relevant and necessary to its collective
bargaining responsibilities’’ does not make it so. Ma-
chinists Lodge 78 (Square D Co.), 224 NLRB 111 fn.
6 (1976). As the Supreme Court recognized in Detroit
Edison Co. v. NLRB, 440 U.S. 301, 314–315 (1979):
A union’s bare assertion that it needs information
. . . does not automatically oblige the employer
to supply all the information in the manner re-
quested. The duty to supply information under
[Section] 8(a)(5) turns upon ‘‘the circumstances
of the particular case’’ NLRB v. Truit Mfg. Co.,
351 U.S. 149, 153, and much the same may be
said for the type of disclosure that will satisfy that
duty. See, e.g., American Cyanamid Co., 129
NLRB 683, 684 (1960).
In the circumstances of this case, we find that no
disclosure was necessary because no statutory duty to
provide information was triggered. Chicago Typo-
graphical Union 16 (Chicago Sun-Times), 296 NLRB
180 (1989), relied on by our dissenting colleague, is
not to the contrary. The Board there reasoned that
where employer A is attempting to monitor a union’s
compliance with a most-favored-nation clause, it
should be entitled to know the terms and conditions of
employment which the union has negotiated with em-
ployer B. However, in the instant case, Kemmerer and
Canfield were not simply seeking from the Union in-
formation on the amount of the retirement benefits
which the Union had negotiated with the Respondent.
Rather, they were seeking information on the underly-
ing costs to the Respondent of those benefits. That cost
data is not part of the terms and conditions of the
Union’s contract with the Respondent.6
Thus, Chicago Sun-Times at most suggests that there
is some correlation between what employer A would
be entitled to know from the union, under the most-
favored-nation clause, and what the union may be enti-
tled to know from employer B, under the relevance
standard of NLRB v. Acme Industrial Co., 385 U.S.
432, 437 (1967). It did not purport to redefine the rel-
evance standard so as to make it a function of whether
the union seeks the information in order to comply
with terms of a bargaining agreement with a third
party.
ORDER
The complaint is dismissed.
MEMBER OVIATT, concurring.
For the reasons set forth above, I join the Chairman
in finding that the Respondent was not required to turn
over the requested information because it has not been
shown to be relevant to the Union’s representation of
the Respondent’s employees. Even were I to find a
statutory duty to provide the requested information,
however, I would not adopt the judge’s order requiring
the Respondent to turn over all the information as
originally requested. I am not convinced that the
Union’s need for all the information in the exact form
requested by the Respondent’s competitors outweighs
the Respondent’s confidentiality and proprietary inter-
ests. An employer is not obligated to furnish informa-
tion in the exact form requested; rather, it has an obli-
gation to bargain in good faith. NLRB v. Borden, Inc.,
600 F.2d 313 (1st Cir. 1979). The Supreme Court has
clearly rejected ‘‘the proposition that union interests in
arguably relevant information must always predomi-
nate over all other interests, however legitimate.’’ De-
troit Edison Co. v. NLRB, 440 U.S. 301, 318 (1979).
Here, the Respondent has asserted legitimate con-
fidentiality and proprietary concerns regarding the cost
data at issue, which privilege nondisclosure. In finding
a violation, the judge acknowledged the Respondent’s
concern for confidentiality. Thus, even had the Union’s
request established legitimate entitlement to the infor-
mation, it would have, at most, warranted conditional
disclosure. Cf. Kelley-Springfield Tire Co., 266 NLRB
587 (1983). As the judge recognized, ‘‘I agree with the
Respondent that the confidential nature of the re-
quested information is a matter of legitimate concern,
particularly here where the data, if furnished, would be
provided to two of the Respondent’s competitors.’’1
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
judge’s finding of a violation and his finding that the Union was ac-
tually seeking the information for its own use. Consequently, I find
the issue of confidentiality to be inherent in the issues before us. I
would resolve the balancing of respective interests differently from
the judge, however, because the Union has shown no legitimate need
for the information, as requested. As explained below, if the Union
had established a legitimate need for relevant information, I would
first require the parties to bargain about accommodating their
competive interests before evaluating the weight to be given them.
Obviously, disclosure of the Respondent’s retirement
benefit cost structure, including the names, ages, earn-
ings, projected earnings, and percentage of pay of each
contributing employee, as well as actuarial cost esti-
mates, projections, and underlying assumptions, may
compromise employee privacy concerns and competi-
tive position. Knowledge of this confidential propri-
etary information concerning the underlying cost data
that a competitor bases its payment of retirement bene-
fits on is itself a business advantage.
The Union itself recognized the legitimacy of the
Respondent’s concerns in its July 11 and 12 cor-
respondence. That correspondence narrowed the origi-
nal competitor employers’ requests for individual iden-
tifying data to aggregate cost data, and it contained an
offer to bargain about confidential and proprietary in-
formation. The Respondent was priviledged to reject
the Union’s offer to bargain here because the threshold
showing of a legitimate need for relevant information
was never established.
Clearly, therefore, some accommodation must be
made to the Respondent’s legitimate interests. General
Dynamics Corp., 268 NLRB 1432, 1433 (1984). Thus,
even were I to find that the Respondent had a statutory
obligation to provide the requested information, which
I do not, I would limit the remedial order to one which
requires the parties to bargain in good faith in an at-
tempt to reach a mutually satisfactory accommodation
of their respective interests. Minnesota Mining Co.,
261 NLRB 27, 32 (1982), enfd. sub nom. Oil Workers
Local 6-418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983);
General Dynamics Corp., supra.
If conditions can be negotiated to accommodate the
Respondent’s confidentiality and proprietary concerns
and the Union’s putative interest (which I caution, I
have not found) in obtaining relevant information nec-
essary for bargaining, a continuing refusal to disclose
may violate the Act. In those circumstances, I would
find that the appropriate remedy is limited to the ag-
gregate cost data that the Union asked for on July 11,
as modified by negotiations; not the individually iden-
tifiable data on earnings and contributions that was re-
quested by the Respondent’s competitors and ordered
by the judge.
As the judge recognized, however, negotiations
‘‘well might not lead to a resolution of confidentiality
that would be satisfactory to the Respondent since dis-
closure [to its competitors] may be unavoidable.’’ See
also Chicago Typographical Union 16 (Chicago Sun-
Times), 296 NLRB 180 (1989) (most-favored-nation
clause created duty on the part of the union to disclose
requested information on competitor employer’s em-
ployment conditions). If no satisfactory conditions
could be devised, the Respondent’s refusal to disclose
might well be permissible.
MEMBER DEVANEY, dissenting.
Contrary to my colleagues, I would find that the
Union was entitled to the information it requested con-
cerning the cost of the retirement benefits provided
under the parties’ agreement. This information is pre-
sumptively relevant to the Union’s role as representa-
tive of the Respondent’s employees. I take exception
to my colleagues’ finding that this presumption of rel-
evance is rebutted simply because the Union indicated
that it would disclose the information to other employ-
ers pursuant to a most-favored-nation clause. Such a
finding is contrary to established Board precedent and
will seriously undermine the utility of such clauses in
stabilizing collective-bargaining relationships.
In 1989, the Respondent and the Union entered into
separate collective-bargaining agreements covering
‘‘inside’’ and ‘‘outside’’ workers, effective until April
30, 1996. Both agreements provided, inter alia, that the
Respondent would cease participating in the Chicago
Soft Drink Industry Employers-Local Union No. 744
Pension Plan effective May 1, 1989, and thereafter
would provide retirement benefits under its own, sin-
gle-employer plan.
The Union also has collective-bargaining agree-
ments, covering the same classifications of employees,
with two of the Respondent’s competitors, Kemmerer
Bottling Group, Inc., and A. J. Canfield Co. These
agreements provided that these employees would par-
ticipate in the Chicago Soft Drink Industry Employers-
Local Union No. 744 Pension Plan for the life of the
agreement, and contribute a specified sum of money
each month on behalf of each covered employee.
These agreements also contained a ‘‘most-favored na-
tion’’ clause, which provided, inter alia, that if the
Union entered into an agreement allowing any other
employer to provide retirement benefits under a single-
employer plan, then the signatory employer could
lower its contribution rate to an amount equal to the
cost to the other employer of providing retirement ben-
efits under the single-employer plan.
Kemmerer and Canfield both demanded that the
Union provide them with information sufficient to de-
termine the Respondent’s cost of providing retirement
benefits under its single-employer plan. On June 13,
1989, both employers filed identical unfair labor prac-
tice charges alleging that the Union had failed and re-
fused to provide the requested information. Both em-
ployers repeated their requests for the information in
letters dated June 16, 1989. On June 28, 1989, the
429COCA-COLA BOTTLING CO.
1 My colleagues’ suggestion that Associated General Contractors
is distinguishable because the presumption of relevancy had not been
rebutted misses the point. The Board held in that case that a showing
that information is requested for both legitimate and nonlegitimate
purposes does not affect the information’s relevancy. I also note that
the information requested in Associated General Contractors, the
names of nonunion affiliated contractors, was not—like the informa-
tion sought here—presumptively relevant, as it did not concern unit
employees’ conditions of employment. The Board found that evi-
dence that the Union also sought the information for organizing pur-
poses did not diminish its relevance even under these circumstances.
2 My colleagues attempt to distinguish Chicago Sun-Times on the
grounds that the information request there dealt with actual terms
and conditions of employment and not, as here, the cost to the em-
ployer of providing a particular benefit. However, nothing in the
Board’s decision in that case supports the judicial gloss my col-
leagues now seek to place on it.
Union formally requested that the Respondent provide
it with the information Kemmerer and Canfield had
demanded. The Union’s information request indicated
that the information was sought for disclosure to the
other employers; it incorporated by reference and in-
cluded copies of the employers’ June 16, 1989 letters
to the Union; and it advised the Respondent that it
could contact Kemmerer, Canfield, or the Union if it
had any questions.
On July 11, 1989, the Respondent refused to provide
the information requested by the Union. The Respond-
ent asserted that the information sought was ‘‘con-
fidential and proprietary,’’ and that it would not pro-
vide that information to the Union for disclosure to its
competitors. The Respondent also refused the Union’s
subsequent offer to negotiate ‘‘appropriate provisions
to protect any information the Company claims is con-
fidential and proprietary.’’ Subsequently, on September
7, 1989, the Union filed the instant charges against the
Respondent alleging that it had violated Section 8(a)(5)
and (1) by refusing to provide the requested informa-
tion. These charges were only filed after the Regional
Office advised the Union that it would issue a com-
plaint against the Union pursuant to Kemmerer’s and
Canfield’s pending 8(b)(3) charges, if the Union did
not file its own charge against the Respondent.
My colleagues do not dispute the judge’s finding
that the information requested by the Union is pre-
sumptively relevant to its bargaining responsibilities.
See Borden Inc., 235 NLRB 982 (1978), enfd. in perti-
nent part 600 F.2d 313 (1st Cir. 1979). Rather, they
find that the presumptive relevance of the requested in-
formation is rebutted by the Union’s disclosure that it
will provide the information to Kemmerer and Can-
field.
It is well settled that the presumption of relevance
is not rebutted by a showing that the union also seeks
the information for a purpose unrelated to its represent-
ative function. E. I. du Pont & Co., 264 NLRB 48, 51
(1982), enfd. 744 F.2d 537 (6th Cir. 1984) (union also
had interest in companywide wage data for disclosure
to second union seeking to organize those facilities).
The Union here has asserted that it needs the requested
information for the purpose of administering its collec-
tive-bargaining agreements with the Respondent. Under
these circumstances, ‘‘it is well established that, where
a union’s request for information is for a proper and
legitimate purpose, it cannot make any difference that
there may be other reasons for the request or that the
data may be put to other uses.’’ Associated General
Contractors of California, 242 NLRB 891, 894 (1979).
See also Utica Observer-Dispatch v. NLRB, 229 F.2d
575 (2d Cir. 1956). Thus, as the Union has requested
the information for a legitimate purpose, i.e., contract
administration, the Respondent cannot rebut the pre-
sumptive relevance of the information by showing that
it may be put to other uses as well.1
My colleagues’ focus on the Union’s statement that
it would disclose the requested information to
Kemmerer and Canfield is misplaced for other reasons
as well. In Chicago Typographical Union 16 (Chicago
Sun-Times), 296 NLRB 180 (1989), the Board recog-
nized that a union which is party to a most-favored-
nation clause has a duty to disclose information in its
possession necessary for the employer to determine its
rights under that clause. This is so even though the
employer is seeking information relating to employees
of another employer. The Board also observed, at foot-
note 7 of its decision, that this duty included the obli-
gation to provide information concerning the terms and
conditions of employment of strike replacements hired
by the Chicago Tribune: ‘‘the Respondent [union]
would be entitled to receive information from the Trib-
une regarding those employees, and therefore has the
duty . . . to provide such information to the Sun-
Times.’’ (Emphasis added.) Id. at 181 fn. 7. Thus, the
Board has implicitly recognized that it is not improper
for a union to request information from one employer
in order to disclose it to another employer in further-
ance of its obligations under a most-favored-nation
clause.2
I would also find, in agreement with the judge, that
the Respondent has not shown that the information the
Union requested on June 28, 1989, is confidential and
proprietary. In this regard, the judge balanced the Re-
spondent’s confidentiality concerns against the Union’s
need for the information and found that the balance fa-
vored disclosure. The Respondent has not excepted to
this finding. Accordingly, I suggest that the issue of
confidentiality is not before us.
Even if I were to conclude that the judge’s finding
in this regard is before us, I believe that the Respond-
ent has not established sufficient confidentiality con-
cerns to preclude disclosure. In this regard, I note that
aggregate wage and benefit information is routinely
disclosed as part of any employer-sponsored wage sur-
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It is not clear from the record how Kemmerer and Canfield
would gain any business advantage by knowing the Respondent’s
cost figures for retirement benefits, nor has the Respondent articu-
lated how this would be so. While the Respondent may lose a com-
petitive advantage if the other employers are able to reduce their re-
tirement benefit levels after obtaining the information, this does not
negate the underlying policy reasons which require its disclosure.
4 Likewise, cases in which the remedy for failure to disclose infor-
mation is limited to an order requiring the Respondent to bargain
with the Union over disclosure are also distinguishable. Such orders
are appropriate in cases in which an employer has raised substantial
confidentiality concerns and the Board in its discretion finds that or-
dering the parties to bargain is the best means to resolve those con-
cerns. Compare Minnesota Mining Co., 261 NLRB 27, 32 (1982),
enfd. sub nom. Oil Workers Local 6-418 v. NLRB, 711 F.2d 348
(D.C. Cir. 1983). Those circumstances are not present in this case,
as noted above. Moreover, the Respondent previously rejected the
Union’s offer to engage in precisely this sort of bargaining.
1 All dates hereinafter are within 1989 unless stated to be other-
wise.
2 The Union waived submission of a brief before the end of the
extended filing period.
3 While the Respondent did not concede an obligation to provide
the savings plan information, in stating its position this issue was
subordinated to its stance against furnishing the disputed pension
cost data.
vey, and an employer is required to disclose such in-
formation to the union on request even in the face of
an agreement with the surveyed employers to keep it
confidential. General Electric Co., 192 NLRB 68
(1971), enfd. 466 F.2d 1177 (6th Cir. 1972).3 Conced-
edly, the individual identifying information sought by
the Union raises additional issues. However, the judge
found that any privacy concerns were outweighed by
the Union’s need for the information.4 Accordingly, I
dissent from the dismissal of the complaint.
Emilie Schrage, Esq., for the General Counsel.
Lawrence L. Summers, Esq. (Vedder, Price, Kaufman &
Kammholz, P.C.), of Chicago, Illinois, for the Respondent.
Susan Brannigan, Esq. (Asher, Gittler, Greenfield, Cohen &
D’Alba, Ltd.), of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge.
This case was heard in Chicago, Illinois, on November 30,
1990, on a complaint issued May 16, 1990, pursuant to a
charge filed on September 7, 1989,1 by Beer, Soft Drink,
Water, Fruit Juice, Carbonic Gas, Liquor Sales Drivers,
Helpers, Inside Workers, Bottlers, Warehousemen, School,
Sightseeing, Charter Bus Drivers, General Promotional Em-
ployees and Employees of Affiliated Industries, Maltsters,
Laborers, Syrup, Yeast, Food, Vinegar, Brewery, Recycling
and Miscellaneous Workers, Local Union No. 744, affiliated
with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. AFL–CIO (the
Union). This decision is based on a stipulated record, the
parties having waived the testimony of witnesses and resolu-
tions of credibility.
The complaint, as amended at the hearing, alleges that the
Respondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act), by refusing to furnish the
Union, as duly recognized bargaining representative of cer-
tain of its employees, with specifically requested information
concerning the Respondent’s costs in providing retirement
benefits to those employees in accordance with the terms of
recently signed collective-bargaining agreements, and by re-
fusing to provide the Union with other requested data con-
cerning the contractual savings plan. The Respondent, in its
answer, denies the commission of unfair labor practices.
All parties appeared at the hearing represented by counsel.
Briefs thereafter submitted by the General Counsel and the
Respondent, have been carefully considered.2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Niles, Illinois, is engaged in the manufacture and
wholesale distribution of soft drinks. During the calendar
year preceding issuance of complaint in this matter, the Re-
spondent, in the course and conduct of its business oper-
ations, sold and shipped from its Niles facility products,
goods, and materials valued in excess of $50,000 directly to
points outside the State of Illinois.
From the foregoing undisputed facts, I find that the Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Parties’ Positions
As noted, the principal issues are whether the Respondent
unlawfully refused to furnish the Union, as bargaining rep-
resentative of the Respondent’s employees in two units, with
requested data concerning the Respondent’s costs in provid-
ing noncontributory retirement benefits to employees covered
under its contracts with the Union, and with certain informa-
tion concerning the contractual contributory savings plan.3
The Respondent argues that in the circumstances of this
case it should not be required to furnish such pension cost
information because the Union was not seeking it in further-
ance of its bargaining responsibilities, but was attempting to
obtain the data in order to turn it over to two outside cor-
porations with which the Union also had bargaining relation-
ships and which were the Respondent’s competitors in the
same industry and geographic area. It is undisputed that if
the Union should receive the pension cost information, it
would share the same with these companies to fulfill its own
bargaining obligation to them. The Respondent contends that
the requested pension cost data is not necessary nor was it
requested for contract negotiations for contract enforcement.
New collective-bargaining agreements had been signed with
the Union only shortly before receipt of the Union’s initial
information request and the only specifically stated purpose
431COCA-COLA BOTTLING CO.
for the request was so that the data be given to the two cor-
porations.
The Union’s obligation to furnish the disputed data to
these other employers stemmed from the inclusion in its
labor contracts with both firms of substantially identical
‘‘most favored nation’’ provisions which could enable these
companies to reduce the costs of their contractual retirement
programs for employees to correspond to the costs of any
less expensive pension program that the Union might nego-
tiate with any other employer in that industry and area. As
these outside employers had reason to believe that the Re-
spondent had negotiated a less costly employee retirement
plan than those set forth in their contracts with the same
Union, they had demanded that the Union meet its bargain-
ing obligations by obtaining and conveying to them the cost
data for the Respondent’s retirement plan so that they could
determine whether their own pension plan costs might be re-
duced.
The General Counsel and Union contend that the Union’s
information requests were expressly made on the Union’s
own behalf in its capacity as bargaining agent for the Re-
spondent’s employees, as well as for any other purpose; that
the information sought is that to which bargaining represent-
atives are entitled; and that its dual purposes in requesting
this data do not affect its entitlement. These parties point out
that if the Union did not share the information sought with
the two outside companies, it would be faced with a pending
refusal-to-bargain proceeding that had been brought by the
two other employers.
B. The Facts
On May 6, the Respondent and Union, as duly recognized
bargaining representative, entered into two collective-bargain-
ing agreements, both effective through April 30, 1996, for
units of the Respondent’s inside workers and outside work-
ers, respectively. Until January 30, 1990, these units were as
follows:
Inside Workers
All production, maintenance and vending service em-
ployees in Respondent’s plants, but excluding all office,
clerical, administrative and professional employees, all
employees presently represented by other labor organi-
zations, and guards and supervisors as defined in the
Act.
Outside Workers
All route salesmen, coin route salesmen, helpers,
route sales general labor, qualified helpers, special
events workers, route sales trainees, transport drivers
and utility helpers in the Respondent’s plants, but ex-
cluding all office, clerical, administrative and profes-
sional employees, all employees presently represented
by other labor organizations, and guards and super-
visors as defined in the Act.
As of January 30, 1990, the inside workers’ unit was ex-
panded to include service technicians and warehousemen em-
ployed by the Respondent’s Chicago Syrup Distributors Divi-
sion, and the outside workers unit was enlarged to also in-
clude truckdrivers employed by the Respondent’s Chicago
Syrup Distributors Division. In agreement with the parties, I
find the two units to be appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act as
constituted both before and since January 30, 1990.
The two collective-bargaining agreements between the Re-
spondent and the Union, in differently numbered articles,
contain identical retirement benefits and savings plan provi-
sions which, in relevant part, follow:
Retirement Benefits
1. 744 Pension Fund. Effective May 1, 1989, partici-
pation in the Soft Drink Industry Employers-Local
Union No. 744 Pension Fund shall c(e)ase.
2. Employer Plans. Effective May 1, 1989, the Em-
ployer shall agree to cover regular full-time employees
represented under this Agreement with benefits under
its Pension Plan, known as the Coca Cola Bottling
Company of Chicago/Indianapolis Bargaining Employ-
ees’ Savings/Retirement Plan and its 401 (k) Savings
Plan, known as the Coca-Cola Bottling Company of
Chicago/Indianapolis Bargaining Employees’
Savings/Retirement Plan. Generally, benefits shall be as
follows:
3. Pension Plan.
. . . .
(e) Benefit—Provide coverage under the Company Pen-
sion Plan at a benefit level of $7.50 per month per
year of service. Such benefit would apply both to past
service (date of hire to April 30, 1989) and to future
service (from May 1, 1989 forward), except that the
past service benefit shall be reduced by the amount
due under the Soft Drink Industry Employers-Local
Union No. 744 Pension Fund.
(f) Employee contribution—none.
4. Saving Plan. Provide coverage under the Coca-
Cola Bottling Company of Chicago/Indianapolis Bar-
gaining Employees’ Savings Retirement/Plan as fol-
lows:
(a) An employee may elect to contribute two percent
(2%), four percent (4%), six percent (6%) or eight
percent (8%) of pay which shall be matched by the
Employer at a rate of fifty cents (.50) on the dollar
to a maximum Employer contribution of 2% of pay.
(b) Employee contributions shall always be 100% vest-
ed. Employer contributions shall vest at the rate of
twenty percent (20%) per year with respect to the
year contributions are made. Effective January 1,
1991, the vesting schedule for Employer contributions
shall change to five (5) year cliff vesting.
. . . .
On June 28, Roy Chamberlin, the Union’s president, sent
the following letter to Robert T. Palo, the Respondent’s vice
president, personnel and industrial relations, with the two en-
closures noted therein:
Enclosed are copies of letters sent to Mr. Marvin
Gittler, Counsel for Local 744, International Brother-
hood of Teamsters, by attorneys representing Kemmerer
Bottling Group, Inc. and A. J. Canfield Co. [T]he let-
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 This ‘‘most favored nation’’ provision appears in identical form
in the articles dealing with pensions in the respective above-ref-
erenced collective-bargaining agreements between Kemmerer, Can-
field, and the Union.
ters request that the Union provide certain information
regarding the Coca-Cola Pension Plan under the re-
cently negotiated collective-bargaining agreement.
As the information requested by Kemmerer and A. J.
Canfield is relevant and necessary to the Union’s re-
sponsibilities as collective-bargaining representative, I
demand that you provide the information requested to
the Union. Should you have any questions concerning
the information requests, please contact Joel H. Kaplan,
representing Kemmerer Bottling Group, and Richard L.
Marcus, representing A. J. Canfield directly, or the un-
dersigned as intermediary.
As indicated in Chamberlin’s letter, enclosed with his June
28 correspondence to Palo, were copies of two letters, both
dated June 16 and addressed to Marvin Gittler as union
counsel, from Joel H. Kaplan and Richard L. Marcus, attor-
neys, respectively, for Kemmerer Bottling Group, Inc.
(Kemmerer), and A. J. Canfield Co. (Canfield). The Union
then had current collective-bargaining agreements with both
Kemmerer and Canfield who, like the Respondent, were em-
ployers in the soft drink bottling industry in the Chicago
area. Like the Respondent, the Union’s relationship with
Kemmerer and Canfield was embodied in two contracts with
each company covering units analogous to those of the inside
workers and outside workers units it represented among the
Respondent’s employees.
In their respective contracts with the Union, Kemmerer
and Canfield subscribed to pension fund benefit provisions
for employees that were identical to each other but different
from what the Respondent had negotiated with the Union.
Both companies agreed to pay monthly contributions in the
amount of $104.54 to the Chicago Soft Drink Industry Em-
ployers–Local Union No. 744 Pension Fund (the Fund), for
each regular employee who worked on 11 or more workdays
during the calendar month, effective after such employee has
been employed by the contracting employer for 30 days.
However, under the pension fund provision in the Kemmerer
and Canfield contracts, their obligations to pay the $104.54
monthly contribution shall be reduced if during the term of
their respective agreements, the Union entered into or re-
newed any contract/agreement, either voluntary or imposed,
covering the same type of work which permitted some other
employer to provide pension benefits for its employees under
a single-employer retirement plan sponsored by that em-
ployer rather than by contributing to the Fund. Should that
occur, the contribution rate of Kemmerer and Canfield to the
Fund ‘‘shall immediately and prospectively be reduced to an
amount equal’’ to that of any such other employer’s retire-
ment benefit costs under its self-sponsored single-employer
retirement plan.4
As indicated in the above-quoted pension fund provi-
sions of the Respondent’s collective-bargaining agree-
ments with the Union, the Respondent having just dis-
continued participation in the Fund, had negotiated and
established a self-sponsored and administered single-
employer retirement plan for its employees. This cre-
ated the possibility that the Respondent’s costs under its
new plan might differ from the apparently uniform con-
tributions required by the Fund. To take advantage of
‘‘the most favored nation’’ provisions of their respec-
tive labor agreements, both Canfield and Kemmerer
pressed the Union to obtain and provide them with the
Respondent’s pension costs so that they could learn
whether the Respondent’s retirement benefit expendi-
tures for employees were less than their own and, thus,
whether their own contributions to the Fund might be
reduced.
Kaplan’s June 16 letter to Gittler from Kaplan on
Kemmerer’s behalf, enclosed with Chamberlin’s June 28 cor-
respondence to the Respondent, criticized the Union for its
delay in furnishing the Respondent’s pension plan costs,
which Kemmerer had sought since May 12, and, in relevant
part, iterated the following:
We request that you provide us with the following
information for each Coke employee in each bargaining
unit (inside and outside) represented by the Union:
1. (a) The cost per employee of coverage under the
Coke pension plan at the benefit level of $7.50/month
per year of service with appropriate reductions for prior
service . . . .
(b) If this information is not available, the name,
age, years of service, and amount due under the Soft
Drink Industry-Local Union No. 744 Pension Fund for
every Coke employee.
2. The name of each employee who elected to con-
tribute to such savings plan, which bargaining unit
he/she is in, his/her 1988 calendar year earnings, his/her
expected 1989 calendar year earnings and the percent-
age of pay each such employee has elected to contrib-
ute.
Marcus’ June 16 letter to Gittler, also enclosed with
Chamberlin’s June 28 letter to the Respondent, in stern terms
similarly requested cost data pertaining to the Coca-Cola
pension plan to enable that Company to calculate any re-
duced contributions to the Fund. Marcus’ letter included the
following demand:
(5) Actuarial estimates of the costs to Coca-Cola of
its retirement plans and the underlying assumptions for
such estimates . . . . If Coca Cola does not presently
have such estimates, . . . Coca Cola’s own projections
of the costs which it attributed or attributes to the plan
. . . .
The complaint allegations in this matter setting forth the
information that the General Counsel contends the Respond-
ent has unlawfully refused to provide reflect almost verbatim
the above-quoted requests in the June 16 letters from counsel
for Kemmerer and Canfield. In those letters, both attorneys
urged the Union, if necessary, to use the Act to obtain the
desired information from the Respondent.
Earlier, on June 13, both Kemmerer and Canfield, in pur-
suit of the above data, had filed identically framed unfair
labor practice charges alleging that the Union, since respec-
tive dates in May, had violated its bargaining obligation to
them under Section 8(b)(3) of the Act. Accordingly, the
433COCA-COLA BOTTLING CO.
5 284 NLRB 277, 278–279 (1987).
Union’s June 28 information request was sent to the Re-
spondent at least, in part, in response to both the enclosed
correspondence from Kemmerer and Canfield and the pend-
ing charges filed by those companies.
By letter, dated July 11, Palo, the Respondent’s vice presi-
dent, personnel and industrial relations, replied to
Chamberlin, in relevant part, as follows:
Please be advised that the Company has no obliga-
tion to provide such confidential and proprietary infor-
mation for use by its competition. The request on its
face shows that the information is not requested for
purposes of administering the Labor Agreements be-
tween the Union and the Coca-Cola Bottling Company.
Accordingly, we will not be providing the informa-
tion requested in the correspondence from the attorneys
for Kemmerer and A. J. Canfields [sic] enclosed with
your letter of June 28, 1989.
Chamberlin, also on July 11, again wrote to Palo that he
had not received a response to his June 28 information re-
quest. Threatening that the Union would pursue its legal rem-
edies if the Respondent failed to reply to this demand within
7 days from receipt, Chamberlin reiterated the Union’s posi-
tion as follows:
I am again requesting and demanding that Coca-Cola
Bottling Company of Chicago provide the Union with
the following information, which information is relevant
and necessary to the Union’s responsibilities as collec-
tive-bargaining representative. Specifically, please pro-
vide:
(a) data on the cost per employee of coverage
under the Coca-Cola Pension Plan or, if such cost
data is not available,
(b) actuarial estimates or projections of such costs
to Coca-Cola under its Pension Plan.
On July 12, Chamberlin sent the following response to
Palo’s July 11 correspondence:
I disagree with your contention that the Company
has no obligation to provide the information requested.
The Union maintains that such information is relevant
and necessary for administering its collective-bargaining
agreements with the Company. We are prepared to
meet with you and negotiate appropriate provisions to
protect any information the Company claims is con-
fidential and proprietary.
The Respondent’s final stance, restated in Palo’s July 17
correspondence to Chamberlin, in relevant part, follows:
Please be advised that the position of the Coca-Cola
Bottling Company of Chicago remains as set forth in
my correspondence of July 11, 1989. Obviously, the
purpose of your request for information is as set forth
in your letter of June 28, 1989. I have been advised by
legal counsel that our Company has no obligation to
provide the information requested under these cir-
cumstances. The Union has an interest in the adminis-
tration of our Labor Agreements to ensure that benefits
are being provided. Information you have requested that
relates to certain costs is not relevant to that interest.
Therefore, there is no reason to meet and negotiate over
information that is not necessary for the administration
of the Labor Agreement. Furthermore, providing infor-
mation on our costs that will be utilized by competition
in any manner or form is totally unacceptable.
As correspondence, dated July 13 and September 20, from
Susan Brannigan, associated with Gittler as union counsel, to
the Board’s Regional Director makes clear, the Union’s Sep-
tember 7 charge against the Respondent, which underlies this
proceeding, was filed reluctantly in response to advice from
the Regional Office that complaint would issue against the
Union pursuant to the pending charges by Kemmerer and
Canfield if the Union did not file its own charge against the
Respondent.
This matter has proceeded to hearing solely pursuant to
the Union’s charge against the Respondent.
C. Discussion and Conclusions
As Administrative Law Judge Julius Cohn noted in his
Board-approved decision in Stephen Oderwald, Inc.:5
[T]he duty of an employer to bargain in good-faith in-
cludes the obligation to disclose to its employees’ col-
lective-bargaining representative data relevant and rea-
sonably necessary to its role as bargaining agent. The
Supreme Court has stated: ‘‘There can be no question
of the general obligation of an employer to provide the
information that is needed by the bargaining representa-
tive for the proper performance of its duties.’’ NLRB v.
Acme Industrial Co., 385 U.S. 432, 435 (1967). Of
course an employer’s disclosure obligation relates not
only to issues that may be raised at the bargaining
table, but also to those raised during the administration
of the collective-bargaining contract.2
It is necessary to determine whether the Union’s re-
quest for information pertains to a bargaining issue.
Then, according to the Supreme Court, the scope of the
employer’s disclosure obligation is measured by a ‘‘dis-
covery type standard’’ of relevance, which requires
only a ‘‘probability that the desired information is rel-
evant, and that it would be of use to the Union in car-
rying out its statutory duties and responsibilities.’’
NLRB v. Acme Industrial Co., supra at 437. In NLRB
v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d
Cir. 1951), the Court stated ‘‘any less lenient rule in
labor disputes would greatly hamper the bargaining
process, for it is virtually impossible to tell in advance
whether the requested data would be relevant except in
those infrequent instances in which the inquiry is pat-
ently outside the bargaining issue.’’
As to relevance it has been held that ‘‘wage and re-
lated information pertaining to employees in the bar-
gaining unit is presumptively relevant, for, as such data
concerns the core of the employer-employee relation-
ship, a union is not required to show the precise rel-
evance of it,3 while as to other matters, considered out-
side the unit, a showing of relevance must be made. In
this connection it is not necessary that the information
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 244 NLRB 175, 178 (1979).
7 Also see NLRB v. Borden, Inc., 600 F.2d 313 (1st Cir. 1979),
enfg. in pertinent part 235 NLRB 982 (1978).
8 282 NLRB 1199, 1204 (1987), enfd. 844 F.2d 511 (8th Cir.
1988).
9 See, e.g., Borden, Inc., supra.
10 Marshalltown Trowel Co., 293 NLRB 693 (1989).
11 Kurz-Kasch, Inc., 238 NLRB 804, 806 (1978).
12 280 NLRB 1317, 1319 (1986).
13 497 F.2d 747, 751–752 (6th Cir. 1974), enfg. in part 204 NLRB
831 (1973).
14 497 F.2d at 752.
15 204 NLRB 831–832 (1973).
16 289 NLRB 615 (1988).
be shown to be accurate or even admissible in court,
so long as there is some relationship to a subject of col-
lective bargaining.4
2 Detroit Edison Co. v. NLRB, 440 U.S. 303 (1979); NLRB v. Acme
Industrial Co., supra; Westinghouse Electric Corp., 239 NLRB 106
(1978).
3 Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir. 1965).
4 See AGC of California, 242 NLRB 891 (1979).
In Solar Turbines International,6 it is noted that:
The Board has held that information concerning pen-
sions health benefit(s), and insurance are encompassed
within the concept of wages and that both premiums
paid and benefits granted under noncontributory plans
constitute ‘‘wages.’’ East Dayton Tool Co., 239 NLRB
141 (1978); Nestle Co., 238 NLRB 92 (1978).7
As the Board held in WCCO Radio:8
The burden of establishing that presumptively rel-
evant wage and benefit information is not relevant falls
on the employer. [Citations omitted.]
In accordance with the above authority, the pension cost
information requested by the Union in this matter, as affect-
ing employees the Union represents, is presumptively rel-
evant wage and benefit information of the type traditionally
mandated for production,9 and the burden of establishing that
it is not relevant falls on the Respondent. Contrary to the Re-
spondent where, as in the present situation, the wage and
benefit information sought is presumptively relevant, the
Union was not required to articulate a purpose for its re-
quest.10
There is no foundation for the Respondent’s argument that
cost information ‘‘as a matter of established law’’ would not
be relevant to the Union here where negotiations have been
completed and new labor agreements are in effect. Since, as
noted, collective bargaining is a continuing process, even
after negotiations are ended and the contracts are signed, in-
formation concerning actual pension costs could enable the
Union to ascertain whether the Respondent, in fact, was
making necessary contributions to the pension fund and
whether such contributions, if paid as scheduled, were ade-
quate to ensure the fund’s stability, continued viability, and
capacity to provide retirement benefits at contracted levels.
Such data also could be useful to the Union where, during
the labor agreement term, an employer should contend an in-
ability to continue its business or to meet its contractual obli-
gations because of asserted high labor costs.11 Schaeff
Namco, Inc.,12 and NLRB v. Goodyear Aerospace Corp.,13
cited by the Respondent, are not supportive.
In Schaeff Namco, supra, the Board found that the em-
ployer had lawfully refused to honor the union’s request for
financial information to aid its evaluation of the company’s
wage reduction proposal because the union’s request had
been made for a specific, since-expired purpose and, therefor,
no longer was relevant to the bargaining process. There, the
union’s information request, made in connection with wage
reopener negotiations during the contract term, was delivered
to the respondent appropriately 2 days after the end of the
14-day period during which such wage reopener negotiations
could occur and at a time when the respondent was contrac-
tually obligated to implement its prior wage offer. As the
company was found to have bargained in good faith during
the reopener period and as the negotiations for which the
data had been requested had ended by the time the informa-
tion request was received, the Board found that the data
sought by the union was irrelevant to its bargaining duties.
Here, unlike Schaeff Namco, the Union’s demand for infor-
mation did not relate solely to a limited situation, rendered
moot, but to the Union’s continuing responsibilities as bar-
gaining representative.
In NLRB v. Goodyear Aerospace Corp., supra, also cited
by the Respondent, the U.S. Court of Appeals, Sixth Circuit,
refused to enforce part of a Board Order requiring the em-
ployer to make available certain financial information (super-
seded by a request for an audit) to enable verification of the
respondent’s claim of noncompetitiveness on the ground that
the union’s request had not been made in furtherance of ne-
gotiations. This was because the union’s request, made dur-
ing the contract term while attending a series of company-
requested meetings to consider management’s problems, was
found to have been in the context of its originally stated in-
tent to merely listen and to exercise its right not to renego-
tiate while the labor agreement still was in effect. The court
found that the respondent was not required to provide infor-
mation the union had requested during those sessions, to
which it otherwise would have been entitled, because ‘‘since
neither party was required to negotiate (during the contract
term), Goodyear was not compelled to supply information
when the Union was willing only to listen.’’14 The Board,
however, had found that after an initial reluctance, the union,
in fact, had negotiated with company representatives con-
cerning company-proposed contract changes during five ses-
sions within a 2-month period; had promised to fully con-
sider the company’s problems; and had requested an audit
after receiving a written company proposal that employees
forego a scheduled wage increase because the employer as-
sertedly had been rendered uncompetitive by its labor costs.
The Board, also finding that the company thereafter had pur-
sued an pursued an aggravated course of conduct that under-
mined the union and was rejective of the bargaining process,
held that the respondent was obliged to produce the financial
data necessary to meaningful collective bargaining.15 I, of
course, am bound by the Board’s determination in that mat-
ter.
I would distinguish WXON-TV, Inc.,16 cited by the Re-
spondent in support of its argument that the requested infor-
mation should not properly be required because sought by
435COCA-COLA BOTTLING CO.
17 Associated General Contractors of California, 242 NLRB 891,
894 (1979); Utica Observer-Dispatch v. NLRB, 229 F.2d 575 (2d
Cir. 1956).
18 General Dynamics Corp., 268 NLRB 1432, 1433 (1984).
19 Detroit Edison Co. v. NLRB, 440 U.S. 301, 314–320 (1979);
Minnesota Mining Co., 261 NLRB 27, 30 (1982); General Dynamics
Corp., supra.
20 Cf. General Dynamics Corp., 268 NLRB at 1433.
21 NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1343–
1344 (5th Cir. 1980), enfg. 241 NLRB 167 (1979), cert. denied 449
U.S. 889 (1980).
the Union, not for bargaining purposes, but as a discovery
device to support the Union’s unfair labor practice charge
against the Respondent. In WXON-TV, supra, unlike the
present matter, the union had not requested the disputed in-
formation in the context of its bargaining relationship with
the company but to facilitate an unfair labor practice pro-
ceeding. The union had signed the information request and
the related charge on the same day and had filed the charge
on the following day. In denying the requested information,
the Board noted that the charge had been filed before the re-
spondent ever knew of the information request, let alone had
opportunity to respond, and that the union had not initiated
any contact for bargaining purposes regarding the matters
contained in the information request before filing its charge.
Here, the Union, in its June 28, July 11 and 12 correspond-
ence to the Respondent, had repeatedly requested the dis-
puted data in a bargaining framework. Even after Kemmerer
and Canfield had filed the June 13 unfair labor practice
charges against the Union, the record indicates that the
Union resisted filing its own corresponding charge against
the Respondent until September 7, and then did so only after
having been informed by the Board’s Regional Office that it
must do so to obtain dismissal of the charges against itself
that had been filed by Kemmerer and Canfield. Union Coun-
sel Brannigan’s September 20 letter to the Regional Director
requesting dismissal of the charges against the Union be-
cause of compliance with this dictate, sets forth an expres-
sion of regret at having been compelled to so proceed. Here,
unlike WXON-TV, in spite of the pressures on the Union to
charge the Respondent with violating the Act, the Respond-
ent was given more than 2 months within the bargaining
process to furnish the requested information before being
compelled to answer an unfair labor practice charge.
The Union’s entitlement to the disputed information is not
diminished because it also was sought to enable the Union
to comply with its own bargaining obligations to Kemmerer
and Canfield. While the Union was open about the need to
provide requested data to Kemmerer and Canfield, in all its
relevant correspondence to the Respondent, the Union made
plain that it also was seeking the information for its own use
as bargaining representative. It is settled that where, as here,
‘‘a union’s request for information is for a proper and legiti-
mate purpose, it cannot make any difference that there may
also be other reasons for the request or that the data may be
put to other uses.’’17
Implicit in the Respondent’s position is its concern for
confidentiality. I agree with the Respondent that the con-
fidential nature of the requested cost information is a matter
of legitimate concern, particularly here where the data, if fur-
nished, would be provided to two of the Respondent’s com-
petitors. However, since, in such circumstances, the Board
has recognized the importance of a free flow of information
between the parties to encourage the amicable resolution of
collective-bargaining disputes,18 and as the Union could val-
idly utilize the data sought here for necessary bargaining pur-
poses, the Board is required to balance the Union’s need for
the information against the Respondent’s legitimate interest
in confidentiality.19 Here, acknowledging the germane con-
cerns, I conclude that the Respondent’s desire for confiden-
tiality does not outweigh the Union’s statutory right to rel-
evant pension information. In furnishing the requested data,
the Respondent will not be required to compromise any pro-
duction techniques, patents, copyrights, or professional se-
crets basic to its business, or will it be required to divulge
personal information concerning its employees. On the other
hand, the requested cost factors affecting the Respondent’s
privately sponsored pension fund, when furnished, may assist
the Union in evaluating the fund’s stability and its capacity
to provide the benefit levels required under the contract. It
also might enable the Union to formulate both future contract
proposals and near-term suggestions that could lead to im-
provements in the pension plan’s quality and administration,
perhaps at no cost increases to the Respondent. In so con-
cluding, I recognize that here where, in addition to the
Union, the relevant information also is being sought specifi-
cally on behalf of of the Respondent’s competition,
Chamberlin’s offer in his July 12 letter to ‘‘negotiate appro-
priate provisions to protect any information the Company
claims is confidential and proprietary,’’ well might not lead
to a resolution of confidentiality that would be satisfactory
to the Respondent since disclosure may be unavoidable.20
Nonetheless, the Union’s fundamental right to this basic in-
formation concerning the Respondent’s single-employer pen-
sion plan for employees must prevail over the Respondent’s
concern for the confidentiality of its costs in this cir-
cumscribed area.
Finally, while not contested to the same extent as the pen-
sion cost data, I find that the Respondent also is required to
furnish the information requested by the Union concerning
employee contributions to the contractual savings plan and
the other savings plan-related data sought in the above
Kemperer enclosure to the Union’s June 28 correspond-
ence.21
For the above reasons, I find that at least since July 11,
the Respondent has failed and refused to bargain in good
faith with the Union in violation of Section 8(a)(5) and (1)
of the Act by refusing to provide the Union with the data
requested in its June 28 and July 11 information requests, as
renewed on July 12, to the extent reflected in paragraphs VII
(a) and (b) of the complaint in this matter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The units described above, both before and since their
January 30, 1990 modifications, constitute units appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material, the Union has been the exclusive
bargaining representative of the employees in the aforesaid
units within the meaning of Section 9(a) of the Act.
5. By failing and refusing to furnish the Union with the
information requested in the Union’s June 28 and July 11
and 12, 1989 information requests to the extent reflected in
paragraphs VII (a) and (b) of the complaint in this matter,
the Union has violated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it will be recommended that the Re-
spondent be required to cease and desist therefrom and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent has unlawfully failed
and refused to furnish the Union with certain requested infor-
mation relevant and necessary to its functions as bargaining
agent for the Respondent’s employees in two collective-bar-
gaining units, the Respondent should be required to provide
the Union with the information requested in its June 28 and
July 11 and 12, 1989 letters to the Respondent to the extent
specified in paragraphs VII (a) and (b) of the complaint in
this matter and to post an appropriate notice to employees.
[Recommended Order omitted from publication.]